THIS AGREEMENT IS SUBJECT TO ARBITRATION PURSUANT TO THE SOUTH CAROLINA UNIFORM
ARBITRATION ACT, SECTION 15-48-10, ET. SEQ., CODE OF LAWS OF SOUTH CAROLINA,
1976 (AS AMENDED).
Exhibit 10.2
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into effective as of
the 1st day of January, 2002 (the "Effective Date"), by and among The Bank of
Camden (the "Bank"); and Xxxxxxx X. Xxxxxxxx, III ("Executive").
W I T N E S S E T H:
WHEREAS, the Executive is presently employed as the President and Chief
Operating Officer of the Bank; and
WHEREAS, the Executive has obtained substantial senior operations and
financial management experience throughout his career, and can be expected to
make substantial contributions to the financial success of the Bank and to
contribute to the growth and development of the Bank through his knowledge and
experience in the business, affairs, and management of financial organizations
such as the Bank; and
WHEREAS, the Bank considers the retention of the Executive in its
employ to be in its best interests in order to insure and contribute to the
continuity of management of the Bank and to insure and contribute to the future
progress and financial success of the Bank; and
WHEREAS, the Bank recognizes that in order to retain the Executive's
services, it must offer him compensation, benefits and termination rights which
executives of comparable background, experience, ability and expertise receive
for such an executive position with a business organization of similar size and
complexity; and
WHEREAS, the parties desire to enter into this Agreement setting forth
the terms and conditions of the employment relationship between the Bank and the
Executive.
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained, and other good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged, the parties hereto do hereby agree
as follows:
1. Definitions. The following terms used in this Agreement shall have the
following meanings:
a. "Base Salary" shall mean the annual compensation (excluding Incentive
Compensation as defined in (e) of this paragraph and other benefits)
payable or paid to Executive pursuant to paragraph 4(a) of this
Agreement.
b. "Change of Control" shall be deemed to have occurred:
i. Upon the consummation of any transaction in which any person (or
persons acting in concert), partnership, financial institution,
corporation, or other organization shall own, control, or hold
with the power to vote more than fifty percent (50%) of any class
of voting securities of the Bank;
ii. Upon the consummation of any transaction in which the Bank, or
substantially all of the assets of the Bank, shall be sold or
transferred to, or consolidated or merged with, another financial
institution, corporation or other organization;
iii. Upon the consummation of any transaction in which any person (or
persons acting in concert), partnership, financial institution,
corporation, or other organization shall own, control, or hold
with the power to vote more than fifty percent (50%) of any class
of voting securities of any holding company that owns a majority
of the voting securities of the Bank;
iv. Upon the consummation of any transaction in which any holding
company that owns a majority of the voting securities of the
Bank, or substantially all of the assets of any such holding
company, shall be sold or transferred to, or consolidated or
merged with, another financial institution, corporation or other
organization;
provided, however, if the Bank shall become a subsidiary of a bank
holding company, corporation, or other organization, or shall be
merged or consolidated into another financial institution,
corporation, or other organization and a majority of the outstanding
voting shares of the parent or surviving corporation are owned
immediately after such acquisition, merger, or consolidation by the
owners of a majority of the outstanding shares of the Bank immediately
before such acquisition, merger, or consolidation, then no Change of
Control shall be deemed to have occurred.
c. "Disability" shall mean a condition for which benefits would be
payable under any long-term disability insurance coverage
(without regard to the application of any elimination period
requirement) then provided to Executive by Bank, or, if no such
coverage is then being provided, the inability of Executive to
perform the material aspects of Executive's duties under this
Agreement for a period of at least ninety (90) consecutive days,
as determined by an independent physician selected with the
approval of Bank and Executive. For purposes of determining
benefits to be provided under this Agreement in the event of
Disability, Disability shall be deemed to commence at the date at
which it is deemed to commence under any long-term disability
policy provided by the Bank to Executive, or, if no such coverage
is provided, at the end of the 90 day period referred to above of
inability to perform Executive's duties.
d. "Event of Termination" shall mean the termination by the Bank of
Executive's employment under this Agreement by written notice
delivered to Executive for any reason other than (i) Termination
for Cause as defined in (g) of this paragraph or (ii) termination
following a continuous period of Disability exceeding twelve (12)
calendar months pursuant to paragraph 6(a) of this Agreement or a
change or alteration described in paragraph 2 of this Agreement
as an Event of Termination. e. "Incentive Compensation" shall
mean that compensation payable or paid to Executive pursuant to
paragraph 4(b) of this Agreement.
