EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, to be deemed effective as of
, 1996 (the "Agreement"), by and between Central
Carolina Bank and Trust Company ("CCB"), and Deborah S. Marshall,
a resident of Winston-Salem, Forsyth County, North Carolina (the
"Officer");
W I T N E S S E T H:
WHEREAS, the officer previously entered into an Employment Agreement
(the "Prior Agreement") with Salem Trust Bank ("Salem"); and
WHEREAS, Salem has this day merged with CCB, with CCB as the surviving
corporation (the "Merger"); and
WHEREAS, CCB desires to assume the rights and obligations of Salem
under the Prior Agreement, as amended and restated herein, and the Officer
consents to such assumption; and
WHEREAS, CCB and the Officer desire to amend and restate the Prior
Agreement in order to set forth the terms and conditions of the Officer's
continued employment by CCB upon the consummation of the Merger.
NOW, THEREFORE, in considerations of the premises and mutual covenants
herein contained, IT IS AGREED as follows:
1. Employment. The Officer shall be employed by CCB upon the
terms and conditions set forth herein. She shall serve in an
executive capacity as an of CCB.
The Officer shall actively promote the business, and shall perform such
duties on behalf, of CCB and the other subsidiaries of CCB Financial Corporation
("CCBF") as shall from time to time be
prescribed by the Board of Directors of CCB (the "Board") and as are customarily
performed by the persons employed in the banking industry who have a similar
executive position. The Officer's primary duties and responsibilities shall be
those set forth in Appendix A which is incorporated herein by reference. The
Officer may maintain her principal residence and place of business in
Winston-Salem, North Carolina throughout the Term (as defined below). She shall
be provided with such office, working facilities and staff at the offices of CCB
in Winston-Salem, North Carolina as are necessary for the Officer to perform her
obligations under this Agreement.
2. Compensation. CCB shall pay the Officer compensation for the
services rendered by the Officer of CCB an initial base salary per annum equal
to $ (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. During the Term of this Agreement, the Officer's Base Salary shall not
be less than the Base Salary stated above. 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 CCB, the
duties and responsibilities of the Officer, and the overall performances of the
Officer 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
2
ownership, pension, retirement, or other employee welfare or benefits plan 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.
In addition to the Officer's Base Salary, she shall be paid a bonus on
or before of each year during the Term of this Agreement. Such annual bonus
shall be in an amount not less than the amount which is the average of the last
three (3) annual bonuses received by the Officer during her employment at Salem.
3. Participation in Benefit Plans; Fringe Benefits. During the Term,
the Officer shall be entitled to participate in all Benefits Plans, including
any incentive compensation plans of CCBF and/or CCB, as the same may be amended,
modified or terminated from time to time by the Board, on the same basis as the
other senior officers of CCB; provided, however, the bonuses paid to the Officer
under Section 2 above shall reduce (but not to less than zero dollars) the
management bonus she would otherwise be entitled to under this Section 3.
During the Term, the Officer shall also be entitled to receive any
Fringe Benefits which are now or may be or become applicable to senior officers
of 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 CCB. CCB shall reimburse the Officer for
all out-of-
3
pocket reasonable and necessary business expenses which the Officer may incur
during the Term in connection with the Officer's services on behalf of CCB or
its subsidiaries or any activities of the Officer is requested to undertake on
behalf of any other subsidiaries of CCBF.
During the Term of this Agreement, the Benefit Plans and Fringe
Benefits provided to the Officer by CCB shall have a value not less than those
provided to the Officer by Salem immediately prior to the Commencement Date. In
the event, at any time during the Term of this Agreement, the value of the
Benefit Plans and Fringe Benefits provided to the Officer by CCB has a value
less than those provided to the Officer by Salem immediately prior to the
Commencement Date, CCB shall pay to the Officer an amount each year during the
Term of this Agreement which represents the cash equivalent of such difference
in value. Any dispute as to the value of such benefits shall be resolved in the
same manner as a dispute regarding Present Value as provided in Section 6(h).
4. Loyalty; Noncompetition; Confidentiality.
(a) Full Efforts. During the Term, the Officer shall devote
her 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 Agreement and the continuation of such employment by CCB hereunder,
during the Term and for a period of one (1) year after the termination of the
Officer's employment under this Agreement or until the Expiration Date,
whichever is less, the Officer agrees that she will not, within Forsyth County,
North Carolina (the "Market"), 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,
4
CCB or any of the other direct or indirect subsidiaries of CCBF, without the
prior written consent of CCB; provided, however, that the provisions of this
Section 4(b) shall not apply prospectively in the event this Agreement is
terminated by CCB without Cause (as such term is defined in Section 6(f)
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 her duties, will not disclose
or make use of such information without prior written consent of CCBF.
