is amended as of December 1, 2007 by and between GATEWAY BANK & TRUST CO.,
banking corporation (hereinafter referred to as the “Bank”) and XXXXXXXX X. XXXXXX
an individual resident of Virginia
(hereinafter referred to as the “Officer”).
For and in consideration of their mutual promises, covenants and conditions hereinafter set
forth, and other good and valuable consideration, the receipt and sufficiency of which hereby is
acknowledged, the parties agree as follows:
1. Employment. The Bank agrees to employ the Officer and the Officer agrees to accept
employment upon the terms and conditions stated herein as the Chief Financial Officer of the Bank.
The Officer shall render such administrative and management services to the Bank as are customarily
performed by persons situated in a similar executive capacity. The Officer shall promote the
business of the Bank and perform such other duties as shall, from time to time, be reasonably
assigned by the Chief Executive Officer of the Bank. Upon the request of the Chief Executive
Officer, the Officer shall disclose all business activities or commercial pursuits in which Officer
is engaged, other than Bank duties.
2. Compensation. The Bank shall pay the Officer during the term of this Agreement, as
compensation for all services rendered by the Officer to the Bank, a base salary at the rate of
$215,000 per annum, payable in cash not less frequently than monthly. The rate of such salary
shall be reviewed by the Compensation Committee of the Board of Directors of the Bank (the
“Committee”) not less often than annually and the Committee may increase, but shall not decrease,
such rate during the term of this Agreement. Such rate of salary, or increased rate of salary, as
the case may be, may be further increased from time to time in such amounts as the Committee, in
its discretion, may decide. In determining salary increases, the Committee shall compensate the
Officer for increases in the cost of living and may also provide for performance or merit
increases. Participation in the Bank’s incentive compensation, deferred compensation,
discretionary bonus, profit-sharing, retirement and other employee benefit plans and participation
in any fringe benefits shall not reduce the salary payable to the Officer under this Paragraph. In
the event of a Change in Control (as defined in Paragraph 10), the Officer’s rate of salary shall
be increased not less than five percent annually during the term of this Agreement. Any payments
made under this Agreement shall be subject to such deductions as are required by law or regulation
or as may be agreed to by the Bank and the Officer.
3. Discretionary Bonuses. During the term of this Agreement, the Officer shall be
entitled to such discretionary bonuses as may be authorized, declared and paid by the Committee to
the Bank’s key management employees. No other compensation provided for in this Agreement shall be
deemed a substitute for the Officer’s right to such discretionary bonuses when and as declared by
4. Participation in Retirement and Employee Benefit Plans; Fringe Benefits.
(a) The Bank shall provide family medical coverage and disability insurance for the Officer
and the Officer shall also be entitled to participate in any plan relating to deferred
compensation, stock options, stock purchases, pension, thrift, profit sharing, group life
insurance, education, or other retirement or employee benefits that the Bank has adopted, or may,
from time to time adopt, for the benefit of its executive employees or for employees generally,
subject to the eligibility rules of such plans.
(b) The Officer shall also be entitled to participate in any other fringe benefits which are
now or may be or become applicable to the Bank’s executive employees, including the payment of
expenses for attending annual and periodic meetings of trade associations, and any other
are commensurate with the duties and responsibilities to be performed by the Officer under
this Agreement. Additionally, the Officer shall be entitled to such vacation and sick leave as
shall be established under uniform employee policies promulgated by the Bank. The Bank shall
reimburse the Officer for all out-of-pocket reasonable and necessary business expenses which the
Officer may incur in connection with the Officer’s services on behalf of the Bank.
(c) The Bank shall pay the dues of the Officer for membership in the Kingsmill Country Club
and one additional country club in the market area of the Bank at the Officer’s election and dues
for membership in civic clubs. The Bank shall also provide the Officer with the use of a late
model automobile suitable to the status of the Officer of a type and for lease terms to be approved
by the Committee and with the use of a cellphone.
5. Term. The initial term of employment under this Agreement shall be for the period
commencing upon April 17, 2006 and ending three calendar years from that date. On each anniversary
of the effective date of this Agreement, the term of this Agreement shall automatically be extended
for an additional one-year period beyond the then effective expiration date unless written notice
from the Bank or the Officer is received 90 days prior to an anniversary date advising the other
that this Agreement shall not be further extended; provided that the Committee shall review the
Officer’s performance annually and make a specific determination pursuant to such review to renew
this Agreement prior to the 90 days’ notice.
