SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
Current Report
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) July 17, 1995
CCB FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
North Carolina 0-12358 56-1347849
(State or other (Commission File No.) (IRS Employer
jurisdiction of Identification No.)
incorporation)
111 Corcoran Street, Post Office Box 931, Durham, NC 27702
(Address of principal executive offices)
Registrant's telephone number, including area code (919) 683-7777
N/A
(Former name or former address, if
changed since last report)
Item 5. Other Events
On July 17, 1995, the Registrant's lead bank subsidiary, Central
Carolina Bank and Trust Company ("CCB"), entered into Change of
Control Agreements with its three executive officers. The
Agreements provide that, if within two years following a change
in control (as defined therein), CCB terminates the executive
officers for other than cause or a terminating events occurs (as
defined therein), then the executive officers shall receive an
amount equal to 299% of their compensation and accelerated
vesting of certain employee benefits.
Item 7. Financial Statements and Exhibits
Financial Statements
None
Exhibits
10.1 Change of Control Agreement dated July 17, 1995
between Central Carolina Bank and Trust Company
and Ernest C. Roessler
10.2 Change of Control Agreement dated July 17, 1995
between Central Carolina Bank and Trust Company
and Richard L. Furr
10.3 Change of Control Agreement dated July 17, 1995
between Central Carolina Bank and Trust Company
and J. Scott Edwards
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
CCB FINANCIAL CORPORATION
Registrant
Date: August 3, 1995 By: /s/ W. HAROLD PARKER, JR.
W. Harold Parker, Jr.
Senior Vice President
and Controller
STATE OF NORTH CAROLINA
COUNTY OF DURHAM
CHANGE OF CONTROL AGREEMENT
THIS CHANGE OF CONTROL AGREEMENT (hereinafter referred
to as this "Agreement") is entered into as of July 17, 1995, by
and between CENTRAL CAROLINA BANK AND TRUST COMPANY, Durham,
North Carolina ("CCB") and Ernest C. Roessler ("Officer").
WHEREAS, Officer is employed by CCB as its President
and Chief Executive Officer; and
WHEREAS, the services of Officer, Officer's experience
and knowledge of the affairs of CCB and reputation and contacts
in the industry are extremely valuable to CCB; and
WHEREAS, CCB wishes to attract and retain such
well-qualified executives and it is in the best interests of CCB
and of Officer to secure the continued services of Officer
notwithstanding any change of control of CCB or of CCB's parent
bank holding company, CCB Financial Corporation ("Parent"); and
WHEREAS, CCB considers the establishment and
maintenance of a sound and vital management team to be part of
its overall corporate strategy and to be essential to protecting
and enhancing the best interests of CCB and its shareholders; and
WHEREAS, the parties desire to enter into this
Agreement to provide Officer with security in the event of a
change of control of CCB or Parent and to insure the continued
loyalty of Officer during any such change of control in order to
maximize shareholder value as well as the continued safe and
sound operation of CCB.
WHEREAS, both Officer and CCB acknowledge and agree
that this agreement is not an employment agreement but is limited
to circumstances giving rise to a change of control of CCB or
Parent as set forth herein.
NOW, THEREFORE, for and in consideration of the
premises and mutual promises, covenants, and conditions
hereinafter set forth, and other good and valuable consideration,
the receipt and sufficiency of which hereby are acknowledged, the
parties hereby do agree as follows:
1. Term. The initial term of this Agreement shall be
for the period commencing upon the effective date of this
Agreement and ending two (2) calendar years from the effective
date of this Agreement. At the end of the first twelve months
from the effective date of this Agreement, the term shall be
extended for an additional twelve month period of time unless
prior to the expiration of the first twelve months of the term of
this Agreement, CCB, through action of its Board of Directors,
shall have given Officer written notice that such twelve month
extension shall not occur. Similarly, at the end of each twelve
month period of time thereafter, the term of this Agreement shall
be extended an additional twelve month period unless such written
notice shall have been given to the Officer.
2. Payment in Certain Events.
(a) If at the effective time of, or any time
within twenty-four (24) months following, a "Change in Control"
(as defined below):
(i) CCB terminates Officer's employment
other than for "Cause" (as defined in Section 4 below), or,
(ii) a "Termination Event" (as defined below)
occurs and, thereafter, Officer voluntarily terminates his own
employment with CCB in the manner described below,
then (subject to the limitations set forth herein) Officer shall
be entitled to receive from CCB, and CCB shall be obligated to
pay or cause to be paid to Officer (i) an amount equal to 299% of
the salary and short term bonus paid by CCB to Officer during the
immediately preceding 12 months, and, (ii) to cause the immediate
vesting of all employee benefits that have been credited to
Officer by virtue of his participation in any non-qualified plan
and which benefits had not, as of such date, become 100% vested.
All such benefits under all such employment benefit plans shall
be paid to Officer in accordance with the terms of such plans
without regard to any provision of any such plans concerning
length of time for vesting of benefits for Officer.
(b) For purposes of this Agreement, a
"Termination Event" shall be deemed to have occurred if CCB's
obligations under this Agreement are not assumed (by agreement,
operation of law or otherwise) by a Successor (as defined
hereinafter) in connection with the transaction or event in which
such Person (as defined hereinafter) or entity becomes a
Successor to CCB, or if at the effective time of or within twenty-
four (24) months following a Change in Control:
(i) Officer's executive position, duties,
responsibilities or reporting responsibilities with CCB in effect
at the time of the Change of Control are, as the case may be,
either eliminated, diminished, lessened or diluted, unless the
Officer expressly agrees, in writing, to any such change;
(ii) Officer's annual base salary rate is
reduced below the amount in effect as of the effective date of a
Change of Control or as the same shall have been increased from
time to time following such effective date;
(iii) Officer's life insurance, medical
or hospitalization insurance, disability insurance, grants or
rights under any stock option plans, stock purchase plans,
deferred compensation plans, management retention plans,
retirement plans, or similar plans or benefits being provided by
CCB or Parent to the Officer as of the effective date of the
Change of Control are reduced in their level, scope, or coverage,
or any such insurance, plans, or benefits are eliminated, unless
such reduction or elimination applies proportionately to all
salaried employees of CCB and/or Parent who participated in such
benefits prior to such Change of Control; or
(iv) Officer is transferred to a job location
which is more than 50 miles (by most direct highway route) from
his principal work location at the effective date of the Change
in Control, without the Officer's express written consent.
A Termination Event shall be deemed to have occurred on the
date such action or event is implemented or takes effect.
However, notwithstanding anything contained herein to the
contrary, no such action or event shall be considered a
"Termination Event" if, prior to the occurrence of such event,
Officer and CCB agree in writing that the same shall not be
treated as a Termination Event for purposes of this Agreement.
(c) For the purposes of this Agreement, a
"Change in Control" shall be deemed to have occurred if:
(i) After the effective date of this
Agreement, any Person (as defined in Section 7(j)(8)(A) of the
Change in Bank Control Act of 1978), directly or indirectly,
acquires beneficial ownership of voting stock, or acquires
irrevocable proxies or any combination of voting stock and
irrevocable proxies, representing twenty-five percent (25%) or
more of any class of voting securities of CCB or Parent, or
acquires control of in any manner the election of a majority of
the directors of CCB or Parent;
(ii) CCB or Parent consolidates or merges
with or into another corporation, association, or entity, or is
otherwise reorganized, where CCB or Parent is not the surviving
corporation in such transaction; or
(iii) All or substantially all of the
assets of CCB or Parent are sold or otherwise transferred to or
are acquired by any other corporation, association, or other
Person, entity, or group.