f. "Severance Amount" shall have the same meaning as the term
"parachute payment" defined in Section 280G(b)(2) of the Internal
Revenue Code (as amended) and the regulations and rulings
thereunder and, to the extent included in such definition, shall
include all payments to Executive in the nature of compensation
which are contingent on Change of Control, including the
accelerated vesting of any stock options granted to Executive.
g. "Termination for Cause" shall have the meaning provided in
paragraph 7(a) of this Agreement.
2. Employment. The Bank agrees to employ Executive, and Executive agrees to
accept such employment, as President and Chief Operating Officer of the
Bank, for the period stated in paragraph 3(a) hereof and upon the other
terms and conditions herein provided. Executive agrees to perform
faithfully such services as are reasonably consistent with his position and
shall from time to time be assigned to him by the Board of Directors of the
Bank in a trustworthy and businesslike manner for the purpose of advancing
the interests of the Bank. The Board of Directors of the Bank may also from
time to time change Executive's position or alter his duties and
responsibilities and assign a new position or new duties and
responsibilities that are similar in scope and nature to Executive's
existing position, duties and responsibilities without invalidating this
Agreement or effecting the termination of Executive; provided, however,
that any such change or alteration which occurs within six (6) months prior
to or twelve (12) months after a Change of Control without the written
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consent of the Executive shall constitute an Event of Termination. At all
times, Executive shall manage and conduct the business of the Bank in
accordance with the policies established by the Board of Directors of the
Bank, and in compliance with applicable regulations promulgated by
governing regulatory agencies. Responsibility for the supervision of
Executive shall rest with the Board of Directors of the Bank, which shall
review Executive's performance at least annually. The Board of Directors of
the Bank shall also have the authority to terminate Executive, subject to
the provisions outlined in paragraphs 6 and 7 of this Agreement.
3. Term and Duties.
a. Term of Employment. This Agreement and the period of Executive's
employment under this Agreement shall be deemed to have commenced as
of the Effective Date and shall continue for a period of thirty-six
(36) full calendar months thereafter, unless earlier terminated
pursuant to this Agreement or unless Executive dies before the end of
such thirty-six (36) months, in which case the period of employment
shall be deemed to continue until the end of the month of such death.
On each anniversary of the Effective Date, this Agreement and
Executive's term of employment shall be extended for an additional
twelve (12) month period, unless Executive on the one hand, or the
Bank on the other hand, shall give written notice to the other, within
the sixty (60)-day period immediately prior to the applicable
anniversary of the Effective Date, that Executive's term of employment
hereunder shall not be extended.
b. Performance of Duties. During the period of employment hereunder,
except for periods of illness, Disability, reasonable vacation
periods, and reasonable leaves of absence, Executive shall devote
substantially all of his business time, attention, skill, and efforts
to the faithful performance of his duties hereunder. Executive shall
be entitled to reasonable participation as a member in community,
civic, or similar organizations and the pursuit of personal
investments which do not present any material conflict of interest
with the Bank, or unfavorably affect the performance of Executive's
duties pursuant to this Agreement
c. Office of Executive. The office of Executive shall be located at the
Bank's office in Camden, South Carolina, or at such other location
within the State of South Carolina as the Bank may from time to time
designate; provided, however, that, in the event any such relocation
is to an office more than thirty-five (35) miles from Camden, South
Carolina, and Executive elects to move his principal residence, the
Bank shall reimburse Executive for all his reasonable moving expenses.
d. No Other Agreement. Executive shall have no employment contract or
other written or oral agreement concerning employment with any entity
or person other than the Bank during the term of his employment under
this Agreement.
e. Uniqueness of Executive's Services. Executive hereby represents that
the services to be performed by him under the terms of this Agreement
are of a special, unique, unusual, extraordinary, and intellectual
character which gives them a peculiar value, the loss of which cannot
be reasonably or adequately compensated in damages or in an action at
law. Accordingly, Executive expressly agrees that the Bank, in
addition to any rights or remedies which the Bank may possess, shall
be entitled to injunctive and other equitable relief to prevent the
breach of this Agreement by Executive.
