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EXHIBIT 10.1
AMENDED AND RESTATED
EMPLOYMENT AND STOCK OPTION AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AND STOCK OPTION AGREEMENT (this
"Agreement") is made as of the 1st day of January, 1998, is by and between PARK
MERIDIAN BANK, a state banking association organized under the laws of North
Carolina, with its principal executive offices located at 0000 Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 (the "Bank") and XXXXX X. XXXXXXXX,
an individual residing at 0000 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
(the "Employee"). This Agreement amends and restates the terms of the Employment
and Stock Option Agreement dated as of January 1, 1995 between the Bank and the
Employee.
In consideration of the promises and the mutual covenants contained
herein, the Bank hereby agrees to employ the Employee and the Employee agrees to
accept such employment upon the following terms and conditions:
1. DUTIES. The Employee shall serve the Bank as its president and chief
executive officer and shall devote substantially all of his working time and his
best efforts and skill to the business of the Bank in the performance of those
duties prescribed from time to time by, and subject to the supervision and
direction of, the Board of Directors of the Bank (the "Board of Directors"). The
Employee can participate in any other business, investment or other material
activities as long as such activities do not detract from his performance as
president of the Bank and subject to prior disclosure to and approval of the
Board of Directors; provided, however, that any investment by Employee in a bank
or bank holding company that is directly or indirectly in competition with the
Bank shall be limited to no more than 1% of the outstanding voting securities of
such entity.
2. TERM OF EMPLOYMENT. Subject to Section 4(a), the term of this
Agreement shall be for a period of five (5) years commencing on the date hereof.
This Agreement shall be automatically extended for successive one-year periods
thereafter unless either party gives written notice to the other of termination
of this Agreement at least one hundred eighty (180) days prior to the end of
each period of employment.
3. TERMINATION BY THE BANK UNDER PARTICULAR CIRCUMSTANCES. Except as
otherwise provided in this Agreement, the Bank shall have the right to terminate
this Agreement upon the death or total and permanent disability (as such term is
defined in the group long-term disability insurance now being carried by the
Bank and as provided in subparagraph (e) of this Section 3) of the Employee or
for Cause (as defined below) or for the reasons set forth in Sections 3(b), (c),
or (d), without any further obligation to the Employee under this Agreement,
although
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the vested rights of the Employee shall in each instance be unaffected by such
termination. The Bank's right to terminate in these instances is more
particularly described below.
(a) Termination for Cause. The Board of Directors shall have the right
at any time, without advance notice, to terminate the Employee for Cause.
Termination "for Cause" shall include termination because of the Employee's
personal dishonesty, willful misconduct, breach of fiduciary duty involving
personal profit, failure to carry out ordinary employee duties as stated herein
or lawful directives and policies of the Board of Directors, willful violation
of any law, rule, or regulation (other than minor traffic violations or similar
offenses punishable by less than six months imprisonment) or final
cease-and-desist order, or material breach of any provision of this Agreement.
(b) Suspension. If the Employee is suspended or temporarily prohibited
from participating in the conduct of the Bank's affairs by a suspension order
issued under Section 8(e)(3) of the Federal Deposit Insurance Act (12 U.S.C.
1818(e)(3)), the Bank's obligations under this Agreement shall be suspended as
of the date of service of the suspension order, unless a court issues a stay of
such order by appropriate proceedings. If the charges supporting the suspension
order are dismissed, the Bank shall (i) pay the Employee all of the compensation
withheld while its contract obligations were suspended and (ii) reinstate all of
its obligations under this Agreement.
(c) Removal. If the Employee is removed or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued under
Section 8(e)(4) of the Federal Deposit Insurance Act (12 U.S.C. 1818(e)(4)), all
obligations of the Bank under this Agreement shall terminate as of the effective
date of the order.
(d) Receivership. If a conservator or receiver is appointed for the
Bank pursuant to Section 301(d) of the Home Owners' Loan Act of 1933, as
amended, or any successor provision, all obligations under this Agreement shall
terminate as of the date of appointment, except to the extent determined, by the
applicable regulatory authority or the receiver or conservator appointed for the
Bank, that continuation of this Agreement is necessary for the continued
operation of the Bank.