Notwithstanding the other provisions of this
Paragraph 2, for purposes of this Agreement the term "Change of
Control" shall not include a transaction approved by CCB's or
Parent's board of directors which results in CCB or Parent
merging with, transferring its assets to or becoming the
subsidiary of a corporation newly formed at the direction of
CCB's or Parent's Boards of Directors for the purpose of such
transaction or serving as a bank holding company for CCB or
Parent, and in connection with which transaction Parent's
shareholders (other than those who exercise statutory rights of
dissent and appraisal) become the holders of substantially all of
the voting stock of such corporation. Further, notwithstanding
the other provisions of this Section 2, a transaction or event
shall not be considered a Change in Control if, prior to the
consummation or occurrence of such transaction or event, Officer
and CCB agree in writing that the same shall not be treated as a
Change of Control for purposes of this Agreement.
(d) For purposes of this Agreement, all
references to "CCB" or "Parent" shall include any "Successor" (as
defined below) to CCB or Parent which shall have assumed and
become liable for CCB's or Parent's obligations hereunder
(whether such assumption is by agreement, operation of law or
otherwise). "Successor" refers to any Person or entity
(corporate or otherwise) into or with which CCB or Parent (or any
such Successor) shall be merged or consolidated or to which all
or substantially all of CCB's or Parent's (or any such
Successor's) assets shall be transferred in any manner.
(e) If Officer's employment is terminated by CCB
without Cause prior to the effective time of a Change in Control
but following the date on which the board of directors of CCB or
Parent takes action to approve an agreement (including any
definitive agreement or an agreement in principle) relating to a
Change in Control, then, for purposes of this Agreement, such
termination of employment shall be deemed to have occurred at the
effective time of the Change in Control.
(f) Cash amounts payable pursuant to this
Paragraph 2 shall be paid in one lump sum payment which shall be
due and payable by CCB within 45 days following the "Termination
Date" (as defined below). For purposes of this Agreement, the
"Termination Date" will be the effective date of any termination
of Officer's employment which gives rise to CCB's payment
obligation under this Paragraph 2 (whether such termination is
effected by CCB without Cause or voluntarily by Officer following
the occurrence of a Termination Event).
(g) In order to become entitled to any payments
under this Paragraph 2 on account of a Termination Event which
gives rise to his right to terminate, Officer must effectively
terminate his employment with CCB within twenty-four (24) months
following the date of occurrence of such Termination Event.
For purposes of this Agreement, the Termination Date relating to
Officer's voluntary termination of his employment following such
a Termination Event shall be the date of delivery by Officer to
CCB (or to any Successor) of a written notice of termination
which describes the Change in Control and Termination Event which
have occurred. If the Officer does not so terminate his
employment with CCB within such twenty-four (24) month period,
the Officer shall thereafter have no further rights hereunder
with respect to that Termination Event, but shall retain rights,
if any, hereunder with respect to any other Termination Event
occurring within twenty-four (24) months following the Change in
Control and as to which such period has not expired.
(h) If all or any portion of the payments to be
made to or for the benefit of the Officer under this Agreement
are determined (as is provided in this subparagraph (h)) to
constitute an "excess parachute payment" (i) within the meaning
of Section 280G of the Internal Revenue Code of 1986, as amended
(the "Code") and (ii) for purposes of the excise tax imposed by
Section 4999 of the Code, the amounts payable under this
Agreement shall be increased to the extent necessary to place the
Officer in the same after-tax position as he would have been in
had no part of any payment payable to the Officer under this
Agreement constituted an "excess parachute payment" as defined
above (such increased amount shall be referred to in this
subparagraph (h) as the "Additional Payment"). The determination
of the amount of any "excess parachute payment" (as defined
above) and any Additional Payment required in connection
therewith shall be made at any time after payment of any amount
payable hereunder to the Officer by such certified public
accountant as may be employed by the Officer to make such
determination. Upon receipt of notice of such determination from
the Officer, CCB shall pay the Additional Payment to the Officer
within five (5) calendar days of such notice, and the Additional
Amount shall consist of (i) an amount equal to any applicable
excise tax under Section 4999 of the Code, plus (ii) an amount
necessary to reimburse the Officer for any income, excise, or
other tax payable by the Officer with respect to the amounts
specified in (i) above, and the reimbursement provided by this
clause (ii).
In addition, if it is determined, by way of
Internal Revenue Service ("IRS") regulations, rulings, audit and
assessment against the Officer (or in settlement therefor),
through final judgment of a court of competent jurisdiction, or
otherwise that any or all of the payments paid or payable to the
Officer pursuant to this Agreement (including without limitation,
any Additional Payment) constitute an "excess parachute payment"
(as defined above), the amounts payable under this Agreement
shall be increased to the extent necessary to place the Officer
in the same after-tax position as he would have been in had no
such tax assessment been imposed on any such payment paid or
payable to the Officer under this Agreement. The Officer shall
notify CCB of any such determination, and CCB shall make any
increased payments to the Officer within five (5) calendar days
after receipt of such notice (or pursuant to the schedule for
payment if the original payment under this Agreement to which the
increased amount relates has not yet been paid). In the event of
such a determination, CCB shall pay the Officer an amount equal
to the sum of: (i) any applicable excise tax under Section 4999
of the Code, plus (ii) any applicable interest, fines, and
penalties resulting from such underpayment, plus (iii) an amount
necessary to reimburse the Officer for any income, excise, or
other tax assessment payable by the Officer with respect to the
amounts specified in (i) and (ii) above, and the reimbursement
provided by this clause (iii).
Further, and in the event any amount is required
to be paid to the Officer pursuant to this subparagraph (h), in
addition to such payment, CCB shall indemnify and hold harmless
the Officer (including, if applicable, his
successors-in-interest) from and against any and all liabilities,
losses, costs, damages, or expenses of any kind, including
accountants' and attorneys' fees, arising out of, incurred in
connection with, or in any way related to (i) any determination
(by the Officer, the IRS, or otherwise) that all or any part of
any payment to be made to or for the benefit of the Officer under
this Agreement constitutes an "excess parachute payment" (as
defined above), and (ii) the failure of CCB to perform any of its
obligations to the Officer under this subparagraph (h).
(i) In the event any dispute shall arise between
the Officer and CCB as to the terms or interpretation of this
Agreement, including this Paragraph 2, whether instituted by
formal legal proceedings or otherwise, including any action taken
by the Officer to enforce the terms of this Paragraph 2 or in
defending against any action taken by CCB, CCB shall reimburse
the Officer for all costs and expenses, proceedings or actions,
in the event the Officer prevails in any such action.
3. Exclusions. Notwithstanding anything contained
herein to the contrary, it is expressly understood and agreed by
Officer that:
(a) Officer shall not be entitled to any
payments under this Agreement in the event (i) CCB terminates
Officer's employment for Cause, or (ii) Officer voluntarily
terminates his employment with CCB other than as provided in
Paragraph 2(g) above, or (iii) Officers's employment with CCB
terminates or is terminated due to his death, "Retirement" (as
defined below) or "Disability" (as defined below); and,
(b) Officer's employment with CCB is on an "at
will" basis and this Agreement does not constitute an employment
contract or an agreement by CCB to employ Officer for any
particular period of time or in any particular capacity. Nothing
in this Agreement is intended or should be interpreted to confer
upon Officer the right to continue in the employ of CCB or to
interfere with or restrict in any way the right of CCB to
discharge Officer or terminate his employment at any time or for
any reason whatsoever, with or without Cause, and without any
obligation or liability to Officer except as herein provided, it
being the intent of the parties hereto only to provide for
payment of the severance benefits specified herein in the event
of the termination of Officer's employment with CCB under the
circumstances set forth herein.
