EXHIBIT (99)
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STATE OF NORTH CAROLINA
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
COUNTY OF MECKLENBURG
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is made
and entered into as of the 8th day of July, 2002, by and among FIRST COMMERCE
CORPORATION ("Corporation"), FIRST COMMERCE BANK ("Bank") and XXXXXX X. XXXXXXX
("Officer").
W I T N E S S E T H:
WHEREAS, the Corporation has been formed as the holding company for the
Bank;
WHEREAS, the Bank desires to retain the Officer's services as the President
and Chief Executive Officer of the Bank for the Term (as defined below), the
Corporation desires to join in this Agreement with the Bank and the Officer and
to continue to employ the Officer as the President and Chief Executive Officer
of the Corporation for the Term, and the Officer is willing to serve in such
capacity with each of the Corporation and the Bank for such period; and
WHEREAS, the parties desire to enter into this Agreement to set forth the
terms and conditions of the Officer's employment with the Corporation and the
Bank.
NOW, THEREFORE, for and in consideration of the premises and the mutual
promises, covenants and conditions hereinafter set forth, and other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the Corporation, the Bank and the Officer hereby agree as follows:
Section 1. Employment.The Corporation and the Bank hereby agree to continue
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to employ the Officer, and the Officer hereby agrees to continue to serve as
President and Chief Executive Officer of the Corporation and the Bank, upon the
terms and conditions stated herein. The Officer will (i) serve as the President
and Chief Executive Officer of each of the Corporation and the Bank with such
duties, responsibility and authority as are generally associated with such
executive office, and (ii) have such other duties, responsibilities and
authority, and render to the Corporation and the Bank such other management
services, as are customary for persons serving in such capacity with a bank
holding company and a commercial bank, and as are reasonably assigned to him
from time to time by the Board of Directors of the Corporation (the "Board") and
the Board of Directors of the Bank (the "Bank Board"). The Officer 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 Board and the Bank Board.
The Officer hereby agrees to devote such number of hours of his working
time and endeavors to his duties and responsibilities hereunder as the Officer,
the Board and the Bank Board shall deem to be necessary to discharge such duties
and responsibilities. Except with prior consent of the Board and the Bank Board,
the Officer shall not engage in any other occupation which requires a
significant amount of the Officer's personal attention during the Bank's regular
business hours or which otherwise interferes with the Officer's attention to or
performance of his duties and responsibilities under this Agreement. Nothing
herein contained, however, shall restrict or prevent the Officer from
personally, and for the Officer's own account or for the account of the
Officer's immediate family, trading in stocks, bonds, securities, real estate or
other forms of investment so long as such investment activities do not interfere
with the Officer's attention to or performance of his duties and
responsibilities under this Agreement.
During the Term, the Officer shall maintain his primary residence at a
location permitting him to perform his duties and responsibilities at the
Corporation's and the Bank's principal office in Mecklenburg County, North
Carolina.
Section 2. Compensation. For all services rendered by the Officer to the
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Corporation and the Bank under this Agreement, the Bank, on its own behalf and
on behalf of the Corporation, shall pay the Officer a base salary of no less
than his base annual salary as of the date of this Agreement ("Base Salary"),
payable in cash not less frequently than monthly. Such Base Salary shall be
subject to customary withholding taxes and such other employment taxes as are
required by law. The Officer's Base Salary may be increased by the Board and the
Bank Board, and all references to Base Salary herein shall mean his Base Salary
as so increased.
Section 3. Participation in Retirement and Employee Benefit Plan; Fringe
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Benefits. During the Term, the Officer shall be entitled to participate in any
and all employee benefit programs and compensation plans from time to time
maintained by the Corporation and/or the Bank and available to the executive
officers and/or all employees of the Corporation and/or the Bank, all in
accordance with the terms and conditions (including eligibility requirements) of
such programs and plans and the policies adopted by the Board or the Bank Board
in establishing such programs and plans. The Officer shall be entitled to paid
vacation leave in accordance with the Bank Board's policy for the senior
executive employees of the Bank now or hereafter in effect.
