EXHIBIT 10.6
Employment AGREEMENT
This EMPLOYMENT Agreement (this "Agreement") is made and entered into
this 18th day of July, 2000 by and among Centura Banks, Inc., a North Carolina
corporation ("Centura"), and Xxxxxxx X. Xxxxxxxxx (hereinafter, "Executive"), to
be effective as of the Effective Date, as defined in Section 1.
BACKGROUND
Executive currently serves as an executive officer of Centura. Centura
and Executive desire to memorialize the terms of such employment in accordance
with the terms 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 is July 12,
2000 (the "Effective Date").
2. Position. Executive is hereby employed as an executive officer of
Centura. Executive's responsibilities under this Agreement shall be in
accordance with the policies and objectives established by the Board of
Directors, and shall be consistent with the responsibilities of similarly
situated executives of comparable bank holding companies. In each such capacity,
Executive will report directly to the Chief Executive Officer of Centura.
3. Employment Period. Unless earlier terminated herein in accordance
with Section 7 hereof, Executive's employment shall be for a term (the
"Employment Period") beginning on the Effective Date and extending through the
90th day following the Executive's 58th birthday (the "Expiration Date").
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 reasonable business time and attention during normal business
hours to the performance of his duties hereunder; provided, however, that it
shall not be a violation of this Agreement for Executive to (i) devote
reasonable periods of time to charitable and community activities and, with the
approval of Centura, industry or professional activities, and/or (ii) manage
personal business interests and investments, so long as such activities do not
materially interfere with the performance of Executive's responsibilities under
this Agreement.
5. Compensation and Benefits.
(a) Base Salary. During the Employment Period, Centura will
pay to Executive base salary at the rate of U.S. $310,000 per year ("Base
Salary"), less normal withholdings, payable in equal monthly or more frequent
installments as are customary under Centura's payroll practices from time to
time. The Compensation Committee of the Board of Directors of Centura shall
review Executive's Base Salary annually and in its sole discretion, may increase
Executive's Base Salary from year to year. The annual review of Executive's
salary by the Committee will consider, among other things, Executive's own
performance and Centura's performance.
(b) Incentive, Savings and Retirement Plans. During the
Employment Period, Executive shall be entitled to participate in all bonus,
incentive (including but not limited to stock options, other stock-based awards
and performance awards), savings and retirement plans, practices, policies and
programs applicable generally to senior executive officers of Centura ("Peer
Executives"). Without limiting the foregoing, during the Employment Period,
Executive shall be a participant in a Supplemental Executive Retirement
Agreement with Centura (the "Centura SERP") having substantially the same terms
as that certain Supplemental Executive Retirement Agreement between Centura and
Xxxxx X. Xxxxxx, Xx., dated as of May 14, 1996, as amended on October 2, 1996
and December 24, 1998, or, if more favorable, any subsequent supplemental
executive retirement plan or agreement between Centura and Peer Executives.
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(c) Welfare Benefit Plans. During the Employment Period,
Executive and Executive's family shall be eligible for participation in, and
shall receive all benefits under, the welfare benefit plans, practices, policies
and programs provided by Centura and its affiliated companies (including,
without limitation, medical, prescription, dental, disability, employee life,
group life, accidental death and travel accident insurance plans and programs)
("Welfare Plans") to the extent applicable to Peer Executives.
(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 Centura
and its affiliated companies in effect for Peer Executives.
(e) Fringe Benefits. During the Employment Period, Executive
shall be entitled to fringe benefits in accordance with the plans, practices,
programs and policies of Centura and its affiliated companies in effect for Peer
Executives. In all events, Executive shall be entitled to fringe benefits at
least as favorable as those he was receiving immediately prior to the Effective
Date.
(f) Vacation. During the Employment Period, Executive will be
entitled to six weeks of paid vacation.
