EMPLOYMENT AND NON-COMPETE AGREEMENT
THIS EMPLOYMENT AND NON-COMPETE AGREEMENT (the "Agreement")
is entered into this 10th day of November, 1997, by and between XXXXXXX X.
XXXXXXXXX ("Employee") and DUKE ENERGY CORPORATION ("Duke"), a North Carolina
corporation with its principal executive offices in Charlotte, North Carolina.
Background Statement
Duke desires to employ Employee to serve as its Executive Vice President
and General Counsel, and Employee desires to accept that position with Duke.
This Agreement sets forth the terms and conditions of Employee's employment by
Duke and represents the entire agreement of the parties with respect to that
subject.
Terms of Agreement
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Employment. Duke hereby employs Employee, and Employee hereby
accepts such employment, upon the terms and conditions set forth herein.
2. Position and Duties.
(a) Duties. Employee is employed by Duke as Executive Vice
President and General Counsel of Duke. As Executive Vice President and
General Counsel, Employee shall perform such duties as the bylaws of
Duke, the Board of Directors and the Chief Executive Officer may
prescribe. Employee shall report directly to the Office of the Chairman
at Duke and shall serve on Duke's Policy Committee.
(b) Engaging in Other Employment. While employed by Duke, Employee
shall devote full time and attention to Duke and shall not be employed
by any other person or entity. With the consent of the Chief Executive
Officer, Employee may accept paid board or trustee positions for other
entities and may accept fees for public speaking and published
writings. Employee may reasonably participate as a member in community,
civic, or similar organizations and may pursue personal investments
that do not interfere with the normal business activities of Duke.
(c) Loyal and Conscientious Performance. Employee shall act at all
times in compliance with the policies, rules and decisions adopted from
time-to-time by the Board of Directors of Duke and perform all the
duties and obligations required of him by this Agreement in a loyal and
conscientious manner.
(d) Location. Employee's office shall be located in Charlotte,
North Carolina
3. Term of Employment. The term of the employment pursuant to this
Agreement shall commence on November 10, 1997, and end on December 31, 1998
unless terminated earlier pursuant to the provisions of this Agreement. After
the expiration of the term of employment set forth in this Section 3, Employee
shall be an employee-at-will whose employment can be terminated at any time for
any reason by Duke or Employee.
4. Base Compensation. Employee's base annual salary is $360,000. This
base compensation will be payable in equal monthly installments, subject to
applicable state and federal income tax and social security tax withholding
requirements.
5. Bonus. Employee shall be eligible to participate in the annual bonus
program for members of Duke's Policy Committee as established by the
Compensation Committee of Duke's Board of Directors. If the goals established in
the bonus program are met, the Employee's target bonus is 60% of base annual
salary, the minimum bonus is 30% of base annual salary and the maximum bonus is
90% of base annual salary. If minimum goals are not met, there will be no bonus.
6. Grant of Stock Options and Restricted Stock. Duke shall grant to
Employee an option to purchase 150,000 shares of Duke common stock pursuant to
Duke's Stock Incentive Plan. This grant will be made during 1998 at the same
time that options are granted to other members of Duke's Policy Committee. The
exercise price of the options will be the fair market value of the shares on the
date of grant. The normal expiration date of the options will be the tenth
anniversary of the date of grant. To the extent permitted by the terms of the
plan under which such options are granted, the options will expire one year
after termination of Employment (but will expire earlier if the termination is a
result of voluntary resignation).
In order to permit this grant of stock options, the shareholders of Duke
must approve an amendment to the Stock Incentive Plan to increase the number of
shares for which options may be granted and to increase the annual limit on the
number of options granted to any individual. The Board of Directors will use its
best efforts to have such amendment approved at the 1998 annual meeting.
Duke shall grant to Employee 9,000 shares of Restricted Stock in three
equal grants of 3,000 shares in January 1998, January 1999 and January 2000, on
such terms
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and conditions as set forth in Duke's Stock Incentive Plan. Shares of restricted
stock shall accrue dividends from the date of grant forward. With respect to
each grant of 3,000 shares of Restricted Stock, 1,000 of such shares shall vest
on the three successive anniversary dates from the date of original award of
that 3,000-share grant.
In the event Employee's employment is terminated for any reason, either
by Duke or Employee, all unvested stock options or Restricted Stock shall be
forfeited.