(e) Disability.
(i) If the Employee shall become totally and permanently
disabled, the Bank may not terminate this Agreement on account of such
disability unless and until the waiting period (for payment of
benefits) prescribed in such (or similar substituted) insurance then in
force shall have expired during the continuance of such disability. The
Bank shall provide disability insurance for the Employee as specified
in Section 5(c)(iii).
(ii) For purposes of this Agreement, Employee shall be deemed
"totally and permanently disabled" if (A) Employee is absent from his
duties with the Bank on a full-time basis for 180 consecutive business
days as a result of incapacity due to mental or physical illness or
injury which is determined to be total and permanent by a physician or
physicians in accordance with the procedure described in this
Subsection, and (B) Employee's condition meets the definition of total
and permanent disability set forth in the Bank's current group
long-term disability insurance policy. In the event that the Board of
Directors
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raises the issue of total and permanent disability, the Bank shall give
notice to the Employee of the name of a physician licensed to practice
medicine in North Carolina who will examine the Employee on behalf of
the Bank. The Employee will make arrangements and allow himself to be
examined by such physician within thirty days thereafter. If the
Employee disagrees with the findings of such physician, he (or an adult
member of his family or his legal representative if he is unable to
make the selection) will provide the Bank the name of a second
physician of his choosing who is licensed to practice medicine in North
Carolina within ten days thereafter. The two physicians thus named will
then be directed to name a third physician, also licensed to practice
medicine in North Carolina. The Employee will make himself available
for additional examinations by the three physicians, and the decision
as to disability by any two of the three physicians shall be binding on
all parties on the issue of total disability.
4. CHANGE IN CONTROL.
(a) In the event of a "Change in Control" (as defined in Subsection (b)
below), the term of this Agreement shall be automatically extended for a period
of five (5) years beginning on the date of the "Change in Control," and during
such five-year period the Employee's annual base compensation shall be at least
equal to the Employee's highest total annual compensation paid during the 3
calendar years immediately preceding the "Change in Control" and shall increase
by at least 5% per year; and during the remainder of the term of the Agreement,
the acquiror shall not, without the Employee's consent (which may be withheld
for any reason or for no reason at all):
(i) direct the Employee to move his personal residence or
perform his principal executive functions outside the city limits of
Charlotte, North Carolina;
(ii) make the Employee subject to the supervision of, or
required to report to, any persons other than the Board of Directors of
the Bank or its successor pursuant to the Change in Control;
(iii) reduce employee benefits and welfare benefit plans below
the level of benefits afforded the Employee as of the date of the
Change in Control;
(iv) assign the Employee duties and responsibilities other
than those normally associated with his position as described in
Section 1; or
(v) materially diminish the Employee's responsibilities or
authority as described in Section 1.
(b) For purposes of this Agreement, a "Change in Control" shall mean
(i) the merger of the Bank with any other corporation or banking association as
a result of which the holders of the voting securities of the Bank outstanding
immediately prior to such event would receive or retain less than fifty percent
(50%) of the outstanding voting securities of the resulting or surviving entity
of such merger; (ii) the acquisition of more than twenty percent (20%) of the
outstanding voting securities of the Bank (calculated on a fully diluted basis)
by any person; or (iii) the sale of more than fifty percent (50%) in value of
the assets of the Bank.
For purposes of this Section 4, a "person" shall mean: (i) an
individual or a corporation, partnership (limited or general), trust, limited
liability company, business trust, association (mutual or stock, and including a
mutual holding company), joint venture, pool, syndicate, unincorporated
organization or any other form of entity;
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and (ii) any Affiliate of any individual or entity listed in item (i).
"Affiliate" shall mean any person who controls, is under common control with, or
is controlled by the person to whom reference is being made; and for the
purposes of the definition of Affiliate, control shall be deemed to exist in a
person who beneficially owns ten percent (10%) or more of the outstanding equity
interests (or options, warrants or other rights to acquire such equity
interests) of another person.