4. Compensation.
a. Salary. Subject to the provisions of paragraphs 6 and 7 hereof, the
Bank shall pay Executive, as compensation for serving as President and
Chief Operating Officer of the Bank, an initial Base Salary of
$92,950.00. Such initial Base Salary, or any increased Base Salary,
shall be payable in substantially equal installments in accordance
with the Bank's normal pay practices, but not less frequently than
monthly. Executive's Base Salary and any Incentive Compensation (as
defined in paragraph 4(b) hereof) shall be reviewed and approved at
least annually by the Board of Directors of the Bank, or any committee
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designated thereby. Said Board or committee, if warranted in its
discretion, may increase (but may not decrease) Executive's Base
Salary to reflect Executive's performance.
b. Incentive Compensation. During the term of this Agreement and in
addition to the aforesaid Base Salary, Executive shall be entitled to
such additional Incentive Compensation as may be awarded from time to
time, in its discretion, by the Board of Directors of the Bank or any
committee designated thereby. It is provided, however, that Executive
shall not be entitled to receive any such target bonus unless and
until all of the following conditions are satisfied: (i) the Bank's
Composite Uniform Financial Institution Rating shall be either a "1"
or a "2"; and (ii) the Bank shall be "well capitalized" as defined
under capital adequacy regulations promulgated by the Federal Deposit
Insurance Corporation. Notwithstanding anything contained in this
Agreement to the contrary, any increase to Executive's Base Salary and
any Incentive Compensation paid to Executive shall be (i) in
compliance with regulations, pronouncements, directives, or orders
issued or promulgated by any governing regulatory agency and with any
agreements by and between the Bank and such regulatory agencies, (ii)
consistent with the safe and sound operation of the Bank, (iii)
closely monitored by the Board of Directors of the Bank, and (iv)
comparable to such compensation paid to persons of similar
responsibilities and duties in other insured institutions of similar
size, in similar locations, and under similar circumstances including
financial condition and profitability.
c. Reimbursement of Expenses. The Bank shall pay or reimburse Executive
for all reasonable travel and other expenses incurred by Executive in
the performance of his obligations and duties under this Agreement, as
provided in the applicable policies of the Bank, as currently adopted
or as may be adopted in the future by the Board of Directors of the
Bank.
d. Provision for Business Development Expenses. In addition to the
foregoing, the Bank believes that its best interests will be more
fully served if Executive maintains active membership in or joins
appropriate business or social clubs and other professional
associations. Accordingly, the Bank shall also reimburse Executive for
the dues and business related expenditures associated with such
appropriate business or other social clubs and professional
associations which are commensurate with his position and approved by
the Board of Directors of the Bank.
e. Provision of Automobile. The Bank shall, on the Effective Date of this
Agreement, provide, for Executive's use, an automobile appropriate for
Executive's title and position or an automobile allowance set by the
Board of Directors of the Bank. The Bank shall also provide
reimbursement relating to the operation and maintenance of any
automobile provided by the Bank and shall maintain automobile
liability insurance to protect Executive and/or the Bank, as their
respective interests may appear, against claims arising out of the use
of said automobile (or any other motor vehicle) in the course of
Executive's employment hereunder.
5. Participation in Benefit Plans.
a. Incentive, Savings, and Retirement Plans. During the term of this
Agreement, Executive shall be entitled to participate in all
incentive, stock option or warrant, savings, and retirement plans,
practices, policies, and programs applicable generally to senior
executive officers of the Bank, on the same basis as such other senior
executive officers, and, unless otherwise prohibited by the terms of
such incentive, stock option or warrant, savings, and retirement
plans.
b. Welfare Benefit Plans. During the term of this Agreement, Executive
and/or Executive's family, as the case may be, shall be eligible for
participation in and shall receive all benefits under welfare benefit
plans, practices, policies and programs provided by the Bank, to the
extent applicable generally to senior executive officers of the Bank.
c. Fringe Benefits. During the term of this Agreement, Executive shall be
entitled to receive fringe benefits in accordance with the policies,
practices and procedures of the Bank, to the extent applicable
generally to other senior executive officers of the Bank.