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In addition to the other compensation and benefits described in this
Agreement, the Bank shall promptly reimburse the Officer for all reasonable and
duly documented expenses incurred by him in the performance of his duties and
responsibilities under this Agreement in accordance with the polices established
by the Board and/or the Bank Board. The Bank shall pay the Officer's civic club
and dining club membership fees and dues; provided, however, that the Officer
shall be responsible for all expenses for personal use of such clubs.
Section 4. Term. Unless sooner terminated as provided in this Agreement and
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except as otherwise provided in Section 9, the term of this Agreement and the
Officer's employment hereunder shall be for a period commencing on the date
hereof ("Commencement Date") and continuing until the close of business on the
second anniversary of the Commencement Date; provided, however, that on each
anniversary of the Commencement Date, the term shall be extended for a period of
one (1) year unless the Corporation and the Bank, acting as one party, or the
Officer gives written notice at least six (6) months prior to such anniversary
that the Term shall not be extended and shall be fixed at its then existing
duration (the "Term").
Section 5. Non-Competition and Confidentiality. The Officer hereby
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acknowledge and agrees that: (I) in the course of his service as an executive
officer of the Corporation and the Bank, he will gain substantial knowledge of
and familiarity with the Bank's customers and its dealings with them, and other
Confidential Information (as defined below) concerning the Corporation's and the
Bank's businesses, all of which constitute valuable and privileged assets that
are particularly sensitive due to the fiduciary responsibilities inherent in the
banking business; and (ii) in order to protect the Corporation's and the Bank's
interest in and to assure the benefit of its business, it is reasonable and
necessary to place certain restrictions on the Officer's ability to Compete (as
defined below) against the Corporation and the Bank and on his disclosure of
Confidential Information. For that purpose, and in consideration of the
agreements of the Corporation and the Bank contained herein, the Officer
covenants and agrees as provided below:
(a) Confidentiality Covenant. All Confidential Information shall
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be considered and kept by the Officer as the confidential, private and
proprietary property of the Corporation or the Bank, as applicable. At all times
during and following the Term, and except as shall be required in the course of
the performance by the Officer of his duties on behalf of the Corporation and
the Bank or permitted by a direct, written authorization of the Board, he will
not divulge any such Confidential Information to any Person (as defined below)
not employed by the Corporation or the Bank (except as required by applicable
laws or regulations, rules or orders promulgated thereunder), remove any such
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Confidential Information in written or other recorded form from the
Corporation's or the Bank's premises, or make any use of any Confidential
Information for his own purposes or for the benefit of any Person other than the
Corporation or the Bank. Following the termination of the Officer's employment
with the Corporation and the Bank, this Section 5(a) shall not apply to any
Confidential Information which then is in the public domain (provided that the
Officer was not responsible, directly or indirectly, for permitting such
Confidential Information to enter the public domain without the Corporation's or
the Bank's consent) or which was obtained by the Officer from a Person who is
not obligated under an agreement of confidentiality with respect to such
information.
(b) Noncompetition. In consideration of employment of the
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Officer, during the Term and any subsequent Payment Period (as defined below),
the Officer agrees that he will not, within Mecklenburg County, North Carolina,
directly or indirectly, own, manage, operate, join, control or participate in
the management, operation or control of, or be employed by, an independent
contractor of, or connected in any manner with, any Person who Competes with the
Bank, without the prior written consent of the Bank Board. Notwithstanding the
foregoing, the Officer shall be free, without such consent, to purchase or hold
as an investment or otherwise up to five percent (5%) of the outstanding equity
interests of any Person which has any class of equity interests listed on any
national securities exchange or which has transactions in a class of its equity
interests quoted on The Nasdaq Stock Market or other over-the-counter market or
inter-dealer quotation system.
(c) Remedies for Breaches. The Officer understands and agrees
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that a breach by him of the covenants contained in Sections 5(a) or 5(b) will be
deemed a material breach of this Agreement and will cause irreparable injury to
the Corporation and the Bank, and that it would be difficult to ascertain the
amount of monetary damages that would result from any such breach. In the event
of the Officer's actual or threatened breach of the covenants contained in
Sections 5(a) or 5(b), the Corporation and the Bank shall be entitled to bring a
civil action seeking an injunction restraining the Officer from breaching or
continuing to breach those covenants or from any threatened breach thereof, or
any other legal or equitable relief relating to the breach of such covenants.
