Employment Agreement
EXHIBIT
10(iv)
This
Employment
Agreement
(this
“Agreement”)
is
entered into effective as of this 24 day of October, 2007, by and among Xxxxx
X.
Xxxxx (the “Executive”),
Crescent Financial Corporation, a North Carolina corporation (the “Corporation”),
and
Crescent State Bank, a North Carolina-chartered bank and wholly owned subsidiary
of Crescent Financial Corporation (the “Bank”).
The
Corporation and the Bank are hereinafter sometimes referred to together or
individually as the “Employer.”
Whereas,
the
Executive is the Vice President and Principal Accounting Officer of the
Corporation and Senior Vice President and Chief Financial Officer of the Bank,
possessing unique skills, knowledge, and experience relating to their business,
and the Executive has made and is expected to continue to make major
contributions to the profitability, growth, and financial strength of the
Corporation and affiliates,
Whereas,
the
Executive and the Employer intend that this Agreement shall supersede and
replace in its entirety the December 31, 2003 Employment Agreement between
the
Executive and the Employer, and
Whereas,
none of
the conditions or events included in the definition of the term “golden
parachute payment” that is set forth in Section 18(k)(4)(A)(ii) of the Federal
Deposit Insurance Act [12 U.S.C. 1828(k)(4)(A)(ii)] and in Federal Deposit
Insurance Corporation Rule 359.1(f)(1)(ii) [12 CFR 359.1(f)(1)(ii)] exists
or,
to the best knowledge of the Employer, is contemplated insofar as the Employer
or any affiliates are concerned.
Now
Therefore,
in
consideration of these premises, the mutual covenants contained herein, and
other good and valuable consideration the receipt and sufficiency of which
are
hereby acknowledged, the parties hereto agree as follows.
Article
1
Employment
1.1 Employment.
The
Employer hereby employs the Executive to serve as Vice President and Principal
Accounting Officer of the Corporation and Senior Vice President and Chief
Financial Officer of the Bank according to the terms and conditions of this
Agreement and for the period stated in section 1.3. The Executive hereby accepts
employment according to the terms and conditions of this Agreement and for
the
period stated in section 1.3.
1.2 Duties.
The
Executive shall serve under the direction of the Employer’s President and Chief
Executive Officer and in accordance with the Employer’s Articles of
Incorporation and Bylaws, as the Articles of Incorporation and Bylaws may be
amended or restated from time to time. The Executive shall report directly
to
the President and Chief Executive Officer. The Executive shall serve the
Employer faithfully, diligently, competently, and to the best of the Executive’s
ability. The Executive shall exclusively devote full time, energy, and attention
to the business of the Employer and to the promotion of the Employer’s interests
throughout the term of this Agreement. Without the written consent of the board
of directors of each of the Corporation and the Bank, the Executive shall not
render services to or for any person, firm, corporation, or other entity or
organization in exchange for compensation, regardless of the form in which
such
compensation is paid and regardless of whether it is paid directly or indirectly
to the Executive. Nothing in this Article 2 shall prevent the Executive from
managing personal investments and affairs, provided that doing so does not
interfere with the proper performance of the Executive’s duties and
responsibilities under this Agreement.
1.3 Term
of Employment.
The
initial term of this Agreement shall be for a period of three years commencing
on the effective date of this Agreement. On the first anniversary of the
effective date of this Agreement and on each anniversary thereafter, this
Agreement shall be extended automatically for one additional year unless the
Employer’s board of directors determines that the term shall not be extended. If
the board of directors determines not to extend the term, it shall promptly
notify the Executive in writing, and this Agreement shall nevertheless remain
in
force until its term expires. The board’s decision not to extend the term of
this Agreement shall not – by itself – give the Executive any rights under
this Agreement to claim an adverse change in his position, compensation, or
circumstances or otherwise to claim entitlement to severance benefits under
Articles 4 or 5. References herein to the term of this Agreement mean the
initial term, as the same may be extended. Unless sooner terminated, the
Executive’s employment and the term of this Agreement shall terminate when the
Executive attains age 65.
Article
2
Compensation
and Benefits
2.1 Base
Salary.