4. Other Definitions.
(a) For purposes of this Agreement, CCB shall
have "Cause" to terminate Officer's employment as a result of:
(i) Officer's continued failure
(following reasonable notice of such failure and an opportunity
to correct performance deficiencies) to perform or discharge the
duties of his employment in a reasonably competent and
satisfactory manner, or a determination by CCB, in good faith,
that Officer is engaging or has engaged in willful misconduct or
conduct which is detrimental to the business prospects of CCB or
which has had or likely will have a material adverse effect on
CCB's business or reputation;
(ii) The violation by Officer of any
applicable federal or state law, or any applicable rule,
regulation, order or statement of policy promulgated by any
governmental agency or authority having jurisdiction over CCB or
Parent or any of their affiliates or subsidiaries (any of the
foregoing being hereinafter referred to as a "Regulatory
Authority", which will include, without limitation, the Federal
Deposit Insurance Corporation, the North Carolina Banking
Commissioner, the North Carolina Banking Commission, the Board of
Governors of the Federal Reserve System, the Federal Reserve Bank
of Richmond, the Securities and Exchange Commission or any other
banking or securities regulator), which results from Officer's
gross negligence, willful misconduct or intentional disregard of
such law, rule, regulation, order or statement of policy and
results in any substantial damage, monetary or otherwise, to CCB
or Parent or any of their affiliates or subsidiaries or to their
reputation;
(iii) The commission in the course
of Officer's employment with CCB of an act of fraud,
embezzlement, theft or proven personal dishonesty (whether or not
resulting in criminal prosecution or conviction);
(iv) The conviction of Officer of any
felony or any criminal offense involving dishonesty or breach of
trust, or the occurrence of any event described in Section 19 of
the Federal Deposit Insurance Act or any other event or
circumstance which disqualifies Officer from serving as an
employee or executive officer of, or a party affiliated with, CCB
or Parent; or, in the event Officer becomes unacceptable to, or
is removed, suspended or prohibited from participating in the
conduct of CCB's or Parent's affairs (or if proceedings for that
purpose are commenced) by, any Regulatory Authority; or
(v) The occurrence of any event
believed by CCB, in good faith, to have resulted in Officer being
excluded from coverage, or having coverage limited as to Officer
as compared to other covered officers or employees, under CCB's
then current "blanket bond" or other fidelity bond or insurance
policy covering its directors, officers or employees.
(b) "Disability" means the absence of Officer
from his employment duties on a full-time basis for one hundred
eighty (180) consecutive business days as a result of incapacity
due to physical or mental illness or injury (subject to CCB's
obligations and Officer's rights under (i) Title I of the
Americans with Disabilities Act, 504 of the Rehabilitation Act,
and the Family and Medical Leave Act, and to (ii) the vacation
leave, disability leave, sick leave and any other leave policies
of CCB). (c) "Retirement" means Officer's retirement
(whether early, normal or delayed retirement) under the terms of
any retirement benefit plan generally applicable to CCB's
salaried employees.
5. Regulatory Requirements. Notwithstanding anything
contained in this Agreement to the contrary, it is understood and
agreed that CCB (or any of its successors in interest) shall not
be required to make any payment or take any action under this
Agreement if:
(a) CCB is declared by any Regulatory Authority
to be insolvent, in default or operating in an unsafe or unsound
manner, or if
(b) in the opinion of counsel to CCB such payment
or action (i) would be prohibited by or would violate any
provision of state or federal law applicable to CCB, including
without limitation the Federal Deposit Insurance Act as now in
effect or hereafter amended, (ii) would be prohibited by or would
violate any applicable rules, regulations, orders or formal
statements of policy, whether now existing or hereafter
promulgated, of any Regulatory Authority, or (iii) otherwise is
prohibited by any Regulatory Authority.
6. Termination of Agreement. Notwithstanding
anything contained herein to the contrary, this Agreement
automatically shall terminate and become null and void upon any
termination of Officer's employment with CCB other than a
termination of employment which results in CCB's payment
obligation provided for under Paragraph 2(a) above. Following
any such termination of this Agreement, it shall be of no further
force or effect and Officer shall have no further rights
hereunder.
7. Successors and Assigns. This Agreement shall
inure to the benefit of and be binding on Officer and his heirs,
successors and assigns, and on CCB and any corporate or other
successor to CCB which shall acquire, directly or indirectly, by
conversion, merger, consolidation, purchase, or otherwise, all or
substantially all of the assets of CCB. CCB shall cause its
obligations under this Agreement to be expressly assumed by any
Person or entity that becomes a Successor to CCB. However, CCB's
failure to obtain any such express assumption shall have no
effect on the obligations of any such Successor to the extent
that such Successor is deemed to have assumed and become liable
for CCB's obligations hereunder by operation of law.
Notwithstanding anything contained herein to the contrary, in no
event may Officer transfer or assign his rights under this
Agreement to any other person without the prior written consent
of CCB.
8. Modification; Waiver; Amendments. No provision of
this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing and
signed by the Officer and CCB, except as herein otherwise
provided. No waiver by either party hereto, at any time, of any
breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or
subsequent time. No amendments or additions to this Agreement
shall be binding unless in writing and signed by both parties,
except as herein otherwise provided.
9. Applicable Law. This Agreement shall be governed
in all respects, whether as to validity, construction, capacity,
performance, or otherwise, by the laws of North Carolina, except
to the extent that federal law shall be deemed to apply. The
parties hereto agree that any action relating to this Agreement
shall be instituted and prosecuted in the Courts of Durham
County, North Carolina, and each party hereto hereby does waive
any and all defenses relating to venue and jurisdiction over the
person.
10. Severability. The provisions of this Agreement
shall be deemed severable and the invalidity or unenforceability
of any provision shall not affect the validity or enforceability
of the other provisions hereof.
IN TESTIMONY WHEREOF, CCB has caused this instrument to
be executed under seal and in such form as to be binding, all by
authority of its Board of Directors first duly given; and the
individual party hereto has set said party's hand hereto and has
adopted as said party's seal the typewritten word "SEAL"
appearing beside said party's name, this the day and year first
above written.
CENTRAL CAROLINA BANK AND
TRUST COMPANY
By: /s/ W. L. Burns, Jr.
W. L. Burns, Jr., Chairman
ATTEST:
/s/ Christie L. Powell
Asst. Secretary
[CORPORATE SEAL]
/s/ Ernest C. Roessler (SEAL)
Ernest C. Roessler
RLMAIN/5759
STATE OF NORTH CAROLINA
COUNTY OF DURHAM
CHANGE OF CONTROL AGREEMENT
THIS CHANGE OF CONTROL AGREEMENT (hereinafter referred
to as this "Agreement") is entered into as of July 17, 1995, by
and between CENTRAL CAROLINA BANK AND TRUST COMPANY, Durham,
North Carolina ("CCB") and Richard L. Furr ("Officer").
WHEREAS, Officer is employed by CCB as its Executive
Vice President in charge of the Banking Group as set forth on the
organizational chart of CCB dated May 1, 1993; and
WHEREAS, the services of Officer, Officer's experience
and knowledge of the affairs of CCB and reputation and contacts
in the industry are extremely valuable to CCB; and
WHEREAS, CCB wishes to attract and retain such
well-qualified executives and it is in the best interests of CCB
and of Officer to secure the continued services of Officer
notwithstanding any change of control of CCB or of CCB's parent
bank holding company, CCB Financial Corporation ("Parent"); and
WHEREAS, CCB considers the establishment and
maintenance of a sound and vital management team to be part of
its overall corporate strategy and to be essential to protecting
and enhancing the best interests of CCB and its shareholders; and
WHEREAS, the parties desire to enter into this
Agreement to provide Officer with security in the event of a
change of control of CCB or Parent and to insure the continued
loyalty of Officer during any such change of control in order to
maximize shareholder value as well as the continued safe and
sound operation of CCB.
WHEREAS, both Officer and CCB acknowledge and agree
that this agreement is not an employment agreement but is limited
to circumstances giving rise to a change of control of CCB or
Parent as set forth herein.
