EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into this
day of , 1997 by and between CCB Financial Corporation, a
North Carolina corporation (hereinafter, "CCB"), and Xxxxxxx X. Xxxxxxx
(hereinafter, "Executive").
BACKGROUND
Executive is the Chief Financial and Chief Operating Officer of American
Federal Bank, FSB, a federal stock savings bank ("American Federal"), which was
acquired by CCB on the date hereof pursuant to an Agreement and Plan of
Reorganization, dated as of February 17, 1997 (the "Merger Agreement") (the
"Merger").
CCB desires to employ Executive in accordance with the terms of this
Agreement. Executive is willing to serve as an employee of CCB or its subsidiary
in accordance with the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. EFFECTIVE DATE. The effective date of this Agreement (the "Effective
Date") is the date on which the effective time of the Merger occurred.
2. EMPLOYMENT. Executive will be employed as the Executive Vice President
and Chief Operating Officer of CCB's principal banking subsidiary located in
South Carolina (the "Bank"). Executive's responsibilities under this Agreement
shall be in accordance with the policies and objectives established by the
Boards of Directors of CCB and the Bank, and shall be consistent with the
responsibilities of similarly situated executives of comparable banks. In any
such capacity, Executive will report directly to the Chief Executive Officer of
the Bank.
3. EMPLOYMENT PERIOD. Unless earlier terminated in accordance with Section
6 hereof, Executive's employment shall be for a period of two years beginning on
the Effective Date (the "Employment Period").
4. EXTENT OF SERVICE. During the Employment Period, and excluding any
periods of vacation and sick leave to which Executive is entitled, Executive
agrees to devote his business time, attention, skill and efforts to the faithful
performance of his duties hereunder; provided, however, that with the approval
of the Board of Directors of CCB, Executive may serve, or continue to serve, on
the boards of directors of, and hold any other offices or positions in, such
companies or organizations, which, in such Board's judgment, will not present
any material conflict of interest with CCB or any of its subsidiaries or
affiliates or divisions, or unfavorably affect the performance of Executive's
duties pursuant to this Agreement, or will not violate any applicable statute or
regulation. During the Employment Period it shall not be a violation of this
Agreement for Executive to (i) devote reasonable periods of time to charitable
and community activities, and/or (ii) manage personal business interests and
investments, so long as such activities do not interfere with the performance of
Executive's responsibilities under this Agreement. It is expressly understood
and agreed that to the extent that any such activities have been conducted by
Executive prior to the date of this Agreement (as to which activities Executive
shall have given written notice to CCB on or before June 1, 1997), the continued
conduct of such activities (or the conduct of activities similar in nature and
scope thereto) subsequent to the Effective Date shall not thereafter be deemed
to interfere with the performance of Executive's responsibilities hereunder.
5. COMPENSATION AND BENEFITS.
(a) BASE SALARY. During the Employment Period, CCB will pay to
Executive a base salary in the amount of $193,000 per year ("Base Salary"),
less normal withholdings, payable in equal monthly or more frequent
installments as are customary under CCB's payroll practices from time to
time. The Compensation Committee of the Board of Directors of CCB shall
review Executive's Base Salary annually and in its sole discretion, subject
to approval of the Board of Directors of CCB, may adjust Executive's Base
Salary from year to year, but during the Employment Period the Board may
not decrease Executive's Base Salary below $193,000, and periodic
increases, once granted, shall not be subject to revocation. The annual
review of Executive's salary by the Board will consider, among other
things, Executive's own performance and CCB's performance.
(b) INCENTIVE, SAVINGS AND RETIREMENT PLANS. During the Employment
Period, Executive shall be entitled to participate in all incentive,
savings and retirement plans, practices, policies and programs applicable
generally to senior executive officers of CCB and its affiliated companies,
and on the same basis as such other senior executive officers, with full
credit given for Executive's total accumulated years of service at American
Federal for purposes of determining vesting and eligibility. Without
limiting the foregoing, the following shall apply.
(i) Executive's incentive bonus under CCB's regular incentive plan
for 1997 shall be on the basis of a full year of service (I.E., not
prorated as of the Effective Date).
