EXHIBIT 10.5
Exhibit 10.5
CITIZENS SOUTH BANK
MERGER/ACQUISITION PROTECTION AGREEMENT
FOR XXXX XXXXXX XXXXXXX
This AGREEMENT is made effective as of July 15, 2002, by and between
Citizens South Bank, a stock savings bank (the "Bank"), and Xxxx Xxxxxx Xxxxxxx
(the "Executive"). Any reference to "Company" herein shall mean Citizens South
Banking Corporation, or any successor thereto.
WHEREAS, the Bank recognizes the substantial contribution the Executive
has made to the Bank and wishes to protect his position for the period provided
in this Agreement;
WHEREAS, the Executive has been elected to, and has agreed to serve in
the position of Senior Vice President, Treasurer, and Chief Financial Officer
for the Bank, a position of substantial responsibility; and
NOW, THEREFORE, in consideration of the contribution of the Executive,
and upon the other terms and conditions hereinafter provided, the parties hereto
agree as follows:
1. TERM OF AGREEMENT
The term of this Agreement shall be deemed to have commenced as of the
date first above written and shall continue for a period of twelve (12) full
calendar months thereafter. Commencing on the first anniversary date of this
Agreement and continuing at each anniversary date thereafter, the Board of
Directors of the Bank (the "Board") may extend the Agreement for an additional
year. Within 30 days prior to such anniversary date, the Board will conduct a
performance evaluation of the Executive for purposes of determining whether to
extend the Agreement, and the results thereof shall be included in the minutes
of the Board's meeting. If the Executive is also a director then he or she shall
abstain from any and all voting with respect to the extension of the term of
such Executive's Agreement. This agreement does not create a right to the
continuation of employment.
2. PAYMENTS TO EXECUTIVE UPON TERMINATION FOLLOWING A CHANGE IN CONTROL OR
OTHER CONTROL TRANSACTION
(a) Upon the voluntary or involuntary termination of the Executive's
employment other than for Termination for Cause within 12 months after;
(i) a Change in Control, or
(ii) a merger of the Bank with another bank or savings association
(other than an interim bank or association and other than in connection
with the mutual-to-stock conversion of the Company's mutual holding
company) with the Bank as the surviving
entity, or acquisition by the Company of another bank or savings
association that is held as a subsidiary of the Company and is not merged
into the Bank, and either (A) a reduction in the base salary of the
Executive, (B) a substantial diminution in the duties or responsibilities
of the Executive, or (C) the relocation of the Executive's principal
place of employment by more than 50 miles from Gastonia, North Carolina,
the Bank or its successor shall be obligated to pay the Executive, or in the
event of his subsequent death, his beneficiary or beneficiaries, or his estate,
as the case may be, as severance pay, a sum equal to one and a half (1.5) times
the Executive's annual compensation, including base salary at the highest rate
of pay existing at the time of termination and aggregate bonuses paid during the
last 12 months prior to termination. At the election of the Executive, or his
estate, as the case may be, which election may be made annually by January 31 of
each year and is irrevocable for the year in which made (and once payments
commence), such payment may be made in a lump sum or paid in equal semimonthly
installments during the eighteen (18) months following the Executive's
termination. In the event that no election is made, payment to the Executive
will be made on a semimonthly basis during the remaining term of this Agreement.
(b) Upon the occurrence of a Change in Control of the Bank followed at
any time during the term of this Agreement by the Executive's voluntary or
involuntary termination of the Executive's employment other than for Termination
for Cause, the Bank shall cause to be continued life, medical and dental
coverage substantially identical to the coverage maintained by the Bank for the
Executive prior to his severance. Such coverage and payments shall cease upon
expiration of eighteen (18) months.
(c) Upon the occurrence of a Change in Control, the Executive will have
such rights as specified in any other employee benefit plan with respect to
options and such other rights as may have been granted to the Executive under
such plans.