6. Change of Control. Upon the occurrence of a Change in Control, all
of Executive's outstanding stock options and other incentive awards from Centura
in the nature of rights that may be exercised shall become fully exercisable and
all restrictions on Executive's outstanding awards shall lapse. For the purposes
of this Agreement, a "Change of Control" shall mean the occurrence of any of the
following events:
(a) individuals who, at the Effective Date, constitute the
Board of Directors of Centura (the "Incumbent Directors") cease for any reason
to constitute at least a majority of such Board, provided that any person
becoming a director after the Effective Date and whose election or nomination
for election was approved by a vote of at least a majority of the Incumbent
Directors then on the Board (either by a specific vote or by approval of the
proxy statement of Centura in which such person is named as a nominee for
director, without written objection to such nomination) shall be an Incumbent
Director; provided, however, that no individual initially elected or nominated
as a director of Centura as a result of an actual or threatened election contest
(as described in Rule 14a-11 under the 1934 Act ("Election Contest") or other
actual or threatened solicitation of proxies or consents by or on behalf of any
"person" (as such term is defined in Section 3(a)(9) of the 1934 Act and as used
in Section 13(d)(3) and 14(d)(2) of the 0000 Xxx) other than the Board ("Proxy
Contest"), including by reason of any agreement intended to avoid or settle any
Election Contest or Proxy Contest, shall be deemed an Incumbent Director;
(b) any person is or becomes a "beneficial owner" (as defined
in Rule 13d-3 under the 1934 Act), directly or indirectly, of securities of
Centura representing 25% or more of the combined voting power of Centura's then
outstanding securities eligible to vote for the election of the Board (the
"Company Voting Securities"); provided, however, that the event described in
this paragraph (b) shall not be deemed to be a Change in Control of Centura by
virtue of any of the following acquisitions: (A) any acquisition by a person who
is on the Effective Date the beneficial owner of 25% or more of the outstanding
Company Voting Securities, (B) an acquisition by Centura which reduces the
number of Company Voting Securities outstanding and thereby results in any
person acquiring beneficial ownership of more than 25% of the outstanding
Company Voting Securities; provided, that if after such acquisition by Centura
such person becomes the beneficial owner of additional Company Voting Securities
that increases the percentage of outstanding Company Voting Securities
beneficially owned by such person, a Change in Control of Centura shall then
occur, (C) an acquisition by any employee benefit plan (or related trust)
sponsored or maintained by Centura or any Parent or Subsidiary, (C) an
acquisition by an underwriter temporarily holding securities pursuant to an
offering of such securities, (D) an acquisition pursuant to a Non-Qualifying
Transaction (as defined in paragraph (c) below), or (E) a transaction (other
than the one described in paragraph (c) below) in which Company Voting
Securities are acquired from Centura, if a majority of the Incumbent Directors
approve a resolution providing expressly that the acquisition pursuant to this
clause (E) does not constitute a Change in Control of Centura under this
paragraph (b);
(c) the consummation of a reorganization, merger,
consolidation, statutory share exchange or similar form of corporate transaction
involving Centura that requires the approval of Centura's stockholders, whether
for such transaction or the issuance of securities in the transaction (a
"Reorganization"), or the sale or other
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disposition of all or substantially all of Centura's assets to an entity that is
not an affiliate of Centura (a "Sale"), unless immediately following such
Reorganization or Sale: (A) more than 50% of the total voting power of (x) the
corporation resulting from such Reorganization or the corporation which has
acquired all or substantially all of the assets of Centura (in either case, the
"Surviving Corporation"), or (y) if applicable, the ultimate parent corporation
that directly or indirectly has beneficial ownership of 100% of the voting
securities eligible to elect directors of the Surviving Corporation (the "Parent
Corporation"), is represented by Centura Voting Securities that were outstanding
immediately prior to such Reorganization or Sale (or, if applicable, is
represented by shares into which such Company Voting Securities were converted
pursuant to such Reorganization or Sale), and such voting power among the
holders thereof is in substantially the same proportion as the voting power of
such Company Voting Securities among the holders thereof immediately prior to
the Reorganization or Sale, (B) no person (other than (x) Centura, (y) any
employee benefit plan (or related trust) sponsored or maintained by the
Surviving Corporation or the Parent Corporation, or (z) a person who immediately
prior to the Reorganization or Sale was the beneficial owner of 25% or more of
the outstanding Company Voting Securities) is the beneficial owner, directly or
indirectly, of 25% or more of the total voting power of the outstanding voting
securities eligible to elect directors of the Parent Corporation (or, if there
is no Parent Corporation, the Surviving Corporation), and (C) at least a
majority of the members of the board of directors of the Parent Corporation (or,
if there is no Parent Corporation, the Surviving Corporation) following the
consummation of the Reorganization or Sale were Incumbent Directors at the time
of the Board's approval of the execution of the initial agreement providing for
such Reorganization or Sale (any Reorganization or Sale which satisfies all of
the criteria specified in (A), (B) and (C) above shall be deemed to be a
"Non-Qualifying Transaction"); or
(d) approval by the stockholders of Centura of a complete
liquidation or dissolution of Centura.
