STATE OF NORTH CAROLINA
COUNTY OF ROWAN
EMPLOYMENT AGREEMENT
THIS AGREEMENT entered into as of ________________, 1998, by and between
BANK OF THE CAROLINAS (hereinafter referred to as the "Bank") and XXXXXXX X.
XXXXXXX (hereinafter referred to as "Xxxxxxx").
W I T N E S S E T H:
WHEREAS, the Bank desires to retain Xxxxxxx'x services as an officer of the
Bank for the period specified herein, and Xxxxxxx is willing to serve as an
officer of the Bank for such period; and, the parties desire to enter into this
Agreement to set forth the terms and conditions of Xxxxxxx'x employment with the
Bank.
NOW, THEREFORE, for and in consideration of the premises and mutual
promises, covenants and conditions hereinafter set forth, and other good and
valuable considerations, the receipt and sufficiency of which hereby are
acknowledged, the Bank and Xxxxxxx hereby agree as follows:
1. Employment. The Bank hereby agrees to employ Xxxxxxx, and Xxxxxxx hereby
agrees to serve as an officer of the Bank, all upon the terms and conditions
stated herein. As an officer of the Bank, Xxxxxxx will (i) serve as President
and Chief Executive Officer of the Bank, and (ii) have such other duties and
responsibilities, and render to the Bank such other management services, as are
customary for persons in Xxxxxxx, position with the Bank or as shall otherwise
be reasonably assigned to him from time to time by the Board of Directors of the
Bank. Xxxxxxx shall faithfully and diligently discharge his duties and
responsibilities under this Agreement and shall use his best efforts to
implement the policies established by the Bank.
Xxxxxxx hereby agrees to devote such number of hours of his working time and
endeavors to the employment granted hereunder as Xxxxxxx and the Bank shall deem
to be necessary to discharge his duties hereunder, and, for so long as
employment hereunder shall exist, Xxxxxxx shall not engage in any other
occupation which requires a significant amount of Xxxxxxx'x personal attention
during the Bank's regular business hours or which otherwise interferes with
Xxxxxxx, attention to or performance of his duties and responsibilities as an
officer of the Bank hereunder except with the prior written consent of the Bank.
However, nothing herein contained shall restrict or prevent Xxxxxxx from
personally, and for Xxxxxxx' own account, trading in stocks, bonds, securities,
real estate or other forms of investment for Xxxxxxx'x own benefit so long as
said activities do not interfere with Xxxxxxx'x attention to or performance of
his duties and responsibilities as an officer of the Bank hereunder.
2. Compensation. For all services rendered by Xxxxxxx to the Bank under
this Agreement, the Bank shall pay Xxxxxxx a base salary at a rate of
Eighty-eight Thousand Two Hundred dollars ($88,200.00) per annum; provided that
the rate of such salary shall be reviewed by the Board of directors not less
often than annually. Salary paid under this Agreement shall be payable in cash
not less frequently than monthly. All compensation hereunder shall be subject to
customary withholding taxes and such other employment taxes as are required by
law. In the event of a Change in Control (as defined in Paragraph 8), Xxxxxxx'x
base salary shall be increased not less than six percent (6%.) annually during
the term of this Agreement.
3. Participation in Retirement and Employee Benefit Plans; Fringe Benefits.
Subject to the terms and conditions of this Agreement, Xxxxxxx shall be entitled
to
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participate in any and all employee benefit programs and compensation plans
from time to time maintained by the Bank and available to all employees of the
Bank, all in accordance with the terms and conditions (including eligibility
requirements) of such programs and plans of the Bank, resolutions of the Bank's
Board of Directors establishing such programs and plans, and the Bank's normal
practices and established policies regarding such programs and plans. Xxxxxxx
shall be entitled to paid vacation leave in accordance with the policy of the
Bank for similarly positioned employees now or hereafter in effect.
