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 "target" bonus for the then current fiscal year under the EMIP as described in Section 6(b)(i) above ("Target EMIP 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 Target EMIP 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 Target EMIP 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 Executive's "target" award under the LTIP for the current fiscal year ("Target 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) 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 (iii), 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 (iv) 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 (v) 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 (vi) 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"); (vii) 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.
Appears in 1 contract
Other Than for Cause, Death or Disability. If, during the Employment Period, CCBF shall the Company and its Affiliates terminate Executive's ’s employment other than for Cause, death Cause or Disability, or Executive shall terminate his employment for Good Reason (and, in each case, other than in connection with within twenty-four (24) months following the consummation of a Change of Controlin Control (in which case Section 5(b) shall apply), then then, subject to Executive’s execution within fifty (50) days following the Date of Termination, and non-revocation, of a release of claims in consideration of Executive's services rendered prior a form satisfactory to such termination;the Company (the “Release”), the Company shall pay to Executive the following:
(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 (1A) Executive's the portion of the Annual Base Salary due for the period through the Date of Termination to the extent not theretofore paid, paid and (2) the product of (xB) Executive's "target" bonus for ’s business expenses that have not been reimbursed by the then current fiscal year under the EMIP Company as described in Section 6(b)(i) above ("Target EMIP 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 Termination that were incurred by Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case prior to the extent not theretofore paid Date of Termination in accordance with the applicable policy of the Company and pursuant to the terms of this Agreement (the sum of the amounts described in clauses (1), (2), A) and (3B) shall be hereinafter referred to as the "“Accrued Obligations"”); and, which Accrued Obligations shall be paid in a lump sum in cash within sixty (60) days following the Date of Termination;
B. (ii) any unpaid Annual Bonus earned by Executive in respect of the fiscal year of the Company that was completed on or prior to the Date of Termination (the “Unpaid Annual Bonus”), which Unpaid Annual Bonus shall be paid in a lump sum in cash within sixty (60) days following the Date of Termination (other than any portion of such Unpaid Annual Bonus that was deferred, which portion shall instead be paid in accordance with the applicable deferral arrangement and any election thereunder);
(iii) an amount equal to the product of (1A) two (2) multiplied by (B) the number of days remaining Annual Base Salary and Target Annual Bonus, which shall be paid in equal installments over the Employment Period from and after two-year period following the Date of Termination in accordance with the Company’s regular payroll practices as of the Date of Termination; provided, however, that any amounts payable in respect of the first sixty (60) days following the "Remaining Employment Period"), Date of Termination shall be accrued and paid in a lump sum on such sixtieth (260th) Executive's Base Salary divided by 365; andday or the first business day thereafter;
C. the (iv) an amount equal to the product of (1A) the number amount of days in the Remaining Employment Period, monthly premiums for coverage under the Company’s or and (2) Executive's Target EMIP Bonus divided by 365; and
D. an amount equal its Affiliates’ health care plans for purposes of continuation coverage under Section 4980B of the Code with respect to the excess level 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 coverage in effect under the CCB Financial Corporation Retirement Plan on for Executive and Executive’s spouse and dependents as of immediately prior to the Date of Termination, multiplied by (B) and any Benefit Plans that are excess or supplemental retirement plans 24, which shall be paid in which Executive participates which Executive would receive if Executive's employment continued throughout equal installments over the Remaining Employment Period, assuming for this purpose that all accrued benefits are fully vested and assuming that Executive's compensation two-year period following the Date of Termination in each remaining year accordance with the Company’s regular payroll practices as of the Employment Period is Date of Termination;
(v) any portion of the Base Salary plus Inaugural Equity Award, to the Target EMIP Bonus, over (b) the actuarial equivalent of Executive's actual benefits (paid or payable), if any, under such Benefit Plans extent unvested as of the Date of Termination, shall immediately vest in full effective as of the Date of Termination and shall be settled in accordance with the terms of the award agreement governing the Inaugural Equity Award, but in any event no later than sixty (60) days following 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 Executive's "target" award under the LTIP for the current fiscal year ("Target 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) 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 (iii), 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
