Form of Employment Agreement with Xxxxx X. Xxxx
STATE OF NORTH CAROLINA
COUNTY OF GUILFORD
THIS AGREEMENT entered into as of the ____ day of
____________________, 1996 (the "Effective Date"), by and between
UNITED CAROLINA BANK ("UCB" ) and XXXXX X. XXXX ("Employee")
W I T N E S S E T H:
WHEREAS, Employee heretofore has been employed as Chairman
and Chief Executive Officer of TRIAD BANK ("Triad") and in such
position has provided continued leadership and guidance in the
growth and development of Triad's business; and,
WHEREAS, pursuant to an Agreement and Plan of Reorganization
and Merger dated October 19, 1995 (the "Merger Agreement"), Triad has
agreed to be merged into and with UCB (the "Merger") with UCB being the
surviving bank; and,
WHEREAS, Employee's experience and knowledge of Triad's
operations, customers and affairs and his knowledge of and standing
and reputation in Triad's market area would be of great benefit to
UCB in its continuance of Triad's business; and, for that reason,
UCB desires to retain Employee's services as an employee of UCB for
the period specified, and Employee desires to become an employee of UCB;
and,
WHEREAS, for that purpose, UCB and Employee have agreed and
desire to enter into this Agreement to set forth the terms and
conditions of Employee's employment with UCB.
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, UCB and Employee hereby
agree as follows:
1. Employment. UCB hereby agrees to employ Employee, and
Employee hereby accepts employment with UCB, all upon the terms and
conditions stated herein. As an employee of UCB, Employee will (i)
serve as a Senior Vice President of UCB, or in such other executive
position or with such other similar title or titles as shall be
specified from time to time by UCB, (ii) provide such assistance to
UCB as it may request from time to time regarding matters involving
the former customers and employees of Triad, loan quality control and
review, product conversion and other tasks relating to the
former operations of Triad and the transition of control over such
operations to UCB, (iii) promote UCB, its business and its business
development activities in Triad's former market areas, and (iv) from
time to time have such other duties and responsibilities, and render
to UCB such other management services, as are customary for persons in
Employee's position with UCB or as otherwise shall be assigned to him
from time to time by UCB. In connection with the performance of his
duties hereunder, Employee's office and principal employment location
shall be at such place as UCB shall designate but, without Employee's
consent, in no event outside of Guilford County, North Carolina.
Notwithstanding anything contained herein to the contrary, required
business travel (including overnight travel) outside of Guilford County,
North Carolina in connection with his duties under this Agreement not
in excess of ten (10) nights per calendar month shall not constitute a
violation of this Agreement.
Employee faithfully and diligently shall discharge his
obligations under this Agreement and shall perform the duties associated
with his position with UCB in a manner which is fully competent and
reasonably satisfactory to UCB, and Employee shall use his best
efforts to implement UCB's policies and procedures currently in effect
or as are established from time to time by UCB.
Employee hereby agrees to devote all his working time and
endeavors to the discharge of his duties under this Agreement, and, for
so long as employment hereunder shall exist, Employee shall not engage
in any other occupation which requires any amount of Employee's
personal attention during UCB's regular business hours or which
otherwise interferes with Employee's attention to or performance of
his duties and responsibilities as an employee of UCB hereunder, unless
Employee first shall have obtained the prior written consent of UCB;
provided, however, that Employee may (i) participate in civic and
charitable activities in accordance with UCB's personnel policies and
procedures applicable from time to time to all its employees and (ii)
spend no more than one day per month on family business matters.
Employee and UCB specifically agree that this Agreement
supersedes that certain Employment Agreement dated June 14, 1992, as
amended September 19, 1995, between Employee and Triad (the "Triad
Agreement"), and, as additional consideration for UCB's agreements
and obligations under this Agreement, Employee hereby waives any
and all his rights, and releases Triad and UCB from any and all
obligations, under the Triad Agreement and agrees that the Triad
Agreement hereby is terminated and shall be of no further force or
effect.
