CCB FINANCIAL CORPORATION
PLAN FOR SEVERANCE COMPENSATION AFTER
A CHANGE IN CONTROL
INTRODUCTION
The Board of Directors of CCB Financial Corporation ("CCB") has affirmed that
CCB can better serve the interests of its customers, shareholders and employees
as an independent institution. The financial performance of CCB has been
excellent and future prospects look excellent also. As long as CCB can remain
strong financially there is no reason why it cannot remain independent. However,
the Board also realizes that the financial services industry is changing rapidly
and that the future can not always be guaranteed.
The Board of Directors of CCB has evaluated the potential economic and social
impact of a change in control of CCB on its employees. Many employees have
invested their lives in their jobs and have made significant contributions to
the growth and success of CCB. The stress on the employees and their families
caused by the uncertainties of the pre-takeover publicity and by the
post-takeover changes in operations resulting from the change in control are
widely recognized. Branch closings, elimination of duplicate positions,
different management, change of company culture, and reduced employee benefits
all may flow from a change in control and all impose costs which must be borne
by the employee and the employee's family.
The Board of Directors recognizes that, after a change in control of CCB, it may
no longer have the power to protect the interests of the employees. The Board
believes it is in CCB's interest to provide employees with the right to
compensation to assist them in bearing the costs imposed by a change in control.
The Board believes a severance compensation plan of this kind will aid CCB in
attracting and retaining the highly qualified individuals who are essential to
its success. The plan's assurance of fair treatment will reduce the distractions
and other adverse effects on employees' performance which are inherent in a
change in control.
Accordingly, the following plan has been developed and is hereby adopted.
ARTICLE I
ESTABLISHMENT OF PLAN
1.1 ESTABLISHMENT OF PLAN
As of the Effective Date, CCB hereby establishes a severance compensation plan
to be known as the "Severance Compensation Plan After a Change in Control" (the
"Plan"), as set forth in this document. The purposes of the Plan are as set
forth in the Introduction.
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1.2 APPLICABILITY OF PLAN
The benefits provided by this Plan shall be available to all full-time and
part-time employees of CCB who, at or after the Effective Date, meet the
eligibility requirements of Article III and who work regularly scheduled hours
with an Employer.
1.3 CONTRACTUAL RIGHT TO BENEFITS
This Plan establishes and vests in each Participant a contractual right to the
benefits to which he or she is entitled hereunder, enforceable by the
Participant against his or her Employer or CCB, or both.
ARTICLE II
DEFINITIONS AND CONSTRUCTION
2.1 DEFINITIONS
Whenever used in the Plan, the following terms shall have the meanings set forth
below and, when the meaning is intended, the initial letter of the term is
capitalized.
(a) "Change in Control" of CCB means and includes each and all of the
following occurrences:
(i) After the Effective Date of this Plan, any Person (as defined
in Section 7(j)(8)(A) of the Change in Bank Control Act of 1978), directly or
indirectly, acquires beneficial ownership of voting stock, acquires irrevocable
proxies, or any combination of voting stock and irrevocable proxies,
representing 25% or more of any class of voting securities of CCB, or acquires
control of in any manner the election of a majority of the directors of CCB.
(ii) CCB merges with or into another corporation, association, or
entity, or is otherwise reorganized, where CCB is not the surviving corporation
in such transaction.
(iii) All or substantially all of the assets of CCB are sold or
otherwise transferred to or acquired by any other corporation, association, or
other Person, entity or group.
Notwithstanding the other provisions of this Article II, for purposes of this
Plan the term "Change in Control" shall not include a transaction approved by
CCB's Board of Directors which results in CCB merging with, transferring its
assets to or becoming the subsidiary of a corporation newly formed at the
direction of CCB's Board of Directors for the purpose of such transaction or
serving as a bank holding company for CCB, and in connection with such
transaction, CCB's shareholders (other than those who exercise statutory rights
of dissent and appraisal) become the holders of substantially all of the voting
stock of such corporation.
(b) "CCB" means CCB Financial Corporation, Durham, North Carolina, a
North Carolina corporation, and any successor as provided in Article VII hereof.
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(c) "Compensation" of a Participant means and includes base monthly
salary paid by an Employer as consideration for the Participant's service during
the month ended that immediately precedes the date as of which Compensation is
to be determined plus an amount equal to one-twelfth of all other short-term
cash compensation paid by an Employer to an Employee during the 12 months
immediately preceding the date as of which compensation is to be determined.
(d) "Division/Region Executives" and "Other Senior Officers" shall mean
those Employees holding such titles as designated from time to time by the Board
of Directors of CCB.