In
consideration of the Executive’s performance of the obligations under this
Agreement, the Employer shall pay or cause to be paid to the Executive a salary
at the annual rate of not less than $160,000, payable in semi-monthly
installments. No less frequently than annually, the Executive’s salary shall be
reviewed by the Compensation Committee of the Employer’s board of directors or
by the board committee with jurisdiction over executive compensation. The
Executive’s salary shall be increased no more frequently than annually to
account for cost of living increases. The Executive’s salary also may be
increased beyond the amount necessary to account for cost of living increases
at
the discretion of the committee having jurisdiction over executive compensation.
However, the Executive’s salary shall not be reduced. The Executive’s salary, as
the same may be increased from time to time, is referred to in this Agreement
as
the “Base
Salary.”
2.2 Benefit
Plans and Perquisites.
The
Executive shall be entitled throughout the term of this Agreement to participate
in any and all officer or employee compensation, bonus, incentive, and benefit
plans in effect from time to time, including without limitation stock option
and
other stock-based compensation, incentive, bonus, or purchase plans existing
on
the date of this Agreement or adopted during the term of this Agreement and
plans providing pension, medical, dental, disability, and group life benefits,
including the Employer’s 401(k) plan, and to receive any and all other fringe
benefits provided from time to time, provided that the Executive satisfies
the
eligibility requirements for any such plans or benefits. Without limiting the
generality of the foregoing, the Executive shall be entitled to reimbursement
for all reasonable business expenses incurred performing the Executive’s
obligations under this Agreement, including but not limited to all reasonable
business travel and entertainment expenses incurred while acting at the request
of or in the service of the Employer and reasonable expenses for attendance
at
annual and other periodic meetings of trade associations.
2.3 Vacation.
The
Executive shall be entitled to paid annual vacation and sick leave in accordance
with the policies established from time to time by the Employer, but in no
event
fewer than three weeks of vacation per year. The Executive shall schedule at
least five consecutive days of vacation per year. The timing of vacations shall
be scheduled in a reasonable manner by the Executive. The Executive shall not
be
entitled to any additional compensation for failure to use allotted vacation
or
sick leave nor shall the Executive be entitled to accumulate unused sick leave
from one year to the next, unless authorized by the Employer’s board of
directors to do so.
2.4 Supplemental
Retirement Plan.
The
Employer and the Executive have entered into a Salary Continuation Agreement
dated as of October 1, 2003. Unless the Salary Continuation Agreement explicitly
provides otherwise, whether benefits are properly payable to the Executive
under
the Salary Continuation Agreement shall be determined solely by reference to
that agreement, as the same may be amended or restated from time to
time.
2.5 Indemnification
and Insurance.
(a)
Indemnification.
The
Employer shall indemnify the Executive or cause the Executive to be indemnified
for the Executive’s activities as a director, officer, employee, or agent of the
Employer or as a person who is serving or has served at the request of the
Employer (a “representative”)
as a
director, officer, employee, agent, or trustee of an affiliated corporation,
joint venture, trust or other enterprise, domestic or foreign, in which the
Employer has a direct or indirect ownership interest against expenses (including
without limitation attorneys’ fees, judgments, fines, and amounts paid in
settlement) actually and reasonably incurred (“Expenses”)
in
connection with any claim against the Executive that is the subject of any
threatened, pending, or completed action, suit, or other type of proceeding,
whether civil, criminal, administrative, investigative, or otherwise and whether
formal or informal (a “Proceeding”),
to
which the Executive was, is, or is threatened to be made a party by reason
of
the Executive being or having been such a director, officer, employee, agent,
or
representative.
2
The
indemnification provided herein shall not be exclusive of any other
indemnification or right to which the Executive may be entitled and shall
continue after the Executive has ceased to occupy a position as an officer,
director, employee, agent, or representative with respect to Proceedings
relating to or arising out of the Executive’s acts or omissions during the
Executive’s service in such position. The indemnification provided to the
Executive under this Agreement for the Executive’s service as a representative
shall be payable if and only if and only to the extent that reimbursement to
the
Executive by the affiliated entity with which the Executive has served as a
representative, whether pursuant to agreement, applicable law, articles of
incorporation or association, by-laws or regulations of the entity, or insurance
maintained by such affiliated entity, is insufficient to compensate the
Executive for Expenses actually incurred and otherwise payable by the Employer
under this Agreement. Any payments in fact made to or on behalf of the Executive
directly or indirectly by the affiliated entity with which the Executive served
as a representative shall reduce the obligation of the Employer
hereunder.
