EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into as of September 23,
1999, by and between XXXXX X. XXXX, III, a resident of Lincolnton, North
Carolina (hereinafter referred to as "Executive") and CAROLINA FIRST BANCSHARES,
INC., a North Carolina corporation, with its principal office in Lincolnton,
North Carolina (hereinafter referred to as the "Company"), and supersedes in its
entirety the Employment Agreement between the parties dated as of December 31,
1996, except for Exhibit A thereto, which shall continue in full force and
effect as Exhibit A hereto.
WHEREAS, the Company and the Executive desire to continue the services
of the Executive pursuant to this Employment Agreement with Executive, upon the
terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, and other good and valuable consideration, the receipt
and sufficiency of which are mutually acknowledged, the parties hereto,
intending legally to be bound, agree as follows:
Section 1. Agreement of Employment. Company hereby agrees to continue
to employ Executive, and Executive hereby agrees to remain employed by Company
for the term, and upon and subject to the terms and conditions hereafter set
forth.
Section 2. Term. Company and Executive hereby agree that Executive
shall become subject to the terms of this Agreement as of the date hereof, and
shall remain employed by Company through January 31, 2001, unless sooner
terminated pursuant to the terms hereof (the "Employment Period").
Section 3. Duties of Executive.
(a) Subject to the supervision and pursuant to the direction
of the Board of Directors of the Company, Executive shall perform his
assigned duties as President and Chief Executive Officer of Company and
shall perform such other duties as are customarily performed by one
holding such positions in similar businesses or enterprises as that
engaged in by Company including such specific duties, powers and
responsibilities as may be assigned to him by the Board of Directors.
Among his other duties, Executive shall be responsible for implementing
an effective transition plan and recruiting a successor to serve as
President and Chief Executive Officer of the Company upon Executive's
planned retirement on January 31, 2001. Executive shall, at the
direction of the Board of Directors of the Company, serve in such other
executive capacities with various subsidiaries of the Company as the
Board of Directors may determine.
(b) The Executive shall faithfully and diligently discharge
his duties and responsibilities under this Agreement and devote his
full and exclusive business time, energy and skill to the promotion of
the Company and its subsidiaries.
Section 4. Compensation, Expenses and Benefits.
(a) Company shall pay to Executive, and Executive shall accept
from Company, during the Employment Period, and in consideration for
the services to be performed by Executive, a salary at the rate of not
less than $156,963 per annum (the "Annual Salary"), less deductions
required by law and deductions authorized by the Executive, payable in
such equal periodic installments as Company may determine, but not less
frequently than monthly. Each year the salary of the Executive shall be
reviewed and a salary amount set for the following year by the Board of
Directors based upon recommendations of its Compensation & Benefits
Committee, in accordance with the Company's established salary
administration plan. In the event that a mutual agreement cannot be
reached then the salary shall remain at the same level as that of the
previous year.
(b) In addition to the Annual Salary described in Section 4(a)
above, Company agrees to reimburse Executive promptly (in accordance
with the policies and procedures adopted by the Board of Directors of
Company) for all reasonable expenses actually incurred by Executive in
connection with the Company's business, including, without limitation,
all reasonable expenses of travel, lodging, entertainment, and meals
away from home incurred by Executive in the course of his employment
hereunder. Executive agrees to keep and maintain such records of the
aforesaid expenses as Company may require and to account to Company
therefor prior to any such reimbursement.
(c) Company hereby agrees to make available to Executive,
during the Employment Period, all benefits which are generally
available to executives of the Company, subject to and on a basis
consistent with the terms and conditions of such benefits. In addition,
Company agrees to provide Executive, during the Employment Period, with
the following benefits:
(1) An automobile for his use in carrying out his
duties to the Company and its affiliates. If necessary, the
Executive will be allowed to use such automobile for personal
use provided an account is kept concerning the dates and
mileage for personal use. Such account shall be made to the
Compensation & Benefits Committee on a quarterly basis. The
Executive shall, on a quarterly basis, reimburse the Company
for his personal use at the then current Federal rate. Upon
retirement, the Company shall transfer title of such
automobile to the Executive.
(2) A non-contributory qualified employee
profit-sharing plan; including participation in the Company's
401(k) Plan that provides for the Company to match the
Executive's contributions in accordance with the Company's
match of senior officers' contributions to such plan
generally.