(ivvi) to the extent not theretofore paid or provided, CCBF and CCB Bank the Company shall timely pay or provide provide, in accordance with the terms of the applicable plan, program, policy, practice or contract, to Executive any other amounts or benefits required to be paid or provided herein or which that Executive is eligible to receive under any Welfare Benefit Plan or any other plan, program, policy or policy, practice or contract or agreement of CCBF or CCB Bank the Company through the Date of Termination (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits"”); and
. If Executive does not execute the Release within fifty (v50) all options to acquire capital stock of CCBF ("Options") previously granted to Executive, including those awarded under item (ii) above, that are unvested on days following the Date of Termination Termination, or if Executive revokes the Release, Executive shall be deemed vested, fully exercisable entitled to only the compensation and non-forfeitable benefits contemplated by Sections 5(a)(i) and (vi). Other than as of the Date of Termination and all previously granted Options that are vested, but unexercised, on the Date of Termination shall remain exercisableset forth in this Section 5(a), in each case for the period during which they would have been exercisable absent the event of a termination of Executive's employment; and
(vi) during ’s employment by 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 Company or the then owner of the Insurance Policy may terminate the Split Dollar Agreement and the Collateral Assignment by paying Bank without Cause (other than due 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 death 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"Disability);
(vii) 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 Company, the amounts described in Section 8(a)(i)(B) Bank and (C) of this Agreement if any time during the Employment Period or the Remaining Employment Period (the "Restricted Period") their respective Affiliates shall have no further obligation to Executive violates the restrictive covenants set forth in Section 13 of under 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.
Appears in 1 contract
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 "target" bonus for the then current fiscal year under the EMIP as described in Section 6(b)(i) above ("Target EMIP 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 (which, at all times prior to October 26, 2000, shall be deemed to be 730 days notwithstanding any other provision of this Agreement) 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 Target EMIP 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 Target EMIP 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 Executive's "target" award under the LTIP for the current fiscal year (the "Target 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) 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 (iii), 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
(iv) 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
(v) 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;
(vi) 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");
(vii) 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.
Appears in 1 contract
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 "target" bonus for the then current fiscal year under the EMIP as described in Section 6(b)(i) above ("Target EMIP 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 Target EMIP 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 Target EMIP 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 quantitive amount as Executive's "target" award under the LTIP for the current fiscal year ("Target 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) 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 (iii), 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
(iv) 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
(v) 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
(vi) 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");
(vii) 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.
Appears in 1 contract
Other Than for Cause, Death or Disability. If, during the Employment Period, CCBF shall terminate the Company terminates the Executive's employment other than for Cause, death Cause or Disability, Disability or the Executive shall terminate his terminates employment for Good Reason (and, in each case, other than in connection with a Change of Control)Reason, then in consideration of Executive's services rendered prior addition to such termination;the Other Benefits provided for in Section 6:
(i1) CCBF and CCB Bank the Company shall pay to Executive the Executive, in a lump sum in cash within 30 days after the Date of Termination Termination, the aggregate of the following amounts:
A. (A) the sum of (1i) the Executive's Base Salary through the Date of Termination to the extent not theretofore paid, (2ii) the product of (x) Executive's the average of the Annual Bonuses earned by the Executive for each of the last three full fiscal years prior to the Date of Termination (the "target" bonus for the then current fiscal year under the EMIP as described in Section 6(b)(i) above ("Target EMIP Average 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, Termination and the denominator of which is 365, and (3iii) any compensation previously deferred by Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case case, to the extent not theretofore paid (the sum of the amounts described in clauses subclauses (1i), (2ii) and (iii), and (3) shall be hereinafter referred to as the "Accrued Obligations"); and;
B. (B) the amount equal to the product of (1i) three and (ii) the number sum of days remaining (x) the annual rate of the Base Salary, (y) the Average Annual Bonus and (z) the aggregate of the amounts contributed or required to be contributed by the Company to the Executive's account under each defined contribution plan (whether qualified or nonqualified) in which the Employment Period from and after Executive was participating for the most recently concluded plan year before the Date of Termination (the "Remaining Employment Period"), and (2) Executive's Base Salary divided by 365Termination; and
