EXHIBIT 10.1
STATE OF NORTH CAROLINA
COUNTY OF UNION
EMPLOYMENT AGREEMENT
THIS AGREEMENT entered into as of ___________________, 19____ by and
between AMERICAN COMMUNITY BANK (hereinafter referred to as the "Bank") and
XXXXX X. XXXXXX (hereinafter referred to as "Xxxxxx").
W I T N E S S E T H:
WHEREAS, the expertise and experience of Xxxxxx and his relationships
and reputation in the financial institutions industry are extremely valuable to
the Bank; and
WHEREAS, it is in the best interests of the Bank and its shareholders
to maintain an experienced and sound executive management team to manage the
Bank and to further the Bank's overall strategies to protect and enhance the
value of its shareholders' investments; and
WHEREAS, the Bank and Xxxxxx desire to enter into this Agreement to
establish the scope, terms and conditions of Xxxxxx'x employment by the Bank;
and
WHEREAS, the Bank and Xxxxxx desire to enter into this Agreement also
to provide Xxxxxx with security in the event of a change of control of the Bank
and to insure the continued loyalty of Xxxxxx during any such change of control
in order to maximize shareholder value as well as the continued safe and sound
operation of the Bank.
NOW, THEREFORE, for and in consideration of the premises and mutual
promises, covenants and conditions hereinafter set forth, and other good and
valuable considerations, the receipt and sufficiency of which hereby are
acknowledged, the Bank and Xxxxxx hereby agree as follows:
1. EMPLOYMENT. The Bank hereby agrees to employ Xxxxxx, and
Xxxxxx hereby agrees to serve as an officer of the Bank, all upon the terms and
conditions stated herein. As an officer of the Bank, Xxxxxx will (i) serve as
President and Chief Executive Officer of the Bank, and (ii) have such other
duties and responsibilities, and render to the Bank such other management
services, as are customary for persons in Xxxxxx'x position with the Bank or as
shall otherwise be reasonably assigned to him from time to time by the Bank.
Xxxxxx shall faithfully and diligently discharge his duties and responsibilities
under this Agreement and shall use his best efforts to implement the policies
established by the Bank. Xxxxxx hereby agrees to devote such number of hours of
his working time and endeavors to the employment granted hereunder
as Xxxxxx and the Bank shall deem to be necessary to discharge his duties
hereunder, and, for so long as employment hereunder shall exist, Xxxxxx shall
not engage in any other occupation which requires a significant amount of
Xxxxxx'x personal attention during the Bank's regular business hours or which
otherwise interferes with Xxxxxx'x attention to or performance of his duties and
responsibilities as an officer of the Bank hereunder except with the prior
written consent of the Bank. However, nothing herein contained shall restrict or
prevent Xxxxxx from personally, and for Xxxxxx'x own account, trading in stocks,
bonds, securities, real estate or other forms of investment for Xxxxxx'x own
benefit so long as said activities do not interfere with Xxxxxx'x attention to
or performance of his duties and responsibilities as an officer of the Bank
hereunder.
During the term of this Agreement, Xxxxxx shall be allowed, in
his sole discretion, to maintain his primary work location in Monroe, North
Carolina.
2. COMPENSATION. For all services rendered by Xxxxxx to the
Bank under this Agreement, the Bank shall pay Xxxxxx a base salary at a rate of
One Hundred Ten Thousand Dollars and 00/100's ($110,000.00) per annum; provided
that the rate of such salary shall be reviewed by the Board of directors not
less often than annually. Salary paid under this Agreement shall be payable in
cash not less frequently than monthly. All compensation hereunder shall be
subject to customary withholding taxes and such other employment taxes as are
required by law. In the event of a Change in Control (as defined in Paragraph
8), Xxxxxx'x base salary shall be increased not less than six percent (6%.)
annually during the term of this Agreement.
