UNITED STATES
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) January 12, 1998
CCB Financial Corporation
(Exact name of registrant as specified in its charter)
North Carolina 0-12358 56-1347849
(State or other jurisdiction (Commission File (IRS Employer
of incorporation) Number) Identification No.)
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.
The Registrant and its lead bank subsidiary, Central
Carolina Bank and Trust Company ("CCB"), have entered into
employment and amended and restated change of control
agreements (the "Executive Agreements") with the
Registrant's three executive officers. The Executive
Agreements provide that Ernest C. Roessler will be employed
as President and Chief Executive Officer and J. Scott
Edwards and Richard L. Furr will be employed as Executive
Vice Presidents. The agreement for Mr. Roessler has a five-
year term and the agreements for Messrs. Edwards and Furr
provide for a three-year term (collectively the "Employment
Period"); all of the Executive Agreements include provisions
for automatic one-year extensions under certain conditions.
In addition, the Executive Agreements provide, among other
benefits, that the Registrant and CCB will maintain split-
dollar life insurance agreements with the respective
executive officers and maintain related executive officer-
owned life insurance policies.
The Executive Agreements provide that, if during the
Employment Period, the Registrant or CCB terminate an
Executive Agreement other than for Cause or Disability or
the executive officer terminates it for Good Reason (as
defined therein), in any of the foregoing cases within one
year following a Change in Control (as defined therein),
then the executive officer shall be entitled to receive,
among other things and in addition to compensatory amounts
owed to him for the current fiscal year, an amount equal to
2.99 times the total of the executive officer's base salary
and aggregate cash bonus for the last completed fiscal year
as well as accelerated vesting of certain employee benefits.
The Executive Agreements supersede the change of control
agreements that were adopted in 1995.
Item 7. Financial Statements and Exhibits.
(c) Exhibits
Exhibit 10.1 Employment and Amended and Restated
Change of Control Agreement dated January 12, 1998 by
and among Registrant, Central Carolina Bank and Trust
Company and Ernest C. Roessler
Exhibit 10.2 Employment and Amended and Restated
Change of Control Agreement dated January 27, 1998 by
and among Registrant, Central Carolina Bank and Trust
Company and Richard L. Furr
Exhibit 10.3 Employment and Amended and Restated
Change of Control Agreement dated January 21, 1998 by
and among Registrant, Central Carolina Bank and Trust
Company and J. Scott Edwards
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, as amended, Registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
CCB FINANCIAL CORPORATION
Date: March 16, 1998 By: /s/ ROBERT L. SAVAGE, JR.
Robert L. Savage, Jr.
Senior Vice President and
Chief Financial Officer
Date: March 16, 1998 By: /s/ W. HAROLD PARKER, JR.
W. Harold Parker, Jr.
Senior Vice President and
Chief Accounting Officer
EMPLOYMENT AND AMENDED AND
RESTATED CHANGE OF CONTROL AGREEMENT
THIS EMPLOYMENT AND AMENDED AND RESTATED CHANGE OF CONTROL
AGREEMENT (this "Agreement") is made and entered into this 12th
day of January, 1998 by and among CCB Financial Corporation, a
North Carolina corporation ("CCBF"), Central Carolina Bank and
Trust Company, a North Carolina commercial bank ("CCB Bank"), and
Ernest C. Roessler ("Executive").
BACKGROUND
WHEREAS, Executive is the Chief Executive Officer of CCBF
and of CCB Bank, the primary banking subsidiary of CCBF; and
WHEREAS, the expertise and experience of Executive, his
knowledge of the affairs of CCBF and its direct and indirect
subsidiaries (the "Subsidiaries"), and his relationships and
reputation in the financial institutions industry are extremely
valuable to CCBF, CCB Bank and the other Subsidiaries; and
WHEREAS, it is in the best interests of CCBF, its
Subsidiaries and its shareholders to maintain an experienced and
sound executive management team to manage CCBF, CCB Bank and the
other Subsidiaries and to further CCBF's overall strategies to
protect and enhance the value of its shareholders' investments;
and
WHEREAS, CCBF, CCB Bank and Executive desire to enter into
this Agreement to establish the scope, terms and conditions of
Executive's employment by CCBF and CCB Bank; and
WHEREAS, CCB Bank and Executive desire to amend and restate
herein the Change of Control Agreement dated July 17, 1996
between CCB Bank and Executive in order to continue the provision
of security to, and to continue to insure the loyalty of,
Executive in the event of a change in control of CCBF or CCB
Bank, and CCBF desires to become obligated, jointly and severally
with CCB Bank, under the provisions of such agreement as amended
and restated herein.
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants and agreements set forth herein, and other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Effective Date. The effective time and date of this
Agreement shall be deemed to be 12:00:01 o'clock, a.m., on the
date of its making set forth above (the "Effective Date").
2. Definitions. The following defined terms are defined
in the referenced Sections of this Agreement.
Term Section
Accrued Obligations Section 8(a)(i)(A)
Additional Payment Section 10(a)
Base Salary Section 6(a)
Bank Board Section 3(b)
Benefit Plans Section 6(c)
Cause Section 7(b)
CCBF Board Section 3(b)
Change of Control Section 9(b)
Change of Control Termination Section 9(a)
Change of Control Termination Date Section 9(a)
Code Section 8(c)
Collateral Assignment Section 6(e)
Competitor Section 13(a)
Continuing Period Section 9(c)(iv)
Commissioner Section 15(d)
Date of Termination Section 7(e)
Disability Section 7(a)
Disability Effective Date Section 7(a)
Effective Date Section 1
EMIP Section 6(b)(i)
Employment Period Section 4
Excise Tax Section 10(a)
FDIC Section 15(d)
Good Reason Section 7(c)
Group Section 9(b)
Incumbent Directors Section 9(b)
Insurance Policy Section 6(e)
Insurance Policy Buy-Out Option Section 8(a)(vii)
IRS Section 10(a)
ISOs Section 8(c)
LTIP Section 6(b)(ii)
Most Recent Annual Bonus Section 8(a)(i)(A)
Most Recent EMIP Award Section 8(a)(i)(A)
Most Recent LTIP Award Section 8(a)(ii)
1934 Act Section 9(b)
Notice of Termination Section 7(d)
Other Benefits Section 8(a)(v)
Options Section 8(a)(vi)
Payment Section 10(a)
Person Section 9(b)
Remaining Employment Period Section 8(a)(i)(B)
Restricted Period Section 8(a)(viii)
Split Dollar Agreement Section 6(e)
Subsidiaries Preamble
Welfare Benefit Plans Section 6(d)
3. Employment.
(a) Executive Positions. Executive will be employed
as the President and Chief Executive Officer of each of CCBF and
CCB Bank. Executive's responsibilities, duties, prerogatives and
authority in such executive offices, and the clerical,
administrative and other support staff and office facilities
provided to him, shall be those customary for the principal
executive officer of publicly held corporations generally and of
holding companies and financial institutions that are a part of
the financial institution industry specifically. In his
executive capacities Executive shall report to the Boards of
Directors of CCBF and CCB Bank, as applicable.
(b) Director Positions. The Board of Directors of
CCBF (the "CCBF Board") shall nominate and use its best efforts
to secure the election of Executive as a director of CCBF during
the term of this Agreement. The CCBF Board shall also cause CCBF
to vote the outstanding shares of CCB Bank and CCBF's other
direct Subsidiaries to elect Executive as a member of the Board
of Directors of CCB Bank (the "Bank Board") and of the Boards of
Directors of those of the other direct Subsidiaries of CCBF as
would be useful to Executive in the performance of his duties.
The Bank Board shall cause CCB to vote the outstanding shares of
its direct Subsidiaries to elect Executive as a director of such
Subsidiaries as would be useful in the performance of his duties.
At all times the Executive serves as a director of CCBF and CCB
Bank pursuant to this Section 2(b), he shall be appointed to the
Executive Committees of the CCBF Board and the Bank Board.
4. Employment Period. Unless earlier terminated in
accordance with Sections 7 or 9 hereof, Executive's employment
shall be for a renewing five (5) year term (the "Employment
Period"), beginning at the Effective Date. The Employment Period
shall, without further action by Executive, CCBF or CCB Bank, be
extended for an additional one (1) year on each anniversary of
the Effective Date, such that the remaining term of the
Employment Period shall continue to be five (5) years; provided,
further, however, that CCBF and CCB Bank or Executive may, by
notice to the other, cause the Employment Period to cease to
extend automatically as of a specific anniversary of the
Effective Date. Such notice must be given and received at least
eleven (11) months and thirty-one (31) days prior to the
anniversary of the Effective Date on which it is to be effective.
Upon the effectiveness of such notice, the Employment Period
shall be fixed at five (5) years, and the Employment Period shall
terminate upon the expiration of such five-year period.
5. Extent of Service. During the Employment Period, and
excluding any periods of vacation, sick or other leave to which
Executive is entitled under this Agreement, Executive agrees to
devote reasonable attention and time during normal business hours
to the business and affairs of CCBF and CCB Bank, and, to the
extent necessary to discharge the responsibilities assigned to
Executive hereunder, to use Executive's reasonable best efforts
to perform faithfully and efficiently his responsibilities and
duties under this Agreement. During the Employment Period it
shall not be a violation of this Agreement for Executive to (i)
devote reasonable periods of time to charitable, trade
association, community and similar activities, and/or (ii) manage
personal business interests and investments, so long as such
activities do not interfere with the performance of Executive's
responsibilities and duties under this Agreement. It is
expressly understood and agreed that to the extent that any such
activities have been conducted by Executive prior to the
Effective Date, the continued conduct of such activities (or the
conduct of activities similar in nature and scope thereto)
subsequent to the Effective Date shall not thereafter be deemed
to interfere with the performance of Executive's responsibilities
and duties hereunder.
6. Compensation and Benefits.
(a) Base Salary. For the fiscal year in which the
Employment Period commences, CCBF will pay to Executive a base
salary in the amount of $521,000 per year ("Base Salary"), less
normal withholdings, payable in equal monthly or more frequent
installments as are customary under CCB Bank's payroll practices
from time to time. The Compensation Committee of the CCBF Board
shall review Executive's total compensation annually and in its
sole discretion may adjust Executive's Base Salary from year to
year, but during the Employment Period neither the Compensation
Committee, the CCBF Board nor the Bank Board may decrease
Executive's Base Salary below $521,000, and periodic increases,
once granted, shall not be subject to revocation. The annual
review of Executive's total compensation by the Compensation
Committee will consider, among other things, changes in the cost
of living, Executive's own performance and CCBF's consolidated
performance.
(b) Incentive Plans. During the Employment Period,
Executive shall be entitled:
(i) to participate in CCBF's Executive Management
Incentive Plan ("EMIP"), and any successor or
substitute plan to the EMIP, in at least as
favorable a manner as any other senior executive
employee participant. Executive shall recommend
annually to the Compensation Committee appropriate
minimum, target and maximum performance
objectives, and appropriate measures and weights
for the components of the performance objectives,
for the EMIP generally and shall also recommend
minimum, target and maximum bonus levels for the
executive employee participants in the EMIP
(taking into consideration any contractual rights
of any such participants). Executive's annual
minimum, target and maximum bonus levels under the
EMIP shall be 0%, 50%, and 100% of Executive's
Base Salary for such year or such greater levels
as the Compensation Committee may determine
Executive's individual performance warrants or as
are necessary to satisfy the provisions of the
first sentence of this item (i); and
(ii) to participate in CCBF's Long-Term Incentive Plan
("LTIP"), and any successor or substitute plan to
the LTIP, in at least as favorable a manner as any
other senior executive employee participant.
(c) Savings and Retirement Plans. During the
Employment Period, Executive shall be entitled to participate in
all savings, pension and retirement plans (including supplemental
retirement plans), practices, policies and programs applicable
generally to senior executive employees of CCBF or CCB Bank (the
"Benefit Plans"), and on at least as favorable a basis as any
other senior executive employee participant. Without limiting
the foregoing, Benefit Plans shall include the CCB Financial
Corporation Retirement Plan, the CCB Financial Corporation
Retirement Savings Plan, the CCB Financial Corporation Retirement
Income Equity Plan, the CCB Financial Corporation Retirement
Savings Equity Plan and any substitute and successor plan to any
of the foregoing.
(d) Welfare Benefit Plans. During the Employment
Period, Executive and/or Executive's family, as the case may be,
shall be eligible for participation in and shall receive all
benefits under all welfare benefit plans, practices, policies and
programs provided by CCBF or CCB Bank (including, without
limitation, medical, hospitalization, prescription, dental,
disability, employee life, group life, accidental death and
dismemberment, and travel accident insurance plans and programs)
to the extent applicable generally to senior executive employees
of CCBF or CCB Bank ("Welfare Benefit Plans").
(e) Life Insurance. During the Employment Period,
CCBF and CCB Bank shall maintain a split-dollar life insurance
agreement with Executive (the "Split Dollar Agreement") and,
together with Executive, maintain a related life insurance policy
to be owned by Executive (the "Insurance Policy") and
collaterally assigned to CCBF and/or CCB Bank (the "Collateral
Assignment"), providing coverage on the life of Executive for the
benefit of Executive's estate, beneficiaries designated by him,
and/or trusts created by him. The amount of life insurance
coverage provided to, and the terms, provisions and conditions of
the coverage maintained for, Executive shall be at least as much
and at least as favorable to Executive as the amount, terms,
provisions and conditions of coverage provided and maintained, as
applicable, under split-dollar insurance agreements and policies
maintained for other senior executive employees of CCBF and/or
CCB Bank (taking into consideration differences in age and
health). Any exercise of the Insurance Policy Buy-Out Option (as
defined below) by Executive shall release CCBF and CCB Bank from
any further obligation to maintain the Split Dollar Agreement or
the Insurance Policy.
(f) Expenses. During the Employment Period, Executive
shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by Executive in accordance with the
policies, practices and procedures of CCBF and CCB Bank to the
extent applicable generally to other senior executive employees
of CCBF or CCB Bank.
(g) Fringe and Similar Benefits. During the
Employment Period, Executive shall be entitled to fringe benefits
in accordance with the plans, practices, programs and policies of
CCBF and CCB Bank in effect for senior executive employees of
CCBF or CCB Bank. In addition to, and not in lieu of, any other
provision of this Agreement, Executive shall receive annually an
allowance equal to three percent (3%) of his Base Salary for such
fiscal year under CCB Bank's "Senior Officer Perquisites" policy,
payable and available for such uses as are set forth in such
policy.
(h) Vacation, Sick and Other Leave. During the
Employment Period, Executive shall be entitled annually to a
minimum of twenty (20) business days of paid vacation and shall
be entitled to those number of business days of paid disability,
sick and other leave specified in the employment policies of CCBF
or CCB Bank.
(i) Allocation. CCBF and CCB Bank may allocate
between them for accounting and taxation purposes the payment of
compensation to Executive under this Agreement on the basis of
such factors as they deem relevant and appropriate; provided,
however, that CCBF and CCB Bank shall be jointly and severally
liable and obligated to fulfill all obligations to Executive
under this Agreement.
7. Termination of Employment (Other Than In Connection
With A Change Of Control).
(a) Death or Disability. Executive's employment with
CCBF and CCB Bank shall terminate automatically upon Executive's
death during the Employment Period. If the CCBF Board and the
Bank Board determine in good faith that the Disability of
Executive has occurred during the Employment Period (pursuant to
the definition of Disability set forth below), they may give to
Executive written notice in accordance with Section 7(d) and
16(g) of this Agreement of their intention to terminate
Executive's employment. In such event, Executive's employment
with CCBF and CCB Bank shall terminate effective on the 60th day
after receipt of such written notice by Executive (the
"Disability Effective Date"), provided that, within the 30 days
after such receipt, Executive shall not have returned to full-
time performance of Executive's duties. For purposes of this
Agreement, "Disability" shall mean the absence of Executive from
Executive's duties with CCBF and CCB Bank on a full-time basis
for 180 consecutive business days as a result of incapacity due
to mental or physical illness or injury which is determined to be
total and permanent by a physician selected by the CCBF Board and
the Bank Board, or the insurers of CCBF and CCB Bank, and
acceptable to Executive or Executive's legal representative,
which acceptance shall not be unreasonably withheld, subject to
(i) CCBF's and CCB Bank's obligations, and Executive's rights,
under (A) the Americans With Disabilities Act, 42 U.S.C. 1210
et seq., and (B) the Family and Medical Leave Act, 29 U.S.C.
2601 et seq. (and the regulations promulgated under the
foregoing Acts), and (ii) the exclusion from such 180 business
day calculation of any business days constituting vacation days
under Section 6(h) and any business days which an employee is
permitted to be absent under the disability, sick or other leave
policies of CCBF or CCB Bank.
(b) Cause. CCBF and CCB Bank may terminate
Executive's employment with CCBF and CCB Bank for Cause. For
purposes of this Agreement, "Cause" shall mean:
(i) the willful and continued failure of Executive to
perform substantially Executive's duties with CCBF
and CCB Bank, other than any such failure
resulting from Disability, after a written demand
for substantial performance is jointly delivered
to Executive by the CCBF Board and the Bank Board
which specifically identifies the manner in which
the CCBF Board and the Bank Board believe that
Executive has not substantially performed
Executive's duties, or
(ii) the willful engaging by Executive in illegal
conduct or gross misconduct which is materially
and demonstrably injurious to CCBF and CCB Bank.
For purposes of this provision, no act or failure to act on the
part of Executive shall be considered "willful" unless it is
done, or omitted to be done, by Executive in bad faith or without
reasonable belief that Executive's action or omission was in the
best interests of CCBF and CCB Bank. Any act, or failure to act,
based upon authority given pursuant to resolutions duly adopted
by the CCBF Board or the Bank Board or based upon the advice of
counsel for CCBF or CCB Bank shall be conclusively presumed to be
done, or omitted to be done, by Executive in good faith and in
the best interests of CCBF and CCB Bank. The cessation of
employment of Executive shall not be deemed to be for Cause
unless and until there shall have been delivered to Executive
copies of resolutions duly adopted by the affirmative votes of
not less than three-quarters (3/4) of the entire membership of
each of the CCBF Board and the Bank Board at meetings of such
Boards called and held for such purpose (after reasonable notice
is provided to Executive and Executive is given an opportunity,
together with counsel, to be heard before the CCBF Board and the
Bank Board), finding that, in the good faith opinion of each such
Board, Executive is guilty of the conduct described in items (i)
or (ii) above, and specifying the particulars thereof in detail.
(c) Good Reason. Executive's employment may be
terminated by Executive for Good Reason. For purposes of this
Agreement, "Good Reason" shall mean:
(i) the assignment to Executive of any duties or
responsibilities inconsistent in any respect with
Executive's positions (including status, offices,
titles, and reporting requirements), authority,
duties, prerogatives or responsibilities as
contemplated by Section 3(a) of this Agreement, or
any other action by CCBF or CCB Bank which results
in a diminution in such positions, authority,
duties, prerogatives or responsibilities,
excluding for this purposes an isolated,
insubstantial and inadvertent action not taken in
bad faith and which is remedied by CCBF or CCB
Bank, as applicable, promptly after receipt of
notice thereof given by Executive;
(ii) any failure by CCBF or CCB Bank to comply with any
of the provisions of Section 6 of this Agreement,
other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith and
which is remedied by CCBF or CCB Bank, as
applicable, promptly after receipt of notice
thereof given by Executive;
(iii)the requirement by CCBF and/or CCB Bank that
Executive, without his consent, be based or
conduct on an on-going basis more than ten percent
(10%) of his activities under this Agreement at
any office or location more than 35 mile (by most
direct highway route) from the location of the
headquarters building of CCBF and CCB Bank in
Durham, North Carolina as of the Effective Date;
(iv) any purported termination of Executive's
employment under this Agreement otherwise than as
expressly permitted by this Agreement; or
(v) any failure by CCBF and/or CCB Bank to comply with
and satisfy Section 14(b) of this Agreement.