(d) Injunctive Relief. The Officer acknowledges that CCBF and CCB would
sustain irreparable injury and that it would not be possible to ascertain the
amount of monetary damages suffered in the event of a breach or threatened
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 and such other equitable relief as a court
shall deem proper are appropriate remedies, in addition to such recovery of
damages as may be available. All such remedies shall be cumulative.
(e) Definitions. The term "compete" means: (i) soliciting or
securing deposits from any Person residing in the Market for any
5
Financial Institution; (ii) soliciting any Person residing in the Market to
become a borrower from any Financial Institution, or assisting (other than
through the performance of ministerial or clerical duties) any Financial
Institution in making loans to any such Person; (iii) inducing or attempting to
induce any Person who was a Customer of CCB on the date of termination of the
Officer's employment with CCB, to change such Customer's depository, loan and/or
other banking relationship from CCB to another Financial Institution; (iv)
acting as a consultant, officer, director, independent contractor, or officer of
any Financial Institution that has its main or principal office in the Market,
or in acting in any such capacity with any other Financial Institution, to
maintain an office or be employed at or assigned to or to have any direct
involvement in the management, business or operation of any office of such
Financial Institution located in the Market; or (v) communicating to any
Financial Institution the names or addresses or any financial information
concerning any Person who was a customer of CCB on the date of termination of
the Officer's employment with CCB.
The term "Customer" means any person with whom, as of the effective
date of termination of Officer's employment with CCB for any reason, CCB has a
depository, loan and/or other banking relationship.
The term" Financial Institution" means any federal or state chartered
bank, savings bank, savings and loan association or credit union, or trust
company or mortgage bank or institution in the business of offering mortgages,
or any securities broker or dealer or investment banking institution or other
business engaged in buying or selling securities or providing investment advice
with respect thereto, or any holding company for or corporation that owns or
controls any such entity, or any other Person engaged in the business of making
loans of any type or receiving deposits or carrying on any of the other
enumerated activities, other than CCB.
6
The term "Person" used in this Section 4 shall be as defined in Section
6(i).
5. Employment Standards. The Officer shall perform her duties
and responsibilities as an employee of 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 CCBF Board of Directors.
6. Term and Termination.
(a) Term. Notwithstanding the provisions of the Prior Agreement, the
term hereof (the "Term") shall be deemed to have commenced on , 1996 (the
"Commencement Date") and, unless earlier terminated as provided herein, shall
continue through the third (3rd) 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 or CCB after the effectiveness of such
termination shall remain binding upon, or enforceable by, the Officer or CCB, as
the case may be.
(b) Termination by Death. This Agreement shall be terminated upon the
death of the Officer during the Term. 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 calendar month in which the Officer's death shall have occurred.
7
(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 her Total
Disability and for a period of ninety (90) days thereafter. The Officer shall be
deemed to have suffered Total Disability upon the determination of her total
permanent disability by the United States Social Security Administration or
CCB'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 her 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 CCB. Unless the
provisions of Sections 6(g)(ii) or 6(h) are applicable and the Officer elects to
apply the applicable 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. 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 her 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), (C) conviction of a crime of
dishonesty or moral turpitude, (D) willful and material violation of any rule,
regulation order, statement of policy or final cease-and-desist order of any
governmental agency
8
or body having regulatory authority over CCBF or CCB in any of the foregoing,
whether or not resulting in criminal prosecution or conviction, (E) a material
and continuing breach of any provision of this Agreement (after written notice
thereof) or (F) the occurrence of any event that CCB shall reasonably believe to
have resulted in the Officer being excluded from coverage, or having coverage
limited as to the Officer as compared to other executives of CCB, under CCB's
then current "blanket bond" or other fidelity or insurance policy covering its
directors, officers or employees. With respect to the first occurrence of an
instance listed above specifically requiring written notice, CCB shall give the
Officer written notice which describes the failure or breach, and the Officer
shall have thirty (30) days to cure such breach or failure to the reasonable
satisfaction of CCB; provided, however, that no opportunity to cure shall be
allowed for any subsequent substantially similar failure or breach and
termination for Cause in such circumstances shall be effective upon the giving
of such written notice.
(f) Termination Without Cause. 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, the Officer will continue to
receive her then base salary and all other benefits (including bonuses and
continuation of all Benefit Plans and Fringe Benefits except for qualified
retirement plans) until the Expiration Date. At the election of the Officer, the
Present Value of the foregoing, determined as provided in Section 6(h), shall be
paid within sixty (60) days of the date of termination.
