Exhibit 10.2
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement"), dated as of April 16, 2004, is
made and entered into by Capital Bank (hereinafter the "Bank"), and Xxxxxxx X.
Xxxxxxx (hereinafter the "Employee").
The Bank desires to employ Employee and Employee desires to accept such
employment on the terms set forth below.
In consideration of the mutual promises set forth below and other good and
valuable consideration, the receipt and sufficiency of which the parties
acknowledge, the Bank and Employee agree as follows:
1. Employment. The Bank employs Employee and Employee accepts employment
on the terms and conditions set forth in this Agreement.
2. Nature Of Employment. Employee shall serve as Executive Vice President
and Chief Financial Officer ("CFO") and shall have such responsibilities and
authority consistent with each such position as may be reasonably assigned to
him by the Bank. Employee shall also serve as CFO of Capital Bank Corporation
("CBC"). Employee shall devote his full time and attention and best efforts to
perform successfully his duties and advance the Bank's interests. Employee shall
abide by the Bank's policies, procedures, and practices as they may exist from
time to time.
During this employment, Employee shall have no other employment of any
nature whatsoever without the prior consent of the Bank; provided, however, this
Agreement shall not prohibit Employee from providing financial advice and
personally owning and dealing in stocks, bonds, securities, real estate,
commodities or other investment properties for his own benefit or those of his
immediate family. The Bank expressly acknowledges and consents to Employee's
service as a director of Hemagen Diagnostics, Inc. and its successors.
3. Compensation and Benefits.
(a) Base Salary. Employee's initial annual base salary for all
services rendered shall be One Hundred Eighty Thousand and No/100 Dollars
($180,000.00) (less applicable withholdings), payable in accordance with the
Bank's policies, procedures, and practices as they may exist from time to time.
Employee's salary periodically may be reviewed and adjusted at the Bank's
discretion in accordance with the Bank's policies, procedures and practices as
they may exist from time to time.
(b) Signing Bonus. Employee shall be entitled to a one-time signing
bonus in the amount of Fifteen Thousand and No/100 Dollars ($15,000.00) (less
applicable withholdings) payable in a lump sum, less all applicable
withholdings, within fourteen (14) days following the date on which Employee
executes this Agreement.
(c) Employee's Obligation to Reimburse Bank. If Employee should
voluntarily terminate his employment for any reason other than Good Reason (as
defined in Section 4(c) below) within the first twelve (12) months of his
employment, he shall reimburse the Bank the gross amount of the Fifteen Thousand
and No/100 Dollars ($15,000.00) signing bonus. The Bank
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Exhibit 10.2
will make appropriate adjustments to his reported taxable compensation upon
reimbursement by Employee. Employee hereby authorizes the deduction of such
signing bonus in the amount of Fifteen Thousand and No/100 Dollars ($15,000.00)
from his final pay.
(d) Incentive Plan. Employee shall be eligible to participate in the
Bank's Management Incentive Plan in accordance with the applicable terms,
conditions, and eligibility requirements of that Plan, some of which are in the
plan administrator's discretion, as they may exist from time to time.
(e) Benefits. Employee may participate in any medical insurance or
other employee benefit plans and programs which may be made available from time
to time to other Bank employees at Employee's level; provided, however, that
Employee's participation in such benefit plans and programs is subject to the
applicable terms, conditions, and eligibility requirements of those plans and
programs, some of which are within the plan administrator's discretion, as they
may exist from time to time.
(f) Automobile. Employee shall be entitled to use an automobile
provided by the Bank in accordance with the Bank's policies and practices as
they may exist from time to time.
(g) Expenses. Employee shall be reimbursed by the Bank for any
reasonable and necessary business expenses incurred by Employee on behalf of the
Bank or in connection with Employee's performance of his duties hereunder. Such
reimbursement shall be in accordance with the Bank's practices or policies as
they may exist from time to time.
(h) Stock Options. Within sixty (60) days following Employee's
commencement of employment, Employee shall be granted an option for seven
thousand (7,000) shares of Capital Bank Corporation common stock at the closing
market price for the most recent trading day prior to the grant subject to the
terms and conditions of the applicable stock option agreement and/or plan, if
any. Unless otherwise provided in the applicable stock option plan and/or
agreement, if any, these options shall be incentive stock options and shall vest
twenty percent (20%) per year beginning one (1) year from the date of the grant,
and shall be exercisable over a ten (10) year period. Employee will be eligible
for additional option grants on at least an annual basis in the discretion of
the compensation committee.
