Xxxxxxx 00.0
XXXXX XX XXXXX XXXXXXXX )
) SEPARATION AGREEMENT
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COUNTY OF GREENVILLE )
This Agreement is made and entered this 9th day of October 2001, by and
between Xxxxx X. Xxxxxxx, (hereinafter "Employee") and New Commerce BanCorp
(hereafter "Company"), a South Carolina corporation and holding company for New
Commerce Bank, N.A., a bank chartered under the laws of the United States
(hereafter "Bank"), on Company's behalf and on behalf of all others released
under Paragraph 4 hereof (all of which are hereinafter referred to and included
in the term "Released Parties" as that term is further defined in Paragraph 4
hereof):
W I T N E S S E T H:
WHEREAS Employee resigned his employment on September 5, 2001 effective
immediately; and
WHEREAS, the parties wish to preserve the goodwill which exists between
them and to settle all claims and disputes which may exist between them; and
WHEREAS Company has agreed to make payments to or on behalf of Employee
and Employee has acknowledged that he is not otherwise entitled to such
payments; and
WHEREAS, in return for the payments, Employee has agreed that he will
release all claims he may have, if any, against the Released Parties; and
NOW, THEREFORE, in reliance on the foregoing premises, and in exchange
for good and valuable consideration, the sufficiency and receipt of which is
hereby acknowledged, the parties hereto agree as follows:
1. Effective September 5, 2001, Employee has resigned his employment
with Company.
2. Company agrees to pay, and Employee agrees to accept, the property
and payments described in subsections a through e below. From any payments made
directly to Employee, appropriate amounts for applicable local, state and
federal tax will be deducted. The sums paid to or on behalf of employee, as well
as the vehicle allowance, will be reported to Employee on IRS Form W-2 in the
year in which they are paid. Company will:
a. Pay Employee's salary from October 1, 2001
through February 28, 2002 in the gross amount of
Eight Thousand Six Hundred Sixty-seven and no/100
($8,667.00) Dollars per month, payable to
Employee in accordance with the Company's regular
payroll practices; provided, however, in the
event that Employee obtains gainful employment
during this period, the payment referenced above
shall be eliminated altogether; and
b. Pay, on Employee's behalf, medical
insurance coverage, on or before the due date to
the appropriate entity until February 28, 2002,
at which time, with respect to such medical
coverage, Employee shall be eligible for COBRA
contribution coverage; and
c. Pay for outplacement services for the benefit of
Employee to be provided by the firm of Meridian
Resources.
3. Company has previously granted to Employee stock options for an
aggregate of 52,500 shares of common stock. These options were granted pursuant
to separate Stock Option Agreements dated June 30, 1999 and August 26, 1999.
Employee acknowledges that all of these stock options are forfeited. Further,
Company has previously granted to Employee the rights to warrants to purchase
7,500 shares of Common stock pursuant to the Stock Warrant Agreement between the
parties dated March 19, 2000. Such rights to warrants shall continue to be
governed by that Agreement.
4. In exchange for the foregoing payments Employee, for himself, his
attorneys, his spouse or former spouse, children, his heirs, executors,
administrators and assigns, does hereby fully, finally and forever release
Company, Bank and MSB Investments Corp., as well as their employee benefit
plans, plan administrators, predecessors, successors, assigns, present or former
affiliates, joint venturers, divisions, agents, directors, board members,
employees, officers, owners and shareholders and their heirs, executors,
administrators and assigns (all of whom are herein collectively referred to as
"Released Parties"), from any and all claims, demands, actions, causes of
actions, suits, damages, losses, expenses and attorney's fees of any kind and
every nature whatsoever, known or unknown, which he has or may have against any
of the Released Parties arising from or pertaining to any transaction, dealing,
employment relationship, employment agreement, conduct, act or omission, or any
other matter or event existing or occurring at any time prior to the date
hereof, including but not limited to matters arising from his employment with
Company or the cessation thereof. Further, and without in any way limiting the
foregoing, the claims waived and released by Employee include any possible or
alleged deprivation of rights under any employment discrimination statute or
based on any term or condition of his former employment, employment benefits or
promises, compensatory or punitive damages, as well as costs and attorneys' fees
of any and all counsel whom he has retained or whom he may in the future retain
in regard to those matters.
5. Employee agrees also to maintain in absolute confidence all past and
future privileged communications with or in the presence of attorneys for
Company or Bank, whether relating to litigation pending against Company or Bank,
or otherwise.
6. Company or Bank owns all Work Product that arose (or that shall be
deemed to have arisen during) the course of Employee's employment. For purposes
hereof, "Work Product" shall mean all intellectual property rights, including
all Trade Secrets, U.S. and international copyrights, patentable inventions, and
other intellectual property rights in any programming, documentation, technology
or other work product that relates to Company, Bank, or their respective
business or customers and that Employee conceived, developed, or delivered to
Company or Bank at any time during his employment, during or outside normal
working hours, in or away from the facilities of Company, and whether or not
requested by Company. Employee acknowledges that no Work Product contains any
materials, programming or intellectual property rights that Employee conceived
or developed prior to, and independent of, Employee's work for Company or Bank.
Employee agrees to take such actions and execute such further acknowledgments
and assignments as Company may reasonably request to give effect to this
provision.