(3) A non-contributory employee group life insurance
plan which will provide life insurance for Executive in the
amount equal to two times Executive's annual salary (or a
maximum of $250,000.00) during all times that Executive
remains an active executive officer of the Company and/or its
affiliates.
(4) A non-contributory accident and health insurance
plan for the payment of medical care expenses for Executive
and Executive's family.
(5) Executive and Executive's family shall be
eligible for participation in, and shall receive all benefits
under the welfare benefit plans, practices, policies and
programs provided by the Company and its affiliates
(including, without limitation, medical, prescription, dental,
disability, employee life, group life, accidental death and
travel accident insurance, plans and programs) (collectively,
"Welfare Plans") to the extent applicable generally to
executives of the Company and its subsidiaries.
(6) Executive shall be entitled to fringe benefits in
accordance with the plans, practices, programs and policies of
the Company and its affiliates made available to executives of
the Company and its subsidiaries.
(7) A non-contributory deferred compensation plan
pursuant to the terms of Exhibit A attached hereto, which
notwithstanding anything to the contrary contained herein,
shall continue in full force and effect.
(8) A non-contributory disability income plan wherein
the Company will provide the Executive with the following
disability income payable to age 65 and after a 90-day waiting
period: disability income equal to sixty percent (60%) of the
Executive's annual salary as it exists from time to time up to
a maximum benefit of $5,000.00 per month. The Company, in its
sole discretion, may apply for additional insurance in its own
name and for its own benefit covering the Executive for life,
medical, or disability insurance, in any amount deemed
advisable, and the Executive shall have no right, title or
interest therein. The Executive shall submit to any required
examination and shall execute and assign and/or deliver such
application and policies necessary to effect such insurance
coverage.
The Company shall require the Executive to have a
thorough annual physical examination and will reimburse the
Executive for the expense. The first such examination shall be
made no later than December 31, 1999.
(9) Club dues to a civic club and a country club
which may include any required initiation fees. The payment of
all dues are subject to approval by the Board of Directors.
(d) Executive shall, in addition to his Annual Salary, be
eligible to receive an annual bonus determined as follows: for each and
every calendar year of this Agreement, beginning with 1999, the
Executive shall be eligible to earn a bonus based on performance goals,
in an amount not less than $62,785 per year.
Each year the Compensation & Benefits Committee shall make
recommendations to the Board of Directors concerning the setting of the
performance goals for that year, after consulting with the Executive.
The goals shall be specific and a fixed dollar amount and the
attainment of each goal shall be stated. Each year as a bonus the
Executive may be paid nothing, or the amount of the maximum possible
bonus, or any amount in between, depending on how many of the goals are
reached.
Nothing herein is intended to or shall prevent the Company
from providing, in its discretion, additional bonus and/or additional
compensation to the Executive, and further the Executive,
notwithstanding anything to the contrary contained herein, shall
participate in all stock option and benefit and Welfare Plans of the
Company and its affiliates on the same basis as all other senior
officers of the Company and its affiliates.
The bonus provided for hereunder shall be payable with respect
to the fiscal year immediately preceding the year in which the bonus is
paid and shall not be payable if the Executive voluntarily terminates
his employment prior to the end of the fiscal year or if the Executive
is terminated for Cause (as defined in Section 6(c) below) prior to the
end of the fiscal year. In the event that the Executive dies, is
terminated because of illness or disability or is terminated by the
Company without Cause, prior to the end of the fiscal year, a pro rata
portion of such bonus, if otherwise earned, shall nevertheless be paid
to the Executive or his estate, as the case may be. The pro rata
portion shall be based upon the number of days the Executive was
employed by the Company during such fiscal year as compared to 365.
