EXHIBIT 10(IV)
STATE OF NORTH CAROLINA
COUNTY OF XXXXXX
EMPLOYMENT AGREEMENT
THIS AGREEMENT entered into as of January 1, 2003 by and between FIRST
XXXXXX BANK OF NORTH CAROLINA (hereinafter referred to as the "Bank") and W.
XXXX XXXX (hereinafter referred to as "Executive").
W I T N E S S E T H:
WHEREAS, the Bank desires to retain Executive's services as an officer of
the Bank for the period specified herein, and Executive is willing to serve as
an officer of the Bank for such period; and, the parties desire to enter into
this Agreement to set forth the terms and conditions of Executive's employment
with the Bank and intends, by entering into this Agreement, to supersede any
current employment agreement except the Deferred Compensation Agreement between
the Bank and Executive dated February 27, 1996.
NOW, THEREFORE, for and in consideration of the 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 Executive hereby agree as follows:
1. Employment. The Bank hereby agrees to employ Executive, and
Executive hereby agrees to serve as an officer of the Bank, upon the terms and
conditions stated herein. As an officer of the Bank, Executive 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 Executive's position with the Bank or
as shall otherwise be reasonably assigned to him from time to time by the Bank.
Executive 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. Executive hereby agrees to
devote such number of hours of his working time and endeavors to the employment
granted hereunder as Executive and the Bank shall deem to be necessary to
discharge his duties hereunder, and, for so long as employment hereunder shall
exist, Executive shall not engage in any other occupation which requires a
significant amount of Executive's personal attention during the Bank's regular
business hours or which otherwise interferes with Executive's 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 Executive from personally,
and for Executive's own account, trading in stocks, bonds, securities, real
estate or other forms of investment for Executive's own benefit so long as said
activities do not interfere with Executive's attention to or performance of his
duties and responsibilities as an officer of the Bank hereunder.
During the term of this Agreement, Executive shall be allowed, in his
sole discretion, to maintain his primary work location in Gastonia, North
Carolina.
2. Compensation and Benefits.
(a) Base Salary. For all services rendered by Executive to the
Bank under this Agreement, the Bank shall pay Executive a base salary at a rate
of One Hundred Seventy-Six Thousand Two Hundred Forty Five Dollars and 00/100's
($176,245.00) per annum ("Base Salary"); provided that the rate of such salary
shall be reviewed by the Board of directors annually and shall be increased
immediately after such review. Base 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.
(b) Incentive Plans. During the term of this Agreement
("Employment Period"), Executive shall be entitled to participate in all
incentive and bonus plans provided by the Bank or its holding company, United
Community Bancorp ("UCB"), including but not limited to, the United Community
Bancorp FGB Stock Option Plan, the United Community Bancorp FGB 1999 Incentive
Stock Option Plan, the Bank's Bonus Plan and any Long-Term Incentive Plan
("LTIP") the Bank has in place, in at least as favorable a manner as any other
senior executive employee of the Bank or UCB.
(c) Savings and Retirement Plans. During the Employment Period,
Executive shall be entitled to participate in all savings, pension and
retirement plans (including supplemental retirement plans), practices, policies
and programs applicable generally to senior executive employees of the Bank or
UCB, (the "Benefit Plans") and on at least as favorable a basis as any other
senior executive employee of the Bank or UCB. Without limiting the foregoing,
Benefit Plans shall include the Bank's 401(k) Savings Plan, the Bank's
Retirement Plan and any substitute and successor plan to any of the foregoing.
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(d) Welfare Benefit Plans. During the Employment Period,
Executive and/or Executive's family, as the case may be, shall be eligible for
participation in and shall receive all benefits under all welfare benefit plans,
practices, policies and programs provided by the Bank and UCB, (including,
without limitation, medical, hospitalization, prescription, dental, disability,
and group life insurance plans and programs) to the extent applicable generally
to senior executive employees of the Bank or UCB ("Welfare Benefit Plans"). In
addition, during the Employment Period, the Bank shall continue to maintain the
existing life insurance policy on the life of Executive which provides a benefit
of at least four (4) times the Executive's Base Salary, and the existing
disability insurance policy covering Executive which provides benefits in the
amount of at least seventy percent (70%) of Executive's salary. Upon and after
Executive's retirement, the Bank shall continue to provide to Executive all
benefits under such Welfare Benefit Plans, and such Welfare Benefit Plans shall
allow Executive's spouse to participate in such benefits at Executive's expense.