For purposes of this Section 7(c), any good faith determination
of "Good Reason" made by Executive shall be conclusive.
(d) Notice of Termination. Any termination by CCBF
and CCB Bank for Disability or Cause or by Executive for Good
Reason shall be communicated by Notice of Termination to the
other party thereto given in accordance with Section 16(g) of
this Agreement. For purposes of this Agreement, a "Notice of
Termination" means a written notice which (i) indicates the
specific termination provision in this Agreement relied upon,
(ii) to the extent applicable, sets forth in reasonable detail
the facts and circumstances claimed to provide a basis for
termination of Executive's employment under the provision so
indicated, and (iii) if the Date of Termination (as defined
below) is other than the date of receipt of such notice,
specifies the termination date (which date shall be not more than
30 days after the giving of such notice except as otherwise
provided in Section 7(a)). The failure by Executive or CCBF and
CCB Bank to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Disability, Cause
or Good Reason shall not waive any right of Executive or CCBF and
CCB Bank hereunder or preclude Executive or CCBF and CCB Bank
from asserting such fact or circumstance in enforcing Executive's
or CCBF's and CCB Bank's rights hereunder.
(e) Date of Termination. "Date of Termination" means
(i) if Executive's employment is terminated by CCBF and CCB Bank
for Cause or by Executive for Good Reason, the date of receipt of
the Notice of Termination or any later date specified therein, as
the case may be, (ii) if Executive's employment is terminated by
CCBF and CCB Bank other than for Cause or Disability or other
than by reason of death, the date of receipt of the Notice of
Termination, and (iii) if Executive's employment is terminated by
reason of death or Disability, the Date of Termination shall be
the date of death of Executive or the Disability Effective Date,
as the case may be.
8. Obligations of CCBF and CCB Bank Upon Termination
(Other Than In Connection With A Change Of Control).
(a) Other Than For Cause, Death or Disability. If,
during the Employment Period, CCBF shall terminate Executive's
employment other than for Cause, death or Disability, or
Executive shall terminate his employment for Good Reason (and, in
each case, other than in connection with a Change of Control),
then in consideration of Executive's services rendered prior to
such termination;
(i) CCBF and CCB Bank shall pay to Executive a lump
sum in cash within 30 days after the Date of
Termination the aggregate of the following
amounts:
A. the sum of (1) Executive's Base Salary
through the Date of Termination to the extent
not theretofore paid, (2) the product of (x)
Executive's aggregate cash bonus for the last
completed fiscal year, whether paid under
Section 6(b) above and/or otherwise paid to
Executive ("Most Recent Annual Bonus"), and
(y) a fraction, the numerator of which is the
number of days in the current fiscal year
through the Date of Termination, and the
denominator of which is 365, and (3) any
compensation previously deferred by Executive
(together with any accrued interest or
earnings thereon) and any accrued vacation
pay, in each case to the extent not
theretofore paid (the sum of the amounts
described in clauses (1), (2), and (3) shall
be hereinafter referred to as the "Accrued
Obligations"); and
B. the amount equal to the product of (1) the
number of days remaining in the Employment
Period from and after the Date of Termination
(the "Remaining Employment Period"), and (2)
Executive's Base Salary divided by 365; and
C. the amount equal to the product of (1) the
number of days in the Remaining Employment
Period, and (2) Executive's Most Recent
Annual Bonus divided by 365; and
D. an amount equal to the excess of (a) the
actuarial equivalent of Executive's benefits
under the Benefit Plans that are qualified
defined benefit retirement plans (utilizing
actuarial assumptions no less favorable to
Executive than those in effect under the CCB
Financial Corporation Retirement Plan on the
Date of Termination) and any Benefit Plans
that are excess or supplemental retirement
plans in which Executive participates which
Executive would receive if Executive's
employment continued throughout the Remaining
Employment Period, assuming for this purpose
that all accrued benefits are fully vested
and assuming that Executive's compensation in
each remaining year of the Employment Period
is the Base Salary plus the Most Recent
Annual Bonus, over (b) the actuarial
equivalent of Executive's actual benefits
(paid or payable), if any, under such Benefit
Plans as of the Date of Termination; and
(ii) CCBF shall immediately grant, if not theretofore
granted for the fiscal year in which the Date of
Termination occurs, an award under the LTIP of the
same type and in the same quantitative amount as
awarded to Executive under the LTIP for the
previous fiscal year (the "Most Recent LTIP
Award"), which award shall be vested and non-
forfeitable as of the Date of Termination
(assuming for calculation purposes that the LTIP's
superior performance objective for such fiscal
year has been met) and shall be exercisable on and
after the first day subsequent to the six (6)
months following the date of grant; and
(iii)To the extent Executive's award under the EMIP for
the previous fiscal year was not an award of a
cash bonus, CCBF shall immediately grant, if not
theretofore granted for the fiscal year in which
the Date of Termination occurs, an award under the
EMIP of the same type and in the same quantative
amount as the non-cash award awarded to Executive
under the EMIP for the previous fiscal year (the
"Most Recent EMIP Award"), which award shall be
distributed as of the Date of Termination
(assuming for calculation purposes that the EMIP's
maximum performance objective for such fiscal year
has been met); and
(iv) for the Remaining Employment Period, or such
longer period as may be provided by the terms of
the appropriate plan, program, practice or policy,
CCBF and CCB Bank shall continue to provide
benefits to Executive and/or Executive's family at
least equal to those which would have been
provided to them in accordance with the Welfare
Benefit Plans described in Section 6(d) of this
Agreement if Executive's employment had not been
terminated; provided, however, that if Executive
becomes re-employed with another employer and is
eligible to receive substantially the same
benefits under the other employer's plans as
Executive would receive under the Welfare Benefit
Plans under this item (iv), the benefits under the
Welfare Benefit Plans shall be secondary to those
provided under such other employer's plans during
such applicable period of eligibility. For
purposes of determining eligibility and years-of-
service credit (but not the time of commencement
of benefits) of Executive for retiree benefits
pursuant to such Welfare Benefit Plans, Executive
shall be considered to have remained employed
throughout the Remaining Employment Period and to
have retired on the last day of such period; and
(v) to the extent not theretofore paid or provided,
CCBF and CCB Bank shall timely pay or provide to
Executive any other amounts or benefits required
to be paid or provided herein or which Executive
is eligible to receive under any Welfare Benefit
Plan or any other plan, program, policy or
practice or contract or agreement of CCBF or CCB
Bank (such other amounts and benefits shall be
hereinafter referred to as the "Other Benefits");
and
(vi) all options to acquire capital stock of CCBF
("Options") previously granted to Executive,
including those awarded under item (ii) above,
that are unvested on the Date of Termination shall
be deemed vested, fully exercisable and non-
forfeitable as of the Date of Termination and all
previously granted Options that are vested, but
unexercised, on the Date of Termination shall
remain exercisable, in each case for the period
during which they would have been exercisable
absent the termination of Executive's employment;
and
(vii)During the Remaining Employment Period, CCBF and
CCB Bank shall maintain the Split Dollar Agreement
and continue to pay all premiums due under the
Split Dollar Agreement and the Insurance Policy;
provided, however, that upon or at any time prior
to the expiration of the Remaining Employment
Period, Executive or the then owner of the
Insurance Policy may terminate the Split Dollar
Agreement and the Collateral Assignment by paying
to CCBF and/or CCB Bank an amount equal to the
total amount of the premiums advanced by CCBF
and/or CCB Bank in accordance with the Split
Dollar Agreement as of the date of the termination
of the Split Dollar Agreement, minus any
withdrawals of cash value or loans proceeds
received by CCBF and/or CCB Bank from the cash
value of the Insurance Policy and which were made
to CCBF and/or CCB Bank as of the date of the
termination of the Split Dollar Agreement (such
payment may, in the discretion of Executive or
other owner of the policy, be made in cash or may
be accomplished by means of a loan or withdrawal
of cash values of the Insurance Policy which is
authorized by the Executive or such other owner of
the Insurance Policy) (the "Insurance Policy Buy-
Out Option");
(viii)provided, however, that notwithstanding any
provision of this Agreement to the contrary,
Executive shall forfeit his right to receive, or,
to the extent such amounts have previously been
paid to Executive, shall repay in full to CCBF or
CCB Bank, as applicable, with interest at 8% per
annum within 30 days of a final determination of
Executive's liability therefor as set forth below,
the sum of the amounts described in Section
8(a)(i)(B) and (C) of this Agreement if any time
during the Employment Period or the Remaining
Employment Period (the "Restricted Period")
Executive violates the restrictive covenants set
forth in Section 13 of this Agreement. Any
determination of whether Executive has violated
such covenants shall be made by arbitration in
Durham, North Carolina under the Rules of
Commercial Arbitration (the "Rules") of the
American Arbitration Association, which Rules are
deemed to be incorporated by reference herein.
(b) Death. If Executive's employment is terminated by
reason of Executive's death during the Employment Period, this
Agreement shall terminate without further obligations to
Executive's legal representatives under this Agreement, except
that; (i) Accrued Obligations shall timely be paid as provided
below; (ii) Other Benefits shall be timely paid or provided as
described below; (iii) all Options previously granted to
Executive that vested at or prior to the Date of Termination
shall remain exercisable for the longer of twelve (12) months and
the exercise period in effect immediately prior to the Date of
Termination; (iv) all Options previously granted to Executive and
scheduled to vest in the year of death shall immediately vest and
be exercisable for the exercise period set forth in the
applicable grants; and (v) Executive's rights to all benefits
under all Benefit Plans that are "non-qualified" plans shall be
100% vested, regardless of Executive's age or years of service,
at the time of Executive's death. Accrued Obligations shall be
paid to Executive's estate or beneficiary, as applicable, in a
lump sum in cash within 30 days of the Date of Termination. With
respect to the provision of Other Benefits, the term Other
Benefits as utilized in this Section 8(b) shall include, without
limitation, and Executive's estate and/or beneficiaries shall be
entitled to receive, all benefits under CCBF's and CCB Bank's
plans, programs, practices and policies relating to death
benefits, if any, as are applicable generally to senior executive
employees of CCBF or CCB Bank and their beneficiaries, and on the
same basis as such senior executive employees and their
beneficiaries. Without limiting the foregoing, for one (1) year
after Executive's death, CCBF and CCB Bank shall pay any premium
required for any "qualified beneficiary" to continue his or her
health care coverage in accordance with Title I, Part 6 of the
Employee Retirement Security Act of 1974, as amended.
(c) Disability. If Executive's employment is
terminated by reason of Executive's Disability during the
Employment Period, this Agreement shall terminate without further
obligations to Executive, except that: (i) Accrued Obligations
shall be timely paid as provided below; (ii) Other Benefits shall
be timely paid or provided as described below; (iii) all Options
that are" incentive stock options" ("ISOs"), as described in
Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code"), and that vested at or prior to the Date of Termination
shall remain exercisable for the lesser of twelve (12) months and
the period of exercise in effect immediately prior to the Date of
Termination; (iv) all Options previously granted and scheduled to
vest in the year in which the Date of Termination occurs shall
immediately vest and be exercisable (A) in the case of ISOs, for
twelve (12) months from the Date of Termination, and (B) in the
case of Options that are not ISOs, for the exercise period set
forth in the applicable grant; (v) all other Options that vested
at or prior to the Date of Termination shall remain exercisable
for the period of exercise in effect immediately prior to the
Date of Termination; and (vi) Executive may exercise his
Insurance Plan Buy-Out Option on the Date of Termination.
Accrued Obligations shall be paid to Executive in a lump sum in
cash within 30 days of the Date of Termination. With respect to
the provision of Other Benefits, the term Other Benefits as
utilized in this Section 8(c) shall include, without limitation,
and Executive shall be entitled after the Date of Termination to
receive, all disability and other benefits under all Welfare
Benefit Plans and all other plans, programs, practices, and
policies of CCBF and CCB Bank relating to disability, if any, as
are applicable generally to senior executive employees of CCBF
and CCB Bank and their families, and on the same basis as such
senior executive employees and their families.
(d) Cause. If Executive's employment shall be
terminated for Cause during the Employment Period, this Agreement
shall terminate without further obligations to Executive, except
that (i) the Accrued Obligations shall be paid in a lump sum in
cash within 30 days of the Date of Termination, and (ii) Other
Benefits shall be paid or provided in a timely manner, in each
case to the extent theretofore unpaid; provided, however, that
Executive's right to continue to participate in Welfare Benefit
Plans shall terminate on the 30th day following the Date of
Termination, subject to his rights under the Consolidated Omnibus
Budget Reconciliation Act of 1985, 29 U.S.C. 1161 et seq.
9. Termination In Connection With a Change of Control.
(a) Change of Control Termination. In the event that
during the Employment Period, CCBF and CCB Bank terminate
Executive's employment other than for Cause or Disability or
Executive terminates such employment for Good Reason, in any of
the foregoing cases within one (1) year after a Change of Control
(each a "Change of Control Termination"), Executive shall be
entitled to receive the payments and benefits specified in this
Section 9. The date on which CCBF and CCB Bank or Executive
receives notice in accordance with Section 16(g) of a Change of
Control Termination shall be deemed the Change of Control
Termination Date.
(b) Definition of Change of Control. A Change of
Control shall be deemed to have occurred upon: (i) any "Person"
or "Group" (as defined in or pursuant to Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934, as amended (the "1934
Act"), but not including CCBF, CCB Bank, any other Subsidiary or
any "employee benefit plan" (as defined in or pursuant to the
Employee Retirement Income Security Act of 1974, 29 U.S.C.
1002(3), and as used herein "Person" or "Group") becoming the
"beneficial owner" (as defined in Rule 13d-3 under the 1934 Act)
or otherwise acquiring control, directly or indirectly, of
securities of CCBF representing twenty-five percent (25%) or more
of the voting power of CCBF's then outstanding securities; (ii)
the acquisition by any Person or Group in any manner of the
ability to elect, or to control the election, of a majority of
the directors of CCBF or CCB Bank; (iii) the merger of CCBF or
CCB Bank into another entity, the merger of any entity into CCBF
or CCB Bank or the acquisition of assets by CCBF or CCB Bank, in
any such case with the result that the beneficial owners of
CCBF's and CCB Bank's outstanding securities immediately prior to
such transaction do not beneficially own more than sixty percent
(60%) of CCBF's and CCB Bank's outstanding securities after the
consummation of such transaction; (iv) the sale or other transfer
of more than fifty percent (50%) of the assets of CCBF or CCB
Bank to any entity not controlled by CCBF; (v) the consummation
of any transaction by CCBF or CCB Bank that results (A) in the
majority of the Boards of Directors of CCBF and CCB Bank after
the consummation of such transaction not being composed of
Incumbent Directors, or (B) the beneficial owners of CCBF's
outstanding securities immediately prior to the consummation of
such a transaction not beneficially owning more than sixty
percent (60%) of CCBF's outstanding securities after such
transaction; or (vi) the occurrence of any other event or
circumstance which is not described in the foregoing provisions
of this Section 9(b) but which the CCBF Board determines affects
control of CCBF and/or CCB Bank and constitutes a Change of
Control for purposes of this Agreement. The term "Incumbent
Director" shall mean any director who as of the Effective Date
was a member of the CCBF Board or the Bank Board, or any
individual becoming a member of the CCBF Board or the Bank Board
subsequent to the Effective Date whose election by CCBF
shareholders or by the shareholder of CCB Bank, as applicable,
was recommended by at least two-thirds (2/3) of the then
Incumbent Directors on the CCBF Board or the Bank Board, as
applicable.
Notwithstanding the foregoing, a Change of Control shall not
include any transaction to which Executive consents in a writing
specifically noting this provision of this Agreement.
(c) Change of Control Payments and Benefits. Upon a
Change of Control Termination:
(i) CCBF and CCB Bank shall pay to Executive in a
lump sum in cash within 30 days after the
date of the Change In Control Termination
Date the aggregate of the following amounts:
(A) the sum of the Accrued Obligations; and
(B) an amount equal to 2.99 times the total
of Executive's Base Salary and Most
Recent Annual Bonus; and
(C) an amount equal to the excess of (a) the
actuarial equivalent of the benefits
under CCBF's Benefit Plans that are
qualified defined benefit retirement
plans (utilizing actuarial assumptions
no less favorable to Executive than
those in effect under the CCB Financial
Corporation Retirement Plan on the
Change of Control Termination Date) and
any Benefit Plan that are excess or
supplemental retirement plans in which
Executive participates which Executive
would receive if Executive's employment
continued throughout the Remaining
Employment Period, assuming for this
purpose that all accrued benefits are
fully vested, and, assuming that
Executive's compensation in each
remaining year of the Employment Period
is the Base Salary plus the Most Recent
Annual Bonus, over (b) the actuarial
equivalent of Executive's actual
benefits (paid or payable), if any,
under such Benefit Plans as of the
Change of Control Termination Date; and
(ii) Unless the relevant Change of Control is a
merger of CCBF or CCB Bank with another
Person or entity which is intended to be
accounted for under the pooling-of-interests
method and which has been approved by the
vote of such number of Incumbent Directors as
comprised a majority of the CCBF Board or the
Bank Board, as applicable, CCBF shall
immediately grant, if not theretofore granted
for the fiscal year in which the Change of
Control Termination Date occurs, an award
under the LTIP of the same type and in the
same quantative amount as the Most Recent
LTIP Award, which award shall be vested and
non-forfeitable as of the Change of Control
Termination Date (assuming for calculation
purposes that the LTIP's superior performance
objective for such fiscal year has been met)
and shall be exercisable on and after the
first day subsequent to the six (6) months
following the date of grant; and
(iii) CCBF shall immediately grant, if not
theretofore granted for the fiscal year in
which the Date of Termination occurs, an
award under the EMIP of the same type and in
the same quantative amount as the Most Recent
EMIP Award, which award shall be distributed
as of the Change of Control Termination Date
(assuming for calculation purposes that the
EMIP's maximum performance objective for such
fiscal year has been met); and
(iv) for the number of days remaining in the
Employment Period from and after the Change
of Control Termination Date (the "Continuing
Period"), or such longer period as may be
provided by the terms of the appropriate
plan, program, practice or policy, CCBF and
CCB Bank shall continue benefits to Executive
and/or Executive's family at least equal to
those which would have been provided to them
in accordance with the Welfare Benefit Plans
described in Section 6(d) of this Agreement
if Executive's employment had not been
terminated; provided, however, that if
Executive becomes re-employed with another
employer and is eligible to receive
substantially the same benefits under the
other employer's plans as Executive would
receive under the Welfare Benefit Plans under
this item (iv), the benefits under the
Welfare Benefit Plans shall be secondary to
those provided under such other plans during
such applicable period of eligibility. For
purposes of determining eligibility and years-
of-service credit (but not the time of
commencement of benefits) of Executive for
retiree benefits pursuant to such Welfare
Benefit Plans, Executive shall be considered
to have remained employed through the
Continuing Period and to have retired on the
last day of such period; and
(v) all Options previously granted to Executive
that are unvested as of the Change of Control
Termination Date shall be deemed vested,
fully exercisable and non-forfeitable as of
the Change of Control Termination Date
(provided, however, that Options granted less
than six (6) months before the Change of
Control Termination Date shall not be
exercisable until the first day subsequent to
the six (6) months following their dates of
grant) and all previously granted Options
that are vested, but unexercised, on the
Change of Control Termination Date shall
remain exercisable, in each case for the
period during which they would have been
exercisable absent the termination of
Executive's employment; and
(vi) Executive's benefits under all Benefit Plans
that are non-qualified plans shall be 100%
vested, regardless of Executive's age or
years of service, as of the Change of Control
Termination Date; and
(vii) CCBF and CCB Bank shall maintain and
continue to pay during the Continuing Period
all premiums due under the Split Dollar
Agreement and the Insurance Policy; provided,
however, that upon or at any time prior to
the expiration of the Continuing Period,
Executive may exercise his Insurance Policy
Buy-Out Option.