(e) Following the Executive's termination and prior to him
reaching age 65, or such longer period as may be provided by the terms
of the appropriate plan, program, practice or policy, the Company shall
continue, at Executive's expense, health insurance and other benefits
to the Executive and/or the Executive's family at least equal to those
which would have been provided to them in accordance with the Company's
and its affiliates' plans, programs, practices and policies generally,
and as otherwise described in this Agreement if the Executive's
employment had not been terminated or, if more favorable to the
Executive, as in effect generally at any time thereafter with respect
to other senior officers of the Company and its affiliates and their
families, provided, however, that if the Executive becomes re-employed
with another employer and is eligible to receive medical or other
welfare benefits under another employer provided plan, the medical and
other welfare benefits described herein shall be secondary to those
provided under such other plan during such applicable period of
eligibility. For purposes of determining eligibility (but not the time
or commencement of benefits) of the Executive for retiree benefits
pursuant to such plans, practices, programs and policies, the Executive
shall be considered to have remained employed until three years after
the date of termination and to have retired on the last day of such
period.
Section 5. Nondisclosure of Confidential Information and
Nonsolicitation.
(a) Executive covenants and agrees to treat as confidential
and not to disclose and to use only for the advancement of the
interests of Company all information, plans, records, trade secrets,
business secrets, and confidential or other data of Company, or its
subsidiaries, submitted to Executive or compiled, received, or
otherwise discovered by Executive from time to time in the course of
his employment by Company for use in Company's business, which
Executive knows to have been acquired by him in confidence or which he
knows would not otherwise be available to competitors of Company or to
members of the public and which would not otherwise become known to
said competitors or members of the public.
(b) Executive agrees that upon termination of his employment
with Company, for any reason, voluntary or involuntary, with or without
Cause, he will immediately return to the Company any property, customer
lists, shareholder lists (of the Company or its affiliates),
information, forms, formulae, plans, documents or other written or
computer material or data, software or firmware, or copies of the same,
belonging to Company or its affiliates, or any of their customers,
within his possession, and will not at any time thereafter copy,
reproduce or otherwise facilitate the future disclosure of the same.
Executive further agrees that he will not retain or use for his account
at any time any trade name, trademark, service xxxx, or other
proprietary business designation used or owned in connection with the
business of the Company or its affiliates.
(c) Following termination of employment, and for two (2) years
thereafter, Executive shall not (i) use any information obtained as a
result of his employment with Company to solicit any business of any
customers, (ii) solicit the employment of any executive officers of the
Company or its affiliates, or (iii) become an executive officer,
director or 10% or greater shareholder of any depository institution or
its affiliates that is located in any county where the Company or its
affiliates has an office on the date of termination.
(d) For purposes of this Section 5, the term "Company" shall
also include the Company's subsidiaries and other affiliates.
Section 6. Termination. If the term of this Agreement has not sooner
automatically expired by lapse of time on January 31, 2001, the term of
Executive's employment hereunder shall terminate upon the occurrence of any of
the following:
(a) Upon the death of the Executive.
(b) As a result of the permanent disability of Executive. If
it is determined that Executive is disabled and that such disability is
likely to be permanent (herein referred to as a "Determination of
Permanent Disability"), Company may terminate this Agreement. Said
termination shall not be effective until such time as Company has given
written notice to Executive, at the address specified in Section 9, of
its intent to terminate this Agreement. For the purposes of this
Section 6(b), the term "Disability" shall mean the Executive's
inability to perform functions normally performed for Company by the
Executive. "Permanent Disability" shall mean the present disability of
the Executive coupled with the probability that such disability will
continue for an indefinite period but not less than six (6) months. A
Determination of Permanent Disability may be made at the request of
either the Company or Executive; provided, however, that in the event
Executive is unable, due to his disability, to make such a request, his
spouse or other designee may make a request in his stead. In the event
of a request by either Executive or Company for a Determination of
Permanent Disability, each of Executive and Company shall designate one
doctor to participate in the determination; provided, however, that if
Executive is unable, due to his disability, to make such designation,
his spouse or other designee shall make the designation in his stead.
If the two doctors so designated agree on the determination required by
this Section 6(b), such determination shall be final. If the two
doctors fail to agree, they shall by agreement designate a third doctor
to make the determination required by this Section 6(b), which
determination shall be final.
(c) At the election of Company, for Cause. "Cause" shall mean
(i) the willful and continued failure of Executive to perform
substantially Executive's duties with the Company (other than as a
result of incapacity due to physical or mental illness, and
specifically excluding any failure by Executive, after reasonable
efforts, to meet performance expectations), after a written demand for
substantial performance is delivered to Executive by the Board of
Directors which specifically identifies the manner in which such Board
believes the Executive has not substantially performed his duties; (ii)
the willful engaging by Executive in illegal conduct or grossly
negligent or willful misconduct which is materially and demonstrably
injurious to the Company, or (iii) Executive becomes ineligible to
serve as an officer or director of a depository institution or a
depository institution holding company as a result of any action by a
regulatory or governmental agency.
