CHANGE IN CONTROL OF THE BANK a. In the event of a "change in control" of the Employer, as defined herein, and only to the extend permitted by applicable statutes and regulations, Executive shall be entitled, for a period of thirty (30) days from the date of closing of the transaction effecting such change in control and at his election, to give written notice to Employer of termination of this Agreement and to receive a cash payment equal to one time (100%) the compensation, including incentive compensation, if any, received by Executive in the one-year period immediately preceding the change in control. The severance payments provided for in this Section 10.a. shall be paid in cash, commencing not later than ten (10) days after the date of notice of termination by Executive under this Section 10 or ten (10) days after the date of closing of the transaction effecting the change in control of the Employer, whichever is later.
b. In addition, if Executive elects to terminate this Agreement pursuant to this Section 10, Executive shall further be entitled, in lieu of shares of Common Stock of the Holding Company issuable upon exercise of stock options to which Executive is entitled, an amount in cash or Common Stock of the Holding Company or any other company into which shares of the Holding Company are convertible (or any combination thereof) as Executive shall in his election designate equal to the excess of the fair market value of the Common Stock as of the date of closing of the transaction effecting the change in control over the per share exercise price of the options held by Executive, times the number of shares of Common Stock subject to such options (whether or not then fully exercisable). The fair market value of the Common Stock shall be equal to the higher of (i) the value as determined by the Board of Directors of the Holding Company if there is no organized trading market for the shares at the time such determination is made, which per share value shall not be less than 1.8 times the per share book value of the stock or (ii) the closing price (or the average of the bid and asked prices if no closing price is available) on any nationally recognized securities exchange or association on which the Holding Company's shares may be quoted or listed, or (iii) the highest per share price actually paid for Common Stock of the Holding Company in connection with any change in control of the Employer. The severance payments provided for in this Section 10.b. shall be paid in full not l...
CHANGE IN CONTROL OF THE BANK. In the event of a "Change in Control" of the Bank during the Term of Employment, as defined herein, and if as a result of any such Change in Control Executive either (i) is terminated (except "for Cause" as defined in Section 4.2 above), during both the Term of Employment and the one-year period after the Change in Control becomes effective, from his employment hereunder and before he reaches age 75, or (ii) has a "Change in Duties or Salary" as defined below and resigns, during both the Term of Employment and the one-year period after the Change in Control becomes effective, as a result of such change, then Executive shall be entitled to receive severance compensation in an amount equal to one hundred fifty percent (150%) of his Base Salary then in effect and any other amounts owing to Executive at the time of such termination date, which shall be paid in a lump sum within 14 days following the date of termination or resignation. For purposes of this Section 5, "Change in Control" of the Bank shall mean:
(i) any transaction, whether by merger, consolidation, asset sale, tender offer, reverse stock split or otherwise, which results in the acquisition of beneficial ownership (as such term is defined under rules and regulations promulgated under the Securities Exchange Act of 1934, as amended) by any person or entity or any group of persons or entities acting in concert, with the exception of the Bank's Board of Directors or the Bank's shareholders, of 50% or more of the outstanding shares of common stock of the Bank;
(ii) the sale of all or substantially all of the assets of the Bank; or
(iii) the liquidation of the Bank. For purposes of this Agreement, "Change in Duties or Salary" of Executive shall mean any of: (i) a change in duties and responsibilities of Executive from those duties and responsibilities of Executive for the Bank in effect at the time a Change in Control occurs, which change results in the assignment of duties and responsibilities inferior to those duties and responsibilities of Bank at the time such Change in Control occurs; (ii) a reduction in rate of annual salary from such rate in effect at the time of Change in Control; or (iii) a change in the place of assignment of Bank from Fayetteville, Georgia, to any other city or geographical location that is located further than 15 miles from the principal office of the Bank in Fayetteville, Georgia.
CHANGE IN CONTROL OF THE BANK. (i) In the event of a Change in Control of the Bank (as defined in Paragraph 5(d)(iv) below) and in the event that within ninety (90) days following the consummation of the Change in Control (A) Executive voluntarily terminates his employment with the Bank (or its successors) or (B) the Bank (or its successors) notifies Executive that it elects to terminate Executive's employment with the Bank (or its successors) for any or no reason, then Executive shall promptly be paid a lump sum payment (the "Change of Control Payment") equal to:
(1) Two times his then Base Salary; plus
(2) An amount equal to two times the Incentive Compensation earned by Executive in respect of the fiscal year immediately preceding the Change in Control, or in the event Incentive Compensation has not been paid yet for such year as of the date of the Change in Control, then an amount equal to two times Executive's Incentive Compensation for the penultimate year prior to the Change in Control or equal to two times the Incentive Benefits Foregone, whichever is greater if no Incentive Compensation has been paid prior to the Change in Control, PROVIDED, HOWEVER, that the total amount of the Change of Control Payment shall not exceed an amount equal to three times the average of the Executive's annualized compensation paid by the Bank and its affiliates which was includible in the Executive's gross income during the most recent five taxable years (or such lesser number of years equal to the number of years Executive was employed by the Bank) ending before the date of the Change of Control (i.e. amounts includible in compensation, including base salary and cash annual incentive prior to any deferred arrangements, and defined as the individual's "base amount" under Section 280G of the Internal Revenue Code of 1986, as amended). Upon such termination, however, Executive shall not be paid any Severance Payment (as defined below) which would otherwise be payable to Executive under this Agreement -- the Change in Control Payment replacing any such Severance Payment.
