AMENDED AND RESTATED EMPLOYMENT AGREEMENTArbitration or Mediation Agreement |
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Exhibit 10-3
THIS CONTRACT IS SUBJECT
TO ARBITRATION PURSUANT
TO THE SOUTH CAROLINA
UNIFORM ARBITRATION ACT
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Agreement
(as amended and restated, this
"Agreement") is entered into as of the 7th day of December, 2007, by
and between
Community Resource Bank,
N.A. (the "Company"), and
Michael A. Wolfe (the
"Employee").
RECITALS:
A. The Company and the Employee
entered into an Employment Agreement as
of October 2, 2006 (the "Original Agreement").
B. The Company wishes to continue to employ Employee as an executive
officer and to assure the Employee's
continued employment with the Company, and
the Employee has agreed to continue to accept such employment.
C. The Company and the
Employee continue to mutually desire
that their
employment relationship be set forth
under the terms of a written
employment
agreement.
D. The Company and the Employee
desire to amend the Original Agreement
in compliance with Internal Revenue Code Section 409A and associated
federal
regulations.
In consideration
of the foregoing and of the
promises and mutual
agreements set forth below,
and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto do
hereby agree to amend and restate the Original Agreement as follows:
1. Employment.
The Company agrees to employ the Employee,
and the
Employee agrees to accept employment and to serve the Company, on the terms and
conditions set forth herein.
2. Term of Employment.
The employment of the Employee by the Company,
as provided under Section 1 hereof, commenced on October 2, 2006 and shall end
September 30, 2009 (the "Term of Employment") unless further extended
in writing
with express reference to this Agreement or sooner terminated as
hereinafter
provided. Commencing on
September 30, 2009, and on each annual anniversary
thereafter, the Term of Employment
shall automatically be
extended for an
additional year unless 90 days prior to the anniversary the Company gives
notice
to the Employee that the Term of Employment
will not be extended. Except as
otherwise provided expressly herein, the provisions of this Agreement related
to
Employee's employment will not apply after the Term of
Employment has expired
and any continuing employment of the Employee thereafter will be at-will and
not
subject to the terms and conditions of this Agreement.
<PAGE>
3. Position and Duties. The Employee shall serve on a full-time basis
as President of the Company and shall have the authority and be
responsible for
the general management
of the Company
and shall assume
such additional
responsibilities and authority
as may from time to time be assigned to him by
its Board of Directors or the Chief
Executive Officer of the
Company. The
Employee shall perform his
responsibilities and duties in the best interests of
the Company.
4. Place of Performance. In connection with the Employee's employment
hereunder, the Employee shall be
based initially at Community Resource Bank's
corporate headquarters located
in Orangeburg, South
Carolina, subject to
reasonable travel or relocation
as necessary to carry out the business of the
Company and his duties hereunder.
5. Compensation
and Benefits. In
consideration of the Employee's
performance of his duties hereunder, the Company shall provide the Employee
with
the following compensation and benefits during the Term of Employment hereunder.
a. Base Salary. The
Company shall pay Employee at a minimum, a
per annum base salary of
$181,125. During the Term of Employment
under
this Agreement, the Chief
Executive Officer of the Company periodically
will review and may increase (but not decrease) the
Employee's base
salary rate, all in accordance
with the Company's salary administration
policies and procedures in
effect from time to time, and each change in
the base salary amount listed in
this Section shall become the new base
salary amount. Base salary shall be payable twice per month
in arrears
with a payroll schedule as is used by the Company for other
employees.
The Company shall have no
obligation to increase the Employee's
base
salary rate at any particular
time or in any particular amount, and any
such increase shall be in the
sole and absolute discretion of the Chief
Executive Officer of the
Company.
b. Incentive
Compensation. The Company
shall pay to the
Employee with respect to each
subsequent fiscal year during the Term of
Employment hereunder,
such cash bonus, if any, as shall be determined
pursuant to a bonus
plan adopted by the Board of Directors
of the
Company for key employees.
