Exhibit 10.32
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") made and entered into as
of the 10th day of April, 2000, by and between FIRST NATIONAL BANK AND TRUST
COMPANY, a national banking corporation with its principal office and place of
business located in Asheboro, North Carolina (the "Bank") and R. XXXXX XXXXXXXX
(the "Employee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Bank desires to employ the Employee, the Employee desires
to accept employment with the Bank, and each desires to enter into an agreement
embodying the terms of such employment;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the mutual
covenants and obligations herein contained, the parties hereto agree as follows:
1. Employment. The Bank hereby employs the Employee, and the Employee
hereby accepts employment with the Bank, for the term set forth in Section 2
below, in the position and with the duties and responsibilities set forth in
Section 3 below, and upon the other terms and conditions hereinafter stated.
2. Term. The term of this Agreement shall commence as of the date
hereof and, unless otherwise terminated as hereinafter provided, shall continue
for an initial term of three years and shall automatically be extended on each
anniversary date of this Agreement for an additional one year period so that the
term shall again be three years unless either party notifies the other of its
decision not to continue such annual renewal by written notice given not less
than 90 days prior to such anniversary date. Notwithstanding the foregoing,
there shall be no automatic extension of the term of this Agreement after the
sixth anniversary date of this Agreement, but absent written notice from either
party in accordance with the previous sentence, this Agreement will be
automatically extended on the sixth anniversary date so that the term will again
be three years from such date.
3. Position and Responsibilities. The Employee shall serve as a Senior
Vice President and Regional Manager of the Bank for Richmond County, North
Carolina and for such other counties in North Carolina as the Bank may
designate, or in such other appropriate position and with such duties as the
Bank may in the future designate. In such capacity, the Employee shall at all
times report to, and his activities shall at all times be subject to the
direction and control of, the principal executive officer of the Bank or his
designee. The Employee shall devote substantially all of his business time,
attention and services to discharge faithfully and diligently his duties and
responsibilities under this Agreement and to use his best efforts for both the
successful operation of the Bank's business and the successful implementation of
the policies established by the Bank or its parent, FNB Corp. ("FNB").
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4. Compensation and Benefits. During the term of this Agreement, the
Bank shall provide to the Employee the following compensation and benefits:
(a) Salary. In consideration of the services to be rendered by the
Employee to the Bank and the Employee's covenants hereunder, the Bank shall pay
to the Employee a base salary at the rate of $100,000 per annum (such salary as
it may be increased from time to time being hereinafter referred to as the "Base
Salary"). The Employee shall receive from the Bank a formal review of Employee's
performance at least as frequently as annually, and Employee may be considered
for merit increases to his Base Salary in accordance with the Bank's policies
and practices for employee compensation as established or modified from time to
time. Except as may otherwise be agreed, the Base Salary shall be payable in
accordance with the Bank's policies and practices for employee compensation as
established or modified from time to time; provided that the Base Salary shall
be payable not less frequently than monthly. Salary payments shall be subject to
all applicable federal and state withholding, payroll and other taxes.
(b) Group Benefit Plans and Programs. The Employee will be entitled to
participate, in accordance with the provisions thereof, in any group health,
disability and life insurance, and any bonus, pension, retirement and other
employee benefit plans and programs made available by the Bank or FNB to their
employees generally.
(c) Supplemental Plans. The Bank shall assume the obligations of
Richmond Savings Bank, Inc., SSB (the "Savings Bank") with respect to that
Executive Income Plan Deferred Compensation Agreement and Split Dollar Agreement
each dated January 1, 1987 and subsequently amended January 1, 1992
(collectively, the "Supplemental Plans") and shall continue the Supplemental
Retirement Plans in effect in accordance with the terms thereof; provided,
however, that nothing herein shall prohibit the Bank from terminating either or
both Supplemental Retirement Plans upon the Employee's voluntary termination of
employment or upon a termination for Cause (as defined below).
(d) Club Dues. The Bank shall pay or reimburse the Employee for the
monthly dues and assessments necessary for Employee to maintain the status of an
active member of the Richmond Pines Country Club.