(c) If after the occurrence of a Change in Control, (i) the Bank shall
terminate the Employee's employment for any reason other than for Cause or the
reasons specified in Sections 3(b), (c), (d) and (e), or (ii) the Employee shall
terminate his employment as a result of a breach of this Agreement by the Bank
or its successor; the Bank or its successor shall continue to pay the Employee's
salary and other compensation (including bonus compensation and all annual
increases through the expiration of the term hereof) on a regular basis through
the remaining term of this Agreement (including any extension hereof).
5. COMPENSATION AND BENEFITS.
(a) Base Compensation. The base annual compensation salary of the
Employee ("Base Salary") shall be One Hundred Thirty-Two Thousand Three Hundred
Dollars ($132,300.00) effective January 1, 1998, payable in equal installments
according to the regular payroll practices of the Bank. The Employee's Base
Salary shall be reviewed annually by the Board of Directors and will be adjusted
as the Employee's performance, the performance of the Bank, and other pertinent
factors warrant.
(b) Bonus Compensation. The Employee may receive, as additional
compensation, an annual cash bonus of not more than fifty percent (50%) of the
Employee's Base Salary to be determined by the Board of Directors of the Bank in
its discretion (the "Bonus"). Any such bonus shall be paid to the Employee by
January 31 in each year this Agreement is in effect.
(c) Benefits and Other Compensation. The Employee shall be entitled to
the following benefits and other compensation:
(i) Four (4) weeks of vacation per year, only one week of
which may be accumulated and carried forward to be taken only in the
following year;
(ii) Continuous use of an automobile having an initial
purchase price of up to $40,000 to be selected by the Employee, the
ownership of which will be transferred by the Bank to the Employee upon
the full depreciation of such automobile by the Bank for tax and
accounting purposes, and the Bank shall then provide the Employee with
a new automobile in accordance with the terms of this Section. In
addition, the Employee may purchase such automobile from the Bank at
any time for cash in an amount equal to the depreciated book value of
such automobile as reflected in the Bank's accounting records. The
Employee shall be entitled to receive full reimbursement of all
automobile insurance and maintenance expenses, and fuel expense (other
than for fuel used on personal trips of more than 200 miles), incurred
by him with respect to such automobile during the term of this
Agreement;
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(iii) Term life insurance coverage in the face amount of
$500,000, whole-life life insurance coverage in the face amount of
$100,000 (the Employee to own all rights with respect to the policy
providing such coverage) and major medical insurance and disability
insurance coverage in amounts from time to time which are reasonable
and customary in the industry for persons serving in his capacity, all
of which shall be provided at no additional cost to the Employee;
(iv) Dues and membership assessments of the Employee to such
professional organizations and social clubs as may benefit the Bank
including but not limited to annual dues and membership assessments
payable to Xxxxx Park Country Club; and
(v) Payment of the Employee's reasonable legal expenses
incurred in connection with the negotiation and execution of this
Agreement.
Notwithstanding any other provision of this Agreement, the Bank shall
continue to provide, for the remaining stated term of this Agreement (including
any extension hereof), the benefits provided to the Employee under subparagraphs
(ii), (iii), and (iv) above following termination of the Employee's employment
under this Agreement by either party, for any reason other than termination for
Cause by the Bank or voluntary termination by the Employee. Upon expiration of
the stated term of this Agreement following a termination of the Employee's
employment other than for Cause or voluntary termination by the Employee, the
Bank shall transfer to the Employee all rights with respect to the policy
providing whole-life life insurance coverage described in subparagraph (iii)
above.
Nothing herein shall preclude the Bank from providing Employee any
other benefits (including deferred compensation) deemed advisable by the Board
of Directors.
(d) Payment or Reimbursement of Expenses. The Employee is authorized to
incur and be reimbursed by the Bank for reasonable expenses for the promotion of
the business of the Bank, including expenses for entertainment, travel and
similar items, not otherwise reimbursed pursuant to Section 5(c) above.