The Officer agrees that, if the Corporation and/or the Bank institutes any
action or proceeding against him seeking to enforce any of such covenants or to
recover other relief relating to an actual or threatened breach of any of such
covenants, he shall be deemed to have waived any claim or defense that the
Corporation and/or 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. The exercise by
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the Corporation or the Bank of any such right, remedy, power or privilege,
however, shall not preclude the Corporation or the Bank from pursuing any other
remedy or exercising any other right, power or privilege available to it for any
such breach, 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 Corporation and the Bank.
Notwithstanding anything contained to the contrary, the Officer agrees that
the provisions of Sections 5(a) and 5(b) and the remedies provided in this
Section 5(c) for a breach shall be in addition to, and shall not be deemed to
supersede or to otherwise restrict, limit or impair, the rights of the
Corporation and 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 this
wrongful disclosure, misuse or misappropriation of trade secrets or other
proprietary or confidential information.
(d) Survival of Covenants. The Officer's covenants and agreements
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and the Corporation's and the Bank's rights and remedies provided for in this
Section 5 shall survive any termination of this Agreement or the Officer's
employment with the Corporation and the Bank.
(e) Definitions. For purposes of this Agreement:
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(i) "Confidential Information" means any and all data,
figures, projections, estimates, lists, files, records,
documents, manuals or other such materials or
information (financial or otherwise), regulatory
examinations, financial results and condition, lending
and deposit operations, customers (including lists of
customers and information regarding their accounts and
business dealings with the Bank), policies and
procedures, computer systems and software, and
information relating to shareholders, employees,
officers and directors of or relating to the
Corporation or the Bank and generated, compiled or
maintained by or on behalf of the Corporation or the
Bank.
(ii) A Person that "Competes" means a Person that (A)
solicits or secures deposits from any Person, (B)
solicits or makes loans to any Person, (C) offers or
engages in the provisions of trust services, (D)
induces or attempts to induce any Person who was a
customer of the Bank at the time of the termination of
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the Officer's employment to change the customer's
depository, loan, trust, or other banking relationship
from the Bank to another financial institution or
financial services entity, (E) provides credit card
services, or (F) otherwise provides any type of
commercial banking or trust services, in each case
within Mecklenburg County, North Carolina.
(iii)"Person" means (A) 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; and (B) any
Affiliate (as defined below) of any individual or
entity listed in item (A).
(iv) "Affiliate" means any Person who controls, is under
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.
Section 6. Standards. The Officer, in the execution of his duties and
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responsibilities under this Agreement, shall at all times and in all respects
comply with the policies of the Board and the Bank Board, including any code of
business conduct or code of ethics adopted by the Board and/or the Bank Board
for application to the Corporation's and/or the Bank's employees, and with all
applicable statutes and with all rules, regulations, administrative orders,
statements or policy and other pronouncements or standards promulgated by any
Regulatory Authority (as defined below).
Section 7. Termination and Termination Pay.
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(a) The Officer may terminate his employment under this Agreement
at any time upon sixty (60) days notice to the Board and the Bank Board. Upon
such termination, the Officer shall be entitled to receive payment of his Base
Salary and all benefits and other compensation earned, vested, accrued or
accruing through the effective date of such termination; provided, however, that
the Board and the Bank Board, acting as one party and in their sole discretion,
may elect for the Officer not to serve out part or all of said notice period.
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(b) The Officer's employment under this Agreement shall be
terminated upon his death. Upon any such termination, the Officer's estate shall
be entitled to receive promptly payment of his Base Salary and all benefits and
other compensation earned, vested, accrued or accruing through the date of his
death.
(c) In the event the Officer becomes Disabled (as defined below)
during the Term, for the greater of (i) six (6) months from the date of the
determination the Officer has become Disabled and (ii) the remainder of the Term
the Bank shall pay to the Officer an amount equal to sixty-six point sixty-seven
percent (66.67%) of his Base Salary, and shall continue to provide the Officer
each of the other benefits set forth or described in this Agreement. At its
expense, the Bank shall maintain a disability income policy upon the Officer
sufficient to fund its obligations herein. In the event any disagreement between
the Officer and the Corporation and the Bank, acting as one party, as to whether
the Officer has become Disabled, the Officer shall be examined by an impartial
and reputable physician practicing within Mecklenburg County, North Carolina,
selected by mutual agreement of the Officer and the Bank, or failing such
agreement, by two (2) physicians practicing within Mecklenburg County, North
Carolina (one (1) shall be selected by the Corporation and the Bank, acting as
one party, and one (1) selected by the Officer), and the determination of such
physician or physicians as to whether the Officer has become Disabled shall be
final and binding on the Officer, the Corporation and the Bank. The Bank shall
pay the reasonable fees and expenses of such physician or physicians in making
any determination required under this Section 7(c). For purposes of this
Agreement, "Disabled" means that the Officer has become permanently unable to
perform satisfactorily his duties and responsibilities under this Agreement by
reason of physical incapacity or mental impairment.
