EXHIBIT
10.32
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT
(this “Agreement”) is made and entered into as of the
31st day of December, 2008, by and between CommunityONE Bank,
National Association, a national banking corporation formerly known
as First National Bank and Trust Company with its principal office
and place of business located in Asheboro, North Carolina (the
“Bank”), and R. Larry Campbell (the
“Employee”).
W I T N E S
S E T H :
WHEREAS, the Employee is currently employed by
the Bank pursuant to the terms of an employment agreement between
the Employee and the Bank dated as of April 10, 2000, as amended by
the first amendment thereto dated as of June 30, 2006 (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”), to extend the term of the Employee’s employment
with the Bank, and to induce the Employee to continue employment
with the Bank by providing for the payment of compensation to the
Employee upon the Employee’s termination following a change
in control of the Bank or its parent, FNB United Corp., a North
Carolina corporation and registered bank holding company
(“FNB”); and
WHEREAS; the parties intend that this Agreement
shall 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 Bank, is
contemplated insofar as the Bank or any of its affiliates are
concerned;
NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, and in consideration of the premises and the mutual
covenants and obligations herein contained, the parties hereto
agree as follows:
1.
Employment . The Bank hereby employs the
Employee, and the Employee hereby accepts employment with the Bank,
for the term set forth in Section 2 below, in the position and with
the duties and responsibilities set forth in Section 3 below, and
upon the other terms and conditions hereinafter stated.
2.
Term . The term of this Agreement shall commence
as of the date hereof and shall continue until December 31, 2010
(the “Term”).
3.
Position and Responsibilities . The Employee
shall serve as an Executive Vice President of the Bank, or in such
other appropriate position and with such duties as the Bank may in
the future designate. In such capacity, the Employee
shall at all times report to, and his activities shall at all times
be subject to the direction and control of, the principal executive
officer of the Bank or his designee. The Employee shall
devote substantially all of his business time, attention and
services to discharge faithfully and diligently his duties and
responsibilities under this Agreement and to use his best efforts
for both the successful operation of the Bank’s business and
the successful implementation of the policies established by the
Bank or FNB.
4.
Compensation and Benefits . During the term of
this Agreement, the Bank shall provide to the Employee the
following compensation and benefits:
(a)
Salary . In consideration of the services to be
rendered by the Employee to the Bank and the Employee’s
covenants hereunder, the Bank shall pay to the Employee a base
salary at the rate of $180,000 per annum (such salary as it may be
increased from time to time being hereinafter referred to as the
“Base Salary”). The Employee shall receive
from the Bank a formal review of Employee’s performance at
least as frequently as annually, and Employee may be considered for
merit increases to his Base Salary in accordance with the
Bank’s policies and practices for employee compensation as
established or modified from time to time. Except as may
otherwise be agreed, the Base Salary shall be payable in accordance
with the Bank’s policies and practices for employee
compensation as established or modified from time to time; provided
that the Base Salary shall be payable not less frequently than
monthly. Salary payments shall be subject to all
applicable federal and state withholding, payroll and other
taxes.
(b)
Group Benefit Plans and Programs . The Employee
will be entitled to participate, in accordance with the provisions
thereof, in any group health, disability and life insurance, and
any bonus, pension, retirement and other employee benefit plans and
programs made available by the Bank or FNB to their employees
generally. Without limiting the generality of the
foregoing, the Employee shall be entitled to participate, in
accordance with the provisions thereof, in the Bank’s or
FNB’s arrangement for performance compensation for
stakeholders (or any successor plan) and the FNB
United/CommunityONE Executive Short-Term Incentive Plan
(hereinafter together referred to as the “Stakeholders
Plan”).
(c)
Supplemental Plans . The Bank assumed the
obligations of Richmond Savings Bank, Inc.,
SSB (“Richmond Savings”) with respect to
that Employee Income Plan Deferred Compensation Agreement and Split
Dollar Agreement each dated January 1, 1987 and subsequently
amended January 1, 1992 (collectively, the “Supplemental
Plans”) and shall continue the Supplemental Plans in effect
in accordance with the terms thereof; provided, however, that
nothing herein shall prohibit the Bank from terminating either or
both Supplemental Plans upon the Employee’s voluntary
termination of employment (other than Employee’s termination
in connection with a Change in Control pursuant to Section
5(f)(ii)) or upon a termination for Cause (as defined
below).
