AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit 10.4
AMENDMENT TO EMPLOYMENT AGREEMENT
This AMENDMENT TO EMPLOYMENT AGREEMENT (“Amendment”) is made and entered into this 14th day of
January, 2011 by and among CAPITAL BANK (the “Bank”), CAPITAL BANK CORPORATION (“CBC”) and XXXXX X.
XXXXXX (“Employee”). CBC, along with the Bank, sometimes collectively referred to herein as the
“Corporation”.
WHEREAS, Employee is currently employed with the Corporation under an Employment Agreement
dated January 25, 2008 (the “Employment Agreement”), pursuant to which he currently serves as
Executive Vice President and Chief Banking Officer of the Corporation;
WHEREAS, the Employment Agreement provides that its term automatically renews for an
additional one (1) year period unless, at least thirty (30) days prior to the renewal date, either
party gives notice of its intent not to continue the relationship;
WHEREAS, pursuant to the Investment Agreement dated November 3, 2010 among North American
Financial Holdings, Inc. (“NAFH”), CBC and the Bank (the “Investment Agreement”), the Bank is
permitted to enter into this Amendment with Employee to provide for the continuation of the
Employment Agreement until November 3, 2011;
WHEREAS, the parties to the Employment Agreement desire to amend the Employment Agreement as
provided in this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth below and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree that the Employment Agreement shall be amended as follows:
1. TITLE AND POSITION. The first and second sentences of Section 2, “Nature of
Employment” are deleted and the following sentences inserted in lieu thereof.
“Prior to the Closing as defined in that certain Investment Agreement
dated November 3, 2010 among North American Financial Holdings, Inc.,
CBC and the Bank, Employee shall serve as Executive Vice President and
Chief Banking Officer of CBC and the Bank (collectively, the
“Corporation”) and shall have such responsibilities and authority as
may be reasonably assigned to him by the Corporation. Immediately
following such Closing, Employee shall cease to serve as Chief Banking
Officer of the Corporation and Executive Vice President of CBC and
shall serve as an Executive Vice President of the Bank directly
reporting to the new Chief Financial Officer of the Bank and shall have
such responsibilities and authority as may be reasonably assigned to
him in this position by the new Chief Financial Officer that are
commensurate with Employee’s experience and education.”
2. TERM. Section 3 “Term” is deleted in its entirety and the following Section 3
inserted in lieu thereof:
“3. Term. Subject to the earlier termination provisions set
forth in Section 5, the term of this Agreement shall be for the period
of time commencing on January 25, 2008 and extending to November 3,
2011. Unless the term of this Agreement is extended by a written
amendment, this Agreement shall terminate at the close of business on
November 3, 2011 without any further obligation of the
Corporation under this Agreement. Following the term of this
Agreement, Employee shall be an at-will employee and shall be eligible
to receive separation benefits under any severance plan or policy
applicable to similarly situated senior executives of the Bank.”
3. CAR ALLOWANCE. Section 4(d) is deleted in its entirety and Section 4(e) and 4(f) shall be
renumbered accordingly.
4. CHANGE IN CONTROL DEFINITION. The following sentence shall be added as the final sentence
in Section 8(a):
“Notwithstanding anything to the contrary, in no event shall any of the events or
transactions set forth above constitute a Change in Control if the holders of 50% or
more of the equity interests of the Parent (as defined below) immediately prior to
such event or transaction own, directly or indirectly, 50% or more of the equity
interests of the Corporation or its successor immediately following such event or
transaction. For purposes of the preceding sentence, the “Parent” shall mean the
ultimate person or group (each as such term is used in Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended) that together with their affiliates,
directly or indirectly, owns or controls, by share ownership, contract or otherwise,
a majority of the equity interests of the Corporation.”
5. CHANGE IN CONTROL TERMINATION. The provisions of Section 8(b) “Change in Control
Termination” are amended as follows:
(a) Section 8(b)(i) is deleted in its entirety and replaced with the following Section
8(b)(i):
“(i) if during the then remaining term of this Agreement (as set forth in Section 3)
after the occurrence of a Change in Control, the Bank terminates Employee’s
employment for any reason other than Cause, Disability, or death; or”
(b) The first sentence of Section 8(b)(ii) is deleted in its entirety and replaced with
the following sentence:
“if during the then remaining term of this Agreement (as set forth in Section 3)
after the occurrence of a Change in Control, Employee terminates his employment with
the Bank for “Good Reason.”
(c) The following sentence shall be added as the final sentence in Section 8(b)(ii):
“Notwithstanding anything contained herein to the contrary, the change
in status, title, position, or responsibilities (including reporting
responsibilities) that is effected upon the Closing as described in
Section 2 above, the assignment of duties and responsibilities to
Employee consistent with the position of Executive Vice President in
connection with such change, and the removal of Employee from or
failure to reappoint or re-elect him to any position, status or title
(including positions, titles and responsibilities with any affiliate)
as a result of such changes shall not constitute Good Reason entitling
Employee to terminate his employment and receive payments and benefits
pursuant to this Agreement.”
6. COUNTERPARTS. This Amendment may be executed in counterparts, each of which shall be an
original, with the same effect as if the signatures affixed thereto were upon the same instrument.
7. EFFECT OF AMENDMENT. Except as amended hereby, the Employment Agreement shall remain in
full force and effect and is hereby ratified and confirmed in all respects by the parties to the
Employment Agreement.
IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and year set forth
above.
Capital Bank |
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| By: | /s/ X. X. Xxxxxx, III | |||
| X. X. Xxxxxx, III | ||||
| Capital Bank Corporation |
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| By: | /s/ X. X. Xxxxxx, III | |||
| X. X. Xxxxxx, III | ||||
| Employee |
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| /s/ Xxxxx X. Xxxxxx | ||||
| Xxxxx X. Xxxxxx | ||||