7. Termination of Employment.
(a) Death or Disability. Executive's employment shall
terminate automatically upon Executive's death during the Employment Period. If
Centura 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 of its intention to terminate
Executive's employment. In such event, Executive's employment with Centura shall
terminate effective on the 30th day after receipt of such written notice by
Executive (the "Disability Effective Date"), provided that, within the 30 days
after such receipt, Executive shall not have returned to full-time performance
of Executive's duties. For purposes of this Agreement, "Disability" shall have
the meaning assigned such term in the Centura SERP. In all events, the
determination of Disability shall be made by a physician selected by Executive
and reasonably acceptable to Centura.
(b) Termination by Centura. Centura may terminate Executive's
employment during the Employment Period with or without Cause. For purposes of
this Agreement, "Cause" shall mean:
(i) the willful and continued failure of Executive to
perform substantially Executive's duties with Centura (other than any such
failure resulting from incapacity due to physical or mental illness, and
specifically excluding any failure by Executive, after reasonable efforts, to
meet performance expectations), after a written demand for substantial
performance is delivered to Executive by the Chief Executive Officer or the
Board of Directors of Centura, which specifically identifies the manner in which
the Chief Executive Officer or the Board believes that Executive has not
substantially performed Executive's duties, or
(ii) the willful engaging by Executive in illegal
conduct or gross misconduct which is materially and demonstrably injurious to
Centura.
For purposes of this provision, no act or failure to act, on the part
of Executive, shall be considered "willful" unless it is done, or omitted to be
done, by Executive in bad faith and without reasonable belief that Executive's
action or omission was in the best interests of Centura. Any act, or failure to
act, based upon authority given pursuant to a resolution duly adopted by the
applicable Board of Directors or based upon the advice of counsel for Centura
shall be conclusively presumed to be done, or omitted to be done, by Executive
in good faith and in the best interests of Centura. 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
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vote of not less than two-thirds of the entire membership of the applicable
Board of Directors (excluding Executive) at a meeting of such 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
such Board), finding that, in the good faith opinion of such Board, Executive is
guilty of the conduct described in subparagraph (i) or (ii) above, and
specifying the particulars thereof in detail.
(c) Termination by Executive. Executive's employment may be
terminated by Executive for Good Reason or no reason. For purposes of this
Agreement, "Good Reason" shall mean:
(i) without the written consent of Executive, the
assignment to Executive of any duties inconsistent in any material respect with
Executive's position (including status and reporting requirements), authority,
duties or responsibilities as in effect on the Effective Date, or any other
action by Centura which results in a 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 Centura promptly after receipt of notice thereof given by Executive;
(ii) without the written consent of Executive,
Centura requiring Executive to be based at a location that is more than 35 miles
from Rocky Mount, North Carolina;
(iii) a reduction in Executive's Base Salary and
benefits as in effect on the Effective Date or as the same may be increased from
time to time;
(iv) the failure by Centura (a) to continue in effect
any compensation plan in which Executive participates as of the Effective Date
that is material to Executive's total compensation, unless an equitable
arrangement (embodied in an ongoing substitute or alternative plan) has been
made with respect to such plan, or (b) to continue Executive's participation
therein (or in such substitute or alternative plan) on a basis not materially
less favorable, both in terms of the amount of benefits provided and the level
of Executive's participation relative to other participants; or
(v) the material breach of this Agreement by Centura;
or
(vi) the occurrence of a Change in Control.
(d) Notice of Termination. Any termination by Centura for
Cause, or by Executive for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with 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) specifies the termination
date (which date shall be not less than 60 days after the giving of such
notice). If a dispute exists concerning the provisions of this Agreement that
apply to Executive's termination of employment, the parties shall pursue the
resolution of such dispute with reasonable diligence. Within five (5) days of
such a resolution, any party owing any payments pursuant to the provisions of
this Agreement shall make all such payments together with interest accrued
thereon at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue
Code of 1986, as amended (the "Code"). The failure by either party 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 such party
hereunder or preclude such party from asserting such fact or circumstance in
enforcing such party's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i) if
Executive's employment is terminated other than by reason of death or
Disability, the date of receipt of the Notice of Termination, or any later date
specified therein, or (ii) if Executive's employment is terminated by reason of
death or Disability, the Date of Termination will be the date of death or the
Disability Effective Date, as the case may be.