For purposes of this provision, no act or failure to act on
the part of Executive shall be considered "willful" unless it is done
or admitted to be done by Executive in bad faith or without reasonable
belief that Executive's act or omission was in the best interests of
the Company. Any act, or failure to act, based upon authority given
pursuant to a resolution duly adopted by the Board of Directors or
based upon the advice of counsel for the Company shall be conclusively
presumed to be done, or omitted to be done, by the Executive in good
faith and in the best interests of the Company.
The termination of employment of Executive shall not be deemed
for Cause pursuant to subparagraphs (i) and (ii) of this paragraph (c)
unless and until the Executive has received a resolution of the Board
of Directors adopted by affirmative vote of not less than two-thirds of
the entire Board of Directors at a meeting duly called and held for
such purpose upon reasonable notice to Executive and where the
Executive is given an opportunity, together with counsel, to be heard
before such Board of Directors, finding that in the good faith opinion
of such Board, Executive has engaged in the conduct described in
subparagraphs (i) or (ii) of this paragraph (c) and specifying in
particular the details thereof.
Upon termination under this Section 6, Executive's right to further
compensation and benefits under this Agreement shall cease; provided, however,
that Executive shall remain entitled to any unpaid compensation and benefits
accrued prior to the date of such termination (including, without limitation,
any deferred compensation, all of which shall be deemed vested as provided in
Exhibit A hereto) and to any reimbursements of expenses to which he was entitled
at the date of such termination and if Executive's employment is terminated by
Company without Cause or due to his death or disability, such termination shall
not affect Executive's or Executive's personal representative's right to receive
additional payments pursuant to and according to the terms contained in Section
4(d) of this Agreement. Notwithstanding anything herein to the contrary, in the
event that the employment of the Executive is terminated by the Company, without
Cause under Section 6 prior to January 31, 2001, the Company shall (i) continue
to pay the Executive the Annual Salary and provide the benefits set forth in
Section 4 of this Agreement except for the annual bonus, the payment of which is
controlled by Section 4(d) until January 31, 2001, or (ii) pay the Executive
twelve (12) months pay, whichever is greater, as severance pay. Notwithstanding
anything contained herein to the contrary, the obligations of Executive under
Section 5 (except as limited in Section 8 below) shall survive the termination
(for any reason) of this Agreement.
If Executive desires to sell any shares of Company capital stock within
six (6) months after termination for cause hereunder, the Executive shall notify
the Company in writing and provide the Company a right of first refusal for
three business days with respect to any sale of any or all such shares at the
same price and terms of any bona fide offer by a third-party to purchase such
shares. Upon termination for Cause, Executive shall submit all certificates
representing shares of Company capital stock to the Company and a legend shall
be placed prominently upon such certificates reflecting the Company's right of
first refusal.
Section 7. Change of Control. In the event that the Company experiences
a "Change in Control" as defined herein, the Company shall immediately pay to
the Executive a lump-sum of money equal to his Annual Salary and maximum bonus
potential for the year in which the Change in Control occurs; said lump sum
payment shall be in addition to and not in lieu of the Executive's regular
compensation should he remain in the employ of the Company or its successor
after a Change in Control. If, following a Change in Control, Executive is
terminated by Company or any successor, the Company or such successors shall
continue to pay to Executive, for the balance of the term hereof and in addition
to any other required payments, the Annual Salary in effect for Executive on the
date of Executive's termination, which shall be payable on the same schedule as
that prior to Executive's termination. Furthermore, all deferred compensation
shall be immediately vested 100%, and shall be paid by the Company or its
successor when due.