(i) Vacation. Employee shall be entitled to four (4) weeks of
vacation during calendar year 2004 and thereafter vacation entitlement shall be
in accordance with the Bank's policies. Such vacation shall be taken in
accordance with the Bank's policies and practices as they may exist from time to
time.
4. Termination of Employment and Post-Termination Compensation.
(a) With Notice. Either the Bank or Employee may terminate the
employment relationship at any time for any reason or no reason by giving thirty
(30) days' written notice to the other party.
(b) Cause, Disability, or Death. The Bank may terminate Employee's
employment immediately for "Disability," "Cause," or in the event of Employee's
death. For purposes of this Agreement, Disability shall mean Employee's mental
or physical inability to perform the essential functions of his duties
satisfactorily for a period of one hundred eighty (180)
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Exhibit 10.2
consecutive days or one hundred eighty (180) days within a 365-day period as
determined by the Bank in its reasonable discretion and in accordance with
applicable law. For purposes of this Agreement, "Cause" shall mean: (i) any act
of Employee involving dishonesty; (ii) any material violation by Employee of any
Bank rule, regulation, or policy; (iii) gross negligence committed by Employee;
(iv) material failure of Employee to perform his duties hereunder; or (v)
Employee's breach of any of the express obligations of this Agreement.
(c) Post-Termination Compensation.
(i) In the event of termination for Cause, the Bank's
obligation to compensate Employee ceases on the date of termination except
as to the amounts of salary due at that time.
(ii) In the event of a termination for death or Disability,
the Bank's obligation to compensate Employee ceases on the date of
termination, except as to any salary and prorated bonuses to which he may
be entitled as of the date of termination. The Bank shall pay any such
amounts to Employee or Employee's estate.
(iii) If there has been no Change in Control and the Bank
terminates Employee's employment without Cause or Employee terminates his
employment for Good Reason (as defined below), then Employee upon his
execution of an enforceable general release in a form prepared by the Bank
shall be entitled to (A) receive a gross amount equal to his then current
annual base salary plus the amount of bonus paid to Employee, if any, in
the prior bonus year, payable in substantially equal amounts over the
twelve (12) month period following such termination; and (B) for the
period of time Employee receives payments pursuant to Section
4(c)(iii)(A), participate in all life insurance, retirement, health,
accidental death and dismemberment, and disability plans and other benefit
programs and other services paid by the Bank for Employee in which
Employee participates immediately prior to the termination, provided that
Employee's continued participation is possible under the applicable terms,
conditions and eligibility requirements of such plans and programs.
Employee's continued participation in such plans and programs shall be at
no greater cost to Employee than the cost he bore for such participation
immediately prior to termination. If Employee's participation in any such
plan or program is barred, the Bank shall arrange upon comparable terms,
and at no greater cost to Employee than the cost he bore for such plans
and programs prior to termination, to provide Employee with benefits
substantially similar to, or greater than, those which he is entitled to
receive under any such plan or program.
For purposes of this Section 4(c), Good Reason shall mean the occurrence
of any of the following events or conditions without Employee's prior
written consent and prior to a Change in Control:
(A) a change in Employee's status, title, position, or
responsibilities (including reporting responsibilities) which represents a
material adverse change from his status, title, position, or
responsibilities in effect immediately prior thereto; the assignment to
Employee of any duties or responsibilities which are materially
inconsistent with his status, title, position or responsibilities; or any
removal of Employee from or failure to reappoint or re-elect him to any of
such positions, status, or title (including positions, titles, and
responsibilities with any affiliate), except in connection with the
termination of his employment for Disability, Cause, or death, or by
Employee other than for Good Reason;
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Exhibit 10.2
(B) the Bank's requiring Employee to be based at any place
outside a thirty (30) mile radius from its headquarters at 0000 Xxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxx Xxxxxxxx, except for reasonably required travel on
the Bank's business;
(C) any material breach by the Bank of any express provision
of this Agreement.
