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EXHIBIT 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (sometimes referred to below as the
"Agreement") is made and entered into as of the 31st day of December, 1996, by
and between XXXXX X. XXXX, III, a resident of Lincolnton, North Carolina
(hereinafter referred to as "Employee") and CAROLINA FIRST BANCSHARES, INC., a
North Carolina corporation, with its principal office in Lincolnton, North
Carolina (hereinafter referred to as the "Company").
WHEREAS, the Company and the Employee desire to continue the services
of the Employee pursuant to this Employment Agreement with Employee, 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 Employee, and Employee 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 Employee hereby agree that Employee shall
become employed by Company under the terms of this Agreement as of January 1,
1997, and shall remain employed by Company through January 31, 2000, unless
sooner terminated pursuant to the terms hereof (the "Employment Period").
Section 3. Duties of Employee.
(a) Subject to the supervision and pursuant to the direction
of the Board of Directors of the Company, Employee shall perform his
assigned duties as President 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.
Employee 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) Employee agrees that he will at all times faithfully,
industriously, and to the best of his ability, experience and talents,
perform all of the duties that
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may be reasonably required of and from him pursuant to the express and
implied terms hereof, to the reasonable satisfaction of the Board of
Directors of Company. Such duties shall be rendered at Company's
offices in Lincolnton, North Carolina, and at such other place or
places as the interests, needs, business and opportunities of Company
shall reasonably require or make advisable.
(c) Employee hereby agrees to refrain from engaging in any
ventures or enterprises which are reasonably likely to materially
interfere with the performance of his express and implied duties
hereunder. Employee shall at all times conduct himself in a manner that
will promote the interests of Company and its affiliates.
Section 4. Company's Rights to Benefits of Work Performed. Company
shall be entitled to all of the benefits, emoluments, and profits arising from
or incident to any and all work, services, and advice of the Employee performed
or rendered in the course of Employee's employment hereunder.
Section 5. Compensation, Expenses and Benefits.
(a) Company shall pay to Employee, and Employee shall accept
from Company, during the Employment Period, and in consideration for
the services to be performed by Employee, a salary at the rate of not
less than $140,920.00 per annum (the "Annual Salary"), less deductions
required by law and Employee authorized deductions, payable in such
equal periodic installments as Company may determine, but not less
frequently than monthly. Each year the salary of the Employee shall be
reviewed and a salary amount set for the following year by the Board of
Directors based upon recommendations of its Compensation and 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 5(a)
above, Company agrees to reimburse Employee promptly (in accordance
with policies and procedures adopted by the Board of Directors of
Company) for all reasonable and necessary expenses actually incurred by
Employee in connection with the Company's business, including, without
limitation, all reasonable and necessary expenses of travel, lodging,
entertainment, and meals away from home incurred by Employee in the
course of his employment hereunder. Employee agrees to keep and
maintain such records of the aforesaid expenses as Company may require
and to account to Company therefore prior to any such reimbursement.
Employee shall comply with all reasonable and lawful policies and
procedures applied by Company from time to time to its employees
generally and relating to or regulating the nature and extent of
reimbursement expenses, and the manner of accounting and reimbursement
therefor.
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(c) Company hereby agrees to make available to Employee,
during the Employment Period, all benefits which are generally
available to similarly situated employees of the Company, subject to
and on a basis consistent with the terms and conditions of such
benefits. In addition, Company agrees to provide Employee, 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
Employee will be allowed to use the Bank automobile for
personal use provided an accounting is kept concerning the
dates and mileage for personal use. Such accounting shall be
made to the Compensation & Benefits Committee on a quarterly
basis. The Employee shall, on a quarterly basis, reimburse the
Company for his personal use at the then current Federal rate.
(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
Employee's contributions in accordance with Company's match of
senior officer's contributions to such plan generally.
(3) A non-contributory employee group life insurance
plan which will provide life insurance for Employee in the
amount equal to two times Employee's annual salary (or a
maximum of $250,000.00) during all times that Employee remains
an active employee.
(4) A non-contributory accident and health insurance
plan for the payment of medical care expenses for Employee.
(5) A non-contributory deferred compensation plan
pursuant to the term of Exhibit "A" attached.
(6) A non-contributory disability income plan wherein
the Company will provide the Employee 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
Employee'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 Employee for life,
medical, or disability insurance, in any amount deemed
advisable and the Employee shall have no right, title or
interest therein. The Employee shall submit to any required
examination and shall execute and assign and/or deliver such
application and policies necessary to effectuate such
insurance coverage.
The Company shall require the Employee to have a
thorough annual physical examination and will reimburse the
Employee for the
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expense. The first such examination shall be made no later
than December 31, 1997.