(ii) In the event neither Executive nor the Bank (or its successors) elects to terminate Executive's employment as provided in (i) above within ninety (90) days following a Change in Control, the Bank (or its successor) shall either (A) promptly pay the Change of Control Payment to Executive or (B) offer Executive a new two (2) year employment agreement containing terms no less favorable than the terms of this Agreement existing on th...
CHANGE IN CONTROL OF THE BANK. In the event of a “Change in Control” of the Bank during the Term of Employment, as defined herein, Executive shall be entitled to receive incentive compensation in an amount equal to one hundred percent (100%) of his Base Salary then in effect, which shall be paid in a lump sum at the closing of a transaction resulting in a Change in Control. In addition, all incentives contemplated by Section 3.2 shall be immediately due and payable upon the occurrence of a Change in Control. For purposes of this Section 5, “Change in Control” of the Bank shall mean:
(i) any transaction, whether by merger, consolidation, asset sale, tender offer, reverse stock split or otherwise, which results in the acquisition of beneficial ownership (as such term is defined under rules and regulations promulgated under the Securities Exchange Act of 1934, as amended) by any person or entity or any group of persons or entities acting in concert, with the exception of the Bank’s Board of Directors or the Bank’s shareholders, of 50% or more of the outstanding shares of common stock of the Bank;
(ii) the sale of all or substantially all of the assets of the Bank; or
(iii) the liquidation of the Bank.
CHANGE IN CONTROL OF THE BANK. (a) If at the effective time of, or any time within 24 months following, a “Change in Control” (as defined below):
(i) the Bank terminates Employee’s employment other than for “Cause” (as defined in Paragraph 6(c) above), or
(ii) a “Termination Event” (as defined below) occurs and, thereafter, Employee voluntarily terminates his own employment with the Bank in the manner described below, then (subject to the limitations set forth herein) Employee shall be entitled to receive from the Bank, and the Bank shall be obligated to pay or cause to be paid to Employee, an amount equal to 2.99 multiplied by Employee’s annual Base Salary in effect at the time the Change in Control became effective or in effect at the time the termination of Employee’s employment becomes effective, whichever is greater. The payments provided for in this Paragraph 8 shall be paid in a lump-sum payment within thirty (30) days following the effective date of termination of Employee’s employment and shall be in lieu of any other payments provided for in this Agreement, but, to the extent otherwise required by Paragraph 6(c), the Bank shall remain obligated to reimburse Employee for the cost of health insurance coverage to the extent described in that Paragraph.
(b) For purposes of this Agreement, a “Change in Control” shall be defined and interpreted in a manner that is consistent with Section 409A of the Internal Revenue Code of 1986, as amended, and regulations promulgated thereunder, as applicable (“Section 409A”), and shall be deemed to have occurred if:
(i) after the Effective Date, any “Person” (as such term is defined in Sections 3(a)(9) and 13(d)(3) of the Securities Exchange Act of 1934, as amended), directly or indirectly, acquires beneficial ownership of voting stock, or acquires irrevocable proxies or any combination of voting stock and irrevocable proxies, representing more than 50% of any class of voting securities of the Bank or its parent bank holding company, Bank of the Carolinas Corporation (“BankCorp”), or in any manner acquires control of the election of a majority of the directors of the Bank or BankCorp; or
(ii) the Bank or BankCorp consolidates or merges with or into another corporation, or otherwise is reorganized, where the Bank or BankCorp is not the resulting or surviving corporation in such transaction; or
(iii) all or substantially all the Bank’s or BankCorp’s assets are sold or otherwise transferred to or acquired by any other corporation, association or oth...
CHANGE IN CONTROL OF THE BANK. For purposes of this Agreement, a Change in Control of the Bank shall be deemed to have occurred if:
(i) twenty percent (20%) or more of the voting power of the Bank is acquired, directly or indirectly, by a person (or group of persons acting in concert) who do not presently possess such voting power;
(ii) the composition of the Board of Directors of the Bank changes over a period of time of two consecutive years such that the members of the Board at the beginning of the two year period no longer constitute a majority of the Board at the end of the two year period; however, if a new director is nominated and elected after advance approval by not less than two-thirds of the directors in office at that time of election, that new director shall be considered, for purposes of this Agreement, to have been a director at the beginning of that consecutive two year period; or
(iii) the Bank approves an agreement to merge or consolidate with or to allow substantially all of its assets to be purchased by another corporation and as a result of such merger, consolidation or sale of assets, less than a majority of the outstanding voting stock of the surviving, resulting or purchasing corporation is owned, immediately after the transaction, by the holders of the outstanding voting stock of the Bank immediately before the transaction.
