EMPLOYMENT AND CHANGE OF
CONTROL AGREEMENT
THIS EMPLOYMENT AND CHANGE OF CONTROL AGREEMENT ("Agreement") is made and
entered into this 1st day of January 1999, by and among Catawba Valley Bank,
Hickory, North Carolina ("CVB"), and R. Xxxxx Xxxxx ("Executive").
WHEREAS, Executive is the President and Chief Executive Officer of CVB and
has held such positions since the organization of CVB; and
WHEREAS, the expertise and experience of Executive, his knowledge of the
affairs of CVB and his relationships and reputation in the financial
institutions industry are extremely valuable to CVB; and
WHEREAS, it is in the best interests of CVB and its shareholders to
maintain an experienced and sound executive management team to manage CVB and to
further CVB's overall strategies to protect and enhance the value of its
shareholders' investments; and
WHEREAS, CVB and Executive desire to enter into this Agreement to establish
the scope, terms and conditions of Executive's employment by CVB; and
WHEREAS, CVB and Executive desire to enter into this Agreement also to
provide Executive with security in the event of a Change of Control of CVB and
to insure the continued loyalty of Executive during any such Change of Control
in order to maximize shareholder value as well as the continued safe and sound
operation of CVB.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Effective Date. The effective time and date of this Agreement shall be
deemed to be 12:00:01 o'clock, a.m., on the date of its making set forth above
(the "Effective Date").
2. Definitions. The following defined terms are defined in the referenced
Sections of this Agreement.
TERM SECTION
---- -------
Accounting Firm Section 9(b)
Additional Payment Section 9(a)
Base Salary Section 6(a)
Benefits Plans Section 6(c)
Cause Section 7(b)
Board Section 3
Change of Control Section 8(b)
Commissioner Section 14(d)
TERM SECTION
---- -------
Date of Termination Section 7(f)
Disability Section 7(a)
Disability Effective Date Section 7(a)
Effective Date Section 1
Excise Tax Section 9(a)
FDIC Section 14(d)
Group Section 8(b)
Incumbent Directors Section 8(b)
Initial Termination Date Section 4
IRS Section 9(a)
1934 Act Section 8(b)
Notice of Termination Section 7(e)
Payment Section 9(a)
Person Section 8(b)
Term Section 4
3. Employment. Executive will be employed as the President and Chief
Executive Officer of CVB. Executive's responsibilities, duties, prerogatives and
authority in such executive offices, and the clerical, administrative and other
support staff and office facilities provided to him, shall be those customary
for persons situated in a similar executive capacity. In his executive
capacities Executive shall report to the Board of Directors of CVB (the
"Board").
4. Term. The initial term of employment under this Agreement will commence
on the Effective Date and will terminate at the beginning of the business day on
the third (3rd) anniversary of the Effective Date (the "Initial Termination
Date"). This Agreement will automatically renew on the Initial Termination Date,
and on each subsequent anniversary of the Initial Termination Date, for a term
of one year, provided, however, that within 90 days of any such renewal, the
Board of Directors shall review the Executive's performance and shall make a
specific determination pursuant to such review to permit the term to renew for
an additional year.
5. Extent of Service. During the term of this Agreement, and excluding any
periods of vacation, sick or other leave to which Executive is entitled under
this Agreement, Executive agrees to devote such attention and time during normal
business hours to the business and affairs of CVB, and, to the extent necessary
to discharge the responsibilities assigned to Executive hereunder, to use
Executive's best efforts to perform faithfully and efficiently his
responsibilities and duties under this Agreement. During the term of this
Agreement it shall not be a violation of this Agreement for Executive to (i)
devote reasonable periods of time to charitable, trade association, community
and similar activities, and/or (ii) manage personal business interest and
investments, so long as such activities do not interfere with the performance of
Executive's responsibilities and duties under this Agreement.