(7) 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) Employee shall, in addition to the annual salary, be
eligible to receive an annual bonus determined as follows: For each and
every year of this Agreement, beginning with 1997, the Employee shall
be eligible to earn a bonus based on performance goals, in an amount
not less than $38,000.00 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 Employee.
The goals shall be specific and a fixed dollar amount for the
attainment of each goal shall be stated. Each year as a bonus the
Employee 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 Employee, and further the Employee, not
withstanding 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 Employee voluntarily terminates
his employment prior to the end of the Fiscal Year or if the Employee
is terminated for Cause prior to the end of the Fiscal Year. In the
event that the Employee 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 Employee or his estate, as
the case may be. The pro rata portion shall be based upon the number of
days the Employee was employed by the Company during such Fiscal Year
as compared to 365.
(e) Following the Employee'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 employee's expense, health insurance and other benefits to
the Employee and/or the Employee's family at least equal to those which
would have been provided to them in accordance with the Company and its
affiliates plans, programs, practices and policies generally,
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and as otherwise described in this Agreement if the Employee's
employment had not been terminated or, if more favorable to the
Employee, as in effect generally at any time thereafter with respect
to other peer employees of the Company and its affiliated companies
and their families, provided, however, that if the Employee 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 Employee for retiree benefits
pursuant to such plans, practices, programs and policies, the Employee
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 6. Nondisclosure of Confidential Information and
Nonsolicitation.
(a) Employee 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 Employee or compiled, received, or otherwise
discovered by Employee from time to time in the course of his
employment by Company for use in Company's business, which Employee
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) Employee 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 including
its parent company and subsidiaries), 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. Employee further agrees that he will
not retain or use for his account at any time any trade names,
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, Employee 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 employees of Company or
its affiliates, or (iii) become an executive officer,
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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 6, the term "Company" shall
also include the Company's subsidiaries and other affiliates.
Section 7. Termination. If the term of this Agreement has not sooner
automatically expired by lapse of time on January 31, 2000, the term of
Employee's employment hereunder shall terminate upon the occurrence of any of
the following:
(a) Upon the death of the Employee.
(b) As a result of the permanent disability of Employee. If it
is determined that Employee 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 Employee, at the address specified in Section 11, of
its intent to terminate this Agreement. For the purposes of this
Section 8(b), the term "Disability" shall mean the Employee's inability
to perform functions normally performed for Company of the Employee.
Permanent Disability shall mean the present disability of the Employee
coupled with the probability that such disability will continue for an
indefinite period but no less than six (6) months. A "Determination of
Permanent Disability" may be made at the request of either the Company
or Employee; provided, however, that in the event Employee 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 Employee or Company for a "Determination of Permanent
Disability," each of Employee and Company shall designate one doctor to
participate in the determination; provided, however, that if Employee
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 a determination required by this Section
8(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 8(b), which determination shall
be final.
(c) At the election of Company, for Cause. "Cause" shall mean
just and reasonable cause, including without limitation (i) persistent
incompetency or inefficiency, failure to follow reasonable instructions
received from the Board of Directors of the Company or its delegate,
willful misconduct, dishonesty, excessive alcohol use or alcoholism,
use of illegal drugs or convictions of a felony or any other offense
involving moral turpitude, (ii) material breach of any covenant
contained in this Agreement, including without limitation, failure to
devote substantially all business time to the business of the Company.
If Employee desires to sell any shares of Company capital stock within
[6] months after termination for
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cause hereunder, the Employee shall notify the Company in writing and
provide the Company a right of first refusal with respect to the
purchase of such shares to match any bona fide offer by a third-party
to purchase such shares.
(d) Upon either party to this Agreement giving written notice
of termination to the other at least sixty (60) days prior to the
effective date of such termination.
Upon termination under this Section 7, Employee's right to further
compensation and benefits under this Agreement shall cease; provided, however,
that Employee shall remain entitled to any unpaid compensation and benefits
accrued prior to such termination (including, without limitation, any deferred
compensation, all of which shall be deemed vested as provided in Annex A) and to
any expense reimbursements to which he was entitled at the date of such
termination and if Employee's employment is terminated by Company without cause
Section 7(d) or due to his death or disability, such termination shall not
affect Employee's or Employee's personal representative's right to receive
additional payments pursuant to and according to the terms contained in Section
5(d) of this Agreement. Notwithstanding anything herein to the contrary, in the
event that the employment of the Employee is terminated by the Company, without
Cause under Section 8(d) prior to January 31, 2000, the Company shall (i)
continue to pay the Employee the Annual Salary and provide the benefits set
forth in Section 5 of this Agreement except for the annual bonus, the payment of
which is controlled by Section 5(d) until January 31, 2000, or (ii) pay the
Employee twelve (12) months pay, whichever is greater, as severance pay.