(e) Vacation. The Employee shall be entitled to such vacation and other
leave as may be provided by the Bank or FNB to their employees in similar
positions generally; provided, however, that, to the extent that the amount of
vacation and other leave to which the Employee is entitled is related to the
Employee's years of service to the Bank or FNB, the Employee shall be given
credit for each year of service as an employee of the Savings Bank.
(f) Automobile. The Bank shall provide the Employee with a suitable
vehicle for his exclusive use in the discharge of his duties hereunder and shall
pay all operating and service expenses, including automobile insurance, related
to such vehicle. Any personal use of such
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vehicle by the Employee will be appropriately accounted for and reported as
additional compensation.
(g) Business Expenses. The Bank shall reimburse the Employee for any
reasonable out-of-pocket business and travel expenses incurred by the Employee
in the ordinary course of performing his duties for the Bank upon presentation
by the Employee, from time to time, of appropriate documentation therefor and in
accordance with the Bank's policies and practices as established or modified
from time to time.
(h) Convention Attendance. The Bank shall pay all registration, travel,
accommodation and meal expenses for the Employee and his spouse to attend the
annual convention of the North Carolina Bankers Association each year.
5. Termination. The Employee's term of employment under this Agreement
may be terminated before the end of the initial term or any extension thereof as
follows:
(a) Death. In the event of the death of the Employee during his
employment under this Agreement, this Agreement shall be terminated as of the
date of death. In such event, the Bank shall pay the Employee's Base Salary, at
the rate in effect at the time of his death and through the last day of the
calendar month in which such death occurs, to the Employee's designated
beneficiary, or, in the absence of such designation, to the estate or other
legal representative of the Employee. Any rights and benefits the Employee's
estate or any other person may have under employee benefit plans and programs of
the Bank or any benefit plans or agreements of Richmond Savings Bank, Inc., SSB
("Richmond Savings") or Carolina Fincorp, Inc. ("Carolina") that are assumed by
the Bank or FNB in the event of the Employee's death shall be determined in
accordance with the terms of such plans and programs.
(b) Long-Term Disability. If the Employee suffers any disability while
employed under this Agreement that prevents him from performing his duties under
this Agreement for a period of 90 consecutive days, then, unless otherwise then
agreed in writing by the parties hereto, the employment of the Employee under
this Agreement shall, at the election of the Bank, be terminated effective as of
the ninetieth day of such period. Upon termination of the Employee's employment
by reason of disability under this Section 5(b), the Employee shall be entitled
to receive his Base Salary, at the rate in effect on the date of such
termination, less any disability insurance payments paid to the Employee on a
policy maintained for the benefit of the Employee by the Bank or FNB, through
the end of the then current term of this Agreement. Any rights and benefits the
Employee may have under employee benefit plans and programs of the Bank or any
benefit plans or agreements of Richmond Savings or Carolina that are assumed by
the Bank or FNB in the event of the Employee's disability shall be determined in
accordance with the terms of such plans and programs.
For purposes of this Agreement, "disability" shall mean the inability,
by reason of bodily injury or physical or mental disease, or any combination
thereof, of the Employee to perform his customary or other comparable duties
with the Bank. In the event that the Employee and the Bank are unable to agree
as to whether the Employee is suffering a disability, the Employee and
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the Bank shall each select a physician and the two physicians so chosen shall
make the determination or, if they are unable to agree, they shall select a
third physician, and the determination as to whether the Employee is suffering a
disability shall be based upon the determination of a majority of the three
physicians. The Bank shall pay the reasonable fees and expenses of all
physicians selected pursuant to this Section 5(b).