2. Term. Unless sooner terminated as provided in this Agreement
and subject to the right of either Employee or UCB to terminate
Employee's employment at any time as provided herein, the
-2-
term of Employee's employment with UCB under this Agreement (the
"Term of Employment") shall be for a period commencing on the
Effective Date and terminating at the close of UCB's business on
December 31, 1998 (the "Expiration Date").
3. Compensation. For all services rendered by Employee to
UCB under this Agreement, during the Term of Employment UCB shall pay
Employee base salary at an annual rate equal to Employee's base salary
with Triad immediately prior to the date of this Agreement ("Base
Salary"), which amount shall be increased by 5% effective on each
anniversary date of this Agreement. Base Salary paid under this
Agreement shall be payable not less frequently than monthly in
accordance with UCB's payroll policies and procedures. All
Compensation (as hereinafter defined) hereunder shall be subject to
customary withholding taxes and such other employment taxes as are
required by law.
4. Participation in Retirement and Employee Benefit Plans:
Fringe Benefits. Subject to the terms and conditions of this Agreement
and the Merger Agreement, Employee shall be entitled to participate
in any and all employee benefit programs and incentive compensation
plans and programs maintained by or for UCB that are generally
available to and which cover all UCB officers at Employee's job
level or classification. Except as otherwise specifically provided
herein and in the Merger Agreement, Employee's participation in such
plans and programs shall be subject to and in accordance with the
terms and conditions (including eligibility requirements) of such
plans and programs, resolutions of UCB's (or its parent company's)
Board of Directors establishing such programs and plans, and UCB's
normal practices and established policies regarding such plans and
programs.
UCB shall pay directly, or reimburse Employee for, membership
dues for Employee to the Starmount Country Club and the Greensboro
Rotary Club (or similar civic club) and the expenses relating to such
other memberships as may be approved by UCB from time to time.
UCB shall pay the premiums on a $250,000 face amount
split-dollar insurance policy for Employee (as such policy was in effect
immediately prior to the date of this Agreement). Such policy shall
be owned by UCB. At the Expiration Date, the Employee shall have
the option exercisable by him within sixty (60) days following the
Expiration Date to purchase the split dollar policy from UCB for cash
equal to the total premiums paid by Triad and UCB.
5. Standards. Employee, in the execution of his duties
under this Agreement, at all times and in all respects shall comply
with the United Carolina Bancshares Corporation Statement of Policy,
Principles and Objectives (the "Code of Conduct"), as the same is in effect
as of the Effective Date and as it may be amended or supplemented from time to
time subsequent thereto, and with all
-3-
applicable federal and state statutes and all rules, regulations,
administrative orders, statements of policy and other pronouncements or
standards promulgated thereunder.
6. Noncompetition: Confidentiality.
(a) General. Employee hereby acknowledges and agrees that (i)
Triad has made a significant investment in the development of its
business in the geographic area identified below as the "Relevant
Market" and that, by virtue of UCB's acquisition of Triad, UCB has
acquired a valuable economic interest in Triad's business in the
Relevant Market which it is entitled to protect; (ii) in the course of
his past service on behalf of Triad and future service as an
employee of UCB, he has gained and will continue to gain substantial
knowledge of and familiarity with Triad's and UCB's customers and
their dealings with them, and other information concerning Triad's
and UCB's businesses, all of which constitute valuable assets and
privileged information and, (iii) in order to protect UCB's interest
in and to assure it the benefit of its succession to Triad's business,
it is reasonable and necessary to place certain restrictions on
Employee's ability to compete against UCB and on his disclosure
of information about UCB's and Triad's business and customers. For
that purpose, and in consideration of UCB's agreements contained
herein, Employee covenants and agrees as provided below.