(b) Exclusions.
Despite
anything herein to the contrary, however, nothing in this section 2.5 requires
indemnification, reimbursement, or payment by the Employer, and the Executive
shall not be entitled to demand indemnification, reimbursement, or payment
-
1) if
and to
the extent indemnification, reimbursement, or payment constitutes a “prohibited
indemnification payment” within the meaning of Federal Deposit Insurance
Corporation Rule 359.1(l)(1) [12 CFR 359.1(l)(1)], or
2) for
any
claim or any part thereof for which the Executive shall have been determined
by
a court of competent jurisdiction, from which no appeal is or can be taken,
by
clear and convincing evidence, to have acted with deliberate intent to cause
injury to the Employer or with reckless disregard for the Employer’s best
interests, or
3) for
any
claim or any part thereof arising under section 16(b) of the Securities Exchange
Act of 1934 as a result of which the Executive is required to pay any penalty,
fine, settlement, or judgment, or
4) for
any
obligation of the Executive based upon or attributable to the Executive gaining
in fact any personal gain, profit, or advantage to which the Executive was
not
entitled, or
5) any
proceeding initiated by the Executive without the consent or authorization
of
the Employer’s board of directors, but this exclusion shall not apply to any
claims brought by the Executive (x)
to
enforce the Executive’s rights under this Agreement, or (y)
in any
Proceeding initiated by another person or entity whether or not such claims
were
brought by the Executive against a person or entity who was otherwise a party
to
such proceeding.
(c) Insurance.
The
Employer shall maintain or cause to be maintained liability insurance covering
the Executive throughout the term of this Agreement.
Article
3
Termination
3.1 Termination
Because of Death or Disability.
(a)
Death.
The
Executive’s employment shall terminate automatically on the date of the
Executive’s death. If the Executive’s employment terminates because of the
Executive’s death, the Executive’s estate shall receive any sums due the
Executive as Base Salary and reimbursement of expenses through the end of the
month in which death occurred, plus any bonus earned or accrued through the
date
of death, including any unvested amounts awarded for previous years. If the
Executive dies in active service to the Employer, for 12 months after the
Executive’s death the Employer shall assist the Executive’s family with
continuing health care coverage under COBRA substantially identical to that
provided for the Executive before death.
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(b) Disability.
By
delivery of written notice 30 days in advance to the Executive, the Employer
may
terminate the Executive’s employment if the Executive is disabled. For purposes
of this Agreement the Executive shall be deemed to be “disabled”
if
an
independent physician selected by the Employer and reasonably acceptable to
the
Executive or the Executive’s legal representative determines that, because of
illness or accident, the Executive is unable to perform the Executive’s duties
and will be unable to perform the Executive’s duties for a period of 90
consecutive days. The Executive shall not be deemed to be disabled, however,
if
the Executive returns to work on a full-time basis within 30 days after the
Employer gives notice of termination because of disability. If the Executive
is
terminated by either of the Corporation or the Bank because of disability,
the
Executive’s employment with the other shall also terminate at the same time.
During the period of incapacity leading up to termination of the Executive’s
employment under this provision, the Employer shall continue to pay the full
Base Salary at the rate then in effect and all perquisites and other benefits
(other than bonus) until the Executive becomes eligible for benefits under
any
disability plan or insurance program maintained by the Employer, provided that
the amount of the Employer’s payments under this section 3.1(b) to the Executive
shall be reduced by the sum of the amounts, if any, payable to the Executive
for
the same period under any disability benefit or pension plan covering the
Executive. Furthermore, the Executive shall receive any bonus earned or accrued
through the date of incapacity, including any unvested amounts awarded for
previous years.
3.2 Involuntary
Termination for Cause.
