Exhibit 10.1
NOTICE: THIS CONTRACT IS SUBJECT TO ARBITRATION PURSUANT
TO THE SOUTH CAROLINA UNIFORM ARBITRATION ACT
AMENDED AND RESTATED NONCOMPETITION,
SEVERANCE AND EMPLOYMENT AGREEMENT
Between
CAROLINA FIRST CORPORATION and XXXX X. XXXXXXX, XX.
This Amended and Restated Noncompetition, Severance and Employment
Agreement (this "Agreement") is made and entered into as of this 21st day of
May, 1999 by and between Xxxx X. Xxxxxxx, Xx., an individual (the "Executive"),
and Carolina First Corporation, a South Carolina corporation and financial
institution holding company headquartered in Greenville, South Carolina (the
"Company"). As used herein, the term "Company" shall include the Company and any
and all of its subsidiaries where the context so applies.
W I T N E S S E T H
WHEREAS the Company's Board of Directors (the "Board") believes that
the Executive has been instrumental in the success of the Company since its
inception in 1986;
WHEREAS the Company desires to continue to employ the Executive as
Chief Executive Officer of the Company and in such other capacities as the
Executive is currently employed as of the date hereof;
WHEREAS the terms hereof are consistent with the executive compensation
objectives of the Company as established by the Board;
WHEREAS the Executive is willing to accept the employment contemplated
herein under the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto
agree as follows:
1. Employment. Subject to the terms and conditions hereof, the Company
hereby employs the Executive and Executive hereby accepts such employment as the
Chief Executive Officer of the Company having such duties and responsibilities
as are set forth in Section 3 below.
2. Definitions. For purposes of this Agreement, the following terms
shall have the meanings specified below.
"Change in Control" shall mean:
(i) The acquisition, directly or indirectly, by any Person
(other than (A) any employee plan established by the Company, (B) the
Company or any of its affiliates (as defined in Rule 12b-2 promulgated
under the Exchange Act), (C) an underwriter temporarily holding
securities pursuant to an offering of such securities, or (D) a
corporation owned, directly or indirectly, by stockholders of the
Company in substantially the same proportions as their ownership of the
Company), of securities of the Company (not including in the securities
beneficially owned by such Person any securities acquired directly from
the Company) representing an aggregate of 20% or more of the combined
voting power of the Company's then outstanding voting securities;
(ii) During any period of up to two consecutive years,
individuals who, at the beginning of such period, constitute the Board
cease for any reason to constitute at least a majority thereof,
provided that any person who becomes a director subsequent to the
beginning of such period and whose nomination for election is approved
by at least two-thirds of the directors then still in office who either
were directors at the beginning of such period or whose election or
nomination for election was previously so approved (other than a
director (A) whose initial assumption of office is in connection with
an actual or threatened election contest relating to the election of
the directors of the Company, as such terms are used in Rule 14a-11 of
Regulation 14A under the Exchange Act, or (B) who was designated by a
Person who has entered into an agreement with the Company to effect a
transaction described in clause (i), (iii) or (iv) hereof) shall be
deemed a director as of the beginning of such period;
(iii) The stockholders of the Company approve a merger or
consolidation of the Company with any other corporation other than (A)
a merger or consolidation that would result in the voting securities of
the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity or any parent thereof), in
combination with the ownership of any trustee or other fiduciary
holding securities under an employee benefit plan of any Company, at
least 51% of the combined voting power of the voting securities of the
Company or such surviving entity or any parent thereof outstanding
immediately after such merger or consolidation, or (B) a merger or
consolidation effected to implement a recapitalization of the Company
(or similar transaction) in which no Person is or becomes the
beneficial owner (as defined in clause (i) above), directly or
indirectly, of securities of the Company (not including in the
securities beneficially owned by such Person any securities acquired
directly from the Company) representing 25% or more of the combined
voting power of the Company's then outstanding voting securities; or
(C) a plan of complete liquidation of the Company or an agreement for
the sale or disposition of the Company of all or substantially all of
the Company's assets; or
(iv) The occurrence of any other event or circumstance which
is not covered by (i) through (iii) above which the Board determines
affects control of the Company and, in order to implement the purposes
of this Agreement as set forth above, adopts a resolution
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that such event or circumstance constitutes a Change in Control for
the purposes of this Agreement.