(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
9
In Control which has not been approved in advance by a formal resolution of
two-thirds (2/3) of the Continuing Members of the CCBF Board of Directors, the
Officer shall be entitled at her election:
(A) to continue to receive her then base salary and
bonuses as provided in this Agreement for a period of
two (2.00) years subsequent to the effective date of
such termination; and
(B) To continue to participate in all Benefit Plans and
Fringe Benefits, except qualified retirement plans,
described in Section 3 until the Expiration Date or
for the period of two (2.00) years, whichever is
greater.
Upon written notice by Officer to CCB, in lieu of paying the above for
a period of two (2.00) years in installments, the Officer shall be paid the
Present Value of such base salary and bonuses in a lump sum within sixty (60)
days of the date of termination of her employment. The calculation of the amount
due shall be made by the independent accounting firm then performing CCB's
independent audit. If Officer does not agree with the calculation performed by
the independent accounting firm appointed by CCB, then Officer may choose an
auditor to perform such calculation on his behalf. All costs and expenses
incurred by the auditor shall be borne by Officer. Following such calculation,
if the accounting firm appointed by CCB and the auditor appointed by Officer are
unable to agree on the calculation, the two parties shall agree on an
independent third-party auditor who shall be appointed to determine the
calculation of the amount due to Officer pursuant to this paragraph. The
determination of such third-party auditor shall be conclusive and binding on all
parties herein. In the event Officer
10
elects such lump sum payment, the Officer shall continue to participate in the
Benefit Plans and Fringe Benefits until the Expiration Date or for the two
(2.00) year period, whichever is greater.
(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 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, approved in advance by a formal resolution of at least
two-thirds (2/3) of the Continuing Members of the CCBF Board of Directors: (i)
if the Officer is required to move her personal residence or perform her
principal executive functions more than twenty (20) miles from the city limits
of Winston-Salem, North Carolina; (ii) if CCBF and/or CCB should fail to
maintain Benefit Plans and Fringe Benefits providing at least substantially the
same level of benefits afforded the Officer as of the date of the Change In
Control; or (iii) if the Officer's responsibilities or authority in the capacity
described in Section 1 and Appendix A have been diminished materially.
Upon such termination, or upon termination of this Agreement without
cause within one (1) year following an approved Change in Control, the Officer
shall be entitled to receive the compensation and benefit continuation when and
as provided in Section 6(g) above.
(i) Definitions. A "Change In Control" means a change in control of CCB
or CCBF of a nature that would be required to be reported in response to Item
6(e) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), or the acquisition of control,
within the meaning of Section 2(a) (2) of the Bank Holding Act of 1956, as
amended, or Section 602 of the Change in Company Control Act of
11
1978, of CCB or CCBF by any person, company, or other entity; provided that,
without limitation, a change in control shall be deemed to have occurred if:
(a) Any "person" (as such term is used in Section 13(d) and 14(d) of
the Exchange Act) is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of CCB or CCBF
representing 30% or more of the combined voting power of CCB's or CCBF's then
outstanding securities; or
(b) During any period of two consecutive years, individuals who at the
beginning of such period constitute the Board of Directors of CCB or CCBF cease
for any reason to constitute at least a majority thereof unless the election, or
the nomination for election by CCB's or CCBF's shareholders, of each new
director was approved by a vote of at least two-thirds of the directors then
still in office who were directors at the beginning of the period.
7. Successors and Assigns.
(a) Successors and Assigns. This Agreement 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.
(b) The Officer. Because CCB is 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.
12
8. Modification Waiver Amendments. No provision of this Agreement may
be modified, waived or discharged unless such waiver, modifications or discharge
is agreed to in writing, signed by the Officer and signed on behalf of CCB by
such officers thereof as may be specifically designated by the Board. 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.
11. Consolidation, Merger, or Sale of Assets. Nothing in this Agreement
shall preclude CCB from consolidating or merging into, or with, or transferring
all or substantially all of its assets to another corporation which specifically
assumes this Agreement and all obligations and undertakings of CCB hereunder.
Upon such a consolidation or merger, the use of "CCB" herein shall mean such
other corporation or entity, and this Agreement shall continue in full force and
effect.
13
APPENDIX A
The Officer shall be an officer of CCB, with the title
"________________." She shall report to ________________________ with regard to
her activities as an officer of CCB.
Her duties and responsibilities shall be:
1.
2.
14
IN WITNESS WHEREOF, the parties have executed this Employment Agreement
to be effective as of the day and year first hereinabove written.
CENTRAL CAROLINA BANK AND
ATTEST: TRUST COMPANY
____________________________ By:_____________________________
Secretary Ernest C. Roessler, President
and Chief Executive Officer
[CORPORATE SEAL]
OFFICER:
------------------------------
Deborah S. Marshall
15