XXXXXXX 00.0
XXXXX XX XXXXX XXXXXXXX )
)
COUNTY OF YORK )
SEPARATION AGREEMENT
This Agreement is made and entered this 25th day of May 2001, by and
between X. X. Xxxxxxxx, Xx. (hereinafter "Employee") and RHBT Financial
Corporation (hereafter "Company"), a South Carolina corporation and holding
company for Rock Hill Bank & Trust, a South Carolina state-chartered bank
(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 and Employer entered into an Employment Agreement on
January 2, 2001; and
WHEREAS Employee resigned his employment on May 17, 2001, effective
immediately; and
WHEREAS Employee acknowledges that some obligations imposed upon him
under the terms of the parties' Employment Agreement survive termination of the
employment relationship; and
WHEREAS Company has agreed to make payments to or on behalf of Employee
and to waive certain provisions of certain stock options previously granted him,
and Employee has acknowledged that he is not otherwise entitled to such waiver
or to such payments under the terms of the parties' Employment Agreement or
stock option agreements; and
WHEREAS, in return for the waiver and payments, Employee has agreed
that he will release all claims he may have, if any, against the Released
Parties; and
WHEREAS Employee has also agreed to maintain in confidence all
privileged past communications relating to litigation pending against Company
and Bank, and to maintain the confidentiality of any communications he may in
the future have with attorneys for Company or Bank which in any way relate to
such litigation; and
WHEREAS the Company and other Released Parties have denied any
liability to Employee on the basis of any claims, asserted or unasserted,
whether involved in termination of his employment or otherwise; and
WHEREAS this Agreement is not to be deemed an admission, finding or
indication for any purpose whatsoever that the Company or any of the Released
Parties have, at any time, including the present, acted contrary to the law or
violated the rights of Employee or any other person;
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 May 18, 2001, Employee has resigned his employment
pursuant to section 4(d) of the parties' Employment Agreement of January 2,
2001. Employee and the Company agree that effective on the date of Employee's
resignation, the Employment Agreement is terminated, except that Sections 4(j)
through (n), 5, 6, 7, 8, 9, and 18 of the Employment Agreement shall survive
termination and remain binding on Employee.
2. Company agrees to pay, and Employee agrees to accept, the property
and payments described in subsections a through d below. From any payments made
directly to Employee, appropriate amounts for applicable local, state and
federal deductions will be made. As to property conveyed to Employee and those
payments which are made to others on his behalf, the parties acknowledge that
such sums are not being paid net of taxes. The sums paid to or on behalf of
employee, as well as the fair market value of the vehicle, will be reported to
Employee on IRS Form W-2 in the year in which they are paid or conveyed. Company
will:
a. Pay Employee's salary from June 1, 2001
through November 30, 2001 in the gross amount of
Ten Thousand Four Hundred Sixteen and 66/100
($10,416.66) Dollars per month, payable to
Employee in accordance with the Company's regular
payroll dates established for 2001; and
b. Pay, on Employee's behalf, monthly dues,
in the amount of $195 per month, payable to the
Rock Hill Country Club on the 10th day of each
month through December 31, 2001, or until such
time as Employee resigns his membership,
whichever occurs first; and
c. Pay, on Employee's behalf, COBRA premiums
for continuation health insurance coverage,
payable on or before the due date to the
appropriate entity until May 31, 2002, or such
time as Employee is no longer eligible for COBRA
coverage, whichever occurs first; and
d. Immediately convey to Employee the title to the
company vehicle previously assigned to him.
3. The Company has previously granted to Employee stock options for an
aggregate of 60,114 shares of common stock, of which 25,899 shares have vested
prior to the date hereof. These options were granted pursuant to four separate
stock option agreements, as described on the attached Schedule A. The Company
further agrees that, notwithstanding a provision to the contrary in the stock
option agreements, the options for these 25,899 shares shall remain exercisable
after the termination of Employee's employment and shall remain exercisable
through the expiration date set forth in the respective stock option agreement
and subject to the other terms specified in such agreement. Employee
acknowledges that the unvested stock options for the remaining 34,215 shares are
forfeited. Employee also acknowledges that, because of this change to the terms
of his stock option agreements, his options will not qualify as Incentive Stock
Options under the Internal Revenue Code.
4. In exchange for the foregoing payments and agreement to waive the
aforesaid provision of the stock option agreements, Employee, for himself, his
attorneys, his spouse or former spouse, children, his heirs, executors,
administrators and assigns, does hereby fully, finally and forever release the
Company and Rock Hill Bank & Trust, 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. Employee represents and warrants that he has surrendered to the
Company all documents, including originals and all copies of any lists, books,
compilations, records and computer records, connected with the Company's
business, customers or suppliers, whether prepared by Employee or others, and
all other property belonging to the Company.
7. 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.
8. 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.
9. Employee understands and affirms that this Agreement does not
constitute an admission by the 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.
10. All notices will be delivered by hand or by mail to Employee and
Company as follows
As to Employee: X. X. Xxxxxxxx, Xx.
0000 Xxxxx Xxxxx
Xxxx Xxxx, XX 00000
As to Company: RHBT Financial Corporation
Attn: Chief Executive Officer
P. O. Xxx 00000
Xxxx Xxxx, XX 00000
11. 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.
12. 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.
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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/ Xxxxxxxx X. Xxxxx /s/ X.X. Xxxxxxxx, Xx.
-------------------------- ----------------------------------
X.X. Xxxxxxxx, Xx.
Senior Vice President
RHBT Financial Corporation
/s/ Xxxxxx X. Xxxxxxxxx By: /s/ Xxxxx X. Xxxxxx
-------------------------- --------------------------------
Its Chairman
/s/ Xxxxx X. Xxxxxxx
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