AMERICAN FEDERAL
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made
and entered into this 31st day of July, 1997 by and between
American Federal Bank, FSB, a federal stock savings bank
("American Federal"), and William L. Abercrombie, Jr.
(hereinafter, "Executive").
BACKGROUND
Executive is the Chief Executive Officer of American
Federal, which was acquired by CCB Financial Corporation, a
North Carolina corporation ("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 and Executive have entered into an
Employment Agreement of even date herewith, which governs
the terms of Executive's employment with CCB and certain of
its affiliates (the "CCB Agreement").
American Federal desires to employ Executive in
accordance with the terms of this Agreement. Executive is
willing to serve as an employee of American Federal 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 continue to serve during
the term of this Agreement as the President and Chief
Executive Officer of American Federal. Executive's
responsibilities to American Federal under this Agreement
shall be in accordance with the policies and objectives
established from time to time by the Board of Directors of
American Federal.
3. Employment Period. The term of this Agreement will
be concurrent with the term of the CCB Agreement (the
"Employment Period"), unless earlier terminated in
accordance with Section 6 hereof.
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 and under the CCB
Agreement; provided, however, Executive may engage in such
incidental activities as are permitted under the CCB
Agreement.
5. Compensation and Benefits. During the Employment
Period, Executive's compensation and benefits for service to
American Federal will be provided by CCB in accordance with
the terms of Section 5 of the CCB Agreement, which terms are
incorporated herein by reference.
6. Termination of Employment. Executive's employment
with American Federal under this Agreement will terminate
(i) under the same circumstances as, (ii) simultaneously
with, and (iii) with the same consequences as, the
termination of his employment with CCB under the terms of
Sections 6, 7 and 8 of the CCB Agreement, which terms are
incorporated herein by reference. Any termination benefits
shall be payable only once (i.e., not under both
Agreements). Notwithstanding the above, the Board of
Directors of American Federal may terminate Executive's
employment hereunder at any time, but any such termination
other than for Cause (as defined in the CCB Agreement) shall
not prejudice Executive's right to compensation or other
benefits under this Agreement or the CCB Agreement. As
provided in the CCB Agreement, if such termination is for
Cause, Executive shall have no right to receive compensation
or other benefits hereunder or under the CCB Agreement for
any period after termination.
7. Regulatory Intervention. Notwithstanding anything
in this Agreement to the contrary, this Agreement is subject
to the following terms and conditions:
(a) If Executive is suspended and/or temporarily
prohibited from participating in the conduct of American
Federal's affairs by a notice served under Section 8(e)(3)
or (g)(1) of the Federal Deposit Insurance Act (12 U.S.C.
1818 (e)(3) and (g)(1)), American Federal's obligations
hereunder shall be suspended as of the date of service
unless stayed by appropriate proceedings. If the charges in
the notice are dismissed, American Federal shall (i) pay
Executive all or part of the compensation withheld while
American Federal's contract obligations were suspended, and
(ii) reinstate any of American Federal's obligations which
were suspended.
(b) If Executive is removed and/or permanently
prohibited from participating in the conduct of American
Federal's affairs by an order issued under Section 8(e)(4)
or (g)(1) of the Federal Deposit Insurance Act (12 U.S.C.
1818 (e)(4) and (g)(1)), all obligations of American Federal
under this Agreement shall terminate as of the effective
date of the order, but vested rights of the parties shall
not be affected.
(c) If American Federal is in default (as defined in
Section 3(x)(1) of the Federal Deposit Insurance Act (12
U.S.C. 1813 (x)(1)), all obligations under this Agreement
shall terminate as of the date of default, but any vested
rights of executive shall not be affected.
(d) All obligations under this Agreement shall be
terminated, except to the extent determined that
continuation of the contract is necessary for the continued
operation of American Federal, (i) by the Office of Thrift
Supervision ("OTS") at the time the Federal Deposit
Insurance Corporation ("FDIC") enters into an agreement to
provide assistance to or on behalf of American Federal under
the authority contained in Section 13(c) of the Federal
Deposit Insurance Act (12 U.S.C. 1823 (c)); or (ii) by the
OTS at the time the OTS approves a supervisory merger to
resolve problems related to operation of American Federal or
when American Federal is determined by the OTS to be in an
unsafe or unsound condition. Any rights of Executive that
shall have vested under this Agreement shall not be affected
by such action.
(e) With regard to the provisions of this Section 7(a)
through (d):
(i) American Federal agrees to use its best efforts
to oppose any such notice of charges as to which there
are reasonable defenses;
(ii) In the event the notice of changes is
dismissed or otherwise resolved in a manner that will
permit American Federal to resume its obligations to
pay compensation hereunder, American Federal will
promptly make such payment hereunder; and
(iii) During the period of suspension , the
vested rights of the contracting parties shall not be
affected except to the extent precluded by such notice.
(f) American Federal's obligations to provide
compensation or other benefits to Executive under this
Agreement or the CCB Agreement shall be terminated or
limited to the extent required by the provisions of any
final regulation or order of the Federal Deposit Insurance
Corporation promulgated under Section 18(k) of the Federal
Deposit Insurance Act (12 U.S.C. 1828(k)) limiting or
prohibiting any "golden parachute payment" as defined
therein, but only to the extent that the compensation or
payments to be provided under this Agreement or the CCB
Agreement are so prohibited or limited.
8. Legal Expenses. To the extent not paid by CCB under
the CCB Agreement, American Federal 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
American Federal, 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.
9. Assignment and Successors.
(a) Executive. This Agreement is personal to
Executive and without the prior written consent of American
Federal 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) American Federal. This Agreement shall inure to
the benefit of and be binding upon American Federal and its
successors and assigns. American Federal 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 American Federal to assume
expressly and agree to perform this Agreement in the same
manner and to the same extent that American Federal would be
required to perform it if no such succession had taken
place. As used in this Agreement, "American Federal" shall
mean American Federal 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.
10. 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 American Federal from employing
other personnel on such terms and conditions as may be
satisfactory to it.
(e) Entire Agreement. Except as provided herein,
this Agreement and the CCB Agreement contain the entire
agreement between American Federal and Executive with
respect to the subject matter hereof and such Agreements
supersede and invalidate any previous agreements or
contracts including employment agreements by and between
American Federal and Executive. No representations,
inducements, promises or agreements, oral or otherwise,
which are not embodied herein or in the CCB 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 American Federal:American Federal Bank, FSB
300 East McBee Avenue
Greenville, South Carolina 29601
Facsimile No. (864) 255-7504
Attention: Chairman of the Board of
Directors
To Executive: William L. Abercrombie, Jr.
300 East McBee Avenue
Greenville, South Carolina 29601
Facsimile No. (864) 255-7504
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.
(signatures on following page)
IN WITNESS WHEREOF, the parties hereto have duly
executed and delivered this Employment Agreement as of the
date first above written.
AMERICAN FEDERAL BANK, FSB
By: /s/ C. DAN JOYNER
Title: Chairman, Compensation
Committee
ABERCROMBIE:
/s/WILLIAM L. ABERCROMBIE, JR.
William L. Abercrombie, Jr.
Acknowledged and agreed to:
CCB FINANCIAL CORPORATION
By: /s/ ERNEST C. ROESSLER
Title: President and CEO