STATE OF NORTH
CAROLINA
COUNTY OF CALDWELL
AMENDED AND RESTATED
CHANGE OF CONTROL AGREEMENT
THIS CHANGE OF
CONTROL AGREEMENT (hereinafter referred to as this
“Agreement”) is entered into as of the 19
th day of December, 2008 and among BANK OF GRANITE
CORPORATION (the “Corporation”), a Delaware
corporation, or its successors, the Corporation’s
wholly-owned subsidiary BANK OF GRANITE (the “Bank”), a
banking association organized under the laws of the state of North
Carolina, or its successors (hereinafter the Corporation and the
Bank, or their successors, are collectively referred to as the
“Company”), and Kirby A. Tyndall (the
“Officer”), an individual residing in Catawba County,
North Carolina.
WHEREAS, the
Officer has heretofore been employed by the Company with the title
of “Executive Vice President and Chief Financial
Officer”; and
WHEREAS, the
services of the Officer, the Officer’s experience and
knowledge of the affairs of the Company and reputation and contacts
in the industry are extremely valuable to the Company;
and
WHEREAS, the
Company wishes to attract and retain such well-qualified executives
and it is in the best interest of the Company and of the Officer to
secure the continued services of the Officer notwithstanding any
change of control of the Corporation or the Bank; and
WHEREAS, the
Company considers the establishment and maintenance of a sound and
vital management team to be part of their overall corporate
strategy and to be essential to protecting and enhancing the best
interest of the Company and the its shareholders; and
WHEREAS, the
parties desire to enter into this Agreement to provide the Officer
with security in the event of a change of control of the
Corporation or the Bank to ensure the continued loyalty of the
Officer during any change of control in order to maximize
shareholder value as well as the continued safe and sound operation
of the Company.
WHEREAS, the
Officer, the Company acknowledge and agree that this Agreement is
not an employment agreement but is limited to circumstances giving
rise to a change of control of the Corporation or the Bank as set
forth herein.
NOW, THEREFORE,
for and in consideration of the premises and mutual promises,
covenants, and conditions hereinafter set forth, and other good and
valuable consideration, the receipt and sufficiency of which hereby
are acknowledged, the parties hereby do agree as
follows:
|
|
1.
|
|
Term . The initial term of this Agreement
shall be for the period commencing upon the effective date of this
Agreement and ending three (3) calendar years from the
effective date of this Agreement. At each anniversary date of this
Agreement, the term automatically shall be extended for an
additional three (3) calendar years on the same terms and
conditions set forth herein, unless the Company shall give written
notice to the Officer of its intention not to extend this Agreement
for an additional three (3) calendar years, which notice shall
be given at least thirteen (13) months prior to the next
anniversary date.
|
|
|
|
|
|
|
|
2.
|
|
Change of Control
.
|
(a) In the
event of an involuntary termination of the Officer’s
employment in connection with, or within thirty-six
(36) months after, a “Change of Control” (as
defined in Subparagraph (f) below) of the Corporation or the
Bank, for reasons other than for “cause” (as defined in
Subparagraph (c) below), the Officer shall be entitled to
receive the sum set forth in Subparagraph (e) below. Said sum
shall be payable as provided in Subparagraph (g) below,
provided, however, that the Officer is employed on a full-time
basis by the Bank at the effective time of the “Change of
Control”, except as provided in Subparagraph
(k) below.
(b) For
purposes of this Agreement, “termination of the
Officer’s employment” means a termination that
qualifies as a “separation from service” under Treasury
Regulation §1.409A-1(h) and occurs when the level of bona fide
services that the Officer is performing for the Company has
decreased to a level equal to 20% or less of the average level of
services performed by the Officer during the immediately preceding
36-month period (or the full period of service with the Company, if
less than 36 months).
(c) For
purposes of this Agreement, termination “for cause”
shall mean (i) any dishonest, illegal or other act of moral
turpitude (such as theft, fraud or embezzlement) by the Officer
which is materially detrimental to the interest and well-being of
the Company, (ii) the conviction of a felony, (iii) the
unreasonable failure or refusal of the Officer to perform to the
best of his ability on a reasonable basis his duties hereunder, or
(iv) any violation by the Officer of any state or federal law,
rule or regulation relating to banking, financial institutions or
securities laws, the violation of which would be materially
detrimental to the interest and well-being of the
Company.
(d) The
Officer shall have the right to terminate this Agreement upon the
occurrence of any of the following events (the “Termination
Events”) within thirty-six (36 months following a Change
of Control of the Company or the Bank:
|
|
(i)
|
|
Officer is assigned any duties
and/or responsibilities that are inconsistent with his duties or
responsibilities at the time of the Change of Control;
|
|
|
|
|
|
|
|
(ii)
|
|
Officer’s annual base salary
is reduced below the amount in effect as of the effective date of a
Change of Control;
|
|
|
|
|
|
|
|
(iii)
|
|
Officer’s life insurance,
medical or hospitalization insurance, disability insurance, stock
option plans, stock purchase plans, deferred
|
2
|
|
|
|
compensation plans, management
retention plans, retirement plans, or similar plans or benefits
being provided by the Company to the Officer as of the effective
date of the Change of 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 Company who participated in such benefits
prior to such Change of Control; or
|
|
|
|
|
|
|
|
(iv)
|
|
Officer is required to transfer
performance of his day-to-day services required hereunder to a
location which is more than fifty (50) miles from the
Officer’s current principal work location, without the
Officer’s express written consent.
|
|
|
|
|
Any
change in circumstances described by (i), (ii) or
(iii) above must be a material change in circumstances in
order to qualify as a Termination Event. A Termination Event shall
be deemed to have occurred on the date such action or event is
implemented or takes effect.
|
|
