Exhibit 10.10
STATE OF NORTH CAROLINA
COUNTY OF XXXXXXXX
CHANGE OF CONTROL AGREEMENT
THIS CHANGE OF CONTROL AGREEMENT (hereinafter referred to as this
"Agreement") is entered into as of the 1ST day of JANUARY, 2002, by and among
BANK OF GRANITE CORPORATION (the "Corporation"), a Delaware corporation, or its
successors, the Corporation's wholly-owned subsidiary BANK OF GRANITE (the
"Bank"), a banking association organized under the laws of the state of North
Carolina, or its successors, (hereinafter the Corporation and the Bank, or their
successors, are collectively referred to as the "Company"), and XXXXXXX X.
XXXXXX (the "Officer"), an individual residing in CATAWBA County, North
Carolina.
WHEREAS, the Officer has heretofore been employed by the Company with the
title of "PRESIDENT OF BANK OF GRANITE CORPORATION AND PRESIDENT AND CHIEF
EXECUTIVE OFFICER OF BANK OF GRANITE"; and
WHEREAS, the services of the Officer, the Officer's experience and
knowledge of the affairs of the Company and reputation and contacts in the
industry are extremely valuable to the Company; and
WHEREAS, the Company wishes to attract and retain such well-qualified
executives and it is in the best interest of the Company and of the Officer to
secure the continued services of the Officer notwithstanding any change of
control of the Corporation or the Bank; and
WHEREAS, the Company considers the establishment and maintenance of a
sound and vital management team to be part of their overall corporate strategy
and to be essential to protecting and enhancing the best interest of the Company
and the its shareholders; and
WHEREAS, the parties desire to enter into this Agreement to provide the
Officer with security in the event of a change of control of the Corporation or
the Bank to ensure the continued loyalty of the Officer during any change of
control in order to maximize shareholder value as well as the continued safe and
sound operation of the Company.
WHEREAS, the Officer, the Company acknowledge and agree that this
Agreement is not an employment agreement but is limited to circumstances giving
rise to a change of control of the Corporation or the Bank as set forth herein.
NOW, THEREFORE, for and in consideration of the premises and mutual
promises, covenants, and conditions hereinafter set forth, and other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the parties hereby do agree as follows:
1. Term. The initial term of this Agreement shall be for the period
commencing upon the effective date of this Agreement and ending
THREE (3) calendar years from the effective date of this Agreement.
At each anniversary date of this Agreement, the term automatically
shall be extended for an additional THREE (3) calendar years on the
same terms and conditions set forth herein, unless the Company shall
give written
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notice to the Officer of its intention not to extend this Agreement
for an additional THREE (3) calendar years, which notice shall be
given at least thirteen (13) months prior to the next anniversary
date.
2. Change of Control.
(a) In the event of a termination of the Officer's employment in
connection with, or within THIRTY-SIX (36) months after, a "Change
of Control" (as defined in Subparagraph (e) below) of the
Corporation or the Bank, for reasons other than for "cause" (as
defined in Subparagraph (b) below), the Officer shall be entitled to
receive the sum set forth in Subparagraph (d) below. Said sum shall
be payable as provided in Subparagraph (f) below, provided, however,
that the Officer is employed on a full-time basis by the Bank at the
effective time of the "Change of Control", except as provided in
Subparagraph (j) below.
(b) For purposes of this Agreement, termination "for cause" shall
mean (a) any dishonest, illegal or other act of moral turpitude
(such as theft, fraud or embezzlement) by the Officer which is
materially detrimental to the interest and well-being of the
Company, (b) the conviction of a felony, (c) the unreasonable
failure or refusal of the Officer to perform to the best of his
ability on a reasonable basis his duties hereunder, or (d) any
violation by the Officer of any state or federal law, rule or
regulation relating to banking, financial institutions or securities
laws, the violation of which would be materially detrimental to the
interest and well-being of the Company.