(b) Covenant Not to Compete. During a period (the "Noncompete
Period") commencing on the date of this Agreement and ending on the
date one (1) year following the effective date of any termination (for
any reason, and whether by UCB or Employee, except as otherwise
provided herein) of Employee's employment with UCB (whether during or
after expiration of the Term of Employment) (the "Restriction
Period"), Employee will not "Compete" (as defined below), directly or
indirectly, with UCB in the geographic area consisting of Xxxxxxxx,
Xxxxxxxx and Xxxxxxx Counties, North Carolina (the "Relevant
Market"). Employee acknowledges and agrees that the Relevant Market
and Restriction Period are limited in scope to the geographic
territory and period of time reasonably necessary to protect UCB's
economic interest.
For the purposes of this Paragraph 6, the following terms
shall have the meanings set forth below:
Compete. The term "Compete" means: (i) soliciting or securing
deposits from any Person (as hereinafter defined) residing in the
Relevant Market for any Financial Institution; (ii) soliciting any
Person residing in the Relevant Market to become a borrower from any
Financial Institution, or assisting (other than through the performance
of ministerial or clerical duties) any Financial Institution in
making loans to any such Person; (iii) soliciting any Person
residing in the Relevant Market to obtain any other
-4-
service or product from any Financial Institution, (iv) inducing or
attempting to induce any Person who was a Customer (as hereinafter
defined) of Triad at the time of its acquisition by UCB, or who was a
Customer of UCB on the date of termination of Employee's employment
with UCB, to change any depository, loan and/or other banking
relationship of the Customer from Triad or UCB to another Financial
Institution; (v) acting as a consultant, officer, director,
independent contractor, or employee of any Financial Institution that
has its main or principal office in the Relevant Market, or, in
acting in any such capacity with any other Financial Institution, to
maintain an office or be employed at or assigned to or to have any
direct involvement in the management, supervision, business or
operation of any office of such Financial Institution located in the
Relevant Market; or (vi) communicating to any Financial
Institution the names or addresses or any financial information
concerning any Person who was a Customer of Triad at the time of its
acquisition by UCB, or who was a Customer of UCB at the date of
termination of this Agreement or Employee's employment with UCB for any
reason. However, notwithstanding anything contained herein to the
contrary, for purposes of this Agreement the term "Compete" shall not
include the sale of real estate owned by Employee or a
corporation controlled by Employee, including such sales in which
the Employee or such a corporation as seller accepts a purchase money
promissory note and deed of trust or installment sale contract from the
buyer to finance the purchase price of the real estate being sold.
Customer. The term "Customer of Triad" means any Person with
whom Triad has or has had a depository or loan relationship and/or
to whom Triad has provided any other service or product, and the term
"Customer of UCB" means any Person who or which is a resident of or
located within the Relevant Market (as defined above) with whom UCB
has or has had a depository or loan relationship and/or and/or to whom
UCB has provided any other service or product.
Financial Institution. The term "Financial Institution" means
(i) any federal or state chartered bank, savings bank, savings and
loan association or credit union, (ii) any holding company for or
corporation that owns or controls any such entity, (iii) any subsidiary
or service corporation of any such entity or holding company, or any
entity controlled in any way by any such entity or holding company, or
(iv) any other Person engaged in the business of making loans of any
type, soliciting deposits, or providing any other service or
product that is provided by UCB or one of its affiliated corporations.
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.
-5-
(c) Confidentiality Covenant. Employee covenants and agrees
that any and all data, figures, projections, estimates, lists, files,
records, documents, manuals or other such materials or information
(whether financial or otherwise, and including any files data or
information maintained electronically, on microfiche or otherwise)
relating to Triad or UCB and their respective lending and deposit
operations and related businesses, regulatory examinations,
financing sources, financial results and condition, Customers
(including lists of Customers and former customers and information
regarding their accounts and business dealings with Triad or UCB),
prospective customers, contemplated acquisitions (whether of
business or assets), ideas, methods, marketing investigations,
surveys, research, policies and procedures, computer systems and
software, shareholders, employees, officers and directors (herein
referred to as "Confidential Information") are confidential and
proprietary to UCB and are valuable, special and unique assets of
UCB's business which are not directly reproducible from any other
source and to which Employee has had access as an officer and employee
of Triad and will have access during his employment with UCB.