(e) "Effective Date" as to Employees of an Employer means the date the
Plan is approved by the Board of Directors of that Employer, or such other date
as the Board shall designate in its resolution approving the Plan.
(f) "Employee" means a common law employee of an Employer employed by
Employer on a full-time or part-time basis who work regularly scheduled hours.
(g) "Employer" means CCB or a direct or indirect subsidiary of CCB which
has adopted the Plan pursuant to Article VI hereof.
(h) "Just Cause" means the termination of employment of an Employee
shall have taken place as a result of: (i) Participant's continued failure
(following reasonable notice of such failure and an opportunity to correct
performance deficiencies) to perform or discharge the duties of his employment
in a reasonably competent and satisfactory manner, or a determination by the
Participant's Employer, in good faith, that Participant is engaging or has
engaged in willful misconduct or conduct which is detrimental to the business
prospects of CCB or which has had or likely will have a material adverse effect
on CCB's business or reputation; (ii) the violation by Participant of any
applicable federal or state law, or any applicable rule, regulation, order or
statement of policy promulgated by any governmental agency or authority having
jurisdiction over CCB or any of its affiliates or subsidiaries (any of the
foregoing being hereinafter referred to as a "Regulatory Authority", which will
include, without limitation, the Federal Deposit Insurance Corporation, the
North Carolina Banking Commissioner, the North Carolina Banking Commission, the
Board of Governors of the Federal Reserve System, the Federal Reserve Bank of
Richmond, the Securities and Exchange Commission or any other banking or
securities regulatory authority), which results from Participant's gross
negligence, willful misconduct or intentional disregard of such law, rule,
regulation, order or statement of policy and results in any substantial damage,
monetary or otherwise, to CCB or any of its affiliates or subsidiaries or to its
reputation; (iii) the commission in the course of Participant's employment with
the Participant's Employer of an act of fraud, embezzlement, theft or proven
personal dishonesty (whether or not resulting in criminal prosecution or
conviction); (iv) the conviction of Participant of any felony or any criminal
offense involving dishonesty or breach of trust, or the occurrence of any event
described in Section 19 of the Federal Deposit Insurance Act or any other event
or circumstance which disqualifies Participant from serving as an employee of,
or a party affiliated with, CCB; or, in the event Participant becomes
unacceptable to, or is removed, suspended or prohibited from
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participating in the conduct of CCB's affairs (or if proceedings for that
purpose are commenced) by, any Regulatory Authority; or (v) the occurrence of
any event believed by CCB, in good faith, to have resulted in Participant being
excluded from coverage, or having coverage limited as to Participant as compared
to other covered employees, under CCB's then current "blanket bond" or other
fidelity bond or insurance policy covering its directors, officers or employees.
(i) "Severance Payment" means the payment of severance compensation as
provided in Article IV hereof.
(j) "Participant" means an Employee who meets the eligibility
requirements of Section 3.1.
(k) "Plan" means the Plan for Severance Compensation After Change in
Control.
2.2 APPLICABLE LAW
To the extent not preempted by the laws of the United States, the laws of the
State of North Carolina shall be the controlling law in all matters relating to
the Plan.
2.3 SEVERABILITY
If a provision of this Plan shall be held illegal or invalid, the illegality or
invalidity shall not affect the remaining parts of the Plan and the Plan shall
be construed and enforced as if the illegal or invalid provision had not been
included.
ARTICLE III
ELIGIBILITY
3.1 PARTICIPATION
Except as to the one (1) year minimum employment requirement as set forth in
Section 4.3(d) hereof, each Employee who, as of the Effective Date, shall be in
the employment by an Employer shall become a Participant on the date the Plan
becomes effective for his or her Employer. Thereafter, each Employee who becomes
employed by an Employer shall become a Participant on the day of such
employment. Notwithstanding the foregoing, the Plan shall not apply to any
Employee who, at the time of a Change in Control, shall have in effect an
Employment Agreement with provisions allowing for a Severance Payment at least
equivalent to the Severance Payments set forth herein.
3.2 DURATION OF PARTICIPATION
A Participant shall cease to be a Participant in the Plan when he or she ceases
to be an Employee of an Employer, unless such Participant is then entitled to
payment of a Severance Payment as provided in the Plan. A Participant entitled
to payment of a Severance Payment shall remain a
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Participant in this Plan until the full amount of the Severance Payment has been
paid to the Participant.
ARTICLE IV
SEVERANCE PAYMENTS
4.1 RIGHT TO SEVERANCE PAYMENT
A Participant shall be entitled to receive from CCB a Severance Payment in the
amount provided in Section 4.3 if there has been a Change in Control of CCB and
if, within two (2) years thereafter, the Participant's employment by an Employer
shall terminate for any reason specified in Section 4.2, whether the termination
is voluntary or involuntary. A Participant shall not be entitled to a Severance
Payment if termination occurs by reason of his or her death, voluntary
retirement at or after age 65, total and permanent disability, or for Just
Cause.