Any such bonuses shall be paid on the 15th
day of the third month following the end of the calendar year in
which
such bonus is earned. In
addition, and without diminution of any
other
compensation or benefit provided for in this Agreement,
the Employee
may be
given the opportunity
to participate in
other incentive
compensation plans
that may be
adopted by the
Company, which
participation opportunity
may be offered to the Employee in
the sole
discretion of the Board of
Directors of the Company.
c. Country
Club and Civic Club Dues. The
Company shall pay
reasonable dues on behalf of the
Employee for one country club approved
by the Board of the Company
and shall pay reasonable dues for civic
organizations to which the
Employee belongs for the
benefit of the
Company and which have been
approved by the Board of the Company.
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<PAGE>
d. Deferred Compensation.
The Employee shall be entitled to
participate in the
Company's 401(k) Plan and the Company
shall match a
minimum of 100% of the first 3%,
and 50% of the next 2%, of salary that
the Employee defers each year.
e. Health and
Dental Insurance. The Company will provide the
Employee with health and dental
insurance coverage on the same basis as
such coverage is provided for
other executive officers of the Company.
f. Expenses. The Company shall reimburse the Employee for
all
proper and reasonable out-of-pocket
expenses incurred by the Employee
in his performance of
services hereunder, including all such expenses
of travel and living expense
while away from home on business
of the
Company and mileage for out-of-town business
use of his automobile,
provided that
such expenses are
incurred and accounted
for in
accordance with the regular
policies and procedures established by
the
Company from time to time.
g. Paid Time Off. The
Employee shall be entitled to a minimum
of 35 days of paid time off in
each calendar year,
as well as to all
paid holidays provided by the Company to its employees.
The Employee
will not be entitled to any
additional pay for unused vacation.
h. Other Benefits. The Employee shall be entitled to share in
any other employee benefits
generally provided by the Company
to its
most highly ranking executives
for so long as the Company provides such
benefits. The Employee
shall also be entitled to
participate in all
other benefits accorded
generally to Company employees.
6. Compensation and Benefits in
the Event of Termination. In the event
of the termination of the
Employee's employment by
the Company or by the
Employee during the term of this Agreement,
compensation and benefits shall
be
paid as set forth below.
a. Definitions. For purposes of this Agreement, the following
terms shall have the meanings
indicated:
(i)
"Cause" shall mean:
(A)
the breach by Employee of any material
provision of
this Agreement, provided
that Company
gives the
Employee written notice of such breach
and
such breach is not
cured within thirty
(30) days
thereafter;
(B) the willful and continued failure by the
Employee
to substantially perform his duties under
this
Agreement (other than the
Employee's inability
to perform,
with or without reasonable accommodation,
resulting from his
incapacity due to physical
or
mental illness
or impairment), after a demand for
substantial performance is delivered
to him by the
Company, which demand
specifically identifies the
manner in
which the Employee is alleged to have not
substantially
performed his duties;
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<PAGE>
(C)
the willful engaging by the Employee in
misconduct
(criminal, immoral or otherwise) which
is
materially
injurious to the Company, its subsidiaries
or their
respective officers, directors,
shareholders, employees, or
customers, monetarily or
otherwise;
(D) the Employee's conviction of a
felony;
(E) the commission
in the course of the
Employee's employment of
an act of
fraud,
embezzlement, theft or
proven dishonesty, or any
other illegal
act or practice, which would constitute
a felony,
(whether or not resulting
in criminal
prosecution or
conviction), or the commission of any
act or practice
which resulted in the
Employee's
becoming unbondable
under the Company's "banker's
blanket
bond;" or
(F) the
suspension or removal
of the
Employee, or
the issuance of an order prohibiting the
Employee
from associating with the Company or any
of
its subsidiaries, by
federal or state
banking
regulatory authorities acting
under lawful authority
pursuant to
provisions of federal or state law or
regulation
which may be in effect from time to time.