(ii) In addition to any bonus earned by Executive pursuant to CCB's
regular incentive plans, CCB shall pay to Executive a monthly bonus for
each of the 24 months immediately following the Effective Date in the
amount of $15,800 (the "Signing Bonus"); provided that in the event the
employment of Executive is terminated (other than a termination for
Cause under Section 6(b) (ii) or (iii) of this Agreement), CCB shall pay
to Executive, at the time of his termination of employment, a lump sum
equal to the sum of the monthly payments of the Signing Bonus that
remain unpaid at the time of Executive's termination of employment. If
Executive's employment is terminated for Cause under Section 6(b) (ii)
or (iii) of this Agreement, then CCB's obligation to pay the Signing
Bonus shall cease as of the date of termination; otherwise such
obligation shall continue on the basis set forth above, regardless of
Executive's employment status.
(iii) Executive's retirement shall be under the terms of the
regular CCB retirement plan(s) then in effect, but with the benefits
provided under the American Federal [Retirement Plan].
(iv) Beginning January 1, 1998, Executive may terminate his
employment hereunder for any reason or no reason. Upon such termination,
and contingent upon his compliance with the covenant-not-to-compete
contained in Section 11(a) of this Agreement, CCB shall pay to
Executive, for the month during which the Executive's termination of
employment occurs if such termination occurs on or before the 15th of
such month (or for the first full month following Executive's
termination of employment if such termination occurs after the 15th of
such month) and for each month thereafter until January 1, 2002 (the
"Covenant Months"), in addition to any retirement or other benefits to
which he may be entitled, a monthly payment for each of the Covenant
Months in the amount of $9,500 (the "Covenant Payment"). During the
period Covenant Payments are made, Executive and/or his dependents will
be entitled to participate in CCB's medical plans at his expense as
though he were an employee of CCB.
(c) WELFARE BENEFIT PLANS. During the Employment Period, Executive
and/or Executive's family, as the case may be, shall be eligible for
participation in and shall receive all benefits under welfare benefit
plans, practices, policies and programs provided by CCB and its affiliated
companies (including, without limitation, medical, prescription, dental,
disability, employee life, group life, accidental death and travel accident
insurance plans and programs) to the extent applicable generally to senior
executive officers of CCB and its affiliated companies, with full credit
given for Executive's total accumulated years of service at American
Federal for purposes of determining vesting and eligibility (other than
under CCB's retiree medical plan).
(d) EXPENSES. During the Employment Period, Executive shall be
entitled to receive prompt reimbursement for all reasonable expenses
incurred by Executive in accordance with the policies, practices and
procedures of CCB and its affiliated companies to the extent applicable
generally to other senior executive officers of CCB and its affiliated
companies.
(e) Fringe Benefits. During the Employment Period, Executive shall be
entitled to fringe benefits in accordance with the plans, practices,
programs and policies of CCB and its affiliated companies in effect for
senior executive officers of CCB and its affiliated companies.
6. TERMINATION OF EMPLOYMENT.
(a) DEATH OR DISABILITY. Executive's employment shall terminate
automatically upon Executive's death during the Employment Period. If CCB
determines in good faith that the Disability of Executive has occurred
during the Employment Period (pursuant to the definition of Disability set
forth below), it may give to Executive written notice in accordance with
Section 13(g) of this Agreement of its intention to terminate Executive's
employment. In such event, Executive's employment shall terminate effective
on the 60th day after receipt of such written notice by Executive (the
"Disability Effective Date"), provided that, within the 60 days after such
receipt, Executive shall not have returned to full-time performance of
Executive's duties for a period of at least 30 days. For purposes of this
Agreement, "Disability" shall mean the absence of Executive from
Executive's duties with CCB on a full-time basis for 180 consecutive days
as
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a result of incapacity due to mental or physical illness which is
determined to be total and permanent by a physician selected by CCB or its
insurers and acceptable to Executive or Executive's legal representative,
which acceptance shall not be unreasonably withheld.
(b) CAUSE. CCB may terminate Executive's employment during the
Employment Period for Cause. For purposes of this Agreement, "Cause" shall
mean:
(i) the willful and continued failure of Executive to perform
Executive's duties with CCB or one of its affiliates (other than any
such failure resulting from incapacity due to physical or mental
illness), after a written demand for performance is delivered to
Executive by the Board or the Chief Executive Officer of CCB which
specifically identifies the manner in which the Board or Chief Executive
Officer believes that Executive has not performed Executive's duties;
(ii) Executive's personal dishonesty, willful misconduct, or breach
of a fiduciary duty from which he derives a personal profit;
(iii) Executive's willful violation of any law, rule or regulation
(other than traffic violations or similar offenses) or final cease and
desist order; or
(iv) Executive's willful breach of any material term or condition
of this Agreement.