7. Employee has not used or disclosed any Trade Secrets of Company or
Bank. Employee agrees to maintain in strict confidence and Employee agrees not
to use or disclose any Trade Secrets of Company or Bank on or after the date of
this Agreement. "Trade Secret" means information, including a formula, pattern,
compilation, program, device, method, technique, process, drawing, cost data or
customer list, that: (i) derives economic value, actual or potential, from not
being generally known to, and not being readily ascertainable by proper means
by, other persons who can obtain economic value from its disclosure or use; and
(ii) is the subject of efforts that are reasonable under the circumstances to
maintain its secrecy.
8. Employee has not used or disclosed any Confidential Business
Information of Company or Bank. Employee agrees to maintain in strict confidence
and not to use or disclose any Confidential Business Information of Company or
Bank for a period of 24 months from the date of this Agreement. "Confidential
Business Information" shall mean any internal, non-public information (other
than Trade Secrets already addressed above) concerning the financial position
and results of operations (including revenues, assets, net income, etc.) of
Company or Bank; annual and long-range business plans; product or
service plans; marketing plans and methods; training, educational and
administrative manuals; customer and supplier information and purchase
histories; and employee lists. The provisions of this Section 8 and Section 7
above shall also apply to protect Trade Secrets and Confidential Business
Information of third parties provided to Company or Bank under an obligation of
secrecy.
9. For a period of 12 months from the date of this Agreement, Employee
shall not (except on behalf of or with the prior written consent of Company),
either directly or indirectly, on Employee's own behalf or in the service or on
behalf of others, (A) solicit, divert, or appropriate to or for a Competing
Business, or (B) attempt to solicit, divert, or appropriate to or for a
Competing Business, any person or entity that was a customer of Company or Bank
on September 5, 2001 and is located in the Territory. For a period of 12 months
from the date of this Agreement, Employee shall not, either directly or
indirectly, on Employee's own behalf or in the service or on behalf of others,
(A) solicit, divert, or hire away, or (B) attempt to solicit, divert, or hire
away, to any Competing Business located in the Territory, any employee of or
consultant to Company or Bank engaged or experienced in the Business, regardless
of whether the employee or consultant is full-time or temporary, the employment
or engagement is pursuant to written agreement, or the employment is for a
determined period or is at will. "Business" shall mean the operation of a
depository financial institution, including, without limitation, the
solicitation and acceptance of deposits of money and commercial paper, the
solicitation and funding of loans and the provision of other banking services,
and any other related business engaged in Company or Bank as of September 5,
2001. "Competing Business" shall mean any business that, in whole or in part, is
the same or substantially the same as the Business. "Territory" shall mean a
radius of ten miles from (i) the main office of Bank or (ii) any branch office
of Bank.
10. Employee represents and warrants that he has surrendered to Company
all documents, including originals and all copies of any lists, books,
compilations, records and computer records, connected with Company's business,
customers or suppliers, whether prepared by Employee or others, and all other
property belonging to Company or Bank.
11. Employee represents and warrants that no other person or entity is
entitled to assert any claim of any kind or character arising out of, or as a
consequence of, his employment with Company, termination of his employment with
Company or any benefits relating to this employment or its cessation.
12. Employee acknowledges that the relationship created by this
Agreement is purely contractual and that no employer-employee relationship is
intended or may be inferred from the performance of the Company's obligations
under this Agreement.
13. Employee understands and affirms that this Agreement does not
constitute an admission by Company or any Released Party of a violation of any
statute, ordinance, constitutional provision, or common law right, and that this
Agreement shall not be deemed an admission, finding, or indication for any
purpose whatsoever that Company or any Released Party has at any time, including
the present, acted contrary to the law or violated the rights of Employee or any
other person.
14. All notices will be delivered by hand or by mail to Employee and
Company as follows
As to Employee: Xxxxx X. Xxxxxxx
As to Company: New Commerce BanCorp
Attn: Chief Executive Officer
000 Xxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
15. This Agreement shall be construed in accordance with the laws of
the State of South Carolina. In addition, the parties agree that the state or
federal courts of the State of South Carolina shall have sole jurisdiction to
adjudicate any dispute that may arise under this Agreement.
16. Employee affirms that the only consideration for his execution of
this Agreement are the terms stated herein, that this Agreement cannot be orally
changed or terminated, that there are no other promises or agreements of any
kind which have caused him to execute this instrument, and that he fully
understands the meaning and intent of it, including but not limited to its final
and binding effect.
EMPLOYEE ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS AGREEMENT AND,
HAVING BEEN GIVEN ADEQUATE OPPORTUNITY TO SEEK THE ADVICE OF AN ATTORNEY OF HIS
CHOOSING, KNOWS AND UNDERSTANDS ITS CONTENTS AND EXECUTES IT AS HIS FREE ACT AND
DEED.
IN WITNESS WHEREOF the undersigned have set their hands and seals the
date first written above.
WITNESSES:
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
/s/ Xxxxxxx Xxxxxxxxxx
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WITNESSES: New Commerce BanCorp
/s/ Xxxxxxx Xxxxxxxxxx By: /s/ Xxxxxxxx X. Xxxxxxx, Xx.
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/s/ Xxxxxxx X. Xxxxxxx Its Chairman
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