AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT, to be deemed
effective as of May 19, 1995 (the "Agreement"), by and among CCB
Financial Corporation, a North Carolina corporation ("CCBF"), Central
Carolina Bank and Trust Company, a wholly-owned subsidiary of CCBF
("CCB"), and Lloyd G. Gurley, a resident of Salisbury, Rowan County,
North Carolina (the "Officer");
W I T N E S S E T H:
WHEREAS, the Officer previously entered into employment agreements
with Security Capital Bancorp ("SCBC") and various of its subsidiaries
(the "Prior Agreements"); and
WHEREAS, SCBC has this day merged with a subsidiary of CCBF, with
SCBC as the surviving corporation, and SCBC subsequently merged into
CCBF (collectively, the "Merger"); and
WHEREAS, through a series of transactions, the financial
institution subsidiaries of SCBC have merged into CCB (the "Bank
Mergers"); and
WHEREAS, CCBF and CCB desire to assume all rights and obligations
of SCBC and its subsidiaries under the Prior Agreements, and the Officer
consents to such assumption; and
WHEREAS, the Boards of Directors of CCBF and CCB have determined
that, upon the consummation of the Merger and the Bank Mergers, the
allocation of responsibilities among the senior management officers of
CCBF and CCB should be revised; and
WHEREAS, CCBF, CCB and the Officer desire to amend and restate the
Prior Agreements in a single agreement among them in order to set forth
the terms and conditions of the Officer's continued employment upon the
consummation of the Merger and the Bank Mergers, by CCBF and CCB.
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, IT IS AGREED as follows:
1. Employment.
(a) Employment. The Officer shall be employed by CCBF and
CCB upon the terms and conditions set forth herein and in continuation
of his employment by SCBC and certain of its subsidiaries. He shall
serve in an executive capacity as an Executive Vice President of CCBF
and as an Executive Vice President and Regional Executive of CCB.
The Officer shall actively promote the business, and shall perform
such duties on behalf, of CCBF, CCB and the other subsidiaries of CCBF
as shall from time to time be prescribed by the Board of Directors of
CCBF (the "Board") and as are customarily performed by persons employed
in the banking industry who have such executive positions, and with
respect to his duties on behalf of CCB, as confirmed by CCB's Board of
Directors (the "Bank Board"). The Officer's primary duties and
responsibilities shall be those set forth in Appendix A which is
incorporated herein by
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reference. Except as provided in Section 1(b), the Officer may maintain
his principal residence and place of business in Salisbury, North
Carolina throughout the Term (as defined below). He shall be provided
with such office, working facilities and staff at the offices of CCB in
Salisbury, North Carolina as are necessary for the Officer to perform
his obligations under this Agreement.
(b) Certain Terminations; Change In Duties; Location. The
parties hereto agree that they shall consider whether the Officer shall
be transferred to CCBF's principal office and assigned duties other than
those described herein. In the event such a transfer is proposed by
CCBF and CCB, and the Officer agrees thereto, the parties hereto agree
as follows: (i) the Officer and his spouse shall exercise reasonable
efforts to obtain offers to purchase their residence in Salisbury, North
Carolina; and (ii) in the event that no written purchase offers are
received within forty-five (45) days of such residence being placed on
the market or that no written offer is received during such period, in
each case which would result in the Officer and his spouse receiving net
sales proceeds equal to the greater of (A) the total land and
construction costs of the residence expended by the Officer and his
spouse (as evidenced by appropriate documentation) or (B) the fair
market value of the residence (as determined by an independent
appraisal), then CCB shall purchase the residence from the Officer and
his spouse for the greater of the amounts described in the preceding
items (ii)(A) and (ii)(B). Further, in the event this Agreement is
terminated under Sections 6(f), (g) or (h), the foregoing provisions
shall become operative as of the date of termination.
