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Exhibit 10.01
STATE OF NORTH CAROLINA
COUNTY OF HYDE
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT , made as of the
23rd day of December, 2008, by and between THE EAST CAROLINA
BANK , a North Carolina corporation ("ECB") and ARTHUR H.
KEENEY, III , a resident of Hyde County, North Carolina
(the "Officer"),
WITNESSETH:
WHEREAS , the Officer and ECB have previously agreed that the
Officer shall be an employee of ECB under the terms of an agreement
which became effective on September 11, 1995; and,
WHEREAS , that agreement previously was modified and
restated in, and superseded by, their current restated agreement
dated January 1, 1998; and,
WHEREAS , the Board of Directors of ECB, acting through
its Compensation Committee, has determined that the continued
retention of the services of the Officer as described herein is in
the best interest of ECB in that (a) such action promotes the
stability of the management of ECB, (b ) such action enables ECB to
retain the services of a well-qualified employee with extensive
contacts in the financial services community, and (c) it
secures the continued services of the Officer notwithstanding any
change of control of ECB; and,
WHEREAS , the services of the Officer, his experience and
knowledge of the affairs of ECB, and his reputation and contacts in
ECB’s industry are extremely valuable to ECB; and,
WHEREAS , ECB considers the establishment and maintenance
of a sound and vital management to be a part of its overall
corporate strategy and to be essential to protecting and enhancing
the best interests of ECB and its stockholders; and,
WHEREAS , the Officer and ECB have agreed to certain
further modification of and to further restate their current
agreement as described herein; and,
WHEREAS , the parties desire to enter into this Agreement
in order to clearly set forth the terms and conditions of the
Officer’s employment relationship with ECB, as modified as
described herein; and
WHEREAS , this Amended and Restated Employment Agreement
is intended to supersede and replace the parties’ current
restated agreement dated January 1, 1998,
NOW, THEREFORE , in consideration of the premises and
mutual covenants herein contained, the parties hereby 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 stated herein. The Officer shall render such
administrative and management services to ECB as are customarily
performed by persons situated in a similar capacity and as directed
by the Board of Directors. The Officer shall promote the business
of ECB and perform such other duties as shall from time to time be
reasonably prescribed by the Board of Directors.
ECB and the Officer each agree that this Amended
and Restated Employment Agreement supersedes and replaces in its
entirety their current restated agreement dated January 1,
1998.
2. ECB shall pay to the Officer during the term of this
Agreement as compensation for all services rendered by him to ECB a
base salary in such amounts and at such intervals, in accordance
with ECB’s normal payroll policies and procedures, as shall
be commensurate with his duties and responsibilities hereunder and
as determined by the Board of Directors. The Officer’s
initial base salary under this agreement was $112,000.00 per annum
and currently is $278,000 per annum. The Officer’s base
salary may be modified from time to time to reflect the duties
required of the Officer. In reviewing the Officer’s base
salary the Board of Directors of ECB shall consider the overall
performance of the Officer and the service of the Officer rendered
to ECB and its subsidiaries, as well as increases in the cost of
living and may also provide for performance or merit increases. The
Officer’s performance shall be reviewed annually.
Participation in ECB’s cash incentive, deferred compensation,
stock option, stock purchase, discretionary bonus, pension, life
insurance, and other employee benefit plans and participation in
any fringe benefits shall not cause a reduction in the base salary
payable to the Officer; provided however, that the enumeration of
the programs herein described are no representation that ECB has or
will have any of such programs. The Officer will be entitled to
such customary fringe benefits, vacation and sick leave as are
consistent with the normal practices and established policies of
ECB.
3. During the term of this Agreement, the Officer shall be
entitled, in an equitable manner based on the terms of any bonus
and incentive plans that have been approved, or may from time to
time be approved, by the Board of Directors, with all other key
management personnel of ECB, to such incentives and discretionary
bonuses as may be authorized, declared and paid by the Board of
Directors to ECB’s key management employee’s. No other
compensation provided for in this Agreement shall be deemed a
substitute for the Officer’s right to such incentives and
discretionary bonuses when, if, and as declared by the Board of
Director’s. Provided that ECB shall have the right to
terminate any existing bonus or incentive plans now existing or
hereafter initiated so long as such termination is of general
applicability and not specifically limited to the Officer.
4. The Officer shall be entitled to participate in any plan
relating to incentive and deferred compensation, stock options,
stock purchase, pension, thrift, profit sharing, group life
insurance, medical coverage, disability coverage, education, or
other retirement or employee benefits that ECB has adopted, or may
from time to time adopt, for the benefit of its executive employees
and for employees generally, subject to the eligibility rules of
such plans. Provided that ECB shall have the right to terminate any
existing or future benefits so long as such termination is of
general applicability and not specifically limited to the
Officer.
The Officer shall also be entitled to participate in any other
fringe benefits which are now or may be or may become applicable to
ECB’s executive employees, including the payment of
reasonable expenses for attending annual and periodic meetings of
trade associations, and any other benefits which are commensurate
with the duties and responsibilities to be performed by the Officer
under this Agreement. Additionally, the Officer shall be entitled
to such vacation and sick leave as shall be established under
uniform employee policies promulgated by the Board of
Directors.
ECB shall reimburse the Officer for all out-of-pocket reasonable
and necessary business expenses which the Officer may incur in
connection with his service on behalf of ECB, subject to the
reimbursement policy of ECB as adopted and modified by the Board of
Directors from time to time. Also, the Officer shall be entitled to
undertake and be reimbursed for the reasonable cost of a complete
physical examination each year. To the extent the Officer is
entitled to the reimbursement of any expenses or in-kind benefit
under the provisions of this Agreement that is subject to
Section 409A of the Internal Revenue Code of 1986, as amended,
and regulations promulgated thereunder, as applicable ("Section
409A"), the right to such reimbursement or benefit shall not be
subject to exchange for another benefit
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and such reimbursement shall be paid by ECB no
later than two and one-half months after the year in which the
expense is incurred, except as otherwise provided in
Section 409A.
Except as otherwise provided in Section 409A, in no event
shall the amount of the reimbursement or provision of benefits to
the Officer for one tax year affect the amount of the reimbursement
or provision of benefits to the Officer in another tax year.
5. (a) The initial term of employment under this Agreement
commenced on January 1, 1998 (the Commencement Date) and shall
continue until the third (3rd) anniversary of the Commencement
Date. The initial term of employment under this Agreement shall
terminate at the close of the business day on December 31,
2000 (the Initial Termination Date.) On January 1 of each
year, beginning on January 1, 1999, this Agreement will be
extended for an additional year, unless either party to the
Agreement notifies the other in writing within 90 (ninety) days
prior to an Anniversary Date of a desire to seek a final
termination or amendment of the Agreement. Following such duly
executed notice, this Agreement will cease to be extended
automatically, and shall end automatically at the then expiration
date which shall be no less than two years and 90 (ninety) days
from the said notice.
(b) In the event of the Officer’s death prior to the
Termination Date, the Officer’s estate shall be entitled to
receive the compensation due the Officer through the last day of
the calendar month in which the Officer’s death shall have
occurred. In the event of the Officer’s disability (as
defined in Section 409A) prior to the Termination Date, the
Officer shall receive all compensation, including incentives and
bonuses, through the date of determination of such disability and
for a period of 90 days thereafter.
Payments described in this Paragraph 5(b) shall be paid to the
Officer or, in the case of death, to the Officer’s estate,
only if the Officer was employed by Employer as of the date of
death or disability, and such payments shall be made in a lump sum
within 30 days following the date of death or disability, as
applicable.
(c) The Officer’s employment under this Agreement may be
terminated at any time prior to the Termination Date by the Officer
upon ninety (90) days prior written notice to ECB. Upon such
termination, the Officer shall be entitled to receive the
compensation and benefits payable to the Officer under this
Agreement through the effective date of such termination.
(d) The Board may terminate the Officer’s employment at
any time prior to the Termination Date for "cause", in which event
the Officer shall have no right to receive compensation or other
benefits hereunder for any period after such termination for
"cause". Termination for "cause" shall mean t
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