(d) A "Change in Control" of the Bank or the Company shall mean a change
in control of a nature that: (i) would be required to be reported in response to
Item 1(a) of the current report on Form 8K, as in effect on the date hereof,
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 0000 (xxx
"Xxxxxxxx Xxx"); or (ii) results in a Change in Control of the Bank or the
Company within the meaning of the Home Owners' Loan Act, as amended, and
applicable rules and regulations promulgated thereunder (collectively, the
"HOLA") as in effect at the time of the Change in Control; or (iii) without
limitation such a Change in Control shall be deemed to have occurred at such
time as (a) any "person" (as the term is used in Sections 13(d) and 14(d) of the
Exchange Act) is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the Company
representing 25 % or more of the combined voting power of Company's outstanding
securities, except for any securities purchased by the Bank's employee stock
ownership plan or trust; or (b) individuals who constitute the Board on the date
hereof (the "Incumbent Board") cease for any reason to constitute at least a
majority thereof, provided that any person becoming a director subsequent to the
date hereof whose election was approved by a vote of at least three-quarters of
the directors
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comprising the Incumbent Board, or whose nomination for election by the
Company's stockholders was approved by the same Nominating Committee serving
under an Incumbent Board, shall be, for purposes of this clause (b), considered
as though he were a member of the Incumbent Board; or (c) a plan of
reorganization, merger, consolidation, sale of all or substantially all the
assets of the Bank or the Company or similar transaction in which the Bank or
Company is not the surviving institution occurs; or (d) a proxy statement
soliciting proxies from stockholders of the Company, by someone other than the
current management of the Company, seeking stockholder approval of a plan of
reorganization, merger or consolidation of the Company or similar transaction
with one or more corporations as a result of which the outstanding shares of the
class of securities then subject to the plan are to be exchanged for or
converted into cash or property or securities not issued by the Company; or (e)
a tender offer is made for 25% or more of the voting securities of the Company
and the shareholders owning beneficially or of record 25% or more of the
outstanding securities of the Company have tendered or offered to sell their
shares pursuant to such tender offer and such tendered shares have been accepted
by the tender offeror. The mutual-to-stock conversion of the Company's mutual
holding company shall not be a Change in Control.
(e) The Executive shall not have the right to receive termination
benefits pursuant to Section 3 hereof upon Termination for Cause. The term
"Termination for Cause" shall mean termination because of the Executive's
intentional failure to perform stated duties, personal dishonesty, incompetence,
willful misconduct, any breach of fiduciary duty involving personal profit,
willful violation of any law, rule, regulation (other than traffic violations or
similar offenses) or final cease and desist order, or any material breach of any
material provision of this Agreement. In determining incompetence, the acts or
omissions shall be measured against standards generally prevailing in the
savings institution industry. Notwithstanding the foregoing, the Executive shall
not be deemed to have been terminated for Cause unless and until there shall
have been delivered to him a copy of a resolution duly adopted by the
affirmative vote of not less than three-fourths of the members of the Board at a
meeting of the Board called and held for that purpose (after reasonable notice
to the Executive and an opportunity for him, together with counsel, to be heard
before the Board), finding that in the good faith opinion of the Board, the
Executive was guilty of conduct justifying Termination for Cause and specifying
the particulars thereof in detail. The Executive shall not have the right to
receive compensation or other benefits for any period after Termination for
Cause.
3. REDUCTION IN THE CASE OF EXCESS PARACHUTE PAYMENT
Notwithstanding any other provision of this agreement, in no event shall
the aggregate payments or benefits made or afforded to the Executive hereunder
(the "Termination Benefits") constitute an "excess parachute payment" under
Section 280G of the Code or any successor thereto, and in order to avoid such a
result, Termination Benefits will be reduced, if necessary, to an amount (the
"Non-Triggering Amount"), the value of which is one dollar ($1.00) less than an
amount equal to three (3) times the Executive's "base amount," as determined in
accordance with said Section 280G.
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4. NOTICE OF TERMINATION
(a) Any purported termination by the Bank or by the Executive shall be
communicated by Notice of Termination to the other party hereto. For purposes of
this Agreement, a "Notice of Termination" shall mean a written notice which
shall indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive's employment under the
provision so indicated.
(b) "Date of Termination" shall mean the date specified in the Notice of
Termination (which, in the case of a Termination for Cause, shall be immediate).
In no event shall the Date of Termination exceed 30 days from the date Notice of
Termination is given.