(d) Subject to the provisions of Section 9, the Board and the
Bank Board, acting as one party, may terminate the Officer's employment under
this Agreement at any time for any reason with or without Cause (as defined
below); provided, however, that upon any such termination, the Officer shall
continue to receive his Base Salary for the applicable Payment Period (as
defined below); and, provided further that any such termination by the Board and
the Bank Board shall not prejudice the Officer's right to receive all
compensation (in addition to Base Salary) or benefits payable to, or receivable
by, him under this Agreement during the applicable Payment Period. The Officer
shall receive his Base Salary and all other compensation or benefits payable to,
or receivable by, him under this Agreement for the following periods (each a
"Payment Period") upon any of the following events: (i) following any
termination without Cause (except as described in the following item (ii)), the
Payment Period shall be the greater of (A) six (6) months and (B) the remainder
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of the Term; (ii) following the second written notice to the Officer from the
Board and the Bank Board, acting as one party, of a less than satisfactory
performance rating (which rating and second notice may not be given less than
ninety-one (91) days after the first such rating and written notice), the
Payment Period shall be three (3) months; and (iii) following any termination
for Cause, there shall be no Payment Period.
For purposes of this Agreement, "Cause" means:
(i) A determination made in good faith by the Board and the Bank
Board, acting as one party, that the Officer has (A)
breached in any material respect any material term or
condition of this Agreement or (B) is or has engaged in
willful misconduct which is having or is reasonably likely
to have a material adverse effect on the Corporation's and
the Bank's business, reputation or business prospects. Prior
to any termination by the Board and the Bank Board of the
Officer's employment for Cause, the Board and the Bank Board
shall give the Officer written notice describing the basis
for termination and, if during a period of thirty (30) days
following such notice the Officer cures or corrects the same
to the reasonable satisfaction of the Board, then the
Officer's employment shall not be terminated and this
Agreement shall remain in full force and effect.
(ii) The violation by the Officer of any applicable federal or
state law, or any applicable rule, regulation, order or
statement of policy promulgated thereunder by any
governmental agency or authority having jurisdiction over
the Corporation or the Bank, including without limitation
the Board of Governors of the Federal Reserve System, the
Federal Deposit Insurance Corporation, the North Carolina
Commissioner of Banks or any other such banking regulator (a
"Regulatory Authority"), which results from the Officer's
gross negligence, willful misconduct or intentional
disregard of such law, rule, regulation, order or policy
statement and which has or is reasonably likely to have a
material adverse effect on the Corporation's and the Bank's
business, reputation or business prospects.
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(iii)The Officer's commission in the course of his employment
with the Corporation and the Bank of an act of fraud,
embezzlement or theft (whether or not resulting in criminal
prosecution or conviction);
(iv) The Officer's conviction 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 the Officer from serving as
an employee or executive officer of, or a party affiliated
with, the Bank;
(v) The issuance by a Regulatory Authority of a finding or order
removing, suspending, or prohibiting the Officer from
participating in the conduct of the Corporation's or the
Bank's affairs; or
(vi) The occurrence of any event resulting in the Officer being
excluded from coverage, or having coverage limited as to the
Officer as compared to other covered officers or employees,
under the Corporation's or the Bank's then current "blanket
bond" or other fidelity bond or insurance policy covering
its or their directors, officers or employees.
Section 8. Additional Regulatory Requirements. Notwithstanding anything
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contained in this Agreement to the contrary, it is understood and agreed that
the Bank 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, (b) such
payment or action is 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 (c) such payment or action is
otherwise prohibited by any Regulatory Authority.
Section 9. Change in Control.