4.2 GOOD REASONS FOR TERMINATION
Following a Change in Control, a Participant shall be entitled to a Severance
Payment if his or her employment by an Employer is terminated, voluntarily or
involuntarily, for any one or more of the following reasons:
(a) The Employer reduces the Participant's base salary or rate of
compensation as in effect immediately prior to the Change in Control, or as the
same may have been increased thereafter.
(b) The Employer fails to continue any incentive plans in which the
Participant was entitled to participate immediately prior to the Change in
Control, substantially in the forms then in effect.
(c) The Employer assigns to the Participant any duties or
responsibilities not comparable with his or her duties or responsibilities with
the Employer immediately prior to the Change in Control.
(d) The Employer requires the Participant to change the location of his
or her job or office, so that he or she will be based at a location more than
thirty-five (35) miles from the location of his or her job or office immediately
prior to the Change in Control.
(e) Unless any reduction or elimination applies proportionately to all
other Participants, the Employer fails to continue in effect any benefit or
compensation plan, stock purchase plan, stock option plan, life insurance plan,
health, accident or disability plan or any other material fringe benefit in
which the Participant is participating immediately prior to the Change in
Control (or plans providing substantially similar benefits), or the Employer
takes any action which would adversely affect his or her participation or reduce
his or her benefits under any of such plans or benefits.
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(g) A successor company fails or refuses to assume CCB's obligations
under this Plan, as required by Article VII.
(h) CCB or any successor company breaches any of the provisions of this
Plan.
(i) The Employer terminates the employment of a Participant at or after
a Change in Control other than for Just Cause.
4.3 AMOUNT OF SEVERANCE PAYMENT
Each Participant entitled to a Severance Payment under this Plan shall receive
from CCB a lump sum cash payment in an amount based upon his or her length of
continuous employment by one or more Employers, as follows:
(a) Division/Region Executives shall receive an amount equal to
twenty-four months of Compensation. Additionally, Employees in this category
shall be provided outplacement employment services at their request.
(b) Other Senior Officers shall receive three-fourths (.75) of a month's
Compensation for each year of service with an Employer with a minimum of nine
(9) months of Compensation and a maximum of eighteen (18) months of
Compensation.
(c) Other "exempt" managers/professionals shall receive one-half of one
month's Compensation for each year of employment with one or more Employers
provided, however, that each Employee in this category shall receive a minimum
of six (6) months' Compensation and no Employee in this category shall receive
more than twelve (12) months' Compensation.
(d) All other Employees, provided they have continuously remained in
employment with an Employer for twelve (12) consecutive months, shall receive
one-fourth of one month's Compensation per year of employment with an Employer;
provided that all such Employees in this category shall receive a minimum of two
(2) months' Compensation and a maximum of six (6) months' Compensation.
(e) At the discretion of CCB, an additional bonus may be provided to any
employee in categories (a), (b), (c) and (d) above to encourage continued
employment by such Employee with the Employer for such period of time as CCB
and/or the Employer determines that such Employee's contributions would be
critical to the ongoing operations and affairs of CCB. Additionally, all
Employees set forth in categories (a), (b), (c) and (d) above shall be entitled
to the continuation, for such number of months used to calculate his or her
Compensation, of all employee benefit plans at the then current level at the
time of his or her termination of employment (e.g., if an Employee is entitled
to six (6) months' Compensation due to his or her years of employment, he or she
shall additionally be entitled to six (6) months of continued employee benefits,
including medical and life insurance and payout of accrued benefits such as
vacation and sick leave, etc., for the six month period following the
termination of employment.)
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(f) Notwithstanding the provisions of (a), (b), (c) and (d) above, if a
Severance Payment to a Participant who is a Disqualified Individual shall be in
an amount which includes an "Excess Parachute Payment", the payment hereunder to
that Participant shall be reduced to the maximum amount which does not include
an "Excess Parachute Payment". The terms "Disqualified Individual" and "Excess
Parachute Payment" shall have the same meaning as defined in Section 280G of the
Internal Revenue Code of 1986, or any successor section of similar import.
The Participant shall not be required to mitigate damages of the amount of his
or her Severance Payment by seeking other employment or otherwise, nor shall the
amount of such payment be reduced by any compensation earned by the Participant
as a result of employment after his or her termination of employment by an
Employer. Notwithstanding the foregoing, however, if an Employee secures new
employment after terminating his or her employment as a result of a Termination
Event, all employee benefit insurance coverages will be mitigated and reduced to
the extent that other insurance coverages are secured.