In addition to the other compensation and benefits described in this
Agreement, the Bank shall promptly reimburse Xxxxxxx for all reasonable expenses
incurred by him in the performance of his duties under this Agreement and
documented to the reasonable satisfaction of the Bank or appropriate officers of
the Bank pursuant to established procedures. The Bank shall assume payment of
Xxxxxxx, civic club and country club dues provided that Xxxxxxx shall be
responsible for all personal expenses for use of such clubs.
4. Term. Unless sooner terminated as provided in this Agreement and subject
to the right of either Xxxxxxx or the Bank to terminate Xxxxxxx'x employment at
any time as provided herein, the initial term of this Agreement and Xxxxxxx'x
employment with the Bank
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hereunder shall be for a period commencing on the date hereof and continuing for
a period of three (3) years. On each anniversary of the date of this Agreement,
the term of this Agreement shall automatically be extended for an additional one
year period beyond the then effective expiration date unless written notice from
the Bank or Xxxxxxx is received 90 days prior to the anniversary date notifying
the other party that this Agreement shall not be further extended; provided
further that the Board of Directors shall review annually Xxxxxxx, performance
and shall make a specific determination pursuant to such review to renew this
Agreement prior to the 90 days notice period.
5. Confidentiality. Xxxxxxx hereby acknowledges and agrees that (i) in the
course of his service as an officer of the Bank, he will gain substantial
knowledge of and familiarity with the Bank's customers and its dealings with
them, and other information concerning the Bank's business, all of which
constitutes valuable assets and privileged information that is particularly
sensitive due to the fiduciary responsibilities inherent in the banking
business; and, ii) in order to protect the Bank's interest in and to assure it
the benefit of its business, it is reasonable and necessary to place certain
restrictions on Xxxxxxx'x ability to compete against the Bank and on his
disclosure of information about the Bank's business and customers. For that
purpose, and in consideration of the Bank's agreements contained herein, Xxxxxxx
covenants and agrees as provided below.
For the purposes of this Paragraph 5, the following terms shall have the
meanings set forth below:
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Customer. The term "Customer" means any Person with whom, as of the
effective date of termination of this Agreement or Xxxxxxx'x employment with the
Bank for any reason, the Bank has or has had a depository, loan and/or other
banking relationship.
Financial Institution. The term "Financial Institution" means any federal
or state chartered bank, savings bank, savings and loan association or credit
union, or any holding company for or corporation that owns or controls any such
entity, or any other Person engaged in the business of making loans of any type
or receiving deposits, other than the Bank.
Person. The term "Person" means any natural person or any corporation,
partnership, proprietorship, joint venture, limited liability company, trust,
estate, governmental agency or instrumentality, fiduciary, unincorporated
association or other entity.
(a) Confidentiality Covenant. Xxxxxxx covenants and agrees that any and all
data, figures, projections, estimates, lists, files, records, documents, manuals
or other such materials or information (financial or otherwise) relating to the
Bank and its banking business, regulatory examinations, financial results and
condition, lending and deposit operations, customers (including lists of the
Bank's customers and information regarding their accounts and business dealings
with the Bank), policies and procedures, computer systems and software,
shareholders, employees, officers and directors (herein referred to as
"Confidential Information") are proprietary to the Bank and are valuable,
special and unique assets of the Bank's business to which Xxxxxxx will have
access during his employment with the Bank. Xxxxxxx agrees that (i) all such
Confidential Information shall be considered and kept as the confidential,
private and privileged records and information of the Bank, and (ii) at all
times during the term of his employment with the Bank and following the
termination of this Agreement or his employment
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for any reason, and except as shall be required in the course of the performance
by Xxxxxxx of his duties on behalf of the Bank or otherwise pursuant to the
direct, written authorization of the Bank, Xxxxxxx will not: divulge any such
Confidential Information to any other Person or Financial Institution; remove
any such Confidential Information in written or other recorded form from the
Bank's premises; or make any use of any Confidential Information for his own
purposes or for the benefit of any Person or Financial Institution other than
the Bank. However, following the termination of Xxxxxxx'x employment with the
Bank, this subparagraph (b) shall not apply to any Confidential Information
which then is in the public domain (provided that Xxxxxxx was not responsible,
directly or indirectly, for permitting such Confidential Information to enter
the public domain without the Bank's consent), or which is obtained by Xxxxxxx
from a third party which or who is not obligated under an agreement of
confidentiality with respect to such information.