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(a) In the event of a Qualifying Change in Control (as defined
below), the Term shall automatically be the longer of (i) its then current
duration and (ii) a period of three (3) years commencing on the day immediately
prior to the date that the Qualifying Change in Control occurs, and shall be
upon such terms and conditions, including the then level of Base Salary, as
shall exist as of such date.
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(b) In the event of a termination of the Officer's employment
under this Agreement by the Board and the Bank Board (or the Board of Directors
of any successor to the Corporation or the Bank, as applicable) "in connection
with", or within twenty-four (24) months, after a Qualifying Change in Control,
in each case other than for Cause, the Officer shall be entitled to receive the
sum and the benefits set forth in Section 9(d) below, when and as provided in
Section 9(d). The phrase "in connection with" as used in the preceding sentence
means that within one hundred twenty (120) days after such termination of
employment, the Corporation and/or the Bank becomes a party to a letter of
intent, agreement in principle or other similar document with a Person, or a
party to a definitive acquisition, merger or sale agreement with a Person, in
connection with a Qualifying Change in Control.
(c) The Officer 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 Qualifying Change in Control:
(i) His duties, responsibilities and/or authority shall be
diminished from the levels existing immediately prior
to the Qualifying Change in Control or from those he
shall agree to in writing in connection with the
Qualifying Change in Control;
(ii) His rights to participate in, or his benefits
receivable under, life insurance, medical or
hospitalization insurance, disability insurance, stock
option, stock purchase, deferred compensation,
management retention, retirement, or similar plans or
programs in which he participated or under which he
received benefits as of the day prior to the date of
the Qualifying Change in Control ("Plans") are
eliminated or reduced in their level, scope, or
coverage; or
(iii)He is required to perform his principal executive
functions at a location outside of Mecklenburg County,
North Carolina without his express prior written
consent.
A Termination Event shall be deemed to have occurred on the date such action or
event is implemented or takes effect.
(d) In the event that the Officer's employment is terminated
under Section 9(b) or Section 9(c), (i) the Bank shall promptly pay to the
Officer a cash amount equal to two hundred ninety-nine percent (299%) of the
Officer's "base amount" as defined in Section 280G(b)(3)(A) of the Internal
Revenue Code of 1986, as amended (the "Code"), and (ii) until the end of the
Term as set forth in Section 9(a), the Officer shall be entitled to continue to
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participate at his then current levels of benefits in all Plans not requiring
for participation therein for qualification under federal law one thousand
(1,000) hours of service per employment year.
(e) Notwithstanding the foregoing, the Officer, at his sole
option, may elect to reduce the payments and/or benefits otherwise receivable
pursuant to items (i) and/or (ii) of Section 9(d), to the extent the Officer in
his sole discretion may determine, in order to avoid classification of such
payments and/or benefits as "parachute payments" within the meaning of Code
Section 280G or for any other or no reason. In the event of a termination of
employment "in connection with" a Qualifying Change in Control as described in
Section 9(b), any amounts paid to Officer under this Agreement by reason of his
termination without Cause prior to the time that such termination is determined
to have been "in connection with" a Qualifying Change in Control shall be
credited against the amounts due to Officer under Section 9(d) (but not the
calculation of the amounts due), upon such determination the Officer shall be
entitled all payments and benefits described in Section 9(d) from the date of
such termination, and upon such determination the Bank shall provide the Officer
opportunities to make the elections set forth in this Section 9(e).
(f) For the purposes of this Agreement, "Qualifying Change in
Control" means:
(i) Any Person (other than the Corporation itself),
directly or indirectly, acquires beneficial ownership
of voting stock, or acquires irrevocable proxies or any
combination of beneficial ownership of voting stock and
irrevocable proxies, representing twenty-five percent
(25%) or more of the voting securities of the
Corporation or the Bank, or acquires the ability in any
manner to elect, or to influence or cause the election,
of a majority of the Board and/or the Bank Board;
(ii) The Corporation or the Bank merges with another Person
with the result that the shareholders of the
Corporation immediately prior to the public
announcement of the Corporation's and the Bank's
agreement to effect such transaction do not
beneficially own at least sixty-six and two-thirds
percent (66.667%) of the voting equity interests of the
surviving Person in such transaction; or
(iii)All or substantially all of the assets of the
Corporation or the Bank are sold or otherwise
transferred to or are acquired by any Person.