(ii) A
"Change of Control" of
the Company shall be
deemed to have been
effected for purposes of this Agreement on
the date:
(A) any one person, or more than one person
acting as a
group, acquires ownership of stock of the
Company that,
together with stock held by such person
or group,
constitutes more than 50% of the total
voting power
of the Company's stock; or
(B)
any one person, or more than one person
acting as a
group, acquires within a 12-month period
ownership of
the Company's stock possessing more than
50% of the
total voting power of the Company's stock;
or
(C)
the Company is merged with or into any
other entity
and the persons who were shareholders of
the Company
immediately prior to the merger
do not
continue to
own stock having voting control over more
than 50% of
the voting securities of the
surviving
entity
immediately after the merger.
(iii)
"Date of Termination" shall mean:
(A)
if the Employee's
employment is
terminated by
reason of his death, his date of death;
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<PAGE>
(B) if the
Employee's employment is
terminated for Disability,
thirty (30) days after
Notice of Termination
is given (provided that the
Employee shall not have returned to the performance
of his duties as
provided under sub-paragraph (iv) of
this paragraph
6.a); or
(C) if the
Employee's employment is
terminated for Good Reason, the 31st day
following
the date
of Employee's notice to the Company of the
existence of a
condition constituting Good Reason, if
the Company
shall have failed to remedy the condition
by the end of
the 30th
day following the
date of
Employee's
notice; or
(D) if the
Employee's employment is
terminated by action
of either party for any other
reason, the
date specified in
the Notice of
Termination;
provided, however, that if within thirty
(30) days
after any Notice of Termination is given,
the party
receiving such Notice
of Termination
notifies the
other party that
a dispute exists
concerning
the termination, the Date of Termination
shall be the
date on which the dispute
is finally
resolved, either by mutual written agreement of the
parties, or by
a final arbitration award or judgment,
order or
decree of a court of competent
jurisdiction
(the time for
appeal therefrom having expired and no
appeal having
been perfected).
(iv) "Disability" or
"Disabled" shall mean:
(A)
the Employee is unable to engage in any
substantial gainful activity
by reason of any
medically determinable physical or mental impairment
that can
be expected to
result in death or can be
expected to
last for a continuous period of not less
than 12
months; or
(B) the
Employee is, by
reason of any
medically determinable physical or mental impairment
that can
be expected to
result in death or can be
expected to last for a
continuous period of not less
than 12
months, receiving income replacement benefits
for a period
of not less than three months under an
accident and health plan covering
employees of the
Company; or
(C)
the Employee has been determined to be
totally disabled
by the Social
Security
Administration or
Railroad Retirement Board; or
(D)
the Employee has been determined to be
disabled
in accordance with a disability insurance
program provided by the Company and in
which Employee
participates, provided that
the definition of
disability applied under
such disability insurance
program complies with the requirements of (A) or (B)
of this
subparagraph (iv) listed above.
5
<PAGE>
(v) "Good
Reason" for termination of employment shall
mean, without Employee's consent:
(A) Failure by the Company to comply with
any material
provision of this Agreement; or
(B) A
material diminution of the Employee's
authority and
duties hereunder; or
(C) A
material diminution in the Employee's
base
compensation;
provided,
however, the Employee must give the Company
notice of
the existence of
one or more
of the
conditions set
forth in this subsection 6.a(v) within
90 days after
the initial existence of the condition,
and the Company
shall have 30 days to remedy
the
condition.
Any termination
of employment by Employee for
Good
Reason shall
constitute an involuntary termination of
employment.
(vi) "Notice
of Termination" shall mean a written
notice which shall
include the specific termination
provision
under this
Agreement relied upon,
and shall set forth in
reasonable detail
the facts and circumstances
claimed to
provide a basis for
termination of the Employee's
employment.
Any
purported termination of the