A "Change in Control" shall be deemed to have occurred if and when any
"person" (as such term is used in Sections 13(d) and 14(d)(2) of the Securities
and Exchange Act of 1934 and including a "group" thereunder) is or becomes a
beneficial owner, directly or indirectly, of securities of the Company or its
parent company representing greater than fifteen percent (15%) of the combined
voting power of the Company's or its parent company's then outstanding
securities. A "Change in Control" shall not be deemed to have occurred solely as
a result of merger, consolidation or other business combination, where the
Company is the surviving entity, even though the former shareholders of the
other party to such transaction hold, in total, more than 15% of the combined
voting power of the Company's or its parent company's then outstanding
securities, provided such persons are not acting collectively and would not be
deemed to be a single "person" or part of a "group" hereunder solely as a result
of their status as former shareholders of such other entity.
Any dispute or controversy arising under or in connection with this
Section 7 shall be settled exclusively by arbitration in the State of North
Carolina in accordance with the rules of the American Arbitration Association
then in effect.
Section 8. Enforcement of Executive Restrictions. Executive
acknowledges that he has carefully read and considered the provisions of this
Agreement and, having done so, agrees that the restrictions set forth in this
Agreement in Section 5 (including, but not limited to, the period of restriction
set forth therein) are fair and reasonable and are necessarily required for the
protection of the interests of the Company and its affiliates. Executive further
acknowledges that due to the nature of Company's business, more limited
restrictions than those found herein would not be reasonable or appropriate. The
Executive covenants and agrees with Company that if he shall violate any of the
covenants or agreements contained in this Agreement, then Company shall be
entitled to damages in addition to, and not in limitation of, any injunctive
relief or other rights or remedies to which Company and/or its affiliates is or
may be entitled at law or in equity. In the event that any provisions of this
Agreement relating to the time period of any restriction shall be declared by a
court of competent jurisdiction to exceed the maximum time periods or
geographical areas which such court deems reasonable and enforceable, such time
periods of restriction shall be deemed to become and thereafter be the maximum
time period which such court deems reasonable and enforceable. Section 9.
Notices. All notices required or permitted hereunder shall be deemed to be duly
given if in writing and delivered personally or sent by United States registered
or certified mail, postage pre-paid, addressed to Company at:
Chairman
Carolina First BancShares, Inc.
000 Xxxx Xxxx Xxxxxx
Post Office Xxx 000
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
and addressed to Executive at:
Xxxxx X . Xxxx, III
000 Xxxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
or at such changed addresses as the parties may designate in writing.
Section 10. Miscellaneous.
(a) Headings. Headings, titles and captions contained in this
Agreement are inserted only as a matter of convenience and reference
and in no way define, limit, extend, or describe the scope of this
Agreement or the intent of any provisions hereof.
(b) Gender. The use in this Agreement of gender-specific words
or phrases shall be deemed to include the masculine, feminine or neuter
genders, as the context may require.
(c) Entire Agreement. This Agreement including the
attachments, exhibits and appendices hereto constitutes the entire
agreement between the parties hereto and supersedes any prior
understanding or agreements among them respecting the subject matter,
except for Exhibit A which shall continue in full force and effect
unmodified hereby. There are no extraneous representations,
arrangements, understandings, or agreements, oral or written, in
respect of the subject matter of this Agreement among the parties
hereto, except those fully expressed herein.
(d) Amendments. No amendments, changes, alterations,
modifications, additions, extensions and qualifications to the terms of
this Agreement shall be made or binding, unless made in writing and
signed by all the parties hereto.
(e) Waiver. The failure of either party to enforce at any time
any of the provisions of this Agreement shall not be construed as a
waiver of such provisions or of the right of such party thereafter to
enforce any such provisions.
(f) Invalidity and Severability. The invalidity or
unenforceability of any particular provision of this Agreement shall
not affect the enforceability of other provisions hereof, and this
Agreement shall be construed in all respects as if such invalid or
unenforceable provisions were omitted. Executive agrees and
acknowledges that nothing contained in this Agreement, nor the
enforcement of any provision herein including Section 5, shall alter
Executive's ability to obtain a livelihood. Executive agrees and
acknowledges that all of the provisions of this Agreement, including
Section 5, are reasonable. Executive acknowledges that he has carefully
read and considered all the provisions of this Agreement.
(g) Governing Law. This Agreement shall be construed and
governed in accordance with the laws of the State of North Carolina.
Executive hereby consents to the jurisdiction of any local, state or
federal court located in the State of North Carolina.
(h) Burden and Benefit. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective
heirs, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
COMPANY:
ATTEST: CAROLINA FIRST BANCSHARES, INC.