10. Additional Payments
(a) Amount of Additional Payments. Anything in this
Agreement seemingly to the contrary notwithstanding, in the event
it shall be determined that any or the aggregate of all payments,
distributions, accelerations of vesting, awards and provisions of
benefits by CCBF and/or CCB Bank to or for the benefit of the
Executive (whether paid or payable, distributed or distributable,
accelerated, awarded or provided pursuant to the terms of this
Agreement or otherwise) (a "Payment") would constitute an "excess
parachute payment" within the meaning of Section 280G of the Code
and subject to the excise tax imposed by Section 4999 of the Code
(the "Excise Tax"), then prior to the making of any Payment to
the Executive, a calculation shall be made of the amount of the
Excise Tax and an additional cash payment (the "Additional
Payment") shall be promptly made to the Executive in the sum of
(i) the Excise Tax and (ii) the total of any Excise Tax payable
on the amounts specified in item (i) and this item (ii). In
addition, if it shall be determined at any time by reference to
Internal Revenue Service ("IRS") regulations or rulings, as a
consequence IRS audits or assessments of Executive (or in
settlement thereof), by reference to the terms of the final
judgment of a court or other judicial body of competent
jurisdiction or as a result of other similar events requiring
Executive to pay an Excise Tax or any income or other excise tax
on the amounts specified in this Section 10(a), that an
Additional Payment made was less than the sums specified in items
(i) and (ii) above, CCBF and CCB Bank promptly shall make a
further cash payment to Executive in the sum of (x) such deficit
and (y) any Excise Tax on such further cash payment.
(b) Determination of Excise Tax and Other Amounts.
The determination of whether an Excise Tax would be imposed, the
amount of such Excise Tax, and the calculation of the amounts
referred to in Section 10(a) shall be made by CCBF's and CCB
Bank's regular independent accounting firm or, at the election of
Executive, another nationally recognized independent accounting
firm (either, the "Accounting Firm") which shall provide detailed
supporting analyses and calculations. All fees and expenses of
the Accounting Firm shall be borne solely by CCBF and CCB Bank.
Any determination by the Accounting Firm shall be binding upon
CCBF, CCB Bank and Executive.
11. Non-Exclusivity of Rights. Nothing in this Agreement
shall prevent or limit Executive's continuing or future
participation in any plan, program, policy, or practice provided
by CCBF, CCB Bank or any other Subsidiary and for which Executive
may qualify, nor, subject to Section 14(e), shall anything herein
limit or otherwise affect such rights as Executive may have under
any contract or agreement with CCBF, CCB Bank or any other
Subsidiary. Amounts which are vested benefits or which Executive
is otherwise entitled to receive under any plan, policy, practice
or program of or any contract or agreement with CCBF, CCB Bank or
other Subsidiary at or subsequent to a Date of Termination or
Change of Control Termination Date shall be payable in accordance
with such plan, policy, practice or program or such contract or
agreement except as explicitly modified by this Agreement.
12. Full Settlement. CCBF's and CCB Bank's obligation to
make the payments provided for in this Agreement and otherwise to
perform their obligations hereunder shall not be affected by any
set-off, counterclaim, recoupment, defense or other claim, right
or action which CCBF or CCB Bank may have against Executive or
others. In no event shall Executive be obligated to seek other
employment or take any other action by way of mitigation of the
amounts payable to Executive under any of the provisions of this
Agreement; provided, however, that Executive's right to receive
benefits under Welfare Benefit Plans to the extent that Executive
obtains other employment shall be limited as provided in Sections
8(a)(iv) and 9(c)(iv). CCBF and CCB Bank agree to pay as
incurred, to the full extent permitted by law, all legal fees and
expenses which Executive may reasonably incur as a result of any
contest (regardless of the outcome thereof) by CCBF and CCB Bank,
Executive or others of the validity or enforceability of, or
liability under, any provision of this Agreement or any guarantee
of performance thereof (including as a result of any contest by
Executive about the amount of any payment pursuant to this
Agreement), plus in each case interest on any delayed payment at
the "applicable federal rate" provided for in Section
7872(f)(2)(A) of the Code.
13. Covenants.
(a) Covenant Not to Compete. During the Restricted
Period, Executive shall not, within the States of North Carolina
and South Carolina, directly or indirectly, in any capacity,
render his services, or engage or have a financial interest in,
any business that shall be competitive with any of those business
activities in which CCBF or any of its Subsidiaries that are
financial institutions, is engaged as of the date of this
Agreement (a "Competition"), which business activities include
the provision of banking services (collectively, the "Business");
provided, however, that Executive's ownership of less than three
percent (3%) of the outstanding securities of any Competitor that
has a class of securities listed on a securities exchange or
qualified for quotation on any over-the-counter market shall not
be a violation of the foregoing. If a court determines that the
foregoing restrictions are too broad or otherwise unreasonable
under applicable law, including with respect to time, scope or
territory, the court is hereby requested and authorized by the
parties hereto to revise the foregoing restrictions to include
the maximum restrictions allowable under applicable law.
(b) Covenant No to Solicit Customers. During the
Restricted Period, Executive shall not, directly or indirectly,
individually or on behalf of any other person or entity (other
than CCBF or a Subsidiary), solicit the provision of banking
services to any person, partnership, corporation or other entity
who is or was (i) a customer of any Subsidiary during any part of
the twelve (12) month period immediately prior to the Date of
Termination, or (ii) a potential customer to whom any Subsidiary
solicited the provision of banking services during any part of
the twelve (12) month period immediately prior to the Date of
Termination.
(c) Covenant Not to Solicit Employees. During the
Restricted Period, Executive shall not, directly or indirectly,
individually or on behalf of any other person or entity, solicit,
recruit or entice, directly or indirectly, any employee of CCBF
or any Subsidiary to leave the employment of CCBF or such
Subsidiary to work with Executive or with any person,
partnership, corporation or other entity with whom Executive is
or becomes affiliated or associated.
(d) Reasonableness of Scope and Duration. The parties
hereto agree that the covenants and agreements contained in this
Section 13 are reasonable in their time, territory and scope, and
they intend that they be enforced, and no party shall raise any
issue of the reasonableness of the time, territory or scope of
any such covenants in any proceeding to enforce any such
covenants.
(e) Enforceability. Executive agrees that monetary
damages would not be a sufficient remedy for any breach or
threatened breach of the provisions of this Section 13, and that
in addition to all other rights and remedies available to CCBF,
CCBF shall be entitled to specific performance and injunctive or
other equitable relief as a remedy for any such breach or
threatened breach.
(f) Separate Covenants and Severability. The
covenants and agreements contained in this Section 13 shall be
construed as separate and independent covenants. Should any part
or provision of any such covenant or agreement be held invalid,
void or unenforceable in any court of competent jurisdiction, no
other part or provision of this Agreement shall be rendered
invalid, void or unenforceable by a court of competent
jurisdiction, no other part or provision of this Agreement shall
be rendered invalid, void or unenforceable as a result. If any
portion of the foregoing provisions is found to be invalid or
unenforceable by a court of competent jurisdiction unless
modified, it is the intent of the parties that the otherwise
invalid or unreasonable term shall be reformed, or a new
enforceable term provided, so as to most closely effectuate the
provisions as is validly possible.
(g) Inapplicability. The provisions of this Section
13 shall not be operative upon, or be in any way enforceable
against Executive at or after, a Change of Control Termination or
a termination of Executive's employment by CCBF and CCB Bank
other than for Cause, death or Disability (i.e., a termination
without Cause).
14. Assignment and Successors.
(a) Executive. This Agreement is personal to
Executive and without the prior written consent of CCBF and CCB
Bank shall not be assignable by Executive otherwise than by will
or the laws of descent and distribution. This Agreement shall
inure to the benefit of and be enforceable by Executive's legal
representatives.
(b) CCBF and CCB Bank. This Agreement shall inure to
the benefit of and be binding upon CCBF and CCB Bank and their
respective successors and assigns. Each of CCBF and CCB Bank will
require any successor to it (whether direct or indirect, by stock
or asset purchase, merger, consolidation or otherwise) to all or
substantially all of its business or more than fifty percent
(50%) of its assets to assume expressly and agree to perform this
Agreement in the same manner and to the same extent it would be
required to perform it if no such succession had taken place. As
used in this Agreement, "CCBF" and "CCB Bank" shall mean CCBF and
CCB Bank as hereinbefore defined and any successor to their
respective businesses and/or assets as aforesaid which assumes
and agrees to perform this Agreement by operation of law, or
otherwise.
15. Regulatory Intervention. Notwithstanding anything in
this Agreement to the contrary, the obligations of CCBF and CCB
Bank under this Agreement are subject to the following terms and
conditions:
(a) If the Executive is suspended and/or temporarily
prohibited from participating in the conduct of CCBF's or CCB
Bank's affairs by a notice served under Section 8(e)(3) or (g)(1)
of the Federal Deposit Insurance Act (12 U.S.C. 1818 (e)(3) and
(g)(1)), CCBF's or CCB Bank's obligations hereunder, as
applicable, shall be suspended as of the date of service unless
stayed by appropriate proceedings. If the charges in the notice
are dismissed, all of CCBF's or CCB Bank's obligations, as
applicable, which were suspended shall be reinstated.
(b) If Executive is removed and/or permanently
prohibited from participating in the conduct of CCBF's or CCB
Bank's affairs by an order issued under Section 8(e)(4) or (g)(1)
of the Federal Deposit Insurance Act (12 U.S.C. 1818 (e)(4) and
(g)(1)), all obligations of CCBF or CCB Bank, as applicable,
under this Agreement shall terminate as of the effective date of
the order, but vested rights of the parties shall not be
affected.
(c) If CCB Bank is in default (as defined in Section
3(x)(1) of the Federal Deposit Insurance Act (12 U.S. C. 1813
(x)(1)), all obligations of CCB Bank under this Agreement shall
terminate as of the date of default, but any vested rights of
Executive shall not be affected.
(d) All obligations of CCB Bank under this Agreement
shall be terminated, except to the extent determined that
continuation of the contract is necessary for the continued
operation of CCB Bank, if so ordered by the North Carolina
Commissioner of Banks (the "Commissioner") at the time the
Federal Deposit Insurance Corporation ("FDIC") enters into an
agreement to provide assistance to or on behalf of CCB Bank under
the authority contained in Section 13(c) of the Federal Deposit
Insurance Act (12 U.S.C. 1823 (c)), or if so ordered by the
Commissioner at the time the FDIC approves a supervisory merger
to resolve problems related to operation of CCB Bank or when CCB
Bank is determined by the Commissioner to be in an unsafe or
unsound condition. Any rights of Executive that shall have
vested under this Agreement shall not be affected by such action.
(e) With regard to the provisions of this Section
15(a) through (d):
(i) CCBF and CCB Bank agree to use their best efforts
to oppose any such notice of charges as to which
there are reasonable defenses;
(ii) In the event the notice of charges is dismissed or
otherwise resolved in a manner that will permit
CCBF and/or CCB Bank to resume their obligations
to pay compensation hereunder, CCBF and/or CCB
Bank will promptly make such payment hereunder;
and
(iii) During any period of suspension under Section
15(a), the vested rights of Executive shall not be
affected except to the extent precluded by such
notice.
(f) CCB Bank's obligations to provide compensation or
other benefits to Executive under this Agreement shall be
terminated or limited to the extent required by the provisions of
any final regulation or order of the FDIC promulgated under
Section 18(k) of the Federal Deposit Insurance Act (12 U.S.C.
1828(k)) limiting or prohibiting any "golden parachute payment"
as defined therein, but only to the extent that the compensation
or payments to be provided by CCB Bank under this Agreement are
so prohibited or limited.
(g) It is intended by CCBF, CCB Bank and Executive
that if only one of CCBF and CCB Bank is prohibited from
fulfilling its obligations under this Agreement in any of the
circumstances described in the above provisions of this Section
15 (whether for a period or permanently), the other shall remain
obligated to fulfill all obligations of CCBF and CCB Bank under
this Agreement.
16. Miscellaneous.
(a) No Mitigation. Executive shall not be required to
mitigate the amount of any payment provided for in this Agreement
by seeking other employment or otherwise and, except as provided
in Sections 8(a)(iv) and 9(c)(iv), no such payment shall be
offset or reduced by the amount of any compensation or benefits
provided to Executive in any subsequent employment.
(b) Waiver. Failure of either part to insist, in one
or more instances, on performance by the other in strict
accordance with the terms and conditions of this Agreement shall
not be deemed a waiver or relinquishment of any right granted in
this Agreement or of the future performance of any such term or
condition or of any other term or condition of this Agreement,
unless such waiver is contained in a writing signed by the party
making the waiver.
(c) Severability. If any provision or covenant, of
any part thereof, of this Agreement should be held by any court
to be invalid, illegal or unenforceable, either in whole or in
part, such invalidity, illegality or unenforceability shall not
affect the validity, legality or enforceability of the remaining
provisions or covenants, or any part thereof, of this Agreement,
all of which shall remain in full force and effect.
(d) Other Agents. Nothing in this Agreement is to be
interpreted as limiting CCBF or CCB Bank from employing other
personnel on such terms and conditions as may be satisfactory to
it.
(e) Entire Agreement. Except as provided herein, this
Agreement contains the entire agreement among CCBF, CCB Bank and
Executive, with respect to the subject matter hereof and
supersedes and invalidates any previous employment and severance
agreements or contracts with Executive, including, without
limitation, that certain Change of Control Agreement, dated July
17, 1995, by and between CCB Bank and Executive which is amended
and restated herein. No representations, inducements, promises
or agreements, oral or otherwise, which are not embodied herein,
shall be of any force or effect.
(f) Governing Law. Except to the extent preempted by
federal law, the laws of the State of North Carolina shall govern
this Agreement in all respects, whether as to its validity,
construction, capacity, performance or otherwise.
(g) Notices. All notices, requests, demands and other
communications required or permitted hereunder shall be in
writing and shall be deemed to have been duly given if delivered
or seven (7) days after mailing if mailed, first class, certified
mail, postage prepaid:
To CCBF and CCB Bank:
CCB Financial Corporation
111 Corcoran Street
Durham, North Carolina 27702-0931
Attention: Chairman of the Board
To Executive:
Ernest C. Roessler
3710 Northhampton Road
Durham, North Carolina 27707-5080
Any party may change the address to which notices, requests,
demands and other communications shall be delivered or mailed by
giving notice thereof to the other party in the same manner
provided herein.
(h) Amendments and Modifications. This Agreement may
be amended or modified only by a writing signed by all parties
hereto, which makes specific reference to this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed
and delivered this Employment and Amended and Restated Change of
Control Agreement as of the date first above written.
CCB FINANCIAL CORPORATION
By: /s/ W. L. BURNS, JR.
Title: Chairman of the Board
CENTRAL CAROLINA BANK AND
TRUST COMPANY
By: /s/ W. L. BURNS, JR.
Title: Chairman of the Board
EXECUTIVE:
/s/ ERNEST C. ROESSLER
Ernest C. Roessler
ccb\roessler.agm
EMPLOYMENT AND AMENDED AND
RESTATED CHANGE OF CONTROL AGREEMENT
THIS EMPLOYMENT AND AMENDED AND RESTATED CHANGE OF CONTROL
AGREEMENT (this "Agreement") is made and entered into this 27th
day of January, 1998 by and among CCB Financial Corporation, a
North Carolina corporation ("CCBF"), Central Carolina Bank and
Trust Company, a North Carolina commercial bank ("CCB Bank"), and
Richard L. Furr ("Executive").
BACKGROUND
WHEREAS, Executive is an Executive Vice President of CCBF
and of CCB Bank, the primary banking subsidiary of CCBF; and
WHEREAS, the expertise and experience of Executive, his
knowledge of the affairs of CCBF and its direct and indirect
subsidiaries (the "Subsidiaries"), and his relationships and
reputation in the financial institutions industry are extremely
valuable to CCBF, CCB Bank and the other Subsidiaries; and
WHEREAS, it is in the best interests of CCBF, its
Subsidiaries and its shareholders to maintain an experienced and
sound executive management team to manage CCBF, CCB Bank and the
other Subsidiaries and to further CCBF's overall strategies to
protect and enhance the value of its shareholders' investments;
and
WHEREAS, CCBF, CCB Bank and Executive desire to enter into
this Agreement to establish the scope, terms and conditions of
Executive's employment by CCBF and CCB Bank; and
WHEREAS, CCB Bank and Executive desire to amend and restate
herein the Change of Control Agreement dated July 17, 1996
between CCB Bank and Executive in order to continue the provision
of security to, and to continue to insure the loyalty of,
Executive in the event of a change in control of CCBF or CCB
Bank, and CCBF desires to become obligated, jointly and severally
with CCB Bank, under the provisions of such agreement as amended
and restated herein.
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants and agreements set forth herein, and other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Effective Date. The effective time and date of this
Agreement shall be deemed to be 12:00:01 o'clock, a.m., on the
date of its making set forth above (the "Effective Date").
2. Definitions. The following defined terms are defined
in the referenced Sections of this Agreement.
Term Section
Accrued Obligations Section 8(a)(i)(A)
Additional Payment Section 10(a)
Base Salary Section 6(a)
Bank Board Section 6(a)
Benefit Plans Section 6(c)
Cause Section 7(b)
CCBF Board Section 3
Change of Control Section 9(b)
Change of Control Termination Section 9(a)
Change of Control Termination Date Section 9(a)
Code Section 8(c)
Collateral Assignment Section 6(e)
Competitor Section 13(a)
Continuing Period Section 9(c)(iv)
Commissioner Section 15(d)
Date of Termination Section 7(e)
Disability Section 7(a)
Disability Effective Date Section 7(a)
Effective Date Section 1
EMIP Section 6(b)(i)
Employment Period Section 4
Excise Tax Section 10(a)
FDIC Section 15(d)
Good Reason Section 7(c)
Group Section 9(b)
Incumbent Directors Section 9(b)
Insurance Policy Section 6(e)
Insurance Policy Buy-Out Option Section 8(a)(vii)
IRS Section 10(a)
ISOs Section 8(c)
LTIP Section 6(b)(ii)
Most Recent Annual Bonus Section 8(a)(i)(A)
Most Recent EMIP Award Section 8(a)(i)(A)
Most Recent LTIP Award Section 8(a)(ii)
1934 Act Section 9(b)
Notice of Termination Section 7(d)
Other Benefits Section 8(a)(v)
Options Section 8(a)(vi)
Payment Section 10(a)
Person Section 9(b)
Remaining Employment Period Section 8(a)(i)(B)
Restricted Period Section 8(a)(viii)
Split Dollar Agreement Section 6(e)
Subsidiaries Preamble
Welfare Benefit Plans Section 6(d)
3. Employment. Executive will be employed as the
Executive Vice President in charge of the Banking Group of each
of CCBF and CCB Bank. Executive's responsibilities, duties,
prerogatives and authority in such executive offices, and the
clerical, administrative and other support staff and office
facilities provided to him, shall be those customary for the
principal executive officer of publicly held corporations
generally and of holding companies and financial institutions
that are a part of the financial institution industry
specifically. In his executive capacities Executive shall report
to the President and Chief Executive Officer of CCBF and CCB
Bank, as applicable.
