EXHIBIT 10.4
NORTH CAROLINA
HYDE COUNTY
THIS AGREEMENT made this the 1/st/ day of April, 1999, by and between
The East Carolina Bank, a North Carolina corporation ("ECB") and Xxxx X. Xxxxx,
a resident of Dare 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 and 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, willful material misconduct,
breach of fiduciary duty, failure to perform the obligations of
the Officer as stated herein, willful 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 used 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, of 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 its 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;
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 paragraphs 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.
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: /s/ Xxxxxx X. Xxxxxx, III
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Xxxxxx X. Xxxxxx, III
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