5. Change in Control.
(a) Definition. For purposes of this Agreement, "Change in Control"
shall mean any of the following:
(i) Any "person" (as such term is used in Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Act"))
acquiring "beneficial ownership") (as such term is used in Rule 13d-3
under the Act), directly or indirectly, of securities of Capital Bank
Corporation, the parent holding company of the Bank ("CBC") representing
fifty percent (50%) or more of the combined voting power of CBC's then
outstanding voting securities (the "Voting Power"), but excluding for this
purpose an acquisition by CBC or an "affiliate" (as defined in Rule 12b-2
under the Act) or by an employee benefit plan of CBC or of an affiliate.
(ii) The individuals who constitute the Board of Directors of
CBC ("Board") on the effective date hereof or their successors duly
appointed in the ordinary course (collectively, the "Incumbent Directors")
cease to constitute at least a majority of the Board. Any director whose
nomination is approved by a majority of the Incumbent Directors shall be
considered an Incumbent Director; provided, however, that no Director
whose initial assumption of office is in connection with an actual or
threatened election contest relating to the election of the directors of
CBC shall be considered an Incumbent Director.
(iii) The shareholders of CBC approve a reorganization, share
exchange, merger or consolidation related to CBC or the Bank following
which the owners of the Voting Power of CBC immediately prior to the
closing of such transaction do not beneficially own, directly or
indirectly, more than fifty percent (50%) of the Voting Power of the Bank.
(iv) The shareholders of the Bank approve a complete
liquidation or dissolution of the Bank, or a sale or other disposition of
all or substantially all of the capital stock or assets of the Bank, but
excluding for this purpose any sale or disposition of all or substantially
all of the capital stock or assets of the Bank to an "affiliate" (as
defined in Rule 12b-2 under the Act) of CBC.
Change in Control shall not include a transaction, or series of transactions,
whereby CBC or the Bank becomes a subsidiary of a holding company if the
shareholders of the holding company are substantially the same as the
shareholders of CBC prior to such transaction or series of series of
transactions.
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Exhibit 10.2
(b) Change in Control Termination. After the occurrence of a Change
in Control, Employee shall be entitled to receive payments and benefits pursuant
to this Agreement in the following circumstances:
(i) if within the period beginning ninety (90) days prior to
and ending three (3) years after the occurrence of a Change in Control,
the Bank terminates Employee's employment for any reason other than Cause,
Disability, or death; or
(ii) if within three (3) years after the occurrence of a
Change in Control, Employee terminates his employment with the Bank for
"Good Reason." For purposes of this Section 5(b), "Good Reason" shall mean
the occurrence after a Change in Control of any of the following events or
conditions:
(A) a change in Employee's status, title, position, or
responsibilities (including reporting responsibilities) which
represents a material adverse change from his status, title,
position, or responsibilities in effect immediately prior thereto;
the assignment to Employee of any duties or responsibilities which
are materially inconsistent with his status, title, position or
responsibilities; or any removal of Employee from or failure to
reappoint or re-elect him to any of such positions, status, or
title, except in connection with the termination of his employment
for Disability, Cause, or death, or by Employee other than for Good
Reason. For purposes of this section, a change in Employee's status,
title, position, etc., shall also include his position and
responsibilities with respect to CBC;
(B) a reduction in Employee's base salary;
(C) the Bank's requiring Employee to be based at any
place outside a thirty (30) mile radius from 0000 Xxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxx Xxxxxxxx, except for reasonably required travel on
the Bank's business which is not substantially greater than such
travel requirements prior to the Change in Control;
(D) the failure by the Bank to continue in effect any
compensation, welfare, or benefit plan or other perquisite in which
Employee is participating at the time of a Change in Control without
substituting plans providing Employee with substantially similar or
greater benefits taken in the aggregate, or the taking of any action
by the Bank which would adversely affect Employee's participation in
or materially reduce Employee's benefits under, any of such plans or
deprive Employee of any material fringe benefit enjoyed by Employee
at the time of the Change in Control;
(E) any material breach by the Bank of any express
provision of this Agreement; or
(F) the failure of CBC to obtain an agreement,
satisfactory to Employee, from any successor or assign of CBC to
assume and agree to perform this Agreement.