CHANGE IN CONTROL OF THE BANK. For purposes of this Agreement, a ------ -- ------- -- --- ---- "change in control of the Bank" shall be deemed to have occurred if (i) any person or any combination of persons, partnerships, associations or other non- corporate entities acting as a group in concert, (other than the Bank, the Board of Directors of the Bank or the Board of Directors of the Holding Company, which for purposes hereof shall not without more be considered a group), owns or becomes the beneficial owner, directly or indirectly, of securities of the Bank or securities of the Holding Company representing 51% or more of the combined voting power of the Bank's or the Holding Company's then outstanding securities, or (ii) if the Bank or the Holding Company is acquired by a corporation or the Bank's assets or the Holding Company's assets are combined with or transferred to another bank or bank holding company, as the case may be, and less than a majority of the outstanding voting shares of the acquiring or surviving bank or holding company, as the case may be, after such acquisition, combination or transfer are owned, immediately after such acquisition, combination or transfer, by the owners of the voting shares of the Bank and Holding Company outstanding immediately prior to such acquisition, combination or transfer.
CHANGE IN CONTROL OF THE BANK. In the event that there is a change in control of the Bank or the Bank's parent company (Emerald Financial Corp. "
CHANGE IN CONTROL OF THE BANK. (a) This Agreement shall be binding upon and inure to the benefit of all successors and assigns of the Bank and Executive. In the event of a change in control of the Bank, the entire Account Balance provided for hereof shall become vested and be immediately paid in full to the Executive.
(b) For purposes of this Agreement, a change in control shall mean:
(i) The acquisition by a person or persons acting in concert of the power to vote twenty-five percent (25%) or more of a class of the voting securities of Emerald Financial Corp. ("Corporation"), or the acquisition by a person of the power to direct the Corporation's management or policies, if the Board of Directors or the Office of Thrift Supervision or successor regulatory agency has made a determination that such acquisition constitutes or will constitute an acquisition of control of the Corporation for the purposes of the Savings and Loan Holding Company Act or the Change in Bank Control Act and the regulations thereunder;
(ii) during any period of two (2) consecutive years during the term of this Agreement, individuals who at the beginning of such period constitute the Board of Directors of the Bank or Corporation cease for any reason to constitute at least a majority thereof, unless the election of each director who was not a director at the beginning of such period has been approved in advance by directors representing at least two thirds (2/3) of the directors then in office who were directors in office at the beginning of the period:
(iii) the Corporation shall have merged into or consolidated with another corporation, or merged another corporation into the Corporation, on a basis whereby less than fifty percent (50%) of the total voting power of the surviving corporation is represented by shares held by former shareholders of the Corporation prior to such merger or consolidation: or
(iv) the Corporation shall have sold substantially all of its assets to another person. The term "person" refers to an individual, corporation, partnership, trust, association, joint venture, pool, syndicate, sole proprietorship, unincorporated organization or other entity.
CHANGE IN CONTROL OF THE BANK. “Change in Control of the Bank” shall mean the occurrence of any of the following: (i) an event that would be required to be reported in response to Item 1(a) of Form 8-K or Item 6(e) of Schedule 14A of Regulation 14A pursuant to the Securities Exchange Act of 1934, as amended (“Exchange Act”), or any successor thereto, whether or not any class of securities of the Bank is registered under the Exchange Act; (ii) any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) other than the MHC is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Bank representing 20% or more of the combined voting power of the Bank’s then outstanding securities; or (iii) during any period of three consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Bank cease for any reason to constitute at least a majority thereof unless the election, or the nomination for election by stockholders, of each new director was approved by a vote of at least two-thirds of the directors then still in office who were directors at the beginning of the period; provided, however, notwithstanding anything to the contrary herein, a “Change in Control of the Bank” shall not be deemed to have occurred if the MHC ceases to own at least a majority of all issued and outstanding shares of common stock of the Bank in connection with a reorganization of the MHC pursuant to which the MHC converts from mutual to stock form in a transaction that does not involve a merger or combination with any company which is not an affiliate of the MHC; provided, further, that a “Change in Control of the Bank” will be deemed to have occurred if in connection with a reorganization, a merger or business combination occurs with a company that is not an affiliate of the MHC (an “Acquisition Transaction”) and less than majority of the Bank’s Board of Directors immediately subsequent to the Acquisition Transaction is comprised of members of the Bank’s Board of Directors immediately prior to such Acquisition Transaction.