4. Employment Period. Unless earlier terminated in
accordance with Sections 7 or 9 hereof, Executive's employment
shall be for a renewing three (3) year term (the "Employment
Period"), beginning at the Effective Date. The Employment Period
shall, without further action by Executive, CCBF or CCB Bank, be
extended for an additional one (1) year on each anniversary of
the Effective Date, such that the remaining term of the
Employment Period shall continue to be three (3) years; provided,
further, however, that CCBF and CCB Bank or Executive may, by
notice to the other, cause the Employment Period to cease to
extend automatically as of a specific anniversary of the
Effective Date. Such notice must be given and received at least
eleven (11) months and thirty-one (31) days prior to the
anniversary of the Effective Date on which it is to be effective.
Upon the effectiveness of such notice, the Employment Period
shall be fixed at three (3) years, and the Employment Period
shall terminate upon the expiration of such three-year period.
5. Extent of Service. During the Employment Period, and
excluding any periods of vacation, sick or other leave to which
Executive is entitled under this Agreement, Executive agrees to
devote reasonable attention and time during normal business hours
to the business and affairs of CCBF and CCB Bank, and, to the
extent necessary to discharge the responsibilities assigned to
Executive hereunder, to use Executive's reasonable best efforts
to perform faithfully and efficiently his responsibilities and
duties under this Agreement. During the Employment Period it
shall not be a violation of this Agreement for Executive to (i)
devote reasonable periods of time to charitable, trade
association, community and similar activities, and/or (ii) manage
personal business interests and investments, so long as such
activities do not interfere with the performance of Executive's
responsibilities and duties under this Agreement. It is
expressly understood and agreed that to the extent that any such
activities have been conducted by Executive prior to the
Effective Date, the continued conduct of such activities (or the
conduct of activities similar in nature and scope thereto)
subsequent to the Effective Date shall not thereafter be deemed
to interfere with the performance of Executive's responsibilities
and duties hereunder.
6. Compensation and Benefits.
(a) Base Salary. For the fiscal year in which the
Employment Period commences, CCBF will pay to Executive a base
salary in the amount of $301,650 per year ("Base Salary"), less
normal withholdings, payable in equal monthly or more frequent
installments as are customary under CCB Bank's payroll practices
from time to time. The Compensation Committee of the CCBF Board
shall review Executive's total compensation annually and in its
sole discretion may adjust Executive's Base Salary from year to
year, but during the Employment Period neither the Compensation
Committee, the CCBF Board nor the Board of Directors of CCB Bank
(the "Bank Board") may decrease Executive's Base Salary below
$301,650, and periodic increases, once granted, shall not be
subject to revocation. The annual review of Executive's total
compensation by the Compensation Committee will consider, among
other things, changes in the cost of living, Executive's own
performance and CCBF's consolidated performance.
(b) Incentive Plans. During the Employment Period,
Executive shall be entitled:
(i) to participate in CCBF's Executive Management
Incentive Plan ("EMIP"), and any successor or
substitute plan to the EMIP, in at least as
favorable a manner as any other participant of the
same rank. Executive shall recommend annually to
the Compensation Committee appropriate minimum,
target and maximum performance objectives, and
appropriate measures and weights for the
components of the performance objectives, for the
EMIP generally and shall also recommend minimum,
target and maximum bonus levels for the executive
employee participants in the EMIP (taking into
consideration any contractual rights of any such
participants). Executive's annual minimum, target
and maximum bonus levels under the EMIP shall be
0%, 40%, and 80% of Executive's Base Salary for
such year or such greater levels as the
Compensation Committee may determine Executive's
individual performance warrants or as are
necessary to satisfy the provisions of the first
sentence of this item (i); and
(ii) to participate in CCBF's Long-Term Incentive Plan
("LTIP"), and any successor or substitute plan to
the LTIP, in at least as favorable a manner as any
other participant of the same rank.
(c) Savings and Retirement Plans. During the
Employment Period, Executive shall be entitled to participate in
all savings, pension and retirement plans (including supplemental
retirement plans), practices, policies and programs applicable
generally to senior executive employees of CCBF or CCB Bank (the
"Benefit Plans"), and on at least as favorable a basis as any
other participant of the same rank. Without limiting the
foregoing, Benefit Plans shall include the CCB Financial
Corporation Retirement Plan, the CCB Financial Corporation
Retirement Savings Plan, the CCB Financial Corporation Retirement
Income Equity Plan, the CCB Financial Corporation Retirement
Savings Equity Plan and any substitute and successor plan to any
of the foregoing.
(d) Welfare Benefit Plans. During the Employment
Period, Executive and/or Executive's family, as the case may be,
shall be eligible for participation in and shall receive all
benefits under all welfare benefit plans, practices, policies and
programs provided by CCBF or CCB Bank (including, without
limitation, medical, hospitalization, prescription, dental,
disability, employee life, group life, accidental death and
dismemberment, and travel accident insurance plans and programs)
to the extent applicable generally to senior executive employees
of CCBF or CCB Bank ("Welfare Benefit Plans").
(e) Life Insurance. During the Employment Period,
CCBF and CCB Bank shall maintain a split-dollar life insurance
agreement with Executive (the "Split Dollar Agreement") and,
together with Executive, maintain a related life insurance policy
to be owned by Executive (the "Insurance Policy") and
collaterally assigned to CCBF and/or CCB Bank (the "Collateral
Assignment"), providing coverage on the life of Executive for the
benefit of Executive's estate, beneficiaries designated by him,
and/or trusts created by him. The amount of life insurance
coverage provided to, and the terms, provisions and conditions of
the coverage maintained for, Executive shall be at least as much
and at least as favorable to Executive as the amount, terms,
provisions and conditions of coverage provided and maintained, as
applicable, under split-dollar insurance agreements and policies
maintained for other employees of CCBF and/or CCB Bank of the
same rank (taking into consideration differences in age and
health). Any exercise of the Insurance Policy Buy-Out Option (as
defined below) by Executive shall release CCBF and CCB Bank from
any further obligation to maintain the Split Dollar Agreement or
the Insurance Policy.
(f) Expenses. During the Employment Period, Executive
shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by Executive in accordance with the
policies, practices and procedures of CCBF and CCB Bank to the
extent applicable generally to other senior executive employees
of CCBF or CCB Bank.
(g) Fringe and Similar Benefits. During the
Employment Period, Executive shall be entitled to fringe benefits
in accordance with the plans, practices, programs and policies of
CCBF and CCB Bank in effect for senior executive employees of
CCBF or CCB Bank. In addition to, and not in lieu of, any other
provision of this Agreement, Executive shall receive annually an
allowance equal to three percent (3%) of his Base Salary for such
fiscal year under CCB Bank's "Senior Officer Perquisites" policy,
payable and available for such uses as are set forth in such
policy.
(h) Vacation, Sick and Other Leave. During the
Employment Period, Executive shall be entitled annually to a
minimum of twenty (20) business days of paid vacation and shall
be entitled to those number of business days of paid disability,
sick and other leave specified in the employment policies of CCBF
or CCB Bank.
(i) Allocation. CCBF and CCB Bank may allocate
between them for accounting and taxation purposes the payment of
compensation to Executive under this Agreement on the basis of
such factors as they deem relevant and appropriate; provided,
however, that CCBF and CCB Bank shall be jointly and severally
liable and obligated to fulfill all obligations to Executive
under this Agreement.
7. Termination of Employment (Other Than In Connection
With A Change Of Control).
(a) Death or Disability. Executive's employment with
CCBF and CCB Bank shall terminate automatically upon Executive's
death during the Employment Period. If the CCBF Board and the
Bank Board determine in good faith that the Disability of
Executive has occurred during the Employment Period (pursuant to
the definition of Disability set forth below), they may give to
Executive written notice in accordance with Section 7(d) and
16(g) of this Agreement of their intention to terminate
Executive's employment. In such event, Executive's employment
with CCBF and CCB Bank shall terminate effective on the 60th day
after receipt of such written notice by Executive (the
"Disability Effective Date"), provided that, within the 30 days
after such receipt, Executive shall not have returned to full-
time performance of Executive's duties. For purposes of this
Agreement, "Disability" shall mean the absence of Executive from
Executive's duties with CCBF and CCB Bank on a full-time basis
for 180 consecutive business days as a result of incapacity due
to mental or physical illness or injury which is determined to be
total and permanent by a physician selected by the CCBF Board and
the Bank Board, or the insurers of CCBF and CCB Bank, and
acceptable to Executive or Executive's legal representative,
which acceptance shall not be unreasonably withheld, subject to
(i) CCBF's and CCB Bank's obligations, and Executive's rights,
under (A) the Americans With Disabilities Act, 42 U.S.C. 1210
et seq., and (B) the Family and Medical Leave Act, 29 U.S.C.
2601 et seq. (and the regulations promulgated under the
foregoing Acts), and (ii) the exclusion from such 180 business
day calculation of any business days constituting vacation days
under Section 6(h) and any business days which an employee is
permitted to be absent under the disability, sick or other leave
policies of CCBF or CCB Bank.
(b) Cause. CCBF and CCB Bank may terminate
Executive's employment with CCBF and CCB Bank for Cause. For
purposes of this Agreement, "Cause" shall mean:
(i) the willful and continued failure of Executive to
perform substantially Executive's duties with CCBF
and CCB Bank, other than any such failure
resulting from Disability, after a written demand
for substantial performance is jointly delivered
to Executive by the CCBF Board and the Bank Board
which specifically identifies the manner in which
the CCBF Board and the Bank Board believe that
Executive has not substantially performed
Executive's duties, or
(ii) the willful engaging by Executive in illegal
conduct or gross misconduct which is materially
and demonstrably injurious to CCBF and CCB Bank.
For purposes of this provision, no act or failure to act on the
part of Executive shall be considered "willful" unless it is
done, or omitted to be done, by Executive in bad faith or without
reasonable belief that Executive's action or omission was in the
best interests of CCBF and CCB Bank. Any act, or failure to act,
based upon authority given pursuant to resolutions duly adopted
by the CCBF Board or the Bank Board or based upon the advice of
counsel for CCBF or CCB Bank shall be conclusively presumed to be
done, or omitted to be done, by Executive in good faith and in
the best interests of CCBF and CCB Bank. The cessation of
employment of Executive shall not be deemed to be for Cause
unless and until there shall have been delivered to Executive
copies of resolutions duly adopted by the affirmative votes of
not less than three-quarters (3/4) of the entire membership of
each of the CCBF Board and the Bank Board at meetings of such
Boards called and held for such purpose (after reasonable notice
is provided to Executive and Executive is given an opportunity,
together with counsel, to be heard before the CCBF Board and the
Bank Board), finding that, in the good faith opinion of each such
Board, Executive is guilty of the conduct described in items (i)
or (ii) above, and specifying the particulars thereof in detail.
(c) Good Reason. Executive's employment may be
terminated by Executive for Good Reason. For purposes of this
Agreement, "Good Reason" shall mean:
(i) the assignment to Executive of any duties or
responsibilities inconsistent in any respect with
Executive's position (including status, offices,
titles, and reporting requirements), authority,
duties, prerogatives or responsibilities as
contemplated by Section 3 of this Agreement, or
any other action by CCBF or CCB Bank which results
in a diminution in such positions, authority,
duties, prerogatives or responsibilities,
excluding for this purposes an isolated,
insubstantial and inadvertent action not taken in
bad faith and which is remedied by CCBF or CCB
Bank, as applicable, promptly after receipt of
notice thereof given by Executive;
(ii) any failure by CCBF or CCB Bank to comply with any
of the provisions of Section 6 of this Agreement,
other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith and
which is remedied by CCBF or CCB Bank, as
applicable, promptly after receipt of notice
thereof given by Executive;
(iii) the requirement by CCBF and/or CCB Bank that
Executive, without his consent, be based or
conduct on an on-going basis more than ten percent
(10%) of his activities under this Agreement at
any office or location more than 35 mile (by most
direct highway route) from the location of the
headquarters building of CCBF and CCB Bank in
Durham, North Carolina as of the Effective Date;
(iv) any purported termination of Executive's
employment under this Agreement otherwise than as
expressly permitted by this Agreement; or
(v) any failure by CCBF and/or CCB Bank to comply with
and satisfy Section 14(b) of this Agreement.
For purposes of this Section 7(c), any good faith determination
of "Good Reason" made by Executive shall be conclusive.
(d) Notice of Termination. Any termination by CCBF
and CCB Bank for Disability or Cause or by Executive for Good
Reason shall be communicated by Notice of Termination to the
other party thereto given in accordance with Section 16(g) of
this Agreement. For purposes of this Agreement, a "Notice of
Termination" means a written notice which (i) indicates the
specific termination provision in this Agreement relied upon,
(ii) to the extent applicable, sets forth in reasonable detail
the facts and circumstances claimed to provide a basis for
termination of Executive's employment under the provision so
indicated, and (iii) if the Date of Termination (as defined
below) is other than the date of receipt of such notice,
specifies the termination date (which date shall be not more than
30 days after the giving of such notice except as otherwise
provided in Section 7(a)). The failure by Executive or CCBF and
CCB Bank to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Disability, Cause
or Good Reason shall not waive any right of Executive or CCBF and
CCB Bank hereunder or preclude Executive or CCBF and CCB Bank
from asserting such fact or circumstance in enforcing Executive's
or CCBF's and CCB Bank's rights hereunder.
(e) Date of Termination. "Date of Termination" means
(i) if Executive's employment is terminated by CCBF and CCB Bank
for Cause or by Executive for Good Reason, the date of receipt of
the Notice of Termination or any later date specified therein, as
the case may be, (ii) if Executive's employment is terminated by
CCBF and CCB Bank other than for Cause or Disability or other
than by reason of death, the date of receipt of the Notice of
Termination, and (iii) if Executive's employment is terminated by
reason of death or Disability, the Date of Termination shall be
the date of death of Executive or the Disability Effective Date,
as the case may be.
8. Obligations of CCBF and CCB Bank Upon Termination
(Other Than In Connection With A Change Of Control).
(a) Other Than For Cause, Death or Disability. If,
during the Employment Period, CCBF shall terminate Executive's
employment other than for Cause, death or Disability, or
Executive shall terminate his employment for Good Reason (and, in
each case, other than in connection with a Change of Control),
then in consideration of Executive's services rendered prior to
such termination;
(i) CCBF and CCB Bank shall pay to Executive a lump
sum in cash within 30 days after the Date of
Termination the aggregate of the following
amounts:
A. the sum of (1) Executive's Base Salary
through the Date of Termination to the extent
not theretofore paid, (2) the product of (x)
Executive's aggregate cash bonus for the last
completed fiscal year, whether paid under
Section 6(b) above and/or otherwise paid to
Executive ("Most Recent Annual Bonus"), and
(y) a fraction, the numerator of which is the
number of days in the current fiscal year
through the Date of Termination, and the
denominator of which is 365, and (3) any
compensation previously deferred by Executive
(together with any accrued interest or
earnings thereon) and any accrued vacation
pay, in each case to the extent not
theretofore paid (the sum of the amounts
described in clauses (1), (2), and (3) shall
be hereinafter referred to as the "Accrued
Obligations"); and
B. the amount equal to the product of (1) the
number of days remaining in the Employment
Period from and after the Date of Termination
(the "Remaining Employment Period"), and (2)
Executive's Base Salary divided by 365; and
C. the amount equal to the product of (1) the
number of days in the Remaining Employment
Period, and (2) Executive's Most Recent
Annual Bonus divided by 365; and
D. an amount equal to the excess of (a) the
actuarial equivalent of Executive's benefits
under the Benefit Plans that are qualified
defined benefit retirement plans (utilizing
actuarial assumptions no less favorable to
Executive than those in effect under the CCB
Financial Corporation Retirement Plan on the
Date of Termination) and any Benefit Plans
that are excess or supplemental retirement
plans in which Executive participates which
Executive would receive if Executive's
employment continued throughout the Remaining
Employment Period, assuming for this purpose
that all accrued benefits are fully vested
and assuming that Executive's compensation in
each remaining year of the Employment Period
is the Base Salary plus the Most Recent
Annual Bonus, over (b) the actuarial
equivalent of Executive's actual benefits
(paid or payable), if any, under such Benefit
Plans as of the Date of Termination; and
(ii) CCBF shall immediately grant, if not theretofore
granted for the fiscal year in which the Date of
Termination occurs, an award under the LTIP of the
same type and in the same quantative amount as
awarded to Executive under the LTIP for the
previous fiscal year (the "Most Recent LTIP
Award"), which award shall be vested and non-
forfeitable as of the Date of Termination
(assuming for calculation purposes that the LTIP's
superior performance objective for such fiscal
year has been met) and shall be exercisable on and
after the first day subsequent to the six (6)
months following the date of grant; and
(iii)To the extent Executive's award under the EMIP for
the previous fiscal year was not an award of a
cash bonus, CCBF shall immediately grant, if not
theretofore granted for the fiscal year in which
the Date of Termination occurs, an award under the
EMIP of the same type and in the same quantative
amount as the non-cash award awarded to Executive
under the EMIP for the previous fiscal year (the
"Most Recent EMIP Award"), which award shall be
distributed as of the Date of Termination
(assuming for calculation purposes that the EMIP's
maximum performance objective for such fiscal year
has been met); and
(iv) for the Remaining Employment Period, or such
longer period as may be provided by the terms of
the appropriate plan, program, practice or policy,
CCBF and CCB Bank shall continue to provide
benefits to Executive and/or Executive's family at
least equal to those which would have been
provided to them in accordance with the Welfare
Benefit Plans described in Section 6(d) of this
Agreement if Executive's employment had not been
terminated; provided, however, that if Executive
becomes re-employed with another employer and is
eligible to receive substantially the same
benefits under the other employer's plans as
Executive would receive under the Welfare Benefit
Plans under this item (iv), the benefits under the
Welfare Benefit Plans shall be secondary to those
provided under such other employer's plans during
such applicable period of eligibility. For
purposes of determining eligibility and years-of-
service credit (but not the time of commencement
of benefits) of Executive for retiree benefits
pursuant to such Welfare Benefit Plans, Executive
shall be considered to have remained employed
throughout the Remaining Employment Period and to
have retired on the last day of such period; and
(v) to the extent not theretofore paid or provided,
CCBF and CCB Bank shall timely pay or provide to
Executive any other amounts or benefits required
to be paid or provided herein or which Executive
is eligible to receive under any Welfare Benefit
Plan or any other plan, program, policy or
practice or contract or agreement of CCBF or CCB
Bank (such other amounts and benefits shall be
hereinafter referred to as the "Other Benefits");
and
(vi) all options to acquire capital stock of CCBF
("Options") previously granted to Executive,
including those awarded under item (ii) above,
that are unvested on the Date of Termination shall
be deemed vested, fully exercisable and non-
forfeitable as of the Date of Termination and all
previously granted Options that are vested, but
unexercised, on the Date of Termination shall
remain exercisable, in each case for the period
during which they would have been exercisable
absent the termination of Executive's employment;
and
(vii)During the Remaining Employment Period, CCBF and
CCB Bank shall maintain the Split Dollar Agreement
and continue to pay all premiums due under the
Split Dollar Agreement and the Insurance Policy;
provided, however, that upon or at any time prior
to the expiration of the Remaining Employment
Period, Executive or the then owner of the
Insurance Policy may terminate the Split Dollar
Agreement and the Collateral Assignment by paying
to CCBF and/or CCB Bank an amount equal to the
total amount of the premiums advanced by CCBF
and/or CCB Bank in accordance with the Split
Dollar Agreement as of the date of the termination
of the Split Dollar Agreement, minus any
withdrawals of cash value or loans proceeds
received by CCBF and/or CCB Bank from the cash
value of the Insurance Policy and which were made
to CCBF and/or CCB Bank as of the date of the
termination of the Split Dollar Agreement (such
payment may, in the discretion of Executive or
other owner of the policy, be made in cash or may
be accomplished by means of a loan or withdrawal
of cash values of the Insurance Policy which is
authorized by the Executive or such other owner of
the Insurance Policy) (the "Insurance Policy Buy-
Out Option");
(viii)provided, however, that notwithstanding any
provision of this Agreement to the contrary,
Executive shall forfeit his right to receive, or,
to the extent such amounts have previously been
paid to Executive, shall repay in full to CCBF or
CCB Bank, as applicable, with interest at 8% per
annum within 30 days of a final determination of
Executive's liability therefor as set forth below,
the sum of the amounts described in Section
8(a)(i)(B) and (C) of this Agreement if any time
during the Employment Period or the Remaining
Employment Period (the "Restricted Period")
Executive violates the restrictive covenants set
forth in Section 13 of this Agreement. Any
determination of whether Executive has violated
such covenants shall be made by arbitration in
Durham, North Carolina under the Rules of
Commercial Arbitration (the "Rules") of the
American Arbitration Association, which Rules are
deemed to be incorporated by reference herein.