2. Compensation.
(a) Employment Compensation. CCBF and CCB shall pay the
Officer during the Term as compensation for the services rendered by the
Officer to CCBF and CCB an initial base salary per annum equal to his
total annualized base salary from SCBC and its subsidiaries in effect
immediately prior to the Merger (the "Base Salary"), payable in cash (in
as equal installments as possible) not less frequently than monthly;
provided, however, that the amount of the Base Salary shall be reviewed
by the Executive Committee of the Board not less often than annually for
the purpose of considering such increases therein as are appropriate to
reflect the duties, responsibilities and performance of the Officer. In
reviewing the Officer's salary, the Board shall consider the employee
compensation policies established by the Compensation Committee of the
Board for application to the employees of CCBF and its subsidiaries, the
duties and responsibilities of the Officer, and the overall performance
of the Officer, CCBF and CCB, as well as increases in the cost of
living, and may also consider the appropriateness of performance or
merit increases. Neither participation in, or receipt of payment from,
any incentive compensation, deferred compensation, incentive bonus,
discretionary bonus, pension, life insurance, group life insurance,
health benefit, medical coverage, disability coverage, dental insurance,
stock option, restricted stock, stock appreciation rights, incentive
compensation unit, profit sharing, employee stock ownership, pension,
retirement, or other employee welfare or benefit plans of CCBF or CCB
(collectively "Benefit Plans"), nor receipt of any fringe benefits from
CCBF or CCB granted to the Officer ("Fringe Benefits") shall reduce, or
be deemed an offset against, the Base Salary payable to the Officer.
(b) Allocation of Compensation. The portion of the Officer's
Base Salary allocable to, and to be paid by, each of CCBF and CCB shall
be determined from time to time by the Board. In making such
allocations, the Board shall consider the portion of the Officer's time
spent in fulfilling his respective duties to CCBF and CCB, appropriate
tax and accounting principles, and such other factors as it shall deem
relevant.
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3. Participation in Benefit Plans; Fringe Benefits. During the
Term, the Officer shall be entitled to participate in all Benefit Plans,
including the "CCB Financial Corporation Long-Term Incentive Plan" (the
"LTIP") and any other executive incentive compensation plan for key
employees of CCBF and/or CCB, as the same may be amended, modified or
terminated from time to time by the Board or the Bank Board, as
applicable, on the same basis as the other senior executive officers of
CCBF and CCB. With respect to CCBF's Management Performance Incentive
Plan, the Officer shall have a target bonus of at least 15% of Base
Salary. In addition to, and not in lieu of, any other provisions
hereof, CCBF shall annually pay to the Officer, an allowance equal to
three percent (3%) of his Base Salary for such calendar year (with such
allowance for 1995 being prorated for the number of days this Agreement
is in effect). Such allowance shall be payable in cash (in as equal
installments as possible) not less frequently than monthly.
During the Term, the Officer shall also be entitled to receive any
Fringe Benefits which are now or may be or become applicable to the
executive employees of CCBF and/or CCB, including the payment of
reasonable expenses for attending (i) annual and periodic meetings of
trade associations and (ii) continuing education courses necessary for
the Officer to maintain professional certifications, and any other
Fringe Benefits which are commensurate with the duties and
responsibilities to be performed by the Officer under this Agreement.
Additionally, the Officer shall be entitled to such customary Fringe
Benefits, including such vacation and sick leave, as are consistent with
the normal practices and established policies of CCBF and CCB. CCBF or
CCB, as applicable, shall reimburse the Officer for all out-of-pocket
reasonable and necessary business expenses which the Officer may incur
during the Term in connection with the Officer's services on behalf of
CCBF or CCB, as applicable, or any activities the Officer is requested
to undertake on behalf of any of the subsidiaries of CCBF.