C. the amount equal to the product of (1C) the number of days in the Remaining Employment Period, and (2) Executive's Target EMIP Bonus divided by 365; and
D. an amount equal to the excess of (ai) the actuarial equivalent of Executive's benefits the benefit under the Benefit Plans that are any qualified defined benefit retirement plan (the "Retirement Plan") and any excess or supplemental retirement plans (collectively, the "SERP") sponsored by the Company or any of the Affiliated Companies in which the Executive is participating immediately before the Date of Termination, computed utilizing actuarial assumptions no less favorable to the Executive than those in effect under the CCB Financial Corporation Retirement Plan on immediately prior to the Effective Date, that the Executive would receive if the Executive's employment continued for three years after 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 the Executive's compensation in each remaining year of the Employment Period three years is the Base Salary plus the Target EMIP Bonusthat required by Sections 3(b)(1) and 3(b)(2), over (bii) the actuarial equivalent of the Executive's actual benefits benefit (paid or payable), if any, under such Benefit Plans the Retirement Plan and the SERP as of the Date of Termination; and;
(ii2) CCBF shall immediately grant, if not theretofore granted for three years after the fiscal year in which the Executive's Date of Termination occurs, an award under the LTIP of the same type and in the same quantative amount as Executive's "target" award under the LTIP for the current fiscal year ("Target 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) for the Remaining Employment PeriodTermination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, CCBF and CCB Bank the Company 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 (iii), 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
(iv) 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
(v) 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
(vi) 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");
(vii) 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.and/or
Appears in 1 contract
Other Than for Cause, Death or Disability. If, during the Employment Period, CCBF the Bank shall terminate Terminate Executive's ’s employment other than for Cause, death or Disability, or Executive shall terminate his employment for Good Reason Disability (and, in each casethe cases of Cause or Disability, other than in connection with a Change of Control), then in consideration of Executive's ’s services rendered prior to such terminationTermination;
(i) CCBF and CCB The Bank shall pay to Executive a lump sum in cash within 30 days on the 30th day after the Date of Termination the aggregate of the following amounts:
A. the sum of (1) Executive's ’s Base Salary through the Date of Termination to the extent not theretofore paid, and (2) the product of (x) Executive's "target" bonus for the then current fiscal year under the EMIP as described in Section 6(b)(i) above ("Target EMIP 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 and sick leave pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), ) and (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 ’s Base Salary divided by 365; and
C. the amount equal to the product of (1) Executive’s aggregate cash bonus for the last completed fiscal year, whether paid to Executive under Section 6 above or otherwise paid to Executive, and (2) a Fraction, the numerator of which is the number of days in the Remaining Employment Period, and (2) Executive's Target EMIP 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 Target EMIP 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 current fiscal year in which through the Date of Termination occurs, an award under and the LTIP denominator of the same type and in the same quantative amount as Executive's "target" award under the LTIP for the current fiscal year ("Target 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; andis 365.
(iiiii) 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 the Bank shall continue to provide benefits to Executive and/or Executive's ’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 ’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 ’s plans as Executive would receive under the Welfare Benefit Plans under this item (iiiii), the benefits provided under the Welfare Benefit Plans this item (ii) shall be secondary to those provided under such other employer's ’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, to the extent permitted by the terms of the 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
(iviii) to the extent not theretofore paid or provided, CCBF and CCB the 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 FNB or CCB the Bank (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits"); and
(v) 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
(vi) 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"”);
(viiiv) 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 the Bank, as applicable, with interest at 8% per annum within 30 thirty (30) days of a final determination of Executive's ’s liability therefor as set forth below, the sum of the amounts described in Section 8(a)(i)(B8(a)(i)(A) and (CB) 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 12 of this Agreement. Any determination of whether Executive has violated such covenants shall be made by arbitration in DurhamGreensboro, 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.. Further provided, however, that if the Executive is a “specified employee” as defined in Section 409A, then the payment(s) under this Section 8(a) shall be made and/or shall begin on the first day of the seventh month following the date of the Executive’s Termination if so required by Section 409A.