Notwithstanding anything else herein, disability benefits provided to the
Executive by the Bank shall be in addition to and not reduced by the Executive's
Medicaid, Medicare, and social security benefits.
(e) Automobile. During the Employment Period, the Bank shall
provide Executive, for his personal and business use, with a late model
automobile of his reasonable choosing, 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.
(f) Expenses. During the Employment Period, Executive shall be
entitled to receive prompt reimbursement for all reasonable expenses incurred by
Executive in accordance with the policies, practices and procedures of the Bank
or UCB, to the extent applicable generally to other senior executive officers of
the Bank or UCB.
(g) Fringe and Similar Benefits. During the Employment Period,
Executive shall be entitled to fringe benefits in accordance with the plans,
practices, programs and policies of the Bank and UCB, in effect for senior
executive employees of the Bank or UCB.
(h) Vacation, Sick and Other Leave. During the Employment Period,
Executive shall be entitled annually to a minimum of twenty (20) business days
of paid vacation, of which Executive's absence from the Bank on Saturdays is not
included, and shall be
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entitled to those number of business days of paid disability, sick and other
leave specified in the employment policies of the Bank.
3. Term. Unless sooner terminated as provided in this Agreement and
subject to the right of either Executive or the Bank to terminate Executive's
employment at any time as provided herein, the Employment Period and Executive's
employment with the Bank hereunder shall commence on the date hereof and
continue until December 31, 2003.
4. Confidentiality. Executive 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 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 Executive's 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,
Executive covenants and agrees as provided below.
For the purposes of this Paragraph 4, 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 Executive's 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.
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(a) Confidentiality Covenant. Executive 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
Executive will have access during his employment with the Bank. Executive 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 Employment Period 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 Executive of his duties on
behalf of the Bank or otherwise pursuant to the direct, written authorization of
the Bank, Executive 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 Executive's employment with the Bank, this subparagraph (a) shall
not apply to any Confidential Information which then is in the public domain
(provided that Executive 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 Executive from a third party which or
who is not obligated under an agreement of confidentiality with respect to such
information.
(b) Remedies for Breach. Executive understands and agrees that a
breach or violation by him of the covenants contained in Paragraph 4(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 Executive's actual or threatened breach or violation of the covenants
contained in Paragraph 4(a) , the Bank shall be entitled to bring a civil action
seeking
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an injunction restraining Executive 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.
Executive agrees that, if the Bank institutes any action or proceeding against
Executive 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, Executive 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.
Notwithstanding anything contained herein to the contrary,
Executive agrees that the provisions of Paragraph 4(a) above and the remedies
provided in this Paragraph 4(b) for a breach by Executive 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. Executive's covenants and agreements
and the Bank's rights and remedies provided for in this Paragraph 4 shall
survive any termination of this Agreement or Executive's employment with the
Bank.
5. Termination and Termination Pay.
(a) Executive's employment under this Agreement may be terminated
at any time by Executive upon sixty (60) days written notice to the Bank. Upon
such termination, Executive 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 Executive not to serve out part or all of said
notice period.
(b) Executive's employment under this Agreement shall be
terminated upon the death of Executive during the term of this Agreement. Upon
any such termination,
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Executive's estate shall be entitled to receive any compensation due to
Executive computed through the last day of the calendar month in which his death
shall have occurred but which remains unpaid.
