Exhibit 10.33
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is entered into and
made effective this 1st day of November, 1996, between Dean E. Painter, Jr.
("Painter"), and CLG, Inc. ("CLG").
WHEREAS, Painter has been and is currently employed by CLG, a North
Carolina computer leasing corporation headquartered in Raleigh, North Carolina;
and
WHEREAS, Centura Banks, Inc., a North Carolina bank holding company
("Centura"), has acquired CLG (the "Acquisition") and will maintain CLG as a
wholly-owned subsidiary of Centura Bank, a North Carolina bank corporation
headquartered in Rocky Mount, North Carolina ("Bank"); and
WHEREAS, CLG desires to provide for Painter's continued employment with CLG
following the Acquisition; and
WHEREAS, CLG desires to enter into this Agreement with Painter to set forth
the terms of such employment; and
WHEREAS, Painter agrees that the terms of this Agreement will allow him to
be employed with and to devote his best efforts to CLG.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein contained, the parties agree as follows:
1. EMPLOYMENT.
CLG shall employ Painter as Chairman and Chief Executive Officer of CLG,
with the duties, responsibilities and powers of such office as assigned to him
and as customarily associated with such office. Painter shall faithfully and
diligently discharge his duties and responsibilities under this Agreement.
Nothing contained in this Section 1 or elsewhere in this Agreement, however,
will prevent or otherwise prohibit Painter from engaging in and pursuing
personal affairs not inconsistent with his duties and responsibilities under
this Agreement or prevent or prohibit Painter from managing and otherwise
tending to his personal investments, in each case so long as the same does not
interfere with the performance of his duties and responsibilities under this
Agreement.
2. TERM.
The Term of this Agreement shall be five (5) years, commencing on the date
hereof.
3. COMPENSATION AND BENEFITS.
During the Term of this Agreement, CLG shall pay to Painter as compensation
for his services to CLG a base salary at the rate of $360,000 per year, payable
in equal monthly installments. The base salary payable hereunder shall be
increased from time to time over the Term of this Agreement in the discretion of
the Compensation Committee of the Board of Directors of Centura, which committee
shall consider in making such adjustments, among other pertinent factors,
industry standards and the profitability of CLG.
The above-stated compensation shall not be deemed inclusive nor prevent
Painter from receiving any other compensation provided by CLG, and he shall be
entitled in any event (either directly or through salary adjustment) to health
and hospitalization insurance (including major medical), long-term disability
insurance, and life insurance, all in accordance (except as otherwise expressly
provided herein) with CLG's insurance plans for officers and employees in
comparable positions as such plans may be modified from time to time. For so
long as Painter is an officer or employee of CLG, Painter shall be entitled to
participate in all current and future employee benefit plans and arrangements in
which officers and employees of CLG or Bank in comparable positions are
permitted to participate.
4. TERMINATION.
Painter's employment under this Agreement shall terminate:
(a) Death. Upon the death of Painter;
(b) Disability. Upon notice from CLG to Painter in the event Painter
becomes "permanently disabled." For purposes of this Agreement, Painter shall be
deemed "permanently disabled" six (6) months after the first date that he has
become disabled by bodily or mental illness, disease, or injury, to the extent
that he is prevented from performing his material and substantial duties of
employment, and such disability has continued uninterrupted for six (6) months.