7. Fringe Benefits. Employee shall participate in all benefit plans that
are available to members of Duke's Policy Committee. A statement of current
benefits available to members of the Policy Committee is attached hereto as
Schedule A. The availability and terms of such fringe benefits are set by the
Compensation Committee of the Board of Directors and change from time-to-time.
There is no assurance that the benefits set forth on Schedule A will not be
changed or eliminated for members of the Policy Committee. For purposes of
determining Employee's vacation benefits, Employee shall be credited 15 years of
service (which will entitle Employee to four weeks vacation beginning January 1,
1998).
8. Noncompetition by Employee.
(a) Employee agrees that during his employment by Duke and for a
period of one year after his voluntary resignation of employment or six
months after an involuntary termination of Employee's employment,
without Duke's prior written consent, he will not, directly or
indirectly, either as principal, agent, manager, employee, partner,
shareholder, director, officer, consultant or otherwise, (A) become
engaged or involved in any business (other than as a less than 5%
equity owner of any corporation traded on any national, international
or regional stock exchange or in the over-the-counter market), that
competes with Duke or any person or entity that controls, is controlled
by or is under common control with Duke (collectively, the "Company
Affiliates") in the business of production, transmission, distribution
or retail or wholesale marketing or selling of electricity, gathering,
processing or transmission of natural gas, resale or arranging for the
purchase for resale, brokering, marketing or trading of natural gas,
electricity or derivatives thereof, energy management and energy
solution provision, or natural or international energy development; or
(B) induce or attempt to induce any customer, supplier or employee of
Duke or any Company Affiliate to reduce, terminate, restrict or
otherwise alter its business relationship with Duke or any Company
Affiliate. If any provision or part of this Section 8 is held to be
unenforceable because of the duration of such provision or the area
covered thereby, the parties hereto agree to modify such provision, or
that the court making such determination shall have the power to modify
such provision, to reduce the duration or area of such provision or
both, or to delete specific words or phrases herefrom
("blue-penciling"), and in its reduced or blue-penciled form, such
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provision shall then be enforceable and shall be enforced. If Employee violates
any of the restrictive covenants set forth in this Section 8, then the time
limitation otherwise applicable shall be extended for a period of time equal to
the period of time during which such breach or breaches occurred. The parties
intend the above restrictions on competition to be completely severable and
independent, and any invalidity or unenforceability of any one or more of such
restrictions shall not render invalid or unenforceable any one or more of the
other restrictions. Notwithstanding the above, this restrictive covenant is not
intended to restrict the ability of Employee to practice as an attorney in
private practice or to render legal advice to any client or to restrict him from
competing with any Duke subsidiary or affiliate with which he had no connection
or involvement during his employment by Duke.
(b) The provision of Section 8(a) shall be limited in scope and
effective only within the following geographical areas:
(i) Any country in the World where Duke has $25 million in
capital deployed as of the date of termination;
(ii) The Continent of North America;
(iii) The United States of America;
(iv) The states of the United States located east of the
Mississippi River;
(v) The states of North Carolina, South Carolina, Virginia
Georgia and Tennessee; and
(vi) North Carolina and South Carolina.
The parties intend the above geographical areas to be completely
severable and independent, and any invalidity or unenforceability of this
Agreement with respect to any one area shall not render this Agreement
unenforceable as applied to any one or more of the other areas.
(c) Employee acknowledges that Duke may have no adequate means to
protect its rights under this Section 8 other than by securing an
injunction (a court order prohibiting Employee from violating this
Agreement). Employee agrees that Duke may enforce this Agreement by
obtaining a preliminary and permanent injunction and any other
appropriate equitable relief in any court of competent jurisdiction.
Employee acknowledges that the recovery of damages will not be an
adequate means to redress a breach of this Agreement, but nothing in
this Section
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8 shall prohibit Duke from pursuing any remedies in addition to
injunctive relief, including recovery of damages.
(d) Employee acknowledges and agrees that Duke would not agree to
hire Employee without the covenants made by Employee in this Section 8,
and that the compensation and benefits provided in this Agreement
constitute adequate and aufficient consideration for the covenants made
by Employee in this Section 8 and in the remainder of this Agreement.
(e) Employee's obligations under this Section 8 shall survive any
termination of his employment.