The
Employer may terminate the Executive’s employment for Cause. If the Executive’s
employment is terminated for Cause by either of the Corporation or the Bank,
the
Executive’s employment with the other shall also terminate at the same time. If
the Executive’s employment terminates for Cause, the Executive shall receive the
Base Salary through the date on which termination becomes effective and
reimbursement of expenses to which the Executive is entitled when termination
becomes effective. For purposes of this Agreement “Cause”
means
any of the following occur -
(a) an
act of
fraud, embezzlement, or theft by the Executive in the course of employment
or
misconduct involving dishonesty, or
(b) intentional
violation of any law or significant policy of the Employer or an affiliate,
which in the Employer’s sole judgement causes material harm to the Employer or
affiliate, regardless of whether the violation leads to criminal prosecution
or
conviction. For purposes of this Agreement applicable laws include any statute,
rule, regulatory order, statement of policy, or final cease-and-desist order
of
any governmental agency or body having regulatory authority over the Employer.
For purposes of this Agreement no act or failure to act on the Executive’s part
shall be deemed to have been intentional if it was due primarily to an error
in
judgment or negligence. An act or failure to act on the Executive’s part shall
be considered intentional if it is not in good faith and if it is without a
reasonable belief that the action or failure to act is in the best interests
of
the Employer, or
(c) the
Executive’s gross negligence or gross neglect in the performance of duties,
or
(d) intentional
wrongful damage by the Executive to the business or property of the Employer
or
its affiliates, including without limitation the reputation of the Employer,
which in the Employer’s sole judgment causes material harm to the Employer,
or
(e) a
breach
by the Executive of fiduciary duties as an officer or director of the Employer,
or misconduct involving dishonesty, or
(f) a
breach
by the Executive of this Agreement that in the sole judgment of the Employer
is
a material breach, which breach is not corrected by the Executive within ten
days after receiving written notice of the breach, or
4
(g) removal
of the Executive from office or permanent prohibition of the Executive from
participating in the Employer’s affairs by an order issued under section 8(e)(4)
or (g)(1) of the Federal Deposit Insurance Act, 12 U.S.C. 1818(e)(4) or (g)(1),
or
(h) the
occurrence of any event that results in the Executive being excluded from
coverage, or having coverage limited for the Executive as compared to other
executives of the Employer, under the Employer’s blanket bond or other fidelity
or insurance policy covering its directors, officers, or employees,
or
(i) conviction
of the Executive for or plea of no contest to a felony or conviction of or
plea
of no contest to a misdemeanor involving moral turpitude, or the actual
incarceration of the Executive for 45 consecutive days or more.
3.3 Voluntary
Termination by the Executive.
If the
Executive terminates employment voluntarily, the Executive shall receive the
Base Salary and expense reimbursement to which the Executive is entitled through
the date on which termination becomes effective.
3.4 Involuntary
Termination Without Cause.
With
written notice to the Executive 60 days in advance, the Employer may terminate
the Executive’s employment without Cause. Termination shall take effect at the
end of the 60-day period. If the Executive’s employment terminates involuntarily
without Cause, the Executive shall be entitled to the benefits specified in
Article 4 of this Agreement.
3.5 Notice.
Any
purported termination by the Employer or by the Executive shall be communicated
by written notice of termination to the other. The notice must state the
specific termination provision of this Agreement relied upon. The notice must
also state the date on which termination shall become effective, which shall
be
a date not earlier than the date of the termination notice. If termination
is an
involuntary termination for Cause, the notice must state in reasonable detail
the facts and circumstances forming the basis for termination of the Executive’s
employment.
Article
4
Severance
4.1 Termination
Without Cause.