During the Term, CCBF or CCB shall provide a car (of such make,
model and year as is commensurate with the Officer's senior executive
status) owned by it to the Officer for the Officer's use (with the
Officer reimbursing CCBF or CCB, as applicable, for the proportionate
operational costs attributable to the Officer's personal use of the
car), shall pay fifty percent (50%) of the periodic dues and assessments
for all country clubs and similar organizations of which the Officer is
a member immediately prior to the Merger and which SCBC currently pays
or reimburses to the Officer (including future increases thereof), and
shall pay fifty percent (50%) of all initiation fees, periodic dues and
assessments of all such organizations that CCBF and/or CCB request the
Officer to join after the Merger.
4. Loyalty; Noncompetition; Confidentiality.
(a) Full Efforts. During the Term, the Officer shall devote
his full efforts and entire business time to the performance of the
Officer's duties and responsibilities under this Agreement.
(b) Noncompetition. In consideration of employment of the
Officer under the Prior Agreements and the continuation of such
employment by CCBF and CCB hereunder, during the Term, and for a period
of two (2) years after the termination of this Agreement, the Officer
agrees that he will not, within any county in which CCBF, CCB, or any
other financial institution subsidiary of CCBF, or any subsidiary of CCB
or such other financial institution subsidiary, maintains offices,
directly or indirectly, own, manage, operate, join, control or
participate in the management, operation or control of, or be employed
by or connected in any manner with, any Person (as defined in Section
6(i)) which competes with CCBF, CCB or any of the other direct or
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indirect subsidiaries of CCBF, without the prior written consent of
CCBF; provided, however, that the provisions of this Section 4(b) shall
not apply prospectively in the event this Agreement is terminated by
CCBF and CCB without Cause (as is defined in Section 6(e) hereof).
Notwithstanding the foregoing, the Officer shall be free, without such
consent, to purchase or hold as an investment or otherwise up to five
percent (5%) of the outstanding stock or other securities of any Person
which has its securities listed on any national securities exchange or
which has transactions in its securities quoted on The Nasdaq Stock
Market or other over-the-counter market or inter-dealer quotation
system.
(c) Confidentiality. The Officer will hold in strict
confidence, during the Term and at all times thereafter, all knowledge
or information of a confidential or proprietary nature with respect to
the business of CCBF, CCB and/or the other direct or indirect
subsidiaries of CCBF received by the Officer during the Term, and,
except in the performance of his duties, will not disclose or make use
of such information without the prior written consent of CCBF.
(d) Injunctive Relief. The Officer acknowledges that it
would not be possible to ascertain the amount of monetary damages
suffered in the event of a breach by the Officer of the provisions of
this Section 4. Accordingly, the Officer agrees that, in the event of a
breach of this Section, injunctive relief enforcing the terms of this
Section is an appropriate remedy.
5. Employment Standards. The Officer shall perform his duties and
responsibilities as an employee of CCBF and CCB during the Term in
accordance with the standards imposed by applicable financial
institution statutes, regulations and rules or by applicable financial
institution regulatory agencies, such reasonable standards expected of
employees with comparable positions in comparable organizations, and
CCBF's and CCB's policies and procedures, and such other standards and
guidelines as may be established from time to time by the Board or the
Bank Board, as applicable.
6. Term and Termination.
(a) Term. Notwithstanding the provisions of the Prior
Agreements, the term hereof (the "Term") shall be deemed to have
commenced on May 19, 1995 (the "Commencement Date") and, unless earlier
terminated as provided herein, shall continue through the fifth
anniversary of the Commencement Date (the "Expiration Date"); provided,
however, that upon the termination of this Agreement for any reason, all
provisions hereof requiring actions or the fulfillment of obligations by
the Officer, CCBF and/or CCB after the effectiveness of such
termination shall remain binding upon, or enforceable by, the Officer,
CCBF and/or CCB, as the case may be.
(b) Termination by Death. This Agreement shall be terminated
upon the death of the Officer. Upon the Officer's death, the Officer's
estate shall be entitled to receive all compensation and benefits
payable to, or accruable or vested for the benefit of, the Officer under
this Agreement through the end of the second calendar month following
the calendar month in which the Officer's death shall have occurred.