9. Confidentiality. Employee shall not, at any time, use (other than in
the ordinary course of fulfilling his duties as an employee of Duke), divulge or
otherwise disclose, directly or indirectly, any confidential and proprietary
information (including without limitation any customer or prospect list,
supplier list, acquisition or merger targets, business plans or strategies,
data, records or financial information which is not generally known to the
public) concerning the business, policies or operations of Duke or its Company
Affiliates which Employee may have learned on or prior to the date hereof or
during the term of Employee's employment by Duke (as an employee, consultant,
shareholder, officer, controlling person, agent or otherwise). Employee's
obligations under this Section 9 shall survive any termination of his
employment.
0X. Xxxxxxxxxxx.
(a) Notwithstanding anything to the contrary contained herein,
Employee may terminate his employment at any time by resigning, and
Employee's employment may be terminated by Duke prior to the end of the
term specified in Section 3 as follows:
(i) due to the death of Employee;
(ii) due to the disability which prevents Employee from
performing the essential functions of his full duties for a
period of 90 consecutive days at anytime during the term of
this Agreement;
(iii) continued gross neglect, malfeasance or gross
insubordination, after reasonable notice, for a reason not
beyond Employee's control, in performing duties assigned to
Employee with this Agreement; (B) a final conviction for a
felony involving moral turpitude; (C) an egregious act of
dishonesty (including without limitation theft or
embezzlement) in connection with employment, or a malicious
action by Employee toward Duke's customers or employees; (E) a
willful material violation of the
provision of Section 8 or 9 hereof; or (F) material failure to
carry out reasonably assigned duties or instructions
consistent with the title of General Counsel and Executive
Vice President (provided that material failure to carry out
reasonably assigned duties shall be deemed to constitute cause
only after a finding by Duke's Chief Executive Officer of
material failure on the part of Employee and the failure to
remedy such performance to the Chief Executive Officer's
satisfaction within 30 days after delivery of written notice
to Employee of such finding); or
(iv) for any reason other than death, disability or for
cause.
(b) In the event of Employee's resignation or early termination pursuant
to subsection (a)(i), (ii) or (iii) above, Employee shall be entitled only to
his base salary earned through the date of termination. Employee's rights to any
bonus and unvested stock options or unvested restricted stock shall be
forfeited, but the termination shall not affect any rights of Employee that have
become vested under any employee benefit plan or arrangement. In the event that
Duke terminates Employee pursuant to subsection (a)(iv) above, prior to the end
of the term specified in Section 3 hereof, the balance of the annual base
compensation and target bonus (as established pursuant to the bonus program
hereto in Section 5 above) shall be paid to Employee at the time it would
otherwise be due and payable under the terms of this Agreement.
(c) After the end of the term specified in Section 3 hereof, Employee
shall be an employee-at-will whose employment can be terminated at any time for
any reason by Duke or Employee. If Duke decides to terminate Employee, Duke will
cooperate with Employee in determining when and how to announce such termination
and will delay any announcement for up to six months from the termination date
if Employee so requests. Upon termination, Employee shall be eligible to receive
severance benefits in accordance with the Severance Plan for executive employees
in effect as of the date of termination. In addition, Duke will provide Employee
with out placement services for six months after termination and will provide a
suitable furnished office for Employee at Duke to use for finding new employment
for a period of up to six months. Employee shall not receive any compensation
for any period of time post-termination, even though Employee may maintain an
office at Duke, except for the severance benefits provided by the Severance Plan
for executive employees.
(d) Upon Duke's termination of Employee's employment (except due to
death, disability or cause) during the term of this Agreement, Duke shall pay
Employee all reasonable relocation costs to move to any geographical location
within 1,000 miles of Charlotte, North Carolina and receive the same relocation
benefits that he was given upon his move to North Carolina.
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11. Notice. Any notice to be given hereunder by either party to the
other may be effectuated either by personal delivery in writing or by mail,
registered or certified, postage prepaid, with return receipt requested. Mailed
notices shall be addressed to the parties at the following addresses:
If to Duke or any other
Company Affiliate: Xx. Xxxxxxx Priory
Chairman and CEO
Duke Energy Corporation
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 - 1007
cc: Xx. Xxxxxxxxxxx X. Xxxxx
Vice President, Corporate Human Resources
Duke Energy Corporation
Xxxx Xxxxxx Xxx 0000, XX000-X
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
If to Employee: Xx. Xxxxxxx X. Xxxxxxxxx
General Counsel and Executive Vice President
Xxxx Xxxxxx Xxx 0000 - XX00X
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
12. Waiver of Breach. The waiver by any party to a breach of any
provision in this Agreement cannot operate or be construed as a waiver of any
subsequent breach by a party.