Subject
to the possibility that continued Base Salary for the first six months after
employment termination might be delayed because of section 4.2, if the
Executive’s employment terminates involuntarily but without Cause the Executive
shall be entitled to receive from the Employer continued Base Salary for 12
months from the date of termination. The severance benefit provided by this
section 4.1 shall not be payable, however, if the Executive’s employment is
terminated within 24 months after a change in control of the Corporation. In
addition, if the Executive becomes employed elsewhere during the 12-month period
in which severance benefits are payable under this section 4.1, the severance
benefit provided by this section 4.1 shall be reduced by the amount of any
other
compensation earned by the Executive during the 12-month period. A change in
control of the Corporation means a change in control as defined in Internal
Revenue Code section 409A and rules, regulations, and guidance of general
application thereunder issued by the Department of the Treasury, including
-
(a) Change
in ownership:
a
change in ownership of the Corporation occurs on the date any one person or
group accumulates ownership of Corporation stock constituting more than 50%
of
the total fair market value or total voting power of the Corporation’s
stock,
(b) Change
in effective control:
(x)
any one
person or more than one person acting as a group acquires within a 12-month
period ownership of Corporation stock possessing 30% or more of the total voting
power of the Corporation’s stock, or (y)
a
majority of the Corporation’s board of directors is replaced during any 12-month
period by directors whose appointment or election is not endorsed in advance
by
a majority of the Corporation’s board of directors, or
5
(c) Change
in ownership of a substantial portion of assets:
a
change in the ownership of a substantial portion of the Corporation’s assets
occurs if in a 12-month period any one person or more than one person acting
as
a group acquires from the Corporation assets having a total gross fair market
value equal to or exceeding 40% of the total gross fair market value of all
of
the Corporation’s assets immediately before the acquisition or acquisitions. For
this purpose, gross fair market value means the value of the Corporation’s
assets, or the value of the assets being disposed of, determined without regard
to any liabilities associated with the assets.
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4.2
|
Possible
Delay Because of 409A.
If when employment termination occurs the
|
Executive
is a specified employee within the meaning of section 409A of the Internal
Revenue Code of 1986, and if continued Base Salary under section 4.1 would
be
considered deferred compensation under section 409A, and finally if an exemption
from the six-month delay requirement of section 409A(a)(2)(B)(i) is not
available, the Executive’s severance benefit under section 4.1 for the first six
months after employment termination shall be paid to the Executive in a single
lump sum on the first day of the seventh month after the month in which the
Executive’s employment terminates. References in this Agreement to section 409A
of the Internal Revenue Code of 1986 include rules, regulations, and guidance
of
general application issued by the Department of the Treasury under Internal
Revenue Code section 409A.
Article
5
Confidentiality
and Creative Work
5.1 Non-disclosure.
The
Executive covenants and agrees not to reveal to any person, firm, or corporation
any confidential information of any nature concerning the Employer or its
business. As used in this Article 5, the term “confidential
information”
means
all of the Employer’s and its affiliates’ confidential and proprietary
information and trade secrets in existence on the date hereof or existing at
any
time during the term of this Agreement, including but not limited to
-
(a) the
whole
or any portion or phase of any business plans, financial information, purchasing
data, supplier data, accounting data, or other financial
information,
(b) the
whole
or any portion or phase of any research and development information, design
procedures, algorithms, or processes, or other technical
information,
(c) the
whole
or any portion or phase of any marketing or sales information, sales records,
customer lists, prices, sales projections, or other sales information,
and
(d) trade
secrets, as defined from time to time by the laws of the State of North
Carolina.
Despite
the foregoing, confidential information excludes information that - as of the
date hereof or at any time after the date hereof - is published or disseminated
without obligation of confidence or that becomes a part of the public domain
(x) by
or through action of the Employer or (y) otherwise
than by or at the Executive’s direction. This section 5.1 does not prohibit
disclosure required by an order of a court having jurisdiction or a subpoena
from an appropriate governmental agency or disclosure made by the Executive
in
the ordinary course of business and within the scope of the Executive’s
authority.
5.2 Return
of Materials.
The
Executive agrees to deliver or return to the Employer upon employment
termination, upon expiration of this Agreement, or as soon thereafter as
possible, all written information and any other similar items furnished by
the
Employer or prepared by the Executive in connection with the Executive’s
services hereunder. The Executive will retain no copies thereof after
termination of this Agreement or termination of the Executive’s
employment.
5.3 Injunctive
Relief.
The
Executive acknowledges that it is impossible to measure in money the damages
that will accrue to the Employer if the Executive fails to observe the
obligations imposed by this Article 5. Accordingly, if the Employer institutes
an action to enforce the provisions hereof, the Executive hereby waives the
claim or defense that an adequate remedy at law is available to the Employer,
and the Executive agrees not to urge in any such action the claim or defense
that an adequate remedy at law exists.