(b) Death. If Executive's employment is terminated by
reason of Executive's death during the Employment Period, this
Agreement shall terminate without further obligations to
Executive's legal representatives under this Agreement, except
that; (i) Accrued Obligations shall timely be paid as provided
below; (ii) Other Benefits shall be timely paid or provided as
described below; (iii) all Options previously granted to
Executive that vested at or prior to the Date of Termination
shall remain exercisable for the longer of twelve (12) months and
the exercise period in effect immediately prior to the Date of
Termination; (iv) all Options previously granted to Executive and
scheduled to vest in the year of death shall immediately vest and
be exercisable for the exercise period set forth in the
applicable grants; and (v) Executive's rights to all benefits
under all Benefit Plans that are "non-qualified" plans shall be
100% vested, regardless of Executive's age or years of service,
at the time of Executive's death. Accrued Obligations shall be
paid to Executive's estate or beneficiary, as applicable, in a
lump sum in cash within 30 days of the Date of Termination. With
respect to the provision of Other Benefits, the term Other
Benefits as utilized in this Section 8(b) shall include, without
limitation, and Executive's estate and/or beneficiaries shall be
entitled to receive, all benefits under CCBF's and CCB Bank's
plans, programs, practices and policies relating to death
benefits, if any, as are applicable generally to senior executive
employees of CCBF or CCB Bank and their beneficiaries, and on the
same basis as such senior executive employees and their
beneficiaries. Without limiting the foregoing, for one (1) year
after Executive's death, CCBF and CCB Bank shall pay any premium
required for any "qualified beneficiary" to continue his or her
health care coverage in accordance with Title I, Part 6 of the
Employee Retirement Security Act of 1974, as amended.
(c) Disability. If Executive's employment is
terminated by reason of Executive's Disability during the
Employment Period, this Agreement shall terminate without further
obligations to Executive, except that: (i) Accrued Obligations
shall be timely paid as provided below; (ii) Other Benefits shall
be timely paid or provided as described below; (iii) all Options
that are" incentive stock options" ("ISOs"), as described in
Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code"), and that vested at or prior to the Date of Termination
shall remain exercisable for the lesser of twelve (12) months and
the period of exercise in effect immediately prior to the Date of
Termination; (iv) all Options previously granted and scheduled to
vest in the year in which the Date of Termination occurs shall
immediately vest and be exercisable (A) in the case of ISOs, for
twelve (12) months from the Date of Termination, and (B) in the
case of Options that are not ISOs, for the exercise period set
forth in the applicable grant; (v) all other Options that vested
at or prior to the Date of Termination shall remain exercisable
for the period of exercise in effect immediately prior to the
Date of Termination; and (vi) Executive may exercise his
Insurance Plan Buy-Out Option on the Date of Termination.
Accrued Obligations shall be paid to Executive in a lump sum in
cash within 30 days of the Date of Termination. With respect to
the provision of Other Benefits, the term Other Benefits as
utilized in this Section 8(c) shall include, without limitation,
and Executive shall be entitled after the Date of Termination to
receive, all disability and other benefits under all Welfare
Benefit Plans and all other plans, programs, practices, and
policies of CCBF and CCB Bank relating to disability, if any, as
are applicable generally to senior executive employees of CCBF
and CCB Bank and their families, and on the same basis as such
senior executive employees and their families.
(d) Cause. If Executive's employment shall be
terminated for Cause during the Employment Period, this Agreement
shall terminate without further obligations to Executive, except
that (i) the Accrued Obligations shall be paid in a lump sum in
cash within 30 days of the Date of Termination, and (ii) Other
Benefits shall be paid or provided in a timely manner, in each
case to the extent theretofore unpaid; provided, however, that
Executive's right to continue to participate in Welfare Benefit
Plans shall terminate on the 30th day following the Date of
Termination, subject to his rights under the Consolidated Omnibus
Budget Reconciliation Act of 1985, 29 U.S.C. 1161 et seq.
9. Termination In Connection With a Change of Control.
(a) Change of Control Termination. In the event that
during the Employment Period, CCBF and CCB Bank terminate
Executive's employment other than for Cause or Disability or
Executive terminates such employment for Good Reason, in any of
the foregoing cases within one (1) year after a Change of Control
(each a "Change of Control Termination"), Executive shall be
entitled to receive the payments and benefits specified in this
Section 9. The date on which CCBF and CCB Bank or Executive
receives notice in accordance with Section 16(g) of a Change of
Control Termination shall be deemed the Change of Control
Termination Date.
(b) Definition of Change of Control. A Change of
Control shall be deemed to have occurred upon: (i) any "Person"
or "Group" (as defined in or pursuant to Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934, as amended (the "1934
Act"), but not including CCBF, CCB Bank, any other Subsidiary or
any "employee benefit plan" (as defined in or pursuant to the
Employee Retirement Income Security Act of 1974, 29 U.S.C.
1002(3), and as used herein "Person" or "Group") becoming the
"beneficial owner" (as defined in Rule 13d-3 under the 1934 Act)
or otherwise acquiring control, directly or indirectly, of
securities of CCBF representing twenty-five percent (25%) or more
of the voting power of CCBF's then outstanding securities; (ii)
the acquisition by any Person or Group in any manner of the
ability to elect, or to control the election, of a majority of
the directors of CCBF or CCB Bank; (iii) the merger of CCBF or
CCB Bank into another entity, the merger of any entity into CCBF
or CCB Bank or the acquisition of assets by CCBF or CCB Bank, in
any such case with the result that the beneficial owners of
CCBF's and CCB Bank's outstanding securities immediately prior to
such transaction do not beneficially own more than sixty percent
(60%) of CCBF's and CCB Bank's outstanding securities after the
consummation of such transaction; (iv) the sale or other transfer
of more than fifty percent (50%) of the assets of CCBF or CCB
Bank to any entity not controlled by CCBF; (v) the consummation
of any transaction by CCBF or CCB Bank that results (A) in the
majority of the Boards of Directors of CCBF and CCB Bank after
the consummation of such transaction not being composed of
Incumbent Directors, or (B) the beneficial owners of CCBF's
outstanding securities immediately prior to the consummation of
such a transaction not beneficially owning more than sixty
percent (60%) of CCBF's outstanding securities after such
transaction; or (vi) the occurrence of any other event or
circumstance which is not described in the foregoing provisions
of this Section 9(b) but which the CCBF Board determines affects
control of CCBF and/or CCB Bank and constitutes a Change of
Control for purposes of this Agreement. The term "Incumbent
Director" shall mean any director who as of the Effective Date
was a member of the CCBF Board or the Bank Board, or any
individual becoming a member of the CCBF Board or the Bank Board
subsequent to the Effective Date whose election by CCBF
shareholders or by the shareholder of CCB Bank, as applicable,
was recommended by at least two-thirds (2/3) of the then
Incumbent Directors on the CCBF Board or the Bank Board, as
applicable.
Notwithstanding the foregoing, a Change of Control shall not
include any transaction to which Executive consents in a writing
specifically noting this provision of this Agreement.
(c) Change of Control Payments and Benefits. Upon a
Change of Control Termination:
(i) CCBF and CCB Bank shall pay to Executive in a
lump sum in cash within 30 days after the
date of the Change In Control Termination
Date the aggregate of the following amounts:
(A) the sum of the Accrued Obligations; and
(B) an amount equal to 2.99 times the total
of Executive's Base Salary and Most
Recent Annual Bonus; and
(C) an amount equal to the excess of (a) the
actuarial equivalent of the benefits
under CCBF's Benefit Plans that are
qualified defined benefit retirement
plans (utilizing actuarial assumptions
no less favorable to Executive than
those in effect under the CCB Financial
Corporation Retirement Plan on the
Change of Control Termination Date) and
any Benefit Plan that are excess or
supplemental retirement plans in which
Executive participates which Executive
would receive if Executive's employment
continued throughout the Remaining
Employment Period, assuming for this
purpose that all accrued benefits are
fully vested, and, assuming that
Executive's compensation in each
remaining year of the Employment Period
is the Base Salary plus the Most Recent
Annual Bonus, over (b) the actuarial
equivalent of Executive's actual
benefits (paid or payable), if any,
under such Benefit Plans as of the
Change of Control Termination Date; and
(ii) Unless the relevant Change of Control is a
merger of CCBF or CCB Bank with another
Person or entity which is intended to be
accounted for under the pooling-of-interests
method and which has been approved by the
vote of such number of Incumbent Directors as
comprised a majority of the CCBF Board or the
Bank Board, as applicable, CCBF shall
immediately grant, if not theretofore granted
for the fiscal year in which the Change of
Control Termination Date occurs, an award
under the LTIP of the same type and in the
same quantative amount as the Most Recent
LTIP Award, which award shall be vested and
non-forfeitable as of the Change of Control
Termination Date (assuming for calculation
purposes that the LTIP's superior performance
objective for such fiscal year has been met)
and shall be exercisable on and after the
first day subsequent to the six (6) months
following the date of grant; and
(iii)CCBF shall immediately grant, if not
theretofore granted for the fiscal year in
which the Date of Termination occurs, an
award under the EMIP of the same type and in
the same quantative amount as the Most Recent
EMIP Award, which award shall be distributed
as of the Change of Control Termination Date
(assuming for calculation purposes that the
EMIP's maximum performance objective for such
fiscal year has been met); and
(iv) for the number of days remaining in the
Employment Period from and after the Change
of Control Termination Date (the "Continuing
Period"), or such longer period as may be
provided by the terms of the appropriate
plan, program, practice or policy, CCBF and
CCB Bank shall continue benefits to Executive
and/or Executive's family at least equal to
those which would have been provided to them
in accordance with the Welfare Benefit Plans
described in Section 6(d) of this Agreement
if Executive's employment had not been
terminated; provided, however, that if
Executive becomes re-employed with another
employer and is eligible to receive
substantially the same benefits under the
other employer's plans as Executive would
receive under the Welfare Benefit Plans under
this item (iv), the benefits under the
Welfare Benefit Plans shall be secondary to
those provided under such other plans during
such applicable period of eligibility. For
purposes of determining eligibility and years-
of-service credit (but not the time of
commencement of benefits) of Executive for
retiree benefits pursuant to such Welfare
Benefit Plans, Executive shall be considered
to have remained employed through the
Continuing Period and to have retired on the
last day of such period; and
(v) all Options previously granted to Executive
that are unvested as of the Change of Control
Termination Date shall be deemed vested,
fully exercisable and non-forfeitable as of
the Change of Control Termination Date
(provided, however, that Options granted less
than six (6) months before the Change of
Control Termination Date shall not be
exercisable until the first day subsequent to
the six (6) months following their dates of
grant) and all previously granted Options
that are vested, but unexercised, on the
Change of Control Termination Date shall
remain exercisable, in each case for the
period during which they would have been
exercisable absent the termination of
Executive's employment; and
(vi) Executive's benefits under all Benefit Plans
that are non-qualified plans shall be 100%
vested, regardless of Executive's age or
years of service, as of the Change of Control
Termination Date; and
(vii)CCBF and CCB Bank shall maintain and continue
to pay during the Continuing Period all
premiums due under the Split Dollar Agreement
and the Insurance Policy; provided, however,
that upon or at any time prior to the
expiration of the Continuing Period,
Executive may exercise his Insurance Policy
Buy-Out Option.
10. Additional Payments
(a) Amount of Additional Payments. Anything in this
Agreement seemingly to the contrary notwithstanding, in the event
it shall be determined that any or the aggregate of all payments,
distributions, accelerations of vesting, awards and provisions of
benefits by CCBF and/or CCB Bank to or for the benefit of the
Executive (whether paid or payable, distributed or distributable,
accelerated, awarded or provided pursuant to the terms of this
Agreement or otherwise) (a "Payment") would constitute an "excess
parachute payment" within the meaning of Section 280G of the Code
and subject to the excise tax imposed by Section 4999 of the Code
(the "Excise Tax"), then prior to the making of any Payment to
the Executive, a calculation shall be made of the amount of the
Excise Tax and an additional cash payment (the "Additional
Payment") shall be promptly made to the Executive in the sum of
(i) the Excise Tax and (ii) the total of any Excise Tax payable
on the amounts specified in item (i) and this item (ii). In
addition, if it shall be determined at any time by reference to
Internal Revenue Service ("IRS") regulations or rulings, as a
consequence IRS audits or assessments of Executive (or in
settlement thereof), by reference to the terms of the final
judgment of a court or other judicial body of competent
jurisdiction or as a result of other similar events requiring
Executive to pay an Excise Tax or any income or other excise tax
on the amounts specified in this Section 10(a), that an
Additional Payment made was less than the sums specified in items
(i) and (ii) above, CCBF and CCB Bank promptly shall make a
further cash payment to Executive in the sum of (x) such deficit
and (y) any Excise Tax on such further cash payment.
(b) Determination of Excise Tax and Other Amounts.
The determination of whether an Excise Tax would be imposed, the
amount of such Excise Tax, and the calculation of the amounts
referred to in Section 10(a) shall be made by CCBF's and CCB
Bank's regular independent accounting firm or, at the election of
Executive, another nationally recognized independent accounting
firm (either, the "Accounting Firm") which shall provide detailed
supporting analyses and calculations. All fees and expenses of
the Accounting Firm shall be borne solely by CCBF and CCB Bank.
Any determination by the Accounting Firm shall be binding upon
CCBF, CCB Bank and Executive.
11. Non-Exclusivity of Rights. Nothing in this Agreement
shall prevent or limit Executive's continuing or future
participation in any plan, program, policy, or practice provided
by CCBF, CCB Bank or any other Subsidiary and for which Executive
may qualify, nor, subject to Section 14(e), shall anything herein
limit or otherwise affect such rights as Executive may have under
any contract or agreement with CCBF, CCB Bank or any other
Subsidiary. Amounts which are vested benefits or which Executive
is otherwise entitled to receive under any plan, policy, practice
or program of or any contract or agreement with CCBF, CCB Bank or
other Subsidiary at or subsequent to a Date of Termination or
Change of Control Termination Date shall be payable in accordance
with such plan, policy, practice or program or such contract or
agreement except as explicitly modified by this Agreement.
12. Full Settlement. CCBF's and CCB Bank's obligation to
make the payments provided for in this Agreement and otherwise to
perform their obligations hereunder shall not be affected by any
set-off, counterclaim, recoupment, defense or other claim, right
or action which CCBF or CCB Bank may have against Executive or
others. In no event shall Executive be obligated to seek other
employment or take any other action by way of mitigation of the
amounts payable to Executive under any of the provisions of this
Agreement; provided, however, that Executive's right to receive
benefits under Welfare Benefit Plans to the extent that Executive
obtains other employment shall be limited as provided in Sections
8(a)(iv) and 9(c)(iv). CCBF and CCB Bank agree to pay as
incurred, to the full extent permitted by law, all legal fees and
expenses which Executive may reasonably incur as a result of any
contest (regardless of the outcome thereof) by CCBF and CCB Bank,
Executive or others of the validity or enforceability of, or
liability under, any provision of this Agreement or any guarantee
of performance thereof (including as a result of any contest by
Executive about the amount of any payment pursuant to this
Agreement), plus in each case interest on any delayed payment at
the "applicable federal rate" provided for in Section
7872(f)(2)(A) of the Code.
13. Covenants.
(a) Covenant Not to Compete. During the Restricted
Period, Executive shall not, within the States of North Carolina
and South Carolina, directly or indirectly, in any capacity,
render his services, or engage or have a financial interest in,
any business that shall be competitive with any of those business
activities in which CCBF or any of its Subsidiaries that are
financial institutions, is engaged as of the date of this
Agreement (a "Competition"), which business activities include
the provision of banking services (collectively, the "Business");
provided, however, that Executive's ownership of less than three
percent (3%) of the outstanding securities of any Competitor that
has a class of securities listed on a securities exchange or
qualified for quotation on any over-the-counter market shall not
be a violation of the foregoing. If a court determines that the
foregoing restrictions are too broad or otherwise unreasonable
under applicable law, including with respect to time, scope or
territory, the court is hereby requested and authorized by the
parties hereto to revise the foregoing restrictions to include
the maximum restrictions allowable under applicable law.
(b) Covenant No to Solicit Customers. During the
Restricted Period, Executive shall not, directly or indirectly,
individually or on behalf of any other person or entity (other
than CCBF or a Subsidiary), solicit the provision of banking
services to any person, partnership, corporation or other entity
who is or was (i) a customer of any Subsidiary during any part of
the twelve (12) month period immediately prior to the Date of
Termination, or (ii) a potential customer to whom any Subsidiary
solicited the provision of banking services during any part of
the twelve (12) month period immediately prior to the Date of
Termination.
(c) Covenant Not to Solicit Employees. During the
Restricted Period, Executive shall not, directly or indirectly,
individually or on behalf of any other person or entity, solicit,
recruit or entice, directly or indirectly, any employee of CCBF
or any Subsidiary to leave the employment of CCBF or such
Subsidiary to work with Executive or with any person,
partnership, corporation or other entity with whom Executive is
or becomes affiliated or associated.
(d) Reasonableness of Scope and Duration. The parties
hereto agree that the covenants and agreements contained in this
Section 13 are reasonable in their time, territory and scope, and
they intend that they be enforced, and no party shall raise any
issue of the reasonableness of the time, territory or scope of
any such covenants in any proceeding to enforce any such
covenants.
(e) Enforceability. Executive agrees that monetary
damages would not be a sufficient remedy for any breach or
threatened breach of the provisions of this Section 13, and that
in addition to all other rights and remedies available to CCBF,
CCBF shall be entitled to specific performance and injunctive or
other equitable relief as a remedy for any such breach or
threatened breach.
(f) Separate Covenants and Severability. The
covenants and agreements contained in this Section 13 shall be
construed as separate and independent covenants. Should any part
or provision of any such covenant or agreement be held invalid,
void or unenforceable in any court of competent jurisdiction, no
other part or provision of this Agreement shall be rendered
invalid, void or unenforceable by a court of competent
jurisdiction, no other part or provision of this Agreement shall
be rendered invalid, void or unenforceable as a result. If any
portion of the foregoing provisions is found to be invalid or
unenforceable by a court of competent jurisdiction unless
modified, it is the intent of the parties that the otherwise
invalid or unreasonable term shall be reformed, or a new
enforceable term provided, so as to most closely effectuate the
provisions as is validly possible.