13. Severability. The invalidity or unenforceability of any particular
provision in this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if the invalid or
unenforceable provision were omitted.
14. Entire Agreement. Except as otherwise provided herein, this
Agreement covers the entire understanding of the parties as to the employment of
Employee, superseding all prior understandings and agreements, and no
modifications or amendments of the terms and conditions herein shall be
effective unless in writing and signed by the parties or their respective duly
authorized agents.
15. Governing Law. This Agreement shall be interpreted, construed and
governed according to the laws of the State of North Carolina, without reference
to conflicts of law principles thereof.
16. Consent to Jurisdiction. Employee hereby consents to the
nonexclusive jurisdiction of any state court within Mecklenburg County, North
Carolina or any federal
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court located within the Western District of the State of North Carolina for any
proceeding instituted hereunder or arising out of or in connection with this
Agreement.
17. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their permitted successors,
assigns, legal representatives and heirs, but neither this Agreement nor any
rights hereunder shall be assignable by Employee.
18. Temporary Housing and Relocation. Employee will relocate from New
Canaan, Connecticut to the Charlotte area. Duke will pay relocation costs under
its standard relocation plan referenced in Schedule X. Xxxx will provide
Employee with a furnished apartment for up to nine months, and reimburse
Employee for airfare and ground transportation related to weekend trips back to
Connecticut. Duke also will reimburse Employee for the reasonable cost
associated with house-hunting trips for his spouse.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
DUKE ENERGY
By: /s/ Xxxxxxx X. Priory
-------------------------------------
Title: Chief Executive Officer
----------------------------------
EMPLOYEE
/s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------(SEAL)
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SCHEDULE A
----------
The General Counsel will participate in Executive Cash Balance plan, effective
1-1-98.
o One account to provide a make-whole plan to compensate for IRS limits on
the qualified cash balance plan.
o A second account will provide an additional retirement benefit of 2% of
pay (base and bonus) each month.
o Interest on both accounts tied to 30-year treasury bonds.
The General Counsel will participate in Executive Savings Plan, effective
1-1-98.
o One account will provide a make-whole plan to compensate for IRS limits on
the qualified 401-K Plan.
o A second account will be for voluntary deferrals up to 25% of base pay and
up to 100% of cash incentives.
o Investment options consistent with the qualified 401-K Plan.
The General Counsel will participate in the financial planning benefit which
provides for $6,000/year or $18,000 over a 3-year period for financial planning
services.
The General Counsel will receive a membership in a country club.
The General Counsel will receive a membership in a dining club.
The General Counsel will receive a parking place in downtown Charlotte.
The General Counsel will receive standard relocation benefits.
The company will pay ABA dues, North Carolina State Bar dues, and other
professional dues for the General Counsel.
RESTRICTED STOCK AWARD AGREEMENT
--------------------------------
This Restricted Stock Award Agreement (the "Agreement") has been made as
of January 2, 1998, (the "Date of Award") by DUKE ENERGY CORPORATION with its
principal offices in Charlotte, North Carolina (the "Company"), to XXXXXXX X.
XXXXXXXXX, who resides at 0000 Xxxxxxxx Xxxxx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000 (the "Grantee").
RECITALS
Under the Duke Energy Corporation Stock Incentive Plan (the "Plan"), the
Company's Compensation Committee of the Board of Directors (the "Committee") has
determined the form of this Agreement and selected the Grantee, a Key Employee,
to receive this Restricted Stock Award and the shares of Duke Energy Corporation
Common Stock, without par value ("Common Stock") that are subject hereto. The
applicable terms of the Plan are incorporated in this Agreement by reference,
including the definitions of terms contained in the Plan.
RESTRICTED STOCK AWARD
In accordance with the terms of the Plan, the Company has made this
Restricted Stock Award effective as of January 2, 1998, and concurrently has
issued or transferred to the Grantee shares of Common Stock upon the following
terms and conditions:
Section 1. Number of Shares. The number of shares of Common Stock issued
or transferred under this Restricted Stock Award is three thousand (3,000).