If the parties or their representatives cannot agree as to whether Painter is
"permanently disabled," as defined herein, they shall choose a physician to
examine Painter for the purpose of determining or confirming the existence or
extent of any disability. If the parties or their representatives cannot agree
on the choice of a physician to make such examination, each party or its
representative shall select one physician to make such examination and the two
physicians selected shall select a third physician to make such examination and
the three examining physicians shall by majority vote determine or confirm the
existence or extent of any disability. Notwithstanding the foregoing, before
terminating Painter in the event of his permanent disability, CLG shall offer
Painter reasonable accommodation pursuant to the Americans with Disabilities
Act, in which case Painter's duties and compensation hereunder may be adjusted
in accordance with such accommodation. Painter shall have the right to decline
CLG's offer of accommodation and, in such case, Painter's employment under this
Agreement shall terminate as provided herein;
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(c) Cause. Upon notice from CLG to Painter for cause. For purposes of this
Agreement, "cause" shall be defined as (i) a willful and continued failure by
Painter to perform his duties in the capacities indicated above (other than due
to disability); or (ii) a material breach by Painter of his fiduciary duties of
loyalty or care to CLG, as established by the Board of Directors of Centura
(other than due to disability); or (iii) a willful violation by Painter of any
material provision of this Agreement; or (iv) a conviction of, or the entering
of a plea of nolo contendere by Painter for any felony or any crime involving
fraud or dishonesty; or (v) a willful violation of any material federal or state
laws or regulations applicable to CLG. In addition, if Painter shall terminate
his employment for a breach of this Agreement by CLG in accordance with Section
4(d) hereof, and it is ultimately determined that no reasonable basis existed
for Painter's termination on account of the alleged default of CLG, such event
shall be deemed cause for termination by CLG;
Any notice of termination of Painter's employment with CLG for cause shall
set forth in reasonable detail the facts and circumstances claimed to provide
the basis for termination of his employment under the provisions contained
herein and the date of termination (the "Termination Date"). If the cause
alleged by CLG shall be (i), (ii), or (iii) set forth above, Painter shall be
given the opportunity to cure the breach within a reasonable period of time upon
receipt of notice but in no event to exceed thirty (30) days, unless such breach
is not reasonably susceptible to being corrected within thirty (30) days, in
which case Painter shall have the opportunity to cure such breach, provided that
Painter has commenced corrective action within such thirty (30) day period and
diligently pursues such action to completion;
(d) Breach. Upon notice from Painter to CLG of CLG's failure to comply with
any material provision of this Agreement, provided that CLG shall have thirty
(30) days from the receipt of such notice to cure any default under this
Agreement. If such default shall be cured or if CLG shall have taken steps to
cure the default within the thirty (30) day period and diligently pursues such
action to completion, Painter shall have no right to terminate his employment
under the provisions of this Section 4(d);
(e) Expiration of Term. Upon the expiration of the Term of this Agreement
as set forth in Section 2 hereof; and
(f) No Monetary Damages. Notwithstanding any provision of this Agreement to
the contrary, and except to the extent provided otherwise in Section 6 hereof,
Painter shall not be liable to CLG for monetary damages in the event of a
violation or breach of any of the provisions or covenants of this Agreement,
except to the extent that any such violation or breach is of the covenants set
forth in Section 6 hereof.
5. COMPENSATION AND BENEFITS PAYABLE UPON TERMINATION.
(a) Upon Painter's death during the Term of this Agreement, CLG shall
provide such death or insurance benefits as are provided in accordance with the
regular policy of CLG to similarly positioned employees and pursuant to the
terms of any benefit plans or arrangements maintained by CLG which provide such
benefits.
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(b) In the event Painter becomes permanently disabled and is terminated as
set forth in Section 4(b) hereof, CLG shall pay to Painter or his estate or
beneficiaries for the balance of the Term of this Agreement, the then-existing
base salary set forth in Section 3 hereof, provided that such payment shall be
offset by any amounts received by Painter (i) under any long term disability
plan maintained for the employees of CLG, (ii) from any other collateral source
payable due to disability to the extent that such payments are derived from
insurance or direct payments furnished by CLG, and (iii) social security
benefits. Painter agrees to use reasonable efforts to obtain the benefit of any
disability plan or policy covering him as a result of his employment by CLG in
the circumstances contemplated by Section 4(b) and this Section 5(b).