6
5.4 Affiliates’
Confidential Information is Covered; Confidentiality Obligation Survives
Termination.
For
purposes of this Agreement the term “affiliate”
of
the
Employer includes the Bank and any entity that directly, or indirectly through
one or more intermediaries, controls, is controlled by, or is under common
control with the Corporation. The rights and obligations set forth in this
Article 5 shall survive termination of this Agreement.
5.5 Creative
Work.
The
Executive agrees that all creative work and work product, including but not
limited to all technology, business management tools, processes, software,
patents, trademarks, and copyrights developed by the Executive during the term
of this Agreement, regardless of when or where such work or work product was
produced, constitutes work made for hire, all rights of which are owned by
the
Employer. The Executive hereby assigns to the Employer all rights, title, and
interest, whether by way of copyrights, trade secret, trademark, patent, or
otherwise, in all such work or work product, regardless of whether the same
is
subject to protection by patent, trademark, or copyright laws.
Article
6
Miscellaneous
6.1 Successors
and Assigns.
(a)
This
Agreement is binding on the successors.
This
Agreement shall be binding upon the Employer and any successor to the Employer,
including any persons acquiring directly or indirectly all or substantially
all
of the business or assets of the Employer by purchase, merger, consolidation,
reorganization, or otherwise. But this Agreement and the Employer’s obligations
under this Agreement are not otherwise assignable, transferable, or delegable
by
the Employer. By agreement in form and substance satisfactory to the Executive,
the Employer shall require any successor to all or substantially all of its
business or assets expressly to assume and agree to perform this Agreement
in
the same manner and to the same extent the Employer would be required to perform
had no succession occurred.
(b) This
Agreement is enforceable by the Executive’s heirs.
This
Agreement shall inure to the benefit of and be enforceable by the Executive’s
personal or legal representatives, executors, administrators, successors, heirs,
distributees, and legatees.
(c) This
Agreement is personal in nature and is not assignable.
This
Agreement is personal in nature. Without written consent of the other parties,
no party shall assign, transfer, or delegate this Agreement or any rights or
obligations under this Agreement except as expressly permitted. Without limiting
the generality or effect of the foregoing, the Executive’s right to receive
payments hereunder is not assignable or transferable, whether by pledge,
creation of a security interest, or otherwise, except for a transfer by the
Executive’s will or by the laws of descent and distribution. If the Executive
attempts an assignment or transfer that is contrary to this section 6.1, the
Employer shall have no liability to pay any amount to the assignee or
transferee.
6.2 Governing
Law, Jurisdiction and Forum.
This
Agreement shall be construed under and governed by the internal laws of the
State of North Carolina, without giving effect to any conflict of laws provision
or rule (whether of the State of North Carolina or any other jurisdiction)
that
would cause the application of the laws of any jurisdiction other than North
Carolina. By entering into this Agreement, the Executive acknowledges that
the
Executive is subject to the jurisdiction of both the federal and state courts
in
North Carolina. Any actions or proceedings instituted under this Agreement
shall
be brought and tried solely in courts located in the Wake County, North
Carolina, or in the federal court having jurisdiction in Cary, North Carolina.
The Executive expressly waives the right to have any such actions or proceedings
brought or tried elsewhere.
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6.3 Entire
Agreement.
This
Agreement sets forth the entire agreement of the parties concerning the
employment of the Executive. Any oral or written statements, representations,
agreements, or understandings made or entered into before or contemporaneously
with the execution of this Agreement are hereby rescinded, revoked, and rendered
null and void by the parties. Benefits payable under this Agreement shall not
be
reduced by any benefits payable under the Salary Continuation Agreement between
the Executive and the Bank, as that agreement may be amended or restated, and
benefits payable under the Salary Continuation Agreement likewise shall not
be
reduced by any benefits payable under this Agreement. This Agreement supersedes
and replaces in its entirety the December 31, 2003 Employment Agreement entered
into by the Executive, the Bank, and the Corporation.
6.4 Notices.
Any
notice under this Agreement shall be deemed to have been effectively made or
given if in writing and personally delivered, delivered by mail properly
addressed in a sealed envelope, postage prepaid by certified or registered
mail,
delivered by a reputable overnight delivery service, or sent by facsimile.