(c) In the event Executive becomes disabled during the term of
his employment hereunder and it is determined by the Bank that Executive is
permanently unable to perform his duties under this Agreement, the Bank shall
continue to compensate Executive at the level of compensation described in
Paragraph 2 above, and shall continue to provide Executive each of the other
benefits set forth or described in this Agreement, for the remaining term of
Employment Period, less any other payments provided under any disability income
plan of the Bank or UCB, which is applicable to Executive. In the event of any
disagreement between Executive and the Bank as to whether Executive is
physically or mentally incapacitated such as will result in the termination of
Executive's employment pursuant to this Paragraph 5(c), the question of such
incapacity shall be submitted to an impartial and reputable physician for
determination, selected by mutual agreement of Executive and the Bank or,
failing such agreement, by two (2) physicians (one (1) of whom shall be selected
by the Bank and the other by Executive), and such determination of the question
of such incapacity by such physician or physicians shall be final and binding on
Executive 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 5(c) .
(d) The Bank may terminate Executive's 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 Executive's right to compensation or other benefits under this
Agreement for its remaining term. Following any termination of Executive's
employment by the Bank for "Cause", Executive 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 5(d) , the Bank shall have "Cause" to
terminate Executive's employment upon:
(i) A determination by the Bank, in good faith, that
Executive (A) has breached in any material respect any of the terms or
conditions of this Agreement, or (B) is
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engaging or has engaged in willful misconduct or conduct which is materially or
demonstrably injurious to the Bank or the Executive has shown a continued
failure to perform substantially Executive's duties with the Bank other than any
such failure resulting from disability For purposes of this provision, no act or
failure to act on the part of Executive shall be considered "willful" unless it
is done, or omitted to be done, by Executive in bad faith or without reasonable
belief that Executive's action or omission was in the best interests of the
Bank. Any act, or failure to act, based upon authority given pursuant to
resolutions duly adopted by the Board of Directors or based upon the advice of
counsel for the Bank shall be conclusively presumed to be done, or omitted to be
done, by Executive in good faith and in the interest of the Bank. Prior to any
termination by the Bank of Executive's employment for a breach, failure to
perform or conduct described in this subparagraph (i), the Bank shall give
Executive written notice which describes such breach, failure to perform or
conduct and if during a period of five business (5) days following such notice
Executive 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 Executive 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 Executive shall have no right to cure such
breach, failure to perform or conduct.
(ii) The violation by Executive 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 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 Executive'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 the Bank or any of its affiliates or subsidiaries or to the Bank's
reputation;
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(iii) The commission in the course of Executive's 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 Executive 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 Executive from serving as an
employee or executive officer of, or a party affiliated with, the Bank or UCB;
(v) Executive 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 Executive being excluded from coverage, or
having coverage limited as to Executive 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.
6. 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) 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.
7. Change in Control
(a) In the event of a "Change in Control" (as defined in
Subparagraph (d) below), of the Bank or UCB, Executive shall be entitled to
terminate this Agreement upon the
9
occurrence within twelve (12) 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) Executive 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) Executive's 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) Executive's 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
Executive 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
(iv) Executive is transferred to a location outside of
Gastonia, North Carolina, without Executive's 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 Executive terminates this Agreement or the
Bank terminates this Agreement pursuant to this Paragraph 7 (a "Change in
Control Termination"),
(i) The Bank shall pay to Executive in a lump sum in cash
within 30 days after the date of the Change in Control Termination ("Change in
Control Termination Date") the aggregate of the following amounts:
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(A) the sum of (1) Executive's Base Salary through the