(g) Inapplicability. The provisions of this Section
13 shall not be operative upon, or be in any way enforceable
against Executive at or after, a Change of Control Termination or
a termination of Executive's employment by CCBF and CCB Bank
other than for Cause, death or Disability (i.e., a termination
without Cause).
14. Assignment and Successors.
(a) Executive. This Agreement is personal to
Executive and without the prior written consent of CCBF and CCB
Bank shall not be assignable by Executive otherwise than by will
or the laws of descent and distribution. This Agreement shall
inure to the benefit of and be enforceable by Executive's legal
representatives.
(b) CCBF and CCB Bank. This Agreement shall inure to
the benefit of and be binding upon CCBF and CCB Bank and their
respective successors and assigns. Each of CCBF and CCB Bank will
require any successor to it (whether direct or indirect, by stock
or asset purchase, merger, consolidation or otherwise) to all or
substantially all of its business or more than fifty percent
(50%) of its assets to assume expressly and agree to perform this
Agreement in the same manner and to the same extent it would be
required to perform it if no such succession had taken place. As
used in this Agreement, "CCBF" and "CCB Bank" shall mean CCBF and
CCB Bank as hereinbefore defined and any successor to their
respective businesses and/or assets as aforesaid which assumes
and agrees to perform this Agreement by operation of law, or
otherwise.
15. Regulatory Intervention. Notwithstanding anything in
this Agreement to the contrary, the obligations of CCBF and CCB
Bank under this Agreement are subject to the following terms and
conditions:
(a) If the Executive is suspended and/or temporarily
prohibited from participating in the conduct of CCBF's or CCB
Bank's affairs by a notice served under Section 8(e)(3) or (g)(1)
of the Federal Deposit Insurance Act (12 U.S.C. 1818 (e)(3) and
(g)(1)), CCBF's or CCB Bank's obligations hereunder, as
applicable, shall be suspended as of the date of service unless
stayed by appropriate proceedings. If the charges in the notice
are dismissed, all of CCBF's or CCB Bank's obligations, as
applicable, which were suspended shall be reinstated.
(b) If Executive is removed and/or permanently
prohibited from participating in the conduct of CCBF's or CCB
Bank's affairs by an order issued under Section 8(e)(4) or (g)(1)
of the Federal Deposit Insurance Act (12 U.S.C. 1818 (e)(4) and
(g)(1)), all obligations of CCBF or CCB Bank, as applicable,
under this Agreement shall terminate as of the effective date of
the order, but vested rights of the parties shall not be
affected.
(c) If CCB Bank is in default (as defined in Section
3(x)(1) of the Federal Deposit Insurance Act (12 U.S. C. 1813
(x)(1)), all obligations of CCB Bank under this Agreement shall
terminate as of the date of default, but any vested rights of
Executive shall not be affected.
(d) All obligations of CCB Bank under this Agreement
shall be terminated, except to the extent determined that
continuation of the contract is necessary for the continued
operation of CCB Bank, if so ordered by the North Carolina
Commissioner of Banks (the "Commissioner") at the time the
Federal Deposit Insurance Corporation ("FDIC") enters into an
agreement to provide assistance to or on behalf of CCB Bank under
the authority contained in Section 13(c) of the Federal Deposit
Insurance Act (12 U.S.C. 1823 (c)), or if so ordered by the
Commissioner at the time the FDIC approves a supervisory merger
to resolve problems related to operation of CCB Bank or when CCB
Bank is determined by the Commissioner to be in an unsafe or
unsound condition. Any rights of Executive that shall have
vested under this Agreement shall not be affected by such action.
(e) With regard to the provisions of this Section
15(a) through (d):
(i) CCBF and CCB Bank agree to use their best efforts
to oppose any such notice of charges as to which
there are reasonable defenses;
(ii) In the event the notice of charges is dismissed or
otherwise resolved in a manner that will permit
CCBF and/or CCB Bank to resume their obligations
to pay compensation hereunder, CCBF and/or CCB
Bank will promptly make such payment hereunder;
and
(iii) During any period of suspension under Section
15(a), the vested rights of Executive shall not be
affected except to the extent precluded by such
notice.
(f) CCB Bank's obligations to provide compensation or
other benefits to Executive under this Agreement shall be
terminated or limited to the extent required by the provisions of
any final regulation or order of the FDIC promulgated under
Section 18(k) of the Federal Deposit Insurance Act (12 U.S.C.
1828(k)) limiting or prohibiting any "golden parachute payment"
as defined therein, but only to the extent that the compensation
or payments to be provided by CCB Bank under this Agreement are
so prohibited or limited.
(g) It is intended by CCBF, CCB Bank and Executive
that if only one of CCBF and CCB Bank is prohibited from
fulfilling its obligations under this Agreement in any of the
circumstances described in the above provisions of this Section
15 (whether for a period or permanently), the other shall remain
obligated to fulfill all obligations of CCBF and CCB Bank under
this Agreement.
16. Miscellaneous.
(a) No Mitigation. Executive shall not be required to
mitigate the amount of any payment provided for in this Agreement
by seeking other employment or otherwise and, except as provided
in Sections 8(a)(iv) and 9(c)(iv), no such payment shall be
offset or reduced by the amount of any compensation or benefits
provided to Executive in any subsequent employment.
(b) Waiver. Failure of either part to insist, in one
or more instances, on performance by the other in strict
accordance with the terms and conditions of this Agreement shall
not be deemed a waiver or relinquishment of any right granted in
this Agreement or of the future performance of any such term or
condition or of any other term or condition of this Agreement,
unless such waiver is contained in a writing signed by the party
making the waiver.
(c) Severability. If any provision or covenant, of
any part thereof, of this Agreement should be held by any court
to be invalid, illegal or unenforceable, either in whole or in
part, such invalidity, illegality or unenforceability shall not
affect the validity, legality or enforceability of the remaining
provisions or covenants, or any part thereof, of this Agreement,
all of which shall remain in full force and effect.
(d) Other Agents. Nothing in this Agreement is to be
interpreted as limiting CCBF or CCB Bank from employing other
personnel on such terms and conditions as may be satisfactory to
it.
(e) Entire Agreement. Except as provided herein, this
Agreement contains the entire agreement among CCBF, CCB Bank and
Executive, with respect to the subject matter hereof and
supersedes and invalidates any previous employment and severance
agreements or contracts with Executive, including, without
limitation, that certain Change of Control Agreement, dated July
17, 1995, by and between CCB Bank and Executive which is amended
and restated herein. No representations, inducements, promises
or agreements, oral or otherwise, which are not embodied herein,
shall be of any force or effect.
(f) Governing Law. Except to the extent preempted by
federal law, the laws of the State of North Carolina shall govern
this Agreement in all respects, whether as to its validity,
construction, capacity, performance or otherwise.
(g) Notices. All notices, requests, demands and other
communications required or permitted hereunder shall be in
writing and shall be deemed to have been duly given if delivered
or seven (7) days after mailing if mailed, first class, certified
mail, postage prepaid:
To CCBF and CCB Bank:
CCB Financial Corporation
111 Corcoran Street
Durham, North Carolina 27702-0931
Attention: Chairman of the Board
To Executive:
Richard L. Furr
3013 Travistock Drive
Durham, North Carolina 27712
Any party may change the address to which notices, requests,
demands and other communications shall be delivered or mailed by
giving notice thereof to the other party in the same manner
provided herein.
(h) Amendments and Modifications. This Agreement may
be amended or modified only by a writing signed by all parties
hereto, which makes specific reference to this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed
and delivered this Employment and Amended and Restated Change of
Control Agreement as of the date first above written.
CCB FINANCIAL CORPORATION
By:/s/ W. L. BURNS, JR.
Title: Chairman of the Board
CENTRAL CAROLINA BANK AND
TRUST COMPANY
By: /s/ W. L. BURNS, JR.
Title: Chairman of the Board
EXECUTIVE:
/s/ RICHARD L. FURR
Richard L. Furr
ccb\furr.agm
EMPLOYMENT AND AMENDED AND
RESTATED CHANGE OF CONTROL AGREEMENT
THIS EMPLOYMENT AND AMENDED AND RESTATED CHANGE OF CONTROL
AGREEMENT (this "Agreement") is made and entered into this 21st
day of January, 1998 by and among CCB Financial Corporation, a
North Carolina corporation ("CCBF"), Central Carolina Bank and
Trust Company, a North Carolina commercial bank ("CCB Bank"), and
J. Scott Edwards ("Executive").
BACKGROUND
WHEREAS, Executive is an Executive Vice President of CCBF
and of CCB Bank, the primary banking subsidiary of CCBF; and
WHEREAS, the expertise and experience of Executive, his
knowledge of the affairs of CCBF and its direct and indirect
subsidiaries (the "Subsidiaries"), and his relationships and
reputation in the financial institutions industry are extremely
valuable to CCBF, CCB Bank and the other Subsidiaries; and
WHEREAS, it is in the best interests of CCBF, its
Subsidiaries and its shareholders to maintain an experienced and
sound executive management team to manage CCBF, CCB Bank and the
other Subsidiaries and to further CCBF's overall strategies to
protect and enhance the value of its shareholders' investments;
and
WHEREAS, CCBF, CCB Bank and Executive desire to enter into
this Agreement to establish the scope, terms and conditions of
Executive's employment by CCBF and CCB Bank; and
WHEREAS, CCB Bank and Executive desire to amend and restate
herein the Change of Control Agreement dated July 17, 1996
between CCB Bank and Executive in order to continue the provision
of security to, and to continue to insure the loyalty of,
Executive in the event of a change in control of CCBF or CCB
Bank, and CCBF desires to become obligated, jointly and severally
with CCB Bank, under the provisions of such agreement as amended
and restated herein.
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants and agreements set forth herein, and other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Effective Date. The effective time and date of this
Agreement shall be deemed to be 12:00:01 o'clock, a.m., on the
date of its making set forth above (the "Effective Date").
2. Definitions. The following defined terms are defined
in the referenced Sections of this Agreement.
Term Section
Accrued Obligations Section 8(a)(i)(A)
Additional Payment Section 10(a)
Base Salary Section 6(a)
Bank Board Section 6(a)
Benefit Plans Section 6(c)
Cause Section 7(b)
CCBF Board Section 3
Change of Control Section 9(b)
Change of Control Termination Section 9(a)
Change of Control Termination Date Section 9(a)
Code Section 8(c)
Collateral Assignment Section 6(e)
Competitor Section 13(a)
Continuing Period Section 9(c)(iv)
Commissioner Section 15(d)
Date of Termination Section 7(e)
Disability Section 7(a)
Disability Effective Date Section 7(a)
Effective Date Section 1
EMIP Section 6(b)(i)
Employment Period Section 4
Excise Tax Section 10(a)
FDIC Section 15(d)
Good Reason Section 7(c)
Group Section 9(b)
Incumbent Directors Section 9(b)
Insurance Policy Section 6(e)
Insurance Policy Buy-Out Option Section 8(a)(vii)
IRS Section 10(a)
ISOs Section 8(c)
LTIP Section 6(b)(ii)
Most Recent Annual Bonus Section 8(a)(i)(A)
Most Recent EMIP Award Section 8(a)(i)(A)
Most Recent LTIP Award Section 8(a)(ii)
1934 Act Section 9(b)
Notice of Termination Section 7(d)
Other Benefits Section 8(a)(v)
Options Section 8(a)(vi)
Payment Section 10(a)
Person Section 9(b)
Remaining Employment Period Section 8(a)(i)(B)
Restricted Period Section 8(a)(viii)
Split Dollar Agreement Section 6(e)
Subsidiaries Preamble
Welfare Benefit Plans Section 6(d)
3. Employment. Executive will be employed as the
Executive Vice President in charge of the Administrative Group of
each of CCBF and CCB Bank. Executive's responsibilities, duties,
prerogatives and authority in such executive offices, and the
clerical, administrative and other support staff and office
facilities provided to him, shall be those customary for the
principal executive officer of publicly held corporations
generally and of holding companies and financial institutions
that are a part of the financial institution industry
specifically. In his executive capacities Executive shall report
to the President and Chief Executive Officer of CCBF and CCB
Bank, as applicable.
4. Employment Period. Unless earlier terminated in
accordance with Sections 7 or 9 hereof, Executive's employment
shall be for a renewing three (3) year term (the "Employment
Period"), beginning at the Effective Date. The Employment Period
shall, without further action by Executive, CCBF or CCB Bank, be
extended for an additional one (1) year on each anniversary of
the Effective Date, such that the remaining term of the
Employment Period shall continue to be three (3) years; provided,
further, however, that CCBF and CCB Bank or Executive may, by
notice to the other, cause the Employment Period to cease to
extend automatically as of a specific anniversary of the
Effective Date. Such notice must be given and received at least
eleven (11) months and thirty-one (31) days prior to the
anniversary of the Effective Date on which it is to be effective.
Upon the effectiveness of such notice, the Employment Period
shall be fixed at three (3) years, and the Employment Period
shall terminate upon the expiration of such three-year period.
5. Extent of Service. During the Employment Period, and
excluding any periods of vacation, sick or other leave to which
Executive is entitled under this Agreement, Executive agrees to
devote reasonable attention and time during normal business hours
to the business and affairs of CCBF and CCB Bank, and, to the
extent necessary to discharge the responsibilities assigned to
Executive hereunder, to use Executive's reasonable best efforts
to perform faithfully and efficiently his responsibilities and
duties under this Agreement. During the Employment Period it
shall not be a violation of this Agreement for Executive to (i)
devote reasonable periods of time to charitable, trade
association, community and similar activities, and/or (ii) manage
personal business interests and investments, so long as such
activities do not interfere with the performance of Executive's
responsibilities and duties under this Agreement. It is
expressly understood and agreed that to the extent that any such
activities have been conducted by Executive prior to the
Effective Date, the continued conduct of such activities (or the
conduct of activities similar in nature and scope thereto)
subsequent to the Effective Date shall not thereafter be deemed
to interfere with the performance of Executive's responsibilities
and duties hereunder.
6. Compensation and Benefits.
(a) Base Salary. For the fiscal year in which the
Employment Period commences, CCBF will pay to Executive a base
salary in the amount of $290,000 per year ("Base Salary"), less
normal withholdings, payable in equal monthly or more frequent
installments as are customary under CCB Bank's payroll practices
from time to time. The Compensation Committee of the CCBF Board
shall review Executive's total compensation annually and in its
sole discretion may adjust Executive's Base Salary from year to
year, but during the Employment Period neither the Compensation
Committee, the CCBF Board nor the Board of Directors of CCB Bank
(the "Bank Board") may decrease Executive's Base Salary below
$290,000, and periodic increases, once granted, shall not be
subject to revocation. The annual review of Executive's total
compensation by the Compensation Committee will consider, among
other things, changes in the cost of living, Executive's own
performance and CCBF's consolidated performance.
(b) Incentive Plans. During the Employment Period,
Executive shall be entitled:
(i) to participate in CCBF's Executive Management
Incentive Plan ("EMIP"), and any successor or
substitute plan to the EMIP, in at least as
favorable a manner as any other participant of the
same rank. Executive shall recommend annually to
the Compensation Committee appropriate minimum,
target and maximum performance objectives, and
appropriate measures and weights for the
components of the performance objectives, for the
EMIP generally and shall also recommend minimum,
target and maximum bonus levels for the executive
employee participants in the EMIP (taking into
consideration any contractual rights of any such
participants). Executive's annual minimum, target
and maximum bonus levels under the EMIP shall be
0%, 40%, and 80% of Executive's Base Salary for
such year or such greater levels as the
Compensation Committee may determine Executive's
individual performance warrants or as are
necessary to satisfy the provisions of the first
sentence of this item (i); and
(ii) to participate in CCBF's Long-Term Incentive Plan
("LTIP"), and any successor or substitute plan to
the LTIP, in at least as favorable a manner as any
other participant of the same rank.
(c) Savings and Retirement Plans. During the
Employment Period, Executive shall be entitled to participate in
all savings, pension and retirement plans (including supplemental
retirement plans), practices, policies and programs applicable
generally to senior executive employees of CCBF or CCB Bank (the
"Benefit Plans"), and on at least as favorable a basis as any
other participant of the same rank. Without limiting the
foregoing, Benefit Plans shall include the CCB Financial
Corporation Retirement Plan, the CCB Financial Corporation
Retirement Savings Plan, the CCB Financial Corporation Retirement
Income Equity Plan, the CCB Financial Corporation Retirement
Savings Equity Plan and any substitute and successor plan to any
of the foregoing.
(d) Welfare Benefit Plans. During the Employment
Period, Executive and/or Executive's family, as the case may be,
shall be eligible for participation in and shall receive all
benefits under all welfare benefit plans, practices, policies and
programs provided by CCBF or CCB Bank (including, without
limitation, medical, hospitalization, prescription, dental,
disability, employee life, group life, accidental death and
dismemberment, and travel accident insurance plans and programs)
to the extent applicable generally to senior executive employees
of CCBF or CCB Bank ("Welfare Benefit Plans").
(e) Life Insurance. During the Employment Period,
CCBF and CCB Bank shall maintain a split-dollar life insurance
agreement with Executive (the "Split Dollar Agreement") and,
together with Executive, maintain a related life insurance policy
to be owned by Executive (the "Insurance Policy") and
collaterally assigned to CCBF and/or CCB Bank (the "Collateral
Assignment"), providing coverage on the life of Executive for the
benefit of Executive's estate, beneficiaries designated by him,
and/or trusts created by him. The amount of life insurance
coverage provided to, and the terms, provisions and conditions of
the coverage maintained for, Executive shall be at least as much
and at least as favorable to Executive as the amount, terms,
provisions and conditions of coverage provided and maintained, as
applicable, under split-dollar insurance agreements and policies
maintained for other employees of CCBF and/or CCB Bank of the
same rank (taking into consideration differences in age and
health). Any exercise of the Insurance Policy Buy-Out Option (as
defined below) by Executive shall release CCBF and CCB Bank from
any further obligation to maintain the Split Dollar Agreement or
the Insurance Policy.
(f) Expenses. During the Employment Period, Executive
shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by Executive in accordance with the
policies, practices and procedures of CCBF and CCB Bank to the
extent applicable generally to other senior executive employees
of CCBF or CCB Bank.
(g) Fringe and Similar Benefits. During the
Employment Period, Executive shall be entitled to fringe benefits
in accordance with the plans, practices, programs and policies of
CCBF and CCB Bank in effect for senior executive employees of
CCBF or CCB Bank. In addition to, and not in lieu of, any other
provision of this Agreement, Executive shall receive annually an
allowance equal to three percent (3%) of his Base Salary for such
fiscal year under CCB Bank's "Senior Officer Perquisites" policy,
payable and available for such uses as are set forth in such
policy.
(h) Vacation, Sick and Other Leave. During the
Employment Period, Executive shall be entitled annually to a
minimum of twenty (20) business days of paid vacation and shall
be entitled to those number of business days of paid disability,
sick and other leave specified in the employment policies of CCBF
or CCB Bank.
(i) Allocation. CCBF and CCB Bank may allocate
between them for accounting and taxation purposes the payment of
compensation to Executive under this Agreement on the basis of
such factors as they deem relevant and appropriate; provided,
however, that CCBF and CCB Bank shall be jointly and severally
liable and obligated to fulfill all obligations to Executive
under this Agreement.
7. Termination of Employment (Other Than In Connection
With A Change Of Control).