For purposes of this provision, no act or failure to act, on the part of
Executive, shall be considered "willful" or a breach of fiduciary duty
unless it is done, or omitted to be done, by Executive in bad faith or
without reasonable belief that Executive's action or omission was in the
best interests of CCB. Any act, or failure to act, based upon authority
given pursuant to a resolution duly adopted by the Board or upon the
instructions of the Chief Executive Officer of CCB or based upon the advice
of counsel for CCB after consultation with the Chief Executive Officer
about such advice shall be conclusively presumed to be done, or omitted to
be done, by Executive in good faith and in the best interests of CCB. The
cessation of employment of Executive shall not be deemed to be for Cause
unless and until there shall have been delivered to Executive a copy of a
resolution duly adopted by the affirmative vote of not less than
three-quarters of the entire membership of the Board at a meeting of the
Board called and held for such purpose (after reasonable notice is provided
to Executive and Executive is given an opportunity, together with counsel,
to be heard before the Board), finding that, in the good faith opinion of
the Board, Executive is guilty of the conduct described in subparagraph
(i), (ii), (iii) or (iv) above, and specifying the particulars thereof in
detail. For purposes of this Section 6(b), any such finding by
three-quarters of the Board shall be conclusive.
(c) GOOD REASON. Executive's employment may be terminated by Executive
for Good Reason. For purposes of this Agreement, "Good Reason" shall mean:
(i) the assignment to Executive of any duties materially
inconsistent with Executive's position (including status, offices,
titles and reporting requirements), authority, duties or
responsibilities as contemplated by Section 2(a) of this Agreement, or
any other action by CCB which results in a material diminution in such
position, authority, duties or responsibilities, excluding for this
purpose an isolated, insubstantial and inadvertent action not taken in
bad faith and which is remedied by CCB promptly after receipt of notice
thereof given by Executive;
(ii) any failure by CCB to comply with any of the provisions of
Section 5 of this Agreement, other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith and which is remedied by
CCB promptly after receipt of written notice thereof given by Executive;
(iii) any relocation, to which Executive has not agreed, to an
office of CCB or the Bank more than 35 miles (by most direct highway
route) from the location of his office as of the Effective Date or any
increase in Executive's required business travel, to which Executive has
not agreed, amounting to a constructive relocation; provided, however,
that Executive agrees that travel reasonably required in the ordinary
course of business to CCB's headquarters in Durham, North Carolina, or
between CCB's or its subsidiaries' banking offices in South Carolina
will not constitute a constructive relocation.
(iv) any purported termination by CCB of Executive's employment
otherwise than as expressly permitted by this Agreement; or
(v) any failure by CCB to comply with and satisfy Section 12(b) of
this Agreement; or
(vi) beginning January 1, 1998, any reason or no reason.
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For purposes of this Section 6(c), any good faith determination of "Good
Reason" made by Executive shall be conclusive.
(d) NOTICE OF TERMINATION. Any termination by CCB for Cause, or by
Executive for Good Reason, shall be communicated by Notice of Termination
to the other party hereto given in accordance with Section 13(g) of this
Agreement. For purposes of this Agreement, a "Notice of Termination" means
a written notice which (i) indicates the specific termination provision in
this Agreement relied upon, (ii) to the extent applicable, sets forth in
reasonable detail the facts and circumstances claimed to provide a basis
for termination of Executive's employment under the provision so indicated
and (iii) if the Date of Termination (as defined below) is other than the
date of receipt of such notice, specifies the termination date (which date
shall be not more than 30 days after the giving of such notice). The
failure by Executive or CCB to set forth in the Notice of Termination any
fact or circumstance which contributes to a showing of Good Reason or Cause
shall not waive any right of Executive or CCB, respectively, hereunder or
preclude Executive or CCB, respectively, from asserting such fact or
circumstance in enforcing Executive's or CCB's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i) if
Executive's employment is terminated by CCB for Cause, or by Executive for
Good Reason, the date of receipt of the Notice of Termination or any later
date specified therein, as the case may be, (ii) if Executive's employment
is terminated by CCB other than for Cause or Disability, the Date of
Termination shall be the date on which CCB notifies Executive of such
termination, and (iii) if Executive's employment is terminated by reason of
death or Disability, the Date of Termination shall be the date of death of
Executive or the Disability Effective Date, as the case may be.