Change in Control Termination Date to the extent not theretofore paid, (2) the
product of (x) Executive's aggregate cash bonus for the last completed fiscal
year, ("Most Recent Annual Bonus"), and (y) a fraction, the numerator of which
is the number of days in the current fiscal year through the Change in Control
Termination Date and the denominator of which is 365, and (3) any compensation
previously deferred by Executive (together with any accrued interest or earnings
thereon), excluding that provided under the Deferred Compensation Agreement
dated February 27, 1996, between Executive and the Bank, and any accrued
vacation pay, in each case to the extent not theretofore paid; and
(B) an amount equal to 2.99 times the total of
Executive's Base Salary and Most Recent Annual Bonus; and
(C) an amount equal to the excess of (a) the actuarial
equivalent of the benefits under the Bank's Benefit Plans that are qualified
defined benefit retirement plans (utilizing actuarial assumptions no less
favorable to Executive than those in effect under such Benefit Plans on the
Change in Control Termination Date) and any Benefit Plans that are excess or
supplemental retirement plans in which Executive participates which Executive
would receive if Executive's employment continued through the remainder of the
Employment Period, assuming for this purpose that all accrued benefits are fully
vested, and, assuming that Executive's compensation in each remaining year of
the Employment Period is the Base Salary plus the Most Recent Annual Bonus, over
(b) the actuarial equivalent of Executive's actual benefits (paid or payable),
if any, under such Benefit Plans as of the Change in Control Termination Date;
and
(ii) The Bank shall immediately grant, if not theretofore
granted for the fiscal year in which the Change in Control Termination Date
occurs, an award under any LTIP of the same type and in the same quantitative
amount as the most recent LTIP award to the Executive during the previous fiscal
year, which award shall be vested and non-forfeitable as of the Change of
Control Termination Date (assuming for calculation purposes that the
requirements necessary to entitle the Executive to such an award for such fiscal
year have
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been met) and shall be exercisable on and after the first day subsequent to the
six (6) months following the date of grant; and
(iii) The Bank shall immediately grant, if not therefore
granted for the fiscal year in which the Change in Control Termination occurs,
an award under any incentive plan of the same type and in the same quantitative
amount as awarded in the previous year, which award shall be distributed as of
the Change in Control Termination Date (assuming for calculation purposes that
the requirements necessary to entitle the Executive to such an amount for such
fiscal year have been met); and
(iv) for the number of days remaining in the Employment
Period from and after the Change in Control Termination Date (the "Continuing
Period"), or such longer period as may be provided by the terms of the
appropriate plan, program, practice or policy, the Bank shall continue benefits
to Executive and/or Executive's family at least equal to those which would have
been provided to them in accordance with the Welfare Benefit Plans described in
Section 2(d) of this Agreement if Executive's employment had not been terminated
and shall continue its maintenance of the existing life insurance policy and
existing disability insurance policy referenced in Section 2(d); provided,
however, that if Executive becomes reemployed with another employer and is
eligible to receive substantially the same benefits under the other employer's
plans as Executive would receive under the Welfare Benefit Plans under this item
(iv), the benefits under the Welfare Benefit Plans shall be secondary to those
provided under such other plans during such applicable period of eligibility.
For purposes of determining eligibility and years-of-service credit (but not the
time of commencement of benefits) of Executive for retiree benefits pursuant to
such Welfare Benefit Plans, Executive shall be considered to have remained
employed through the Continuing Period and to have retired on the last day of
such period; and
(v) all Options previously granted to Executive that are
unvested as of the Change in Control Termination Date shall be deemed vested,
fully exercisable and non-forfeitable as of the Change of Control Termination
Date (provided, however, that Options granted less than six (6) months before
the Change in Control Termination Date shall not be exercisable until the first
day subsequent to the six (6) months following their dates of grant) and all
previously granted Options that are vested, but unexercised, on the Change in
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Control Termination Date shall remain exercisable, in each case for the period
during which they would have been exercisable absent the termination of
Executive's employment; and
(vi) Executive's benefits under all Benefit Plans that are
nonqualified plans shall be 100% vested, regardless of Executive's age or years
of service, as of the Change in Control Termination Date; and
(vii) the Bank shall maintain and continue to provide
Executive during the Continuing Period with a late model automobile of his
choosing in accordance with paragraph 2(e) herein.
