Exhibit 10.5
NORTH CAROLINA
HYDE COUNTY
THIS AGREEMENT made this the 1st day of April, 1999, by and between The
East Carolina Bank, a North Carolina corporation ("ECB") and X. Xxxxxx White,
Jr. a resident of Pitt County, North Carolina (the "Officer") WITNESSETH:
WHEREAS the Officer has been working for ECB for a period of time;
AND WHEREAS the parties hereto wish to formalize their arrangement as set
out herein;
AND WHEREAS both parties fully understand the terms of this agreement and
stipulate that the same are just, fair, and equitable to both parties hereto;
NOW THEREFORE, the parties hereto agree as follows:
1. ECB hereby engages the employment of the Officer and the Officer
hereby accepts such engagement of employment upon the terms and conditions as
herein stated;
2. The Officer shall render such administrative, managerial, and other
services to ECB, its parents, subsidiaries, and sister companies as are
customarily performed by persons situated in a similar capacity as well as such
other and additional duties and services as may be directed by the Board of
Directors, the President, and all officers having authority senior to that of
the Officer. The Officer shall perform his duties and responsibilities under
this agreement in accordance with reasonable standards expected of employees
with comparable organizations and the Bank's policies and procedures and as may
be established by the Board of Directors of ECB and its designees. Because ECB
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;
3. During the term of this agreement, ECB shall pay to the Officer for
the services to be rendered by him for ECB a base salary in such amounts and at
such intervals as may be commensurate with his duties and responsibilities
hereunder as determined by the Board of Directors and its designees. In addition
ECB will provide the Officer such additional incentives, compensations, bonuses
and other benefits as it may determine from time to time;
4. Either party shall have the absolute right to terminate this agreement
at any time, without cause, upon giving the other party thirty (30) days prior
written notice. ECB shall have the right, but not the obligation, to pay to the
Officer thirty (30) days salary in lieu of any notice to be given by it. ECB
shall have the right to waive any notice to which it might be entitled hereunder
and to immediately terminate the employment of the Officer without further
payment at such time as the Officer gives ECB notice of his intention to
terminate this
agreement. ECB shall have the right to immediately terminate this agreement at
any time with cause without further obligation to the Officer. The term "with
cause" includes, but is not limited to, personal dishonesty, incompetence,
wilful material misconduct, breach of fiduciary duty, failure to perform the
obligations of the Officer as stated herein, wilful violation of any law, rule,
or regulation (other than minor traffic infractions), or, any material breach of
any provision of this agreement;
5. In the event of the involuntary termination of the Officer's
employment without cause within ninety (90) days of any change of control of ECB
or its parent company, or, in the event of a voluntary termination of the
Officer's employment within ninety (90) days after any change of control of ECB
under which the Officer shall have incurred a reduction of salary or in
responsibilities, then the Officer shall be entitled to receive the greater of:
(a) The severance payment offered by the corporation in such notice of
termination, or,
(b) A lump sum equal to 150.00% of the average annual salary paid to the
Officer over the three prior 12 month periods, plus a lump sum equal
to 150.00% of the average annual cash bonuses and cash incentives paid
to the Officer over the three prior 12 month periods (exclusive of any
stock options, stock grants, or the exercise of any stock options),
plus the Officer will be carried on the medical insurance program (if
any) of the Corporation for 18 calendar months after such termination.
The provisions of this P. 5 shall only be applicable to situations relating
to a change of control of ECB or its parent company. As use herein, the phrase
"change of control" shall mean the direct or indirect acquisition by another
person, firm or corporation, by merger, share exchange, consolidation, purchase
or otherwise, all or substantially all of the assets or stock of ECB or its
parent company;
6. The Officer agrees that he will devote his full efforts and entire
business time to the performance of his duties and responsibilities under this
agreement;
7. The Officer will hold in strict confidence, during the term of this
agreement and at all times thereafter, all knowledge and information of a
confidential nature with respect to the business of ECB, its parent company, its
subsidiaries, and it sister corporations, received during the term of his
employment with ECB and will not disclose or make use of such information
without the prior written consent of ECB;
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8. The Officer stipulates that it would be difficult or impossible to
ascertain the amount of monetary damages in the event of a breach by the Officer
under the provisions of (P)(P) 6 or 7 hereof. The Officer further stipulates
that in the event of a breach of one or more of those two paragraphs injunctive
relief enforcing the terms of the same, alone or together with additional forms
of relief, is an appropriate remedy;
9. This agreement shall be governed in all respects, whether as to
validity, construction, capacity, performance, or otherwise, by the laws of the
State of North Carolina, and any action relating to or arising from this
agreement shall be litigated only in the North Carolina General Court of
Justice;
10. This agreement shall inure to the benefit of, and be binding upon, any
corporate or other successor of ECB and its parent company which shall acquire,
directly or indirectly by merger, share exchange, consolidation, purchase or
otherwise, all or substantially all of the assets or stock of ECB or its parent
company;
11. The employee stipulates that he has read this agreement and
understands the same, and that he has been advised that he should consult
independent counsel prior to executing this document;
12. No provision of this agreement can be modified, waived, or discharged
unless such waiver, modification, or discharge has been agreed to in writing,
signed by the Officer and on behalf of ECB by such person as has been
specifically designated by the Board of Directors of ECB or its parent company.
No waiver by either party hereto at any time of any breach by the other party
hereto shall be deemed a waiver of the right for such other party to insist on
the full compliance with this agreement at any future time. All prior
negotiations, agreements, and discussions between the parties hereto are merged
herein;
13. Where applicable, any obligations and duties of the Officer to ECB
hereunder shall include a like obligation to ECB's parent company, its
subsidiaries and its sister companies; and,
14. The provisions of this agreement shall be deemed severable and the
invalidity or unenforceability of any provision shall not affect the validity or
the enforceability of the other provisions hereof.
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IN TESTIMONY WHEREOF, ECB has caused this instrument to be signed in its
corporate name by its president by authority duly given by its Board of
Directors and the Officer has hereunto set his hand and seal, the day and year
first above written in duplicate originals, one of which is retained by each of
the parties hereto.
The East Carolina Bank
By: ____________________________________
Xxxxxx X. Xxxxxx, III
__________________________________(SEAL)
X. Xxxxxx White, Jr.
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