6. Compensation and Benefits.
(a) Base Salary. CVB will pay the Executive during the term of this
Agreement, as compensation for all services rendered by him to CVB, a Base
Salary in such
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amounts and at such intervals as continue to be commensurate with his
duties and responsibilities as President and Chief Executive Officer. The
Executive's initial Base Salary will be $125,000.00 per annum ("Base
Salary"). The Executive's Base Salary may be increased from time to time to
reflect the duties of the Executive. In reviewing the Executive's Base
Salary, the Board will consider the overall performance of the Executive
and the service of the Executive rendered to CVB and its subsidiaries, as
well as increases in the cost of living and may also provide for
performance or merit increases. Participation in CVB's cash incentive,
deferred compensation, stock option, stock purchase, discretionary bonus,
pension, life insurance and other employee benefit plans and participation
in any fringe benefits will not cause a reduction of the Base Salary.
(b) Management Incentives and Discretionary Bonuses. During the term
of this Agreement, the Executive shall be entitled, in an equitable manner
based on the terms of any bonus and incentive plans that have been
approved, or may from time to time be approved, by the Board, with all
other key management personnel of CVB, to such incentives and discretionary
bonuses as may be authorized, declared and paid by the Board to CVB's key
management employees. No other compensation provided for in this Agreement
shall be deemed a substitute for the Executive's right to such incentives
and discretionary bonuses when and as declared by the Board.
(c) Participation in Retirement and Employee Benefit Plans; Fringe
Benefits. The Executive shall be entitled to participate in any plan
relating to incentive and deferred compensation, stock options, stock
purchase, pension, thrift, profit-sharing, group life insurance, medical
coverage, disability coverage, education, or other retirement or employee
benefit plans (hereafter, collectively referred to as the "Benefit Plans"),
that CVB has adopted, or may from time to time adopt, for the benefit of
its executive employees and for employees generally, subject to the
eligibility rules of such plans. The Executive shall also be entitled to
participate in any fringe benefits which are now, or may be, or may become
applicable to CVB's executive employees. Executive will be entitled to such
customary fringe benefits, vacation and sick leave as are consistent with
the normal practices and established policies of CVB, except that the Board
may, in its discretion, provide for more vacation and/or sick leave than
normal practice and policy of CVB.
(d) Automobile. CVB shall provide Executive, for his personal and
business use, with an automobile mutually satisfactory to the Executive and
the Board. CVB shall assume the costs associated with ownership of such
automobile, provided, however, that Executive shall be responsible for
expenses incurred with his personal use of the automobile.
(e) Reimbursement of Business Expenses. CVB shall reimburse the
Executive for all out-of-pocket reasonable and necessary business expenses
which the Executive may incur in connection with his service on behalf of
CVB, including the payment of reasonable expenses for attending annual and
periodic meetings of trade associations, and any other activities which are
commensurate with the duties and responsibilities to be performed by the
Executive under this Agreement. In estimating base salaries and cash
incentives or bonuses, the Board will consider personal cash contributions
and non-tax deductible expenses that are
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normally expected of executive employees in the financial institutions
industry in a position commensurate with that of Executive.
7. Termination of Employment (Other Than In Connection With A Change of
Control).
(a) Death or Disability. Executive's employment with CVB shall
terminate automatically upon Executive's death during the term of this
Agreement, and in which event the Executive's estate shall be entitled to
receive the compensation due the Executive through the last day of the
calendar month in which the Executive's death shall have occurred. If the
Board determines in good faith that the Disability of Executive has
occurred during the term of this Agreement (pursuant to the definition of
Disability set forth below) it may give to Executive written notice in
accordance with Section 7(e) and 15(g) of this Agreement of its intention
to terminate Executive's employment. In such event, Executive's employment
with CVB shall terminate effective on the 60th day after receipt of such
written notice by Executive (the "Disability Effective Date"), provided
that, within such time, Executive shall not have returned to full-time
performance of his duties as Executive. For purposes of this Agreement,
"Disability" shall mean the absence of Executive from his duties with CVB
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 selected by the Board, or the
insurers of CVB and acceptable to Executive or his legal representative,
which acceptance shall not be unreasonably withheld, subject to (i) CVB's
obligations, and Executive's rights, under (A) the Americans With
Disabilities Act, 42 U.S.C. ss.ss.1210 et seq., and (B) the Family and
Medical Leave Act, 29 U.S.C. ss.ss.2601 et seq. (and the regulations
promulgated under the foregoing Acts), and (ii) the exclusion from such 180
business day calculation of any business days constituting vacation days
and any business days which an employee is permitted to be absent under the
disability, sick or other leave policies of CVB.
