Exhibit 10.2
FOUR OAKS BANK & TRUST COMPANY
AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
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THIS
AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is
entered into as of this 11th day of December, 2008 by and between
FOUR OAKS BANK
& TRUST COMPANY, a North Carolina banking corporation (the
"Bank"), and
CLIFTON
L. PAINTER ("Employee").
W I T N E S S E T H :
WHEREAS, the Bank and
Employee are parties to an Executive Employment
Agreement dated
January 1, 1989 ("Employment Agreement") and a Severance
Compensation
Agreement dated
January 1, 1989 ("Severance Compensation
Agreement"); and
WHEREAS, the Bank and
Employee desire to
amend and restate the Employment
Agreement as provided herein to incorporate the substantive provisions of the
Severance Compensation
Agreement and to make certain other revisions and to
terminate the Severance Compensation Agreement; and
WHEREAS, the Bank desires that Employee continue as an Employee of
the Bank
and continue
to serve as Senior
Executive Vice President, Chief Operating
Officer; and
WHEREAS, Employee
desires to continue to be an employee of the Bank and to
continue to serve as Senior Executive Vice President, Chief
Operating Officer;
NOW,
THEREFORE,
in consideration of the promises and of the mutual
covenants contained in this Agreement, the Bank and Employee agree
as follows:
1.
Employment.
Employee shall serve the Bank as Senior
Executive Vice
President, Chief
Operating Officer with such duties, responsibilities and
authorities of such
office as may be
assigned to him and as are customarily
associated with such office.
2.
Term. The original term of this Agreement shall be for the one year
period commencing on
the date of this Agreement and terminating one year later,
unless earlier terminated as set forth in this Agreement. Upon the
expiration of
the original term or any extension term, the term of this Agreement shall be
automatically extended
for an additional period of one (1) year
unless such
automatic extension is
declined by either party by written notice given to the
other party not less than ninety (90) days before the end of the
then current
term of this
Agreement. During any
extension term, all terms and provisions of
this Agreement shall be applicable and in full force.
3.
Compensation and
Benefits. In
consideration of his services during the
term of this Agreement, Employee shall be paid
compensation and benefits by the
Bank as follows:
(a) Base Salary.
Employee will receive an annual base salary
of One
Hundred
Sixty-Three
Thousand Two
Hundred Eighty-Six and 04/100 Dollars
($163,286.04) payable
in monthly
installments. Employee
will be entitled to
receive such increases in his annual base salary as may be approved
by the Board
of Directors of the Bank ("Board"), with each such increase
being included in
his annual base salary for all purposes.
<PAGE>
(b) Additional Benefits. Employee shall be entitled to
receive and to
participate, subject
to any eligibility requirements, in all benefits generally
made available to the Bank's officers and also those generally made
available to
all salaried
employees of the Bank including, but not limited to, any bonus
plans, stock
options, insurance benefits, vacation, sick leave, and
reimbursement of
expenses incurred on behalf of the Bank in the course of
performing duties under this Agreement.
4.
Termination and Compensation Upon Termination. Employee's employment
under this Agreement shall terminate:
(a) Upon the death of Employee.
(b) Upon written
notice from the Bank to Employee in the event of
Employee's physical or
mental inability to
perform the essential
functions of
his duties for 180
consecutive days or
180 days total in any
365-day period
("Disability") as
determined
by the Board or a
committee of the Board
in its
reasonable discretion and in accordance with applicable law.
(c) Immediately
upon written notice from the Bank for any of the
following reasons which shall constitute "Cause" :
(i) the willful and continued failure by Employee to
substantially perform
his duties with the
Bank (other
than any such
failure
resulting from his
Disability) after a
demand for substantial
performance is
delivered to Employee by the Bank's Chief Executive Officer, the Board, or a
committee of the Board which specifically identifies the manner in which he
or
it believes that Employee has not substantially performed his
duties;
(ii) the willful engaging by Employee in gross misconduct
materially and demonstratively injurious to the Bank; or
(iii) the conviction of Employee of any crime involving fraud or
dishonesty.
(d) Upon ninety (90)
days' written
notice from the Bank
to Employee
for any reason
other than death, Disability, or Cause (a "without Cause"
termination).
If
Employee's
employment
is terminated pursuant to Sections 4(b)
(Disability) or 4(d) (without Cause) above, then Employee shall be entitled
to
receive an amount equal to his then current monthly salary (less any
applicable
taxes and
withholdings) for the greater of six (6) months or the then
remaining
term of this
Agreement, payable in
a lump sum within
thirty (30) days of
the
date of termination of employment.
2
<PAGE>
5.
Change in Control.
(a) Definition of Change in Control. For purposes of this
Agreement, a
"Change in Control" means one or more of the following
occurrences:
(i) A corporation, person or group acting in concert as
described
in Section
14(d)(2) of the Securities Exchange Act of 1934, as amended
("Exchange Act"), holds or acquires beneficial ownership within the meaning
of
Rule 13d-3 promulgated
under the Exchange Act of a number of shares
of voting
capital stock of Four
Oaks Fincorp,
Inc., the holding company of the Bank
("FOF"), which
constitutes more than
thirty-three percent
(33%) of FOF's then
outstanding shares entitled to vote.
(ii) The consummation of a merger, share exchange,
consolidation,
or reorganization
involving FOF and any
other corporation or other entity as a
result of which less than fifty percent (50%) of the combined voting power of
FOF or of the surviving or resulting corporation or entity after such
transaction is held in the aggregate by the holders of the combined
voting power
of the o