(f) Board Resignations. Termination of Executive's employment
for any reason whatsoever shall constitute Executive's resignation from the
Board of Directors of Centura.
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8. Obligations of Centura upon Termination.
(a) Termination by Executive for Good Reason; Disability;
Termination by Centura Other Than for Cause. If, during the Employment Period,
Centura shall terminate Executive's employment other than for Cause, Executive
shall terminate employment for Good Reason, or Executive's employment shall
terminate by reason of Disability:
(i) Centura shall pay to Executive in a lump sum in
cash within 30 days after the Date of Termination 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 highest annual bonus from Centura, including
any bonus or portion thereof which has been earned but deferred, for any of the
last three full fiscal years prior to the Date of Termination (such amount being
referred to as the "Highest 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, (3) any accrued vacation pay
to the extent not theretofore paid, and (4) unless Executive has elected a
different payout date in a prior deferral election, any compensation previously
deferred by Executive (together with any accrued interest or earnings thereon)
to the extent not theretofore paid (the sum of the amounts described in clauses
(1), (2), (3) and (4) shall be hereinafter referred to as the "Accrued
Obligations"); and
(ii) beginning on the last day of the month in which
the Date of Termination occurs and ending on the last day of the month in which
the Expiration Date occurs, Centura shall pay Executive a monthly amount equal
to the sum of (i) his monthly Base Salary as in effect on the Date of
Termination, and (ii) one-twelfth of the Highest Annual Bonus; provided,
however, that in the case of Executive's termination of employment due to
Disability, amounts paid under this Section 8(a)(ii) shall be offset by the
amount of disability benefits paid pursuant to the disability policy maintained
for Executive; and
(iii) from the Date of Termination through the
Expiration Date, or such longer period as may be provided by the terms of the
appropriate plan, program, practice or policy, Centura shall continue benefits
to Executive and/or Executive's family that are at least equal, on an after-tax
basis, to those which would have been provided to them in accordance with the
Welfare Plans 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;
(iv) to the extent not theretofore paid or provided,
Centura 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 Centura and
its affiliated companies (such other amounts and benefits shall be hereinafter
referred to as the "Other Benefits"); and
(v) all stock options and any other stock-based
awards outstanding immediately prior to the Date of Termination shall remain
outstanding and shall be treated for all purposes (except that in the event of
Executive's death, his estate or other beneficiary or successor shall be
entitled to exercise Executive's rights) as if Executive continued to be
employed by Centura until the Expiration Date; and
(vi) for purposes of the Centura SERP (and unless the
termination of employment was due to Executive's death), Executive shall be
deemed to continue to be employed and receive his Base Salary (as in effect
immediately prior to his Termination Date) and his Highest Annual Bonus
(calculated as of the day before the Termination Date) for each year until the
Expiration Date.
(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 used in this Section 8(b) shall include,
without limitation, and Executive's estate and/or beneficiaries
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shall be entitled to receive, benefits under such plans, programs, practices and
policies relating to death benefits, if any, as are applicable to Executive on
the date of his death.
(c) Cause or Voluntary Termination without Good Reason. If
Executive's employment shall be terminated for Cause during the Employment
Period, or if Executive voluntarily terminates employment during the Employment
Period without Good Reason, this Agreement shall terminate without further
obligations to Executive, other than for payment of Accrued Obligations
(excluding the pro-rata bonus described in clause 2 of Section 8(a)(i)) and the
timely payment or provision of Other Benefits.
(d) Expiration of Employment Period. If Executive's employment
shall be terminated due to the normal expiration of 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.
(e) Board Resignations. Termination of Executive's employment
for any reason whatsoever shall constitute Executive's resignation from the
Board of Directors of Centura.
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 Centura or its affiliated companies and for which
Executive may qualify, nor, subject to Section 15(d), shall anything herein
limit or otherwise affect such rights as Executive may have under any contract
or agreement with Centura or 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 Centura 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. Gross-Up Payment.