By:_______________________ By:
Secretary Chairman
EXECUTIVE:
Xxxxx X. Xxxx, III
Exhibit "A" to Employment Agreement
CAROLINA FIRST BANCSHARES, INC.
DEFERRED COMPENSATION AGREEMENT WITH
XXXXX X. XXXX, III
THIS PLAN AND AGREEMENT, dated as of the 31st day of December 1996, by
and between Carolina First BancShares, Inc., a North Carolina corporation
(hereinafter referred to as the "Company"), and XXXXX X. XXXX, III (hereinafter
referred to as the "Executive"):
W I T N E S S E T H :
WHEREAS, the Company believes it is in the best interest of the Company
and the Executive to establish a plan for the purpose of providing certain
benefits for the Executive pursuant to his Employment Agreement:
NOW, THEREFORE, it is mutually agreed as follows:
ARTICLE I
EMPLOYMENT
The Company has employed the Executive as provided in the Employment
Agreement with the Executive, to which this is an exhibit.
ARTICLE II
BENEFITS
The Company is obligated to provide benefits to the Executive as
follows:
A. Except as expressly provided herein, no benefit shall be paid
hereunder, except to the extent then vested, upon the discharge of the Executive
by the Company for cause. The definition of "cause" shall be the same as "Cause"
in the Executive's Employment Agreement.
B. Upon retirement from the Company, the Executive shall receive the
monthly amount then vested for 120 consecutive months beginning on the first
business day of the calendar month next succeeding the Executive's retirement
date. In the event the Executive dies after such monthly payments begin but
prior to receiving all 120 monthly payments, then his beneficiary(s) shall be
entitled to receive all remaining payments.
C. If the Executive shall die before his retirement while in the employ
of the Company, the Company will make monthly payments of $4,166.67 for 120
months to the beneficiary(s) of the Executive beginning in the month of the
Executive's death.
D. Upon permanent disability before retirement at age 65, the Executive
shall receive no benefits under this Deferred Compensation Plan until the
earlier of (i) age 65 or (ii) such time as his disability benefits cease, at
which time the Company shall pay the Executive, and after death, his
beneficiaries, monthly payments of $4,166.67 per month for 120 months beginning
in the month of the Executive's death. If the Executive shall die after becoming
permanently disabled but before the age of 65, then the monthly payments shall
begin at death and shall be made to his beneficiary(s) in the amount of
$4,166.67 per month for 120 months. "Permanent disability" shall have the
meaning given it in the Executive's Employment Agreement and shall be determined
accordingly.
E. Should the Executive leave the employ of the Company for any reason
within twelve (12) months after a "Change of Control" (as defined in his
Employment Agreement) then the Company or its successor shall, upon Executive's
request within 30 days of such separation of employment, transfer to the
Executive the ownership of the Insurance policy, if any, that funds this
Deferred Compensation Agreement in lieu of all future monthly payments, but if
such transfer is not requested by the Executive prior to the payment of benefits
hereunder, then the Company shall pay such benefits when due.
F. Should the Executive leave the employment of the Company for any
other reason prior to retirement, then no benefits shall be paid under this
plan, except and to the extent such benefits are vested.
G. Notwithstanding anything to the contrary contained herein or in the
Employment Agreement, as of the date hereof, Executive shall be fully vested in
monthly payments of $2,500.00 through May 30, 1997, at which point his vested
benefits shall be $2,916.67 per month through May 30, 1998, at which time his
vested benefit becomes $3,333.33 through May 30, 1999 when the benefit becomes
$3,750.00 per month through January 31, 2000, at which time his vested benefit
becomes $4,166.67, regardless of any other provisions hereof and regardless of
any reasons for any termination or cessation of the Executive's employment. All
such amounts shall be vested, and shall be paid to the Executive or to the
Executive's named beneficiaries.
ARTICLE III
SOURCE OF PAYMENTS
Notwithstanding any references to life insurance contracts contained
herein, nothing herein shall require the Company to purchase such contract or
any other properties to secure its obligation under this Agreement, or if the
Company should purchase such contract or other property, to exercise any option,
election or right under such contract or other property, or if the Company
wishes to exercise any option, election or right under such contract or other
property, to exercise such option, election or right in any particular manner.