(b) Cause. CVB may terminate Executive's employment with CVB for Cause
in which event the Executive shall have no right to receive compensation or
other benefits hereunder for any period after such termination for Cause.
For purposes of this Agreement, "Cause" shall mean termination of
employment because of the Executive's personal dishonesty, incompetence,
willful material misconduct, breach of fiduciary duty involving personal
profit, intentional failure to perform stated duties, willful material
violation of any law, rule, or regulation (other than traffic violations or
other similar misdemeanor offenses) or final cease-and-desist order, or a
material breach of any provision of this Agreement. For purposes of this
provision, no act or failure to act on the part of Executive shall be
considered "willful" unless it is done, or omitted to be done, by Executive
in bad faith or without reasonable belief that Executive's action or
omission was in the best interests of CVB. Any act, or failure to act,
based upon authority given pursuant to resolutions duly adopted by the
Board or based upon the advice of counsel for CVB shall be conclusively
presumed to be done, or omitted to be done, by Executive in good faith and
in the interest of CVB.
(c) Termination by CVB Other Than For Cause, Death or Disability.
Notwithstanding the foregoing, CVB may terminate the employment of the
Executive at any time during the term of this Agreement upon ninety (90)
days prior written notice to the
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Executive provided, however, that in the event of involuntary termination
of the Executive's employment under this Agreement, the Executive shall be
entitled to receive a lump sum equal to any accrued and awarded, but unpaid
bonuses or incentives earned in previous performance periods plus the
present value of any remaining Base Salary due throughout the remaining
term of this Agreement discounted at a rate of 7% per annum. CVB shall also
carry the Executive's medical and disability insurance, as well as any
other benefits in which the Executive participates, for a like period.
(d) By Executive. The Executive's employment under this Agreement may
be terminated at any time by the Executive upon ninety (90) days prior
written notice to CVB. Upon such termination, the Executive shall be
entitled to receive the compensation and benefits payable to the Executive
under this Agreement through the Date of Termination.
(e) Notice of Termination. Any termination by CVB for Disability or
Cause or by Executive shall be communicated by Notice of Termination to the
other party thereto given in accordance with Section 15(g) of this
Agreement. For purposes of this Agreement, a "Notice of Termination" means
a written notice which (i) indicates the specific termination provision in
this Agreement relied upon, (ii) to the extent applicable, sets forth in
reasonable detail the facts and circumstances claimed to provide a basis
for termination of Executive's employment under the provision so indicated,
and (iii) if the Date of Termination (as defined below) is other than the
date of receipt of such notice, specifies the termination date (which date
shall be not more than 90 days after the giving of such notice except as
otherwise provided in Section 7(a)). The failure by Executive or CVB to set
forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Disability or Cause, or by Executive of any
fact or circumstance supporting his claim for payments following a Change
of Control Termination as set forth in Section 8(a) below, shall not waive
any right of Executive or CVB hereunder or preclude Executive or CVB from
asserting such fact or circumstance in enforcing Executive's or CVB's
rights hereunder.
(f) Date of Termination. "Date of Termination" means (i) if
Executive's employment is terminated by CVB for Cause, the date of receipt
of the Notice of Termination or any later date specified therein, as the
case may be, (ii) if Executive's employment is terminated by CVB other than
for Cause, Disability, death, or by Executive, ninety (90) days after the
date of receipt of the Notice of Termination, and (iii) if Executive's
employment is terminated by reason of death or Disability, the Date of
Termination shall be the date of death of Executive or the Disability
Effective Date, as the case may be.
