EXHIBIT
10.30
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT
(this "Agreement") is made and entered into effective as of the
31st day of December, 2008 (the “Effective Date”) by
and among FNB United Corp., a North Carolina corporation
(“FNB”), CommunityONE Bank, National Association, a
national banking corporation formerly known as First National Bank
and Trust Company and wholly owned subsidiary of FNB (the
“Bank”), and Michael C. Miller, President of
each of FNB and the Bank (the
“Executive”). FNB and the Bank are
hereinafter sometimes referred to together or individually as the
“Employer.”
WITNESSETH:
WHEREAS, the Executive is currently employed as
the President of each of FNB and the Bank pursuant to the terms of
an employment agreement between the Executive and the Bank dated as
of January 1, 2006 (the “Prior Agreement”) and is
highly knowledgeable about their businesses, operations, markets
and customers; and
WHEREAS, the Executive is a valued executive of
the Employer and, to induce the Executive to continue employment
with the Employer and to enhance the Executive’s job
security, the Employer entered into the Prior Agreement to provide
compensation to the Executive in certain events, including but not
limited to the Executive’s termination of employment
following a change in control of the Employer; and
WHEREAS, because the Executive is familiar with
and will continue to gain extensive knowledge regarding the
Employer’s products, relationships, trade secrets and
confidential information relating to the Employer and its business,
products, processes and developments and has generated and will
continue to generate confidential information in the course of his
duties, the Employer wished to protect its long-term interests by
having the Executive enter into certain nondisclosure and
noncompetition covenants set forth in the Prior Agreement;
and
WHEREAS, the parties desire to amend and restate
the Prior Agreement to bring the Prior Agreement into compliance
with Section 409A of the Internal Revenue Code of 1986, as amended
from time to time (including corresponding provisions of succeeding
law) (the “Code”), the regulations promulgated
thereunder, and other guidance issued thereunder by the Department
of the Treasury and/or the Internal Revenue Service (“Section
409A”); and
WHEREAS; the parties intend that this Agreement
shall amend, restate and supersede the Prior Agreement in its
entirety, and that from and after the effective date of this
Agreement, the Prior Agreement shall be of no further force and
effect; and
WHEREAS, none of the conditions or events
included in the definition of the term “golden parachute
payment” that is set forth in Section 18(k)(4)(A)(ii) of the
Federal Deposit Insurance Act [12 U.S.C. 1828(k)(4)(A)(ii)] and in
Federal Deposit Insurance Corporation Rule
359.1(f)(1)(ii)
[12 CFR 359.1(f)(1)(ii)] exists or, to the best knowledge of the
Employer, is contemplated insofar as the Employer or any affiliates
are concerned.
NOW, THEREFORE,
in consideration of the terms contained herein, including the
compensation the Employer agrees to pay to the Executive upon
certain events, the Executive's continued employment with the
Employer, the Executive's covenants and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Employer and the Executive hereby agree as
follows:
1. Employment
and Duties.
(a)
Employment. During the Employment Term (as
defined in Section 3 below), and upon the terms and conditions set
forth in this Agreement, the Employer shall employ the Executive,
and the Executive shall serve, as President and Chief Executive
Officer of each of FNB and the Bank. As such, the Executive shall
have the responsibilities, duties and authority reasonably accorded
to, expected of, and consistent with those positions and will
report directly to the board of directors of each of FNB and the
Bank (hereinafter sometimes referred to together or individually as
the “Board”). The Executive shall serve the
Employer faithfully, diligently, competently, and to the best of
his ability, and he shall exclusively devote his full time, energy,
and attention to the business of the Employer and to the promotion
of the Employer’s interests throughout the Employment
Term. The Executive shall faithfully adhere to, execute
and fulfill all lawful requests, instructions and policies made by
the Board or its authorized agent(s).
(b)
No Other Employment. Without the written consent
of FNB’s board of directors, during the Employment Term, the
Executive shall not render services to or for any person, firm,
corporation, or other entity or organization in exchange for
compensation, regardless of the form in which such compensation is
paid and regardless of whether it is paid directly or indirectly to
the Executive. The foregoing limitation shall not be construed as
prohibiting the Executive from managing his personal affairs in a
manner that does not interfere with the proper performance of his
duties and responsibilities as President or making or managing
personal investments in such form or manner as will not require his
services in the operation or affairs of the companies or
enterprises in which such investments are made and will not violate
Section 6 below.
(c)
Board of Directors of FNB. The Executive is
currently serving as a director of FNB. FNB shall
nominate the Executive for election as a director at such times as
necessary so that the Executive will, if elected by shareholders,
remain a director of FNB throughout the term of this
Agreement. The Executive hereby consents to serve as a
director of FNB, and the Executive hereby consents to being named
as a director of FNB in documents filed by FNB with the Securities
and Exchange Commission. The Executive shall be deemed
to have resigned as a director of FNB effective immediately after
termination of the Executive’s employment under Section 4 of
this Agreement other than by reason of the Executive’s
retirement under Section 4(g), regardless of whether the Executive
submits a formal, written resignation as director.
(d)
Board of Directors of the Bank. The
Executive is currently serving as a director of the
Bank. The Board shall undertake every lawful effort to
ensure that the Executive continues throughout the term of his
employment to be elected or reelected as a director of the
Bank. The Executive shall be deemed to have resigned as
a director of the Bank effective immediately after termination of
the Executive’s employment under Section 4 of this Agreement
other than by reason of the Executive’s retirement under
Section 4(g), regardless of whether the Executive submits a formal,
written resignation as director.
2.
Compensation. For all services rendered by
the Executive during the Employment Term as defined in Section 3
below, the Employer shall compensate the Executive as
follows:
(a)
Base Salary . During the Employment Term, the
Employer shall pay the Executive an annual salary in an amount not
less than the amount of the Executive’s annual salary as of
the Effective Date (such salary as it may be increased from time to
time being hereinafter referred to as the “Base
Salary”). Such salary shall be payable in
accordance with the Employer’s customary payroll practices
and shall be subject to all applicable federal and state
withholding, payroll and other taxes. During the
Employment Term, the Base Salary shall be reviewed annually by the
Compensation Committee of FNB’s board of directors or by such
other board committee as has jurisdiction over executive
compensation and may be increased from time to time consistent with
such review.
(b)
Perquisites, Benefits and Other
Compensation. During the Employment Term, the
Executive shall be entitled to receive additional benefits and
compensation from the Employer in such form and to such extent as
specified below:
(i)
Benefit Plans and Programs . The Executive will
be entitled to participate, in accordance with the provisions
thereof, in all group health, disability and life insurance, and
all bonus, pension, retirement and other employee benefit plans and
programs made available by the Employer to its employees generally
or to its senior officers. Without limiting the
generality of the foregoing, the Executive shall be entitled to
participate, in accordance with the provisions thereof, in the
Employer’s arrangement for performance compensation for
stakeholders (or any successor plan) (the “Stakeholders
Plan”) and the FNB United/CommunityONE Executive Short-Term
Incentive Plan (hereinafter together referred to as the
“Bonus Plans”). In addition, the Executive
shall be eligible to participate in the Employer’s
stock-based incentive compensation plans then available to other
employees or executives of the Employer in accordance with the
provisions of such plans and with awards thereunder determined by
FNB’s board of directors or by the Compensation Committee of
the Board, in its sole discretion.
(ii)
Supplemental Plan . The Executive will be
entitled to participate, in accordance with the provisions thereof,
in the FNB Supplemental Executive Retirement Plan, as such plan may
be amended from time to time.
(iii)
Club Dues . The Employer shall pay or reimburse
the Executive for the monthly dues and assessments necessary for
the Executive to maintain the status of an active member of the
Asheboro Country Club and Pinewood Country Club or such other clubs
as
are reasonably
necessary to the conduct of the Employer’s business and as
the Compensation Committee of FNB’s board of directors may
from time to time approve. The Employer shall also pay
or reimburse the Executive for the dues and expenses incurred by
the Executive for membership in such civic clubs or groups as are
reasonably necessary to the conduct of the Employer’s
business and as may be approved by the Compensation
Committee.
(iv)
Vacation . The Executive shall be entitled to
paid annual vacation and sick leave in accordance with the policies
established from time to time by the Employer.
(v)
Automobile . The Employer shall provide the
Executive with a suitable vehicle for his exclusive use in the
discharge of his duties hereunder and shall pay all operating and
service expenses, including automobile insurance, related to such
vehicle. Any personal use of such vehicle by the
Executive will be appropriately accounted for and reported as
additional compensation.
(vi)
Business Expenses . The Employer shall reimburse
the Executive for any reasonable out-of-pocket business and travel
expenses incurred by the Executive in the ordinary course of
performing his duties for the Employer upon presentation by the
Executive, from time to time, of appropriate documentation therefor
and in accordance with the Employer’s policies and practices
as established or modified from time to time.
(vii)
Meeting and Convention Attendance . The Employer
shall pay all registration, travel, accommodation and meal expenses
for the Executive to attend such meetings and conferences as are
approved by the Board or an appropriate committee of the
Board. The Employer shall also pay all registration,
travel, accommodation and meal expenses for the Executive and his
spouse to attend the annual conventions of the American and North
Carolina Bankers Associations each year.
3.
Term. The initial term of this Agreement shall
be for a period of three years commencing on the Effective
Date. On the first anniversary of the Effective Date of
this Employment Agreement and on each anniversary thereafter, this
Agreement shall be extended automatically for one additional year
unless FNB’s board of directors determines that the term
shall not be extended. If the board of directors
determines not to extend the term, it shall promptly notify the
Executive in writing. If the board of directors decides
not to extend the term of this Agreement, this Agreement shall
nevertheless remain in full force until its term
expires. The board of director’s decision not to
extend the term of this Agreement shall not – by itself
– give the Executive any rights under this Agreement to claim
an adverse change in his position, compensation, or circumstances
or otherwise to claim entitlement to severance benefits under this
Agreement. Unless sooner terminated, this Agreement and
the Executive’s employment hereunder shall terminate on
December 31 of the year in which the Executive attains age
65. The Executive's total term of employment with the
Employer during the initial and any extended term is collectively
defined and sometimes referred to under this Agreement as the
"Employment Term."
4.
Termination. The Executive’s
term of employment under this Agreement may be terminated before
the end of the initial term or any extension thereof as set forth
in this Section 4. Notwithstanding anything contained
herein to the contrary, the Executive’s
employment with
the Employer shall not be considered to have terminated for
purposes of the Executive’s receiving any compensation or
other benefits otherwise provided under this Agreement unless (i)
he would be considered to have incurred a “separation from
service” within the meaning of Section 409A from the
Employer and any other entity that, along with the Employer,
would be considered a “service recipient” within the
meaning of Section 409A or (ii) the payment of such compensation or
such other benefits would not be subject to Section
409A.
(a)
Death . In the event of the death of the
Executive during his employment under this Agreement, this
Agreement shall be terminated as of the date of
death. In such event, the Employer shall pay the
Executive’s Base Salary, at the rate in effect at the time of
his death and through the last day of the calendar month in which
such death occurs, to the Executive’s designated beneficiary,
or, in the absence of such designation, to the estate or other
legal representative of the Executive. In addition, the
Employer shall pay to the Executive’s designated beneficiary,
or, in the absence of such designation, to the estate or other
legal representative of the Executive, at the same time as bonus
payments for the year of death would otherwise be payable under the
Stakeholders Plan, a prorated bonus for the year of death that the
Executive would have received if he had been employed throughout
such year and had received the same performance rating as he
received for the immediately preceding year, prorated on a daily
basis as of the date of the Executive’s death. Any
rights and benefits the Executive’s estate or any other
person may have under employee benefit plans and programs of the
Employer in the event of the Executive’s death shall be
determined in accordance with the terms of such plans and
programs.
(b)
Long-Term Disability . If the Executive suffers
any disability while employed under this Agreement that prevents
him from performing his duties under this Agreement for a period of
90 consecutive days, then, unless otherwise then agreed in writing
by the parties hereto, the employment of the Executive under this
Agreement shall, at the election of the Employer, be terminated
effective as of the ninetieth day of such period. Upon
termination of the Executive’s employment by reason of
disability under this Section 4(b), the Executive shall be entitled
to receive his Base Salary, at the rate in effect on the date of
such termination, less any disability insurance payments paid to
the Executive on a policy maintained for the benefit of the
Executive by the Employer, through the end of the then current term
of this Agreement. Such salary continuation shall be
subject to all applicable federal and state withholding taxes and
any postponement of payment that may be required pursuant to
Section 15 below. Any rights and benefits the Executive
may have under the employee benefit plans and programs of the
Employer in the event of the Executive’s disability shall be
determined in accordance with the terms of such plans and
programs.
For purposes of this Agreement,
“disability” shall mean the inability, by reason of
bodily injury or physical or mental disease, or any combination
thereof, of the Executive to perform his customary or other
comparable duties with the Employer, with or without reasonable
accommodation. In the event that the Executive and the
Employer are unable to agree as to whether the Executive is
suffering a disability, the Executive and the Employer shall each
select a physician and the two physicians so chosen shall make the
determination or, if they are unable to agree, they shall select a
third physician, and the determination as to whether the Executive
is suffering a disability shall be based upon the determination of
a majority of the three physicians.
The Employer
shall pay the reasonable fees and expenses of all physicians
selected pursuant to this Section 4(b).
(c)
Termination for Cause. Nothing herein shall
prevent the Employer from terminating the Executive’s
employment at any time for Cause (as hereinafter
defined). Upon termination for Cause, the Executive
shall receive his Base Salary only through the date that such
termination becomes effective and the amount of any compensation
previously deferred by the Executive, provided that the payment of
any such deferred amount will be made in accordance with the
provisions of the plan, program or arrangement of the Employer
permitting the deferral. Neither the Executive nor any
other person shall be entitled to any further payments from the
Employer, for salary or any other
amounts. Notwithstanding the foregoing, any rights and
benefits the Executive may have under the employee benefit plans
and programs of the Employer following a termination of the
Executive’s employment for Cause shall be determined in
accordance with the terms of such plans, agreements and
programs.
For purposes of this Agreement, termination for
Cause shall mean a termination by the Employer of the
Executive’s employment by a vote of the majority of the Board
members then in office, as a result of (i) an intentional,
willful and continued failure by the Executive to perform his
duties in the capacities indicated above (other than due to
disability); (ii) an intentional, willful and material breach
by the Executive of his fiduciary duties of loyalty and care to the
Employer; (iii) an intentional, willful and knowing violation
by the Executive of any provision of this Agreement; (iv) an
intentional, willful and knowing violation by the Executive of the
Employer’s Code of Business Ethics or Code of Ethics for
Senior Financial Officers; (v) a conviction of, or the
entering of a plea of nolo contendere by the Executive for any
felony or any crime involving fraud or dishonesty, or (vi) a
willful and knowing violation of any material federal or state
banking law or regulation applicable to the Employer or the
occurrence of any event described in Section 19 of the Federal
Deposit Insurance Act or any other act or event as a result of
which the Executive becomes unacceptable to, or is removed,
suspended or prohibited from participating in the conduct of the
Employer’s affairs by any regulatory authority having
jurisdiction over the Employer; provided, however, that the Board
has given the Executive advance notice of such termination for
Cause, including the reasons therefor, together with a reasonable
opportunity for the Executive to appear with counsel before the
Board and to reply to such notice.
(d)
Termination Other than for Cause and Not in Connection with a
Change in Control . The Employer may terminate the
Executive’s employment under this Agreement at any time upon
90 days written notice to the Executive for whatever reason it
deems appropriate, or for no reason. In the event such
termination by the Employer occurs and is not due to death as
provided in Section 4(a) above, disability as provided in Section
4(b) above or for Cause as provided in Section 4(c) above, the
Employer shall (i) continue the Executive’s Base Salary,
at the rate in effect at the time of such termination, through the
end of the then current term of this Agreement, (ii) pay to
the Executive for the year of termination and for each subsequent
calendar year or portion thereof through the end of the then
current term of this Agreement an amount (prorated in the case of
any partial year) equal to the average of the bonuses paid to the
Executive under the Bonus Plans for the three calendar years
immediately preceding the year of termination, such payments to be
made at the normal times for payment of bonuses under the Bonus
Plans, and (iii) pay to the Executive the amount of any
compensation previously deferred
by the
Executive, provided that the payment of any such deferred amount
will be made in accordance with the provisions of the plan, program
or arrangement of the Employer permitting the
deferral. All compensation continuation shall be subject
to applicable federal and state withholding taxes and any
postponement of payment that may be required pursuant to Section 15
below. Any rights and benefits the Executive may have
under employee benefit plans and programs of the Employer following
a termination of the Executive’s employment by the Employer
other than for Cause, including rights and benefits under
retirement plans and programs, shall be determined in accordance
with the terms of such plans and programs; provided that all stock
options and restricted stock awards granted to the Executive and
outstanding as of the date of termination (other than those under
which vesting is performance-based or is dependent upon the
satisfaction of conditions other than continued employment) shall
become immediately and fully vested and the Executive shall have up
to three years to exercise all such outstanding options following
the date of termination but in no event beyond their specified
term. Notwithstanding the foregoing, no such accelerated
vesting or change in exercise period shall be permitted if it would
cause an option or restricted stock award that is not otherwise
subject to Section 409A to become subject to Section 409A or if it
would cause an option or restricted stock award that is subject to
Section 409A to violate Section 409A.
In addition to the foregoing, in the event of a
termination pursuant to this Section 4(d) and provided the
Executive properly elects coverage under the Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended
(“COBRA”), the Employer shall reimburse the Executive
for one hundred percent (100%) of all applicable premiums for
continuation coverage for the Executive under the group health plan
of the Employer in which the Executive was a participant at the
time of the termination of his employment. On a monthly
basis following a termination pursuant to this Section 4(d), the
Employer shall pay to Executive a cash payment that shall equal the
premium costs that the Executive paid on an after-tax basis over
the preceding month period for such COBRA coverage until the
earlier of (w) the end of the term remaining under this Agreement
at the time the Executive’s employment is terminated, (x)
December 31 of the year the Executive attains age 65, (y) the date
on which the Executive is eligible to participate in a group health
plan of another employer as a full-time employee, or (z) the
Executive’s death; provided, however that, as of the
nineteenth month following a termination pursuant to this Section
4(d), the Executive shall not be entitled to further reimbursement
for premium costs for such COBRA coverage.
In the event the Executive is eligible to be
covered by the Postretirement Medical and Life Insurance Benefits
Plan, or any successor or similar plan, of the Employer at the time
of his termination pursuant to this Section 4(d), the Executive may
elect, in lieu of electing COBRA continuation coverage under the
provisions of the immediately preceding paragraph, to participate
in such Postretirement Medical and Life Insurance Benefits Plan of
the Employer. On a monthly basis following a termination pursuant
to this Section 4(d), the Employer shall pay to the Executive a
cash payment that shall equal the premium costs that the Executive
paid on an after-tax basis over the month period for coverage under
such Postretirement Medical and Life Insurance Benefits Plan, as
adjusted to reflect the Employer’s subsidized cost-sharing
arrangement, if any, that is otherwise provided to all similarly
situated employees based on their years of service with the
Employer until the earlier of (w) the end of the term remaining
under this Agreement at the time the Executive’s employment
is terminated, (x) December 31 of the year the Executive attains
age 65, (y) the date on which the Executive is eligible to
participate in
a group health
plan of another employer as a full-time employee, or (z) the
Executive’s death; provided, however that, as of the
nineteenth month following the Executive’s termination
pursuant to this Section 4(d), the Executive shall not be entitled
to further reimbursement for premium costs for coverage under such
Postretirement Medical and Life Insurance Benefits Plan. After the
18th month following a termination pursuant to this Section 4(d),
the Executive shall continue to be entitled to participate in the
Postretirement Medical and Life Insurance Benefits Plan of the
Employer and to receive the Employer’s subsidized
cost-sharing arrangement, if any, that is otherwise provided to all
similarly situated employees based on their years of service with
the Employer.
In addition to the foregoing, in the event of a
termination pursuant to this Section 4(d) the Employer shall
reimburse the Executive for one hundred percent (100%) of all
applicable premiums actually paid by the Executive for disability
insurance and, if the Executive does not elect to participate in
the Postretirement Medical and Life Insurance Benefits Plan of the
Employer pursuant to the immediately preceding paragraph, life
insurance policies following termination of employment not to
exceed, in scope or benefit, any group disability or life insurance
plan made available by the Employer to similarly situated employees
in which the Executive was a participant at the time of his
termination of employment. On a monthly basis following
a termination pursuant to this Section 4(d), the Employer shall pay
to the Executive a cash payment that shall equal the premium costs
that the Executive paid on an after-tax basis over the month period
for coverage under such disability and, if applicable, life
insurance policies until the earlier of (w) the end of the term
remaining under this Agreement at the time the Executive’s
employment is terminated, (x) December 31 of the year the Executive
attains age 65, (y) the date on which the Executive is eligible to
participate in a group disability and, if applicable, life
insurance plan of another employer as a full-time employee, or (z)
the Executive’s death; provided, however that, as of the
nineteenth month following the Executive’s termination
pursuant to this Section 4(d), the Executive shall not be entitled
to further reimbursement for premium costs for coverage under such
disability and, if applicable, life insurance policies.
In no event shall the amount of expenses
eligible for reimbursement under this Section 4(d) for any calendar
year affect the expenses eligible for reimbursement in another
calendar year. In no event shall any reimbursement made
pursuant to the two immediately preceding paragraphs be made later
than the last day of the calendar year following the year in which
the Executive incurred the expenses being
reimbursed. Any reimbursement payments made pursuant to
either of the two immediately preceding paragraphs shall be subject
to any postponement of payment that may be required by Section
15. In the event a termination by the Employer of the
Executive’s employment under this Agreement occurs within 24
months following a Change in Control (as defined in Section 5(c))
and is not due to death as provided in Section 4(a) above,
disability as provided in Section 4(b) above, or for Cause as
provided in Section 4(c) above, then the Executive’s rights
to compensation shall be governed by Section 5 and not this Section
4(d).
(e)
At the Executive’s Option with Good
Reason. The Executive may terminate his employment
with Good Reason (as defined below) upon at least 60 days advance
notice to Employer; provided that the termination will take effect
at the end of the 60-day notice period unless the event or
circumstance constituting Good Reason is cured by the Employer
or
unless the
notice of termination with Good Reason is revoked by the Executive
within such 60-day period. In the event of such a
voluntary termination of employment with Good Reason, the Employer
shall (i) continue the Executive’s Base Salary, at the
rate in effect at the time of such termination, through the end of
the then current term of this Agreement, (ii) pay to the
Executive for the year of termination and for each subsequent
calendar year or portion thereof through the end of the then
current term of this Agreement an amount (prorated in the case of
any partial year) equal to the average of the bonuses paid to the
Executive under the Bonus Plans for the three calendar years
immediately preceding the year of termination, such payments to be
made at the normal times for payment of bonuses under the Bonus
Plans, and (iii) pay to the Executive the amount of any
compensation previously deferred by the Executive, provided that
the payment of any such deferred amount will be made in accordance
with the provisions of the plan, program or arrangement of the
Employer permitting the deferral. All compensation
continuation shall be subject to applicable federal and state
withholding taxes and any postponement of payment that may be
required pursuant to Section 15 below. Any rights and
benefits the Executive may have under employee benefit plans and
programs of the Employer following a termination by the Executive
of his employment for Good Reason, including rights and benefits
under retirement plans and programs, shall be determined in
accordance with the terms of such plans and programs; provided that
all stock options and restricted stock awards granted to the
Executive and outstanding as of the date of termination (other than
those under which vesting is performance-based or is dependent upon
the satisfaction of conditions other than continued employment)
shall become immediately and fully vested and the Executive shall
have up to three years to exercise all such outstanding options
following the date of termination but in no event beyond their
specified term. Notwithstanding the foregoing, no such
accelerated vesting or change in exercise period shall be permitted
if it would cause an option or restricted stock award that is not
otherwise subject to Section 409A to become subject to Section 409A
or if it would cause an option or restricted stock award that is
subject to Section 409A to violate Section 409A.
In addition to the foregoing, in the event of a
termination p