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Notwithstanding the other provisions of this Section 9(f), a transaction or
event shall not be considered a Qualifying Change in Control if, prior to the
consummation or occurrence of such transaction or event, the Officer, the
Corporation and the Bank agree in writing that the same shall not be treated as
a Qualifying Change in Control for purposes of this Agreement.
(g) The Officer shall have twelve (12) months from the date of
occurrence of a Termination Event to terminate this Agreement pursuant to
Section 9(c). Any such termination shall be deemed to have occurred only upon
delivery to the Corporation and the Bank, or any successor to either, as
applicable, of written notice of termination which describes the Qualifying
Change in Control and Termination Event. If the Officer does not so terminate
this Agreement within such twelve-month period, he shall thereafter have no
further rights hereunder with respect to that Termination Event, but shall
retain his rights hereunder with respect to any other Termination Event as to
which such period has not expired.
(h) In the event that the employment of the Officer is terminated
under Section 9(b) or Section 9(c), without prejudice to his rights under
Section 9(d) or Section 9(e), if the Officer is requested by the Person
effecting the Qualifying Change in Control to do so, the Officer shall serve as
an independent contractor consultant to the Bank or its successor for up to
forty (40) hours per week for up to twelve (12) months following such employment
termination at an hourly fee equal to his Base Salary at the time of termination
divided by three hundred sixty (360) days divided by eight (8). The Officer
shall provide such consulting services in Mecklenburg County, North Carolina and
shall be reimbursed for all reasonable and duly documented expenses incurred by
him in providing such services.
Section 10. Successors and Assigns.
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(a) This Agreement shall inure to the benefit of and be binding
upon any corporate or other successor of the Corporation or the Bank, including
any Person who shall acquire, directly or indirectly by merger, share exchange,
purchase or otherwise, all or substantially all of the capital stock or assets
of the Corporation or the Bank.
(b) The Corporation and the Bank are contracting for the unique
and personal skills of the Officer. Therefore, the Officer shall be precluded
from assigning or delegating his rights, duties or responsibilities hereunder.
Section 11. Modification; Waiver; Amendments. No provision of this
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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 a party hereto, at any time, of any breach by any other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
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another 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 all
parties hereto, except as herein otherwise provided. Notwithstanding any
provision hereof, the Board and the Bank Board may increase any compensation or
benefit payable to, or receivable by, the Officer under this Agreement.
Section 12. Applicable Law. This Agreement shall be governed in all
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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 govern.
Section 13. Severability. The provisions of this Agreement shall be deemed
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severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
Section 14. Entire Agreement. This Agreement contains the entire agreement
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of the parties with respect to the transactions described herein and supersedes
any and all other oral or written agreement(s) heretofore made, and there are no
representations or inducements by or to, or any agreements between, any of the
parties hereto other than those contained herein in writing.
Section 15. Disputes. In the event any dispute shall arise between the
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Officer and the Corporation, the Bank or the Board (and the Bank Board) as to
the terms or interpretation of this Agreement, whether instituted by formal
legal proceedings or otherwise, including any action taken by the Officer to
enforce the terms of this Agreement or in defending against any action taken by
the Corporation and/or the Bank, unless the Officer shall have received no
recovery or other relief on his claims or shall have not prevailed on his
defenses, the Bank shall reimburse the Officer for all costs and expenses,
including reasonable attorneys' fees, incurred by him in such disputes or
proceedings.
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IN WITNESS WHEREOF, the parties have executed this Agreement under seal to
be effective as of the day and year first hereinabove written. FIRST COMMERCE
CORPORATION:
By: /s/ Xxxxx X. Xxxxxxx
[CORPORATE SEAL] ------------------------
Xxxxx X. Xxxxxxx
Chairman
FIRST COMMERCE BANK:
By: /s/ Xxxxx X. Xxxxxxx
[CORPORATE SEAL] -------------------------
Xxxxx X. Xxxxxxx
Chairman
ATTEST:
/s/ Xxxxx X. Xxxx
Secretary
OFFICER:
/s/ Xxxxxx X. Xxxxxxx (SEAL)
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Xxxxxx X. Xxxxxxx
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