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6. Benefits Payable Upon Disability or Death.
a. Disability Benefits. In the event of the Disability of Executive, the Bank
shall continue to pay Executive 100% of Executive's then current Base
Salary pursuant to paragraph 4(a) during the first twelve (12) months of a
continuous period of Disability. In the event of Executive's Disability for
a continuous period exceeding twelve (12) months, the Bank may, at its
election, terminate this Agreement, in which event payment of Executive's
Base Salary shall cease.
b. Disability Benefit Offset. Any amounts payable under paragraph 6(a) hereof
shall be reduced by any amounts paid to Executive during such twelve (12)
month period under any other disability program or policy of insurance
maintained by the Bank.
c. Death Benefits. The Bank shall obtain and maintain a term life insurance
policy or policies on Executive with a death benefit of an aggregate amount
of not less than $1,200,000.00. Fifty percent (50%) of the proceeds of such
policy or policies shall be payable to the designated beneficiary of the
Executive and the balance shall be payable to the Bank. Executive shall
also have such other life insurance options and benefits as may hereafter
be provided generally to senior executive officers of the Bank. Benefits
paid pursuant to such policies shall be the only benefits paid to Executive
in the event of his death during the term of this Agreement. Executive
agrees to perform all reasonable and necessary actions requested of him, by
either the Bank or the insurance company selected by the Bank, to assist
the Bank in obtaining this life insurance policy.
7. Payments to Executive Upon Termination of Employment. The Board of
Directors of the Bank may terminate Executive's employment under this
Agreement at any time; but any termination other than Termination for Cause
shall not prejudice Executive's right to compensation or other benefits
provided under this Agreement. Executive may voluntarily terminate his
employment under this Agreement. The rights and obligations of the Bank and
Executive in the event of termination are as follows:
a. Termination for Cause. Executive shall have no right to compensation
or other benefits for any period after a Termination for Cause.
Termination for Cause shall be determined by the Board of Directors of
the Bank in the reasonable exercise of their discretion and acting in
good faith, and shall mean termination because of:
(i) Executive's personal dishonesty, incompetence, willful
misconduct, breach of fiduciary duties involving personal profit,
or intentional failure to perform stated duties;
(ii) willful violation of any law, rule, or regulation (other than
traffic violations or similar offenses), or of a final
cease-and-desist order applicable to the Executive or the Bank;
(iii)the regulatory suspension or removal of Executive as defined in
paragraphs 8(a), (b) or (c) hereof;
(iv) the failure of Executive to follow reasonable written
instructions of the Board of Directors of the Bank;
(v) conduct by the Executive which causes material harm to the Bank;
or
(vi) a material breach by Executive of any provision of this
Agreement.
The termination of employment of Executive shall not be deemed to be a
Termination for Cause unless and until there shall have been delivered to
Executive a copy of a resolution duly adopted by the affirmative vote of not
less than two-thirds of the entire membership of the Board of Directors of the
Bank at a meeting of the Board called and held for such purpose (after at least
thirty (30) days' prior notice of such meeting is provided to Executive and
Executive is given an opportunity, together with counsel, to be heard before the
Board of Directors), finding that, in the good faith opinion of the Board of
Directors, Executive is guilty of the conduct described herein and specifying
the particulars thereof in detail. The Board of Directors of the Bank, in its
discretion, may suspend Executive, with pay, for all or any portion of the
period of time from the delivery of the notice described herein until the
effective time of the Termination for Cause.
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b. Event of Termination Without Change of Control. Upon the occurrence of
an Event of Termination, other than after a Change of Control as
provided in paragraph 7(c) hereof, the Bank shall pay to Executive, or
in the event of his subsequent death, to his designated beneficiary or
beneficiaries, or to his estate, as the case may be, as liquidated
damages, in lieu of all other claims of the Executive, a severance
payment equal to two (2) times Executive's then current Base Salary,
to be paid in full on the last day of the month following the date of
said Event of Termination.
c. Event of Termination in Connection With a Change of Control. If,
during the term of this Agreement and within one (1) year immediately
following a Change of Control or within six (6) months immediately
prior to such Change of Control, Executive's employment with the Bank
under this Agreement is terminated by an Event of Termination, then
the Bank shall pay to Executive, or in the event of his subsequent
death, to his designated beneficiary or beneficiaries, or to his
estate, as the case may be, as liquidated damages, in lieu of all
other claims of the Executive, a severance payment equal to three (3)
times Executive's then current Base Salary, to be paid in full on the
last day of the month following the later of the date of the Event of
Termination or the date of the Change of Control.