3. PARTICIPATION IN RETIREMENT AND EMPLOYEE BENEFIT PLANS;
FRINGE BENEFITS. Subject to the terms and conditions of this Agreement, Xxxxxx
shall be entitled to participate in any and all employee benefit programs and
compensation plans from time to time maintained by the Bank and available to all
employees of the Bank, all in accordance with the terms and conditions
(including eligibility requirements) of such programs and plans of the Bank,
resolutions of the Bank's Board of Directors establishing such programs and
plans, and the Bank's normal practices and established policies regarding such
programs and plans.
In addition to the other compensation and benefits described
in this Agreement, the Bank shall :
(i) Provide Xxxxxx with three weeks of paid vacation leave
notwithstanding the policy of the Bank for all other employees and a fourth week
at the discretion of the
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Compensation Committee of the Board of Directors. Further, in the event of a
Change in Control (as defined in Paragraph 8), Xxxxxx shall be entitled to six
weeks paid vacation per year;
(ii) The Bank shall assume payment of Xxxxxx'x civic club dues
and the dues of Rolling Hills Country Club, Monroe, North Carolina provided that
Xxxxxx shall be responsible for all personal expenses for use of such clubs;
(iii) The Bank shall reimburse Xxxxxx for all reasonable
expenses incurred by him in the performance of his duties under this Agreement
and documented to the reasonable satisfaction of the Bank pursuant to
established policies;
(iv) The Bank shall provide Xxxxxx and his immediate family
major medical insurance coverage at no cost to Xxxxxx which will be a policy at
least equivalent to the major medical insurance coverage generally provided to
active full-time employees of the Bank from time to time; and
(v) The Bank shall provide Xxxxxx, for his personal and
business use, with a late model automobile as determined by the Compensation
Committee or with a car allowance, in the discretion of Xxxxxx. The automobile
shall be replaced every two years by another automobile, the costs of which
shall be assumed by the Bank as provided herein. The Bank shall assume the costs
associated with ownership of such automobile, including, but not limited to,
taxes, insurance, and maintenance, provided, however, that Xxxxxx shall be
responsible for fuel expenses incurred with his personal use of the automobile.
4. TERM. Unless sooner terminated as provided in this
Agreement and subject to the right of either Xxxxxx or the Bank to terminate
Xxxxxx'x employment at any time as provided herein, the initial term of this
Agreement and Xxxxxx'x employment with the Bank hereunder shall be for a period
commencing on the date hereof and continuing for a period of five (5) years. At
the end of each year during the term of this Agreement, the term of this
Agreement shall automatically be extended for an additional one year period
unless written notice from the Bank or Xxxxxx is received 30 days prior to such
date notifying the other party that this Agreement shall not be further
extended; provided further that the Board of Directors shall annually review
Xxxxxx'x performance and shall make a specific determination pursuant to such
review to permit this Agreement to renew annually.
5. CONFIDENTIALITY. Xxxxxx hereby acknowledges and agrees that
(i) in the course of his service as an officer of the Bank, he will gain
substantial knowledge of and
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familiarity with the Bank's customers and its dealings with them, and other
information concerning the Bank's business, all of which constitutes valuable
assets and privileged information that is particularly sensitive due to the
fiduciary responsibilities inherent in the banking business; and, ii) in order
to protect the Bank's interest in and to assure it the benefit of its business,
it is reasonable and necessary to place certain restrictions on Xxxxxx'x ability
to compete against the Bank and on his disclosure of information about the
Bank's business and customers. For that purpose, and in consideration of the
Bank's agreements contained herein, Xxxxxx covenants and agrees as provided
below.
For the purposes of this Paragraph 5, the following terms
shall have the meanings set forth below:
CUSTOMER. The term "Customer" means any
Person with whom, as of the effective date of termination of this Agreement or
Xxxxxx'x employment with the Bank for any reason, the Bank has or has had a
depository, loan and/or other banking relationship.
FINANCIAL INSTITUTION. The term "Financial Institution" means
any federal or state chartered bank, savings bank, savings and loan association
or credit union, or any holding company for or corporation that owns or controls
any such entity, or any other Person engaged in the business of making loans of
any type or receiving deposits, other than the Bank.
PERSON. The term "Person" means any natural
person or any corporation, partnership, proprietorship, joint venture, limited
liability company, trust, estate, governmental agency or instrumentality,
fiduciary, unincorporated association or other entity.