(c) Termination for Cause. Nothing herein shall prevent the Bank from
terminating the Employee's employment at any time for Cause (as hereinafter
defined). Upon termination for Cause, the Employee shall receive his Base Salary
only through the date that such termination becomes effective. Neither the
Employee nor any other person shall be entitled to any further payments from the
Bank, for salary or any other amounts. Notwithstanding the foregoing, any rights
and benefits the Employee may have under employee benefit plans and programs of
the Bank or any benefit plans or agreements of Richmond Savings or Carolina that
are assumed by the Bank or FNB following a termination of the Employee's
employment for Cause shall be determined in accordance with the terms of such
plans, agreements and programs. For purposes of this Agreement, termination for
Cause shall mean termination by the Bank of the Employee's employment as a
result of (i) an intentional, willful and continued failure by the Employee to
perform his duties in the capacities indicated above (other than due to
disability); (ii) an intentional, willful and material breach by the Employee of
his fiduciary duties of loyalty and care to the Bank; (iii) an intentional,
willful and knowing violation by the Employee of any provision of this
Agreement; (iv) a conviction of, or the entering of a plea of nolo contendere by
the Employee for any felony or any crime involving fraud or dishonesty, or (v) a
willful and knowing violation of any material federal or state banking law or
regulation applicable to the Bank or the occurrence of any event described in
Section 19 of the Federal Deposit Insurance Act or any other act or event as a
result of which the Employee becomes unacceptable to, or is removed, suspended
or prohibited from participating in the conduct of the Bank's affairs by any
regulatory authority having jurisdiction over the Bank or FNB.
(d) Termination Other Than For Cause. The Bank may terminate the
Employee's employment under this Agreement at any time upon 90 days written
notice to the Employee for whatever reason it deems appropriate, or for no
reason. In the event such termination by the Bank occurs and is not due to death
as provided in Section 5(a) above or for Cause as provided in Section 5(c)
above, the Bank shall continue the Employee's Base Salary, at the rate in effect
at the time of such termination through the end of the then current term of this
Agreement. Such salary continuation shall be subject to all applicable federal
and state withholding taxes. Any rights and benefits the Employee may have under
employee benefit plans and programs of the Bank or FNB or under any benefit
plans or agreements of Richmond Savings or FNB that are assumed by the Bank or
FNB following a termination of the Employee's employment pursuant to this
Section 5(d) shall be determined in accordance with the terms of such plans,
agreements and programs. In addition to and notwithstanding the foregoing, in
the event of a termination pursuant to this Section 5(d), the Bank shall
continue to provide to the Employee either the benefits to which the Employee is
entitled under this Agreement or the economic equivalent thereof for the
remainder of the term of this Agreement.
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(e) At the Employee's Option. The Employee may terminate his employment
at any time upon at least 60 days advance written notice to the Bank; provided,
however, that the Bank, in its discretion, may cause such termination to be
effective at any time during such notice period. In the event of such a
voluntary termination of employment, the Employee will be entitled to receive
only any earned but unpaid Base Salary and the other benefits of this Agreement
through the date on which the Employee's termination becomes effective.
Notwithstanding the foregoing, any rights and benefits the Employee may have
under employee benefit plans and programs of the Bank or any benefit plans or
agreements of Richmond Savings or Carolina that are assumed by the Bank or FNB
following a voluntary termination of the Employee's employment pursuant to this
Section 5(e) shall be determined in accordance with the terms of such plans,
agreements and programs.
6. No Solicitation of Change in Control. The Employee will not solicit,
counsel or encourage any acquisition, merger or other change in control of FNB
or the Bank without the prior written approval of the Board of Directors of the
Bank or FNB. A violation of this Section 6 shall be deemed to constitute a
forfeiture by the Employee of all of his rights under Section 5(d) hereof.
7. Noncompetition Covenant; Nonsolicitation. For purposes of this
Section 7 and the following Sections 8 through 12, "Bank" shall mean the Bank,
FNB and/or any of its subsidiaries.