d. Limits on Payments. In no event shall the payment described in
paragraph 7(c) exceed the amount permitted by Section 280G of the
Internal Revenue Code (as amended). Therefore, with respect to the
payment(s) described in paragraph 7(c) only, if the aggregate present
value (determined as of the date of the Change of Control in
accordance with the provisions of Section 280G of the Internal Revenue
Code (as amended) or any successor thereof and the regulations and
rulings thereunder ("Section 280G") of the Severance Amount would
result in a parachute payment (as determined under Section 280G), then
the Severance Amount shall not be greater than an amount equal to 2.99
multiplied by Executive's base amount (as determined under Section
280G) for the base period (as determined under Section 280G). In the
event the Severance Amount is required to be reduced pursuant to this
paragraph 7(d), Executive shall be entitled to determine which
portions of the Severance Amount are to be reduced so that the
Severance Amount satisfies the limit set forth in the preceding
sentence. Executive's average annual compensation shall be based on
the most recent five taxable years ending before the Change of Control
(or the period during which Executive was employed by the Bank if
Executive has been employed by the Bank for less than five years).
Should Executive be assessed any excise tax as a result of any payment
of the Severance Amount that complies with Section 280G, the Bank
shall pay all such assessed excise taxes, but shall pay no other taxes
assessed against Executive as a result of the payment of the Severance
Amount.
e. Voluntary Termination of Employment. Executive shall have no right to
compensation or other benefits under this Agreement for any period
following the voluntary termination of Executive's employment by
Executive.
f. Additional Payments After Termination. In the event that Executive's
employment is terminated pursuant to paragraphs 7(b) or (c) above,
then the Bank shall pay Executive an additional amount equal to
Executive's cost of COBRA health continuation coverage for Executive
and his eligible dependants for the period during which Executive and
his eligible dependants are entitled to receive COBRA continuation
coverage from the Bank under the applicable laws, rules and
regulations governing COBRA.
8. Regulatory Suspension.
a. If Executive is suspended and/or temporarily prohibited from
participating in the conduct of the affairs of the Bank by a notice
served under Sections 8(e)(3) or (g)(1) of the Federal Deposit
Insurance Act, 12 U.S.C. Section 1818(e)(3) or (g)(l), the obligations
of the Bank under this Agreement shall be suspended as of the date of
service of such notice, unless stayed by appropriate proceedings. If
the charges in the notice are dismissed, the Bank may in its
discretion (i) pay Executive all or part of the compensation withheld
6
while its contract obligations were suspended and (ii) reinstate in
whole or in part any of its obligations which were suspended. Vested
rights of Executive shall not otherwise be affected.
b. If Executive is removed and/or permanently prohibited from
participating in the conduct of the affairs of the Bank by an order
issued under Section 8(e)(4) or (g)(l) of the Federal Deposit
Insurance Act, 12 U.S.C. Section 1818(e)(4) or (g)(l), all obligations
of the Bank under this Agreement shall terminate as of the effective
date of the order, but vested rights of the parties hereto shall not
be affected.
c. If the Bank is in default (as defined in 12 U.S.C. Section
1813(x)(1)), all obligations of the Bank under this Agreement shall
terminate as of the date of default.
d. Any payments made to Executive pursuant to this Agreement, or
otherwise, are subject to and conditioned upon their compliance with
12 U.S.C. Section 1828(k) or any successor provisions thereto and
regulations promulgated thereunder.
9. Covenants Against Competition and Solicitation. Executive acknowledges that
he has performed services and/or will perform services hereunder that
directly affect the Bank's business presently conducted (among other areas)
within the city limits of Camden in the State of South Carolina.
