Exhibit 10.1



 





CHANGE-IN-CONTROL AGREEMENT




     THIS CHANGE-IN-CONTROL AGREEMENT is made and entered into as of the 23rd day of
May, 2007 by and between TSB FINANCIAL CORPORATION (the “Company”), a North Carolina corporation,
and John B. Stedman, Jr. (“Employee”), an individual residing in Charlotte, North Carolina.



Background Statement




     WHEREAS, The Scottish Bank (the “Bank”) is a wholly owned subsidiary of the Company, and
Employee is a valued employee of The Bank.



     WHEREAS, in order to induce Employee to continue employment with the Bank and to enhance
Employee’s job security, the Company desires to provide compensation to Employee in the event
Employee’s employment is terminated following a change-in-control of the Company, as hereinafter
provided.



     NOW, THEREFORE, in consideration of the mutual covenants contained herein, the compensation
the Company agrees to pay to Employee, Employee’s continued employment with the Bank, and of other
good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the
Company and Employee agree as follows:




	 	1.	 	Termination following a Change in Control. If a Change in Control (as
defined in Section 1(iii) hereof) occurs and if, within one year following the Change
in Control, the employment of Employee is terminated (x) by the Company or the Bank
other than for Causes or (y) by Employee for Good Reason, Employee’s compensation
shall continue to be paid, subject to applicable withholdings, by the Company for a
period of 12-months following such termination of employment. In lieu of receiving
payment of Compensation for such 12-month period installments, the Employee may elect,
at any time prior to the earlier to occur of a Change in Control or action by the
Board of Directors of the Company with respect to an event which would, upon
consummation, result in a Change in Control (which election shall be evidence by
notice filed with the Company), to be paid the present value of any such Compensation
in a lump sum within 30 days of termination of the Employee’s employment under
circumstances entitling such Employee to Compensation hereunder. The calculation of
the amount due shall be made by the independent accounting firm then performing the
Company’s independent audit, and such calculation, including by not limited to the
discount factor used to determine present value, shall be conclusive.

	 
	 	 	 	For purposes of this Agreement, the following terms shall have the meanings
indicated:





 









 












	 	(i)	 	Cause. Termination by the Company or the Bank for “Cause”
shall mean (A) termination on account of willful misconduct of a material
nature by the Employee in connection with performance of his duties as an
employee; (B) use of alcohol or narcotics that affects his ability to perform
his duties as an employee; (C) conviction of a felony or serious misdemeanor
involving moral turpitude; (D) embezzlement or theft from the Company or the
Bank; (E) gross inattention to or dereliction of duty; or (F) performance by
the Employee of any other willful acts which Employee knew or reasonably
should have known would be materially detrimental to the Company or the Bank.

	 
	 	(ii)	 	Good Reason. Termination by the Employee for “Good Reason”
shall mean (A) a material reduction in Employee’s position, duties,
responsibilities or status as in effect immediately preceding the Change in
Control, or a change in Employee’s title resulting in a material reduction in
his responsibilities or position with the Company or the Bank as in effect
immediately preceding the Change in Control, in either case without Employee’s
consent; (B) a material reduction in the rate of Employee’s base salary as in
effect immediately preceding the Change in Control, or a material decrease in
the bonus percentage to which Employee was entitled pursuant to any of the
Company’s incentive bonus plans tat the end of the fiscal year immediately
preceding the Change-in-Control, in either case without Employee’s consent;
provided, however, that nothing herein shall be construed to
guarantee the Employee’s bonus award if performance, either by the Company or
Employee, is below target as set forth in any of the Company’s such incentive
bonus plans; or (C) the relocation of Employee, without his consent, to a
location outside a 25 mile radius the Company’s principal location, following
a Change in Control.

	 
	 	(iii)	 	Change in Control. For purposes of the Agreement, “Change
in Control” shall mean (A) the consummation of a merger, consolidation, share
exchange or similar transaction of the Company with any other corporation as a
result of which the holders of the voting capital stock of the Company as a
group would receive less than 50% of the voting capital stock of the surviving
or resulting corporation; (B) the sale or transfer (other than as security for
obligations of the Company) of substantially all the assets of the Company;
(C) in the absence of a prior expression of approval by the Board of
Directors, the acquisition of more than 20% of the Company’s voting capital
stock by any person within the meaning of Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), other than a person,
or group including a person, who beneficially owned, as of the date of this
Agreement, more than 5% of the Company’s securities; (D)





 









 






	 	 	 	during any period of two consecutive years, individuals who at the
beginning of such period constitute the Board of Directors of the Company
cease for any reason to constitute at least a majority thereof unless the
election, or the nomination for election by the Company’s shareholders, of
each new director was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning of the
period; or (E) any other change in control of the Company of a nature that
would be required to be reported in response to Item 6(e) of Schedule 14A
of Regulation 14A promulgated under the Exchange Act or the acquisition of
control, within the meaning of Section 2(a)(2) of the Bank Holding company
Act of 1956, as amended, or Section 602 of the Change in Bank Control Act
of 1978, of the Company by any person, company or other entity.

	 
	 	(iv)	 	Compensation. Employee’s Compensation shall consist of the
following: (A) Employee’s annual base salary, as paid by the Company or the
Bank, in effect immediately preceding the Change in Control and (B) the
average of any bonus paid by the Company or the Bank to Employee during the
two most recent fiscal year ending prior to such Change in Control pursuant to
any of the Company’s incentive bonus plan.