The Executive, beneficiary and any other person or persons having or
claiming a right to payments hereunder or to any interest in this Agreement
shall rely solely on the unsecured promise of the Company set forth herein, and
nothing in this Agreement (other than the provisions of Article II, B. and F.)
shall be construed to give the Executive, beneficiary or any other person or
persons any rights, title, interest or claim in or to any specific asset, fund,
reserve, account or property of any kind whatsoever owned by the Company or in
which it might have any right, title or interest now or in the future, but
Executive shall have the right to enforce his claim against the Company in the
same manner as any unsecured creditor.
ARTICLE IV
BENEFICIARIES
The death beneficiary of the Executive shall be the person, persons,
trust or charitable entity, living or in existence at the time for any
distribution hereunder, which the Executive shall have most recently designated
as highest in priority on a form, provided for that purpose by the Company,
signed by the Executive, filed with the Company, and attached to the Company's
original copy of this document as "Annex A". The death or non-existence of any
such beneficiary either before or after receipt of any distribution hereunder,
shall terminate the entire interest of such beneficiary in any to the then
undistributed portion of such Executive's account and such undistributed portion
shall thereafter be distributed to or for the benefit of the beneficiary or
beneficiaries designated as next highest in priority by such Executive. If no
such beneficiary be thus designated, or if all of the thus designated
beneficiaries do not survive or are no longer in existence at any time prior to
the complete distribution of such account, such account, or the then
undistributed balance thereof, shall be distributed by the corporation directly
to the person or persons who are heirs as named in the Executive's last will and
testament, except to the extent to which the specific bequests of such document
are paid by the Executive's other resources; or if there is no such document
then in existence under the laws of descent and distribution, to those persons
who would be entitled to the Executive's personal property, and in the
proportions to which they would be so entitled, had such Executive died, at the
time for such distribution, intestate and a resident of the State of North
Carolina.
ARTICLE V
MISCELLANEOUS
This Agreement supersedes all deferred compensation agreements
previously entered into by the parties hereto, none of which shall have any
further force and effect upon an after the execution and delivery hereof. This
Agreement shall be subject to, and governed by, the laws of the State of North
Carolina irrespective of the fact that one or more of the parties is or may
become a resident of a different state.
In the event any parts of this Agreement are found to be void, the
remaining provisions of this Agreement shall nevertheless be binding with the
same effect as though the void parts were deleted.
Whenever in this Agreement, words, including pronouns, are used in the
masculine, they shall be read and construed in the feminine or neuter whenever
they will so apply, and whenever in this Agreement, words, including pronouns,
are used in the singular or plural, they shall be read and construed in the
plural or singular, respectively, wherever they would so apply.
This Agreement shall be binding upon the parties hereto, their heirs,
executors, administrators, successors and assigns. The Company agrees that it
will not be a party to any merger, consolidation, reorganization or transaction
which results in a "Change in Control" (as defined in the Employment Agreement),
unless and until its obligations hereunder shall be expressly assumed by its
successor or successors.
This Agreement may be amended or revoked at any time or times, in whole
or in part, solely by the mutual written consent of the Executive and the
Company.
ARTICLE VI
FIDUCIARY
The Company is hereby designated as the named fiduciary hereunder, and
shall be responsible for the management and control of the operation and
administration of this plan including any and all decisions pertaining to the
granting or denial of benefit claims and any and all decisions pertaining to the
review of denials of benefit claims.
ARTICLE VII
FUNDING POLICY
The Company shall establish a funding policy and method for this Plan,
and shall annually review such funding policy and method to make any necessary
adjustments thereto in order to ensure that such funding policy and method at
all times shall remain consistent with the objectives of this Plan, and to the
extent applicable, the requirements of Title I of the Executive Retirement
Income Security Act of 1974, as amended.
ARTICLE VIII
ADMINISTRATION
The Secretary of the Company shall maintain a copy of this Agreement
and any amendments thereto continuously as official records of the Company.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
the day and year first above written.
COMPANY:
CAROLINA FIRST BANCSHARES, INC.
By:
Chairman
ATTEST:
____________________, Secretary
(CORPORATE SEAL)
EXECUTIVE
(SEAL)
Xxxxx X. Xxxx, III
31
EXHIBIT A
Beneficiaries Designated by Executive:
Name % Interest in Payment