(A) CONFIDENTIALITY COVENANT. Xxxxxx covenants and
agrees that any and all data, figures, projections, estimates, lists, files,
records, documents, manuals or other such materials or information (financial or
otherwise) relating to the Bank and its banking business, regulatory
examinations, financial results and condition, lending and deposit operations,
customers (including lists of the Bank's customers and information regarding
their accounts and business dealings with the Bank), policies and procedures,
computer systems and software, shareholders, employees, officers and directors
(herein referred to as "Confidential Information") are proprietary to the Bank
and are valuable, special and unique assets of the Bank's business to which
Xxxxxx will have access during his employment with the Bank. Xxxxxx agrees that
(i) all such Confidential Information shall be considered and kept as the
confidential, private and privileged records and information of the Bank, and
(ii) at all times during the term of his
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employment with the Bank and 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 Xxxxxx of his duties on behalf of the Bank or otherwise pursuant
to the direct, written authorization of the Bank, Xxxxxx will not: divulge any
such Confidential Information to any other Person or Financial Institution;
remove any such Confidential Information in written or other recorded form from
the Bank's premises; or make any use of any Confidential Information for his own
purposes or for the benefit of any Person or Financial Institution other than
the Bank. However, following the termination of Xxxxxx'x employment with the
Bank, this subparagraph (b) shall not apply to any Confidential Information
which then is in the public domain (provided that Xxxxxx was not responsible,
directly or indirectly, for permitting such Confidential Information to enter
the public domain without the Bank's consent), or which is obtained by Xxxxxx
from a third party which or who is not obligated under an agreement of
confidentiality with respect to such information.
(B) REMEDIES FOR BREACH. Xxxxxx understands and
agrees that a breach or violation by him of the covenants contained in Paragraph
5(a) of this Agreement will be deemed a material breach of this Agreement and
will cause irreparable injury to the Bank, and that it would be difficult to
ascertain the amount of monetary damages that would result from any such
violation. In the event of Xxxxxx'x actual or threatened breach or violation of
the covenants contained in Paragraph 5 (a) , the Bank shall be entitled to bring
a civil action seeking an injunction restraining Xxxxxx from violating or
continuing to violate those covenants or from any threatened violation thereof,
or for any other legal or equitable relief relating to the breach or violation
of such covenant. Xxxxxx agrees that, if the Bank institutes any action or
proceeding against Xxxxxx 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, Xxxxxx shall be deemed to have waived the claim or defense that
the Bank has an adequate remedy at law and shall not urge in any such action or
proceeding the claim or defense that such a remedy at law exists. However, the
exercise by the Bank of any such right, remedy, power or privilege shall not
preclude the Bank or its successors or assigns from pursuing any other remedy or
exercising any other right, power or privilege available to it for any such
breach or violation, whether at law or in equity, including the recovery of
damages, all of which shall be cumulative and in addition to all other rights,
remedies, powers or privileges of the Bank.
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Notwithstanding anything contained herein to the
contrary, Xxxxxx agrees that the provisions of Paragraph 5(a) above and the
remedies provided in this Paragraph 5(b) for a breach by Xxxxxx shall be in
addition to, and shall not be deemed to supersede or to otherwise restrict,
limit or impair the rights of the Bank under the Trade Secrets Protection Act
contained in Article 24, Chapter 66 of the North Carolina General Statutes, or
any other state or federal law or regulation dealing with or providing a remedy
for the wrongful disclosure, misuse or misappropriation of trade secrets or
other proprietary or confidential information.
(C) SURVIVAL OF COVENANTS. Xxxxxx'x covenants and
agreements and the Bank's rights and remedies provided for in this Paragraph 5
shall survive any termination of this Agreement or Xxxxxx'x employment with the
Bank.
6. TERMINATION AND TERMINATION PAY.
(A) Xxxxxx'x employment under this Agreement may be
terminated at any time by Xxxxxx upon sixty (60) days written notice to the
Bank. Upon such termination, Xxxxxx shall be entitled to receive compensation
through the effective date of such termination; provided, however, that the
Bank, in its sole discretion, may elect for Xxxxxx not to serve out part or all
of said notice period.