(c) If Painter's employment shall be terminated by Painter pursuant to
Section 4(d) hereof, CLG shall continue to pay to Painter or his estate his full
base salary in effect at the Termination Date and all applicable benefits due
hereunder (provided that the terms of any employee benefit plan pursuant to
which such benefits are provided permit participation by similarly positioned
former employees of Bank or CLG, as applicable) for the balance of the Term of
this Agreement, provided that such payments shall not be made after the
expiration of the Term of this Agreement; and provided further that such
payments shall be offset by any amounts paid to Painter under any severance or
salary continuation policy or plan of Bank or CLG applicable to Painter.
(d) In the event termination is for cause as described in Section 4(c)
hereof or is due to the expiration of the Term of this Agreement, CLG shall pay
Painter the compensation and benefits described in Section 3 hereof through the
Termination Date and no other compensation or benefits shall be paid to Painter
hereunder; provided, however, that nothing herein shall be deemed to terminate
or limit the Painter's vested rights under any other benefit, retirement, or
pension plan of CLG applicable to Painter, and the terms of those plans,
programs, or arrangements shall govern.
6. CONFIDENTIALITY AND COVENANT NOT TO COMPETE.
Painter hereby acknowledges that, by virtue of his employment by CLG,
Painter has gained certain valuable knowledge and has developed certain
expertise with respect to the business of computer leasing, generally, and the
business of CLG, specifically, including certain confidential information and
trade secrets relating to such business and information relating to certain
customers and potential customers of CLG. In connection with and in view of the
foregoing, Painter hereby agrees as follows:
(a) Painter agrees that, during the term of his employment pursuant to this
Agreement and for a period of three (3) years thereafter, Painter will not,
directly or indirectly, engage in, or participate in the promotion, financing,
ownership or management of, or otherwise provide services to, any firm,
corporation, or business (whether as an employee, officer, director, agent,
owner, partner, shareholder, consultant, or otherwise), the purpose or result of
which, in whole or in part, is to assist such firm, corporation, or business in
the buying, leasing, servicing, and selling of computer and technology equipment
in competition with CLG within 100 miles of any office of CLG or the principal
office of Centura.
(b) Painter agrees that, during the term of his employment pursuant to this
Agreement and for a period of three (3) years thereafter, Painter will not,
directly or indirectly, call upon, solicit, sell to, attempt to sell to, or
otherwise in any way engage in or attempt to engage in the business of buying,
leasing, servicing and selling computer and technology equipment in competition
with CLG to any firm, corporation, person or business that is a customer of CLG,
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Centura or Centura Bank at the time of such activity or was a customer of CLG,
Centura or Centura Bank at any time during the term of his employment pursuant
to this Agreement.
(c) Painter agrees that, during the term of his employment pursuant to this
Agreement and for a period of three (3) years thereafter, Painter will hold in a
fiduciary capacity for the benefit of CLG, and shall not directly or indirectly
use or disclose, except as required in Painter's judgment in connection with the
performance of his duties, as required by law or judicial or regulatory
proceedings or as authorized by CLG, any "Company Information" (as defined
below) that Painter may have or acquire (whether or not developed or compiled by
Painter) during the Term of this Agreement. The term "Company Information" as
used in this Agreement shall mean confidential or proprietary information,
including technical and financial information and customer or client lists,
relating to CLG or its programs or procedures, including without limitation,
information received by CLG from third parties under confidential conditions.
The term "Company Information" shall also include, without limitation, CLG's
computer data-base, forms and form letters, form contracts, information
regarding specific transactions, financial information and estimates and
long-term planning and goals. The term "Company Information" shall not include
information that has become generally available to the public by the act of one
who has the right to disclose such information without violating any right of
CLG.