(c) Termination by Total Disability. This Agreement shall be
terminated upon the Total Disability (as defined below) of the Officer
during the Term. In the event of his Total Disability, the Officer
shall receive all compensation and benefits payable to, or accruable or
vested for the benefit of, the Officer under this Agreement through the
date of the determination of his Total
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Disability and for a period of ninety (90) days thereafter. The Officer
shall be deemed to have suffered Total Disability upon the determination
of his total permanent disability by the United States Social Security
Administration or CCBF's receipt of a certification to such effect by
the Officer's regular physician, in each case such total permanent
disability meaning the Officer's loss of ability to perform at least
the majority of his then applicable duties hereunder.
(d) Termination by Officer. This Agreement may be terminated
at any time by the Officer upon sixty (60) days prior written notice to
CCBF and CCB. Unless the provisions of Sections 6(g)(ii) or 6(h) are
applicable and the Officer elects to apply those provisions, upon such
termination, the Officer shall be entitled to receive the compensation
and benefits payable to, or accruable or vested for the benefit of, the
Officer under this Agreement through the effective date of such
termination.
(e) Termination for Cause. Subject to confirmation by the
Bank Board, the Board may terminate this Agreement for Cause, in which
event the Officer shall have no right to receive, or to have accrued or
vested for his benefit, compensation or other benefits hereunder for any
period after such termination. Termination for Cause shall mean
termination of this Agreement because of the Officer's (A) breach of
fiduciary duty involving personal profit, (B) intentional and material
failure to perform stated duties (after written notice thereof and a
reasonable opportunity to cure such failure), (C) willful and material
violation of any law (other than traffic violations or other similar
misdemeanor offenses), rule, regulation or final cease-and-desist order,
or (D) a material and continuing breach of any provision of this
Agreement (after written notice thereof and a reasonable opportunity to
cure such breach).
(f) Termination Without Cause. Subject to confirmation by
the Bank Board, the Board may terminate this Agreement without Cause at
any time upon sixty (60) days prior written notice to the Officer;
provided, however, that in the event of such termination, unless the
provisions of Sections 6(g) or 6(h) are applicable and the Officer
elects to apply those provisions, the Officer shall be entitled to
receive all compensation and fees payable to, or accruable or vested for
the benefit of, the Officer under this Agreement as and when due and
payable (or, at the election of the Officer, in a lump sum payable
within ten (10) days of the date of termination), and shall be entitled
to continue to participate in all Benefit Plans described in Section 3
not specifically requiring for participation therein one thousand (1,000
hours of service per calendar year), through the Expiration Date.
(g) Unapproved Change In Control Termination. In the event
of (i) the termination of this Agreement without Cause, or (ii) the
voluntary termination of this Agreement by the Officer, in each case in
connection with, or within one (1) year after, any Change In Control
which has not been approved in advance by a formal resolution of
two-thirds (2/3) of the Continuing Members of the Board (excluding the
Officer), which shall be deemed a termination without Cause, the Officer
shall be entitled at his election:
(A) to receive a lump sum payment in cash equal to 2.99 times
the Officer's then applicable "base amount" (as such term
is defined in Internal Revenue Code Section 280);
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(B) until the Expiration Date, to continue to participate in
all Benefit Plans described in Section 3 not requiring
for participation therein one thousand (1,000) hours of
service per calendar year); and
(C) to immediate vesting of full participation rights and to
immediately begin participation in, CCBF's defined
contribution retiree health and life insurance plan
(whether or not the Officer shall then have ten (10)
years of service under such plan).
The Officer shall be paid the lump sum described in item (A) of
this Section 6(g) within ten (10) days of the date of such termination.
Notwithstanding the foregoing, the Officer, at his sole option, may
elect to reduce the payments and/or benefits otherwise receivable
pursuant to item (A) and/or (B) of this Section 6(g) to the extent the
Officer in his sole discretion may determine, in order to avoid
classification of such payment and/or benefits as "parachute payments"
within the meaning of Internal Revenue Code Section 280G or for any
other or no reason.
