Exhibit 10.15
CHANGE-IN-CONTROL PROTECTIVE
AGREEMENT
THIS AGREEMENT
entered into this 8 th day of July, 2002 (the “Effective
Date”), by and between First South Bank (the
“Bank”), First South Bancorp, Inc. (the
“Company”), and Paul S. Jaber (the
“Employee”).
WHEREAS, the
Employee has commenced employment with the Bank effective this
date, and the Bank deems it to be in its best interest to enter
into this Agreement as an additional incentive to the Employee to
continue as an employee of the Bank; and
WHEREAS, the
parties desire by this writing to set forth their understanding as
to their respective rights and obligations in the event a change of
control occurs with respect to the Bank or the Company.
NOW, THEREFORE,
the undersigned parties agree as follows:
When used
anywhere in the Agreement, the following terms shall have the
meaning set forth herein.
(a)
“Change in Control” shall mean any one of the
following events: (i) the acquisition of ownership, holding or
power to vote more than 25% of the voting stock of the Bank or the
Company, (ii) the acquisition of the ability to control the
election of a majority of the Bank’s or the Company’s
directors, (iii) the acquisition of a controlling influence over
the management or policies of the Bank or of the Company by any
person or by persons acting as a “group” (within the
meaning of Section 13(d) of the Securities Exchange Act of 1934),
or (iv) during any period of two consecutive years, individuals
(the “Continuing Directors”) who at the beginning of
such period constitute the Board of Directors of the Bank or of the
Company (the “Existing Board”) cease for any reason to
constitute at least two-thirds thereof, provided that any
individual whose election or nomination for election as a member of
the Existing Board was approved by a vote of at least two-thirds of
the Continuing Directors then in office shall be considered a
Continuing Director. Notwithstanding the foregoing, the
Company’s ownership of the Bank shall not of itself
constitute a Change in Control for purposes of the Agreement. For
purposes of this paragraph only, the term “person”
refers to an individual or a corporation, partnership, trust,
association, joint venture, pool, syndicate, sole proprietorship,
unincorporated organization or any other form of entity not
specifically listed herein.
(b)
“Code” shall mean the Internal Revenue Code of
1986, as amended from time to time, and as interpreted through
applicable rulings and regulations in effect from time to
time.
(c)
“Code §280G Maximum” shall mean the product
of 2.99 and the Employee’s “base amount” as
defined in Code §280G(b)(3).
(d)
“Good Reason” shall mean any of the following
events, which has not been consented to in advance by the Employee
in writing: (i) the requirement that the Employee move his personal
residence, or perform his principal executive functions, more than
thirty (30) miles from his primary office as of the date of the
Change in Control; (ii) a material reduction in the
Employee’s base compensation as in effect on the date of the
Change in Control or as the same may be increased from time to
time; (iii) the failure by the Bank or the Company to continue to
provide the Employee with compensation and benefits provided for on
the date of the Change in Control, as the same may be increased
from time to time, or with benefits substantially similar to those
provided to him under any of the employee benefit plans in which
the Employee now or hereafter becomes a participant, or the taking
of any action by the Bank or the Company which would directly or
indirectly reduce any of such benefits or deprive the Employee of
any material fringe benefit enjoyed by him at the time of the
Change in Control; (iv) the assignment to the Employee of duties
and responsibilities materially different from those normally
associated with his position; (v) a failure to elect or reelect the
Employee to the Board of Directors of the Bank or the Company, if
the Employee is serving on such Board on the date of the Change in
Control; (vi) a material diminution or reduction in the
Employee’s responsibilities or authority (including reporting
responsibilities) in connection with his employment with the Bank
or the Company; or (vii) a material reduction in the secretarial or
other administrative support of the Employee.
(e)
“Just Cause” shall mean, in the good faith
determination of the Bank’s Board of Directors, the
Employee’s personal dishonesty, incompetence, willful
misconduct, breach of fiduciary duty involving personal profit,
intentional failure to perform stated duties, willful violation of
any law, rule or regulation (other than traffic violations or
similar offenses) or final cease-and-desist order, or material
breach of any provision of this Agreement. The Employee shall have
no right to receive compensation or other benefits for any period
after termination for Just Cause. No act, or failure to act, on the
Employee’s part shall be considered “willful”
unless he has acted, or failed to act, with an absence of good
faith and without a reasonable belief that his action or failure to
act was in the best interest of the Bank and the
Company.
(f)
“Protected Period” shall mean the period that
begins on the date six months before a Change in Control and ends
on the later of the second annual anniversary of the Change in
Control or the expiration date of this Agreement.
(g) “Trust”
shall mean a grantor trust designed in accordance with Revenue
Procedure 92-64 and having a trustee independent of the Bank and
the Company.
The Employee
shall be entitled to collect the severance benefits set forth in
Section 3 of this Agreement in the event that (i) the Employee
voluntarily terminates employment within 90 days of an event that
both occurs during the Protected Perio