Employee agrees that (i) all such Confidential Information shall
be considered and kept as the confidential, private and privileged
records and information of UCB, and (ii) during the Term of
Employment and at all times following the termination of this
Agreement or his employment for any reason, and except as shall be
required in the course of the performance by Employee of his duties on
behalf of UCB or otherwise pursuant to the direct, written
authorization of UCB, Employee will not: divulge any such
Confidential Information to any other Person; remove any such
Confidential Information in written or other recorded form from
UCB's premises; or make any use of any Confidential Information for
his own purposes or for the benefit of any Person other than UCB.
However, following the termination of Employee's employment with UCB,
this Paragraph 6(c) shall not apply to any Confidential Information
which then is in the public domain (provided that Employee was not
responsible, directly or indirectly, for permitting such Confidential
Information to enter the public domain without UCB's consent), which
Employee is required to disclose to any governmental authority having
jurisdiction over UCB, its attorneys or accountants, or which is
obtained by Employee from a third party which or who is not obligated
under an agreement of confidentiality with respect to such
information and who did not acquire such Confidential Information in
a manner which constituted a violation of the covenants contained in
this Paragraph 6(c) or which otherwise breached any duty of
confidentiality.
(d) Reasonableness of Restrictions. If any of the
restrictions set forth in this Paragraph 6 shall be declared invalid for
any reason whatsoever by a court of competent jurisdiction, the
validity and enforceability of the remainder of such restrictions
shall not thereby be adversely affected. Employee acknowledges that
-6-
Triad has had a substantial business presence in the Relevant Market,
that UCB, through its acquisition of Triad, has acquired a legitimate
economic interest of Triad in those geographic areas which this
Paragraph 6 specifically is intended to protect, and that the
foregoing geographic and time limitations are reasonable and
proper. In the event the Noncompete Period or any other such time
limitation is deemed to be unreasonable by a court of competent
jurisdiction, Employee hereby agrees to submit to the reduction of
such period as the court shall deem reasonable. In the event the
Relevant Market is deemed by a court of competent jurisdiction to be
unreasonable, Employee hereby agrees that the Relevant Market shall
be reduced by excluding any separately identifiable and geographically
severable area necessary to make the remaining geographic
restriction reasonable, but this Paragraph 6 shall be enforced as to
all other areas included in the Relevant Market which are not so
excluded.
(e) Remedies for Breach. Employee understands and
acknowledges that a breach or violation by him of any of the covenants
contained in Paragraphs 6(b) and 6(c) shall be deemed a material
breach of this Agreement and will cause substantial, immediate and
irreparable injury to UCB, and that UCB will have no adequate remedy at
law for such breach or violation. In the event of Employee's actual or
threatened breach or violation of the covenant contained in either
such Paragraph, UCB shall be entitled to bring a civil action seeking,
and shall be entitled to, an injunction restraining Employee from
violating or continuing to violate such covenant or from any threatened
violation thereof, or for any other legal or equitable relief
relating to the breach or violation of such covenant. Employee agrees
that, if UCB institutes any action or proceeding against Employee
seeking to enforce any of such covenants or to recover other relief
relating to an actual or threatened breach or violation of any of such
covenants, Employee shall be deemed to have waived the claim or defense
that UCB 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 UCB of any such right, remedy,
power or privilege shall not preclude UCB 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 UCB.
Notwithstanding anything contained herein to the contrary,
Employee agrees that the provisions of Paragraph 6(c) above and the
remedies provided in this Paragraph 6(e) for a breach by Employee
shall be in addition to, and shall not be deemed to supersede or to
otherwise restrict, limit or impair the rights of UCB under any state
or federal law or regulation dealing with or providing a
-7-
remedy for the wrongful disclosure, misuse or misappropriation of trade
secrets or other proprietary or confidential information.