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Exhibit 10.2
(c) Change in Control Benefits. In the event that Employee's
employment with the Bank terminates under any of the circumstances described
above in this Section 5 at any time, Employee shall be entitled to receive all
accrued compensation and any pro rata bonuses to which he may be entitled and
which Employee may have earned up to the date of termination and, upon
Employee's execution of an enforceable general release in a form prepared by the
Bank, severance payments and benefits according to the following schedule and
terms:
(i) a severance payment equal to: 2.99 times the amount of
Employee's then current annual base salary plus the amount of bonus paid
to Employee, if any, in the prior bonus year, in the event the termination
occurs no later than twelve (12) months after the occurrence of a Change
in Control; 2.0 times the amount of Employee's then current annual base
salary plus the amount of bonus paid to Employee, if any, in the prior
bonus year, in the event the termination occurs more than twelve (12)
months but within (up to and including) twenty-four (24) months after the
occurrence of a Change in Control; or 1.0 times the amount of Employee's
then current annual base salary plus the amount of bonus paid to Employee,
if any, in the prior bonus year, in the event the termination occurs more
than twenty-four (24) months but within (up to and including) thirty-six
(36) months after the occurrence of a Change in Control. The severance
payment shall be paid in substantially equal monthly installments without
interest, commencing one month after the date of termination.
(ii) a continuation of benefits for the period of time
Employee receives the severance benefits described in Section 5(c)(i)
above as follows: During such time, the Bank shall maintain and Employee
shall be entitled to participate in all life insurance, retirement,
health, accidental death and dismemberment, and disability plans and other
benefit programs and other services paid by the Bank for Employee in which
Employee participated immediately prior to the termination, provided that
Employee's continued participation is possible under the applicable terms,
conditions and eligibility requirements of such plans and programs.
Employee's continued participation in such plans and programs shall be at
no greater cost to Employee than the cost he bore for such participation
immediately prior to termination. If Employee's participation in any such
plan or program is barred, the Bank shall arrange upon comparable terms,
and at no greater cost to Employee than the cost he bore for such plans
and programs prior to termination, to provide Employee with benefits
substantially similar to, or greater than, those which he is entitled to
receive under any such plan or program; and
(iii) a lump sum payment (or otherwise as specified by
Employee to the extent permitted by the applicable plan) of any and all
amounts contributed to a Bank pension or retirement plan which Employee is
entitled to under the terms of any such plan. In the event Employee fails
to execute the general release described above, he shall receive any such
payments in accordance with the payment provisions of the applicable
plan(s).
(d) Limitation on Payments. To the extent that any of the payments
and benefits provided for under this Agreement or otherwise payable to Employee
constitute "parachute payments" within the meaning of Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code"), and but for this Section
5 would be subject to the excise tax imposed by Section 4999 of the Code, the
Bank shall reduce the aggregate amount of such payments and benefits such that
the present value thereof (as determined under the Code and the applicable
regulations) is equal to 2.99 times Employee's "base amount" as defined in
Section 280G(b)(3) of the Code.
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Exhibit 10.2
6. Non-Solicitation. Employee acknowledges that by virtue of Employee's
employment with the Bank, Employee shall have access to and control of
confidential and proprietary information concerning the Bank's business and that
the Bank's business depends to a considerable extent on the individual skills,
efforts, and leadership of Employee. Additionally, Employee acknowledges that
the covenants contained in this Section 6: are reasonably necessary to protect
the legitimate business interests of the Bank; are described with sufficient
accuracy and definiteness to enable him to understand the scope of the
restrictions imposed on him; and were disclosed to him prior to the commencement
of his employment, such employment being conditioned on his execution of an
agreement containing such terms. Accordingly and in consideration of the Bank's
commitments to Employee under this Agreement, Employee expressly covenants and
agrees that Employee shall not, without the prior consent of the Bank, during
his employment and
(a) for one (1) year following the termination of his employment
regardless of the reason for the termination except that, if such termination
should occur prior to a Change in Control, then the restrictive period shall be
six (6) months, on Employee's own or another's behalf, whether as an officer,
director, stockholder, partner, associate, owner, employee, consultant or
otherwise, directly or indirectly:
(i) solicit or do business that is the same, similar to, or
otherwise in competition with the business engaged in by the Bank from or
with persons or entities who are customers of the Bank, who were customers
of the Bank at any time during the last year of Employee's employment with
the Bank, or to whom the Bank made proposals for business at any time
during the last year of Employee's employment with the Bank; or
(ii) employ, offer employment to, or otherwise solicit for
employment, any employee or other person who is then currently an employee
of the Bank or who was employed by the Bank during the last year of
Employee's employment with the Bank.
