North Carolina | 000-13823 | 56-1456589 |
(State or other jurisdiction of incorporation) | (Commission File Number) | (IRS Employer Identification Number) |
[ | ] | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
[ | ] | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
[ | ] | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
[ | ] | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
April 17, 2015 | COMMUNITYONE BANCORP | |
(Date) | (Registrant) | |
/s/ David L. Nielsen | ||
David L. Nielsen | ||
Chief Financial Officer |
1. | Purpose. CommunityOne Bank, N.A. (“Bank”) highly values your service to the Bank. The purpose of this letter agreement (this “Agreement”), therefore, is to confirm to you that the Bank’s Board of Directors has approved the following arrangement that, subject to the terms and conditions set forth below, provides for the payment to you of certain severance benefits in the event that within one year after a Change in Control, your employment with the Bank is terminated without “Cause” or you terminate your employment for “Good Reason.” |
2. | Severance Payments. Specifically, if upon or within one year following a Change in Control, either the Bank terminates your employment without Cause or you terminate your employment with the Bank for Good Reason, the Bank will, subject to paragraph 3 of this Agreement, pay to you within 60 days after your termination of employment a lump sum severance payment (the “Severance Payment”) equal to the amount of your annual base salary in effect immediately prior to the date of your termination of employment (the “Date of Termination”). The Severance Payment shall be subject to reduction for all applicable withholding taxes and any other applicable deductions. |
3. | General Release of Claims. You will not be entitled to the Severance Payment unless you have executed and delivered to the Bank a general release of claims (in such form as the Bank shall specify) (the “Release”) upon or after your Date of Termination and such Release has become irrevocable not later than fifty-six (56) days after the Date of Termination. Your entitlement to the Severance Payment is further conditioned upon your returning to the Bank all property of the Bank and any of its affiliates in your possession on or prior to the Date of Termination and complying with the terms of the Release. The Bank will deliver to you a copy of the Release not later than three days after your Date of Termination. |
4. | Certain Definitions. For purposes of this Agreement: |
5. | Section 409A. The severance payment provided for by paragraph 2 of this Agreement is intended to be exempt from Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) as a ”short-term deferral” and this Agreement shall be interpreted and construed accordingly. For purposes of this Agreement, your employment will not be treated as having terminated unless such termination constitutes a “separation from service” for purposes of Section 409A of the Code. |
6. | Term of Agreement. This Agreement shall become effective on the date hereof and shall remain in effect indefinitely thereafter; provided, however, that (a) except as provided in clause (b) of this paragraph 6, the Bank may terminate this Agreement by giving you at least one year advance written notice of such termination, and (b) if a Change in Control shall have occurred during the term of this Agreement, this Agreement shall not terminate until the expiration of one year following the Change in Control, or if during such one year period either the Bank terminates your employment without Cause or you terminate your employment with the Bank for Good Reason, this Agreement shall not terminate until all obligations of the parties have been performed in full. |
7. | Employment At-Will. Notwithstanding anything to the contrary in this Agreement, you acknowledge and agree that your employment relationship with the Bank is at will and may be terminated by you or the Bank at any time, with or without cause or notice. |
8. | Notice of Voluntary Termination. You agree that in the event you elect to terminate your employment with the Bank, other than for Good Reason after a Change in Control, you will provide the Bank with at least 30 days’ prior written notice in order to permit the Bank to effectuate an orderly transition. |
9. | Golden Parachute Limit. Notwithstanding any other provision of this Agreement, in the event that any portion of the Severance Payment or any other payment or benefit received or to be received by you (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) |
10. | Successors and Assigns. This Agreement will inure to the benefit of and be binding upon you, your legal representatives and estate and intestate distributees, and the Bank, its successors and assigns, including any successor by merger or consolidation or a statutory receiver or any other person or firm or corporation to which all or substantially all of the assets and business of the Bank may be sold or otherwise transferred. Any such successor to the Bank shall be deemed to have assumed this Agreement and to have become obligated hereunder to the same extent as the Bank, and your obligations hereunder shall continue in favor of such successor. |
11. | Entire Agreement. This Agreement embodies the complete agreement and understanding between the parties hereto relating to the subject matter hereof and supersedes and preempts any prior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way. |
12. | Amendment. This Agreement may not be modified or amended, except by written agreement between the parties hereto. |
13. | Counterparts. This Agreement may be executed by the parties hereto in counterpart, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. |
14. | Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of North Carolina, without reference to conflicts of law principles, except to the extent governed by federal law in which case federal law shall govern. |