6. GRANT OF STOCK OPTIONS.
(a) The following provisions shall govern the Bank's prior grant to the
Employee of an option to purchase shares of stock:
(i) Grant of Options. The Bank granted to the Employee,
effective October 1, 1991, the option to purchase from the Bank an
aggregate of forty-eight thousand eight hundred twenty-seven (48,827)
shares of common stock ($ 4.00 par value) of the Bank at the exercise
price of $5.12 per share (such number of shares, par value and exercise
price have been appropriately adjusted to reflect stock splits effected
by the Bank with respect to its common stock after the Date of Grant),
such option to be exercisable as hereinafter provided. The effective
date of grant of such option was October 1, 1991 (the "Date of Grant").
(ii) Expiration Date. This option shall expire on the date
which is ten (10) years and one hundred twenty (120) days from the Date
of Grant (the "Expiration Date").
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(iii) Exercise of Option.
(A) Subject to Section 6(a)(viii) hereof, this option
shall become exercisable with respect to 20% of the shares of
common stock subject hereto on the first anniversary of the
Date of Grant, and with respect to an additional 20% of such
shares on each of the second, third, fourth and fifth
anniversary dates of the Date of Grant. This option may be
partially exercised from time to time within such percentage
limitations.
(B) Notwithstanding the foregoing, this option shall
not be exercisable for a fractional share of stock.
(C) Any exercise of this option shall be made in
writing duly executed and delivered to the Bank specifying the
number of shares as to which the option is being exercised.
(iv) Payment of Option Price. On the date of any exercise of
this option, the purchase price of the shares as to which this option
is being exercised shall be due and payable and shall be made, at the
election of the Employee, in cash, by check or shares of common stock
having a fair market value, as determined by the Bank's Board of
Directors or authorized committee thereof and without regard to any
limitations on the transferability of such shares imposed by securities
or other applicable laws, equal to the aggregate exercise price of the
shares to be acquired. Upon request by the Employee, upon exercise of
this Option, the Bank may withhold from the number of shares of common
stock to be issued to the Employee, shares having a fair market value,
as determined by the Bank's Board of Directors or an authorized
committee thereof and without regard to any limitations on the
transferability of such shares imposed by securities or the applicable
laws, equal to the dollar amount of the applicable income tax to be
withheld from the Employee's compensation as a result of the
recognition of taxable compensation income by the Employee upon such
exercise. Upon such withholding of shares, the Bank will forward
appropriate cash payments to the appropriate taxing authorities equal
to the fair market value, determined as set forth above, of the shares
of common stock so withheld.
(v) Option Nontransferable. This option is exercisable during
the Employee's lifetime only by the Employee or his guardian or legal
representative, and is transferable only by will or the laws of descent
or distribution. Upon the death of the Employee, this option is
exercisable as provided in Section 6(a)(viii).
(vi) Adjustment Provisions.
(A) In the event that the outstanding shares of
common stock of the Bank are hereafter increased or decreased
or changed into or exchanged for a different number or kind of
shares or other securities of the Bank by reason of a
recapitalization, reclassification, stock split, combination
of shares, or dividend payable in stock, appropriate
adjustments shall be made by the Board of Directors in the
number and kind of shares which the Employee is entitled to
purchase under this Agreement without change in the aggregate
exercise price. In addition, the Board of
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Directors shall make appropriate adjustment in the number and
kind of shares subject to the option so that the Employee's
proportionate interest shall be maintained as before the
occurrence of such event. Any fractional shares resulting from
any of the foregoing adjustments under this Section shall be
disregarded and eliminated. All adjustments made by the Board
of Directors under this Section shall be final and conclusive.
(B) If, pursuant to any reorganization, sale or
exchange of assets, consolidation or merger, outstanding
common stock of the Bank is or would be exchanged for other
securities of the Bank or of another bank which is a party to
such transaction, or for property, the option shall apply to
the securities or property into which the common stock covered
hereby would have been changed or for which such common stock
would have been exchanged had such common stock been
outstanding at the time.
(C) The adoption of a plan of dissolution or
liquidation by the Board of Directors and shareholders of the
Bank shall cause the option to terminate, except that in the
event of the adoption of a plan of dissolution or liquidation
in connection with a reorganization as provided in the
preceding sentence, the option shall be governed by and be
subject to the provisions of the preceding sentence. If any
rights or warrants to subscribe for additional shares are
given pro rata to holders of outstanding shares of common
stock, the Employee shall be entitled to the same rights or
warrants on the same basis as holders of the outstanding
shares with respect to option shares purchased on or prior to
the date of the expiration of the rights or warrants.