(d) For the purposes of this Agreement, a "Change in Control"
shall be deemed to have occurred if: (i) any "Person" or "Group" (as defined in
or pursuant to Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
as amended (the "1934 Act"), but not including the Bank or UCB, or any "employee
benefit plan" (as defined in or pursuant to the Employee Retirement Income
Security Act of 1974, 29 U.S.C. Section 1002(3), and as used herein "Person" or
"Group") becoming the "beneficial owner" (as defined in Rule 13d-3 under the
0000 Xxx) or otherwise acquiring control, directly or indirectly, of securities
of the Bank or UCB representing twenty-five percent (25%) or more of the voting
power of the Bank's or UCB's then outstanding securities; (ii) the acquisition
by any Person or Group in any manner of the ability to elect, or to control the
election, of a majority of the directors of the Bank or UCB; (iii) the merger of
the Bank or UCB into another entity, the merger of any entity into the Bank or
UCB or the acquisition of assets by the Bank or UCB, in any such case with the
result that the beneficial owners of the Bank's or UCB's outstanding securities
immediately prior to such transaction do not beneficially own more than sixty
percent (60%) of the Bank's or UCB's outstanding securities after the
consummation of such transaction; (iv) the sale or other transfer of more than
fifty percent (50%) of the assets of the Bank or UCB to any entity not
controlled by the Bank or UCB; (v) the consummation of any transaction by the
Bank or UCB that results (A) in the majority of the Board of Directors of the
Bank or UCB after the consummation of such transaction not being composed of
Incumbent Directors, or (B) the beneficial owners of the Bank's or UCB's
outstanding securities immediately prior to the consummation of such transaction
not beneficially owning more than sixty percent (60%) of the Bank's or UCB's
outstanding securities after such transaction; or (vi) the occurrence of any
other event or
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circumstance which is not described in the foregoing provisions of this Section
7(d) but which the Board determines affects control of the Bank or UCB and
constitutes a Change in Control for purposes of this Agreement. The term
"Incumbent Director" shall mean any director who as of the date of execution of
this Agreement was a member of the Board of Directors, or any individual
becoming a member of the Board of Directors subsequent to the date of execution
of this Agreement whose election by UCB or UCB's shareholders was recommended by
at least two-thirds (2/3) of the then Incumbent Directors on the Board of
Directors.
Further, notwithstanding the other provisions of this Paragraph
7, a transaction or event shall not be considered a Change in Control if, prior
to the consummation or occurrence of such transaction or event, Officer 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 7 shall be paid,
at the option of Executive 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 Executive's
rights hereunder, Executive shall have twelve (12) months from the date of
occurrence of the Termination Event to terminate this Agreement pursuant to this
Paragraph 7. 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 Executive does
not so terminate this Agreement within such twelve (12) month period, Executive
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 Executive.
Notwithstanding anything contained in this Agreement to the contrary, any
payments to be made to or for the benefit of Executive 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 necessary to avoid the imposition of
an excise tax on Executive
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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 Executive and
the Bank as to the terms or interpretation of this Agreement, including this
Paragraph 7, whether instituted by formal legal proceedings or otherwise,
including any action taken by Executive to enforce the terms of this Paragraph 7
or in defending against any action taken by the Bank, the Bank shall reimburse
Executive for all costs and expenses, proceedings or actions, in the event
Executive prevails in any such action.
8. Successors and Assigns.
(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
Executive. Therefore, Executive shall be precluded from assigning or delegating
his rights or duties hereunder without first obtaining the written consent of
the Bank.
9. 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.
10. 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.
11. 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.
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12. Entire Agreement. This Agreement contains the entire agreement of
the parties with respect to the transactions described herein and supersedes any
and all other oral or written agreements heretofore made, excluding the
following three agreements, each dated September 9, 1999 (i) Executive
Supplemental Retirement Plan Agreement; (ii) Life Insurance Endorsement Method
Split Dollar Plan Agreement; and (iii) Rabbi Trust for the Executive
Supplemental Retirement Plan Agreement and Life Insurance Endorsement Method
Split Dollar Plan Agreement, 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.
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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.
FIRST XXXXXX BANK OF NORTH CAROLINA
By:
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, Chairman
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ATTEST:
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Xxxxxxx X. Xxxxx, Secretary
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W. Xxxx Xxxx ("Executive")
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