(a) Death or Disability. Executive's employment with
CCBF and CCB Bank shall terminate automatically upon Executive's
death during the Employment Period. If the CCBF Board and the
Bank Board determine in good faith that the Disability of
Executive has occurred during the Employment Period (pursuant to
the definition of Disability set forth below), they may give to
Executive written notice in accordance with Section 7(d) and
16(g) of this Agreement of their intention to terminate
Executive's employment. In such event, Executive's employment
with CCBF and CCB Bank shall terminate effective on the 60th day
after receipt of such written notice by Executive (the
"Disability Effective Date"), provided that, within the 30 days
after such receipt, Executive shall not have returned to full-
time performance of Executive's duties. For purposes of this
Agreement, "Disability" shall mean the absence of Executive from
Executive's duties with CCBF and CCB Bank on a full-time basis
for 180 consecutive business days as a result of incapacity due
to mental or physical illness or injury which is determined to be
total and permanent by a physician selected by the CCBF Board and
the Bank Board, or the insurers of CCBF and CCB Bank, and
acceptable to Executive or Executive's legal representative,
which acceptance shall not be unreasonably withheld, subject to
(i) CCBF's and CCB Bank's obligations, and Executive's rights,
under (A) the Americans With Disabilities Act, 42 U.S.C. 1210
et seq., and (B) the Family and Medical Leave Act, 29 U.S.C.
2601 et seq. (and the regulations promulgated under the
foregoing Acts), and (ii) the exclusion from such 180 business
day calculation of any business days constituting vacation days
under Section 6(h) and any business days which an employee is
permitted to be absent under the disability, sick or other leave
policies of CCBF or CCB Bank.
(b) Cause. CCBF and CCB Bank may terminate
Executive's employment with CCBF and CCB Bank for Cause. For
purposes of this Agreement, "Cause" shall mean:
(i) the willful and continued failure of Executive to
perform substantially Executive's duties with CCBF
and CCB Bank, other than any such failure
resulting from Disability, after a written demand
for substantial performance is jointly delivered
to Executive by the CCBF Board and the Bank Board
which specifically identifies the manner in which
the CCBF Board and the Bank Board believe that
Executive has not substantially performed
Executive's duties, or
(ii) the willful engaging by Executive in illegal
conduct or gross misconduct which is materially
and demonstrably injurious to CCBF and CCB Bank.
For purposes of this provision, no act or failure to act on the
part of Executive shall be considered "willful" unless it is
done, or omitted to be done, by Executive in bad faith or without
reasonable belief that Executive's action or omission was in the
best interests of CCBF and CCB Bank. Any act, or failure to act,
based upon authority given pursuant to resolutions duly adopted
by the CCBF Board or the Bank Board or based upon the advice of
counsel for CCBF or CCB Bank shall be conclusively presumed to be
done, or omitted to be done, by Executive in good faith and in
the best interests of CCBF and CCB Bank. The cessation of
employment of Executive shall not be deemed to be for Cause
unless and until there shall have been delivered to Executive
copies of resolutions duly adopted by the affirmative votes of
not less than three-quarters (3/4) of the entire membership of
each of the CCBF Board and the Bank Board at meetings of such
Boards called and held for such purpose (after reasonable notice
is provided to Executive and Executive is given an opportunity,
together with counsel, to be heard before the CCBF Board and the
Bank Board), finding that, in the good faith opinion of each such
Board, Executive is guilty of the conduct described in items (i)
or (ii) above, and specifying the particulars thereof in detail.
(c) Good Reason. Executive's employment may be
terminated by Executive for Good Reason. For purposes of this
Agreement, "Good Reason" shall mean:
(i) the assignment to Executive of any duties or
responsibilities inconsistent in any respect with
Executive's position (including status, offices,
titles, and reporting requirements), authority,
duties, prerogatives or responsibilities as
contemplated by Section 3 of this Agreement, or
any other action by CCBF or CCB Bank which results
in a diminution in such positions, authority,
duties, prerogatives or responsibilities,
excluding for this purposes an isolated,
insubstantial and inadvertent action not taken in
bad faith and which is remedied by CCBF or CCB
Bank, as applicable, promptly after receipt of
notice thereof given by Executive;
(ii) any failure by CCBF or CCB Bank to comply with any
of the provisions of Section 6 of this Agreement,
other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith and
which is remedied by CCBF or CCB Bank, as
applicable, promptly after receipt of notice
thereof given by Executive;
(iii)the requirement by CCBF and/or CCB Bank that
Executive, without his consent, be based or
conduct on an on-going basis more than ten percent
(10%) of his activities under this Agreement at
any office or location more than 35 mile (by most
direct highway route) from the location of the
headquarters building of CCBF and CCB Bank in
Durham, North Carolina as of the Effective Date;
(iv) any purported termination of Executive's
employment under this Agreement otherwise than as
expressly permitted by this Agreement; or
(v) any failure by CCBF and/or CCB Bank to comply with
and satisfy Section 14(b) of this Agreement.
For purposes of this Section 7(c), any good faith determination
of "Good Reason" made by Executive shall be conclusive.
(d) Notice of Termination. Any termination by CCBF
and CCB Bank for Disability or Cause or by Executive for Good
Reason shall be communicated by Notice of Termination to the
other party thereto given in accordance with Section 16(g) of
this Agreement. For purposes of this Agreement, a "Notice of
Termination" means a written notice which (i) indicates the
specific termination provision in this Agreement relied upon,
(ii) to the extent applicable, sets forth in reasonable detail
the facts and circumstances claimed to provide a basis for
termination of Executive's employment under the provision so
indicated, and (iii) if the Date of Termination (as defined
below) is other than the date of receipt of such notice,
specifies the termination date (which date shall be not more than
30 days after the giving of such notice except as otherwise
provided in Section 7(a)). The failure by Executive or CCBF and
CCB Bank to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Disability, Cause
or Good Reason shall not waive any right of Executive or CCBF and
CCB Bank hereunder or preclude Executive or CCBF and CCB Bank
from asserting such fact or circumstance in enforcing Executive's
or CCBF's and CCB Bank's rights hereunder.
(e) Date of Termination. "Date of Termination" means
(i) if Executive's employment is terminated by CCBF and CCB Bank
for Cause or by Executive for Good Reason, the date of receipt of
the Notice of Termination or any later date specified therein, as
the case may be, (ii) if Executive's employment is terminated by
CCBF and CCB Bank other than for Cause or Disability or other
than by reason of death, the date of receipt of the Notice of
Termination, and (iii) if Executive's employment is terminated by
reason of death or Disability, the Date of Termination shall be
the date of death of Executive or the Disability Effective Date,
as the case may be.
8. Obligations of CCBF and CCB Bank Upon Termination
(Other Than In Connection With A Change Of Control).
(a) Other Than For Cause, Death or Disability. If,
during the Employment Period, CCBF shall terminate Executive's
employment other than for Cause, death or Disability, or
Executive shall terminate his employment for Good Reason (and, in
each case, other than in connection with a Change of Control),
then in consideration of Executive's services rendered prior to
such termination;
(i) CCBF and CCB Bank shall pay to Executive a lump
sum in cash within 30 days after the Date of
Termination the aggregate of the following
amounts:
A. the sum of (1) Executive's Base Salary
through the Date of Termination to the extent
not theretofore paid, (2) the product of (x)
Executive's aggregate cash bonus for the last
completed fiscal year, whether paid under
Section 6(b) above and/or otherwise paid to
Executive ("Most Recent Annual Bonus"), and
(y) a fraction, the numerator of which is the
number of days in the current fiscal year
through the Date of Termination, and the
denominator of which is 365, and (3) any
compensation previously deferred by Executive
(together with any accrued interest or
earnings thereon) and any accrued vacation
pay, in each case to the extent not
theretofore paid (the sum of the amounts
described in clauses (1), (2), and (3) shall
be hereinafter referred to as the "Accrued
Obligations"); and
B. the amount equal to the product of (1) the
number of days remaining in the Employment
Period from and after the Date of Termination
(the "Remaining Employment Period"), and (2)
Executive's Base Salary divided by 365; and
C. the amount equal to the product of (1) the
number of days in the Remaining Employment
Period, and (2) Executive's Most Recent
Annual Bonus divided by 365; and
D. an amount equal to the excess of (a) the
actuarial equivalent of Executive's benefits
under the Benefit Plans that are qualified
defined benefit retirement plans (utilizing
actuarial assumptions no less favorable to
Executive than those in effect under the CCB
Financial Corporation Retirement Plan on the
Date of Termination) and any Benefit Plans
that are excess or supplemental retirement
plans in which Executive participates which
Executive would receive if Executive's
employment continued throughout the Remaining
Employment Period, assuming for this purpose
that all accrued benefits are fully vested
and assuming that Executive's compensation in
each remaining year of the Employment Period
is the Base Salary plus the Most Recent
Annual Bonus, over (b) the actuarial
equivalent of Executive's actual benefits
(paid or payable), if any, under such Benefit
Plans as of the Date of Termination; and
(ii) CCBF shall immediately grant, if not theretofore
granted for the fiscal year in which the Date of
Termination occurs, an award under the LTIP of the
same type and in the same quantative amount as
awarded to Executive under the LTIP for the
previous fiscal year (the "Most Recent LTIP
Award"), which award shall be vested and non-
forfeitable as of the Date of Termination
(assuming for calculation purposes that the LTIP's
superior performance objective for such fiscal
year has been met) and shall be exercisable on and
after the first day subsequent to the six (6)
months following the date of grant; and
(iii)To the extent Executive's award under the EMIP for
the previous fiscal year was not an award of a
cash bonus, CCBF shall immediately grant, if not
theretofore granted for the fiscal year in which
the Date of Termination occurs, an award under the
EMIP of the same type and in the same quantative
amount as the non-cash award awarded to Executive
under the EMIP for the previous fiscal year (the
"Most Recent EMIP Award"), which award shall be
distributed as of the Date of Termination
(assuming for calculation purposes that the EMIP's
maximum performance objective for such fiscal year
has been met); and
(iv) for the Remaining Employment Period, or such
longer period as may be provided by the terms of
the appropriate plan, program, practice or policy,
CCBF and CCB Bank shall continue to provide
benefits to Executive and/or Executive's family at
least equal to those which would have been
provided to them in accordance with the Welfare
Benefit Plans described in Section 6(d) of this
Agreement if Executive's employment had not been
terminated; provided, however, that if Executive
becomes re-employed with another employer and is
eligible to receive substantially the same
benefits under the other employer's plans as
Executive would receive under the Welfare Benefit
Plans under this item (iv), the benefits under the
Welfare Benefit Plans shall be secondary to those
provided under such other employer's plans during
such applicable period of eligibility. For
purposes of determining eligibility and years-of-
service credit (but not the time of commencement
of benefits) of Executive for retiree benefits
pursuant to such Welfare Benefit Plans, Executive
shall be considered to have remained employed
throughout the Remaining Employment Period and to
have retired on the last day of such period; and
(v) to the extent not theretofore paid or provided,
CCBF and CCB Bank shall timely pay or provide to
Executive any other amounts or benefits required
to be paid or provided herein or which Executive
is eligible to receive under any Welfare Benefit
Plan or any other plan, program, policy or
practice or contract or agreement of CCBF or CCB
Bank (such other amounts and benefits shall be
hereinafter referred to as the "Other Benefits");
and
(vi) all options to acquire capital stock of CCBF
("Options") previously granted to Executive,
including those awarded under item (ii) above,
that are unvested on the Date of Termination shall
be deemed vested, fully exercisable and non-
forfeitable as of the Date of Termination and all
previously granted Options that are vested, but
unexercised, on the Date of Termination shall
remain exercisable, in each case for the period
during which they would have been exercisable
absent the termination of Executive's employment;
and
(vii)During the Remaining Employment Period, CCBF and
CCB Bank shall maintain the Split Dollar Agreement
and continue to pay all premiums due under the
Split Dollar Agreement and the Insurance Policy;
provided, however, that upon or at any time prior
to the expiration of the Remaining Employment
Period, Executive or the then owner of the
Insurance Policy may terminate the Split Dollar
Agreement and the Collateral Assignment by paying
to CCBF and/or CCB Bank an amount equal to the
total amount of the premiums advanced by CCBF
and/or CCB Bank in accordance with the Split
Dollar Agreement as of the date of the termination
of the Split Dollar Agreement, minus any
withdrawals of cash value or loans proceeds
received by CCBF and/or CCB Bank from the cash
value of the Insurance Policy and which were made
to CCBF and/or CCB Bank as of the date of the
termination of the Split Dollar Agreement (such
payment may, in the discretion of Executive or
other owner of the policy, be made in cash or may
be accomplished by means of a loan or withdrawal
of cash values of the Insurance Policy which is
authorized by the Executive or such other owner of
the Insurance Policy) (the "Insurance Policy Buy-
Out Option");
(viii)provided, however, that notwithstanding any
provision of this Agreement to the contrary,
Executive shall forfeit his right to receive, or,
to the extent such amounts have previously been
paid to Executive, shall repay in full to CCBF or
CCB Bank, as applicable, with interest at 8% per
annum within 30 days of a final determination of
Executive's liability therefor as set forth below,
the sum of the amounts described in Section
8(a)(i)(B) and (C) of this Agreement if any time
during the Employment Period or the Remaining
Employment Period (the "Restricted Period")
Executive violates the restrictive covenants set
forth in Section 13 of this Agreement. Any
determination of whether Executive has violated
such covenants shall be made by arbitration in
Durham, North Carolina under the Rules of
Commercial Arbitration (the "Rules") of the
American Arbitration Association, which Rules are
deemed to be incorporated by reference herein.
(b) Death. If Executive's employment is terminated by
reason of Executive's death during the Employment Period, this
Agreement shall terminate without further obligations to
Executive's legal representatives under this Agreement, except
that; (i) Accrued Obligations shall timely be paid as provided
below; (ii) Other Benefits shall be timely paid or provided as
described below; (iii) all Options previously granted to
Executive that vested at or prior to the Date of Termination
shall remain exercisable for the longer of twelve (12) months and
the exercise period in effect immediately prior to the Date of
Termination; (iv) all Options previously granted to Executive and
scheduled to vest in the year of death shall immediately vest and
be exercisable for the exercise period set forth in the
applicable grants; and (v) Executive's rights to all benefits
under all Benefit Plans that are "non-qualified" plans shall be
100% vested, regardless of Executive's age or years of service,
at the time of Executive's death. Accrued Obligations shall be
paid to Executive's estate or beneficiary, as applicable, in a
lump sum in cash within 30 days of the Date of Termination. With
respect to the provision of Other Benefits, the term Other
Benefits as utilized in this Section 8(b) shall include, without
limitation, and Executive's estate and/or beneficiaries shall be
entitled to receive, all benefits under CCBF's and CCB Bank's
plans, programs, practices and policies relating to death
benefits, if any, as are applicable generally to senior executive
employees of CCBF or CCB Bank and their beneficiaries, and on the
same basis as such senior executive employees and their
beneficiaries. Without limiting the foregoing, for one (1) year
after Executive's death, CCBF and CCB Bank shall pay any premium
required for any "qualified beneficiary" to continue his or her
health care coverage in accordance with Title I, Part 6 of the
Employee Retirement Security Act of 1974, as amended.
(c) Disability. If Executive's employment is
terminated by reason of Executive's Disability during the
Employment Period, this Agreement shall terminate without further
obligations to Executive, except that: (i) Accrued Obligations
shall be timely paid as provided below; (ii) Other Benefits shall
be timely paid or provided as described below; (iii) all Options
that are" incentive stock options" ("ISOs"), as described in
Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code"), and that vested at or prior to the Date of Termination
shall remain exercisable for the lesser of twelve (12) months and
the period of exercise in effect immediately prior to the Date of
Termination; (iv) all Options previously granted and scheduled to
vest in the year in which the Date of Termination occurs shall
immediately vest and be exercisable (A) in the case of ISOs, for
twelve (12) months from the Date of Termination, and (B) in the
case of Options that are not ISOs, for the exercise period set
forth in the applicable grant; (v) all other Options that vested
at or prior to the Date of Termination shall remain exercisable
for the period of exercise in effect immediately prior to the
Date of Termination; and (vi) Executive may exercise his
Insurance Plan Buy-Out Option on the Date of Termination.
Accrued Obligations shall be paid to Executive in a lump sum in
cash within 30 days of the Date of Termination. With respect to
the provision of Other Benefits, the term Other Benefits as
utilized in this Section 8(c) shall include, without limitation,
and Executive shall be entitled after the Date of Termination to
receive, all disability and other benefits under all Welfare
Benefit Plans and all other plans, programs, practices, and
policies of CCBF and CCB Bank relating to disability, if any, as
are applicable generally to senior executive employees of CCBF
and CCB Bank and their families, and on the same basis as such
senior executive employees and their families.
(d) Cause. If Executive's employment shall be
terminated for Cause during the Employment Period, this Agreement
shall terminate without further obligations to Executive, except
that (i) the Accrued Obligations shall be paid in a lump sum in
cash within 30 days of the Date of Termination, and (ii) Other
Benefits shall be paid or provided in a timely manner, in each
case to the extent theretofore unpaid; provided, however, that
Executive's right to continue to participate in Welfare Benefit
Plans shall terminate on the 30th day following the Date of
Termination, subject to his rights under the Consolidated Omnibus
Budget Reconciliation Act of 1985, 29 U.S.C. 1161 et seq.
9. Termination In Connection With a Change of Control.
(a) Change of Control Termination. In the event that
during the Employment Period, CCBF and CCB Bank terminate
Executive's employment other than for Cause or Disability or
Executive terminates such employment for Good Reason, in any of
the foregoing cases within one (1) year after a Change of Control
(each a "Change of Control Termination"), Executive shall be
entitled to receive the payments and benefits specified in this
Section 9. The date on which CCBF and CCB Bank or Executive
receives notice in accordance with Section 16(g) of a Change of
Control Termination shall be deemed the Change of Control
Termination Date.
(b) Definition of Change of Control. A Change of
Control shall be deemed to have occurred upon: (i) any "Person"
or "Group" (as defined in or pursuant to Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934, as amended (the "1934
Act"), but not including CCBF, CCB Bank, any other Subsidiary or
any "employee benefit plan" (as defined in or pursuant to the
Employee Retirement Income Security Act of 1974, 29 U.S.C.
1002(3), and as used herein "Person" or "Group") becoming the
"beneficial owner" (as defined in Rule 13d-3 under the 1934 Act)
or otherwise acquiring control, directly or indirectly, of
securities of CCBF representing twenty-five percent (25%) or more
of the voting power of CCBF's then outstanding securities; (ii)
the acquisition by any Person or Group in any manner of the
ability to elect, or to control the election, of a majority of
the directors of CCBF or CCB Bank; (iii) the merger of CCBF or
CCB Bank into another entity, the merger of any entity into CCBF
or CCB Bank or the acquisition of assets by CCBF or CCB Bank, in
any such case with the result that the beneficial owners of
CCBF's and CCB Bank's outstanding securities immediately prior to
such transaction do not beneficially own more than sixty percent
(60%) of CCBF's and CCB Bank's outstanding securities after the
consummation of such transaction; (iv) the sale or other transfer
of more than fifty percent (50%) of the assets of CCBF or CCB
Bank to any entity not controlled by CCBF; (v) the consummation
of any transaction by CCBF or CCB Bank that results (A) in the
majority of the Boards of Directors of CCBF and CCB Bank after
the consummation of such transaction not being composed of
Incumbent Directors, or (B) the beneficial owners of CCBF's
outstanding securities immediately prior to the consummation of
such a transaction not beneficially owning more than sixty
percent (60%) of CCBF's outstanding securities after such
transaction; or (vi) the occurrence of any other event or
circumstance which is not described in the foregoing provisions
of this Section 9(b) but which the CCBF Board determines affects
control of CCBF and/or CCB Bank and constitutes a Change of
Control for purposes of this Agreement. The term "Incumbent
Director" shall mean any director who as of the Effective Date
was a member of the CCBF Board or the Bank Board, or any
individual becoming a member of the CCBF Board or the Bank Board
subsequent to the Effective Date whose election by CCBF
shareholders or by the shareholder of CCB Bank, as applicable,
was recommended by at least two-thirds (2/3) of the then
Incumbent Directors on the CCBF Board or the Bank Board, as
applicable.