(B) Xxxxxx'x employment under this Agreement shall be
terminated upon the death of Xxxxxx during the term of this Agreement. Upon any
such termination, Xxxxxx estate shall be entitled to receive any compensation
due to Xxxxxx computed through the last day of the calendar month in which his
death shall have occurred but which remains unpaid.
(C) In the event Xxxxxx becomes disabled during the
term of his employment hereunder and it is determined by the Bank that Xxxxxx is
permanently unable to perform his duties under this Agreement, the Bank shall
continue to compensate Xxxxxx at the level of compensation described in
Paragraph 2 above, and shall continue to provide Xxxxxx each of the other
benefits set forth or described in this Agreement, for the remaining term of
this Agreement, less any other payments provided under any disability income
plan of the Bank which is applicable to Xxxxxx. In the event of any disagreement
between Xxxxxx and the Bank as to whether Xxxxxx is physically or mentally
incapacitated such as will result in the termination of Xxxxxx'x employment
pursuant to this Paragraph 6(c), the question of such incapacity shall be
submitted to an impartial and reputable physician for determination, selected by
mutual agreement of Xxxxxx and the Bank or, failing such agreement, by two (2)
physicians (one (1) of
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whom shall be selected by the Bank and the other by Xxxxxx), and such
determination of the question of such incapacity by such physician or physicians
shall be final and binding on Xxxxxx and the Bank. The Bank shall pay the
reasonable fees and expenses of such physician or physicians in making any
determination required under this Paragraph 6 (c) .
(D) The Bank may terminate Xxxxxx'x employment at any
time for any reason with or without "Cause" (as defined below), but any
termination by the Bank other than termination for "Cause", (as defined below)
shall not prejudice Xxxxxx'x right to compensation or other benefits under this
Agreement for its remaining term. Following any termination of Xxxxxx'x
employment by the Bank for "Cause", Xxxxxx shall have no further rights under
this Agreement (including any right to receive compensation or other benefits
for any period after such termination).
For purposes of this Paragraph 6 (d) , the Bank shall have
"Cause" to terminate Xxxxxx'x employment upon:
(I) A determination by the Bank, in good faith, that
Xxxxxx (A) has breached in any material respect any of the terms or conditions
of this Agreement, or (B) is engaging or has engaged in willful misconduct or
conduct which is detrimental to the business prospects of the Bank or which has
had or likely will have a material adverse effect on the Bank's business or
reputation. Prior to any termination by the Bank of Xxxxxx'x employment for a
breach, failure to perform or conduct described in this subparagraph (i), the
Bank shall give Xxxxxx written notice which describes such breach, failure to
perform or conduct and if during a period of five business (5) days following
such notice Xxxxxx cures or corrects the same to the reasonable satisfaction of
the Bank, then this Agreement shall remain in full force and effect. However,
notwithstanding the above, if the Bank has given written notice to Xxxxxx on a
previous occasion of the same or a substantially similar breach, failure to
perform or conduct, or of a breach, failure to perform or conduct which the Bank
determines in good faith to be of substantially similar import, or if the Bank
determines in good faith that the then current breach, failure to perform or
conduct is not reasonably curable, then termination under this subparagraph (i)
shall be effective immediately and Xxxxxx shall have no right to cure such
breach, failure to perform or conduct.
