Exhibit 10.1
AGREEMENT
This Agreement ("Agreement") is made and entered into by XXXXX X. XXXXXXXX
("Xxxxxxxx") and CAPITAL BANK ("Bank"). Throughout the remainder of the
Agreement, Xxxxxxxx and the Bank may be collectively referred to as "the
parties."
The Bank currently employs Xxxxxxxx as Chief Credit Officer. Xxxxxxxx
desires to resign her employment effective April 25, 2005, and the Bank desires
to accept such resignation, on the terms as described herein.
In consideration of the above and the mutual promises set forth below, and
other valuable consideration to which Xxxxxxxx otherwise is not entitled, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. RESIGNATION. Xxxxxxxx tenders her resignation from any and all positions
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with the Bank and any of its affiliated entities including Capital Bank
Corporation, such resignation to be effective April 25, 2005, and the Bank
accepts such resignation.
2. SEVERANCE PAY. The Bank will pay Xxxxxxxx xxxxxxxxx pay in a gross
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amount of $152,500 (less applicable withholdings) payable in a lump sum on the
first regular payday after the revocation period set forth in paragraph 12 below
expires.
3. GROUP HEALTH/DENTAL. The Bank will reimburse Xxxxxxxx for the COBRA
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premiums that she actually pays to continue her coverage under the Bank's group
medical and dental plans during the 12 month period immediately following the
effective date of her resignation ("Severance Period") provided, however, that
if Xxxxxxxx becomes eligible for coverage under another employer's group health
plan(s), the Bank's obligation for reimbursement will cease on the date that
Xxxxxxxx becomes eligible for such other coverage. Nothing in this Agreement
shall constitute a guarantee of COBRA continuation coverage or benefits.
Xxxxxxxx shall be solely responsible for all obligations in electing COBRA
continuation coverage and taking all steps necessary to qualify for such
coverage.
4. ATTORNEY'S FEES. The Bank will issue a check payable to Xxxx Xxxxxxx,
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Esq. in the amount of $20,000 and issue a Form 1099.
5. ACCRUED VACATION. The Bank will pay Xxxxxxxx for any accrued but untaken
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2005 vacation days.
6. The compensation and benefits afforded under this Agreement are in lieu
of any other compensation or benefits, including but not limited to bonus or
incentive compensation, to which Xxxxxxxx otherwise might be entitled.
7. CORPORATION INFORMATION, PROPERTY AND ASSISTANCE. Xxxxxxxx shall not at
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any time after her employment terminates disclose, use or aid third parties in
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obtaining or using any confidential or proprietary Bank or Capital Bank
Corporation (collectively, for the purpose of this paragraph 7 and paragraph 9
below the "Corporation") information. Confidential or proprietary information is
information relating to the Corporation or any aspect of its business which is
not generally available to the public, the Corporation's competitors, or other
third parties, or ascertainable through common sense or general business or
technical knowledge. Nothing in this Agreement shall relieve Xxxxxxxx from any
obligations under any previously executed confidentiality, proprietary
information or secrecy agreements.
All records, files or other materials maintained by or under the control,
custody or possession of the Corporation or its agents in their capacity as such
shall be and remain the Corporation's property. Xxxxxxxx shall return all
Corporation property (including, but not limited to, credit cards; keys;
computer hardware and software; records, files, documents, company manuals, and
other documents in whatever form they exist, whether electronic, hard copy or
otherwise and all copies, notes or summaries thereof) which she received in
connection with her employment with the sole exception of the company car which
currently is assigned to her, the title to which the Bank will transfer to her
for no additional consideration.
Xxxxxxxx agrees to cooperate with and assist the Corporation in any way
that the Corporation may reasonably request. If requested by the Corporation,
this cooperation and assistance shall include, but shall not be limited to,
assisting in the transition of Xxxxxxxx'x duties and responsibilities to others;
meeting with Corporation advisors and representatives; providing complete and
truthful information regarding her employment with the Corporation and other
matters arising during her employment with the Corporation or concerning any
former or current employee of the Corporation; preparing for and attending
depositions, hearings, trials, administrative proceedings, and any other events
or meetings; and advising the Corporation as soon as possible (and confirmed in
writing) of any subpoena, deposition notice, or other court papers served on or
provided to Xxxxxxxx regarding the Corporation or any matter relating to
Xxxxxxxx'x employment with Corporation; and of any efforts made by persons other
than the Corporation or its legal advisors to contact Xxxxxxxx regarding any
matters involving the Corporation. Corporation agrees to reimburse Xxxxxxxx for
the travel, lodging, and other reasonable actual out-of-pocket expenses incurred
on account of Corporation's request for cooperation from Xxxxxxxx. Corporation
also shall reimburse Xxxxxxxx for documented loss of actual wages incurred on
account of Corporation's request for cooperation from Xxxxxxxx at any time
following the expiration of the Severance Period, on condition that, where
practicable, Xxxxxxxx provides immediate and advance notice in writing to
Corporation of the estimated amount of such loss of wages.
8. NON-SOLICITATION. Xxxxxxxx expressly covenants and agrees that she shall
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not, without the prior consent of the Bank, for the Severance Period, on her own
or another's behalf, whether as an officer, director, stockholder, partner,
associate, owner, employee, consultant or otherwise, directly or indirectly:
(i) solicit or do business that is the same, similar to, or otherwise in
competition with the business engaged in by the Bank from or with persons or
entities who are customers of the Bank or who were customers of the Bank at any
time during the last year of Xxxxxxxx'x employment with the Bank; or
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(ii) employ, offer employment to, or otherwise solicit for employment,
any employee or other person who is then currently an employee of the Bank or
who was employed by the Bank during the last year of Xxxxxxxx'x employment with
the Bank.
9. CONFIDENTIALITY AND NONDISPARAGEMENT. The parties have not disclosed,
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and going forward will not disclose, the terms and conditions of this Agreement
to third parties, except as required by law. Notwithstanding the above, Xxxxxxxx
may reveal the terms and provisions of this Agreement only to members of her
immediate family or to an attorney, tax or financial advisors whom she may
consult for legal, tax or financial advice and the Corporation may only make
such disclosures to Corporation personnel and advisors as may be necessary for
such persons to perform their duties for the Corporation. Xxxxxxxx represents
and warrants that since receiving this Agreement, she (i) has not made, and
going forward will not make, disparaging, defaming or derogatory remarks about
the Corporation or its services, business practices, directors, officers,
managers or employees to anyone; nor (ii) taken, and going forward will not
take, any action that may impair the relations between the Corporation and its
vendors, customers, employees, or agents or that may be detrimental to or
interfere with, the Corporation or its business. The Bank represents that since
receiving this Agreement, it has not made, and going forward will not make,
disparaging, defaming or derogatory remarks about Xxxxxxxx.
10. INDEMNITY. Bank shall, to the fullest extent allowed under North
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Carolina law, indemnify and hold harmless Xxxxxxxx of and from any and all
liabilities, claims, losses, lawsuits, proceedings, demands, and costs
(including reasonable attorneys' fees, costs, and expenses) incurred by Xxxxxxxx
by reason of any claim or cause of action brought or asserted against Xxxxxxxx
that arises out of or relates to Xxxxxxxx'x performance of her duties as Chief
Credit Officer at any time while in the Bank's employ. Xxxxxxxx or the Bank may
recommend defense counsel, but the Bank reserves the right to approve of any
defense counsel retained by Xxxxxxxx in connection with this paragraph, which
consent shall not be unreasonably withheld. It is agreed that if Xxxxxxxx wishes
to retain separate counsel to represent her at any depositions, hearings,
trials, administrative hearings and other events or meetings referred to in
paragraph 7, such separate counsel will be provided by the Bank pursuant to this
paragraph 10. Any request for indemnity or counsel must be submitted in writing
to the Chairman of the Board of Directors of the Bank.
11. RELEASE. In consideration of the benefits conferred by this Agreement,
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XXXXXXXX (ON BEHALF OF HERSELF AND HER ASSIGNS, HEIRS AND OTHER REPRESENTATIVES)
RELEASES THE BANK, ITS PREDECESSORS, SUCCESSORS AND ASSIGNS AND ITS AND/OR THEIR
PAST, PRESENT AND FUTURE OWNERS, PARENTS, SUBSIDIARIES, AFFILIATES,
PREDECESSORS, SUCCESSORS, ASSIGNS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES,
EMPLOYEE BENEFIT PLANS (TOGETHER WITH ALL PLAN ADMINISTRATORS, TRUSTEES,
FIDUCIARIES AND INSURERS) AND AGENTS ("RELEASEES") FROM ALL CLAIMS AND WAIVES
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ALL RIGHTS KNOWN OR UNKNOWN, SHE MAY HAVE OR CLAIM TO HAVE RELATING TO HER
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EMPLOYMENT WITH THE BANK, ITS PREDECESSORS, SUBSIDIARIES OR AFFILIATES OR HER
SEPARATION
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THEREFROM arising before the execution of the Agreement, including but not
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limited to claims: (i) for discrimination, harassment or retaliation arising
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under federal, state or local laws prohibiting age (including but not limited to
claims under the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, and Older Workers Benefit Protection Act of 1990 (OWBPA)), sex,
national origin, race, religion, disability, veteran status or other protected
class discrimination, harassment or retaliation for protected activity; (ii) for
compensation and benefits (including but not limited to claims under the
Employee Retirement Income Security Act of 1974, as amended, ("ERISA"), Fair
Labor Standards Act of 1934 (FLSA), as amended, and similar federal, state, and
local law; (iii) under federal, state or local law of any nature whatsoever
(including but not limited to constitutional, statutory, tort, express or
implied contract or other common law); and (iv) for attorneys' fees.
Xxxxxxxx will not xxx Releasees on any of the released claims or join as a
party with others who may xxx on any such claims and if Xxxxxxxx does not abide
by this provision, then she will return all monies received under this Agreement
and indemnify Releasees for all expenses they incur in defending the action.
Additionally, Releasees will be relieved of its obligations hereunder. This
covenant not to xxx will apply to all released claims, except where prohibited
by law.
The Bank, on behalf of itself, its predecessors, successors and assigns,
releases Xxxxxxxx from all claims, known or unknown, it may have, or claim to
have, against her relating to her employment with the Bank and agrees not to xxx
Xxxxxxxx on any such claims. If the Bank does not abide by this provision, it
will indemnify Xxxxxxxx for all expenses in defending the action and Xxxxxxxx
will be relieved of her obligations hereunder. This covenant not to xxx will
apply to all released claims, except where prohibited by law.
12. RIGHT TO REVIEW AND REVOKE. The Bank delivered this Agreement to
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Xxxxxxxx on April 25, 2005, and desires that she have adequate time and
opportunity to review and understand the consequences of entering into it.
Accordingly, the Bank advises her to consult with her attorney prior to
executing it and that she has 21 days within which to consider it. Xxxxxxxx may
revoke the Agreement during the seven (7) day period immediately following her
execution of it. To revoke the Agreement, a written notice of revocation must be
delivered to Xxxxx Xxxxxx, CEO, Capital Bank, 0000 Xxxxxxxx Xxxxxx, Xxxxxxx, XX
00000.
13. REMEDIES. Xxxxxxxx acknowledges that her material breach of paragraphs
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7, 8, 9 and 11 could cause irreparable harm to the Bank for which legal remedies
would be inadequate. Therefore, in addition to any legal or other relief to
which the Bank may be entitled by virtue of Xxxxxxxx'x material breach of these
paragraphs: (i) the Bank will be released of its obligation under this Agreement
to make any payments to Xxxxxxxx; (ii) the Bank may seek legal and equitable
relief, including but not limited to preliminary and permanent injunctive
relief; (iii) Xxxxxxxx will return all payments received pursuant to this
Agreement; and (iv) Xxxxxxxx will indemnify the Bank for all expenses, including
attorneys' fees, in seeking to enforce these paragraphs. In the event that the
Bank exercises its rights to discontinue payments under this paragraph, Xxxxxxxx
shall remain obligated to abide by the other provisions set forth in this
Agreement.
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14. OTHER. Except as expressly provided in this Agreement, this Agreement
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supersedes all other understandings and agreements, oral or written, between the
parties and constitutes the sole agreement between the parties with respect to
its subject matter. Each party acknowledges that no representations,
inducements, promises or agreements, oral or written, have been made by any
party or by anyone acting on behalf of any party, which are not embodied in this
Agreement and no agreement, statement or promise not contained in the Agreement
shall be valid or binding on the parties unless such change or modification is
in writing and is signed by the parties. Xxxxxxxx'x or the Bank's waiver of any
breach of a provision of this Agreement shall not waive any subsequent breach by
the other party. If a court of competent jurisdiction holds that any provision
or sub-part thereof contained in this Agreement is invalid, illegal or
unenforceable, that invalidity, illegality or unenforceability shall not affect
any other provision in this Agreement.
This Agreement is intended to avoid all litigation relating to Xxxxxxxx'x
employment with the Bank and her separation therefrom; therefore, it is not to
be construed as either party's admission of any liability to the other -
liability which both parties deny.
This Agreement shall apply to, be binding upon and inure to the benefit of
the parties' successors, assigns, heirs and other representatives and be
governed by North Carolina law and the applicable provisions of federal law,
including but not limited to ADEA.
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IN WITNESS WHEREOF, the parties have entered into this Agreement on the day
and year written below.
XXXXXXXX REPRESENTS THAT SHE HAS CAREFULLY READ THE ENTIRE AGREEMENT,
UNDERSTANDS ITS CONSEQUENCES, AND VOLUNTARILY ENTERS INTO IT.
/s/ Xxxxx Xxxxxxxx 04/26/05
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XXXXX X. XXXXXXXX Date
CAPITAL BANK
By: /s/ B. Xxxxx Xxxxxx 04/26/05
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Date
Title: President & CEO
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