8. Termination In Connection With a Change of Control.
(a) Change of Control Termination. In the event that CVB terminates
the Executive's employment, other than for Cause or Disability in
connection with, or within twelve (12) months after, any Change of Control
of CVB, or, in the event of a voluntary termination of the Officer's
employment in connection with, or within twelve (12) months after any
Change of Control of CVB under which the Executive shall have incurred a
reduction of compensation or a reduction of responsibilities (irrespective
of title) or shall have been required to change his workplace location
greater than 35 miles from Hickory, North Carolina, from any full service
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banking office of CVB or any of its subsidiaries ("Change of Control
Termination"), then the Executive shall be entitled to receive the greater
of (i) the severance payment offered by CVB in such Notice of Termination,
and (ii) the following amounts:
(i) a lump sum amount equal to 2.99 times the average annual
salary paid to the Executive over the previous three 12 month periods,
plus
(ii) a lump sum equal to 2.99 times the average annual cash
bonuses and incentives paid to the Executive over the previous three
12 month periods, plus
(iii) the Executive shall be carried on the medical and
disability programs of CVB for the remaining period of this Agreement
from the Date of Termination; provided, however, that if Executive
becomes re-employed with another employer and is eligible to receive
substantially the same benefits under the other employer's medical and
disability programs as Executive would receive under CVB's medical and
disability programs, then the benefits hereunder shall be secondary to
those provided under such other employer's programs during such
applicable period of eligibility.
(b) Definition of Change of Control. A Change of Control shall be
deemed to have occurred upon: (i) any "Person" or "Group" (as defined in or
pursuant to Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended (the "1934 Act"), but not including CVB, or any "employee
benefit plan" (as defined in or pursuant to the Employee Retirement Income
Security Act of 1974, 29 U.S.C. ss.1002(3), and as used herein "Person" or
"Group") becoming the "beneficial owner" (as defined in Rule 13d-3 under
the 0000 Xxx) or otherwise acquiring control, directly or indirectly, of
securities of CVB representing twenty-five percent (25%) or more of the
voting power of CVB's then outstanding securities; (ii) the acquisition by
any Person or Group in any manner of the ability to elect, or to control
the election, of a majority of the directors of CVB; (iii) the merger of
CVB into another entity, the merger of any entity into CVB or the
acquisition of assets by CVB, in any such case with the result that the
beneficial owners of CVB's outstanding securities immediately prior to such
transaction do not beneficially own more than sixty percent (60%) of CVB's
outstanding securities after the consummation of such transaction; (iv) the
sale or other transfer of more than fifty percent (50%) of the assets of
CVB to any entity not controlled by CVB; (v) the consummation of any
transaction by CVB that results (A) in the majority of the Board after the
consummation of such transaction not being composed of Incumbent Directors,
or (B) the beneficial owners of CVB's outstanding securities immediately
prior to the consummation of such transaction not beneficially owning more
than sixty percent (60%) of CVB's outstanding securities after such
transaction; or (vi) the occurrence of any other event or circumstance
which is not described in the foregoing provisions of this Section 8(b) but
which the Board determines affects control of CVB and constitutes a Change
of Control for purposes of this Agreement. The term "Incumbent Director"
shall mean any director who as of the Effective Date was a member of the
Board, or any individual becoming a member of the Board subsequent to the
Effective Date whose election by CVB shareholders was recommended by at
least two-thirds (2/3) of the then Incumbent Directors on the Board.
Notwithstanding the foregoing, a Change of Control shall not include any
transaction to which Executive consents in a writing specifically noting this
provision of this Agreement.
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9. Additional Payments.
