Exhibit 10.7
December __, 2008
BY HAND DELIVERY
----------------
[Insert Name of SEO]
Four Oaks Bank & Trust
0000 X.X. 000 Xxxxx
Xxxx Xxxx, Xxxxx Xxxxxxxx 00000
Dear [Insert SEO's Name],
Four Oaks Fincorp, Inc. ("FOFN") anticipates entering into a Securities Purchase
Agreement (the "Participation Agreement"), with the United States Department of
Treasury ("Treasury") that provides for FOFN's participation in the Treasury's
TARP Capital Purchase Program (the "CPP"). If FOFN participates in the CPP, the
investment contemplated by the Participation Agreement will likely occur during
the first quarter of 2009 but could close before December 31, 2008.
If FOFN does not participate in the CPP, this letter shall be of no further
force and effect. Furthermore, if FOFN ceases to participate in the CPP, this
letter shall be of no further force and effect as of the earliest possible time
permitted following the "CPP Covered Period." A "CPP Covered Period" for such
purposes shall be any period during which (A) you are a senior executive officer
of FOFN or Four Oaks Bank & Trust (the "Bank") and (B) Treasury holds an equity
or debt position acquired from FOFN in the CPP.
For FOFN to participate in the CPP and as a condition to the closing of the
investment contemplated by the Participation Agreement, the Bank is required to
establish specified standards for incentive compensation to senior executive
officers and to make changes to its compensation arrangements. To comply with
these requirements, and in consideration of the benefits that you will receive
as a result of XXXX's participation in the CPP and other good and valuable
consideration, you agree with the Bank as follows:
1. No Golden Parachute Payments. The Bank is prohibited from making any
golden parachute payment to you during any CPP Covered Period.
2. Recovery of Bonus and Incentive Compensation. Any bonus and incentive
compensation paid to you during a CPP Covered Period is subject to
recovery or "clawback" by the Bank if the payments were based on
materially inaccurate financial statements or any other materially
inaccurate performance metric criteria.
3. Compensation Program Amendments. Each of the Bank's compensation,
bonus, incentive and other benefit plans, arrangements and agreements
(including golden parachute, severance and employment agreements)
(collectively, "Benefit Plans") with respect to you is hereby amended
to the extent necessary to give effect to provisions (1) and (2). In
addition, the Bank is required to review its Benefit Plans to ensure
that they do not encourage senior executive officers to take
unnecessary and excessive risks that threaten the value of FOFN or the
Bank. To the extent any such review requires revisions to any Benefit
Plan with respect to you, you and the Bank agree to negotiate such
changes promptly and in good faith and execute such additional
documents as the Bank deems necessary to effect such revisions.
4. Definitions and Interpretation. This letter shall be interpreted as
follows:
-- "Senior executive officer" means FOFN or the Bank's "senior
executive officers" as defined in subsection 111(b)(3) of EESA.
-- "Golden parachute payment" shall have the same meaning as in EESA
Section 111(b)(2)(C).
-- "EESA" means the Emergency Economic Stabilization Act of 2008 as
implemented by guidance or regulation issued by the Department of
the Treasury and as published in the Federal Register on October
20, 2008.
-- The term "FOFN" includes any entities treated as a single
employer with FOFN under 31 C.F.R. ss. 30.1(b) (as in effect on
the Closing Date). You are also delivering a waiver pursuant to
the Participation Agreement, and, as between FOFN and you, the
term "employer" in that waiver will be deemed to mean FOFN as
used in this letter.
-- The term "CPP Covered Period" shall be limited by, and
interpreted in a manner consistent with, 31 C.F.R. ss. 30.11 (as
in effect on the Closing Date).
-- Provisions (1) and (2) of this letter are intended to, and will
be interpreted, administered and construed to, comply with EESA
Section 111 (and, to the maximum extent consistent with the
preceding, to permit operation of the Benefit Plan in accordance
with their terms before giving effect to this letter).
5. Miscellaneous. To the extent not subject to federal law, this letter
will be governed by and construed in accordance with the laws of the
State of North Carolina. This letter may be executed in two or more
counterparts, each of which will be deemed to be an original. A
signature transmitted by facsimile will be deemed an original
signature.
The Board appreciates the concessions you are making and looks forward to your
continued leadership during these financially turbulent times.
Yours sincerely,
FOUR OAKS BANK & TRUST COMPANY
By:__________________________________
Name: _______________________________
Title: ______________________________
EXECUTIVE
Intending to be legally bound, I agree with and accept the foregoing terms on
the date set forth below.
_________________________________________________(SEAL)
[Insert Name]
Date:________________________________________
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