	 	2.	 	Additional Benefits. Upon termination of Employee’s employment entitling
Employee to Compensation set forth in Section 1 hereof, the Company shall maintain in
full force and effect for the continued benefit of Employee for such 12-month period
health insurance (including coverage for Employee’s dependents to the extent dependent
coverage is provided by the Company for its employees generally) under such plans and
programs in which Employee was entitled to participate immediately prior to the date
of such termination of employment, provided that Employee’s continued participation is
possible under the general terms and provisions of such plans and programs. In the
event that Employee’s participation in any such plan or program is barred, the Company
shall arrange to provide Employee with health insurance benefits for such 12-month
period substantially similar to those which Employee would otherwise have been
entitled to receive under such plans and programs from which his continued
participation is barred. However, in no event will Employee receive from the Company
the health insurance contemplated by this Section 2 if Employee received comparable
insurance from any other source.

	 
	 	3.	 	Limit on Payments. It is the intention of the Company and Employee that no
portion of the payment made under this Agreement, or payments to or for Employee under
any other agreement or plan, be deemed to be an excess parachute payment as defined in
Section 280G of the Internal Revenue Coded of 1986, as amended (the “Code”) or any
successor provision. The Company and Employee agree that the present value of any
payment hereunder and any other payment to or for the benefit of





 









 






	 	 	 	Employee in the nature of compensation, receipt of which is contingent or a Change
in Control of the Company, and to which Section 280G of the Code or any successor
provision thereto applies, shall not exceed an amount equal to one dollar less than
the maximum amount that Employee may receive without becoming subject to the tax
imposed by Section 4999 of the Code or any successor provision or which the Company
may pay without loss of deduction under Section 280G of the Code or any successor
provisions. Present value for purposes of this Agreement shall be calculated in
accordance with Section 1274(b)(2) of the Code or any successor provision. In the
event that the provisions of Section 280G and 4999 of the Code or any successor
provisions are repealed without succession, this Section 3 shall be of no further
force or effect.

	 
	 	4.	 	Effect of Agreement. Nothing contained in this Agreement shall confer upon
Employee any rights to continued employment by the Company or the Bank or shall
interfere in any way with the right of the Company or the Bank to terminate his
employment at any time for any reason. The provisions of this Agreement shall not
affect in any way the right or power of the company to change its business structure
or to effect a merger, consolidation, share exchange or similar transaction, or to
dissolve or liquidate, or sell or transfer all or part of its business or assets.

	 
	 	5.	 	Source of Payment. All payments provided for under this Agreement shall be
paid in cash from he general funds of the Company, and no special or separate fund
shall be established, and no other segregation of assets shall be made to assure
payment, except as provided to the contrary in funded benefits plans. Employee shall
have no right, title or interest whatsoever in or to any investments that the Company
may make to aid the Company in meeting its obligations hereunder. Nothing contained
herein, and no action taken pursuant to the provisions hereof, shall create or be
construed to create a trust of any kind or a fiduciary relationship between the
Company and Employee or any other person. To the extent that any person acquires a
right to receive payments from the Company hereunder, such right shall be no greater
than the right of an unsecured creditor of the Company.

	 
	 	6.	 	General Provisions.

	 
	 	(i)	 	Binding Effect. This Agreement shall be binding upon, and inure to the
benefit of, Employee and the Company and their respective permitted successors and
assigns. Neither this Agreement nor any right or interest hereunder shall be
assignable by Employee, his beneficiaries, or legal representatives without the
Company’s prior written consent. The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation, share exchange or otherwise)
to all or substantially all of the business and/or assets of the Company, by agreement
in form and substance satisfactory to Employee, to expressly





 









 






	 	 	 	assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession had
taken place. Failure of the Company to obtain such agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement and shall
entitle Employee to compensation from the Company in the same amount and on the
same terms as he would be entitled to hereunder if he terminated his employment for
Good Reason, except that for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed he date Employee’s
employment was terminated. As used in the Agreement, “Company” shall mean that
company as defined herein and any successor to its business and/or assets as
aforesaid that executes and delivers the agreement provided for in the Section 6(i)
or that otherwise becomes bound by all the terms and provisions of this Agreement
by operation of law.

	 
	 	(ii)	 	Entire Agreement and Amendment. This Agreement replaces any and all previous
agreements, representations and understandings relating to the same or similar subject
matter which the Employee and the Company may have entered into with the Company in
connection with Employee’s employment by the Bank. This Agreement may not be modified
or amended except by an instrument in writing signed by the parties hereto.

	 
	 	(iii)	 	Headings and Gender. The headings of paragraphs herein are included solely
for convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.

	 
	 	(iv)	 	Governing Law. This agreement has been executed and delivered in the State of
North Carolina, and its validity, interpretation, performance and enforcement shall be
governed by the laws of such state.







IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of the day
and year first above stated.



	 	 	 	 	 
	 	TSB FINANCIAL CORPORATION

 	 
	 	By:  	/s/ James H. Barnhardt, Jr.
 	 
	 	 	Chairman 	 
	 	 	 	 
	 
	 	EMPLOYEE:

 	 
	 	/s/ John B. Stedman, Jr