(b) Remedies for Breach. Xxxxxxx understands and agrees that a breach or
violation by him of the covenants contained in Paragraph 5(a) of this Agreement
will be deemed a material breach of this Agreement and will cause irreparable
injury to the Bank, and that it would be difficult to ascertain the amount of
monetary damages that would result from any such violation. In the event of
Xxxxxxx'x actual or threatened breach or violation of the covenants contained in
Paragraph 5 (a) , the Bank shall be entitled to bring a civil action seeking an
injunction restraining Xxxxxxx from violating or continuing to violate those
covenants or from any threatened violation thereof, or for any other legal or
equitable relief relating to the breach or violation of such covenant. Xxxxxxx
agrees that, if the Bank institutes any action or proceeding against Xxxxxxx
seeking to enforce any of such covenants or to recover other relief relating to
an
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actual or threatened breach or violation of any of such covenants, Xxxxxxx shall
be deemed to have waived the claim or defense that the Bank has an adequate
remedy at law and shall not urge in any such action or proceeding the claim or
defense that such a remedy at law exists. However, the exercise by the Bank of
any such right, remedy, power or privilege shall not preclude the Bank or its
successors or assigns from pursuing any other remedy or exercising any other
right, power or privilege available to it for any such breach or violation,
whether at law or in equity, including the recovery of damages, all of which
shall be cumulative and in addition to all other rights, remedies, powers or
privileges of the Bank.
Notwithstanding anything contained herein to the contrary, Xxxxxxx agrees
that the provisions of Paragraph 5(a) above and the remedies provided in this
Paragraph 5(b) for a breach by Xxxxxxx shall be in addition to, and shall not be
deemed to supersede or to otherwise restrict, limit or impair the rights of the
Bank under the Trade Secrets Protection Act contained in Article 24, Chapter 66
of the North Carolina General Statutes, or any other state or federal law or
regulation dealing with or providing a remedy for the wrongful disclosure,
misuse or misappropriation of trade secrets or other proprietary or confidential
information.
(c) Survival of Covenants. Xxxxxxx, covenants and agreements and the Bank's
rights and remedies provided for in this Paragraph 5 shall survive any
termination of this Agreement or Xxxxxxx'x employment with the Bank.
6. Termination and Termination Pay.
(a) Xxxxxxx, employment under this Agreement may be terminated at any time
by Xxxxxxx upon sixty (60) days, written notice to the, Bank. Upon such
termination, Xxxxxxx shall be entitled to receive compensation through the
effective date of such termination;
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provided, however, that the Bank, in its sole discretion, may elect for Xxxxxxx
not to serve out part or all of said notice period.
(b) Xxxxxxx'x employment under this Agreement shall be terminated upon the
death of Xxxxxxx during the term of this Agreement. Upon any such termination,
Xxxxxxx, estate shall be entitled to receive any compensation due to Xxxxxxx
computed through the last day of the calendar month in which his death shall
have occurred but which remains unpaid.