(d)
Club Dues . The Bank shall pay or reimburse the
Employee for the monthly dues and assessments necessary for
Employee to maintain the status of an active member of the Beacon
Country Club or such other clubs as are reasonably necessary to
the
conduct of the
Bank’s business and as the principal executive of the Bank
may from time to time approve.
(e)
Vacation . The Employee shall be entitled to such
vacation and other leave as may be provided by the Bank or FNB to
their employees in similar positions generally; provided, however,
that, to the extent that the amount of vacation and other leave to
which the Employee is entitled is related to the Employee’s
years of service to the Bank or FNB, the Employee shall be given
credit for each year of service as an employee of Richmond
Savings.
(f)
Automobile . The Bank shall provide the Employee
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
Employee will be appropriately accounted for and reported as
additional compensation.
(g)
Business Expenses . The Bank shall reimburse the
Employee for any reasonable out-of-pocket business and travel
expenses incurred by the Employee in the ordinary course of
performing his duties for the Bank upon presentation by the
Employee, from time to time, of appropriate documentation therefor
and in accordance with the Bank’s policies and practices as
established or modified from time to time.
(h)
Convention Attendance . The Bank shall pay all
registration, travel, accommodation and meal expenses for the
Employee and his spouse to attend the annual convention of the
North Carolina Bankers Association each year.
5.
Termination . The Employee’s term of
employment under this Agreement may be terminated before the end of
the Term as set forth in this Section 5. Notwithstanding
anything contained herein to the contrary, the Employee’s
employment with the Bank shall not be considered to have terminated
for purposes of the Employee’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
Bank and any other entity that, along with the Bank, 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 Employee
during his employment under this Agreement, this Agreement shall be
terminated as of the date of death. In such event, the
Bank shall pay the Employee’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 Employee’s
designated beneficiary, or, in the absence of such designation, to
the estate or other legal representative of the
Employee. Any rights and benefits the Employee’s
estate or any other person may have under employee benefit plans
and programs of the Bank, or any benefit plans or agreements of
Richmond Savings or its parent, Carolina Fincorp, Inc.
(“Carolina”), that were assumed by the Bank or FNB in
connection with FNB’s acquisition of Carolina, in the event
of the Employee’s death shall be determined in accordance
with the terms of such plans and programs.
(b)
Long-Term Disability . If the Employee 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 Employee under this
Agreement shall, at the election of the Bank, be terminated
effective as of the ninetieth day of such period. Upon
termination of the Employee’s employment by reason of
disability under this Section 5(b), the Employee 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 Employee on a policy maintained for the benefit of the Employee
by the Bank or FNB, 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 20 below. Any rights and benefits the Employee
may have under employee benefit plans and programs of the Bank, or
any benefit plans or agreements of Richmond Savings or Carolina
that were assumed by the Bank or FNB in connection with FNB’s
acquisition of Carolina, in the event of the Employee’s
disability, including rights and benefits under retirement plans
and programs, 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 Employee to perform his customary or other
comparable duties with the Bank. In the event that the
Employee and the Bank are unable to agree as to whether the
Employee is suffering a disability, the Employee and the Bank 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
Employee is suffering a disability shall be based upon the
determination of a majority of the three physicians. The
Bank shall pay the reasonable fees and expenses of all physicians
selected pursuant to this Section 5(b).