"Cause" shall mean:
(i) In the absence of a Change in Control: (a) fraud; (b)
embezzlement; (c) conviction of the Executive of any felony; (d) a
material breach of, or the wilful failure or refusal by the Executive
to perform and discharge the Executive's duties, responsibilities and
obligations under this Agreement; (e) any act of moral turpitude or
wilful misconduct by the Executive intended to result in personal
enrichment of the Executive at the expense of the Company, or any of
its affiliates or which has a material adverse impact on the Business
or reputation of the Company or any of its affiliates (such
determination to be made by the Board in its reasonable judgment); (f)
intentional material damage to the property or Business of the Company;
(g) gross negligence; or (h) the ineligibility of the Executive to
perform his duties because of a ruling, directive or other action by
any agency of the United States or any state of the United States
having regulatory authority over the Company.
(ii) After a Change in Control: (a) material criminal fraud,
(b) gross negligence, (c) material dereliction of duties, (d)
intentional material damage to the property or business of the Company,
or (e) the commission of a material felony, in each case, as determined
in the reasonable discretion of the Board, but only if (1) the
Executive has been provided with written notice of any assertion that
there is a basis for termination for cause which notice shall specify
in reasonable detail specific facts regarding any such assertion, (2)
such written notice is provided to the Executive a reasonable time
before the Board meets to consider any possible termination for cause,
(3) at or prior to the meeting of the Board to consider the matters
described in the written notice, an opportunity is provided to the
Executive and his counsel to be heard before the Board with respect to
the matters described in the written notice, (4) any resolution or
other Board action held with respect to any deliberation regarding or
decision to terminate the Executive for cause is duly adopted by a vote
of a majority of the entire Board of the Company at a meeting of the
Board called and held and (5) the Executive is promptly provided with a
copy of the resolution or other corporate action taken with respect to
such termination. No act or failure to act by the Executive shall be
considered wilful unless done or omitted to be done by him not in good
faith and without reasonable belief that his action or omission was in
the best interests of the Company. The unwillingness of the Executive
to accept any or all of a change in the nature or scope of his
position, authorities or duties, a reduction in his total compensation
or benefits, a relocation that he deems unreasonable in light of his
personal circumstances, or other action by or request of the Company in
respect of his position, authority, or responsibility that he
reasonably deems to be contrary to this Agreement, may not be
considered by the Board to be a failure to perform or misconduct by the
Executive.
"Code" shall mean the Internal Revenue Code of 1986, as amended, or any
successor statute, rule or regulation of similar effect.
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"Confidential Information" shall mean all business and other
information relating to the business of the Company, including without
limitation, technical or nontechnical data, programs, methods, techniques,
processes, financial data, financial plans, product plans, and lists of actual
or potential customers, which (i) derives economic value, actual or potential,
from not being generally known to, and not being readily ascertainable by proper
means by, other Persons, and (ii) is the subject of efforts that are reasonable
under the circumstances to maintain its secrecy or confidentiality. Such
information and compilations of information shall be contractually subject to
protection under this Agreement whether or not such information constitutes a
trade secret and is separately protectable at law or in equity as a trade
secret. Confidential Information does not include confidential business
information which does not constitute a trade secret under applicable law two
years after any expiration or termination of this Agreement.
"Disability" or "Disabled" shall mean the Executive's inability as a
result of physical or mental incapacity to substantially perform his duties for
the Company on a full-time basis, with or without accommodation, for a period of
six (6) months.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Involuntary Termination" shall mean the termination of Executive's
employment by the Executive following a Change in Control which, in the sole
judgment of the Executive, is due to (i) a change of the Executive's
responsibilities, position (including status as Chief Executive Officer of the
Company, its successor or ultimate parent entity, office, title, reporting
relationships or working conditions) authority or duties (including changes
resulting from the assignment to the Executive of any duties inconsistent with
his positions, duties or responsibilities as in effect immediately prior to the
Change in Control); or (ii) a change in the terms or status (including the
rolling ten year termination date) of this Agreement; or (iii) a reduction in
the Executive's compensation or benefits; or (iv) a forced relocation of the
Executive outside the Greenville metropolitan area; or (v) a significant
increase in the Executive's travel requirements.
"Person" shall mean any individual, corporation, bank, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or other entity.