(a) For a period commencing on the date hereof and continuing until (i)
one (1) year after the date of expiration of the term hereof or the date that
any termination of the Employee's employment under this Agreement becomes
effective or (ii) the last day of the period after the date that any termination
of the Employee's employment under this Agreement becomes effective in which the
Employee is entitled to receive any Base Salary pursuant to Section 5 hereof,
whichever is later, the Employee will not, directly or indirectly:
(i) own any interest in, manage, operate, control, be employed
by, render consulting or advisory services to, or participate in or be
connected with the management or control of any business that is then
engaged in the operation of a bank, savings bank, credit union,
mortgage company, savings and loan association or similar financial
institution that conducts any of its operations within 60 miles of
Rockingham, North Carolina; provided, however, that the Employee may,
without violating this Agreement, own as a passive investment not in
excess of two percent (2%) of the outstanding capital stock of any such
business whose stock is publicly traded or quoted on the NASDAQ
over-the-counter market, the New York Stock Exchange, the American
Stock Exchange, the National Daily Quotation System "Pink Sheets" or
the OTC Bulletin Board;
(ii) influence or attempt to influence any customer of the
Bank to discontinue its use of the Bank's services or to divert such
business to any other person, firm or corporation;
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(iii) interfere with, disrupt or attempt to disrupt the
relationship, contractual or otherwise, between the Bank and any of its
respective customers, suppliers, principals, distributors, lessors or
licensors; and
(iv) solicit any officer or employee of the Bank, whose base
annual salary at the time of the Employee's termination was $20,000 or
more, to work for any other person, firm or corporation.
(b) It is expressly agreed that the provisions and covenants in this
Section 7 shall not apply and shall be of no force or effect in the event that
the Bank fails to honor its obligations hereunder.
(c) The Employee and the Bank intend that Section 7 of this Agreement
be enforced as written. However, if one or more of the provisions contained in
Section 7 shall for any reason be held to be unenforceable because of the
duration or scope of such provision or the area covered thereby, the Employee
and the Bank agree that the court making such determination shall have the power
to reform the duration, scope and/or area of such provision and in its reformed
form such provision shall then be enforceable and shall be binding on the
parties.
8. Confidentiality. The Employee hereby acknowledges and agrees that
(i) in the course of his service as an employee 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 business of the Bank,
all of which constitute valuable assets and privileged information that is
particularly sensitive due to the fiduciary responsibilities inherent in the
banking business; and (ii) to protect the interest in and to assure the benefit
of the business of the Bank, it is reasonable and necessary to place certain
restrictions on the Employee's ability to disclose information about the
business and customers of the Bank. For that purpose, and in consideration of
the agreements contained herein, the Employee 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 business, regulatory examinations, financial results and
condition, lending and deposit operations, customers (including lists of the
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 business to which the Employee will have access during his
employment hereunder. The Employee shall consider, treat and maintain all
Confidential Information as the confidential, private and privileged records and
information of the Bank. Further, at all times during the term of his employment
and following the termination of his employment under this Agreement for any
reason, and except as shall be required in the course of the performance by the
Employee of his duties on behalf of the Bank or otherwise pursuant to the
direct, written authorization of the Bank, the Employee will not divulge any
Confidential Information to any other person, firm, corporation, bank,
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savings and loan association or similar financial institution, remove any such
Confidential Information in written or other recorded form from the Bank's
premises, or make any use of the Confidential Information for his own purposes
or for the benefit of any person, firm, corporation, bank, savings and loan
association or similar financial institution other than the Bank. However,
following the termination of the Employee's employment with the Bank, this
Section 8 shall not apply to any Confidential Information which then is in the
public domain (provided that the Employee 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 the Employee from a
third party which or who is not obligated under an agreement of confidentiality
with respect to such information.
9. Remedies Upon Breach. Each party agrees that any breach of this
Agreement by either party could cause irreparable damage to the other party and
that in the event of such breach the other party shall have, in addition to any
and all remedies of law, the right to an injunction, specific performance or
other equitable relief to prevent the violation of the obligations of the
breaching party hereunder, without the necessity of posting a bond, plus the
recovery of any and all costs and expenses incurred by the enforcing party,
including reasonable attorneys' fees in connection with the enforcement of this
Agreement, provided that the enforcing party shall have been successful on the
merits or otherwise in any proceeding related to the enforcement thereof.
10. Acknowledgments. The Employee hereby acknowledges that the
enforcement of Sections 7 and 8 of this Agreement is necessary to ensure the
preservation, protection and continuity of the business, trade secrets and
goodwill of the Bank, and that the restrictions set forth in Sections 7 and 8 of
this Agreement are reasonable as to time, scope and territory and in all other
respects.