(c) In the event Xxxxxxx becomes disabled during the term of his employment
hereunder and it is determined by the Bank that Xxxxxxx is permanently unable to
perform his duties under this Agreement, the Bank shall continue to compensate
Xxxxxxx at the level of compensation described in Paragraph 2 above, and shall
continue to provide Xxxxxxx each of the other benefits set forth or described in
this Agreement, for the remaining term of this Agreement, less any other
payments provided under any disability income plan of the Bank which is
applicable to Xxxxxxx. In the event of any disagreement between Xxxxxxx and the
Bank as to whether Xxxxxxx is physically or mentally incapacitated such as will
result in the termination of Xxxxxxx'x employment pursuant to this Paragraph
6(c), the question of such incapacity shall be submitted to an impartial and
reputable physician for determination, selected by mutual agreement of Xxxxxxx
and the Bank or, failing such agreement, by two (2) physicians (one (1) of whom
shall be selected by the Bank and the other by Xxxxxxx), and such determination
of the question of such incapacity by such physician or physicians shall be
final and binding on Xxxxxxx and the Bank. The Bank shall pay the reasonable
fees and expenses of such physician or physicians in making any determination
required under this Paragraph 6 (c).
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(d) The Bank may terminate Xxxxxxx'x employment at any time for any reason
with or without "Cause" (as defined below), but any termination by the Bank
other than termination for "Cause," (as defined below) shall not prejudice
Xxxxxxx'x right to compensation or other benefits under this Agreement for its
remaining term. Following any termination of Xxxxxxx'x employment by the Bank
for "Cause", Xxxxxxx shall have no further rights under this Agreement
(including any right to receive compensation or other benefits for any period
after such termination).
For purposes of this Paragraph 6 (d) , the Bank shall have "Cause" to
terminate Xxxxxxx, employment upon:
(i) A determination by the Bank, in good faith, that Xxxxxxx (A) has
breached in any material respect any of the terms or conditions of this
Agreement, or (B) is engaging or has engaged in willful misconduct or
conduct which is detrimental to the business prospects of the Bank or which
has had or likely will have a material adverse effect on the Bank's
business or reputation. Prior to any termination by the Bank of Xxxxxxx,
employment for a breach, failure to perform or conduct described in this
subparagraph (i), the Bank shall give Xxxxxxx written notice which
describes such breach, failure to perform or conduct and if during a period
of five (5) days following such notice Xxxxxxx cures or corrects the same
to the reasonable satisfaction of the Bank, then this Agreement shall
remain in full force and effect. However, notwithstanding the above, if the
Bank has given written notice to Xxxxxxx on a previous occasion of the same
or a substantially similar breach, failure to perform or conduct, or of a
breach, failure to perform or conduct which the Bank determines in good
faith to be of substantially similar import, or if the Bank determines in
good faith that the then current breach, failure to perform or
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conduct is not reasonably curable, then termination under this subparagraph
(i) shall be effective immediately and Xxxxxxx shall have no right to cure
such breach, failure to perform or conduct.
(ii) The violation by Xxxxxxx of any applicable federal or state law,
or any applicable rule, regulation, order or statement of policy
promulgated by any governmental agency or authority having jurisdiction
over the Bank or any of its affiliates or subsidiaries (a "Regulatory
Authority", including without limitation the Federal Deposit Insurance
Corporation, the North Carolina Commissioner of Banks, the Federal Reserve
Board or any other banking regulator), which results from Xxxxxxx, gross
negligence, willful misconduct or intentional disregard of such law, rule,
regulation, order or policy statement and results in any substantial
damage, monetary or otherwise, to the Bank or any of its affiliates or
subsidiaries or to the Bank's reputation;
(iii) The commission in the course of Xxxxxxx'x employment with the
Bank of an act of fraud, embezzlement, theft or proven personal dishonesty
(whether or not resulting in criminal prosecution or conviction);
(iv) The conviction of Xxxxxxx of any felony or any criminal offense
involving dishonesty or breach of trust, or the occurrence of any event
described in Section 19 of the Federal Deposit Insurance Act or any other
event or circumstance which disqualifies Xxxxxxx from serving as an
employee or executive officer of, or a party affiliated with, the Bank or
its bank holding company;
(v) Xxxxxxx becomes unacceptable to, or is removed, suspended or
prohibited from participating in the conduct of the Bank's affairs (or if
proceedings for that purpose are commenced) by, any Regulatory Authority;
and,
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(vi) The occurrence of any event believed by the Bank, in good faith,
to have resulted in Xxxxxxx being excluded from coverage, or having
coverage limited as to Xxxxxxx as compared to other covered officers or
employees, under the Bank's then current "blanket bond" or other fidelity
bond or insurance policy covering its directors, officers or employees.