(a) Anything in this Agreement to the contrary notwithstanding
and except as set forth below in this Section 10, in the event it shall be
determined that any payment or distribution by Centura to or for the benefit of
Executive (whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise, but determined without regard to any
additional payments required under this Section 10) (a "Payment") would be
subject to the excise tax imposed by Section 4999 of the Code or any interest or
penalties are incurred by Executive with respect to such excise tax (such excise
tax, together with any such interest and penalties, are hereinafter collectively
referred to as the "Excise Tax"), then Executive shall be entitled to receive an
additional payment (a "Gross-Up Payment") in an amount such that after payment
by Executive of all taxes (including any interest or penalties imposed with
respect to such taxes), including, without limitation, any income taxes (and any
interest and penalties imposed with respect thereto) and Excise Tax imposed upon
the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal
to the Excise Tax imposed upon the Payments.
(b) Subject to the provisions of Section 10(c), all
determinations required to be made under this Section 10, including whether and
when a Gross-Up Payment is required and the amount of such Gross-Up Payment and
the assumptions to be utilized in arriving at such determination, shall be made
by a certified public accounting firm selected by Executive and reasonably
acceptable to Centura as may be designated by Executive (the "Accounting Firm")
which shall provide detailed supporting calculations both to Centura and
Executive within 15 business days of the receipt of notice from Executive that
there has been a Payment, or such earlier time as is reasonably requested by
Centura. All fees and expenses of the Accounting Firm shall be borne solely by
Centura. Any Gross-Up Payment, as determined pursuant to this Section 10, shall
be paid by Centura to Executive within five days of the receipt of the
Accounting Firm's determination. Any determination by the Accounting Firm shall
be binding upon Centura and 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 Gross-Up Payments will not
have been made by Centura that should have been made ("Underpayment"),
consistent with the calculations required to be made hereunder. In the event
that Centura exhausts its remedies pursuant to Section 10(c) and Executive
thereafter is required to make a payment of any Excise Tax, the Accounting Firm
shall determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by Centura to or for the benefit of
Executive.
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(c) The Executive shall notify Centura in writing of any claim
by the Internal Revenue Service that, if successful, would require the payment
by Centura of a Gross-Up Payment (or an additional Gross-Up Payment). Such
notification shall be given as soon as practicable but no later than ten
business days after Executive is informed in writing of such claim and shall
apprise Centura of the nature of such claim and the date on which such claim is
requested to be paid. The Executive shall not pay such claim prior to the
expiration of the 30-day period following the date on which it gives such notice
to Centura (or such shorter period ending on the date that any payment of taxes
with respect to such claim is due). If Centura notifies Executive in writing
prior to the expiration of such period that it desires to contest such claim,
Executive shall:
(i) give Centura any information reasonably requested
by Centura relating to such claim,
(ii) take such action in connection with contesting
such claim as Centura shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with respect to
such claim by an attorney reasonably selected by Centura and reasonably
acceptable to Executive,
(iii) cooperate with Centura in good faith in order
effectively to contest such claim, and
(iv) permit Centura to participate in any proceedings
relating to such claim;
provided, however, that Centura shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation of the foregoing provisions of
this Section 10(c), Centura shall control all proceedings (to the extent
applicable to the Excise tax and Gross-Up Payment) taken in connection with such
contest and, at its sole option, may pursue or forgo any and all administrative
appeals, proceedings, hearings and conferences with the taxing authority in
respect of such claim and may, at its sole option, either direct Executive to
pay the tax claimed and xxx for a refund or contest the claim in any permissible
manner, and Executive agrees to prosecute such contest to a determination before
any administrative tribunal, in a court of initial jurisdiction and in one or
more appellate courts, as Centura shall reasonably determine; provided, however,
that if Centura directs Executive to pay such claim and xxx for a refund,
Centura shall advance the amount of such payment to Executive, on an
interest-free basis and shall indemnify and hold Executive harmless, on an
after-tax basis, from any Excise Tax or income tax (including interest or
penalties with respect thereto) imposed with respect to such advance or with
respect to any imputed income with respect to such advance; and further provided
that any extension of the statute of limitations relating to payment of taxes
for the taxable year of Executive with respect to which such contested amount is
claimed to be due is limited solely to such contested amount. Furthermore,
Centura's control of the contest shall be limited to issues with respect to
which a Gross-Up Payment would be payable hereunder and Executive shall be
entitled to settle or contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by Executive of an amount advanced
by Centura pursuant to Section 10(c), Executive becomes entitled to receive any
refund with respect to such claim, Executive shall (subject to Centura's
complying with the requirements of Section 10(c)) promptly pay to Centura the
amount of such refund (together with any interest paid or credited thereon after
taxes applicable thereto). If, after the receipt by Executive of an amount
advanced by Centura pursuant to Section 10(c), a determination is made that
Executive shall not be entitled to any refund with respect to such claim and
Centura does not notify Executive in writing of its intent to contest such
denial of refund prior to the expiration of 30 days after such determination,
then such advance shall be forgiven and shall not be required to be repaid and
the amount of such advance shall offset, to the extent thereof, the amount of
Gross-Up Payment required to be paid.