NOW, THEREFORE, for and in consideration of the
premises and mutual promises, covenants, and conditions
hereinafter set forth, and other good and valuable consideration,
the receipt and sufficiency of which hereby are acknowledged, the
parties hereby do agree as follows:
1. Term. The initial term of this Agreement shall be
for the period commencing upon the effective date of this
Agreement and ending two (2) calendar years from the effective
date of this Agreement. At the end of the first twelve months
from the effective date of this Agreement, the term shall be
extended for an additional twelve month period of time unless
prior to the expiration of the first twelve months of the term of
this Agreement, CCB, through action of its Board of Directors,
shall have given Officer written notice that such twelve month
extension shall not occur. Similarly, at the end of each twelve
month period of time thereafter, the term of this Agreement shall
be extended an additional twelve month period unless such written
notice shall have been given to the Officer.
2. Payment in Certain Events.
(a) If at the effective time of, or any time
within twenty-four (24) months following, a "Change in Control"
(as defined below):
(i) CCB terminates Officer's employment
other than for "Cause" (as defined in Section 4 below), or,
(ii) a "Termination Event" (as defined below)
occurs and, thereafter, Officer voluntarily terminates his own
employment with CCB in the manner described below,
then (subject to the limitations set forth herein) Officer shall
be entitled to receive from CCB, and CCB shall be obligated to
pay or cause to be paid to Officer (i) an amount equal to 299% of
the salary and short term bonus paid by CCB to Officer during the
immediately preceding 12 months, and, (ii) to cause the immediate
vesting of all employee benefits that have been credited to
Officer by virtue of his participation in any non-qualified plan
and which benefits had not, as of such date, become 100% vested.
All such benefits under all such employment benefit plans shall
be paid to Officer in accordance with the terms of such plans
without regard to any provision of any such plans concerning
length of time for vesting of benefits for Officer.
(b) For purposes of this Agreement, a
"Termination Event" shall be deemed to have occurred if CCB's
obligations under this Agreement are not assumed (by agreement,
operation of law or otherwise) by a Successor (as defined
hereinafter) in connection with the transaction or event in which
such Person (as defined hereinafter) or entity becomes a
Successor to CCB, or if at the effective time of or within twenty-
four (24) months following a Change in Control:
(i) Officer's executive position, duties,
responsibilities or reporting responsibilities with CCB in effect
at the time of the Change of Control are, as the case may be,
either eliminated, diminished, lessened or diluted, unless the
Officer expressly agrees, in writing, to any such change;
(ii) Officer's annual base salary rate is
reduced below the amount in effect as of the effective date of a
Change of Control or as the same shall have been increased from
time to time following such effective date;
(iii) Officer's life insurance, medical
or hospitalization insurance, disability insurance, grants or
rights under any stock option plans, stock purchase plans,
deferred compensation plans, management retention plans,
retirement plans, or similar plans or benefits being provided by
CCB or Parent to the Officer as of the effective date of the
Change of Control are reduced in their level, scope, or coverage,
or any such insurance, plans, or benefits are eliminated, unless
such reduction or elimination applies proportionately to all
salaried employees of CCB and/or Parent who participated in such
benefits prior to such Change of Control; or
(iv) Officer is transferred to a job location
which is more than 50 miles (by most direct highway route) from
his principal work location at the effective date of the Change
in Control, without the Officer's express written consent.
A Termination Event shall be deemed to have occurred on the
date such action or event is implemented or takes effect.
However, notwithstanding anything contained herein to the
contrary, no such action or event shall be considered a
"Termination Event" if, prior to the occurrence of such event,
Officer and CCB agree in writing that the same shall not be
treated as a Termination Event for purposes of this Agreement.
(c) For the purposes of this Agreement, a
"Change in Control" shall be deemed to have occurred if:
(i) After the effective date of this
Agreement, any Person (as defined in Section 7(j)(8)(A) of the
Change in Bank Control Act of 1978), directly or indirectly,
acquires beneficial ownership of voting stock, or acquires
irrevocable proxies or any combination of voting stock and
irrevocable proxies, representing twenty-five percent (25%) or
more of any class of voting securities of CCB or Parent, or
acquires control of in any manner the election of a majority of
the directors of CCB or Parent;
(ii) CCB or Parent consolidates or merges
with or into another corporation, association, or entity, or is
otherwise reorganized, where CCB or Parent is not the surviving
corporation in such transaction; or
(iii) All or substantially all of the
assets of CCB or Parent are sold or otherwise transferred to or
are acquired by any other corporation, association, or other
Person, entity, or group.
Notwithstanding the other provisions of this
Paragraph 2, for purposes of this Agreement the term "Change of
Control" shall not include a transaction approved by CCB's or
Parent's board of directors which results in CCB or Parent
merging with, transferring its assets to or becoming the
subsidiary of a corporation newly formed at the direction of
CCB's or Parent's Boards of Directors for the purpose of such
transaction or serving as a bank holding company for CCB or
Parent, and in connection with which transaction Parent's
shareholders (other than those who exercise statutory rights of
dissent and appraisal) become the holders of substantially all of
the voting stock of such corporation. Further, notwithstanding
the other provisions of this Section 2, a transaction or event
shall not be considered a Change in Control if, prior to the
consummation or occurrence of such transaction or event, Officer
and CCB agree in writing that the same shall not be treated as a
Change of Control for purposes of this Agreement.
(d) For purposes of this Agreement, all
references to "CCB" or "Parent" shall include any "Successor" (as
defined below) to CCB or Parent which shall have assumed and
become liable for CCB's or Parent's obligations hereunder
(whether such assumption is by agreement, operation of law or
otherwise). "Successor" refers to any Person or entity
(corporate or otherwise) into or with which CCB or Parent (or any
such Successor) shall be merged or consolidated or to which all
or substantially all of CCB's or Parent's (or any such
Successor's) assets shall be transferred in any manner.
(e) If Officer's employment is terminated by CCB
without Cause prior to the effective time of a Change in Control
but following the date on which the board of directors of CCB or
Parent takes action to approve an agreement (including any
definitive agreement or an agreement in principle) relating to a
Change in Control, then, for purposes of this Agreement, such
termination of employment shall be deemed to have occurred at the
effective time of the Change in Control.
(f) Cash amounts payable pursuant to this
Paragraph 2 shall be paid in one lump sum payment which shall be
due and payable by CCB within 45 days following the "Termination
Date" (as defined below). For purposes of this Agreement, the
"Termination Date" will be the effective date of any termination
of Officer's employment which gives rise to CCB's payment
obligation under this Paragraph 2 (whether such termination is
effected by CCB without Cause or voluntarily by Officer following
the occurrence of a Termination Event).
(g) In order to become entitled to any payments
under this Paragraph 2 on account of a Termination Event which
gives rise to his right to terminate, Officer must effectively
terminate his employment with CCB within twenty-four (24) months
following the date of occurrence of such Termination Event.
For purposes of this Agreement, the Termination Date relating to
Officer's voluntary termination of his employment following such
a Termination Event shall be the date of delivery by Officer to
CCB (or to any Successor) of a written notice of termination
which describes the Change in Control and Termination Event which
have occurred. If the Officer does not so terminate his
employment with CCB within such twenty-four (24) month period,
the Officer shall thereafter have no further rights hereunder
with respect to that Termination Event, but shall retain rights,
if any, hereunder with respect to any other Termination Event
occurring within twenty-four (24) months following the Change in
Control and as to which such period has not expired.
