EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and
entered into this 31st day of July, 1997 by and between CCB
Financial Corporation, a North Carolina corporation (hereinafter,
"CCB"), and Xxxxxxx X. Xxxxxxxxxxx, Xx. (hereinafter, "Executive").
BACKGROUND
Executive is the Chief Executive 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 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.
(a) Officer Positions. Executive will be employed as a
Vice Chairman of the Board of Directors of CCB and as the President
and Chief Executive 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 Board of Directors
of CCB, and shall be consistent with the responsibilities of
similarly situated executives of comparable banks and bank holding
companies. In any such capacity, Executive will report directly to
the Chief Executive Officer of CCB.
(b) Director Position. Subject to all legal limitations
and conditions applicable to service as a director of CCB, (i) the
Board of Directors of CCB shall nominate and use its best efforts
to secure the election of Executive as a director of CCB during the
term of this Agreement, and (ii) if so elected, Executive shall
serve as member of Executive Committee of the Board of Directors of
CCB.
3. Employment Period. Unless earlier terminated in accordance
with Section 6 hereof, Executive's employment shall be for a five-
year term (the "Employment Period"), beginning on the Effective
Date. The Employment Period shall, without further action by
Executive or CCB, be extended for an additional one-year period on
each anniversary of the Effective Date; provided, however, that
either party may, by notice to the other, cause the Employment
Period to cease to extend automatically. Upon such notice, the
Employment Period shall terminate upon the expiration of the then-
current term, including any prior extensions.
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 $300,000 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 $300,000, 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
$24,300 (the "Signing Bonus"). 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 for the full 24 month period,
regardless of Executive's employment status.
(iii) Each year during the term of this Agreement
CCB will make stock options grants to Executive at the same
level as made to Executive Vice Presidents of CCB, which grant
in 1997 shall be the same percentage of the base salary of the
other Executive Vice Presidents of CCB for 1997, less the
value of any options granted in 1997 to Executive by American
Federal prior to the Effective Date.
(iv) CCB shall, if so requested by Executive,
assume and maintain on behalf of Executive that certain
Supplemental Retirement Benefit Agreement, dated as of
December 19, 1994, between Executive and American Federal.
(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). Without
limiting the foregoing, (i) CCB shall assume and maintain on behalf
of Executive that certain life insurance policy identified on
Exhibit A hereto, and (ii) for one year after Executive's death,
CCB shall pay any premium required for any "qualified beneficiary"
to continue his or her health care coverage in accordance with
Title I, Part 6 of the Employee Retirement Security Act of 1974.
(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 with CCB 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 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.
For purposes of this Section 6(c), any good faith determination of
"Good Reason" made by Executive shall be conclusive.
(d) Six-Month Window Period. Anything in this Agreement to
the contrary notwithstanding, either party may terminate
Executive's employment hereunder for any reason or no reason during
the six-month period immediately following the second anniversary
of the Effective Date. Such termination shall have the
consequences set forth in Section 7(a) for a termination for Good
Reason, except that the Remaining Employment Period (as defined in
Section 7(a)(i)(B)) shall be deemed to be lesser of three years or
the number of days then remaining in the Employment Period.
(e) 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.
(f) 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 in the Employment Period from and
after the Date of Termination (the "Remaining Employment
Period"), and (2) Executive's Base Salary divided by 365; and
C. the amount equal to the product of (1) the
number of days in the Remaining Employment Period, and (2)
Executive's Most Recent Annual Bonus divided by 365; and
D. 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) 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;
(iii) 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
(iv) 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) of
this Agreement if at any time during the Employment Period or
the Remaining Employment Period (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, (ii) the death benefits under the life insurance
policy identified on Exhibit A hereto, (iii) the beneficiary health
care coverage referred to in Section 5(c) of this Agreement, and
(iv) 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 during the Employment
Period, 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 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, any remaining installments of 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 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 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
(the "AFB Agreement"), which relates specifically to Executive's
employment as the President and Chief Executive Officer of American
Federal and contains certain bank regulatory limitations imposed by
the Office of Thrift Supervision and the Federal Deposit Insurance
Corporation. 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. Xxxxxxxxxxx, Xx.
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: /s/ XXXXXX X. XXXXXXXX
Title: President and CEO
ABERCROMBIE:
/s/ XXXXXXX X. XXXXXXXXXXX, XX.
Xxxxxxx X. Xxxxxxxxxxx, Xx.