Section 2. Rights of the Grantee as Shareholder. The Grantee, as the
owner of record of the shares of Common Stock issued or transferred pursuant to
this Restricted Stock Award, is entitled to all the rights of a shareholder of
the Company, including the right to vote, the right to receive cash or stock
dividends, and the right to receive shares in any recapitalization of the
Company, subject, however, to the restrictions stated in this Agreement and to
the restrictions referred to in the legend, if any, that appears on the back of
each certificate representing shares of Common Stock issued under this
Restricted Stock Award. If the Grantee receives any additional shares by reason
of being the holder of the shares of Common Stock issued or transferred under
this Restricted Stock Award or of the additional shares previously distributed
to the Grantee, all the additional shares shall be subject to the provisions of
this Agreement.
Section 3. Period of Restriction. The Period of Restriction under this
Restricted Stock Award shall commence on the Date of Award and expire upon the
earliest of (i) the date of death of the Grantee, (ii) the date of Disability of
the Grantee as defined in Section 2.10 of the Plan, (iii) the occurrence of a
Change of Control of the Company, as set forth in Section 2.5 of the Plan, or
(iv) the vesting of shares of Common Stock issued under this Restricted Stock
Award in equal installments of one thousand (1,000) shares each, in accordance
with the following vesting schedule:
Vesting Date
{Expiration of Period of Restriction) Shares Released from Restrictions
------------------------------------- ---------------------------------
January 4, 1999 1,000 shares
January 3, 2000 1,000 shares
January 2, 2001 1,000 shares
Section 4. Conditions During Period of Restriction. During the Period
of Restriction the following conditions must continue to be satisfied:
a. the employment of the Grantee with the Company must not terminate for
any reason, except as provided in Section 3 above;
b. the Grantee must not, voluntarily or involuntarily, sell, assign,
transfer, pledge, or otherwise dispose of the nonvested shares of
Common Stock issued or transferred pursuant to this Restricted Stock
Award; and
c. the Grantee must not exercise any dissenter's rights with respect to
the shares of Common Stock issued or transferred pursuant to this
Restricted Stock Award that are otherwise available under any
provisions of the North Carolina Business Corporation Act.
Section 5. Consequences of Failure to Satisfy Conditions. The following
shall be the consequences of Grantee's failure to satisfy the conditions in
Section 4 during the Period of Restriction:
a. If the condition of Section 4.a is not satisfied, either by act of the
Grantee or otherwise, (i) the Grantee will forfeit the nonvested shares
of Common Stock issued or transferred pursuant to this Restricted Stock
Award, (ii) the Grantee will assign and transfer the certificates
evidencing ownership of such nonvested shares to the Company, (iii) all
interest of the Grantee in such nonvested shares shall terminate, and
(iv) the Grantee shall cease to be shareholder with respect to such
nonvested shares.
b. Any attempted sale, assignment, transfer, pledge, or other disposition
of the nonvested shares of Common Stock issued or transferred pursuant
to this Restricted Stock Award in violation of the condition in Section
4.b, whether voluntary of involuntary, shall be ineffective and the
Company shall not be required to transfer the nonvested shares.
c. Any attempted exercise of dissenter's rights in violation of the
condition in Section 4.c shall be ineffective and the Company may
disregard any purported notice of
2
exercise of dissenter's rights by the Grantee during the Period of Restriction
with respect to the nonvested shares of Common Stock issued or transferred
pursuant to this Restricted Stock Award.
Section 6. Lapse of Restrictions. At the end of the Period of
Restriction, if the condition specified in Section 4.a has been satisfied during
the Period of Restriction, all restrictions shall terminate, and the Grantee
shall be entitled to exchange the certificates containing the legend prescribed
in Section 7 for certificates without the legend, provided, that if the Grantee
has attempted to violate the condition specified in Section 4.b, the Company
shall have no obligation to deliver unlegended certificates to anyone other than
the Grantee. However, in the event of an attempted violation of the condition
specified in Section 4.b, the Company shall be entitled to withhold delivery of
any of the certificates if, and for so long as, in the judgment of the Company's
counsel, the Company would incur a risk of liability to any party whom such
shares were purported to be sold, transferred, pledged, or otherwise disposed.