Unless otherwise changed by notice, notice shall be properly addressed to the
Executive if addressed to the address of the Executive on the books and records
of the Employer at the time of the delivery of such notice, and properly
addressed to the Employer if addressed to Crescent Financial Corporation, 0000
Xxxx Xxxxx Xxxx, Xxxx, Xxxxx Xxxxxxxx 00000, Attention: Corporate
Secretary.
6.5 Severability.
In the
case of conflict between any provision of this Agreement and any statute,
regulation, or judicial precedent, the latter shall prevail, but the affected
provisions of this Agreement shall be curtailed and limited solely to the extent
necessary to bring them within the requirements of law. If any provision of
this
Agreement is held by a court of competent jurisdiction to be indefinite,
invalid, void or voidable, or otherwise unenforceable, the balance of this
Agreement shall continue in full force and effect unless such construction
would
clearly be contrary to the intentions of the parties or would result in an
injustice.
6.6 Captions
and Counterparts.
The
captions in this Agreement are solely for convenience. The captions do not
define, limit, or describe the scope or intent of this Agreement. This Agreement
may be executed in several counterparts, each of which shall be deemed to be
an
original but all of which together shall constitute one and the same
instrument.
6.7 Amendment
and Waiver.
This
Agreement may not be amended, released, discharged, abandoned, changed, or
modified except by an instrument in writing signed by each of the parties
hereto. The failure of any party hereto to enforce at any time any of the
provisions of this Agreement shall not be construed to be a waiver of any such
provision, nor in any way to affect the validity of this Agreement or any part
thereof or the right of any party thereafter to enforce each and every
provision. No waiver or any breach of this Agreement shall be held to be a
waiver of any other or subsequent breach.
6.8 Compliance
with Internal Revenue Code Section 409A.
The
Employer and the Executive intend that their exercise of authority or discretion
under this Agreement shall comply with section 409A of the Internal Revenue
Code
of 1986. If when the Executive’s employment terminates the Executive is a
specified employee, as defined in section 409A of the Internal Revenue Code
of
1986, and if any payments under this Agreement, including Articles 4 or 5,
will
result in additional tax or interest to the Executive because of section 409A,
then despite any contrary provision of this Agreement the Executive shall not
be
entitled to the payments until the earliest of (x)
the
date that is at least six months after termination of the Executive’s employment
for reasons other than the Executive’s death, (y)
the
date of the Executive’s death, or (z)
any
earlier date that does not result in additional tax or interest to the Executive
under section 409A. As promptly as possible after the end of the period during
which payments are delayed under this provision, the entire amount of the
delayed payments shall be paid to the Executive in a single lump sum. If any
provision of this Agreement does not satisfy the requirements of section 409A,
such provision shall nevertheless be applied in a manner consistent with those
requirements. If any provision of this Agreement would subject the Executive
to
additional tax or interest under section 409A, the Employer shall reform the
provision. However, the Employer shall maintain to the maximum extent
practicable the original intent of the applicable provision without subjecting
the Executive to additional tax or interest, and the Employer shall not be
required to incur any additional compensation expense as a result of the
reformed provision.
In
Witness Whereof,
the
parties have executed this Employment Agreement as of the date first written
above.
0
|
XXXXXXXXX
|
XXXXXXXX
FINANCIAL CORPORATION
|
||
|
By:
|
|||
|
Its:
|
|||
|
WITNESSES
|
CRESCENT
STATE BANK
|
||
|
By:
|
|||
|
Its:
|
|||
|
WITNESSES
|
EXECUTIVE
|
||
|
/s/ Xxxxx X. Xxxxx
|
|||
|
Xxxxx
X. Xxxxx
|
|||
|
County
of Wake
|
)
|
|
)
ss:
|
|
|
State
of North Carolina
|
)
|
Before
me
this
day
of ,
2007,
personally appeared the above named and
Xxxxx
X. Xxxxx, who acknowledged that they did sign the foregoing instrument and
that
the same was their free act and deed.
|
(Notary
Seal)
|
Notary
Public
|
|
My
Commission Expires:
|
9