(c) The Officer shall have the right to terminate this Agreement
upon the occurrence of any of the following events (the "Termination
Events") within THIRTY-SIX (36) months following a Change of Control
of the Company or the Bank:
(i) Officer is assigned any duties and/or responsibilities
that are inconsistent with his duties or
responsibilities at the time of the Change of Control;
(ii) Officer's annual base salary is reduced below the amount
in effect as of the effective date of a Change of
Control;
(iii) Officer's life insurance, medical or hospitalization
insurance, disability insurance, stock option plans,
stock purchase plans, deferred compensation plans,
management retention plans, retirement plans, or similar
plans or benefits being provided by the Company to the
Officer as of the effective date of the Change of
Control are reduced in their level, scope, or coverage,
or any such insurance, plans, or benefits are
eliminated, unless such reduction or elimination applies
proportionately to all salaried employees of the Company
who participated in such benefits prior to such Change
of Control; or
(iv) Officer is required to transfer performance of his
day-to-day services required hereunder to a location
which is more than fifty (50) miles from the Officer's
current principal work location, without the Officer's
express written consent.
A Termination Event shall be deemed to have occurred on the
date such action or event is implemented or takes effect.
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(d) In the event that the Officer terminates this Agreement pursuant
to this Paragraph 2, the Company will be obligated (1) to pay or
cause to be paid to the Officer an amount equal to THREE (3) times
(i) the Officer's then current salary plus (ii) the average of the
cash bonus incentive paid to the Officer by the Company under the
Company's bonus incentive plan during the immediately preceding
three (3) years, and (2) to continue for a period of THREE (3) years
after such termination all benefits the Officer was receiving and
entitled to at such termination date under the Company's benefit
programs and plans, including, but not limited to, vacation,
personal leave, participation and vesting in incentive stock option
plans, participation and vesting in profit sharing and supplemental
retirement benefit plans, medical, disability, life and accident
insurance coverage and reasonable costs of continuing education and
other fees associated with the maintenance and renewal of
professional licenses (all said benefits being hereinafter referred
to as the "Fringe Benefits"). So long as the Officer is employed
hereunder, the Company will provide and maintain a full-sized,
four-door automobile for the Officer's business and personal use,
and the Officer shall be responsible for any income or other taxes
associated with such personal use of the Company-provided
automobile. The Officer, in his sole discretion, may elect to
receive the cash dollar equivalent of such benefits.
(e) For the purposes of this Agreement, the term Change of Control
shall mean any of the following events:
(i) After the effective date of this Agreement, any "person"
(as such term is defined Section 7(j)(8)(A) of the
Change in Bank Control Act of 1978), directly or
indirectly, acquires beneficial ownership of voting
stock, or acquires irrevocable proxies or any
combination of voting stock and irrevocable proxies,
representing fifty percent (50%) or more of any class of
voting securities of the Corporation or the Bank, or
acquires control of in any manner the election of a
majority of the directors of the Corporation or the
Bank;
(ii) The Corporation or the Bank consolidates or merges with
or into another corporation, association, or entity, or
is otherwise reorganized, where the Corporation or the
Bank is not the surviving corporation in such
transaction and the holders of the voting securities of
the Corporation or the Bank immediately prior to such
acquisition own less than a majority of the voting
securities of the surviving entity immediately after the
transaction; or
(iii) All or substantially all of the assets of the
Corporation or the Bank are sold or otherwise
transferred to or are acquired by any other corporation,
association, or other person, entity, or group.
Notwithstanding the other provisions of this Paragraph 2, a
transaction or event shall not be considered a Change of
Control if, prior to the consummation or occurrence of such
transaction or event, the Officer and the Company agree in
writing that the same shall not be treated as a Change of
Control for purposes of this Agreement.
(f) Amounts payable pursuant to this Paragraph 2 shall be paid, at
the option of the Officer, either in one lump sum or in
THIRTY-SIX (36) equal monthly payments.