(f) Survival of Covenants. Employee's covenants and
agreements and UCB's rights and remedies provided for in this
Paragraph 6 shall survive and remain fully in effect following
expiration of the Term of Employment or any actual termination of
Employee's employment with UCB (whether during or following
expiration of the Term of Employment).
7. Termination and Termination Pay.
(a) By Employee. Employee's employment under this Agreement
may be terminated at any time by Employee upon sixty (60) days' written
notice to UCB. Upon such termination, Employee shall be entitled to
receive compensation and benefits ("Compensation") through the
effective date of such termination; provided however, that, upon
receipt of any such notice of termination from Employee, UCB may elect
for Employee not to serve out part or all of said notice period and, in
such event, Employee's employment shall terminate on such date during
the notice period as UCB shall specify, and in any such event UCB
shall pay Compensation to Employee only through the earlier of
(i) the date the Employee commences gainful employment with another
employer or (ii) the end of the notice period.
(b) Death. Employee's employment under this Agreement
automatically shall be terminated upon his death during the Term of
Employment. In the case of Employee's death, his estate shall be
entitled to receive any Compensation Employee shall have earned
prior to the date of termination but which remains unpaid.
(c) Retirement. Employee's employment under this
Agreement automatically shall be terminated upon the effective
date of Employee's retirement with UCB's consent or under the terms of
UCB's pension plan. Upon any such termination, Employee shall be
entitled to receive any Compensation Employee shall have earned
prior to the date of retirement but which remains unpaid.
Additionally, during the sixty (60) month period commencing with the
month following Employee's retirement ("Retirement Period"), UCB
shall pay Employee the sum of $5,000.00 per month ("Retirement
Benefits"), payable on the last day of each month. The Retirement
Benefits shall terminate upon the Employee's death.
(d) Disability. Subject to UCB's obligations and Employee's
rights under (i) Title I of the Americans with Disabilities Act,
ss.504 of the Rehabilitation Act, and the Family and Medical Leave
Act, and to (ii) the vacation leave, disability leave, sick leave
and any other leave policies of UCB, Employee's employment under
this Agreement automatically shall be terminated in the event
Employee becomes disabled during the Term of Employment and it is
-8-
determined by UCB that Employee is unable to perform the essential
functions of his job under this Agreement for sixty (60) business
days or more during any 12-month period. Upon any such termination,
Employee shall be entitled to receive any Compensation Employee
shall have earned prior to the date of termination but which
remains unpaid, and shall be entitled to any payments provided under
any disability income plan of UCB which is applicable to
Employee.
In the event of any disagreement between Employee and UCB as to
whether Employee is physically or mentally incapacitated such as
will result in the termination of Employee's employment pursuant to
this Paragraph 7(d), the question of such incapacity shall be
submitted to an impartial physician licensed to practice medicine in
North Carolina for determination and who will be selected by mutual
agreement of Employee and UCB or, failing such agreement by two (2)
physicians (one (1) of whom shall be selected by UCB and the other by
Employee), and such determination of the question of such incapacity
by such physician or physicians shall be final and binding on
Employee and UCB. UCB shall pay the reasonable fees and expenses of
such physician or physicians in making any determination required under
this Paragraph 7(d).
(e) By UCB. UCB otherwise may terminate Employee's
employment at any time during the Term of Employment for "Cause" as
defined below. Upon any such termination of Employee's employment
by UCB under this Paragraph 7(e) for "Cause", Employee shall have no
further rights under this Agreement (including any right to receive
Compensation or other benefits for any period after such termination).