"Voluntary Termination" shall mean the termination by Executive of
Executive's employment following a Change in Control which is not the result of
any of clauses (i) through (v) set forth in the definition of Involuntary
Termination above.
3. Duties. During the term hereof, the Executive shall have such duties
and authority as are typical of the chief executive officer of a company such as
the Company, including, without limitation, those specified in the Company's
Bylaws. Executive agrees that during the Term hereof, he will devote his full
time, attention and energies to the diligent performance of his duties.
Executive shall not, without the prior written consent of the Company, at any
time during the Term hereof (i) accept employment with, or render services of a
business, professional or commercial nature to, any Person other than the
Company, (ii) engage in any venture or activity which the Company may in good
faith consider to be competitive with or adverse to the business of the Company
or of any affiliate of the Company, whether alone, as a partner, or as an
officer, director,
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employee or shareholder or otherwise, except that the ownership of not more than
5% of the stock or other equity interest of any publicly traded corporation or
other entity shall not be deemed a violation of this Section, or (iii) engage in
any venture or activity which the Board may in good faith consider to interfere
with Executive's performance of his duties hereunder.
4. Term. Unless earlier terminated as provided herein, the Executive's
employment hereunder shall be for a rolling term of ten years (the "Term")
commencing on the date hereof. This Agreement shall be deemed to extend each day
for an additional day automatically and without any action on behalf of either
party hereto until Executive turns fifty-five; upon Executive's fifty-fifth
birthday, such "Term" shall be converted to a fixed term of ten years and shall
expire (without any action on behalf of either party hereto) on Executive's
sixty-fifth birthday; this Agreement shall terminate upon the expiration of such
Term. Either party may, by notice to the other, cause this Agreement to cease to
extend automatically and, upon such notice, the "Term" of this Agreement shall
be the ten years following the date of such notice, and this Agreement shall
terminate upon the expiration of such Term.
5. Termination. This Agreement may be terminated as follows:
5.1 The Company. The Company shall have the right to terminate
Executive's employment hereunder at any time during the Term hereof (i) for
Cause, (ii) if the Executive becomes Disabled, (iii) upon the Executive's death,
or (iv) without Cause.
5.1.1 If the Company terminates Executive's
employment under this Agreement pursuant to clauses (i), (ii) or (iii)
of Section 5.1, the Company's obligations hereunder shall cease as of
the date of termination; provided, however, if Executive is terminated
for Cause after a Change in Control, then such termination shall be
treated as a Voluntary Termination as contemplated in Section 5.2.3
below.
5.1.2 If the Company terminates Executive pursuant to
clause (iv) of Section 5.1, Executive shall be entitled to receive
immediately as severance upon such termination, aggregate compensation
and benefits provided in Section 6 equal to three times Executive's
annual compensation being paid at the time of termination. For purposes
of determining compensation which is not fixed (such as a bonus), the
annual amount of such unfixed compensation shall be deemed to be the
equal to the average of such compensation over the three year period
immediately prior to the termination.
5.1.3 In the event of such termination pursuant to
clause (iv) of Section 5.1, (A) all rights of Executive pursuant to
awards of share grants or options granted by the Company shall be
deemed to have vested and shall be released from all conditions and
restrictions, except for restrictions on transfer pursuant to the
Securities Act of 1933, as amended, and (B) the Executive shall be
deemed to be credited with service with the Company for such remaining
Term for the purposes of the Company's benefit plans; (C) the Executive
shall be deemed to have retired from the Company and shall be entitled
as of the termination date, or at such later time as he may elect to
commence receiving the total combined qualified and non-qualified
retirement benefit to which he is entitled hereunder,
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or his total non-qualified retirement benefit hereunder if under the
terms of the Company's qualified retirement plan for salaried employees
he is not entitled to a qualified benefit, and (D) if any provision of
this Section 5.1.3 cannot, in whole or in part, be implemented and
carried out under the terms of the applicable compensation, benefit, or
other plan or arrangement of the Company because the Executive has
ceased to be an actual employee of the Company, because the Executive
has insufficient or reduced credited service based upon his actual
employment by the Company, because the plan or arrangement has been
terminated or amended after the effective date of this Agreement, or
because of any other reason, the Company itself shall pay or otherwise
provide the equivalent of such rights, benefits and credits for such
benefits to Executive, his dependents, beneficiaries and estate.