5. COVENANT NOT TO COMPETE
The Executive agrees that for a period of twelve months following the
first payment of any benefit under Section 2(a) of the Agreement, he shall not,
directly or indirectly, engage (as principal, partner, director, officer, agent,
employee, or owner, with or without compensation) in any line of business that
the Company or the Bank is involved (including, but not limited to, the
providing of wholesale banking services, consumer financial services, retail
banking, trust and investment management services, secured and unsecured loan
and financing services, real estate financing services, asset and investment
management and fiduciary services, cash management services, and consumer and
commercial credit card services), in Xxxxxx County, North Carolina.
The Executive shall not entice or solicit, directly or indirectly, any
other executives or key management personnel of the Company (or any subsidiary)
to work with him or any entity with which the Executive has affiliated, for a
period of twelve months after the payment of severance benefits under the
Agreement. The Executive shall also not entice or solicit, directly or
indirectly, any client or customer of the Company (or any subsidiary) for any
competitor or in any competitive activity for a period of twelve months after
the payment of severance benefits under the Agreement.
The foregoing restriction shall not be construed to prohibit the
Executive from owning less than five percent (5%) of any class of securities of
any corporation located in Xxxxxx County, North Carolina, which is engaged in
any of the foregoing businesses having a class of securities registered pursuant
to the Securities Exchange Act of 1934, provided that such ownership represents
a passive investment and that neither the Executive nor any group of persons
including the Executive in any way, either directly or indirectly, manages or
exercises control of any such corporation, guarantees any of its financial
obligations, otherwise takes part in its business, other than exercising his
rights as a shareholder, or seeks to do any of the foregoing.
6. ENFORCEMENT OF OBLIGATIONS
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The Executive acknowledges that the restrictions contained in Section 5
are reasonable and necessary to protect the legitimate interests of the Company,
that the Company would not have entered into this Agreement in the absence of
such restrictions, and that any violation of any provision of this Section will
result in irreparable injury to the Company. The Executive further represents
and acknowledges that (i) he has been advised by the Company to consult his own
legal counsel with respect to this Agreement; and (ii) that he has, prior to
execution of this Agreement, reviewed thoroughly this Agreement with his
counsel. The Executive agrees that the Company shall be entitled to preliminary
and permanent injunctive relief, without the necessity of proving actual
damages, as well as to an equitable accounting of all earnings, profits and
other benefits arising from any violations of Section 5, which rights shall be
cumulative and in addition to any other rights or remedies to which the Company
may be entitled. In the event that any of the provisions of Section 5 should
ever be adjudicated to exceed the time, geographic, product or service, or other
limitations permitted by applicable law in any jurisdiction, then such
provisions shall be deemed reformed in such jurisdiction to the maximum time,
geographic, product or service, or other limitations permitted by applicable
law. The Executive irrevocably and unconditionally (i) agrees that any suit,
action or other legal proceeding arising out of this Agreement in which any
party is seeking in whole or in part any form of equitable relief, including
without limitation, any action commenced by the Company for preliminary and
permanent injunctive relief and other equitable relief, may be brought in any
court of competent jurisdiction in Xxxxxx County, North Carolina; (ii) consents
to the non-exclusive jurisdiction of any court in any such suit, action or
proceeding; and (iii) waives any objection which the Executive may have to the
laying of venue of any such suit, action or proceeding in any such court.
7. SOURCE OF PAYMENTS
It is intended by the parties hereto that all payments provided in this
Agreement shall be paid in cash or check from the general funds of the Bank. The
Company, however, guarantees payment and provision of all amounts and benefits
due hereunder to Executive and, if such amounts and benefits due from the Bank
are not timely paid or provided by the Bank, such amounts and benefits shall be
paid or provided by the Company.
8. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFIT PLANS
This Agreement contains the entire understanding between the parties
hereto and supersedes any prior agreement between the Bank and the Executive,
except that this Agreement shall not affect or operate to reduce any benefit or
compensation inuring to the Executive of a kind elsewhere provided. No provision
of this Agreement shall be interpreted to mean that the Executive is subject to
receiving fewer benefits than those available to him without reference to this
Agreement.
9. NO ATTACHMENT
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(a) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null,
void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit of,
the Executive and the Bank and their respective successors and assigns.