(h) If all or any portion of the payments to be
made to or for the benefit of the Officer under this Agreement
are determined (as is provided in this subparagraph (h)) to
constitute an "excess parachute payment" (i) within the meaning
of Section 280G of the Internal Revenue Code of 1986, as amended
(the "Code") and (ii) for purposes of the excise tax imposed by
Section 4999 of the Code, the amounts payable under this
Agreement shall be increased to the extent necessary to place the
Officer in the same after-tax position as he would have been in
had no part of any payment payable to the Officer under this
Agreement constituted an "excess parachute payment" as defined
above (such increased amount shall be referred to in this
subparagraph (h) as the "Additional Payment"). The determination
of the amount of any "excess parachute payment" (as defined
above) and any Additional Payment required in connection
therewith shall be made at any time after payment of any amount
payable hereunder to the Officer by such certified public
accountant as may be employed by the Officer to make such
determination. Upon receipt of notice of such determination from
the Officer, CCB shall pay the Additional Payment to the Officer
within five (5) calendar days of such notice, and the Additional
Amount shall consist of (i) an amount equal to any applicable
excise tax under Section 4999 of the Code, plus (ii) an amount
necessary to reimburse the Officer for any income, excise, or
other tax payable by the Officer with respect to the amounts
specified in (i) above, and the reimbursement provided by this
clause (ii).
In addition, if it is determined, by way of
Internal Revenue Service ("IRS") regulations, rulings, audit and
assessment against the Officer (or in settlement therefor),
through final judgment of a court of competent jurisdiction, or
otherwise that any or all of the payments paid or payable to the
Officer pursuant to this Agreement (including without limitation,
any Additional Payment) constitute an "excess parachute payment"
(as defined above), the amounts payable under this Agreement
shall be increased to the extent necessary to place the Officer
in the same after-tax position as he would have been in had no
such tax assessment been imposed on any such payment paid or
payable to the Officer under this Agreement. The Officer shall
notify CCB of any such determination, and CCB shall make any
increased payments to the Officer within five (5) calendar days
after receipt of such notice (or pursuant to the schedule for
payment if the original payment under this Agreement to which the
increased amount relates has not yet been paid). In the event of
such a determination, CCB shall pay the Officer an amount equal
to the sum of: (i) any applicable excise tax under Section 4999
of the Code, plus (ii) any applicable interest, fines, and
penalties resulting from such underpayment, plus (iii) an amount
necessary to reimburse the Officer for any income, excise, or
other tax assessment payable by the Officer with respect to the
amounts specified in (i) and (ii) above, and the reimbursement
provided by this clause (iii).
Further, and in the event any amount is required
to be paid to the Officer pursuant to this subparagraph (h), in
addition to such payment, CCB shall indemnify and hold harmless
the Officer (including, if applicable, his
successors-in-interest) from and against any and all liabilities,
losses, costs, damages, or expenses of any kind, including
accountants' and attorneys' fees, arising out of, incurred in
connection with, or in any way related to (i) any determination
(by the Officer, the IRS, or otherwise) that all or any part of
any payment to be made to or for the benefit of the Officer under
this Agreement constitutes an "excess parachute payment" (as
defined above), and (ii) the failure of CCB to perform any of its
obligations to the Officer under this subparagraph (h).
(i) In the event any dispute shall arise between
the Officer and CCB as to the terms or interpretation of this
Agreement, including this Paragraph 2, whether instituted by
formal legal proceedings or otherwise, including any action taken
by the Officer to enforce the terms of this Paragraph 2 or in
defending against any action taken by CCB, CCB shall reimburse
the Officer for all costs and expenses, proceedings or actions,
in the event the Officer prevails in any such action.
3. Exclusions. Notwithstanding anything contained
herein to the contrary, it is expressly understood and agreed by
Officer that:
(a) Officer shall not be entitled to any
payments under this Agreement in the event (i) CCB terminates
Officer's employment for Cause, or (ii) Officer voluntarily
terminates his employment with CCB other than as provided in
Paragraph 2(g) above, or (iii) Officers's employment with CCB
terminates or is terminated due to his death, "Retirement" (as
defined below) or "Disability" (as defined below); and,
(b) Officer's employment with CCB is on an "at
will" basis and this Agreement does not constitute an employment
contract or an agreement by CCB to employ Officer for any
particular period of time or in any particular capacity. Nothing
in this Agreement is intended or should be interpreted to confer
upon Officer the right to continue in the employ of CCB or to
interfere with or restrict in any way the right of CCB to
discharge Officer or terminate his employment at any time or for
any reason whatsoever, with or without Cause, and without any
obligation or liability to Officer except as herein provided, it
being the intent of the parties hereto only to provide for
payment of the severance benefits specified herein in the event
of the termination of Officer's employment with CCB under the
circumstances set forth herein.
4. Other Definitions.
(a) For purposes of this Agreement, CCB shall
have "Cause" to terminate Officer's employment as a result of:
(i) Officer's continued failure
(following reasonable notice of such failure and an opportunity
to correct performance deficiencies) to perform or discharge the
duties of his employment in a reasonably competent and
satisfactory manner, or a determination by CCB, in good faith,
that Officer is engaging or has engaged in willful misconduct or
conduct which is detrimental to the business prospects of CCB or
which has had or likely will have a material adverse effect on
CCB's business or reputation;
(ii) The violation by Officer of any
applicable federal or state law, or any applicable rule,
regulation, order or statement of policy promulgated by any
governmental agency or authority having jurisdiction over CCB or
Parent or any of their affiliates or subsidiaries (any of the
foregoing being hereinafter referred to as a "Regulatory
Authority", which will include, without limitation, the Federal
Deposit Insurance Corporation, the North Carolina Banking
Commissioner, the North Carolina Banking Commission, the Board of
Governors of the Federal Reserve System, the Federal Reserve Bank
of Richmond, the Securities and Exchange Commission or any other
banking or securities regulator), which results from Officer's
gross negligence, willful misconduct or intentional disregard of
such law, rule, regulation, order or statement of policy and
results in any substantial damage, monetary or otherwise, to CCB
or Parent or any of their affiliates or subsidiaries or to their
reputation;
(iii) The commission in the course
of Officer's employment with CCB of an act of fraud,
embezzlement, theft or proven personal dishonesty (whether or not
resulting in criminal prosecution or conviction);
(iv) The conviction of Officer of any
felony or any criminal offense involving dishonesty or breach of
trust, or the occurrence of any event described in Section 19 of
the Federal Deposit Insurance Act or any other event or
circumstance which disqualifies Officer from serving as an
employee or executive officer of, or a party affiliated with, CCB
or Parent; or, in the event Officer becomes unacceptable to, or
is removed, suspended or prohibited from participating in the
conduct of CCB's or Parent's affairs (or if proceedings for that
purpose are commenced) by, any Regulatory Authority; or
(v) The occurrence of any event
believed by CCB, in good faith, to have resulted in Officer being
excluded from coverage, or having coverage limited as to Officer
as compared to other covered officers or employees, under CCB's
then current "blanket bond" or other fidelity bond or insurance
policy covering its directors, officers or employees.
(b) "Disability" means the absence of Officer
from his employment duties on a full-time basis for one hundred
eighty (180) consecutive business days as a result of incapacity
due to physical or mental illness or injury (subject to CCB's
obligations and Officer's rights under (i) Title I of the
Americans with Disabilities Act, 504 of the Rehabilitation Act,
and the Family and Medical Leave Act, and to (ii) the vacation
leave, disability leave, sick leave and any other leave policies
of CCB). (c) "Retirement" means Officer's retirement
(whether early, normal or delayed retirement) under the terms of
any retirement benefit plan generally applicable to CCB's
salaried employees.
5. Regulatory Requirements. Notwithstanding anything
contained in this Agreement to the contrary, it is understood and
agreed that CCB (or any of its successors in interest) shall not
be required to make any payment or take any action under this
Agreement if:
(a) CCB is declared by any Regulatory Authority
to be insolvent, in default or operating in an unsafe or unsound
manner, or if
(b) in the opinion of counsel to CCB such payment
or action (i) would be prohibited by or would violate any
provision of state or federal law applicable to CCB, including
without limitation the Federal Deposit Insurance Act as now in
effect or hereafter amended, (ii) would be prohibited by or would
violate any applicable rules, regulations, orders or formal
statements of policy, whether now existing or hereafter
promulgated, of any Regulatory Authority, or (iii) otherwise is
prohibited by any Regulatory Authority.