(d) In addition to the foregoing and not in limitation thereof, Painter
agrees that, during the term of his employment pursuant to this Agreement and
for a period of three (3) years thereafter, Painter will hold in a fiduciary
capacity for the benefit of CLG and shall not directly or indirectly use or
disclose, except as required in Painter's judgment in connection with the
performance of his duties, as required by law or judicial or regulatory
proceedings or as authorized by CLG, any "Customer Information" (as defined
below) that Painter may have or acquire (whether or not developed or compiled by
Painter and whether or not Painter has been authorized to have access to such
Customer Information) during the Term of this Agreement. The term "Customer
Information" as used in this Agreement shall mean confidential or proprietary
information, including technical and financial information and customer lists
received by CLG or Painter from any customer or potential customer of CLG, and
shall include any information subject to the provisions of the federal Right to
Financial Privacy Act. The term "Customer Information" shall not include
information that has become generally available to the public by the act of one
who has the right to disclose such information without violating any right of
the customer to which such information pertains.
(e) Painter agrees and acknowledges that, if a violation of any covenant
contained in this Section 6 occurs or is threatened, such violation or
threatened violation will cause irreparable injury to CLG, that the remedy at
law for any such violation or threatened violation will be inadequate and that
CLG shall be entitled to appropriate equitable relief.
(f) The covenants contained in this Section 6 shall inure to the benefit of
CLG, any successor of it, and every subsidiary of it.
(g) The restrictions contained in this Section 6 are considered by the
parties hereto to be fair and reasonable and necessary for the protection of the
legitimate business interests of CLG.
(h) In the event of a termination of this Agreement by Painter pursuant to
Section 4(d) hereof, the restrictions contained in this Section 6 shall no
longer apply to Painter from and after the Termination Date.
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7. SUCCESSORS; BINDING AGREEMENT.
(a) This Agreement shall be binding upon any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of CLG, and CLG shall require
any such successor to expressly assume and agree to perform this Agreement. As
used in this Agreement, "CLG" shall mean CLG as hereinbefore defined and any
successor to its business and/or assets as aforesaid.
(b) This Agreement shall inure to the benefit of and be enforceable by
Painter's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If Painter should die
while any amount would still be payable hereunder, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to Painter's estate.
8. MISCELLANEOUS.
(a) All notices required or permitted hereunder shall be given in writing
by actual delivery or by registered or certified mail (postage prepaid) at the
following addresses or at such other places as shall be designated in writing:
Painter: 1211 Briar Patch Lane
Raleigh, North Carolina 27615
CLG: CLG, Inc.
3001 Spring Forest Road
Raleigh, North Carolina 27604
Attention: President
With a copy to: Centura Banks, Inc.
Post Office Box 1220
134 North Church Street
Rocky Mount, North Carolina 27804
Attn: President
(b) References in this Agreement to "similarly positioned" or "similarly
situated" employees shall mean those employees of CLG of comparable rank and
level of responsibility and with comparable duties. The existence or
non-existence of a contract of employment with CLG shall not be relevant for the
purpose of identifying those employees (or, if appropriate, former employees) of
CLG who are "similarly positioned" or "similarly situated."
(c) If any provision of this Agreement shall be determined to be void by
any court of competent jurisdiction, then such determination shall not affect
any other provision of this Agreement, all of which shall remain in full force
and effect.
(d) The failure of the parties to complain of any act or omission on the
part of either party, no matter how long the same may continue, shall not be
deemed to be a waiver of any of its rights hereunder.
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(e) This Agreement contains the entire agreement of the parties. This
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the
same instrument. It may be changed or terminated only by a writing signed by the
party against whom enforcement of any waiver, change, modification, extension,
discharge or termination is sought.
(f) This Agreement shall be construed and enforced in accordance with the
laws of the State of North Carolina, except as preempted by the Employee
Retirement Income Security Act of 1974, as amended.
IN WITNESS WHEREOF, Painter has executed this Agreement under seal by
adopting the word "SEAL" beside his name and CLG has executed this Agreement
under seal through its duly authorized officers as of the day and year first
above written.
/s/ Dean E. Painter, Jr. (SEAL)
Dean E. Painter, Jr.
CLG, INC.
By: /s/ Edwin J. Lee
Edwin J. Lee
President and Chief
Operating Officer
ATTEST:
/s/ Joseph A. Smith, Jr.
Joseph A. Smith, Jr.
Secretary
(Corporate Seal)
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