6. Loyalty; Noncompetition; Confidentiality.
(a) The Officer shall devote his full efforts and entire business time to the performance of
the Officer’s duties and responsibilities under this Agreement.
(b) During the term of this Agreement, or any renewals thereof, and for a period of one year
after termination, the Officer agrees he will not, within the “Restricted Area,” directly or
indirectly, engage in any business that competes with the Bank or any of its subsidiaries without
the prior written consent of the Bank; provided, however, that the provisions of this Paragraph
shall not apply in the event the Officer’s employment is unilaterally terminated by the Bank for
Cause, (as such term is defined in Paragraph 8(c) hereof) or in the event the Officer terminates
his employment with the Bank after the occurrence of a “Termination Event” (as such term is defined
in Paragraph 10(b) hereof) following a “Change of Control” (as such term is defined in Paragraph
10(d) hereof). The Restricted Area covers the following divisible list of territories: Camden,
Chowan, Currituck, Dare, Pasquotank, and Perquimans Counties, North Carolina
and Chesapeake and
, and within 15 miles of any Bank office operated during the term of this
Agreement. The one-year restricted period, however, does not include any period of violation or
period of time required for litigation to enforce the Officer’s agreement not to compete against
the Bank. Notwithstanding the foregoing, the Officer shall be free, without such consent, to
purchase or hold as an investment or otherwise, up to five percent of the outstanding stock or
other security of any corporation which has its securities publicly traded on any recognized
securities exchange or in any over-the counter market.
(c) The Officer agrees he will hold in confidence all knowledge or information of a
confidential nature with respect to the business of the Bank or any subsidiary received by the
Officer during the term of this Agreement and will not disclose or make use of such information
without the prior written consent of the Bank. The Officer agrees that he will be liable to the
Bank for any damages caused by unauthorized disclosure of such information. Upon termination of
his employment, the Officer agrees to return all records or copies thereof of the Bank or any
subsidiary in his possession or under his control which relate to the activities of the Bank or any
(d) The Officer acknowledges that it would not be possible to ascertain the amount of monetary
damages in the event of a breach by the Officer under the provisions of this Paragraph 6. The
Officer agrees that, in the event of a breach of this Paragraph 6, injunctive relief enforcing the
this Paragraph 6 is an appropriate remedy. If the scope of any restriction contained in this
Paragraph 6 is determined to be too broad by any court of competent jurisdiction, then such
restriction shall be enforced to the maximum extent permitted by law and the Officer consents that
the scope of this restriction may be modified judicially.
7. Standards. The Officer shall perform his duties and responsibilities under this
Agreement in accordance with such reasonable standards expected of employees with comparable
positions in comparable organizations and as may be established from time to time by the Bank. The
Bank will provide the Officer with the working facilities and staff customary for similar
executives and necessary for the Officer to perform his duties.
8. Termination and Termination Pay. (a) The Officer’s employment under this
Agreement shall be terminated upon the death of the Officer during the term of this Agreement, in
which event, the Officer’s estate shall be entitled to receive the compensation due the Officer
through the last day of the calendar month in which the Officer’s death shall have occurred and for
a period of one month thereafter.
(b) The Officer’s employment under this Agreement may be terminated at any time by the Officer
upon 60 days’ written notice to the Bank. Upon such termination, the Officer shall be entitled to
receive compensation through the effective date of such termination.
(c) The Bank may terminate the Officer’s employment at any time, but any termination by the
Bank, other than termination for Cause, shall not prejudice the Officer’s right to compensation or
other benefits under this Agreement. The Bank shall provide written notice specifying the grounds
for termination for Cause. The Officer shall have no right to receive compensation or other
benefits for any period after termination for Cause. Termination for Cause shall include
termination because of the Officer’s personal dishonesty or moral turpitude, willful misconduct,
breach of fiduciary duty involving personal profit, intentional failure to perform stated duties,
willful violation of any law, rule, or regulation (other than traffic violations or similar
offenses) or final cease-and-desist order, or material breach of any provision of this Agreement.
Notwithstanding such termination, the obligations under Paragraph 6(c) shall survive any
termination of employment.