7. OBLIGATIONS OF CCB UPON TERMINATION.
(a) GOOD REASON; OTHER THAN FOR CAUSE, DEATH OR DISABILITY. If, during
the Employment Period, CCB shall terminate Executive's employment other
than for Cause, death or Disability, or Executive shall terminate
employment for Good Reason, then in consideration of Executive's services
rendered prior to such termination and as reasonable compensation for his
compliance with the restrictive covenants set forth in Section 11 of this
Agreement:
(i) CCB shall pay to Executive, in 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 cash incentive bonus for the last completed fiscal year
("Most Recent Annual Bonus"), and (y) a fraction, the numerator of
which is the number of days in the current fiscal year through the
Date of Termination, and the denominator of which is 365, and (3) any
compensation previously deferred by Executive (together with any
accrued interest or earnings thereon) and any accrued vacation pay, in
each case to the extent not theretofore paid (the sum of the amounts
described in clauses (1), (2), and (3) shall be hereinafter referred
to as the "Accrued Obligations"); and
B. the amount equal to the product of (1) the number of days
remaining after the Date of Termination until January 1, 1998 (the
"Remaining Employment Period"), and (2) Executive's Base Salary
divided by 365; and
C. the amount equal to the product of (1) the number of days in
the Remaining Employment Period, and (2) Executive's Most Recent
Annual Bonus divided by 365; and
D. any remaining installments of the Signing Bonus; and
E. an amount equal to the excess of (a) the actuarial equivalent
of the benefit under CCB's qualified defined benefit retirement plan
(the "Retirement Plan") (utilizing actuarial assumptions no less
favorable to Executive than those in effect under CCB's Retirement
Plan on the Date of Termination), and any excess or supplemental
retirement plans in which Executive participates (together, the
"SERP") which Executive would receive if Executive's employment
continued throughout the Remaining Employment Period, assuming for
this purpose that all accrued benefits are fully vested, and, assuming
that Executive's compensation in each remaining year of the Employment
Period is the Base Salary plus the Most Recent Annual Bonus, over (b)
the actuarial equivalent of Executive's actual benefit (paid or
payable), if any, under the Retirement Plan and the SERP as of the
Date of Termination;
(ii) CCB shall pay to Executive the Covenant Payment as provided in
Section 5(b) (iv) of this Agreement;
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(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, CCB shall continue benefits to Executive and/or Executive's
family at least equal to those which would have been provided to them in
accordance with the plans, programs, practices and policies described in
Section 5(c) 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 medical or other
welfare benefits under another employer provided plan, the medical and
other welfare benefits described herein shall be secondary to those
provided under such other plan 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 plans, practices,
programs and policies, Executive shall be considered to have remained
employed throughout the Remaining Employment Period and to have retired
on the last day of such period;
(iv) to the extent not theretofore paid or provided, CCB shall
timely pay or provide to Executive any other amounts or benefits
required to be paid or provided or which Executive is eligible to
receive under any plan, program, policy or practice or contract or
agreement of CCB and its affiliated companies (such other amounts and
benefits shall be hereinafter referred to as the "Other Benefits"); and
(v) 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 CCB with interest at 8% per annum within thirty (30) days of
a final determination of Executive's liability therefor as set forth
below, the amount described in Sections 7(a)(i)(B) and (C) and Section
7(a) (ii) of this Agreement if at any time during the period Covenant
Payments are made (the "Restricted Period") he violates the restrictive
covenants set forth in Section 11 of this Agreement. Any determination
of whether Executive has violated such covenants shall be made by
arbitration in Greenville, South Carolina under the Rules of Commercial
Arbitration (the "Rules") of the American Arbitration Association, which
Rules are deemed to be incorporated by reference herein; provided,
however, that either party may seek equitable remedies in court.
