EXHIBIT 10.9 TO FORM 10-KSB
FOUR OAKS BANK & TRUST COMPANY
EXECUTIVE EMPLOYMENT AGREEMENT
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THIS AGREEMENT is entered into as of this 10th day of October, 1994, by and
between FOUR OAKS BANK & TRUST COMPANY, a North Carolina banking corporation
(the "Bank"), and W. XXXX XXXXX, III ("Employee").
W I T N E S S E T H
WHEREAS, the Bank desires that Employee become an employee of the Bank to
serve as its Credit Administration Officer and Auditor; and
WHEREAS, Employee desires to become an employee of the Bank and to serve as
the Bank's Credit Administration Officer and Auditor;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained in this Agreement, the Bank and Employee agree as follows:
1. Employment. Commencing on the date of this Agreement, Employee is
employed by the Bank as its Credit Administration Officer and Auditor with the
duties, responsibilities and powers of such office as assigned to him as of the
date of this Agreement and as customarily associated with such office.
2. Term. The term of this Agreement shall commence on the date of this
Agreement and shall terminate on December 31, 1995 and shall, unless terminated
otherwise as set forth in this Agreement, be automatically extended on December
31, 1995 and each anniversary of such date for an additional term of one (l)
year unless such automatic extension is declined by either party by notice given
not less than ninety (90) days before the end of the then current term of this
Agreement.
3. Compensation and Benefits. In consideration of his services during
the term of this Agreement, Employee shall be paid compensation and benefits by
the Bank as follows:
(a) Base Salary. Employee will receive an annual base salary
of Forty-Seven Thousand Four Hundred Dollars ($47,400), payable in monthly
installments. Commencing
January 1, 1996, and annually thereafter, Employee will be entitled to receive
such increases in his annual base salary as may be approved by the Board of
Directors of the Bank, with each such increase thereafter being included in his
annual base salary for all purposes.
(b) Additional Benefits. Employee shall be entitled to receive
and to participate, subject to any eligibility requirements, in all benefits
generally made available to the Bank's officers and also those generally made
available to all salaried employees of the Bank including, but not limited to,
insurance benefits, vacation, sick leave, and reimbursement of expenses incurred
on behalf of the Bank in the course of performing duties under this Agreement.
4. Termination. Employee's employment under this Agreement shall
terminate:
(a) Upon the death of Employee;
(b) Upon written notice from the Bank to Employee in the event
of an illness or other disability incapacitating him from performing his duties
for six (6) consecutive months as determined in good faith by the Chief
Executive Officer of the Bank, the Board of Directors of the Bank, or a
committee of the Board;
(c) For cause upon written notice from the Bank ("Cause" for
this purpose means (i) the willful and continued failure by Employee for a
significant period of time substantially to perform his duties with the Bank
(other than any such failure resulting from his disability) after a demand for
substantial performance is delivered to Employee by the Bank's Chief Executive
Officer, Board of Directors, or a committee of the Board which specifically
identifies the manner in which the Chief Executive Officer or Board of Directors
believes that Employee has not substantially performed his duties, (ii) the
willful engaging by Employee in gross misconduct materially and demonstratively
injurious to the Bank or (iii) the conviction of Employee of any crime involving
fraud or dishonesty); or
(d) Upon thirty (30) days notice from Employee to Bank at any
time within two (2) years following a change in control of the Bank. "Change in
control" means one or more of the following occurrences:
(i) A corporation, person or group acting in concert
as described in Section 14(d)(2) of the Securities
Exchange Act of 1934, as amended ("Exchange Act"), holds or acquires beneficial
ownership within the meaning of Rule 13d-3 promulgated under the Exchange Act of
a number of shares of voting capital stock of the Bank which constitutes either
(A) more than fifty percent (50%) of the shares which voted in the election of
directors of the Bank at the shareholders' meeting immediately preceding such
determination, or (B) more than thirty-three percent (33%) of the Bank's then
outstanding shares entitled to vote.
(ii) A merger or consolidation to which the Bank is a
party (other than a pro forma transaction for a purpose such as changing the
state of incorporation or name of the Bank), if either (A) the Bank is not the
surviving corporation, or (B) the directors of the Bank immediately before the
merger or consolidation constitute less than a majority of the Board of
Directors of the surviving corporation; provided, however, the occurrence
described in clause (A) shall not constitute a change in control if the holders
of the Bank's voting capital stock immediately before the merger or
consolidation have the same proportional ownership of voting capital
stock of the surviving corporation immediately after the merger or
consolidation.
(iii) All or substantially all of the assets of the
Bank are sold, leased, or disposed of in one transaction or a series of related
transactions.
(iv) An agreement, plan, contract, or other
arrangement is entered into providing for any occurrence which, as defined in
this Agreement, would constitute a change in control.
The Bank hereby represents, warrants, and agrees that it shall give
prompt notice to Employee immediately upon learning of the consummation of any
of the events set forth in Paragraph 4(d) of this Agreement. If the Bank fails
to give such notice to Employee, the Bank shall be estopped from
contesting, and shall not contest, the adequacy or timeliness of any notice
Employee may be allowed or required to give following a change in control of the
Bank.
5. Non-Assignability. This Agreement shall not be assignable by
Employee. This Agreement shall not be assignable by the Bank without the
prior written consent of Employee except to a corporation which is the
surviving entity in any merger involving the Bank or to a corporation which
acquires all or substantially all of the stock or assets of the Bank.
6. Modification. This Agreement sets forth all the terms and
conditions of the employment agreement between Employee and the Bank and can be
modified only by a writing signed by both parties. No waiver by either
party to this Agreement at any time of any breach of the other party 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.
7. Counterparts; Construction. This Agreement may be executed in
several identical counterparts, each of which when so executed shall be deemed
an original, but all such counterparts shall constitute one and the same
instrument. This Agreement shall be governed by, and construed and enforced
in accordance with, the laws of the State of North Carolina.
8. Severability. Should any provision of this Agreement be
declared to be invalid for any reason or to have ceased to be binding on the
parties, such provision shall be severed, and all other provisions shall be
effective and binding.
9. Notice. All necessary notices, demands and requests required or
permitted under this Agreement shall be in writing and shall be deemed to have
been duly given if delivered in person or mailed by certified mail, postage
prepaid, addressed as follows:
(a) If to Employee: W. Xxxx Xxxxx, III
000 Xxx Xxxx
Xxxxxx, Xxxxx Xxxxxxxx 00000
(b) If to Bank: Four Oaks Bank & Trust Company
6144 U.S. 000 Xxxxx
Xxxx Xxxx, Xxxxx Xxxxxxxx 00000
or to such other address as shall be furnished by either party.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first above written.
FOUR OAKS BANK & TRUST COMPANY
By: /s/ Ayden X. Xxx, Xx. President
& CEO
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Authorized Officer
ATTEST:
/s/ Xxxxx X. Xxxxx
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Secretary
[SEAL]
/s/ W. Xxxx Xxxxx, III
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W. XXXX XXXXX, III
Employee