(d) Subject to the Bank’s obligations and the Officer’s rights under (i) Title I of the
Americans with Xxxxxxxxxxxx Xxx, §000 of the Rehabilitation Act, and the Family and Medical Leave
Act, and to (ii) the vacation leave, disability leave, sick leave and any other leave policies of
the Bank, the Officer’s employment under this Agreement automatically shall be terminated in the
event the Officer becomes disabled during the term of this Agreement and it is determined by the
Bank that the Officer is unable to perform the essential functions of the Officer’s job under this
Agreement for ninety (90) business days or more during any 12-month period. Upon any such
termination, the Officer shall be entitled to receive any compensation the Officer shall have
earned prior to the date of termination but which remains unpaid, and shall be entitled to any
payments provided under any disability income plan of the Bank which is applicable to the Officer.
In the event of any disagreement between the Officer and the Bank as to whether the Officer is
physically or mentally incapacitated such as will result in the termination of the Officer’s
employment pursuant to this Paragraph 8(d), the question of such incapacity shall be submitted to
an impartial physician licensed to practice medicine in North Carolina
for determination and who
will be selected by mutual agreement of the Officer and the Bank, or failing such agreement, by two
(2) physicians (one (1) of whom shall be selected by the Bank and the other by the Officer), and
such determination of the question of such incapacity by such physician or physicians shall be
final and binding on the Officer and
the Bank. The Bank shall pay the reasonable fees and expenses
of such physician or physicians in making any determination required under this Paragraph 8(d).
9. Additional Regulatory Requirements. Notwithstanding anything contained in this
Agreement to the contrary, it is understood and agreed that the Bank (or any of its successors in
interest) shall not be required to make any payment or take any action under this Agreement if:
(a) such payment or action is prohibited by any governmental agency having jurisdiction over
the Bank (hereinafter referred to as “Regulatory Authority”) because the Bank is declared by such
Regulatory Authority to be insolvent, in default or operating in an unsafe or unsound manner; or,
(b) in the reasonable opinion of counsel to the Bank, such payment or action (i) would be
prohibited by or would violate any provision of state or federal law applicable to the Bank,
including, without limitation, the Federal Deposit Insurance Act as now in effect or hereafter
amended, (ii) would be prohibited by or would violate any applicable rules, regulations, orders or
statements of policy, whether now existing or hereafter promulgated, of any Regulatory Authority,
or (iii) otherwise would be prohibited by any Regulatory Authority.
10. Change in Control. (a) In the event of a termination of the Officer’s employment
in connection with, or within twenty-four (24) months after, a “Change in Control” (as defined in
Subparagraph (d) below) of the Bank other than for Cause (as defined in Paragraph 8), the Officer
shall be entitled to receive the amount set forth in Subparagraph (c) below. Said sum shall be
payable as provided in Subparagraph (e) below.
(b) In addition to any rights the Officer might have to terminate this Agreement contained in
Paragraph 8, the Officer shall have the right to terminate this Agreement upon the occurrence of
any of the following events (the “Termination Events”) within twenty-four months following a Change
in Control of the Bank:
(i) Officer is assigned any duties and/or responsibilities that, in Officer’s reasonable
determination, are inconsistent with or constitute a demotion or reduction in the Officer’s
position, duties, responsibilities or status as such existed at the time of the Change in
Control or with his reporting responsibilities or titles with the Bank in effect at such time,
regardless of Officer’s resulting position; or
(ii) Officer’s annual base salary rate is reduced below the annual amount in effect as of
the effective date of a Change in Control or as the same shall have been increased from time to
time following such effective date; or
(iii) Officer’s life insurance, medical or hospitalization insurance, disability
insurance, stock options plans, stock purchase plans, deferred compensation plans, management
retention plans, retirement plans or similar plans or benefits being provided by the Bank to
the Officer as of the effective date of the Change in 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 Bank who participated in
such benefits prior to such Change in Control; or
(iv) Officer is transferred to a location which is more than 15 miles from his 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.
(c) In the event that the Officer’s employment is terminated pursuant to this Paragraph 10,
the Bank will be obligated to pay or cause to be paid to Officer an amount equal to 2.99 times the
Officer’s “base amount” as defined in Section 280G(b)(3) of the Internal Revenue Code of 1986, as
amended (the “Code”).