(b) DEATH. If Executive's employment is terminated by reason of
Executive's death during the Employment Period, this Agreement shall
terminate without further obligations to Executive's legal representatives
under this Agreement, other than for payment of Accrued Obligations and the
timely payment or provision of Other Benefits. Accrued Obligations shall be
paid to Executive's estate or beneficiary, as applicable, in a lump sum in
cash within 30 days of the Date of Termination. With respect to the
provision of Other Benefits, the term Other Benefits as utilized in this
Section 7(b) shall include, without limitation, and Executive's estate
and/or beneficiaries shall be entitled to receive, (i) benefits under such
plans, programs, practices and policies relating to death benefits, if any,
as applicable generally to senior executive officers of CCB and its
affiliated companies and their beneficiaries, and on the same basis as such
senior executive officers and their beneficiaries, with full credit given
for Executive's total accumulated years of service at American Federal for
purposes of determining vesting and eligibility, and (ii) any remaining
installments of the Signing Bonus.
(c) DISABILITY. If Executive's employment is terminated by reason of
Executive's Disability during the Employment Period, this Agreement shall
terminate without further obligations to Executive, other than for payment
of Accrued Obligations and the timely payment or provision of Other
Benefits. Accrued Obligations shall be paid to Executive in a lump sum in
cash within 30 days of the Date of Termination. With respect to the
provision of Other Benefits, the term Other Benefits as utilized in this
Section 7(c) shall include, without limitation, and Executive shall be
entitled after the Disability Effective Date to receive, (i) disability and
other benefits under such plans, programs, practices and policies relating
to disability, if any, as applicable generally to senior executive officers
of CCB and its affiliated companies and their families, and on the same
basis as such senior executive officers and their families, with full
credit given for Executive's total accumulated years of service at American
Federal for purposes of determining vesting and eligibility, and (ii) any
remaining installments of the Signing Bonus.
(d) CAUSE; OTHER THAN FOR GOOD REASON. If Executive's employment shall
be terminated for Cause during the Employment Period, this Agreement shall
terminate without further obligations to Executive other than the
obligation to pay to Executive (x) his Base Salary through the Date of
Termination, (y) the amount of any compensation previously deferred by
Executive, and (z) Other Benefits, in each case to the extent theretofore
unpaid. If Executive voluntarily terminates employment before January 1,
1998, excluding a termination for Good Reason, this Agreement shall
terminate without further obligations to Executive, other than for Accrued
Obligations and the timely payment or provision of Other Benefits. In such
case, all Accrued Obligations shall be paid to Executive in a lump sum in
cash within 30 days of
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the Date of Termination. With respect to the provision of Other Benefits,
unless the termination of Executive's Employment was for Cause as defined
in clause (ii) or (iii) of Section 6(b), the term Other Benefits as
utilized in this Section 7(d) shall include, without limitation, the
Signing Bonus.
8. MANDATORY REDUCTION OF PAYMENTS IN CERTAIN EVENTS.
(a) Anything in this Agreement to the contrary notwithstanding, in the
event it shall be determined that any payment or distribution by the
Company to or for the benefit of the Executive (whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise) (a "Payment") would be subject to the excise tax imposed by
Section 4999 of the Code (the "Excise Tax"), then, prior to the making of
any Payment to the Executive, a calculation shall be made comparing (i) the
net benefit to the Executive of the Payment after payment of the Excise
Tax, to (ii) the net benefit to the Executive if the Payment had been
limited to the extent necessary to avoid being subject to the Excise Tax.
If the amount calculated under (i) above is less than the amount calculated
under (ii) above, then the Payment shall be limited to the extent necessary
to avoid being subject to the Excise Tax.
(b) The determination of whether an Excise Tax would be imposed, the
amount of such Excise Tax, and the calculation of the amounts referred to
Section 8(a) (i) and (ii) above shall be made by the Company's regular
independent accounting firm at the expense of the Company or, at the
election and expense of the Executive, another nationally recognized
independent accounting firm (the "Accounting Firm") which shall provide
detailed supporting calculations. Any determination by the Accounting Firm
shall be binding upon the Company and the Executive. As a result of the
uncertainty in the application of Section 4999 of the Code at the time of
the initial determination by the Accounting Firm hereunder, it is possible
that Payments which the Executive was entitled to, but did not receive
pursuant to Section 8(a), could have been made without the imposition of
the Excise Tax ("Underpayment"). In such event, the Accounting Firm shall
determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to or for the benefit of
the Executive.
9. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent or
limit Executive's continuing or future participation in any plan, program,
policy or practice provided by CCB or any of its affiliated companies and for
which Executive may qualify, nor, subject to Section 13(e), shall anything
herein limit or otherwise affect such rights as Executive may have under any
contract or agreement with CCB or any of its affiliated companies. Amounts which
are vested benefits or which Executive is otherwise entitled to receive under
any plan, policy, practice or program of or any contract or agreement with CCB
or any of its affiliated companies at or subsequent to the Date of Termination
shall be payable in accordance with such plan, policy, practice or program or
contract or agreement except as explicitly modified by this Agreement.
10. FULL SETTLEMENT. CCB's obligation to make the payments provided for in
this Agreement and otherwise to perform its obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim, right
or action which CCB may have against Executive or others. In no event shall
Executive be obligated to seek other employment or take any other action by way
of mitigation of the amounts payable to Executive under any of the provisions of
this Agreement and such amounts shall not be reduced whether or not Executive
obtains other employment. CCB agrees to pay as incurred, to the full extent
permitted by law, all legal fees and expenses which Executive may reasonably
incur as a result of any contest (to the extent that Executive is successful, in
whole or in part, in such contest) by CCB, Executive or others of the validity
or enforceability of, or liability under, any provision of this Agreement or any
guarantee of performance thereof (including as a result of any contest by
Executive about the amount of any payment pursuant to this Agreement), plus in
each case interest on any delayed payment at the applicable federal rate
provided for in Section 7872(f)(2)(A) of the Internal Revenue Code of 1986, as
amended (the "Code").
11. COVENANTS.
(a) COVENANT NOT TO COMPETE. During the Restricted Period (as defined
in Section 7(a) (iv) of this Agreement), Executive shall not, within the
States of South Carolina and North Carolina, directly or indirectly, in any
capacity, render his services, or engage or have a financial interest in,
any business that shall be competitive with any of those business
activities in which CCB or its subsidiaries are engaged as of the date of
Executive's termination of employment, which business activities include
the provision of banking and related financial services (collectively, the
"Business"); provided, however, that Executive's beneficial ownership of 3%
or less of any class of securities listed for trading on a national
securities exchange or traded on the Nasdaq National Market or in the
over-the-counter market and reported by Nasdaq shall not constitute a
"financial interest" in violation of this covenant. If a court determines
that the foregoing restrictions are too broad or otherwise unreasonable
under applicable law, including with respect to time or
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territory, the court is hereby requested and authorized by the parties
hereto to revise the foregoing restriction to include the maximum
restrictions allowable under applicable law.
(b) COVENANT NOT TO SOLICIT CUSTOMERS. During the Restricted Period,
Executive shall not, directly or indirectly, individually or on behalf of
any other person, partnership, limited liability company, corporation or
other entity ("Person") (other than CCB or an affiliate), solicit the
provision of services included in the Business to any Person who is or was
(i) a customer of CCB or any of its affiliates for whom CCB or any of its
affiliates provided services included in the Business during any part of
the 12-month period immediately prior to the date of Executive's
termination as an employee of CCB or the Bank, or (ii) a potential customer
of CCB or any of its affiliates to whom CCB or any of its affiliates
solicited the provision of services included in the Business during any
part of the 12-month period immediately prior to the date of Executive's
termination as an employee of CCB or the Bank.
(c) COVENANT NOT TO SOLICIT EMPLOYEES. During the Restricted Period,
Executive shall not, directly or indirectly, individually or on behalf of
any other Person, solicit, recruit or entice, directly or indirectly, any
employee of CCB or its affiliates to leave the employment of CCB or such
affiliate to work with Executive or with any Person with which Executive is
or becomes affiliated or associated.
(d) REASONABLENESS OF SCOPE AND DURATION. The parties hereto agree
that the covenants and agreements contained in this Section 11 are
reasonable in their scope and duration, and they intend that they be
enforced, and no party shall raise any issue of the reasonableness of the
scope or duration of any such covenants in any proceeding to enforce any
such covenants.
(e) ENFORCEABILITY. Executive agrees that monetary damages would not
be a sufficient remedy for any breach or threatened breach of the
provisions of this Section 11, and that in addition to all other rights and
remedies available to CCB, CCB shall be entitled to specific performance
and injunctive or other equitable relief as a remedy for any such breach or
threatened breach.