(vii) Stock Reserved. The Bank shall at all times during the
term of the option granted hereunder reserve and keep available such
number of shares of its common stock as will be sufficient to satisfy
the requirements of this Employment and Stock Option Agreement, and
shall pay all original issue taxes on the purchase of shares purchased
hereunder.
(viii) Effect of Death or Termination of Employment. In the
event the Employee dies or voluntarily terminates his employment or is
terminated for Cause or for the reasons set forth in Sections 3(b), (c)
or (d) hereof, the option granted hereunder shall terminate; provided,
however, that for a period of one hundred twenty (120) days after the
date of death or the date of such termination of employment, the
Employee (or his legal representative) shall have the right to purchase
shares of common stock with respect to which, under the terms of
Section 6(a)(iii), the option had already become exercisable prior to
the date of termination of employment. In the event the Employee is
terminated for any other reason, the option granted herein shall remain
in full force and effect through the Expiration Date.
(b) Subject to regulatory and shareholder approval, the Bank hereby
agrees to grant to Employee, effective no later than the date of the last
required approval (which the Bank will use its best efforts to obtain in May of
1998), incentive stock options to purchase 25,000 shares of the common stock of
the Bank, which shall be issued pursuant to and in accordance with the terms and
conditions of the Park Meridian Bank Employee Stock Option Plan, 20% of which
shall vest immediately upon grant and the remainder of which shall vest ratably
in annual
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increments over 4 years; provided, however, that in the event of a Change in
Control, all such options which have not yet vested shall become immediately
vested and exercisable up to the $100,000 limit (taking into account any other
options that become exercisable that year) set forth in Section 422 of the
Internal Revenue Code of 1986, as amended, and any remaining options shall vest
up to such $100,000 limit in each year after the Change in Control until all of
Employee's options are vested. Notwithstanding the foregoing, if the Employee's
employment is terminated for any reason after a Change in Control, all unvested
options shall become immediately vested and exercisable.
7. TERMINATION BY THE EMPLOYEE; TERMINATION BY THE BANK WITHOUT CAUSE;
TERMINATION DUE TO ABANDONMENT OF EFFORTS.
(a) Termination by the Employee. If the Employee voluntarily terminates
his employment with the Bank during the term of this Agreement (including any
extension hereof), the Bank shall promptly pay the Employee all accrued and
unpaid salary and other compensation as may have been designated by the Board of
Directors prior to termination, including without limitation Bonuses and pay for
vacation earned but not taken, through the effective date of such termination.
(b) Termination by the Bank Without Cause. If the Bank terminates the
Employee's employment for any reason other than for Cause, total and permanent
disability, or the reasons specified in Sections 3(b), (c) and (d), the Bank
shall continue to pay the Employee's salary and other compensation (including
all annual increases through the expiration of the term hereof) on a regular
basis through the expiration of the term of this Agreement (including any
extension hereof).
8. COVENANT NOT TO COMPETE. During the term of Employee's employment
hereunder and for a period of twenty-four (24) months following the termination
of the Employee's employment with the Bank, the Employee covenants and agrees
that he will not, directly or indirectly, Compete with the Bank.
For purposes of this Section 8, the following terms shall have the
meanings set forth below:
(a) The term "Compete" shall mean:
(i) securing deposits for any Financial Institution from any
Person residing in the Territory;
(ii) assisting (other than through the performance of
ministerial or clerical duties) any Financial Institution in making
loans to any Person residing in the Territory;
(iii) inducing or attempting to induce any Person who was a
Customer of the Bank at the date of the Employee's termination of
employment to change such Customer's depository and/or loan
relationship from the Bank to another Financial Institution;
(iv) inducing or attempting to induce any employee of the Bank
to leave the employ of the Bank for the purpose of joining a Financial
Institution; or
(v) organizing, or assisting in the organization of, a new
Financial Institution to have a "full service" banking office in the
Territory.