Appears in 1 contract
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 "target" bonus for the then current fiscal year under the EMIP as described in Section 6(b)(i) above ("Target EMIP 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 Target EMIP 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 Target EMIP 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 quantitive amount as Executive's "target" award under the LTIP for the current fiscal year ("Target 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) 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 toExecutive 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 (iii), 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
(iv) 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
(v) 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
(vi) 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");
(vii) 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.
Appears in 1 contract
Other Than for Cause, Death or Disability. If, during the Employment Period, CCBF shall terminate the Company terminates the Executive's employment other than for Cause, death Cause or Disability, or the Executive shall terminate his terminates employment for Good Reason (and, in each case, other than in connection with a Change of Control)Reason, then in consideration of Executive's services rendered prior addition to such termination;the Other Benefits provided for in Section 6:
(i1) CCBF and CCB Bank the Company shall pay to Executive the Executive, in a lump sum in cash within 30 days after the Date of Termination Termination, the aggregate of the following amounts:
A. (A) the sum of (1i) the Executive's Base Salary through the Date of Termination to the extent not theretofore paid, (2ii) the product of (x) Executive's the average of the Annual Bonuses earned by the Executive for each of the last three full fiscal years prior to the Date of Termination (the "target" bonus for the then current fiscal year under the EMIP as described in Section 6(b)(i) above ("Target EMIP Average 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, Termination and the denominator of which is 365, and (3iii) any compensation previously deferred by Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case case, to the extent not theretofore paid (the sum of the amounts described in clauses subclauses (1i), (2ii) and (iii), and (3) shall be hereinafter referred to as the "Accrued Obligations"); and;
B. (B) the amount equal to the product of (1i) three and (ii) the number sum of days remaining (x) the annual rate of the Base Salary, (y) the Average Annual Bonus and (z) the aggregate of the amounts contributed or required to be contributed by the Company to the Executive's account under each defined contribution plan (whether qualified or nonqualified) in which the Employment Period from and after Executive was participating for the most recently concluded plan year before the Date of Termination (the "Remaining Employment Period"), and (2) Executive's Base Salary divided by 365Termination; and
C. the amount equal to the product of (1C) the number of days in the Remaining Employment Period, and (2) Executive's Target EMIP Bonus divided by 365; and
D. an amount equal to the excess of (ai) the actuarial equivalent of Executive's benefits the benefit under the Benefit Plans that are any qualified defined benefit retirement plan (the "Retirement Plan") and any excess or supplemental retirement plans (collectively, the "SERP") sponsored by the Company or any of the Affiliated Companies in which the Executive is participating immediately before the Date of Termination, computed utilizing actuarial assumptions no less favorable to the Executive than those in effect under the CCB Financial Corporation Retirement Plan on immediately prior to the Effective Date, that the Executive would receive if the Executive's employment continued for three years after 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 the Executive's compensation in each remaining year of the Employment Period three years is the Base Salary plus the Target EMIP Bonusthat required by Sections 3(b)(1) and 3(b)(2), over (bii) the actuarial equivalent of the Executive's actual benefits benefit (paid or payable), if any, under such Benefit Plans the Retirement Plan and the SERP as of the Date of Termination; and;
(ii2) CCBF the Company shall immediately grant, if not theretofore granted provide the Post-Retirement Health Benefits as set forth above;
(3) for three years after the fiscal year in which the Executive's Date of Termination occurs, an award under the LTIP of the same type and in the same quantative amount as Executive's "target" award under the LTIP for the current fiscal year ("Target 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) for the Remaining Employment PeriodTermination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, CCBF and CCB Bank the Company shall continue benefits (other than the medical, prescription and dental benefits included in the Post-Retirement Health Benefits) to provide benefits to the Executive and/or the Executive's family at least equal to those which that would have been provided to them in accordance with the Welfare Benefit Plans plans, programs, practices and policies 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 (iii), 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
(iv) 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
(v) 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
(vi) 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");
(vii) 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)(B3(b)(4) 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.3(b)