5.2 By Executive. Executive shall have the right to terminate
his employment hereunder if (i) the Company materially breaches this Agreement
and such breach is not cured within 30 days after written notice of such breach
is given by Executive to the Company; (ii) there is a Voluntary Termination; or
(iii) there is an Involuntary Termination.
5.2.1 If Executive terminates his employment other
than pursuant to clauses (i), (ii) or (iii) of Section 5.2, the
Company's obligations under this Agreement shall cease as of the date
of such termination and Executive shall be subject to the
confidentiality provisions set forth in Section 8 hereof and the
noncompetition provisions set forth in Section 9 hereof for a period of
one (1) year without the additional compensation provided in Section 9.
5.2.2 If Executive terminates his employment
hereunder pursuant to either clause (i) or clause (iii) of Section 5.2,
Executive shall be entitled to receive his base salary and other
benefits due him through the termination date, less applicable taxes
and other deductions, and receive immediately in a lump sum as
severance, aggregate cash compensation provided in Section 6 equal to
three times Executive's annual compensation being paid at the time of
termination. For purposes of determining compensation which is not
fixed (such as a bonus), the annual amount of such unfixed compensation
shall be deemed to be the equal to the average of such compensation
over the three year period immediately prior to the termination.
5.2.3 If Executive terminates his employment pursuant
to clause (ii) of Section 5.2, Executive shall be entitled to receive
his base salary and other benefits due him through the termination date
less applicable taxes and other deductions and receive immediately in a
lump sum as severance aggregate compensation and benefits provided in
Section 6 equal to one times Executive's annual compensation being paid
at the time of Voluntary Termination. For purposes of determining
compensation which is not fixed (such as a bonus), the annual amount of
such unfixed compensation shall be deemed to be the equal to the
average of such compensation over the three year period immediately
prior to the termination.
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5.2.4 In addition, in the event of such termination
pursuant to any of clauses (i) through (iii) of this Section 5.2, (A)
all rights of Executive pursuant to awards of share grants or options
granted by the Company shall be deemed to have vested and shall be
released from all conditions and restrictions, except for restrictions
on transfer pursuant to the Securities Act of 1933, as amended, and (B)
the Executive shall be deemed to be credited with service with the
Company for such remaining Term for the purposes of the Company's
benefit plans, and (C) the Executive shall be deemed to have retired
from the Company and shall be entitled as of the termination date, or
at such later time as he may elect to commence receiving the total
combined qualified and non-qualified retirement benefit to which he is
entitled hereunder, or his total non-qualified retirement benefit
hereunder if under the terms of the Company's qualified retirement plan
for salaried employees he is not entitled to a qualified benefit, and
(D) if any provision of this Section 5.2.4 cannot, in whole or in part,
be implemented and carried out under the terms of the applicable
compensation, benefit, or other plan or arrangement of the Company
because the Executive has ceased to be an actual employee of the
Company, because the Executive has insufficient or reduced credited
service based upon his actual employment by the Company, because the
plan or arrangement has been terminated or amended after the effective
date of this Agreement, or because of any other reason, the Company
itself shall pay or otherwise provide the equivalent of such rights,
benefits and credits for such benefits to Executive, his dependents,
beneficiaries and estate.
6. Compensation. In consideration of Executive's services and covenants
hereunder, Company shall pay to Executive the compensation and benefits
described below (which compensation shall be paid in accordance with the normal
compensation practices of the Company and shall be subject to such deductions
and withholdings as are required by law or policies of the Company in effect
from time to time, provided that his salary pursuant to Section 6.1 shall be
payable not less frequently than monthly):
6.1 Annual Salary. During the Term hereof, the Company shall
pay to Executive a base established by the Board which for the first year of the
Term shall be not less than the salary of the Executive for the past three
years. Executive's salary will be reviewed by the Board at the beginning of each
of its fiscal years and, in the sole discretion of the Board, may be increased
for such year; provided, however, that following a Change in Control, the base
salary shall be increased annually by a percentage at least equal to the average
annual increase over the past three years.
6.2 Annual Incentive Bonus. During the Term hereof, the Board
may pay to Executive an annual incentive cash bonus in accordance with the terms
of the Short Term Incentive Compensation Plan.