4.4 TIME OF SEVERANCE PAYMENT
The Severance Payment to which a Participant is entitled shall be paid by CCB to
the Participant, in cash and in full, not later than thirty (30) days after the
termination of the Participant's employment. If such a Participant should die
before all amounts payable to him or her have been paid, such unpaid amounts
shall be paid to the Participant's spouse, if living, otherwise to the personal
representative of the Participant's estate.
ARTICLE V
OTHER RIGHTS AND BENEFITS NOT AFFECTED
5.1 OTHER BENEFITS
Neither the provisions of this Plan nor the Severance Payment provided for
hereunder shall reduce any amounts otherwise payable, or in any way diminish the
Participant's rights as an Employee of an Employer, whether existing now or
hereafter, under any benefit, incentive, retirement, stock option, stock bonus
or stock purchase plan, or any employment agreement or other plan or
arrangement.
5.2 EMPLOYMENT STATUS
This Plan does not constitute a contract of employment or impose on the
Participant or the Participant's Employer any obligation to retain the
Participant as an Employee, to change the status of the Participant's
employment, or to change CCB's policies regarding termination of employment.
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ARTICLE VI
PARTICIPATING EMPLOYERS
6.1 Upon approval by the Board of Directors of CCB, this Plan may be adopted by
any Subsidiary of CCB. Upon such adoption, the Subsidiary shall become an
Employer hereunder and the provisions of the Plan shall be fully applicable to
the Employees of that Subsidiary. The term "Subsidiary" means any corporation in
which CCB, directly or indirectly, holds a majority of the voting power of its
outstanding shares of capital stock.
ARTICLE VII
SUCCESSOR TO CCB
7.1 CCB shall require any successor or assignee, whether direct or indirect, by
merger, consolidation or otherwise, or by purchase of all or substantially all
the business or assets of CCB, expressly and unconditionally to assume and agree
to perform CCB's obligations under this Plan, in the same manner and to the same
extent that CCB would be required to perform if no such succession or assignment
had taken place. In such event, the reference to "CCB," as used in this Plan,
shall mean CCB as hereinbefore defined and any successor or assignee to the
business or assets which by reason hereof becomes bound by the terms and
provisions of this Plan.
ARTICLE VIII
DURATION, AMENDMENT AND TERMINATION
8.1 DURATION
If a Change in Control has not occurred, this Plan will expire fifteen (15)
years from the Effective Date designated by the Board of Directors of CCB,
unless sooner terminated as provided in Section 8.2, or unless extended for an
additional period or periods by resolution adopted by the Board of Directors of
CCB at any time during the fifteenth year of the Plan.
If a Change in Control occurs, this Plan shall continue in full force and
effect, and shall not terminate or expire until after all Participants who
become entitled to Severance Payments hereunder shall have received such
payments in full.
8.2 AMENDMENT AND TERMINATION
The Plan may be terminated or amended in any respect by resolution adopted by
the Board of Directors of CCB, unless a Change in Control has previously
occurred. If a Change in Control occurs, the Plan no longer shall be subject to
amendment, change, substitution, deletion, revocation or termination in any
respect whatsoever.
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8.3 FORM OF AMENDMENT
The form of any proper amendment or termination of the Plan shall be a written
instrument signed by a duly authorized officer or officers of CCB, certifying
that the amendment or termination has been approved by the Board of Directors. A
proper amendment of the Plan automatically shall effect a corresponding
amendment to all Participants' rights hereunder. A proper termination of the
Plan automatically shall effect a termination of all Participants' rights and
benefits hereunder.
ARTICLE IX
LEGAL FEES AND EXPENSES
9.1 CCB shall pay all legal fees, costs of litigation, and other expenses
incurred by each Participant as a result of CCB's refusal to make the Severance
Payment to which the Participant becomes entitled under this Plan, or as a
result of CCB's contesting the validity, enforceability or interpretation of the
Plan.
ARTICLE X
ARBITRATION
10.1 Each Participant shall have the right and option to elect (in lieu of
litigation) to have any dispute or controversy arising under or in connection
with the Plan settled by arbitration, conducted before a panel of three
arbitrators sitting in a location selected by the Participant within fifty (50)
miles from the location of his or her job with an Employer, in accordance with
rules of the American Arbitration Association then in effect. Judgment may be
entered on the award of the arbitrator in any court having jurisdiction. All
expenses of such arbitration, including the fees and expenses of the counsel for
the Participant, shall be borne by CCB.
Approved by CCB Board of Directors
October 21, 1997 and Amended
on October 19, 1998.