(a) Amount of Additional Payments. Anything in this Agreement
seemingly to the contrary notwithstanding, in the event it shall be
determined that any or the aggregate of all payments, distributions,
accelerations of vesting, awards and provisions of benefits of CVB to or
for the benefit of the Executive (whether paid or payable, distributed or
distributable, accelerated, awarded or provided pursuant to the terms of
this Agreement or otherwise) (a "Payment") would constitute an "excess
parachute payment" within the meaning of Section 280G of the Code and
subject to the excise tax imposed by Section 4999 of the Code (the "Excise
Tax"), then prior to the making of any Payment to the Executive, a
calculation shall be made of the amount of the Excise Tax and an additional
cash payment (the "Additional Payment") shall be promptly made to the
Executive in the sum of (i) the Excise Tax and (ii) the total of any Excise
Tax payable on the amounts specified in item (i) and this item (ii). In
addition, if it shall be determined at any time by reference to Internal
Revenue Service ("IRS") regulations or rulings, as a consequence of IRS
audits or assessments of Executive (or in settlement thereof), by reference
to the terms of the final judgment of a court or other judicial body of
competent jurisdiction or as a result of other similar events requiring
Executive to pay an Excise Tax or any income or other excise tax on the
amounts specified in this Section 9(a), that an Additional Payment made was
less than the sums specified in items (i) and (ii) above, CVB promptly
shall make a further cash payment to Executive in the sum of (x) such
deficit and (y) any Excise Tax on such further cash payment.
(b) Determination of Excise Tax and Other Amounts. The determination
of whether an Excise Tax would be imposed, the amount of such Excise Tax,
and the calculation of the amounts referred to in Section 9(a) shall be
made by CVB's regular independent accounting firm or, at the election of
Executive, another nationally recognized independent accounting firm
(either, the "Accounting Firm") which shall provide detailed supporting
analyses and calculations. All fees and expenses of the Accounting Firm
shall be borne solely by CVB. Any determination by the Accounting Firm
shall be binding upon CVB and Executive.
10. Non-Exclusivity of Rights. Nothing in this Agreement shall prevent or
limit Executive's continuing or future participation in any plan, program,
policy or practice provided by CVB and for which Executive may qualify, nor,
subject to Section 15(e), shall anything herein limit or otherwise affect such
rights as Executive may have under any contract or other agreement with CVB.
Amounts which are vested benefits or which Executive is otherwise entitled to
receive under any plan, policy, practice or program of or any contract or other
agreement with CVB at or subsequent to a Date of Termination shall be payable in
accordance with such plan, policy, practice or program or such contract or
agreement except as explicitly modified by this Agreement.
11. Full Settlement. CVB's obligation to make the payments provided for in
this Agreement and otherwise to perform its obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim, right
or action which CVB may have against Executive or others. In no event shall
Executive be obligated to seek other employment
7
or take any other action by way of mitigation of the amounts payable to
Executive under any of the provisions of this Agreement; provided, however, that
Executive's right to receive benefits under the Bank's medical and disability
programs to the extent that Executive obtains other employment shall be limited
as provided in Section 8(a)(iii).
12. Covenants.
(a) Covenant of Loyalty. During the term of this Agreement, the
Executive shall devote his full efforts and entire business time to the
performance of his duties and responsibilities under this Agreement.
(b) Covenant Not to Compete. In consideration of employment of the
Executive by CVB during the term of this Agreement, and for a period of one
(1) year after termination, the Executive agrees that he will not, within
any county in which CVB, any financial institution subsidiary of CVB, or
any subsidiary of any such financial institution subsidiary, maintains
offices, directly or indirectly own, manage, operate, join, control or
participate in the management, operation or control of or be employed by or
connected in any manner with any business which competes with CVB or any of
the other subsidiaries of CVB, without the prior written consent of CVB;
provided, however, that the provisions of this section shall not apply in
the event that the Executive's employment is involuntarily terminated by
CVB without Cause and no additional noncompetition agreement is made as
part of a separate severance agreement. Notwithstanding the foregoing, the
Executive shall be free, without such consent, to purchase or hold as an
investment or otherwise up to three percent (3%) of the outstanding stock
or other securities of any bank which has its securities publicly traded on
any national securities exchange or through an over-the-counter market.