11. Costs of Enforcement. In any action taken in good faith relating to
the enforcement of this Agreement or any provision herein, Executive shall be
entitled to be paid any and all costs and expenses incurred by him in enforcing
or establishing his rights thereunder, including, without limitation, reasonable
attorneys' fees, whether suit be brought or not, and whether or not incurred in
trial, bankruptcy or appellate proceedings. Executive shall also be entitled to
be paid all reasonable legal fees and expenses, if any, incurred in connection
with any tax audit or proceeding to the extent attributable to the application
of Section 4999 of the Internal Revenue Code to any payment or benefit
hereunder. Such payments shall be made within five (5) business days after
delivery of
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Executive's respective written requests for payment accompanied with such
evidence of fees and expenses incurred as Centura reasonably may require.
12. Representations and Warranties. Executive hereby represents and
warrants to Centura that Executive is not a party to, or otherwise subject to,
any covenant not to compete with any person or entity, and Executive's execution
of this Agreement and performance of his obligations hereunder will not violate
the terms or conditions of any contract or obligation, written or oral, between
Executive and any other person or entity.
13. Confidential Information. Executive shall hold in a fiduciary
capacity for the benefit of Centura all secret or confidential information,
knowledge or data relating to Centura or any of its affiliated companies, and
their respective businesses, which shall have been obtained by Executive during
Executive's employment by Centura or any of its affiliated companies and which
shall not be or become public knowledge (other than by acts by Executive or
representatives of Executive in violation of this Agreement). After termination
of Executive's employment with Centura or such affiliated companies, Executive
shall not, without the prior written consent of Centura or as may otherwise be
required by law or legal process, communicate or divulge any such information,
knowledge or data to anyone other than Centura and those designated by it.
14. Assignment and Successors.
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(a) This Agreement is personal to the Executive and without
the prior written consent of Centura shall not be assignable by the Executive
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by the Executive's legal
representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon Centura and its successors and assigns.
(c) Centura 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 Centura to assume expressly
and agree to perform this Agreement in the same manner and to the same extent
that Centura would be required to perform it if no such succession had taken
place. As used in this Agreement, "Centura" shall mean Centura 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.
15. Miscellaneous.
(a) 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.
(b) 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 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.
(c) Other Agents. Nothing in this Agreement is to be
interpreted as limiting Centura from employing other personnel on such terms and
conditions as may be satisfactory to it.
(d) Entire Agreement. Except as provided herein, this
Agreement contains the entire agreement between Centura and Executive with
respect to the subject matter hereof and, from and after the Effective Date,
this Agreement shall supersede any other agreement between or among the parties
with respect to the subject matter hereof.
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(e) Governing Law. Except to the extent preempted by federal
law, and without regard to conflict of laws principles, 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.
(f) 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 three days after mailing if
mailed, first class, certified mail, postage prepaid:
To Centura: Centura Banks, Inc.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxx Xxxxxxxx 00000
Attention: Chief Executive Officer
To Executive: Xxxxxxx X. Xxxxxxxxx
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----------------
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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.
(g) 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.
(signatures on following page)
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Employment Agreement as of the date first above written.
CENTURA BANKS, INC.
By: /s/ Xxxxx X. Xxxxxx, Xx.
Title: Chief Executive Officer
EXECUTIVE:
/s/ Xxxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxxxxx