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Other Than for Cause, Death or Disability. If, during the Employment Period, CCBF shall the Company and its Affiliates terminate Executive's ’s employment other than for Cause, death Cause or Disability, or Executive shall terminate his employment for Good Reason (and, in each case, other than in connection with within twenty-four (24) months following the consummation of a Change of Controlin Control (in which case Section 5(b) shall apply), then then, subject to Executive’s execution within fifty (50) days following the Date of Termination, and non-revocation, of a release of claims in consideration of Executive's services rendered prior a form satisfactory to such termination;the Company (the “Release”), the Company shall pay to Executive the following:
(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 (1A) Executive's the portion of the Annual Base Salary due for the period through the Date of Termination to the extent not theretofore paid, paid and (2) the product of (xB) Executive's "target" bonus for ’s business expenses that have not been reimbursed by the then current fiscal year under the EMIP Company as described in Section 6(b)(i) above ("Target EMIP 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 Termination that were incurred by Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case prior to the extent not theretofore paid Date of Termination in accordance with the applicable policy of the Company and pursuant to the terms of this Agreement (the sum of the amounts described in clauses (1), (2), A) and (3B) shall be hereinafter referred to as the "“Accrued Obligations"”); and, which Accrued Obligations shall be paid in a lump sum in cash within sixty (60) days following the Date of Termination;
B. (ii) any unpaid Annual Bonus earned by Executive in respect of the fiscal year of the Company that was completed on or prior to the Date of Termination (the “Unpaid Annual Bonus”), which shall include the Transition Award prior to the date the Transition Award is otherwise paid pursuant to the terms of this Agreement, which Unpaid Annual Bonus shall be paid in a lump sum in cash within sixty (60) days following the Date of Termination (other than any portion of such Unpaid Annual Bonus that was deferred, which portion shall instead be paid in accordance with the applicable deferral arrangement and any election thereunder);
(iii) an amount equal to the product of (1A) two (2) multiplied by (B) the number of days remaining Annual Base Salary and Target Annual Bonus, which shall be paid in equal installments over the Employment Period from and after two-year period following the Date of Termination in accordance with the Company’s regular payroll practices as of the Date of Termination; provided, however, that any amounts payable in respect of the first sixty (60) days following the "Remaining Employment Period"), Date of Termination shall be accrued and paid in a lump sum on such sixtieth (260th) Executive's Base Salary divided by 365; andday or the first business day thereafter;
C. the (iv) an amount equal to the product of (1A) the number amount of days in the Remaining Employment Period, monthly premiums for coverage under the Company’s or and (2) Executive's Target EMIP Bonus divided by 365; and
D. an amount equal its Affiliates’ health care plans for purposes of continuation coverage under Section 4980B of the Code with respect to the excess level 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 coverage in effect under the CCB Financial Corporation Retirement Plan on for Executive and Executive’s spouse and dependents as of immediately prior to the Date of Termination, multiplied by (B) and any Benefit Plans that are excess or supplemental retirement plans 24, which shall be paid in which Executive participates which Executive would receive if Executive's employment continued throughout equal installments over the Remaining Employment Period, assuming for this purpose that all accrued benefits are fully vested and assuming that Executive's compensation two-year period following the Date of Termination in each remaining year of accordance with the Employment Period is the Base Salary plus the Target EMIP Bonus, over (b) the actuarial equivalent of Executive's actual benefits (paid or payable), if any, under such Benefit Plans Company’s regular payroll practices 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 Executive's "target" award under the LTIP for the current fiscal year ("Target 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) 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 (iii), 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
(ivv) to the extent not theretofore paid or provided, CCBF and CCB Bank the Company shall timely pay or provide provide, in accordance with the terms of the applicable plan, program, policy, practice or contract, to Executive any other amounts or benefits required to be paid or provided herein or which that Executive is eligible to receive under any Welfare Benefit Plan or any other plan, program, policy or policy, practice or contract or agreement of CCBF or CCB Bank the Company through the Date of Termination (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits"”); and
. If Executive does not execute the Release within fifty (v50) all options to acquire capital stock of CCBF ("Options") previously granted to Executive, including those awarded under item (ii) above, that are unvested on days following the Date of Termination Termination, or if Executive revokes the Release, Executive shall be deemed vested, fully exercisable entitled to only the compensation and non-forfeitable benefits contemplated by Sections 5(a)(i) and (v). Other than as of the Date of Termination and all previously granted Options that are vested, but unexercised, on the Date of Termination shall remain exercisableset forth in this Section 5(a), in each case for the period during which they would have been exercisable absent the event of a termination of Executive's employment; and
(vi) during ’s employment by 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 Company or the then owner of the Insurance Policy may terminate the Split Dollar Agreement and the Collateral Assignment by paying Bank without Cause (other than due 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 death 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"Disability);
(vii) 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 Company, the amounts described in Section 8(a)(i)(B) Bank and (C) of this Agreement if any time during the Employment Period or the Remaining Employment Period (the "Restricted Period") their respective Affiliates shall have no further obligation to Executive violates the restrictive covenants set forth in Section 13 of under 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.
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Other Than for Cause, Death or Disability. If, If during the Employment Period, CCBF FNB and the Bank shall terminate Executive's employment other than for Cause, death or Disability, or Executive shall terminate his employment for Good Reason (and, in each casecases of Cause or Disability, other than in connection with a Change of Control), then in consideration of Executive's services rendered prior to such termination;
(i) CCBF FNB and CCB the 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, and (2) the product of (x) Executive's "target" bonus for the then current fiscal year under the EMIP as described in Section 6(b)(i) above ("Target EMIP 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 and sick leave pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), ) and (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 Target EMIP 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 Target EMIP 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 Executive's "target" award under the LTIP for the current fiscal year ("Target 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) 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 FNB and CCB the 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 (iiiii), 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
(iviii) to the extent not theretofore paid or provided, CCBF FNB and CCB the 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 FNB or CCB the Bank (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits"); and
(v) 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
(vi) 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");
(viiiv) 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 FNB and the 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)(B8(a)(i)(A) and (CB) 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 12 of this Agreement. Any determination of whether Executive has violated such covenants shall be made by arbitration in DurhamGreensboro, 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.
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Other Than for Cause, Death or Disability. IfIf the Company terminates Executive’s employment, during the Employment Period, CCBF shall terminate Executive's employment other than (x) as a result of Executive’s death or Disability or (y) for Cause, death or Disability, or if Executive shall terminate his terminates Executive’s employment for Good Reason (and, in each case, other than in connection with a Change of Control)Reason, then in consideration of Executive's services rendered prior to conditioned upon Executive executing and not revoking a Release (as defined below) following such termination;, the Company will provide to Executive the following separation benefits:
(i) CCBF Payment of the Accrued Compensation and CCB Bank shall pay Prior Year Bonus, rights to indemnification and directors’ and officers’ liability insurance and any rights or privilege otherwise required by law, (ii) (ii) Payment 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 an amount equal to his Base Salary through in equal monthly installments over a period of twelve (12) months following the Date termination date,
(iii) Payment to Executive of Termination to the extent not theretofore paid, (2) the product of (x) Executive's "target" a prorated annual bonus for the then current fiscal year under in which the EMIP as described termination date occurs, based on the actual achievement of the objectives referenced in Section 6(b)(i4(b) above ("Target EMIP Bonus")above. The prorated bonus will be calculated as the annual bonus based on performance, and (y) multiplied by a fraction, the numerator of which is the number of days preceding the termination date in the current fiscal year through the Date of Termination, termination and the denominator of which is 365365 (the “Prorated Bonus”),
(iv) (iv) If Executive timely elects continued health insurance coverage under COBRA, payment to Executive monthly of a portion of the premium necessary to continue such coverage for Executive and (3) any compensation previously deferred by Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case Executive’s eligible dependents that is equal to the extent not theretofore portion paid (for by the sum Company at the date of termination, until the conclusion of the amounts described in clauses (1)time when Executive is receiving continuation of Base Salary payments under Section 9(c)(ii) above or until Executive becomes eligible for group health insurance coverage under another employer’s plan, (2)whichever occurs first, provided however that the Company has the right to terminate such payment of COBRA premiums on behalf of Executive and (3) shall be hereinafter referred to as the "Accrued Obligations"); and