6. Termination of Agreement. Notwithstanding
anything contained herein to the contrary, this Agreement
automatically shall terminate and become null and void upon any
termination of Officer's employment with CCB other than a
termination of employment which results in CCB's payment
obligation provided for under Paragraph 2(a) above. Following
any such termination of this Agreement, it shall be of no further
force or effect and Officer shall have no further rights
hereunder.
7. Successors and Assigns. This Agreement shall
inure to the benefit of and be binding on Officer and his heirs,
successors and assigns, and on CCB and any corporate or other
successor to CCB which shall acquire, directly or indirectly, by
conversion, merger, consolidation, purchase, or otherwise, all or
substantially all of the assets of CCB. CCB shall cause its
obligations under this Agreement to be expressly assumed by any
Person or entity that becomes a Successor to CCB. However, CCB's
failure to obtain any such express assumption shall have no
effect on the obligations of any such Successor to the extent
that such Successor is deemed to have assumed and become liable
for CCB's obligations hereunder by operation of law.
Notwithstanding anything contained herein to the contrary, in no
event may Officer transfer or assign his rights under this
Agreement to any other person without the prior written consent
of CCB.
8. Modification; Waiver; Amendments. No provision of
this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing and
signed by the Officer and CCB, except as herein otherwise
provided. No waiver by either party hereto, at any time, of any
breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or
subsequent time. No amendments or additions to this Agreement
shall be binding unless in writing and signed by both parties,
except as herein otherwise provided.
9. Applicable Law. This Agreement shall be governed
in all respects, whether as to validity, construction, capacity,
performance, or otherwise, by the laws of North Carolina, except
to the extent that federal law shall be deemed to apply. The
parties hereto agree that any action relating to this Agreement
shall be instituted and prosecuted in the Courts of Durham
County, North Carolina, and each party hereto hereby does waive
any and all defenses relating to venue and jurisdiction over the
person.
10. Severability. The provisions of this Agreement
shall be deemed severable and the invalidity or unenforceability
of any provision shall not affect the validity or enforceability
of the other provisions hereof.
IN TESTIMONY WHEREOF, CCB has caused this instrument to
be executed under seal and in such form as to be binding, all by
authority of its Board of Directors first duly given; and the
individual party hereto has set said party's hand hereto and has
adopted as said party's seal the typewritten word "SEAL"
appearing beside said party's name, this the day and year first
above written.
CENTRAL CAROLINA BANK AND
TRUST COMPANY
By: /s/ W. L. Burns, Jr.
W. L. Burns, Jr., Chairman
ATTEST:
/s/ Christie L. Powell
Asst. Secretary
[CORPORATE SEAL]
/s/ Richard L. Furr (SEAL)
Richard L. Furr
RLMAIN/5761
STATE OF NORTH CAROLINA
COUNTY OF DURHAM
CHANGE OF CONTROL AGREEMENT
THIS CHANGE OF CONTROL AGREEMENT (hereinafter referred
to as this "Agreement") is entered into as of July 17, 1995, by
and between CENTRAL CAROLINA BANK AND TRUST COMPANY, Durham,
North Carolina ("CCB") and J. Scott Edwards ("Officer").
WHEREAS, Officer is employed by CCB as its Executive
Vice President in charge of the Administrative Group as set forth
on the organizational chart of CCB dated May 1, 1993; and
WHEREAS, the services of Officer, Officer's experience
and knowledge of the affairs of CCB and reputation and contacts
in the industry are extremely valuable to CCB; and
WHEREAS, CCB wishes to attract and retain such
well-qualified executives and it is in the best interests of CCB
and of Officer to secure the continued services of Officer
notwithstanding any change of control of CCB or of CCB's parent
bank holding company, CCB Financial Corporation ("Parent"); and
WHEREAS, CCB considers the establishment and
maintenance of a sound and vital management team to be part of
its overall corporate strategy and to be essential to protecting
and enhancing the best interests of CCB and its shareholders; and
WHEREAS, the parties desire to enter into this
Agreement to provide Officer with security in the event of a
change of control of CCB or Parent and to insure the continued
loyalty of Officer during any such change of control in order to
maximize shareholder value as well as the continued safe and
sound operation of CCB.
WHEREAS, both Officer and CCB acknowledge and agree
that this agreement is not an employment agreement but is limited
to circumstances giving rise to a change of control of CCB or
Parent as set forth herein.
NOW, THEREFORE, for and in consideration of the
premises and mutual promises, covenants, and conditions
hereinafter set forth, and other good and valuable consideration,
the receipt and sufficiency of which hereby are acknowledged, the
parties hereby do agree as follows:
1. Term. The initial term of this Agreement shall be
for the period commencing upon the effective date of this
Agreement and ending two (2) calendar years from the effective
date of this Agreement. At the end of the first twelve months
from the effective date of this Agreement, the term shall be
extended for an additional twelve month period of time unless
prior to the expiration of the first twelve months of the term of
this Agreement, CCB, through action of its Board of Directors,
shall have given Officer written notice that such twelve month
extension shall not occur. Similarly, at the end of each twelve
month period of time thereafter, the term of this Agreement shall
be extended an additional twelve month period unless such written
notice shall have been given to the Officer.
2. Payment in Certain Events.
(a) If at the effective time of, or any time
within twenty-four (24) months following, a "Change in Control"
(as defined below):
(i) CCB terminates Officer's employment
other than for "Cause" (as defined in Section 4 below), or,
(ii) a "Termination Event" (as defined below)
occurs and, thereafter, Officer voluntarily terminates his own
employment with CCB in the manner described below,
then (subject to the limitations set forth herein) Officer shall
be entitled to receive from CCB, and CCB shall be obligated to
pay or cause to be paid to Officer (i) an amount equal to 299% of
the salary and short term bonus paid by CCB to Officer during the
immediately preceding 12 months, and, (ii) to cause the immediate
vesting of all employee benefits that have been credited to
Officer by virtue of his participation in any non-qualified plan
and which benefits had not, as of such date, become 100% vested.
All such benefits under all such employment benefit plans shall
be paid to Officer in accordance with the terms of such plans
without regard to any provision of any such plans concerning
length of time for vesting of benefits for Officer.
(b) For purposes of this Agreement, a
"Termination Event" shall be deemed to have occurred if CCB's
obligations under this Agreement are not assumed (by agreement,
operation of law or otherwise) by a Successor (as defined
hereinafter) in connection with the transaction or event in which
such Person (as defined hereinafter) or entity becomes a
Successor to CCB, or if at the effective time of or within twenty-
four (24) months following a Change in Control:
(i) Officer's executive position, duties,
responsibilities or reporting responsibilities with CCB in effect
at the time of the Change of Control are, as the case may be,
either eliminated, diminished, lessened or diluted, unless the
Officer expressly agrees, in writing, to any such change;
(ii) Officer's annual base salary rate is
reduced below the amount in effect as of the effective date of a
Change of Control or as the same shall have been increased from
time to time following such effective date;
(iii) Officer's life insurance, medical
or hospitalization insurance, disability insurance, grants or
rights under any stock option plans, stock purchase plans,
deferred compensation plans, management retention plans,
retirement plans, or similar plans or benefits being provided by
CCB or Parent to the Officer as of the effective date of the
Change of Control are reduced in their level, scope, or coverage,
or any such insurance, plans, or benefits are eliminated, unless
such reduction or elimination applies proportionately to all
salaried employees of CCB and/or Parent who participated in such
benefits prior to such Change of Control; or
(iv) Officer is transferred to a job location
which is more than 50 miles (by most direct highway route) from
his principal work location at the effective date of the Change
in Control, without the Officer's express written consent.