Notwithstanding the foregoing, a Change of Control shall not
include any transaction to which Executive consents in a writing
specifically noting this provision of this Agreement.
(c) Change of Control Payments and Benefits. Upon a
Change of Control Termination:
(i) CCBF and CCB Bank shall pay to Executive in a
lump sum in cash within 30 days after the
date of the Change In Control Termination
Date the aggregate of the following amounts:
(A) the sum of the Accrued Obligations; and
(B) an amount equal to 2.99 times the total
of Executive's Base Salary and Most
Recent Annual Bonus; and
(C) an amount equal to the excess of (a) the
actuarial equivalent of the benefits
under CCBF's Benefit Plans that are
qualified defined benefit retirement
plans (utilizing actuarial assumptions
no less favorable to Executive than
those in effect under the CCB Financial
Corporation Retirement Plan on the
Change of Control Termination Date) and
any Benefit Plan that are excess or
supplemental retirement plans in which
Executive participates which Executive
would receive if Executive's employment
continued throughout the Remaining
Employment Period, assuming for this
purpose that all accrued benefits are
fully vested, and, assuming that
Executive's compensation in each
remaining year of the Employment Period
is the Base Salary plus the Most Recent
Annual Bonus, over (b) the actuarial
equivalent of Executive's actual
benefits (paid or payable), if any,
under such Benefit Plans as of the
Change of Control Termination Date; and
(ii) Unless the relevant Change of Control is a
merger of CCBF or CCB Bank with another
Person or entity which is intended to be
accounted for under the pooling-of-interests
method and which has been approved by the
vote of such number of Incumbent Directors as
comprised a majority of the CCBF Board or the
Bank Board, as applicable, CCBF shall
immediately grant, if not theretofore granted
for the fiscal year in which the Change of
Control Termination Date occurs, an award
under the LTIP of the same type and in the
same quantative amount as the Most Recent
LTIP Award, which award shall be vested and
non-forfeitable as of the Change of Control
Termination Date (assuming for calculation
purposes that the LTIP's superior performance
objective for such fiscal year has been met)
and shall be exercisable on and after the
first day subsequent to the six (6) months
following the date of grant; and
(iii)CCBF shall immediately grant, if not
theretofore granted for the fiscal year in
which the Date of Termination occurs, an
award under the EMIP of the same type and in
the same quantative amount as the Most Recent
EMIP Award, which award shall be distributed
as of the Change of Control Termination Date
(assuming for calculation purposes that the
EMIP's maximum performance objective for such
fiscal year has been met); and
(iv) for the number of days remaining in the
Employment Period from and after the Change
of Control Termination Date (the "Continuing
Period"), or such longer period as may be
provided by the terms of the appropriate
plan, program, practice or policy, CCBF and
CCB Bank shall continue benefits to Executive
and/or Executive's family at least equal to
those which would have been provided to them
in accordance with the Welfare Benefit Plans
described in Section 6(d) of this Agreement
if Executive's employment had not been
terminated; provided, however, that if
Executive becomes re-employed with another
employer and is eligible to receive
substantially the same benefits under the
other employer's plans as Executive would
receive under the Welfare Benefit Plans under
this item (iv), the benefits under the
Welfare Benefit Plans shall be secondary to
those provided under such other plans during
such applicable period of eligibility. For
purposes of determining eligibility and years-
of-service credit (but not the time of
commencement of benefits) of Executive for
retiree benefits pursuant to such Welfare
Benefit Plans, Executive shall be considered
to have remained employed through the
Continuing Period and to have retired on the
last day of such period; and
(v) all Options previously granted to Executive
that are unvested as of the Change of Control
Termination Date shall be deemed vested,
fully exercisable and non-forfeitable as of
the Change of Control Termination Date
(provided, however, that Options granted less
than six (6) months before the Change of
Control Termination Date shall not be
exercisable until the first day subsequent to
the six (6) months following their dates of
grant) and all previously granted Options
that are vested, but unexercised, on the
Change of Control Termination Date shall
remain exercisable, in each case for the
period during which they would have been
exercisable absent the termination of
Executive's employment; and
(vi) Executive's benefits under all Benefit Plans
that are non-qualified plans shall be 100%
vested, regardless of Executive's age or
years of service, as of the Change of Control
Termination Date; and
(vii)CCBF and CCB Bank shall maintain and continue
to pay during the Continuing Period all
premiums due under the Split Dollar Agreement
and the Insurance Policy; provided, however,
that upon or at any time prior to the
expiration of the Continuing Period,
Executive may exercise his Insurance Policy
Buy-Out Option.
10. Additional Payments
(a) Amount of Additional Payments. Anything in this
Agreement seemingly to the contrary notwithstanding, in the event
it shall be determined that any or the aggregate of all payments,
distributions, accelerations of vesting, awards and provisions of
benefits by CCBF and/or CCB Bank to or for the benefit of the
Executive (whether paid or payable, distributed or distributable,
accelerated, awarded or provided pursuant to the terms of this
Agreement or otherwise) (a "Payment") would constitute an "excess
parachute payment" within the meaning of Section 280G of the Code
and subject to the excise tax imposed by Section 4999 of the Code
(the "Excise Tax"), then prior to the making of any Payment to
the Executive, a calculation shall be made of the amount of the
Excise Tax and an additional cash payment (the "Additional
Payment") shall be promptly made to the Executive in the sum of
(i) the Excise Tax and (ii) the total of any Excise Tax payable
on the amounts specified in item (i) and this item (ii). In
addition, if it shall be determined at any time by reference to
Internal Revenue Service ("IRS") regulations or rulings, as a
consequence IRS audits or assessments of Executive (or in
settlement thereof), by reference to the terms of the final
judgment of a court or other judicial body of competent
jurisdiction or as a result of other similar events requiring
Executive to pay an Excise Tax or any income or other excise tax
on the amounts specified in this Section 10(a), that an
Additional Payment made was less than the sums specified in items
(i) and (ii) above, CCBF and CCB Bank promptly shall make a
further cash payment to Executive in the sum of (x) such deficit
and (y) any Excise Tax on such further cash payment.
(b) Determination of Excise Tax and Other Amounts.
The determination of whether an Excise Tax would be imposed, the
amount of such Excise Tax, and the calculation of the amounts
referred to in Section 10(a) shall be made by CCBF's and CCB
Bank's regular independent accounting firm or, at the election of
Executive, another nationally recognized independent accounting
firm (either, the "Accounting Firm") which shall provide detailed
supporting analyses and calculations. All fees and expenses of
the Accounting Firm shall be borne solely by CCBF and CCB Bank.
Any determination by the Accounting Firm shall be binding upon
CCBF, CCB Bank and Executive.
11. Non-Exclusivity of Rights. Nothing in this Agreement
shall prevent or limit Executive's continuing or future
participation in any plan, program, policy, or practice provided
by CCBF, CCB Bank or any other Subsidiary and for which Executive
may qualify, nor, subject to Section 14(e), shall anything herein
limit or otherwise affect such rights as Executive may have under
any contract or agreement with CCBF, CCB Bank or any other
Subsidiary. Amounts which are vested benefits or which Executive
is otherwise entitled to receive under any plan, policy, practice
or program of or any contract or agreement with CCBF, CCB Bank or
other Subsidiary at or subsequent to a Date of Termination or
Change of Control Termination Date shall be payable in accordance
with such plan, policy, practice or program or such contract or
agreement except as explicitly modified by this Agreement.
12. Full Settlement. CCBF's and CCB Bank's obligation to
make the payments provided for in this Agreement and otherwise to
perform their obligations hereunder shall not be affected by any
set-off, counterclaim, recoupment, defense or other claim, right
or action which CCBF or CCB Bank may have against Executive or
others. In no event shall Executive be obligated to seek other
employment or take any other action by way of mitigation of the
amounts payable to Executive under any of the provisions of this
Agreement; provided, however, that Executive's right to receive
benefits under Welfare Benefit Plans to the extent that Executive
obtains other employment shall be limited as provided in Sections
8(a)(iv) and 9(c)(iv). CCBF and CCB Bank agree to pay as
incurred, to the full extent permitted by law, all legal fees and
expenses which Executive may reasonably incur as a result of any
contest (regardless of the outcome thereof) by CCBF and CCB Bank,
Executive or others of the validity or enforceability of, or
liability under, any provision of this Agreement or any guarantee
of performance thereof (including as a result of any contest by
Executive about the amount of any payment pursuant to this
Agreement), plus in each case interest on any delayed payment at
the "applicable federal rate" provided for in Section
7872(f)(2)(A) of the Code.
13. Covenants.
(a) Covenant Not to Compete. During the Restricted
Period, Executive shall not, within the States of North Carolina
and South Carolina, directly or indirectly, in any capacity,
render his services, or engage or have a financial interest in,
any business that shall be competitive with any of those business
activities in which CCBF or any of its Subsidiaries that are
financial institutions, is engaged as of the date of this
Agreement (a "Competition"), which business activities include
the provision of banking services (collectively, the "Business");
provided, however, that Executive's ownership of less than three
percent (3%) of the outstanding securities of any Competitor that
has a class of securities listed on a securities exchange or
qualified for quotation on any over-the-counter market shall not
be a violation of the foregoing. If a court determines that the
foregoing restrictions are too broad or otherwise unreasonable
under applicable law, including with respect to time, scope or
territory, the court is hereby requested and authorized by the
parties hereto to revise the foregoing restrictions to include
the maximum restrictions allowable under applicable law.
(b) Covenant No to Solicit Customers. During the
Restricted Period, Executive shall not, directly or indirectly,
individually or on behalf of any other person or entity (other
than CCBF or a Subsidiary), solicit the provision of banking
services to any person, partnership, corporation or other entity
who is or was (i) a customer of any Subsidiary during any part of
the twelve (12) month period immediately prior to the Date of
Termination, or (ii) a potential customer to whom any Subsidiary
solicited the provision of banking services during any part of
the twelve (12) month period immediately prior to the Date of
Termination.
(c) Covenant Not to Solicit Employees. During the
Restricted Period, Executive shall not, directly or indirectly,
individually or on behalf of any other person or entity, solicit,
recruit or entice, directly or indirectly, any employee of CCBF
or any Subsidiary to leave the employment of CCBF or such
Subsidiary to work with Executive or with any person,
partnership, corporation or other entity with whom Executive is
or becomes affiliated or associated.
(d) Reasonableness of Scope and Duration. The parties
hereto agree that the covenants and agreements contained in this
Section 13 are reasonable in their time, territory and scope, and
they intend that they be enforced, and no party shall raise any
issue of the reasonableness of the time, territory or scope of
any such covenants in any proceeding to enforce any such
covenants.
(e) Enforceability. Executive agrees that monetary
damages would not be a sufficient remedy for any breach or
threatened breach of the provisions of this Section 13, and that
in addition to all other rights and remedies available to CCBF,
CCBF shall be entitled to specific performance and injunctive or
other equitable relief as a remedy for any such breach or
threatened breach.
(f) Separate Covenants and Severability. The
covenants and agreements contained in this Section 13 shall be
construed as separate and independent covenants. Should any part
or provision of any such covenant or agreement be held invalid,
void or unenforceable in any court of competent jurisdiction, no
other part or provision of this Agreement shall be rendered
invalid, void or unenforceable by a court of competent
jurisdiction, no other part or provision of this Agreement shall
be rendered invalid, void or unenforceable as a result. If any
portion of the foregoing provisions is found to be invalid or
unenforceable by a court of competent jurisdiction unless
modified, it is the intent of the parties that the otherwise
invalid or unreasonable term shall be reformed, or a new
enforceable term provided, so as to most closely effectuate the
provisions as is validly possible.
(g) Inapplicability. The provisions of this Section
13 shall not be operative upon, or be in any way enforceable
against Executive at or after, a Change of Control Termination or
a termination of Executive's employment by CCBF and CCB Bank
other than for Cause, death or Disability (i.e., a termination
without Cause).
14. Assignment and Successors.
(a) Executive. This Agreement is personal to
Executive and without the prior written consent of CCBF and CCB
Bank shall not be assignable by Executive otherwise than by will
or the laws of descent and distribution. This Agreement shall
inure to the benefit of and be enforceable by Executive's legal
representatives.
(b) CCBF and CCB Bank. This Agreement shall inure to
the benefit of and be binding upon CCBF and CCB Bank and their
respective successors and assigns. Each of CCBF and CCB Bank will
require any successor to it (whether direct or indirect, by stock
or asset purchase, merger, consolidation or otherwise) to all or
substantially all of its business or more than fifty percent
(50%) of its assets to assume expressly and agree to perform this
Agreement in the same manner and to the same extent it would be
required to perform it if no such succession had taken place. As
used in this Agreement, "CCBF" and "CCB Bank" shall mean CCBF and
CCB Bank as hereinbefore defined and any successor to their
respective businesses and/or assets as aforesaid which assumes
and agrees to perform this Agreement by operation of law, or
otherwise.
15. Regulatory Intervention. Notwithstanding anything in
this Agreement to the contrary, the obligations of CCBF and CCB
Bank under this Agreement are subject to the following terms and
conditions:
(a) If the Executive is suspended and/or temporarily
prohibited from participating in the conduct of CCBF's or CCB
Bank's affairs by a notice served under Section 8(e)(3) or (g)(1)
of the Federal Deposit Insurance Act (12 U.S.C. 1818 (e)(3) and
(g)(1)), CCBF's or CCB Bank's obligations hereunder, as
applicable, shall be suspended as of the date of service unless
stayed by appropriate proceedings. If the charges in the notice
are dismissed, all of CCBF's or CCB Bank's obligations, as
applicable, which were suspended shall be reinstated.
(b) If Executive is removed and/or permanently
prohibited from participating in the conduct of CCBF's or CCB
Bank's affairs by an order issued under Section 8(e)(4) or (g)(1)
of the Federal Deposit Insurance Act (12 U.S.C. 1818 (e)(4) and
(g)(1)), all obligations of CCBF or CCB Bank, as applicable,
under this Agreement shall terminate as of the effective date of
the order, but vested rights of the parties shall not be
affected.
(c) If CCB Bank is in default (as defined in Section
3(x)(1) of the Federal Deposit Insurance Act (12 U.S. C. 1813
(x)(1)), all obligations of CCB Bank under this Agreement shall
terminate as of the date of default, but any vested rights of
Executive shall not be affected.
(d) All obligations of CCB Bank under this Agreement
shall be terminated, except to the extent determined that
continuation of the contract is necessary for the continued
operation of CCB Bank, if so ordered by the North Carolina
Commissioner of Banks (the "Commissioner") at the time the
Federal Deposit Insurance Corporation ("FDIC") enters into an
agreement to provide assistance to or on behalf of CCB Bank under
the authority contained in Section 13(c) of the Federal Deposit
Insurance Act (12 U.S.C. 1823 (c)), or if so ordered by the
Commissioner at the time the FDIC approves a supervisory merger
to resolve problems related to operation of CCB Bank or when CCB
Bank is determined by the Commissioner to be in an unsafe or
unsound condition. Any rights of Executive that shall have
vested under this Agreement shall not be affected by such action.
(e) With regard to the provisions of this Section
15(a) through (d):
(i) CCBF and CCB Bank agree to use their best efforts
to oppose any such notice of charges as to which
there are reasonable defenses;
(ii) In the event the notice of charges is dismissed or
otherwise resolved in a manner that will permit
CCBF and/or CCB Bank to resume their obligations
to pay compensation hereunder, CCBF and/or CCB
Bank will promptly make such payment hereunder;
and
(iii)During any period of suspension under Section
15(a), the vested rights of Executive shall not be
affected except to the extent precluded by such
notice.
(f) CCB Bank's obligations to provide compensation or
other benefits to Executive under this Agreement shall be
terminated or limited to the extent required by the provisions of
any final regulation or order of the FDIC promulgated under
Section 18(k) of the Federal Deposit Insurance Act (12 U.S.C.
1828(k)) limiting or prohibiting any "golden parachute payment"
as defined therein, but only to the extent that the compensation
or payments to be provided by CCB Bank under this Agreement are
so prohibited or limited.
(g) It is intended by CCBF, CCB Bank and Executive
that if only one of CCBF and CCB Bank is prohibited from
fulfilling its obligations under this Agreement in any of the
circumstances described in the above provisions of this Section
15 (whether for a period or permanently), the other shall remain
obligated to fulfill all obligations of CCBF and CCB Bank under
this Agreement.
16. Miscellaneous.
(a) No Mitigation. Executive shall not be required to
mitigate the amount of any payment provided for in this Agreement
by seeking other employment or otherwise and, except as provided
in Sections 8(a)(iv) and 9(c)(iv), no such payment shall be
offset or reduced by the amount of any compensation or benefits
provided to Executive in any subsequent employment.
(b) Waiver. Failure of either part to insist, in one
or more instances, on performance by the other in strict
accordance with the terms and conditions of this Agreement shall
not be deemed a waiver or relinquishment of any right granted in
this Agreement or of the future performance of any such term or
condition or of any other term or condition of this Agreement,
unless such waiver is contained in a writing signed by the party
making the waiver.
(c) Severability. If any provision or covenant, of
any part thereof, of this Agreement should be held by any court
to be invalid, illegal or unenforceable, either in whole or in
part, such invalidity, illegality or unenforceability shall not
affect the validity, legality or enforceability of the remaining
provisions or covenants, or any part thereof, of this Agreement,
all of which shall remain in full force and effect.
(d) Other Agents. Nothing in this Agreement is to be
interpreted as limiting CCBF or CCB Bank from employing other
personnel on such terms and conditions as may be satisfactory to
it.
(e) Entire Agreement. Except as provided herein, this
Agreement contains the entire agreement among CCBF, CCB Bank and
Executive, with respect to the subject matter hereof and
supersedes and invalidates any previous employment and severance
agreements or contracts with Executive, including, without
limitation, that certain Change of Control Agreement, dated July
17, 1995, by and between CCB Bank and Executive which is amended
and restated herein. No representations, inducements, promises
or agreements, oral or otherwise, which are not embodied herein,
shall be of any force or effect.
(f) Governing Law. Except to the extent preempted by
federal law, the laws of the State of North Carolina shall govern
this Agreement in all respects, whether as to its validity,
construction, capacity, performance or otherwise.
(g) Notices. All notices, requests, demands and other
communications required or permitted hereunder shall be in
writing and shall be deemed to have been duly given if delivered
or seven (7) days after mailing if mailed, first class, certified
mail, postage prepaid:
To CCBF and CCB Bank:
CCB Financial Corporation
111 Corcoran Street
Durham, North Carolina 27702-0931
Attention: Chairman of the Board
To Executive:
J. Scott Edwards
2323 Trail Woods Drive
Durham, North Carolina 27705
Any party may change the address to which notices, requests,
demands and other communications shall be delivered or mailed by
giving notice thereof to the other party in the same manner
provided herein.
(h) Amendments and Modifications. This Agreement may
be amended or modified only by a writing signed by all parties
hereto, which makes specific reference to this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed
and delivered this Employment and Amended and Restated Change of
Control Agreement as of the date first above written.
CCB FINANCIAL CORPORATION
By: /s/ W. L. BURNS, JR.
Title: Chairman of the Board
CENTRAL CAROLINA BANK AND
TRUST COMPANY
By: /s/ W. L. BURNS, JR.
Title: Chairman of the Board
EXECUTIVE:
/s/ J. SCOTT EDWARDS
J. Scott Edwards
ccb\edwards.agm