11. Tolling Period. In the event the Employee breaches any of the
provisions contained herein and the Bank seeks compliance with such provisions
by judicial proceedings, the time period during which the Employee is restricted
by such provisions shall be extended by the time during which the Employee has
actually competed with the Bank or been in violation of any such provision and
any period of litigation required to enforce the Employee's obligations under
this Agreement.
12. Termination of Previous Employment Agreement. The Employee
specifically agrees that the Employment Agreement dated November 22, 1996, as
the same may have been amended, by and between the Employee and the Savings Bank
hereby is terminated and shall be of no further force or effect, and the
Employee hereby waives any and all of his rights, and releases the Bank and the
Savings Bank from any and all obligations, under such agreement.
13. Severability. In case any one or more of the provisions contained
in this Agreement for any reason shall be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement but this Agreement shall
be construed as if such invalid, illegal or unenforceable provisions had never
been contained herein.
14. Consent and Waiver by Third Parties. The Employee hereby represents
and warrants that his employment with the Bank on the terms and conditions set
forth herein and his execution
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and performance of this Agreement do not constitute a breach or violation of any
other agreement, obligation or understanding with any third party. The Employee
represents that he is not bound by any agreement or any other existing or
previous business relationship which conflicts with, or may conflict with, the
performance of his obligations hereunder or prevents the full performance of his
duties and obligations hereunder.
15. Waivers and Modifications. This Agreement may be modified, and the
rights and remedies of any provision hereof may be waived, only in accordance
with this Section 15. No waiver by either party of any breach by the other or
any provision hereof shall be deemed to be a waiver of any later or other breach
thereof or as a waiver of any other provision of this Agreement. This Agreement
sets forth all of the terms of the understandings between the parties with
reference to the subject matter set forth herein and may not be waived, changed,
discharged or terminated orally or by any course of dealing between the parties,
but only by an instrument in writing signed by the party against whom any
waiver, change, discharge or termination is sought.
16. Assignment. The Employee acknowledges that the services to be
rendered by him are unique and personal. Accordingly, the Employee may not
assign any of his rights or delegate any of his duties or obligations under this
Agreement. The Bank shall have the right to assign this Agreement to FNB or any
of its subsidiaries or to its successors under law, and the rights and
obligations of the Bank under this Agreement shall inure to the benefit of, and
shall be binding upon, the successors and permitted assigns of the Bank.
17. Notices. All notices hereunder shall be (i) delivered by hand, (ii)
sent by first-class certified mail, postage prepaid, return receipt requested,
(iii) delivered by overnight commercial courier, or (iv) transmitted by telecopy
or facsimile machine, to the following address of the party to whom such notice
is to be made, or to such other address as such party may designate in the same
manner provided herein:
If to the Bank:
FNB Corp.
Attention: Xx. Xxxxxxx X. Xxxxxx, President
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
With copy to:
Xxxxxx Xxxx Xxxxxx Xxxx & Xxxxxxxxxx P.L.L.C.
Attention: Xxx X. Xxxxxx, Xx.
000 Xxxxx Xxx Xxxxxx
0000 Xxxxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
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If to the Employee, to his last address as shown on the personnel
records of the Bank.
With copy to:
Brooks, Pierce, XxXxxxxx, Xxxxxxxx & Xxxxxxx, L.L.P
Attention: Xxxxxx X. Xxxxxxx III
0000 Xxxxxxxxxxx Xxxxx
000 Xxxxx Xxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
18. Survival of Obligations. The Employee's obligations under Sections
7 through 12 of this Agreement shall survive the termination of his employment
with the Bank regardless of the manner of such termination and shall be binding
upon his heirs, executors and administrators. The existence of any claim or
cause of action by Employee against the Bank or FNB shall not constitute and
shall not be asserted as a defense to the enforcement by the Bank of this
Agreement.
19. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of North Carolina.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
FIRST NATIONAL BANK
AND TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------
Title: Chairman and President
/s/ R. Xxxxx Xxxxxxxx (SEAL)
------------------------------
R. Xxxxx Xxxxxxxx
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