EXHIBIT 10.4
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made effective as of September 3, 1997, by and between
FirstBancorporation, Inc. (the "Company"), a South Carolina corporation, and F.
Xxxxx Xxxxxxxx ("Executive").
WHEREAS, the Company wishes to assure itself of the services of Executive
for the period provided in this Agreement; and
WHEREAS, Executive is willing to serve in the employ of the Company on a
full-time basis for said period.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and upon the other terms and conditions hereinafter provided, the parties hereby
agree as follows:
1. POSITION AND RESPONSIBILITIES.
During the period of his employment hereunder, Executive agrees to serve as
bank organizer, reporting to Xxxxx X. Xxxxxxx, III.
2. TERMS AND DUTIES.
(a) The term of this Agreement shall be deemed to have commenced as of the
date first above written and shall continue for a period of six (6) full
calendar months thereafter and is subject to renewal upon agreement of the
parties.
(b) During the period of his employment hereunder, except for periods of
absence occasioned by illness, reasonable vacation periods, and reasonable
leaves of absence, Executive shall devote substantially all his business time,
attention, skill, and efforts to the faithful performance of his duties
hereunder including activities and services related to the organization,
operation and management of the Company.
3. COMPENSATION AND REIMBURSEMENT.
(a) The compensation specified under this Agreement shall constitute the
salary and benefits paid for the duties described in Sections 1 and 2. The
Company shall pay Executive as compensation a salary of $55,000 per year ("Base
Salary"). Such Base Salary shall be payable in accordance with the customary
payroll practices of the Company.
(b) In addition to the Base Salary provided for by paragraph (a) of this
Section 3, the Company shall pay or reimburse Executive for all reasonable
travel and other obligations under this Agreement and may provide such
additional compensation in such form and such amounts as the Board may from time
to time determine.
This additional compensation shall include insurance benefits that are
equivalent to the insurance benefits provided to officers in similar positions,
monthly dues for Wildewood Country Club, monthly dues for the Palmetto Club or
similar facility, and a cellular telephone.
(c) Notwithstanding anything herein to the contrary, upon the opening of
Proposed Bank ("New Bank"), Executive's Base Salary shall be increased to
$65,000 and Executive shall be paid a one time bonus of $5,000. Executive's
Base Salary shall be increased to $75,000 and Executive shall receive an
additional bonus of $7,750 when deposits at New Bank average $10 million dollars
for a period of thirty (30) consecutive days.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION.
(a) Upon the occurrence of an Event of Termination (as herein defined)
during Executive's term of employment under this Agreement, the provisions of
this Section shall apply. As used in this Agreement, an "Event of Termination"
shall mean the termination by the Company of Executive's full-time employment
hereunder for any reason, other than Termination for Cause, as defined in
Section 7 hereof.
(b) Upon the occurrence of an Event of Termination, the Company shall pay
Executive, or, in the event of his subsequent death, his beneficiary or
beneficiaries, or his estate, as the case may be, as severance pay or liquidated
damages, or both, a sum equal to sixty (60) days salary in a lump sum within 30
days of the Date of Termination.
(c) Upon the occurrence of an Event of Termination, the Company will cause
to be continued for a period of sixty (60) days (or such longer period as may be
required under applicable law) life, medical, dental and disability coverage
substantially identical to the coverage maintained by the Company for Executive
prior to his termination.
5. TERMINATION, DEATH OF EXECUTIVE OR RESIGNATION
Upon the death of Executive during the term of this Agreement, the Company
shall pay to Executive's estate the compensation due to Executive through the
last day of the calendar month in which his death occurred. Upon the voluntary
resignation of Executive during the term of this Agreement, the Company shall
pay to Executive the compensation due to Executive through his Date of
Termination.
6. TERMINATION FOR CAUSE.
For purposes of this Agreement, "Termination for Cause" shall include
termination because of Executive's personal dishonesty, incompetence, willful
misconduct, breach of fiduciary
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duty involving personal profit, intentional failure to perform stated duties,
willful violation of any law, rule, or regulation (other than traffic violations
or similar offenses) or final cease-and-desist order, or material breach of any
provision of this Agreement. Executive shall not have the right to receive
compensation or other benefits for any period after Termination for Cause. Any
stock options granted to Executive under any stock option plan or any unvested
awards granted under any other stock benefit plan of the Company, or any
subsidiary or affiliate thereof, shall become null and void effective upon
Executive's receipt of Notice of Termination for Cause pursuant to Section 8
hereof, and shall not be exercisable by Executive at any time subsequent to such
Termination for Cause.