(c) Covenant Not to Disclose. The Executive will hold in strict
confidence, during the term of this Agreement and at all times thereafter,
all knowledge or information, of a confidential nature with respect to the
business of CVB and all subsidiaries of CVB received by the Executive
during the term of this Agreement and will not disclose or make use of such
information without the prior written consent of CVB.
(d) Reasonableness of Scope and Duration. The parties hereto agree
that the covenants and agreements contained in this Section 12 are
reasonable in their time, territory and scope, and they intend that they be
enforced, and no party shall raise any issue of the reasonableness of time,
territory or scope of any such covenants in any proceeding to enforce any
such covenants.
(e) Enforceability. Executive agrees that monetary damages would not
be a sufficient remedy for any breach or threatened breach of the
provisions of this Section 12, and that in addition to all other rights and
remedies available to CVB, CVB shall be entitled to specific performance
and injunctive or other equitable relief as a remedy for any such breach or
threatened breach.
(f) Separate Covenants and Severability. The covenants and agreements
contained in this Section 12 shall be construed as separate and independent
covenants. Should
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any part or provision of any such covenant or agreement be held invalid,
void or unenforceable in any court of competent jurisdiction, no other part
or provision of this Agreement shall be rendered invalid, void or
unenforceable by a court of competent jurisdiction as a result. If any
portion of the foregoing provisions is found to be invalid or unenforceable
by a court of competent jurisdiction unless modified, it is the intent of
the parties that the otherwise invalid or unreasonable term shall be
reformed, or a new enforceable term provided, so as to most closely
effectuate the provisions as is validly possible.
13. Assignment and Successors.
(a) Executive. This Agreement is personal to Executive and without the
prior written consent of CVB shall not be assignable by Executive otherwise
than by will or the laws of descent and distribution. This Agreement shall
inure to the benefit of and be enforceable by Executive's legal
representatives.
(b) CVB. This Agreement shall inure to the benefit of and be binding
upon CVB and its respective successors and assigns. CVB will require any
successor to it (whether direct or indirect, by stock or asset purchase,
merger, consolidation or otherwise) to all or substantially all of its
business or more than fifty percent (50%) of its assets to assume expressly
and agree to perform this Agreement in the same manner and to the same
extent it would be required to perform it if no such succession had taken
place. As used in this Agreement, "CVB" shall mean CVB as hereinbefore
defined and any successor to its respective business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation
of law, or otherwise.
14. Regulatory Intervention. Notwithstanding anything in this Agreement to
the contrary, the obligations of CVB under this Agreement are subject to the
following terms and conditions:
(a) If the Executive is suspended and/or temporarily prohibited from
participating in the conduct of CVB's affairs by a notice served under
Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act (12 U.S.C.
ss.1818(e)(3) and (g)(1)), CVB's obligations hereunder, as applicable,
shall be suspended as of the date of service unless stayed by appropriate
proceedings. If the changes in the notice are dismissed, all of CVB's
obligations, as applicable, which were suspended, shall be reinstated.
(b) If Executive is removed and/or permanently prohibited from
participating in the conduct of CVB's affairs by an order issued under
Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act (12 U.S.C.
ss.1818(e)(4) and (g)(1)), all obligations of CVB, as applicable, under
this Agreement shall terminate as of the effective date of the order, but
vested rights of the parties shall not be affected.
(c) If CVB is in default (as defined in Section 3(x)(1) of the Federal
Deposit Insurance Act (12 U.S.C. ss.1813(x)(1)), all obligations of CVB
under this Agreement shall terminate as of the date of default, but any
vested rights of Executive shall not be affected.