6.3 Long Term Incentive Compensation Plan. During the Term
hereof, the Board may pay to Executive long term incentive cash bonuses in
accordance with the Long Term Incentive Compensation Plan.
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6.4 Stock Options and Restricted Stock. During the Term
hereof, the Board shall grant Executive options to purchase Company Common Stock
and restricted stock in accordance with the terms of the Company's Long Term
Incentive Compensation Plan.
6.5 Other Benefits. Executive shall be entitled to share in
any other employee benefits generally provided by the Company to its most highly
ranking executives for so long as the Company provides such benefits. The
Company also agrees to provide Executive with a Company-paid automobile,
reasonable club dues for one country club and two business club(s), personal tax
advisory services, and a $5,000,000 life insurance policy and such disability
insurance as may be purchased by $_____ per year in premiums. Executive shall
also be entitled to participate in all other benefits accorded general Company
employees.
7. Excess Parachute Payments.
7.1 It is the intention of the parties hereto that the
severance payments and other compensation provided for herein (other than
payments pursuant to Section 9) are reasonable compensation for Executive's
services to the Company and shall not constitute "excess parachute payments"
within the meaning of Section 280G of the Code and any regulations thereunder.
In the event that the Company's independent accountants acting as auditors for
the Company on the date of a Change in Control determine that the payments
provided for herein constitute "excess parachute payments," then the
compensation payable hereunder shall be reduced to the point that such
compensation shall not qualify as "excess parachute payments."
7.2 To the extent that payments under Section 9 cause a
"parachute payment," as defined in Section 280G(b)(2) of the Code, the Company
shall indemnify Executive and hold him harmless against all claims, losses,
damages, penalties, expenses, and excise taxes relating thereto. To effect this
indemnification, the Company shall pay Executive an additional amount that is
sufficient to pay any excise tax imposed by Section 4999 of the Code on the
payments and benefits to which Executive is entitled without the additional
amount plus any penalties or interest imposed by the Internal Revenue Service in
regard to such amounts, plus another additional amount sufficient to pay all the
excise and income taxes on the additional amounts. The determination of any
additional amount that must be paid under this section at any time shall be made
in good faith by the independent auditors then employed by the Company.
8. Confidentiality. Executive shall hold in a fiduciary capacity for
the benefit of the Company all Confidential Information relating to the Company
or any of its affiliated companies, and their respective businesses, which shall
have been obtained by the Executive during the Executive's employment by the
Company or any of its affiliated companies. After termination of Executive's
employment with the Company, the Executive shall not, without the prior written
consent of the Company or as may otherwise be required by law or legal process,
communicate or divulge any such information, knowledge or data to anyone other
than the Company and those designated by it. Upon the termination or expiration
of his employment hereunder, Executive agrees to deliver promptly to the Company
all Company files, customer lists, management reports,
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memoranda, research, Company forms, financial data and reports and other
documents supplied to or created by him in connection with his employment
hereunder (including all copies of the foregoing) in his possession or control
and all of the Company's equipment and other materials in his possession or
control. In no event shall an asserted violation of the provisions of this
Section 10 constitute a basis for deferring or withholding any amounts otherwise
payable to the Executive under this Agreement.
9. Noncompetition and Nonsolicitation Agreement. If this Agreement is
terminated by the Company pursuant to Section 5.1(iv) or by Executive pursuant
to Section 5.2(i) or (iii), Executive shall not enter into an employment
relationship or a consulting arrangement with any other bank, thrift, lending or
financial institution of any type headquartered or having a physical presence in
the State of South Carolina (hereinafter a "competitor") within five years of
the anniversary of the date of the Change in Control (the "Noncompete Period").
The obligations contained in this Section 9 shall not prohibit Executive from
being an owner of not more than 5% of the outstanding stock of any class of a
corporation which is publicly traded, so long as Executive has no active
participation in the business of such corporation.
9.1 During the Noncompete Period, Executive shall not directly
or indirectly through another entity (i) induce or attempt to induce any
employee of Company to leave the employ of Company, including but not limited to
a competitor, or in any way interfere with the relationship between Company and
any employee thereof, (ii) hire any person who was an employee of Company or any
subsidiary at any time during the time that Executive was employed by Company,
or (iii) induce or attempt to induce any customer, supplier, or other entity in
a business relation of Company to cease doing business with Company, or in any
way interfere with the relationship between any such customer, supplier, or
business relation and Company or do business with a competitor.
