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. 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 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.
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;
(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 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 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 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: /s/ XXXXXX X. XXXXXXXX
Title: President and CEO
TRIMBLE:
/s/ XXXXXXX X. XXXXXXX
Xxxxxxx X. Xxxxxxx