(II) The violation by Xxxxxx of any
applicable federal or state law, or any applicable rule, regulation, order or
statement of policy promulgated by any
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governmental agency or authority having jurisdiction over the Bank or any of its
affiliates or subsidiaries (a "Regulatory Authority", including without
limitation the Federal Deposit Insurance Corporation, the North Carolina
Commissioner of Banks or any other banking regulator having legal jurisdiction
over the Bank), which results from Xxxxxx'x gross negligence, willful misconduct
or intentional disregard of such law, rule, regulation, order or policy
statement and results in any substantial damage, monetary or otherwise, to the
Bank or any of its affiliates or subsidiaries or to the Bank's reputation;
(III) The commission in the course of
Xxxxxx'x employment with the Bank of an act of fraud, embezzlement, theft or
proven personal dishonesty (whether or not resulting in criminal prosecution or
conviction);
(IV) The conviction of Xxxxxx 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 Xxxxxx from serving as
an employee or executive officer of, or a party affiliated with, the Bank or its
bank holding company;
(V) Xxxxxx becomes unacceptable to, or is
removed, suspended or prohibited from participating in the conduct of the Bank's
affairs (or if proceedings for that purpose are commenced) by any Regulatory
Authority; and,
(VI) The occurrence of any event believed by
the Bank, in good faith, to have resulted in Xxxxxx being excluded from
coverage, or having coverage limited as to Xxxxxx as compared to other covered
officers or employees, under the Bank's then current "blanket bond" or other
fidelity bond or insurance policy covering its directors, officers or employees.
7. ADDITIONAL REGULATORY REQUIREMENTS. Notwithstanding
anything contained in this Agreement to the contrary, it is understood and
agreed that the Bank (or its successors in interest) shall not be required to
make any payment or take any action under this Agreement if (A) the Bank is
declared by any Regulatory Authority to be insolvent, in default or operating in
an unsafe or unsound manner, or if (B) in the opinion of counsel to the Bank
such payment or action (I) would be prohibited by or would violate any provision
of state or federal law applicable to the Bank, including without limitation the
Federal Deposit Insurance Act and Chapter 53 of the North Carolina General
Statutes as now in effect or hereafter amended, (II)
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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.
8. CHANGE IN CONTROL
(A) In the event of a "Change in Control" (as defined
in Subparagraph (d) below), of the Bank, Xxxxxx shall be entitled to terminate
this Agreement upon the occurrence within twenty-four (24) months following a
change in control of any Termination Event as defined in Subparagraph (b) below.
(B) A Termination Event shall mean the occurrence
of any of the following events:
(i) Xxxxxx is assigned any duties and/or
responsibilities that are inconsistent with
his position, duties, responsibilities, or
status at the time of the Change in Control
or with his reporting responsibilities or
titles with the Bank in effect at such time;
(ii) Xxxxxx'x annual base salary is reduced
below the amount in effect as of the
effective date of a Change in Control or as
the same shall have been increased from time
to time following such effective date;
(iii) Xxxxxx'x life insurance, medical or
hospitalization insurance, disability
insurance, dental insurance, stock option
plans, stock purchase plans, deferred
compensation plans, management retention
plans, retirement plans, or similar plans or
benefits being provided by the Bank to Xxxxxx
as of the effective date of the Change in
Control are reduced in their level, scope, or
coverage, or any such insurance, plans, or
benefits are eliminated, unless such
reduction or elimination applies
proportionately to all salaried employees of
the Bank who participated in such benefits
prior to such Change in Control; or
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(iv) Xxxxxx is transferred to a location
outside of Monroe, North Carolina, without
Xxxxxx'x express written consent.
A Termination Event shall be deemed to have occurred
on the date such action or event is implemented or takes effect.
(C) In the event that Xxxxxx terminates this
Agreement or the Bank terminates this Agreement pursuant to this Paragraph 8,
the Bank will be obligated to pay or cause to be paid to Xxxxxx all amounts due
and owing to the end of the term of this Agreement and an amount equal to two
hundred ninety-nine percent (299%) of Xxxxxx'x "base amount" as defined in
Section 28OG(b) (3) (A) of the Internal Revenue Code of 1986, as amended (the
"Code") .
(D) For the purposes of this Agreement, the term
Change in Control shall mean any of the following events:
(i) After the effective date of this
Agreement, any "person" (as such term is
defined in Section 7 (j) (8) (A) of the
Change in Bank Control Act of 1978) ,
directly or indirectly, acquires beneficial
ownership of voting stock, or acquires
irrevocable proxies or any combination of
voting stock and irrevocable proxies,
representing twenty-five percent (25%) or
more of any class of voting securities of the
Bank, or acquires control of in any manner
the election of a majority of the directors
of the Bank;
(ii) The Bank consolidates or merges with or
into another corporation, association, or
entity, or is otherwise reorganized, where
the Bank is not the surviving corporation in
such transaction; or
(iii) All or substantially all of the assets
of the Bank are sold or otherwise transferred
to or are acquired by any other corporation,
association, or other person, entity, or
group.