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(g) Following a Termination Event which gives rise to the
Officer's rights hereunder, the Officer shall have THREE (3)
years from the date of occurrence of the Termination Event to
terminate this Agreement pursuant to this Paragraph 2. Any
such termination shall be deemed to have occurred only upon
delivery to the Corporation or Bank, or any successors
thereto, of written notice of termination, which describes the
Change of Control and Termination Event. If the Officer does
not so terminate this Agreement within such THREE (3) year
period, the Officer shall thereafter have no further rights
hereunder with respect to that Termination Event, but shall
retain rights, if any, hereunder with respect to any other
Termination Event as to which such period has not expired.
(h) It is the intent of the parties hereto that all payments made
pursuant to this Agreement be deductible by the Corporation or
the Bank for federal income tax purposes and not result in the
imposition of an excise tax on the Officer. Notwithstanding
anything contained in this Agreement to the contrary, any
payments to be made to or for the benefit of the Officer which
are deemed to be "parachute payments" as that term is defined
in Section 280G(b)(2) of the Internal Revenue Code, as amended
(the "Code"), shall be modified or reduced to the extent
deemed to be necessary by the Company's Board of Directors to
avoid the imposition of an excise tax on the Officer under
Section 4999 of the Code or the disallowance of a deduction to
the Company under Section 280G(a) of the Code.
(i) In the event any dispute shall arise between the Officer and
the Company as to the terms or interpretation of this
Agreement, including this Paragraph 2, whether instituted by
formal legal proceedings or otherwise, including any action
taken by the Officer to enforce the terms of this Paragraph 2
or in defending against any action taken by the Corporation or
the Bank, the Bank shall reimburse the Officer for all costs
and expenses, proceedings or actions, in the event the Officer
prevails in any such action.
(j) It is further agreed that the payment agreed in this Paragraph
2 to be paid by the Company to the Officer shall be due and
paid to the Officer should a Change of Control (as defined
above) be agreed to by the Corporation or the Bank or be
consummated within six (6) months of the Officer's involuntary
termination of employment with the Corporation or the Bank for
reasons other than for "cause" as such term is defined in
Subparagraph 2(b) hereof.
3. Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon any corporate or other successor of the
Corporation or the Bank, which shall acquire, directly or
indirectly, by conversion, merger, consolidation, purchase, or
otherwise, all or substantially all of the assets of the Corporation
or the Bank.
4. Modification; Waiver; Amendments. No provision of this Agreement may
be modified, waived or discharged unless such waiver, modification
or discharge is agreed to in writing and signed by the Officer, the
Company, except as herein otherwise provided. No waiver by any party
hereto, at any time, of any breach by any party hereto, or
compliance with, any condition or provision of this Agreement to be
performed by such party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or
subsequent time. No amendments or additions to this Agreement shall
be binding unless in writing and signed by the parties, except as
herein otherwise provided.
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5. Applicable Law. This Agreement shall be governed in all respects
whether as to validity, construction, capacity, performance, or
otherwise, by the laws of North Carolina, except to the extent that
federal law shall be deemed to apply.
6. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision
hereof shall not affect the validity or enforceability of the other
provision hereof.
IN TESTIMONY WHEREOF, the Company have caused this Agreement to be
executed under seal and in such form as to be binding, all by authority of their
Board(s) of Directors first duly given, and the individual party hereto has set
said party's hand hereto and has adopted as said party's seal the typewritten
word "SEAL" appearing beside said party's name, this the day and year first
above written.
(Corporate Seal) BANK:
[Bank of Granite
corporate seal here]
ATTEST: Bank of Granite
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxxxxx, Xx.
-------------------------------- ------------------------------------
Xxxxx X. Xxxxxxx Xxxx X. Xxxxxxxx, Xx.
Secretary Chairman
(Corporate Seal) CORPORATION:
[Bank of Granite Corporation
corporate seal here]
ATTEST: Bank of Granite Corporation
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxxxxx, Xx.
-------------------------------- ------------------------------------
Xxxxx X. Xxxxxxx Xxxx X. Xxxxxxxx, Xx.
Secretary Chairman and Chief Executive Officer
OFFICER:
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
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