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(d) All obligations of CVB under this Agreement shall be terminated,
except to the extent determined that continuation of the Agreement is
necessary for the continued operation of CVB, if so ordered by the North
Carolina Commissioner of Banks (the "Commissioner") at the time the Federal
Deposit Insurance Corporation ("FDIC") enters into an agreement to provide
assistance to or on behalf of CVB under the authority contained in Section
13(c) of the Federal Deposit Insurance Act (12 U.S.C ss.1823(c)), or if so
ordered by the Commissioner at the time the FDIC approves a supervisory
merger to resolve problems related to operation of CVB or when CVB is
determined by the Commissioner to be in an unsafe or unsound condition. Any
rights of Executive that shall have vested under this Agreement shall not
be affected by such action.
(e) With regard to the provisions of this Section 14(a) through (d):
(i) CVB agrees to use its best efforts to oppose any such
notice of charges as to which there are reasonable
defenses;
(ii) In the event the notice of charges is dismissed or
otherwise resolved in a manner that will permit CVB to
resume their obligations to pay compensation hereunder, CVB
will promptly make such payment hereunder; and
(iii) During any period of suspension under Section 14(a), the
vested rights of Executive shall not be affected except to
the extent precluded by such notice.
(f) CVB's obligations to provide compensation or other benefits to
Executive under this Agreement shall be terminated or limited to the extent
required by the provisions of any final regulation or order of the FDIC
promulgated under Section 18(k) of the Federal Deposit Insurance Act (12
U.S.C. ss.1828(k)) limiting or prohibiting any "golden parachute payment"
as defined therein, but only to the extent that the compensation or
payments to be provided by CVB under this Agreement are so prohibited or
limited.
15. Miscellaneous.
(a) No Mitigation. Executive shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other
employment or otherwise and except as provided in Sections 8(a)(iii), no
such payment shall be offset or reduced by the amount of any compensation
or benefits provided to Executive in any subsequent employment.
(b) Waiver. Failure of either party to insist, in one or more
instances, on performance by the other in strict accordance with the terms
and conditions of this Agreement shall not be deemed a waiver or
relinquishment of any right granted in this Agreement or of the future
performance of any such term or condition or of any other term or condition
of this Agreement, unless such waiver is contained in a writing signed by
the party making the waiver.
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(c) Severability. If any provision or covenant, of any part thereof,
of this Agreement should be held by any court to be invalid, illegal or
unenforceable, either in whole or in part, such invalidity, illegality or
unenforceability shall not affect the validity, legality or enforceability
of the remaining provisions or covenants, or any part thereof, of this
Agreement, all of which shall remain in full force and effect.
(d) Other Agents. Nothing in this Agreement is to be interpreted as
limiting CVB from employing other personnel on such terms and conditions as
may be satisfactory to it.
(e) Entire Agreement. Except as provided herein, this Agreement
contains the entire agreement between CVB and Executive, with respect to
the subject matter hereof and supersedes and invalidates any previous
employment and severance agreements or contracts with Executive. No
representatives, inducements, promises or agreements, oral or otherwise,
which are not embodied herein, shall be of any force and effect.
(f) Governing Law. Except to the extent preempted by federal law, the
laws of the State of North Carolina shall govern this Agreement in all
respects, whether as to its validity, construction, capacity, performance
or otherwise.
(g) Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to
have been duly given on delivery, if delivered, or three (3) days after
mailing, if mailed first class, certified mail, postage prepaid:
To CVB:
Catawba Valley Bank
0000 Xxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Chairman of the Board
To Executive:
R. Xxxxx Xxxxx
0000 00xx Xxxxxx Xxxxx X.X.
Xxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Any party may change the address to which notices, requests, demands and
other communications shall be delivered or mailed by giving notice thereof
to the other party in the same manner provided herein.
(h) Amendment and Modifications. This Agreement may be amended or
modified only by a writing signed by all parties hereto, which makes
specific reference to this Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Employment and Change of Control Agreement as of the date first above
written.
CATAWBA VALLEY BANK
By:
-------------------------------------
Xxxxx Xxxxx, Chairman of the Board
EXECUTIVE:
-------------------------------------
R. Xxxxx Xxxxx, President and
Chief Executive Officer
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