B. the instead pay Executive a lump sum amount equal to the product of (1) COBRA premium amount described above times the number of days months remaining in the Employment Period from and after specified period if 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 Company determines in the Remaining Employment Period, and (2) Executive's Target EMIP 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 its discretion 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 payment of the Employment Period COBRA premiums is the Base Salary plus the Target EMIP 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 Executive's "target" award under the LTIP for the current fiscal year ("Target 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) 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 (iii), 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
(iv) 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
(v) 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
(vi) 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");
(vii) 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 discriminatory under 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"105(h) of the American Arbitration AssociationCode, which Rules are deemed to be incorporated by reference herein.consistent with Section 409A of the Code, and
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Other Than for Cause, Death or Disability. If, during the Employment Period, CCBF FNB and the Bank shall terminate Terminate Executive's ’s employment other than for Cause, death or Disability, or Executive shall terminate his employment for Good Reason (and, in each casethe cases of Cause or Disability, other than in connection with a Change of Control), then in consideration of Executive's ’s services rendered prior to such terminationTermination;
(i) CCBF FNB and CCB the Bank shall pay to Executive a lump sum in cash within 30 days on the 30th day after the Date of Termination equal to the aggregate of the following amounts:
A. the sum of (1) Executive's ’s Base Salary through the Date of Termination to the extent not theretofore paid, and (2) the product of (x) Executive's "target" bonus for the then current fiscal year under the EMIP as described in Section 6(b)(i) above ("Target EMIP 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 and sick leave pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), ) and (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 ’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 Target EMIP 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 Target EMIP 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 Executive's "target" award under the LTIP for the current fiscal year ("Target 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) 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 FNB and CCB the Bank shall continue to provide benefits to Executive and/or Executive's ’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 ’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 ’s plans as Executive would receive under the Welfare Benefit Plans under this item (iiiii), the benefits provided under the Welfare Benefit Plans this Item (ii) shall be secondary to those provided under such other employer's ’s plans during such applicable period of eligibility. eligibility.1 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, to the extent permitted by the terms of the 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
(iviii) to the extent not theretofore paid or provided, CCBF FNB and CCB the 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 FNB or CCB the Bank (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits"); and
(v) 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
(vi) 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"”);
(viiiv) 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 ______________________ 1 Note that once employment is terminated, it may not be possible to provide benefits under the FNB Plans; so, individual policies may have to be purchased; thus, saying the benefits under the “Welfare Benefit Plans” will be secondary isn’t correct; what is correct is that the benefits promised under this section (which must be equal to those that would have been provided under the Welfare Benefit Plans if his employment had NOT terminated) will be secondary. But those benefits may well be provided through some other vehicle other than the Welfare Benefit Plans. have previously been paid to Executive, shall repay in full to CCBF or CCB FNB and the Bank, as applicable, with interest at 8% per annum within 30 days of a final determination of Executive's ’s liability therefor as set forth below, the sum of the amounts described in Section 8(a)(i)(B8(a)(i)(A) and (CB) 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 12 of this Agreement. Any determination of whether Executive has violated such covenants shall be made by arbitration in DurhamGreensboro, 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.. Further provided, however, that if the Executive is a “specified employee” as defined in Section 409A, then the payment(s) under this Section 8(a) shall be made and/or shall begin on the first day of the seventh month following the date of the Executive’s Termination if so required by Section 409A.
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