(h) Approved Change In Control Termination. Upon ten (10)
days prior written notice, the Officer may declare this Agreement to
have been terminated without Cause by CCBF and CCB, upon the occurrence
of any of the following events, which have not been consented to in
advance by the Officer in writing, following a Change In Control,
whether or not approved in advance by a formal resolution of at least
two-thirds (2/3) of the Continuing Members of the Board (excluding the
Officer): (i) if the Officer is required to move his personal residence
or perform his principal executive functions more than twenty (20) miles
from the city limits of Salisbury, North Carolina; (ii) if in the
organizational structure of CCBF (or its successor pursuant to the
Change In Control), the Officer would be subject to the supervision of,
or required to report to, any Persons other than the President and Chief
Executive Officer of CCBF and/or the Board; (iii) if CCBF and/or CCB
should fail to maintain Benefit Plans providing at least the same level
of benefits afforded the Officer as of the date of the Change In
Control; (iv) if the Officer would be assigned duties and
responsibilities other than those described in Section 1(a); or (v) if
the Officer's responsibilities or authority in the executive capacity
described in Section 1(a) have in any way been diminished.
Upon such termination, the Officer shall be entitled to receive the
lump sum payment and to continue to participate in the Benefit Plans,
when and as provided in Section 6(f) or, at his election, when and as
provided in Section 6(g), but shall also have the right to reduce such
payment and/or benefits as stated in Section 6(g).
(i) Definitions. For purposes of this Agreement, a Change in
Control shall mean: (i) the merger of CCBF with any other corporation as
a result of which the holders of CCBF's voting securities outstanding
immediately prior to such event would receive or retain less than fifty
percent (50%) of the outstanding voting securities of the resulting or
surviving corporation of such merger; (ii) the acquisition of more than
twenty percent (20%) of the outstanding voting securities of CCBF
(calculated on a fully diluted basis) by any Person; (iii) the ownership
of fifty percent (50%) or more of the outstanding voting securities of
CCB by any Person other than CCBF; (iv) the sale of more than fifty
percent (50%) in value of the assets of CCBF; or (v) the sale of more
than fifty percent (50%) in value of the assets of CCB to any Person
other than CCBF.
For purposes of this Agreement, a Person shall mean: (i) an
individual or a corporation, partnership (limited or general), trust,
limited liability company, business trust,
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association (mutual or stock, and including a mutual holding company),
joint venture, pool, syndicate, unincorporated organization or any other
form of entity; and (ii) any Affiliate of any individual or entity
listed in item (i). Affiliate shall mean any Person who controls, is
under common control with, or is controlled by the Person to whom
reference is being made; and for the purposes of the definition of
Affiliate, control shall be deemed to exist in a Person who beneficially
owns ten percent (10%) or more of the outstanding equity interests (or
options, warrants or other rights to acquire such equity interests) of
another Person.
For purposes of this Agreement, the Continuing Members of the
Board shall mean those individuals elected to the Board prior to, and
continuing to serve thereon at, the time a Change In Control shall
occur.
(j) Joint Termination. Any termination of this Agreement
under this Section 6 occurring during the Employment Term shall be a
termination of the Officer's employment by CCBF and CCB; i.e., the
Officer's employment by both CCBF and CCB must be terminated, and not
with respect to one and not the other.
(k) Damages. In addition to the provisions of Sections 6(f),
6(g)(i) and 6(h), in the event this Agreement is terminated without
Cause on or prior to the Officer's completion of five (5) years of
vested service or such other period of service necessary for the Officer
to be one hundred percent (100%) vested in his "accrued benefits" under
the CCB Financial Corporation Pension Plan (the "Pension Plan"), the
Officer shall be entitled to receive as additional damages a lump sum
calculated by
(A) Determining the amount of "accrued benefits" of the
Officer under the Pension Plan that will be forfeited in
such circumstances; and
(B) Determining the present value of the amount described in
item (A) based on the actuarial assumptions for lump sum
payment contained in the Pension Plan.