Notwithstanding anything contained herein to the contrary,
before UCB may terminate Employee's employment for a Cause described
in Paragraph 7(e)(i) below, UCB first shall give Employee ten (10) days
written notice of the facts or circumstances constituting such Cause
for termination, and, if during such period Employee shall cure such
Cause to the reasonable satisfaction of UCB, then Employee's
employment shall continue; provided however, that, in the event of any
reoccurrence or further occurrence of the same Cause, UCB shall have no
obligation to give Employee any further or additional notice or
opportunity to cure prior to the termination of Employee's employment.
No such notice shall be required in the case of termination of
Employee's employment for any Cause other than as described above.
For purposes of this Paragraph 7(e), UCB shall have
"Cause" to terminate Employee's employment upon:
(i) A determination by UCB, in good faith, that
Employee (A) has breached in any material respect any of the
terms or conditions of this Agreement, (B) has failed in any
material
-9-
respect to perform or discharge his duties or
responsibilities of employment, or (C) is engaging or has
engaged in willful misconduct or conduct which is detrimental
to the business prospects of UCB or which has had or likely
will have a material adverse effect on UCB'S business or
reputation;
(ii) The violation by Employee of the Code of
Conduct, or 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 UCB or any of its affiliates or
subsidiaries (a "Regulatory Authority"), including but not
limited to the Federal Deposit Insurance Corporation, the North
Carolina Banking Commissioner, the North Carolina State
Banking Commission, the Federal Reserve Board or any other
banking regulator, which results from Employee's 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
UCB or any of its affiliates or subsidiaries or to UCB'S
reputation;
(iii) The commission in the course of Employee's
employment with UCB of an act of fraud, embezzlement, theft
or proven personal dishonesty, or Employee's being indicted
for any felony or other crime involving moral turpitude
(whether or not such act or charge involves the Bank or its
assets or results in criminal indictment, charges,
prosecution or conviction);
(iv) The conviction of Employee 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 Employee from serving as an
employee or executive officer of, or a party affiliated with,
UCB or its bank holding company; or, in the event
Employee becomes unacceptable to, or is removed, suspended
or prohibited from participating in the conduct of UCB's
affairs (or if proceedings for that purpose are commenced),
by any Regulatory Authority;
(v) The exclusion of Employee by the carrier or
underwriter from coverage under UCB's then current "blanket
bond" or other fidelity bond or insurance policy covering its
directors, officers or employees, or the occurrence of any
event which UCB believes, in good faith, will result in
Employee being excluded from such coverage, or having
coverage limited as to Employee as compared to other covered
officers or employees, pursuant to the terms and conditions
of such "blanket bond" or other fidelity bond or insurance
policy;
-10-
(vi) Employee's excessive use of any addictive drug
or use of any controlled substance, as defined at 21 U.S.C. ss.
802 and listed on Schedules I through V of 21 U.S.C. ss. 812,
as revised from time to time, and as defined by other federal
laws and regulations, his use of legal drugs that have not
been obtained legally or are not being taken as prescribed by
a licensed physician, or his use of alcohol in a manner
that adversely affects the performance of his job duties
under this Agreement, prevents him from performing his job
duties safely or creates a risk to the safety of others at the
workplace; or,
(f) Employee's covenants contained in Paragraph 6 above shall
survive and remain in effect following expiration of the Term of
Employment or any actual termination of Employee's employment
(whether during or following expiration of the Term of Employment).
8. Life Insurance. UCB agrees to procure and pay for, and
maintain during the term of this Agreement and the Retirement Period
described in Section 7(c), a level term insurance policy (separate
and apart from the split dollar policy referred to in Section 4 above)
in the face amount of $300,000.00 with Employee and UCB as the named
co-beneficiaries. Upon the death of Employee during the Term of
Employment, the estate of Employee shall be entitled to all the
proceeds of such policy. If Employee dies during the Retirement
Period described in Section 7(c), the estate of Employee shall be
entitled to receive a portion of such proceeds equal to the sum of
$300,000 less the aggregate amount of Retirement Benefits previously
received by Employee from UCB pursuant to Section 7(c), and UCB shall
be entitled to the balance of such proceeds. Notwithstanding the
fact that UCB is named a cobeneficiary of the said life insurance
policy, the P.S. 58 cost (or other appropriate measure) of the value
of the life insurance proceeds that would be payable to Employee
during the reporting period shall be reported as taxable income to
Employee. The parties agree to take such action as shall be necessary
to designate the beneficiary of the said life insurance policy
consistent with the provisions of this Section 8.
9. Additional Regulatory Requirements. Notwithstanding
anything contained in this Agreement to the contrary, it is
understood and agreed that UCB (or any of its successors in
interest) shall not be required to make any payment or take any
action under this Agreement if:
(a) UCB is declared by any Regulatory Authority to be
insolvent, in default or operating in an unsafe or unsound manner;
or,
(b) in the opinion of counsel to UCB such payment or action
(i) would be prohibited by or would violate any provision of state
-11-
or federal law applicable to UCB, including without limitation the
Federal Deposit Insurance Act 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.
10. Successors and Assigns.
(a) This Agreement shall inure to the benefit of and be
binding upon any corporate or other successor of UCB which shall
acquire, directly or indirectly, by conversion, merger, consolidation,
purchase or otherwise, all or substantially all of the assets of UCB.
(b) UCB is contracting for the unique and personal skills of
Employee. Therefore, Employee shall be precluded from assigning or
delegating his rights or duties hereunder without first obtaining the
written consent of UCB.
11. 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.
12. Applicable Law. The parties hereto agree that without
regard to principles of conflicts of laws, the internal laws of
the State of North Carolina shall govern and control the validity,
interpretation, performance and enforcement of this Agreement and
that any suit or action relating to this Agreement shall be
instituted and prosecuted in the Courts of the County of Guilford,
State of North Carolina, and each party hereto hereby does waive any
right or defense relating to such jurisdiction and venue, except to
the extent that federal law shall be deemed to apply.
13. 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.
14. Headings. The section and paragraph headings contained in
this Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement.
-12-
15. Notices. Except as otherwise may be provided herein, all
notices, claims, certificates, requests, demands and other
communications hereunder shall be in writing and shall be deemed to
have been duly given when deposited with the United States Postal
Service, registered or certified mail, postage prepaid, as follows:
If to UCB:
United Carolina Bank
000 Xxxx Xxxxxxx Xxxxxx
Post Office Box 632
Whiteville, North Carolina 28472
Attention: Xxxxx X. Xxxxxx
With a copy to:
Xxxxxx X. Xxxxxxxxx, Esquire
McCoy, Weaver, Xxxxxxx, Xxxxxxxxx & Xxxxx
000 Xxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
If to Employee:
Xxxxx X. Xxxx
000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Such notice shall be deemed to be received upon receipt or refusal, if
delivered by hand, or upon receipt or refusal as evidenced by the return
receipt therefor, if delivered by registered or certified mail.
16. Counterparts. This Agreement may be executed in any number
of counterparts, and each such counterpart hereof shall be deemed an
original instrument, but all such counterparts together shall constitute
but one agreement.
17. Entire Agreement. This Agreement and the other documents
attached hereto and incorporated herein by reference contain the entire
understanding and agreement of the parties, and there are no
agreements, promises, warranties, covenants or undertakings other
than those expressly set forth or referred to herein.
-13-
IN WITNESS WHEREOF, UCB has caused this Agreement to be
executed by its duly authorized officer in pursuance of authority
duly given by its Board of Directors, and Employee has set hereunto
his hand and adopted as his seal the typewritten word "SEAL" appearing
beside his name, all as of the day and year first above written.
UNITED CAROLINA BANK
By: _________________________
Xxxxx X. Xxxxxx
Executive Vice President
EMPLOYEE:
_________________________(SEAL)
Xxxxx X. Xxxx
-14-