7. Proprietary Information And Property. Employee shall not, at any time
during or following employment with the Bank, disclose or use, except in the
course of his employment with the Bank or as may be required by law, any
confidential or proprietary information of the Bank received by Employee while
employed hereunder, whether such information is in Employee's memory or embodied
in writing or other physical form.
Confidential or proprietary information is information which is not
generally available to the general public, or Bank's competitors, or
ascertainable through common sense or general business knowledge; including, but
not limited to data, compilations, methods, financial data, financial plans,
business plans, product plans, lists of actual or potential customers, and
marketing information regarding executives and employees.
All records, files or other objects maintained by or under the control,
custody or possession of the Bank or its agents in their capacity as agents
shall be and remain the Bank's property. Upon termination of his employment,
Employee shall return to the Bank all property (including, but not limited to,
credit cards, keys, company car, cell phones, computer hardware and software,
records, files, manuals and other documents in whatever form they exist, whether
electronic, hard copy or otherwise and all copies, notes or summaries thereof)
which he received in connection with his
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Exhibit 10.2
employment. At the Bank's request, Employee shall bring current all such
records, files or documents before returning them.
Upon notice of cessation of his employment with the Bank, Employee shall
fully cooperate with the Bank in winding up his pending work and transferring
his work to those individuals designated by the Bank.
8. Survival. The terms and conditions of Sections 7 and 8 shall survive
termination of this Agreement and/or Employee's employment and shall not be
affected by any change or modification of this Agreement unless specific
reference is made to such sections.
9. Remedies. Employee agrees that his breach or threatened violation of
Sections 3(c), 6 and 7, will result in immediate and irreparable harm to the
Bank for which legal remedies would be inadequate. Therefore, in addition to any
legal or other relief to which the Bank may be entitled, (a) the Bank may seek
legal and equitable relief, including but not limited to, preliminary and
permanent injunctive relief, (b) the Bank will be released of its obligations
under this Agreement to make any payments to Employee, including but not limited
to, those payable pursuant to Sections 4 and/or 5, and (c) Employee will
indemnify the Bank for all expenses, including attorneys' fees, in seeking to
enforce these paragraphs.
10. Waiver Of Breach. The Bank's or Employee's waiver of any breach of a
provision of this Agreement shall not waive any subsequent breach by the other
party.
11. Entire Agreement. This Agreement: (i) supersedes all other
understandings and agreements, oral or written, between the parties with respect
to the subject matter of this Agreement; and (ii) constitutes the sole agreement
between the parties with respect to this subject matter. Each party acknowledges
that: (i) no representations, inducements, promises or agreements, oral or
written, have been made by any party or by anyone acting on behalf of any party,
which are not embodied in this Agreement; and (ii) no agreement, statement or
promise not contained in this Agreement shall be valid. No change or
modification of this Agreement shall be valid or binding upon the parties unless
such change or modification is in writing and is signed by the parties.
12. Severability. If a court of competent jurisdiction holds that any
provision or sub-part thereof contained in this Agreement is invalid, illegal or
unenforceable, that invalidity, illegality or unenforceability shall not affect
any other provision in this Agreement. Additionally, if any of the provisions,
clauses or phrases set forth in Section 6 or 7 of this Agreement are held
unenforceable by a court of competent jurisdiction, then the parties desire that
such provision, clause or phrase be "blue-penciled" or rewritten by the court to
the extent necessary to render it enforceable.
13. Parties Bound. The terms, provisions, covenants and agreements
contained in this Agreement shall apply to, be binding upon and inure to the
benefit of the Bank's successors and assigns. Employee may not assign this
Agreement without the Bank's prior written consent.
14. Governing Law. This Agreement and the employment relationship created
by it shall be governed by North Carolina law. The parties hereby consent to
exclusive jurisdiction in North Carolina for the purpose of any litigation
relating to this Agreement and agree that any
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Exhibit 10.2
litigation by or involving them relating to this Agreement shall be conducted in
the court of Wake County or the federal court of the United States for the
Eastern District of North Carolina.
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IN WITNESS WHEREOF, the parties have entered into this Agreement on the
day and year written below.
EMPLOYEE
/s/ Xxxxxxx X. Xxxxxxx April 29, 2004
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Xxxxxxx X. Xxxxxxx Date
CAPITAL BANK
By: B. Xxxxx Xxxxxx May 3, 2004
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Date
CAPITAL BANK CORPORATION
By: B. Xxxxx Xxxxxx May 3, 2004
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Date
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