8. Additional Regulatory Requirements. Notwithstanding anything contained
in this Agreement to the contrary, it is understood and agreed that the Bank (or
its successors in interest) shall not be required to make any payment or take
any action under this Agreement if (a) the Bank is declared by any Regulatory
Authority to be insolvent, in default or operating in an unsafe or unsound
manner, or if (b) in the opinion of counsel to the Bank such payment or action
(i) would be prohibited by or would violate any provision of state or federal
law applicable to the Bank, including without limitation the! Federal Deposit
Insurance Act and Chapter 53 of the North Carolina General Statutes as now in
effect or hereafter amended, (ii) would be prohibited by or would violate any
applicable rules, regulations, orders or statements of policy, whether now
existing or hereafter promulgated, of any Regulatory Authority, or (iii)
otherwise would be prohibited by any Regulatory Authority.
9. Change in Control
(a) In the event of a termination of Xxxxxxx'x employment in connection
with, or within twenty-four (24) months after, a "Change in Control" (as defined
in Subparagraph (d) below) of the Bank, for reasons other than for "cause,, (as
defined in Paragraph 6 (d) hereof) , Xxxxxxx shall be entitled to receive the
sum set forth in Subparagraph (c) below. Said sum shall be payable as provided
in Subparagraph (e) below.
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(b) Xxxxxxx shall have the right to terminate this Agreement upon the
occurrence of any of the following events (the "Termination Events") within
twenty-four (24) months following a Change in Control of the Bank:
(i) Xxxxxxx is assigned any duties and/or responsibilities
that are inconsistent with his position, duties,
responsibilities, or status at the time of the Change in
Control or with his reporting responsibilities or titles
with the Bank in effect at such time;
(ii) Xxxxxxx, annual base salary is reduced below the amount
in effect as of the effective date of a Change in Control or
as the same shall have been increased from time to time
following such effective date;
(iii) Xxxxxxx, life insurance, medical or hospitalization
insurance, disability insurance, stock option plans, stock
purchase plans, deferred compensation plans, management
retention plans, retirement plans, or similar plans or
benefits being provided by the Bank to Xxxxxxx as of the
effective date of the Change in Control are reduced in their
level, scope, or coverage, or any such insurance, plans, or
benefits are eliminated, unless such reduction or
elimination applies proportionately to all salaried
employees of the Bank who participated in such benefits
prior to such Change in Control; or
(iv) Xxxxxxx is transferred to a location outside of Rowan
County, North Carolina, without the Xxxxxxx'x express
written consent.
A Termination Event shall be deemed to have occurred on the date such
action or event is implemented or takes effect.
(c) In the event that Xxxxxxx terminates this Agreement or the Bank
terminates this Agreement pursuant to this Paragraph 8, the Bank will be
obligated to pay or cause to be paid to Xxxxxxx an amount equal to two hundred
ninety-nine percent (299%.) of
00
Xxxxxxx, "xxxx xxxxxx" as defined in Section 28OG(b) (3) (A) of the Internal
Revenue Code of 1986, as amended (the "Code[)) .
(d) For the purposes of this Agreement, the term Change in Control shall
mean any of the following events:
(i) After the effective date of this Agreement, any "person"
(as such term is defined in Section 7 (j) (8) (A) of the
Change in Bank Control Act of 1978) , directly or
indirectly, acquires beneficial ownership of voting stock,
or acquires irrevocable proxies or any combination of voting
stock and irrevocable proxies, representing twenty-five
percent (25%) or more of any class of voting securities of
the Bank, or acquires control of in any manner the election
of a majority of the directors of the Bank;
(ii) The Bank consolidates or merges with or into another
corporation, association, or entity, or is otherwise
reorganized, where the Bank is the surviving corporation in
such transaction; or
(iii) All or substantially all of the assets of the Bank are
sold or otherwise transferred to or are acquired by any
other corporation, association, or other person, entity, or
group.