(f) SEPARATE COVENANTS AND SEVERABILITY. The covenants and agreements
contained in this Section 11 shall be construed as separate and independent
covenants. Should any part or provision of any such covenant or agreement
be held invalid, void or unenforceable in any court of competent
jurisdiction, no other part or provision of this Agreement shall be
rendered invalid, void or unenforceable as a result. If any portion of the
foregoing provisions is found to be invalid or unenforceable by a court of
competent jurisdiction unless modified, it is the intent of the parties
that the otherwise invalid or unreasonable term shall be reformed, or a new
enforceable term provided, so as to most closely effectuate the provisions
as is validly possible.
12. ASSIGNMENT AND SUCCESSORS.
(a) EXECUTIVE. This Agreement is personal to Executive and without the
prior written consent of CCB shall not be assignable by Executive otherwise
than by will or the laws of descent and distribution. This Agreement shall
inure to the benefit of and be enforceable by Executive's legal
representatives.
(b) CCB. This Agreement shall inure to the benefit of and be binding
upon CCB and its successors and assigns. CCB will require any successor
(whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of CCB
to assume expressly and agree to perform this Agreement in the same manner
and to the same extent that CCB would be required to perform it if no such
succession had taken place. As used in this Agreement, "CCB" shall mean CCB
as hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation
of law or otherwise.
13. MISCELLANEOUS.
(a) NO MITIGATION. Executive shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other
employment or otherwise and no such payment shall be offset or reduced by
the amount of any compensation or benefits provided to Executive in any
subsequent employment.
(b) WAIVER. Failure of either party to insist, in one or more
instances, on performance by the other in strict accordance with the terms
and conditions of this Agreement shall not be deemed a waiver or
relinquishment of any right granted in this Agreement or of the future
performance of any such term or condition or of any other term or condition
of this Agreement, unless such waiver is contained in a writing signed by
the party making the waiver.
(c) SEVERABILITY. If any provision or covenant, or any part thereof,
of this Agreement should be held by any court to be invalid, illegal or
unenforceable, either in whole or in part, such invalidity, illegality or
unenforceability shall not
7
affect the validity, legality or enforceability of the remaining provisions
or covenants, or any part thereof, of this Agreement, all of which shall
remain in full force and effect.
(d) OTHER AGENTS. Nothing in this Agreement is to be interpreted as
limiting CCB from employing other personnel on such terms and conditions as
may be satisfactory to it.
(e) ENTIRE AGREEMENT. On the date hereof, Executive and American
Federal have entered into a separate Employment Agreement which relates
specifically to Executive's employment as the Executive Vice President and
Chief Operating Officer of American Federal and contains certain bank
regulatory limitations imposed by the Office of Thrift Supervision and the
Federal Deposit Insurance Corporation (the "AFB Agreement"). Except as
provided herein or in the AFB Agreement, this Agreement contains the entire
agreement between CCB and Executive with respect to the subject matter
hereof and that it supersedes and invalidates any previous agreements or
contracts including employment agreements (other than the AFB Agreement),
including, without limitation, that certain Amended and Restated Employment
Agreement, dated September 1, 1993, as further amended and restated as of
March 20, 1997, by and between American Federal and Executive. No
representations, inducements, promises or agreements, oral or otherwise,
which are not embodied herein or in the AFB Agreement, shall be of any
force or effect.
(f) GOVERNING LAW. Except to the extent preempted by federal law, the
laws of the State of North Carolina shall govern this Agreement in all
respects, whether as to its validity, construction, capacity, performance
or otherwise.
(g) NOTICES. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to
have been duly given if delivered or seven days after mailing if mailed,
first class, certified mail, postage prepaid:
To CCB: CCB Financial Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxx Xxxxxxxx 00000-0000
Facsimile No. (000) 000-0000
Attention: Chief Executive Officer
To Executive: Xxxxxxx X. Xxxxxxx
000 Xxxx XxXxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Facsimile No. (000) 000-0000
Any party may change the address to which notices, requests, demands and
other communications shall be delivered or mailed by giving notice thereof
to the other party in the same manner provided herein.
(h) AMENDMENTS AND MODIFICATIONS. This Agreement may be amended or
modified only by a writing signed by both parties hereto, which makes
specific reference to this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Employment Agreement as of the date first above written.
CCB FINANCIAL CORPORATION
By:
Title:
TRIMBLE:
XXXXXXX X. XXXXXXX
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