10. MODIFICATION AND WAIVER
(a) This Agreement may not be modified or amended except by an instrument
in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be any estoppel against the enforcement of any provision
of this Agreement, except by written instrument of the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future or as to any act other than that
specifically waived.
11. REQUIRED PROVISIONS
(a) The Bank may terminate the Executive's employment at any time. The
Executive shall not have the right to receive compensation or other benefits for
any period after Termination for Cause as defined in Section 2(c) hereinabove.
(b) If the Executive is suspended from office and/or temporarily
prohibited from participating in the conduct of the Bank's affairs by a notice
served under Section 8(e)(3) (12 USC (S)1818(e)(3)) or 8(g) (12 USC (S)1818(g))
of the Federal Deposit Insurance Act, as amended by the Financial Institutions
Reform, Recovery and Enforcement Act of 1989, the Bank's obligations under this
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 Executive all or part of the compensation
withheld while their contract obligations were suspended and (ii) reinstate (in
whole or in part) any of the obligations which were suspended.
(c) If the Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued under
Section 8(e) (12 USC (S) 1818(e)) or 8(g) (12 USC (S)1818(g)) of the Federal
Deposit Insurance Act, as amended by the Financial Institutions Reform, Recovery
and Enforcement Act of 1989, all obligations of the Bank under
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this contract 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) (12
USC (S) 1813(x)(1)) of the Federal Deposit Insurance Act, as amended by the
Financial Institutions Reform, Recovery and Enforcement Act of 1989, all
obligations of the Bank under this contract shall terminate as of the date of
default, but this paragraph shall not affect any vested rights of the
contracting parties.
(e) All obligations of the Bank under this contract shall be terminated,
except to the extent determined that continuation of the contract is necessary
for the continued operation of the Bank, (i) by the Federal Deposit Insurance
Corporation ("FDIC"), at the time the FDIC enters into an agreement to provide
assistance to or on behalf of the Bank under the authority contained in Section
13(c) (12 USC (S)1823(c)) of the Federal Deposit Insurance Act, as amended by
the Financial Institutions Reform, Recovery and Enforcement Act of 1989; or (ii)
when the Bank is determined by the FDIC to be in an unsafe or unsound condition.
Any rights of the parties that have already vested, however, shall not be
affected by such action.
(f) Any payments made to Executive pursuant to this Agreement or
otherwise are subject to and conditioned upon their compliance with 12 USC
Section 1828(k) and any regulations promulgated thereunder.
12. SEVERABILITY
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
13. HEADINGS FOR REFERENCE ONLY
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
14. GOVERNING LAW
The validity, interpretation, performance, and enforcement of this
Agreement shall be governed by the laws of the State of North Carolina, unless
preempted by Federal law as now or hereafter in effect.
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before a panel
of three arbitrators sitting in a location selected by the employee within fifty
(50) miles from the location of the Bank, in accordance with
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the rules of the American Arbitration Association then in effect. Judgment may
be entered on the arbitrator's award in any court having jurisdiction; provided,
however, that subject to Section 3(c) hereof, the Executive shall be entitled to
seek specific performance of his right to be paid until the Date of Termination
during the pendency of any dispute or controversy arising under or in connection
with this Agreement.
15. PAYMENT OF LEGAL FEES
All reasonable legal fees paid or incurred by the Executive pursuant to
any dispute or question of interpretation relating to this Agreement shall be
paid or reimbursed by the Bank if the Executive is successful on the merits
pursuant to a legal judgment, arbitration or settlement.
16. SUCCESSOR TO THE BANK
The Bank shall require any successor or assignee, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Bank, expressly and
unconditionally to assume and agree to perform the Bank's obligations under this
Agreement, in the same manner and to the same extent that the Bank would be
required to perform if no such succession or assignment had taken place.
17. SIGNATURES
IN WITNESS WHEREOF, the Bank has caused this Agreement to be executed by
its duly authorized officer, and the Executive has signed this Agreement, on the
day and date first above written.
ATTEST: CITIZENS SOUTH BANK
_______________________________ By:___________________________
Xxxx X. Xxxx, Xx., Secretary Xxx X. Xxxxx, President
WITNESS: EXECUTIVE
_______________________________ ______________________________
Xxxx Xxxxxx Xxxxxxx
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