A Termination Event shall be deemed to have occurred on the
date such action or event is implemented or takes effect.
However, notwithstanding anything contained herein to the
contrary, no such action or event shall be considered a
"Termination Event" if, prior to the occurrence of such event,
Officer and CCB agree in writing that the same shall not be
treated as a Termination Event for purposes of this Agreement.
(c) For the purposes of this Agreement, a
"Change in Control" shall be deemed to have occurred if:
(i) After the effective date of this
Agreement, any Person (as defined in Section 7(j)(8)(A) of the
Change in Bank Control Act of 1978), directly or indirectly,
acquires beneficial ownership of voting stock, or acquires
irrevocable proxies or any combination of voting stock and
irrevocable proxies, representing thirty percent (30%) or more of
any class of voting securities of CCB or Parent, or acquires
control of in any manner the election of a majority of the
directors of CCB or Parent;
(ii) CCB or Parent consolidates or merges
with or into another corporation, association, or entity, or is
otherwise reorganized, where CCB or Parent is not the surviving
corporation in such transaction; or
(iii) All or substantially all of the
assets of CCB or Parent are sold or otherwise transferred to or
are acquired by any other corporation, association, or other
Person, entity, or group.
Notwithstanding the other provisions of this
Paragraph 2, for purposes of this Agreement the term "Change of
Control" shall not include a transaction approved by CCB's or
Parent's board of directors which results in CCB or Parent
merging with, transferring its assets to or becoming the
subsidiary of a corporation newly formed at the direction of
CCB's or Parent's Boards of Directors for the purpose of such
transaction or serving as a bank holding company for CCB or
Parent, and in connection with which transaction Parent's
shareholders (other than those who exercise statutory rights of
dissent and appraisal) become the holders of substantially all of
the voting stock of such corporation. Further, notwithstanding
the other provisions of this Section 2, a transaction or event
shall not be considered a Change in Control if, prior to the
consummation or occurrence of such transaction or event, Officer
and CCB agree in writing that the same shall not be treated as a
Change of Control for purposes of this Agreement.
(d) For purposes of this Agreement, all
references to "CCB" or "Parent" shall include any "Successor" (as
defined below) to CCB or Parent which shall have assumed and
become liable for CCB's or Parent's obligations hereunder
(whether such assumption is by agreement, operation of law or
otherwise). "Successor" refers to any Person or entity
(corporate or otherwise) into or with which CCB or Parent (or any
such Successor) shall be merged or consolidated or to which all
or substantially all of CCB's or Parent's (or any such
Successor's) assets shall be transferred in any manner.
(e) If Officer's employment is terminated by CCB
without Cause prior to the effective time of a Change in Control
but following the date on which the board of directors of CCB or
Parent takes action to approve an agreement (including any
definitive agreement or an agreement in principle) relating to a
Change in Control, then, for purposes of this Agreement, such
termination of employment shall be deemed to have occurred at the
effective time of the Change in Control.
(f) Cash amounts payable pursuant to this
Paragraph 2 shall be paid in one lump sum payment which shall be
due and payable by CCB within 45 days following the "Termination
Date" (as defined below). For purposes of this Agreement, the
"Termination Date" will be the effective date of any termination
of Officer's employment which gives rise to CCB's payment
obligation under this Paragraph 2 (whether such termination is
effected by CCB without Cause or voluntarily by Officer following
the occurrence of a Termination Event).
(g) In order to become entitled to any payments
under this Paragraph 2 on account of a Termination Event which
gives rise to his right to terminate, Officer must effectively
terminate his employment with CCB within twenty-four (24) months
following the date of occurrence of such Termination Event.
For purposes of this Agreement, the Termination Date relating to
Officer's voluntary termination of his employment following such
a Termination Event shall be the date of delivery by Officer to
CCB (or to any Successor) of a written notice of termination
which describes the Change in Control and Termination Event which
have occurred. If the Officer does not so terminate his
employment with CCB within such twenty-four (24) month period,
the Officer shall thereafter have no further rights hereunder
with respect to that Termination Event, but shall retain rights,
if any, hereunder with respect to any other Termination Event
occurring within twenty-four (24) months following the Change in
Control and as to which such period has not expired.
(h) If all or any portion of the payments to be
made to or for the benefit of the Officer under this Agreement
are determined (as is provided in this subparagraph (h)) to
constitute an "excess parachute payment" (i) within the meaning
of Section 280G of the Internal Revenue Code of 1986, as amended
(the "Code") and (ii) for purposes of the excise tax imposed by
Section 4999 of the Code, the amounts payable under this
Agreement shall be increased to the extent necessary to place the
Officer in the same after-tax position as he would have been in
had no part of any payment payable to the Officer under this
Agreement constituted an "excess parachute payment" as defined
above (such increased amount shall be referred to in this
subparagraph (h) as the "Additional Payment"). The determination
of the amount of any "excess parachute payment" (as defined
above) and any Additional Payment required in connection
therewith shall be made at any time after payment of any amount
payable hereunder to the Officer by such certified public
accountant as may be employed by the Officer to make such
determination. Upon receipt of notice of such determination from
the Officer, CCB shall pay the Additional Payment to the Officer
within five (5) calendar days of such notice, and the Additional
Amount shall consist of (i) an amount equal to any applicable
excise tax under Section 4999 of the Code, plus (ii) an amount
necessary to reimburse the Officer for any income, excise, or
other tax payable by the Officer with respect to the amounts
specified in (i) above, and the reimbursement provided by this
clause (ii).
In addition, if it is determined, by way of
Internal Revenue Service ("IRS") regulations, rulings, audit and
assessment against the Officer (or in settlement therefor),
through final judgment of a court of competent jurisdiction, or
otherwise that any or all of the payments paid or payable to the
Officer pursuant to this Agreement (including without limitation,
any Additional Payment) constitute an "excess parachute payment"
(as defined above), the amounts payable under this Agreement
shall be increased to the extent necessary to place the Officer
in the same after-tax position as he would have been in had no
such tax assessment been imposed on any such payment paid or
payable to the Officer under this Agreement. The Officer shall
notify CCB of any such determination, and CCB shall make any
increased payments to the Officer within five (5) calendar days
after receipt of such notice (or pursuant to the schedule for
payment if the original payment under this Agreement to which the
increased amount relates has not yet been paid). In the event of
such a determination, CCB shall pay the Officer an amount equal
to the sum of: (i) any applicable excise tax under Section 4999
of the Code, plus (ii) any applicable interest, fines, and
penalties resulting from such underpayment, plus (iii) an amount
necessary to reimburse the Officer for any income, excise, or
other tax assessment payable by the Officer with respect to the
amounts specified in (i) and (ii) above, and the reimbursement
provided by this clause (iii).
Further, and in the event any amount is required
to be paid to the Officer pursuant to this subparagraph (h), in
addition to such payment, CCB shall indemnify and hold harmless
the Officer (including, if applicable, his
successors-in-interest) from and against any and all liabilities,
losses, costs, damages, or expenses of any kind, including
accountants' and attorneys' fees, arising out of, incurred in
connection with, or in any way related to (i) any determination
(by the Officer, the IRS, or otherwise) that all or any part of
any payment to be made to or for the benefit of the Officer under
this Agreement constitutes an "excess parachute payment" (as
defined above), and (ii) the failure of CCB to perform any of its
obligations to the Officer under this subparagraph (h).