9.2 Solely in consideration of Executive's promises set forth
in this Section 9 (and in addition to any other severance compensation provided
in this Agreement), upon termination of the Executive pursuant to the terms
contained in this Section 9, Company agrees to pay Executive an amount equal to
ten times Executive's annual cash compensation as provided in Sections 6.1 and
6.2 being paid at the time of commencement of the Noncompete Period. For
purposes of determining compensation which is not fixed (such as a bonus), the
annual amount of such unfixed compensation shall be deemed to be the equal to
the average of such compensation over the three year period immediately prior to
the termination. The amount payable under this Section 9.2 shall be in five
annual installments beginning on the first day of the Noncompete Period and on
the four subsequent anniversaries thereof.
9.3 If, at the time of enforcement of this Section 9, a court
shall hold that the duration, scope or area restrictions stated herein are
unreasonable under circumstances then existing, the parties agree that the
maximum duration, scope or area reasonable under such circumstances shall be
substituted for the stated duration, scope or area and that the court shall be
allowed to revise the restrictions contained herein to cover the maximum period,
scope and area permitted by law. Executive agrees that the restrictions
contained in this Section 9 are reasonable.
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9.4 In the event of the breach or a threatened breach by
Executive of any of the provisions of this Section 9, Company, in addition and
supplementary to other rights and remedies existing in its favor, may apply to
any court of law or equity of competent jurisdiction for specific performance
and/or injunctive or other relief in order to enforce or prevent any violations
of the provisions hereof (without posting a bond or other security). In
addition, in the event of an alleged breach or violation by Executive of this
Section 9, the Noncompete Period shall be tolled until such breach or violation
has been duly cured.
10. Trust. The Company shall establish an irrevocable trust to fund the
maximum amount of obligations which could reasonably be expected to become
payable hereunder under any circumstances (which may be a "rabbi trust" if so
requested by Executive), which trust (i) shall have as trustee an individual
acceptable to Executive, (ii) shall be fully funded upon the earlier of a Change
in Control or the approval of any regulatory application filed by a potential
acquiror of the Company seeking to acquire control of the Company, and (iii)
shall contain such other terms and conditions as are reasonably necessary in
Executive's determination to ensure the Company's compliance with its
obligations hereunder.
11. Assignment. The parties acknowledge that this Agreement has been
entered into due to, among other things, the special skills of Executive, and
agree that this Agreement may not be assigned or transferred by Executive, in
whole or in part, without the prior written consent of Company.
12. Notices. All notices, requests, demands, and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given if delivered or seven days after mailing if mailed, first class,
certified mail postage prepaid:
To the Company: Carolina First Corporation
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Chairman of the Board
To Executive: Xxxx X. Xxxxxxx, Xx.
0 Xxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Any party may change the address to which notices, requests, demands, and other
communications shall be delivered or mailed by giving notice thereof to the
other party in the same manner provided herein.
13. Provisions Severable. If any provision or covenant, or any part
thereof, of this Agreement should be held by any court to be invalid, illegal or
unenforceable, either in whole or in part, such invalidity, illegality or
unenforceability shall not affect the validity, legality or
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enforceability of the remaining provisions or covenants, or any part thereof, of
this Agreement, all of which shall remain in full force and effect.
14. Remedies in the Absence of a Change in Control. The terms of
this Section 14 will apply in the absence of a Change in Control.
14.1 The Executive acknowledges that if he breaches or
threatens to breach his covenants and agreements in this Agreement, such actions
may cause irreparable harm and damage to the Company which could not be
compensated in damages. Accordingly, if Executive breaches or threatens to
breach this Agreement, the Company shall be entitled to injunctive relief, in
addition to any other rights or remedies of the Company.
14.2 All claims, disputes and other matters in question
between the Executive and the Company arising out of or related to the
interpretation of this Agreement or the breach of this Agreement, except as
specifically governed by the foregoing provisions where there may be irreparable
harm and damage to the Company which could not be compensated in damages, shall
be decided by arbitration in accordance with the rules of the American
Arbitration Association. This agreement to arbitrate shall be specifically
enforceable under applicable law in any court having jurisdiction. The award
rendered by the arbitrator shall be final and judgment may be entered upon it in
accordance with the applicable law of any court having jurisdiction thereof.