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(b) The words "directly or indirectly" as they modify the word Compete
shall mean:
(i) acting as a consultant, officer, director, independent
contractor, or employee of any Financial Institution in Competition (as
defined in paragraph (a) above) with the Bank in the Territory; or
(ii) communicating to such Financial Institution the names or
addresses or any financial information concerning any Person who was a
Customer of the Bank at the date of the Employee's termination of
employment.
(c) The term "Customer" shall mean any Person with whom the Bank had a
depository and/or loan relationship at the date of the Employee's termination of
employment.
(d) The term "Financial Institution" shall mean any federally insured
depository institution or any Person engaged in the business of making loans of
any type, soliciting deposits, or providing any other service or product that is
provided by the Bank or one of its affiliated corporations.
(e) The term "Person" shall mean any individual or individuals,
corporation, partnership, fiduciary or association.
(f) The term "Territory" shall mean Mecklenburg County, North Carolina.
In the event that any provision of this paragraph or any word, phrase,
clause, sentence or other portion thereof (including, without limitation, the
geographical and temporal restrictions contained herein) should be held to be
unenforceable or invalid for any reason, such provision or portion thereof shall
be modified or deleted in such a manner as to make the provisions hereof, as
modified, legal and enforceable to the fullest extent permitted under applicable
law.
In the event that (a) the term of this Agreement set forth in Section 2
expires, (b) the Bank terminates the Employee's employment with the Bank for any
reason other than Cause (as such term is defined in Section 3(a) hereof), or (c)
the Employee terminates his employment after a Change in Control as a result of
a breach of this Agreement by the Bank or its successor, then and in such event
the provisions of this Section 8 shall be null and void.
If there is a breach or threatened breach of the provisions of this
Section 8, the Bank shall be entitled to an injunction restraining the Employee
from such breach. Nothing herein shall be construed as prohibiting the Bank from
pursuing any other remedies for such breach or threatened breach.
9. GOVERNING LAW. This Agreement shall be construed and governed under
the laws of the State of North Carolina.
10. BINDING NATURE. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, successors and
assigns.
11. WAIVERS AND AMENDMENTS. This Agreement may be amended, superseded,
canceled, renewed or extended, and the terms hereof may be waived, only by a
written instrument signed by the parties or, in the case of a waiver, by the
party waiving compliance. No delay on the part of any party in exercising any
right, power or
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privilege hereunder shall operate as a waiver thereof nor shall any waiver on
the part of any party of any such right, power or privilege nor any single or
partial exercise of any such right, power or privilege, preclude any other or
further exercise thereof or the exercise of any other such right, power or
privilege.
12. ENTIRE AGREEMENT. This Agreement contains the entire understanding
between the parties hereto relating to the employment of the Employee by the
Bank and supersedes any and all prior employment agreements and understandings
relating to employment between the Bank or any of its predecessors and the
Employee.
13. SEVERABILITY, INVALIDITY OR UNENFORCEABILITY. The severability,
invalidity or unenforceability of any section or part of any section herein
shall not in any way affect the validity or enforceability of any other section
or any part of any other section.
14. NOTICES. Any notice required or permitted to either party hereunder
shall be deemed timely furnished if it is delivered and sent by prepaid
certified or registered mail, with return receipt requested, to such party at
the address set forth at the beginning of this Agreement. Such notice shall be
deemed given five (5) days after its deposit in the United States Mail.
15. ASSIGNMENT. This Agreement requires the personal services of, and
is not assignable by, the Employee.
16. HEADINGS. Headings contained herein are for the convenience of the
parties only and shall not limit or affect any of the terms hereof.
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IN WITNESS WHEREOF, the Employee has set his hand and seal hereto and
the Bank has caused this Agreement to be sealed and executed in its name by its
duly authorized officials the day and year first above written.
EMPLOYEE:
/s/ Xxxxx X. Xxxxxxxx (SEAL)
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Xxxxx X. Xxxxxxxx
BANK:
[BANK SEAL] PARK MERIDIAN BANK
ATTEST: By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Title: Chairman of the Board of Directors
/s/ Xxxxx X. Xxxxxxx, III
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Secretary
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