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Notwithstanding the other provisions of this
Paragraph 8, a transaction or event shall not be considered a Change in Control
if, prior to the consummation or occurrence of such transaction or event, Xxxxxx
and the Bank agree in writing that the same shall not be treated as a Change in
Control for purposes of this Agreement.
(E) Amounts payable pursuant to this Paragraph 8
shall be paid, at the option of Xxxxxx either in one lump sum or in equal
monthly payments over the remaining term of this Agreement.
(F) Following a Termination Event which gives rise to
Xxxxxx'x rights hereunder, Xxxxxx shall have twenty-four (24) months from the
date of occurrence of the Termination Event to terminate this Agreement pursuant
to this Paragraph 8. Any such termination shall be deemed to have occurred only
upon delivery to the Bank or any successor thereto, of written notice of
termination which describes the Change in Control and Termination Event. If
Xxxxxx does not so terminate this Agreement within such twenty-four month
period, Xxxxxx shall thereafter have no further rights hereunder with respect to
that Termination Event, but shall retain rights, if any, hereunder with respect
to any other Termination Event as to which such period has not expired.
(G) It is the intent of the parties hereto that all
payments made pursuant to this Agreement be deductible by the Bank for federal
income tax purposes and not result in the imposition of an excise tax on Xxxxxx.
Notwithstanding anything contained in this Agreement to the contrary, any
payments to be made to or for the benefit of Xxxxxx which are deemed to be
"parachute payments" as that term is defined in Section 28OG(b) (2) of the Code,
shall be modified or reduced to the extent deemed to be necessary by the Bank's
Board of Directors to avoid the imposition of an excise tax on Xxxxxx under
Section 4999 of the Code or the disallowance of a deduction to the Bank under
Section 28OG(a) of the Code.
(H) In the event any dispute shall arise between Xxxxxx and
the Bank as to the terms or interpretation of this Agreement, including this
Paragraph 8, whether instituted by formal legal proceedings or otherwise,
including any action taken by Xxxxxx to enforce the terms of this Paragraph 8 or
in defending against any action taken by the Bank, the Bank shall reimburse
Xxxxxx for all costs and expenses, proceedings or actions, in the event Xxxxxx
prevails in any such action.
9. SUCCESSORS AND ASSIGNS.
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(A) This Agreement shall inure to the benefit of and
he binding upon any corporate or other successor of the Bank which shall
acquire, directly or indirectly, by conversion, merger, consolidation, purchase
or otherwise, all or substantially all of the assets of the Bank.
(B) The Bank is contracting for the unique and
personal skills of Xxxxxx. Therefore, Xxxxxx shall be precluded from assigning
or delegating his rights or duties hereunder without first obtaining the written
consent of the Bank.
10. MODIFICATION; WAIVER; AMENDMENTS. No provision of this
Agreement may be modified, waived or discharged unless such waiver, modification
or discharge is agreed to in writing and signed by the parties hereto. No waiver
by either party hereto, at any time, of any breach by the other party hereto of,
or compliance with, any condition or provision of this Agreement to be performed
by such other party shall be deemed a waiver of similar or dissimilar provisions
or conditions at the same or at any prior or subsequent time. No amendments or
additions to this Agreement shall be binding unless in writing and signed by
both parties, except as herein otherwise provided.
11. APPLICABLE LAW. This Agreement shall be governed in all
respects whether as to validity, construction, capacity, performance or
otherwise, by the laws of North Carolina, except to the extent that federal law
shall be deemed to apply.
12. SEVERABILITY. The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any provision shall
not affect the validity or enforceability of the other provisions hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement
under seal and in such form as to be binding as of the day and year first
hereinabove written.
AMERICAN COMMUNITY BANK
By: __________________________________________
_________________________________, Chairman
ATTEST:
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____________________, Secretary
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Xxxxx X. Xxxxxx
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