14.3 In the event that the Executive is reasonably required to
engage legal counsel to enforce his rights hereunder against the Company,
Executive shall be entitled to receive from the Company his reasonable
attorneys' fees and costs; provided that Executive shall not be entitled to
receive those fees and costs related to matters, if any, which were the subject
of litigation and with respect to which a judgment is rendered against
Executive.
15. Remedies in the Event of a Change in Control. The terms of
this Section 15 shall apply in the event of a Change of Control.
15.1 The Executive acknowledges that if he breaches or
threatens to breach his covenants and agreements in this Agreement, such actions
may cause irreparable harm and damage to the Company which could not be
compensated in damages. Accordingly, if Executive breaches or threatens to
breach this Agreement, the Company shall be entitled to injunctive relief, in
addition to any other rights or remedies of the Company. All claims, disputes
and other matters in question between the Executive and the Company arising out
of or related to the interpretation of this Agreement or the breach of this
Agreement shall be decided under and governed by the laws of the State of South
Carolina.
15.2 The Company is aware that upon the occurrence of a Change
in Control, the Board or a stockholder of the Company may then cause or attempt
to cause the Company to refuse to comply with its obligations under this
Agreement, or may cause or attempt to cause the Company to institute, or may
institute, litigation seeking to have this Agreement declared unenforceable, or
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may take, or attempt to take, other action to deny the Executive the benefits
intended under this Agreement. In these circumstances, the purpose of this
Agreement could be frustrated. It is the intent of the parties that the
Executive not be required to incur the legal fees and expenses associated with
the protection or enforcement of his rights under this Agreement by litigation
or other legal action because such costs would substantially detract from the
benefits intended to be extended to the Executive hereunder, nor be bound to
negotiate any settlement of his rights hereunder under threat of incurring such
costs. Accordingly, if at any time after a Change of Control, it should appear
to the Executive that the Company is or has acted contrary to or is failing or
has failed to comply with any of its obligations under this Agreement for the
reason that it regards this Agreement to be void or unenforceable or for any
other reason, or that the Company has purported to terminate his employment for
cause or is in the course of doing so in either case contrary to this Agreement,
or in the event that the Company or any other person takes any action to declare
this Agreement void or unenforceable, or institutes any litigation or other
legal action designed to deny, diminish or to recover from the Executive the
benefits provided or intended to be provided to him hereunder, and the Executive
has acted in good faith to perform his obligations under this Agreement, the
Company irrevocably authorizes the Executive from time to time to retain counsel
of his choice at the expense of the Company to represent him in connection with
the protection and enforcement of his rights hereunder, including without
limitation representation in connection with termination of his employment
contrary to this Agreement or with the initiation or defense of any litigation
or other legal action, whether by or against the Executive or the Company or any
director, officer, stockholder or other person affiliated with the Company, in
any jurisdiction. The reasonable fees and expenses of counsel selected from time
to time by the executive as hereinabove provided shall be paid or reimbursed to
the Executive by the Company on a regular, periodic basis upon presentation by
the Executive of a statement or statements prepared by such counsel representing
other officers or key executives of the Company in connection with the
protection and enforcement of their rights under similar agreements between them
and the Company, and, unless in his sole judgment use of common counsel could be
prejudicial to him or would not be likely to reduce the fees and expenses
chargeable hereunder to the Company, the Executive agrees to use his best
efforts to agree with such other officers or executives to retain common
counsel.
16. Waiver. Failure of either party to insist, in one or more
instances, on performance by the other in strict accordance with the terms and
conditions of this Agreement shall not be deemed a waiver or relinquishment of
any right granted in this Agreement or of the future performance of any such
term or condition or of any other term or condition of this Agreement, unless
such waiver is contained in a writing signed by the party making the waiver.
17. Amendments and Modifications. This Agreement may be amended or
modified only by a writing signed by other parties hereto.
18. Governing Law. The validity and effect of this agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of South Carolina.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
EXECUTIVE
__________________________________
Xxxx X. Xxxxxxx, Xx.
CAROLINA FIRST CORPORATION
___________________________________
By: Xxxxxxx X. Xxxxxxx, Xx.
Chairman of the Board
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