7. NON-COMPETITION AND NON-DISCLOSURE.
(a) Upon any voluntary termination of employment by Executive during the
term of this Agreement, Executive agrees not to compete with New Bank and/or the
Company for a period of one (1) year following such termination in the City of
Columbia or in any city, town or county in which New Bank and/or the Company has
an office or has filed an application for regulatory approval to establish an
office, determined as of the effective date of such termination. Executive
agrees that during such period and within said cities, towns and counties,
Executive shall not work for or advise, consult or otherwise serve with,
directly or indirectly, any entity whose business materially competes with the
depository, lending or other business activities of New Bank and/or the Company.
The parties hereto, recognizing that irreparable injury will result to New Bank
and/or the Company, its business and property in the event of Executive's breach
of this Section 9(a) agree that in the event of any such breach by Executive,
New Bank and/or the Company will be entitled, in addition to any other remedies
and damages available, to an injunction to restrain the violation hereof by
Executive, Executive's partners, agents, servants, employers, employees and all
persons acting for or with Executive. Executive represents and admits that in
the event of the termination of his employment, Executive's experience and
capabilities are such that Executive can obtain employment in a business engaged
in other lines and/or of a different nature than New Bank and/or the Company,
and that the enforcement of a remedy by way of injunction will not prevent
Executive from earning a livelihood. Nothing herein will be construed as
prohibiting New Bank and/or the Company from pursuing any other remedies
available to New Bank and/or the Company for such breach or threatened breach,
including the recovery of damages from Executive.
(b) Executive recognizes and acknowledges that the knowledge of the
business activities and plans for business activities of New Bank and affiliates
thereof, as it may exist from time to time, is a valuable, special and unique
asset of the business of New Bank and the Company. Executive will not, during or
after the term of
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his employment, disclose any knowledge of the past, present, planned or
considered business activities of New Bank or the Company to any person, firm,
corporation, or other entity for any reason or purpose whatsoever. In the event
of a breach or threatened breach by Executive of the provisions of this Section,
New Bank and the Company will be entitled to an injunction restraining Executive
from disclosing, in whole or in part, the knowledge of the past, present,
planned or considered business activities of New Bank or the Company, or from
rendering any services to any person, firm, corporation, other entity to whom
such knowledge, in whole or in part, has been disclosed or is threatened to be
disclosed. Nothing herein will be construed as prohibiting New Bank and the
Company from pursuing any other remedies available to New Bank and the Company
for such breach or threatened breach, including the recovery of damages from
Executive.
8. SOURCE OF PAYMENTS.
All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the Company; provided, however, that upon the
commencement of operations of New Bank, such payments and any benefits to be
provided to Executive under this Agreement will be paid or provided by New Bank.
9. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS.
This Agreement contains the entire understanding between the parties hereto
and supersedes any prior employment agreement between the Company or any
predecessor of the Company and Executive, except that this Agreement shall not
affect or operate to reduce any benefit or compensation inuring to Executive of
a kind elsewhere provided. No provision of this Agreement shall be interpreted
to mean that Executive is subject to receiving fewer benefits than those
available to him without reference to this Agreement.
10. NO ATTACHMENT.
(a) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null,
void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit of,
Executive, the Company and their respective successors and assigns.
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11. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an instrument
in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there by any estoppel against the enforcement of any provision
of this Agreement, except by written instrument of the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future as to any act other than that specifically
waived.
12. SEVERABILITY.
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
13. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
14. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of South
Carolina, unless otherwise specified herein; provided, however, that in the
event of a conflict between the terms of this Agreement and any applicable
federal or state law or regulation, the provisions of such law or regulation
shall prevail.
15. ARBITRATION.
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before a panel
of three arbitrators sitting in a location selected by the employee within one
hundred (100) miles from the location of the Company, in accordance with the
rules of the American Arbitration Association then in effect. Judgment may be
entered on the arbitrator's award in any court having jurisdiction; provided,
however, that Executive shall be entitled to seek specific performance of his
right to be paid until the Date of Termination during the pendency of any
dispute or controversy arising under or in connection with this Agreement.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
and its seal to be affixed hereunto by a duly authorized officer, and Executive
has signed this Agreement, all on the 3 day of September, 1997.
ATTEST: FIRSTBANCORPORATION, INC.
/s/ Xxxxx X. Xxxx, III BY: /s/ Xxxxx X. Xxxxxxx, III
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[SEAL]
WITNESS:
/s/ Xxxxxxx X. Xxxxx /s/ F. Xxxxx Xxxxxxxx
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Executive
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