Notwithstanding the other provisions of this Paragraph 8, a transaction or
event shall not be considered a Change in Control if, prior to the consummation
or occurrence of such transaction or event, Xxxxxxx and the Bank agree in
writing that the same shall not be treated as a Change in Control for purposes
of this Agreement.
(e) Amounts payable pursuant to this Paragraph 8 shall be paid, at the
option of Xxxxxxx, either in one lump sum or in equal monthly payments over the
remaining term of this Agreement.
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(f) Following a Termination Event which gives rise to Xxxxxxx'x rights
hereunder, Xxxxxxx shall have twelve (12) months from the date of occurrence of
the Termination Event to terminate this Agreement pursuant to this Paragraph 8.
Any such termination shall be deemed to have occurred only upon delivery to the
Bank or any successor thereto, of written notice of termination which describes
the Change in Control and Termination Event. if Xxxxxxx does not so terminate
this Agreement within such twelvemonth period, Xxxxxxx shall thereafter have no
further rights hereunder with respect to that Termination Event, but shall
retain rights, if any, hereunder with respect to any other Termination Event as
to which such period has not expired.
(g) It is the intent of the parties hereto that all payments made pursuant
to this Agreement be deductible by the Bank for federal income tax purposes and
not result in the imposition of an excise tax on Xxxxxxx. Notwithstanding
anything contained in this Agreement to the contrary, any payments to be made to
or for the benefit of Xxxxxxx which are deemed to be "parachute payments" as
that term is defined in Section 28OG(b) (2) of the Code, shall be modified or
reduced to the extent deemed to be necessary by the Bank's Board of Directors to
avoid the imposition of an excise tax on Xxxxxxx under Section 4999 of the Code
or the disallowance of a deduction to the Bank under Section 28OG(a) of the
Code.
(h) In the event any dispute shall arise between Xxxxxxx and the Bank as to
the terms or interpretation of this Agreement, including this Paragraph 8,
whether instituted by formal legal proceedings or otherwise, including any
action taken by Xxxxxxx to enforce the terms of this Paragraph 8 or in defending
against any action taken by the Bank, the Bank shall
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reimburse Xxxxxxx for all costs and expenses, proceedings or actions, in the
event Xxxxxxx prevails in any such action.
9. Successors and Assigns.
(a) This Agreement shall inure to the benefit of and he binding upon any
corporate or other successor of the Bank which shall acquire, directly or
indirectly, by conversion, merger, consolidation, purchase or otherwise, all or
substantially all of the assets of the Bank.
(b) The Bank is contracting for the unique and personal skills of Xxxxxxx.
Therefore, Xxxxxxx shall be precluded from assigning or delegating his rights or
duties hereunder without first obtaining the written consent of the Bank.
10. Modification; Waiver; Amendments. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by the parties hereto. No waiver by either party
hereto, at any time, of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time. No amendments or additions to
this Agreement shall be binding unless in writing and signed by both parties,
except as herein otherwise provided.
11. Applicable Law. This Agreement shall be governed in all respects
whether as to validity, construction, capacity, performance or otherwise, by the
laws of North Carolina, except to the extent that federal law shall be deemed to
apply.
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12. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
13. Entire Agreement. This Agreement contains the entire agreement of the
parties with respect to the transactions described herein and supersedes any and
all other oral or written agreements heretofore made, and there are no
representations or inducements by or to, or and agreements between, any of the
parties hereto other than those contained herein in writing.
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IN WITNESS WHEREOF, the parties have executed this Agreement under seal and
in such form as to be binding as of the day and year first hereinabove written.
BANK OF THE CAROLINAS
By: ______________________________
Chairman
ATTEST:
__________________________________
Xxxxxxx X. Xxxxxxx
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