AGREEMENT
THIS AGREEMENT entered into this 18th day of December 1997,
by and between Cooperative Bank for Savings, Inc., SSB,
(hereinafter referred to as the "Bank") and X. X. Xxxxxxx, Xx.
(hereinafter referred to as the "Employee").
WHEREAS, the Employee has heretofore been employed by the
Bank as Executive Vice-President and Chief Operating Officer;
and
WHEREAS, the Bank deems it to be in its best interest to
enter into this Agreement as additional incentive to the
Employee to continue as an executive employee of the Bank; and
WHEREAS, the parties desire by this writing to set forth
their understandings as to their respective rights and
obligations in the event of termination of Employee's
employment under the circumstances set forth in this Agreement.
NOW, THEREFORE, it is AGREED as follows:
1. PAYMENT IN THE EVENT OF CHANGE IN CONTROL.
(a) In the event of the involuntary termination of
Employee's employment with the Bank in connection with, or
within one year after, any change in control of the Bank,
Employee shall be paid an amount equal to one times the total
cash compensation paid to such Employee during the 12 month
period preceding such termination, but in no event in an amount
greater than the product of 2.99 and the Employee's "base
amount" as defined in Section 280G(b)(3) of the Internal Revenue
Code of 1986, as amended. Said sum shall be paid in one lump
sum within thirty (30) days of such termination. The term
"control" shall refer to the ownership, holding or power to
vote more than 25% of the Bank's voting stock, the control of
the election of a majority of the Bank's directors, or the
exercise of a controlling influence over the management or
policies of the Bank by any person or by persons acting as a
group within the meaning of Section 13(d) of the Securities
Exchange Act of 1934; provided, however, that the term "control"
shall not include a transaction in which the Bank forms a
holding company without change in the respective beneficial
ownership interests of its stockholders other than pursuant to
the exercise of any dissenter and apppraisal rights. The term
"person" means an individual or a corporation, partnership,
trust, association, joint venture, pool, syndicate, sole
proprietorship, unincorporated organization or any other form
of entity not specifically listed herein.
(b) In the event of a change in control of the Bank,
and the occurrence of certain conditions to which the
Employee has not consented to in advance in writing as
hereinafter specified, or within thirty days thereafter,
Employee may voluntarily terminate his employment and payments
shall be made to the Employee in accordance with Paragraph
1(a) above. Said conditions shall be as follows: (i) if
Employee would be required to move his
personal residence or perform his principal executive functions
outside the metropolitan area of Wilmington, North Carolina;
(ii) if in the organizational structure of the Bank the Employee
would be required to report to a person or persons other than
the President; (iii) if the Bank should fail to maintain
employee benefit plans at levels at least equal to those
prevailing immediately prior to the date of the change of
control; (iv) if the Employee would be assigned duties and
responsibilities other than those normally associated with his
position as Executive Vice-President and Chief Operating
Officer; or (v) if the Employee's responsibilities or authority
have in anyway been diminished.
2. TERM. This Agreement shall remain in effect for so
long as the Employee remains in the employ of the Bank, and the
Employee's rights hereunder shall continue following the
termination of his employment with the Bank under any of the
circumstances described in Paragraphs 1(a) or (b) hereof.
3. REIMBURSEMENT OF EXPENSES. In the event any dispute
shall arise between the Employee and the Bank as to the terms or
interpretation of this Agreement, whether instituted by
formal legal proceedings or otherwise, including any action
taken by the Employee to enforce the terms hereof or in
defending against any action taken by the Bank, the Bank shall
reimburse the Employee for all costs and expenses, including
reasonable attorneys' fees, arising from such dispute,
proceedings or actions, if the ultimate outcome is substantially
in favor of the Employee. Such reimbursement shall be paid
within 10 days of Employee furnishing to the Bank written
evidence, which may be in the form, among other things, of a
canceled check or receipt, of any costs or expenses incurred by
the Employee. Any such request for reimbursement by the
Employee shall be made no more frequently than at 30 day
intervals.
4. REGULATORY REQUIREMENTS.
(a) The Board of Directors may terminate the
Employee's employment at any time, but any termination by the
Board of Directors other than termination for "Just Cause",
shall not prejudice the Employee's right to compensation or
other benefits under the Agreement. The Employee shall have no
right to receive compensation or other benefits for any period
after termination for "Just Cause". Termination for "Just
Cause" shall include termination because of the Employee's
personal dishonesty, incompetence, willful misconduct, breach
of fiduciary duty involving personal profit, intentional failure
to perform stated duties, willful violation of any law, rule or
regulation (other than traffic violations or similar offenses)
or final cease-and-desist order, or material breach of any
provision of the contract.
(b) If the Employee is suspended and/or temporarily
prohibited from participating in the conduct of the Bank's
affairs by a notice served under Section 8(e)(3) or (8)(1) of
the Federal Deposit Insurance Act ("FDIA") (12 U.S.C,.
1818(e)(3) and (g)(1)), the Bank's obligations under the
contract shall be suspended as of the date of service, unless
stayed by appropriate proceedings. If the charges in the
notice are dismissed, the Bank may in its discretion (i) pay the
Employee all or part of the compensation withheld while its
contract obligations were suspended and (ii) reinstate in whole
or in part) any of its obligations which were suspended.
(c) If the Employee is removed and/or permanently
prohibited from participating in the conduct of the Bank's
affairs by an order issued under Section 8(e)(4) or (g)(1) of
the FDIA (12 U.S.C. 1818(e)(4) or (g)(1)), all the obligations
of the Bank under the Agreement shall terminate as of the
effective date of the order, but vested rights of the
contracting parties shall not be affected.
(d) If the Bank is in default (as defined in
Section 3(x)(1) of the FDIA), all obligations under this
Agreement shall terminate as of the date of default, but this
subparagraph shall not affect any vested rights of the
contracting parties.
5. SUCCESSORS AND ASSIGNS.
(a) This Agreement shall be binding upon any
corporate or other successor of the Bank which shall acquire,
directly or indirectly by merger, consolidation, purchase or
otherwise, all or substantially all of the assets of the Bank.
(b) The Employee shall be precluded from assigning or
delegating his rights or duties hereunder without first
obtaining the written consent of the Bank.
6. AMENDMENTS. No amendments or additions to this
Agreement shall be binding unless in writing and signed by both
parties, except as herein otherwise provided.
7. APPLICABLE LAW. This Agreement shall be governed in
all respects whether as to validity, construction, capacity,
performance or otherwise, by the laws of the State of North
Carolina, except to the extent that Federal law shall be deemed
applicable.
8. 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 thereof.
9. NO GUARANTEE OF EMPLOYMENT. Nothing contained herein,
either expressed or implied, shall confer on the Employee any
guarantee or promise of continued employment with the Bank in
any capacity whatsoever, either prior to or following any
change in control of Bank, or otherwise.
IN WITNESS WHEREOF, the parties have executed this
Agreement on the day and year first hereinabove written.
COOPERATIVE BANK FOR SAVINGS,
INC., SSB
By:_____________________________
ATTEST:
_________________________
WITNESS:
_________________________ ______________________________
Employee