(i) In the event any dispute shall arise between
the Officer and CCB as to the terms or interpretation of this
Agreement, including this Paragraph 2, whether instituted by
formal legal proceedings or otherwise, including any action taken
by the Officer to enforce the terms of this Paragraph 2 or in
defending against any action taken by CCB, CCB shall reimburse
the Officer for all costs and expenses, proceedings or actions,
in the event the Officer prevails in any such action.
3. Exclusions. Notwithstanding anything contained
herein to the contrary, it is expressly understood and agreed by
Officer that:
(a) Officer shall not be entitled to any
payments under this Agreement in the event (i) CCB terminates
Officer's employment for Cause, or (ii) Officer voluntarily
terminates his employment with CCB other than as provided in
Paragraph 2(g) above, or (iii) Officers's employment with CCB
terminates or is terminated due to his death, "Retirement" (as
defined below) or "Disability" (as defined below); and,
(b) Officer's employment with CCB is on an "at
will" basis and this Agreement does not constitute an employment
contract or an agreement by CCB to employ Officer for any
particular period of time or in any particular capacity. Nothing
in this Agreement is intended or should be interpreted to confer
upon Officer the right to continue in the employ of CCB or to
interfere with or restrict in any way the right of CCB to
discharge Officer or terminate his employment at any time or for
any reason whatsoever, with or without Cause, and without any
obligation or liability to Officer except as herein provided, it
being the intent of the parties hereto only to provide for
payment of the severance benefits specified herein in the event
of the termination of Officer's employment with CCB under the
circumstances set forth herein.
4. Other Definitions.
(a) For purposes of this Agreement, CCB shall
have "Cause" to terminate Officer's employment as a result of:
(i) Officer's continued failure
(following reasonable notice of such failure and an opportunity
to correct performance deficiencies) to perform or discharge the
duties of his employment in a reasonably competent and
satisfactory manner, or a determination by CCB, in good faith,
that Officer is engaging or has engaged in willful misconduct or
conduct which is detrimental to the business prospects of CCB or
which has had or likely will have a material adverse effect on
CCB's business or reputation;
(ii) The violation by Officer of any
applicable federal or state law, or any applicable rule,
regulation, order or statement of policy promulgated by any
governmental agency or authority having jurisdiction over CCB or
Parent or any of their affiliates or subsidiaries (any of the
foregoing being hereinafter referred to as a "Regulatory
Authority", which will include, without limitation, the Federal
Deposit Insurance Corporation, the North Carolina Banking
Commissioner, the North Carolina Banking Commission, the Board of
Governors of the Federal Reserve System, the Federal Reserve Bank
of Richmond, the Securities and Exchange Commission or any other
banking or securities regulator), which results from Officer's
gross negligence, willful misconduct or intentional disregard of
such law, rule, regulation, order or statement of policy and
results in any substantial damage, monetary or otherwise, to CCB
or Parent or any of their affiliates or subsidiaries or to their
reputation;
(iii) The commission in the course
of Officer's employment with CCB of an act of fraud,
embezzlement, theft or proven personal dishonesty (whether or not
resulting in criminal prosecution or conviction);
(iv) The conviction of Officer of any
felony or any criminal offense involving dishonesty or breach of
trust, or the occurrence of any event described in Section 19 of
the Federal Deposit Insurance Act or any other event or
circumstance which disqualifies Officer from serving as an
employee or executive officer of, or a party affiliated with, CCB
or Parent; or, in the event Officer becomes unacceptable to, or
is removed, suspended or prohibited from participating in the
conduct of CCB's or Parent's affairs (or if proceedings for that
purpose are commenced) by, any Regulatory Authority; or
(v) The occurrence of any event
believed by CCB, in good faith, to have resulted in Officer being
excluded from coverage, or having coverage limited as to Officer
as compared to other covered officers or employees, under CCB's
then current "blanket bond" or other fidelity bond or insurance
policy covering its directors, officers or employees.
(b) "Disability" means the absence of Officer
from his employment duties on a full-time basis for one hundred
eighty (180) consecutive business days as a result of incapacity
due to physical or mental illness or injury (subject to CCB's
obligations and Officer's rights under (i) Title I of the
Americans with Disabilities Act, 504 of the Rehabilitation Act,
and the Family and Medical Leave Act, and to (ii) the vacation
leave, disability leave, sick leave and any other leave policies
of CCB). (c) "Retirement" means Officer's retirement
(whether early, normal or delayed retirement) under the terms of
any retirement benefit plan generally applicable to CCB's
salaried employees.
5. Regulatory Requirements. Notwithstanding anything
contained in this Agreement to the contrary, it is understood and
agreed that CCB (or any of its successors in interest) shall not
be required to make any payment or take any action under this
Agreement if:
(a) CCB is declared by any Regulatory Authority
to be insolvent, in default or operating in an unsafe or unsound
manner, or if
(b) in the opinion of counsel to CCB such payment
or action (i) would be prohibited by or would violate any
provision of state or federal law applicable to CCB, including
without limitation the Federal Deposit Insurance Act as now in
effect or hereafter amended, (ii) would be prohibited by or would
violate any applicable rules, regulations, orders or formal
statements of policy, whether now existing or hereafter
promulgated, of any Regulatory Authority, or (iii) otherwise is
prohibited by any Regulatory Authority.
6. Termination of Agreement. Notwithstanding
anything contained herein to the contrary, this Agreement
automatically shall terminate and become null and void upon any
termination of Officer's employment with CCB other than a
termination of employment which results in CCB's payment
obligation provided for under Paragraph 2(a) above. Following
any such termination of this Agreement, it shall be of no further
force or effect and Officer shall have no further rights
hereunder.
7. Successors and Assigns. This Agreement shall
inure to the benefit of and be binding on Officer and his heirs,
successors and assigns, and on CCB and any corporate or other
successor to CCB which shall acquire, directly or indirectly, by
conversion, merger, consolidation, purchase, or otherwise, all or
substantially all of the assets of CCB. CCB shall cause its
obligations under this Agreement to be expressly assumed by any
Person or entity that becomes a Successor to CCB. However, CCB's
failure to obtain any such express assumption shall have no
effect on the obligations of any such Successor to the extent
that such Successor is deemed to have assumed and become liable
for CCB's obligations hereunder by operation of law.
Notwithstanding anything contained herein to the contrary, in no
event may Officer transfer or assign his rights under this
Agreement to any other person without the prior written consent
of CCB.
8. Modification; Waiver; Amendments. No provision of
this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing and
signed by the Officer and CCB, except as herein otherwise
provided. No waiver by either party hereto, at any time, of any
breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or
subsequent time. No amendments or additions to this Agreement
shall be binding unless in writing and signed by both parties,
except as herein otherwise provided.
9. Applicable Law. This Agreement shall be governed
in all respects, whether as to validity, construction, capacity,
performance, or otherwise, by the laws of North Carolina, except
to the extent that federal law shall be deemed to apply. The
parties hereto agree that any action relating to this Agreement
shall be instituted and prosecuted in the Courts of Durham
County, North Carolina, and each party hereto hereby does waive
any and all defenses relating to venue and jurisdiction over the
person.
10. Severability. The provisions of this Agreement
shall be deemed severable and the invalidity or unenforceability
of any provision shall not affect the validity or enforceability
of the other provisions hereof.
IN TESTIMONY WHEREOF, CCB has caused this instrument to
be executed under seal and in such form as to be binding, all by
authority of its Board of Directors first duly given; and the
individual party hereto has set said party's hand hereto and has
adopted as said party's seal the typewritten word "SEAL"
appearing beside said party's name, this the day and year first
above written.
CENTRAL CAROLINA BANK AND
TRUST COMPANY
By: /s/ W. L. Burns, Jr.
W. L. Burns, Jr., Chairman
ATTEST:
/s/ Christie L. Powell
Asst. Secretary
[CORPORATE SEAL]
/s/ J. Scott Edwards (SEAL)
J. Scott Edwards
RLMAIN/5760