(d) For the purpose of this Agreement, the term “Change in Control” shall mean:
(i) Any person, or more than one person acting as a group, accumulates ownership of the
common stock of Gateway Financial Holdings, Inc. (“Gateway Financial”) constituting more than
50% of the total fair market value or total voting power of Gateway Financial’s common stock,
(ii) Any person, or more than one person acting as a group, acquires within a 12-month
period ownership of Gateway Financial’s common stock possessing 30% or more of the total voting
power of Gateway Financial’s common stock;
(iii) A majority of Gateway Financial’s Board of Directors is replaced during any 12-month
period by directors whose appointment or election is not endorsed in advance by a majority of
Gateway Financial’s Board of Directors before the date of appointment or election, or
(iv) Within a 12-month period, any person, or more than one person acting as a group,
acquires assets from Gateway Financial having a total gross fair market value equal to or
exceeding 40% of the total gross fair market value of all of the assets of Gateway Financial
immediately before the acquisition or acquisitions. For this purpose, “gross fair market
value” means the value of Gateway Financial’s assets, or the value of the assets being disposed
of, determined without regard to any liabilities associated with the assets
Persons will be considered to be acting as a group if they are owners of a corporation that enters
into a merger, consolidation, purchase, or acquisition of stock, or a similar transaction,
involving Gateway Financial. Notwithstanding the other provisions of this Paragraph 10, a
transaction or event shall not be considered a Change in Control if, prior to the consummation or
occurrence of such transaction or event, the Employee and Bank agree in writing that the same shall
not be treated as a Change in Control for purposes of this Agreement.
(e) Such amounts payable pursuant to this Paragraph 10 shall be paid, at the option of the
Officer, either in one lump sum or in thirty-six (36) equal monthly payments following termination
of Officer’s employment.
(f) Following a Termination Event which gives rise to Officer’s rights hereunder, the Officer
shall have twelve (12) months from the date of occurrence of the Termination Event to terminate
this Agreement pursuant to this Paragraph 10. Any such termination shall be deemed to have
occurred only upon delivery to the Bank (or to any successor corporation) of written notice of
termination which describes the Change in Control and the Termination Event. If Officer does not
so terminate this Agreement within such twelve-month period, he 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.
(g) In the event any dispute shall arise between the Officer and the Bank as to the terms or
interpretation of this Agreement, including this Paragraph 10, whether instituted by formal legal
proceedings or otherwise, including any action taken by the Officer to enforce the terms of this
Paragraph 10 or in defending against any action taken by 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.
11. Successors and Assigns. (a) This Agreement shall inure to the benefit of and be
binding upon any corporate or other successor of the Bank which shall acquire, directly or
indirectly, by conversion, merger, purchase or otherwise, all or substantially all of the assets of
(b) Since the Bank is contracting for the unique and personal skills of the Officer, the
Officer shall be precluded from assigning or delegating his rights or duties hereunder without
first obtaining the written consent of the Bank.
12. Modification; Wavier; Amendments. This Agreement represents, constitutes, and
incorporates the entire, exclusive, and complete understanding of the parties hereto and replaces
agreements. This Agreement replaces the “probationary period” employment letter
between the Officer and the Bank dated as of his employment, which established the non-competition
covenant in consideration of Officer’s employment by the Bank. The Officer, by execution of this
Agreement, acknowledges that by acceptance of the terms of this Agreement, the Officer agrees not
to dispute, and waives any argument as to, the adequacy of the consideration for the
non-competition and other covenants
in this Agreement. No provision of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing, signed by the Officer and on
behalf of the Bank by such officer as may be specifically designated by the Board of Directors. No
waiver by either party hereto, at any time, of any breach by the other party hereto 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. No amendment or addition to this Agreement shall be binding unless in
writing and signed by both parties, except as herein otherwise provided.
13. 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
to the extent that federal law shall be deemed to apply.
14. Severability. The provisions of this Agreement shall be deemed severable and the
invalidity or unenforceability of any provision shall not affect the validity or enforceability of
the other provisions hereof.
IN WITNESS WHEREOF, the parties have amended this Agreement as of the day and year first
||GATEWAY BANK & TRUST CO.
||/s/ D. Xxx Xxxxx
||D. Xxx Xxxxx, Chief Executive Officer
|/s/ Xxxxx X. Small
||Xxxxxxxx X. Xxxxxx
||Xxxxxxxx X. Xxxxxx