Section 7. Legend on Certificates. Each certificate evidencing
ownership of shares of Common Stock issued or transferred pursuant to this
Restricted Stock Award during the Period of Restriction shall bear the following
legend on the back side of the certificate:
"These shares have been issued or transferred
subject to a Restricted Stock Award Agreement and
are subject to substantial restrictions, including
but no limited to, a prohibition against transfer,
either voluntary or involuntary, a waiver of any
appraisal rights, and a provision requiring transfer
of these shares to Duke Energy Corporation (the
"Company") without any payment in the event of
termination of the employment of the registered
owner, all as more particularly set forth in a
Restricted Stock Award Agreement, a copy of which is
on file with the Company."
Pursuant to Section 8.4 of the Plan, the Company shall hold the shares of Common
Stock issued or transferred pursuant to this Restricted Stock Award in escrow
during the Period of Restriction.
Section 8. Specific Performance of the Grantee's C.oven0'ts. By
accepting this Restricted Stock Award and the issuance and delivery of the
shares of Common Stock pursuant to this Restricted Stock Award, the Grantee
acknowledges that the Company does not have an adequate remedy in damages for
the breach by the Grantee of the conditions and covenants set forth in this
Restricted Stock Award Agreement and agrees that the Company is entitled to and
may obtain an order or a decree of specific performance against the Grantee
issued by any court having jurisdiction.
Section 9. Employment with the Company. Nothing in this Agreement or in
the Plan shall confer upon the Grantee the right to continued employment with
the Company.
3
Section 10. Section 83(b) Election. If the Grantee makes an election
pursuant to Section 83(b) of the Internal Revenue Code, the Grantee shall
promptly file a copy of such election with the Company.
Section 11. Withholding Tax. Before a certificate for shares of Common
Stock is issued or delivered pursuant to this Restricted Stock Award or, if the
Grantee makes the election permitted by Section 83(b) of the Internal Revenue
Code, the Company may, by notice to the Grantee, require that the Grantee pay to
the Company the amount of federal, state, or local taxes, if any, required by
law to be withheld. The Company may satisfy the withholding requirement in whole
or in part, by withholding shares of Common Stock having a fair market value
equal to the withholding tax.
Section 12. Notices 07d Payments. Any notice to be given by the Grantee
under this Agreement shall be in writing and shall be deemed to have been given
only upon receipt by the Secretary of the Company at 000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, or at such address as may be communicated in
writing to the Grantee from time to time. Any notice or communication by the
Company to the Grantee under this Agreement shall be in writing and shall be
deemed to have been given if mailed or delivered to the Grantee at the address
listed in the records of the Company or at such address as specified in writing
to the Company by the Grantee.
Section 13. Waiver. The waiver by the Company of any provision of this
Agreement shall not operate as, or be construed to be, a waiver of the same or
any other provision of this Agreement at any subsequent time for any other
purpose.
Section 14. Termination or Modification of Restricted Stock Award. This
Restricted Stock Award shall be irrevocable except that the Company shall have
the right under Article 19 of the Plan to revoke this Agreement at any time
during the Period of Restriction if it is contrary to law or modify this
Restricted Stock Award to bring it into compliance with any valid and mandatory
law or government regulation. In the event of revocation of this Agreement
pursuant to the foregoing, the Company may give notice to the Grantee that the
nonvested shares of Common Stock are to be assigned, transferred, and delivered
to the Company as though the Grantee's employment with the Company terminated on
the date of the notice.
Section 15. Section Headings. The section headings in this Agreement
are for convenience of reference only and shall not be deemed as part of, or
germane to, the interpretation or construction of this Agreement.
Section 16. Determination by Committee. Determinations by the Committee
shall be final and conclusive with respect to the interpretation of the Plan and
this Agreement.
Section 17. Governing Law. The validity and construction of this
Agreement shall be governed by the laws of the state of North Carolina.
4
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
and granted in Charlotte, North Carolina, to be effective as of January 2, 1998.
ATTEST:
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Priory
-------------------------- ---------------------------
Assistant Secretary Chairman and Chief Executive
Officer
Acceptance of Restricted Stock Award
The undersigned Grantee accepts this Restricted Stock Award and the
three thousand (3,000) shares of Common Stock issued or transferred under this
Agreement and agrees to be bound by the provisions of this Agreement, including
but not limited to the agreements and covenants of the Grantee expressed in
Section 4.
Dated this 13 day of January, 1998.
/s/ Xxxxxxx X. Xxxxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxxxx
Grantee
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