(l) Resolution of Disputes. In the event any dispute shall
arise between the Officer, on the one hand, and CCBF and CCB, on the
other, as to the terms or interpretation of, or calculations made under,
this Agreement, including this Section 6, whether instituted by formal
legal proceedings or otherwise, including any action taken by the
Officer to enforce any term of this Agreement or in defending against
any action taken by CCBF and/or CCB, CCBF shall reimburse the Officer
for all of his costs and expenses, including reasonable attorneys' fees,
in the event the Officer prevails in any such action.
7. Assumption of Prior Agreement; Successors and Assigns.
(a) Assumption of Prior Agreements. CCBF and CCB, jointly
and severally, assume all rights and obligations of SCBC and its
subsidiaries under the Prior Agreements, and the Officer consents to
such assumption; provided, however, that such assumption and consent
shall not relieve SCBC of such obligations.
(b) Successors and Assigns. This Agreement shall inure to
the benefit of, and be binding upon, any corporate or other successor of
CCBF, including any Person who shall acquire,
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directly or indirectly, by merger, share exchange, purchase or
otherwise, the outstanding stock or all or substantially all of the
assets of CCBF, as applicable. This Agreement also shall inure to the
benefit of, and be binding upon, any corporate or other successor of
CCB, including any Person who shall acquire, directly or indirectly, by
merger, share exchange, purchase or otherwise, the outstanding stock or
all or substantially all of the assets of CCB, as applicable.
(c) The Officer. Because CCBF and CCB are contracting for
the unique and personal skills of the Officer, the Officer shall be
precluded from assigning or delegating his rights or duties hereunder;
provided, however, that the Officer's estate is expressly intended to
have such rights upon and following the Officer's death as are
specifically provided to it herein.
8. Modification; Waiver; Amendments. No provision of this
Agreement may be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing, signed by the Officer
and signed on behalf of CCBF and CCB by such officers thereof as may be
specifically designated by the Board and the Bank Board, respectively.
No waiver by any party hereto at any time of any breach by any other
party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver
of any similar or dissimilar provisions or conditions at the same or at
any prior or subsequent time. No amendments or additions to this
Agreement shall be binding unless in writing and signed by all parties
hereto, except as herein otherwise provided.
9. Applicable Law. This Agreement shall be governed in all
respects whether as to validity, construction, capacity, performance or
otherwise, by the laws of the State of North Carolina.
10. Severability. The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any provision
shall not affect the validity or enforceability of the other provisions
hereof.
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IN WITNESS WHEREOF, the parties have executed this Amended and
Restated Employment Agreement to be effective as of the day and year
first hereinabove written.
CCB FINANCIAL CORPORATION
ATTEST:
/s/ Richard W. Every By:/s/ Ernest C. Roessler
Richard W. Every, Secretary Ernest C. Roessler, President and
Chief Executive Officer
[CORPORATE SEAL]
CENTRAL CAROLINA BANK AND
ATTEST: TRUST COMPANY
/s/ Richard W. Every By:/s/ Ernest C. Roessler
Richard W. Every, Secretary Ernest C. Roessler, President and
Chief Executive Officer
[CORPORATE SEAL]
/s/ Lloyd G. Gurley
Lloyd G. Gurley
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APPENDIX A
The Officer shall be an executive officer of CCBF and CCB, in each
case with the title "Executive Vice President - Regional Executive." He
shall report to the President and Chief Executive Officer of CCBF with
regard to his activities as an officer of CCBF, and he shall report to
the Executive Vice President - Banking Group of CCB with regard to his
activities as an officer of CCB.
His duties and responsibilities shall be:
1. To assist in the integration of SCBC and its subsidiaries into
CCBF and its subsidiaries; and
2. To exercise executive oversight and to manage the operations
of the offices of CCB located in the North Carolina counties
of Rowan, Cabarrus, Cleveland, Union, Stanley, Montgomery,
Anson and Richmond.