(c)
Termination for Cause . Nothing herein shall
prevent the Bank from terminating the Employee’s employment
at any time for Cause (as hereinafter defined). Upon
termination for Cause, the Employee shall receive his Base Salary
only through the date that such termination becomes
effective. Neither the Employee nor any other person
shall be entitled to any further payments from the Bank, for salary
or any other amounts. Notwithstanding the foregoing, any
rights and benefits the Employee may have under employee benefit
plans and programs of the Bank, or any benefit plans or agreements
of Richmond Savings or Carolina that were assumed by the Bank or
FNB in connection with FNB’s acquisition of Carolina,
following a termination of the Employee’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 termination by the
Bank of the Employee’s employment as a result of (i) an
intentional, willful and continued failure by the Employee to
perform his duties in the capacities indicated above (other than
due to disability); (ii) an intentional, willful and material
breach by the Employee of his fiduciary duties of loyalty and care
to the Bank; (iii) an intentional, willful and knowing violation by
the Employee of any provision of this Agreement; (iv) a conviction
of, or the entering of a plea of nolo contendere by the Employee
for any felony or any crime involving fraud or dishonesty, or (v) a
willful and knowing violation of any material federal or state
banking law or regulation applicable to the Bank 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
Employee becomes unacceptable to, or is removed, suspended or
prohibited from participating in the conduct of the Bank’s
affairs by any regulatory authority having jurisdiction over the
Bank or FNB.
(d)
Termination Other Than For Cause and Not in Connection with a
Change in Control . The Bank may terminate the
Employee’s employment under this Agreement at any time upon
90 days written notice to the Employee for whatever reason it deems
appropriate, or for no reason. In the event such
termination by the Bank occurs and is not (i) due to death as
provided in Section 5(a) above, (ii) due to disability as provided
in Section 5(b) above, (iii) for Cause as provided in Section 5(c)
above, or (iv) in connection with or within 24 months after a
Change in Control as provided in Section 5(f), the Bank shall
continue the Employee’s Base Salary, at the rate in effect at
the time of such termination through the end of the Term of this
Agreement. In addition, the Bank shall pay to the
Employee for the year of termination and for each subsequent
calendar year or portion thereof through the end of the Term of
this Agreement an amount (prorated in the case of any partial year)
equal to the average bonuses paid to the Employee under the
Stakeholders Plan 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 Stakeholders
Plan. All compensation continuation shall be subject to
all applicable federal and state withholding taxes and any
postponement of payment that may be required pursuant to Section 20
below. Any rights and benefits the Employee may have
under employee benefit plans and programs of the Bank or FNB, or
under any benefit plans or agreements of Richmond Savings or
Carolina that were assumed by the Bank or FNB in connection with
FNB’s acquisition of Carolina, following a termination of the
Employee’s employment pursuant to this Section 5(d),
including rights and benefits under retirement plans and programs,
shall be determined in accordance with the terms of such plans,
agreements and programs.
In addition to the foregoing, in the event of a
termination pursuant to this Section 5(d) and provided the Employee
properly elects coverage under the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended (“COBRA”), the
Bank shall reimburse the Employee for one hundred percent (100%) of
all applicable premiums for continuation coverage for the Employee
under the group health plan of the Bank in which the Employee was a
participant at the time of the termination of his
employment. On a monthly basis following a termination
pursuant to this Section 5(d), the Bank shall pay to Employee a
cash payment that shall equal the premium costs that the Employee
paid on an after-tax basis over the preceding month period for such
COBRA coverage until the earlier of (x) the end of the term
remaining under this Agreement at the time the Employee’s
employment is terminated, (y) the date on which the Employee is
eligible to participate in a group health plan of another employer
as a full-time employee, or (z) the Employee’s death;
provided, however that, as of the nineteenth month following a
termination pursuant to this Section 5(d), the Employee shall not
be entitled to further reimbursement for premium costs for such
COBRA coverage.
In the event the Employee is eligible to be
covered by the Postretirement Medical and Life Insurance Benefits
Plan, or any successor or similar plan, of the Bank at the time of
his termination pursuant to this Section 5(d), the Employee 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 Bank. On a monthly basis following a termination pursuant to
this Section 5(d), the Bank shall pay to the
Employee a cash
payment that shall equal the premium costs that the Employee paid
on an after-tax basis over the month period for coverage under such
Postretirement Medical and Life Insurance Ben