Notwithstanding anything contained herein to the contrary, the obligations of
Employee under Section 6 (except as limited in Section 9 below) shall survive
the termination (for any reason) of this Agreement.
Section 8. Change of Control. In the event that the Company experiences
a "Change in Control" as defined herein, the Company shall immediately pay to
the Employee 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 Employee'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, Employee is
terminated by Company or any successor(s), the Company or such successors shall
continue to pay to Employee, for the balance of the terms hereof and in addition
to any other required payments, the Annual Salary then in effect for Employee on
the date of Employee's termination. Said Annual Salary shall be paid
periodically and on the same schedule as that prior to Employee'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
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twenty-five percent (25%) of the combined voting power of the Company's or its
parent company's then outstanding securities. Notwithstanding the foregoing, no
"change in control" shall be deemed to have occurred by virtue of any
transaction which results in the Employee and/or a member or members of the
Company's present Board of Directors (i.e. existing on December 31, 1996), or a
group of persons including the Employee and/or a member or members of the
Company's present Board of Directors, acquiring, directly or indirectly, more
than twenty-five percent (25%) of the combined voting power of the Company's
outstanding securities. For purposes of the immediately preceding sentence a
"change in control" shall be deemed to have occurred if the member or members of
the Company's present Board of Directors do not own, control twenty percent
(20%) or more of the acquiring person or resulting entity. Furthermore, 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 25% 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 8 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 9. Enforcement of Employee Restrictions. Employee 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
Sections 6 and 7 (including, but not limited to, the period of restriction and
the geographical area 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. Employee 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 Employee 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 to at law or in equity. In the event
that any provisions of this Agreement relating to the time period or
geographical 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 or geographical areas of
restriction shall be deemed to become and thereafter be the maximum time period
or geographical areas which such court deems reasonable and enforceable.
Section 10. 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:
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D. Xxxx Xxxx, III, Chairman
Carolina First BancShares, Inc.
000 Xxxx Xxxx Xxxxxx
Post Office Xxx 000
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
and addressed to Employee 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 11. Miscellaneous.
(a) Headings. Headings, titles and captions contained in this
Employment 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 writing 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. 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. Employee agrees and acknowledges
that nothing contained in this Agreement, nor the enforcement of
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any provision herein including Section 6, shall alter Employee's
ability to obtain a livelihood. Employee agrees and acknowledges that
all of the provisions of this Agreement, including Section 6, are
reasonable. Employee 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.
Employee 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
EMPLOYEE:
________________________________
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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 "Employee"):
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 Employee to establish a plan for the purpose of providing certain
benefits for the Employee pursuant to his Employment Agreement:
NOW, THEREFORE, it is mutually agreed as follows:
ARTICLE I
EMPLOYMENT
The Company has employed the Employee as provided in the Employment
Agreement with the Employee, to which this is an exhibit.
ARTICLE II
BENEFITS
The Company is obligated to provide benefits to the Employee 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 Employee
by the Company for cause. The definition of "cause" shall be the same as given
in the Employee's Employment Agreement.
B. Upon retirement from the Company, the Employee shall receive the
monthly amount then vested for 120 consecutive months beginning on the first
business day of the calendar month next succeeding the Employee's retirement
date. In the event the Employee 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.
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C. If the Employee 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 Employee beginning in the month of the
Employee's death.
D. Upon permanent disability before retirement at age 65, the Employee
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 Employee, and after death, his
beneficiaries, monthly payments of $4,166.67 per month for 120 months beginning
in the month of the Employee's death. If the Employee 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 Employee's Employment Agreement and shall be determined
accordingly.
E. Should the Employee 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 Employee's
request within 30 days of such separation of employment, transfer to the
Employee 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 Employee prior to the payment of benefits
hereunder, then the Company shall pay such benefits when due.
F. Should the Employee 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, Employee 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 Employee's employment. All
such amounts shall be vested, and shall be paid to the Employee or to the
Employee'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
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or right under such contract or other property, to exercise such option,
election or right in any particular manner.
The Employee, 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 Employee, 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
Employee 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 Employee shall be the person, persons,
trust or charitable entity, living or in existence at the time for any
distribution hereunder, which the Employee shall have most recently designated
as highest in priority on a form, provided for that purpose by the Company,
signed by the Employee, 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 Employee'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 Employee. 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 Employee's last will and
testament, except to the extent to which the specific bequests of such document
are paid by the Employee'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 Employee's personal property, and in the proportions to
which they would be so entitled, had such Employee 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.
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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 Employee 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 Employee 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.
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