Accordingly, the parties deem it necessary to enter into the following
protective covenants, the terms and conditions of which have been
negotiated by and between the parties hereto:
a. Covenant Not to Compete. For the period of Executive's employment with
the Bank and for a period of twelve (12) months following any
termination of Executive's employment under this Agreement, Executive
covenants and agrees that he shall not within the city limits of
Camden, South Carolina or within a twenty-five (25) mile radius
thereof, compete with the Bank by performing banking services that
require performance of duties substantially identical to those
performed on behalf of the Bank by Executive, to-wit, as a member of
management, supervisor, or executive employee for any bank, bank
holding company or other financial institution that is a competitor of
the Bank.
b. Covenant Not to Solicit Clients or Employees. For the period of
Executive's employment with the Bank and for a period of twelve (12)
months following any termination of Executive's employment under this
Agreement, Executive covenants and agrees as follows: (i) Executive
shall not, for himself or any other party, solicit, directly or
indirectly, any clients or prospective clients of the Bank with whom
he personally had business contact on the Bank's behalf at any time
during the last twenty-four (24) months he worked at the Bank, to do
any business with another company or business in competition with the
Bank; and (ii) Executive will not employ or attempt to employ or
assist in employing any employee of the Bank for the purpose of having
such employee perform services for any bank or other business or
organization in competition with the business of the Bank as such
exists on the termination date of Executive's employment hereunder
until such employee has ceased to be employed by the Bank for a period
of one (1) year.
c. Reasonableness. The parties have attempted to limit Executive's right
to compete only to the extent necessary to protect the Bank from
unfair competition. The parties recognize, however, that reasonable
people may differ in making such a determination. Consequently, the
parties hereby agree that, if the scope or enforceability of the
restrictive covenant is in any way disputed at any time, a court or
other trier of fact may modify and enforce the covenant to the extent
that it believes the covenant is reasonable under the circumstances
existing at that time.
d. Executive's Ability to Earn a Livelihood. The Executive further
represents to the Bank and acknowledges that: (i) in the event
Executive's employment with the Bank terminates for any reason,
regardless of whether the termination is initiated by the Bank or
Executive, Executive will be able to earn a livelihood without
violating the foregoing restrictions; and (ii) Executive's ability to
earn a livelihood without violating such restrictions is a material
condition of Executive's employment with the Bank.
7
10. Nondisclosure of Confidential Information. Executive acknowledges that, as
an executive officer of the Bank, he will have access to, and participate
in creating, certain confidential or proprietary information owned by the
Bank or relating to its business ("Confidential Information"), including,
without limitation, customer lists, details of client or consultant
contracts, current and anticipated customer requirements, pricing policies,
price lists, market studies, business plans, operational methods, marketing
plans or strategies, product development techniques or plans, computer
software programs, financial information and data, business acquisition
plans, and new personnel acquisition plans, some of which information would
constitute a trade secret under the common law or statutory law of the
State of South Carolina. Executive understands and agrees that the
Confidential Information constitutes a valuable asset of the Bank, and may
not be converted to Executive's own use. Accordingly, Executive hereby
agrees that for a period of twenty-four (24) months following any
termination of Executive's employment under this Agreement (the "Restricted
Period"), that he shall not reveal, divulge, or disclose to any person not
expressly authorized by the Bank any Confidential Information, and
Executive shall not, directly or indirectly, at any time during the
Restricted Period use or make use of any Confidential Information in
connection with any business activity other than that of the Bank.
Notwithstanding anything contained herein to the contrary, Executive shall
not be restricted from disclosing or using Confidential Information that:
(i) is or becomes generally available to the public other than as a result
of an unauthorized disclosure by Executive or his agent; (ii) becomes
available to Executive in a manner that is not in contravention of
applicable law from a source (other than the Bank or one of its officers,
employees, agents or representatives) that is not bound by a confidential
relationship with the Bank or by a confidentiality or other similar
agreement; (iii) was known to Executive on a non-confidential basis and not
in contravention of applicable law or a confidentiality or other similar
agreement before its disclosure to Executive by the Bank or one of its
officers, employees, agents or representatives; or (iv) is required to be
disclosed by law, court order or other legal process; provided, however,
that in the event disclosure is so required, Executive shall provide the
Bank, with prompt notice of such requirement so that the Bank may seek an
appropriate protective order prior to any such required disclosure by
Executive.
11. Source of Payments. All payments provided for in paragraphs 4, 6, and 7
hereof shall be paid in cash from the general funds of the Bank as provided
herein, and no special or separate fund shall be established by the Bank,
and no other segregation of assets shall be made to assure payment.
Executive shall have no right, title, or interest in or to any investments
which the Bank may make to meet the obligations hereunder.
12. Injunctions. In view of the irreparable harm and damage which the Bank
would sustain as a result of a breach by Executive of the covenants or
agreements under paragraphs 9 and 10 hereof, and in view of the lack of an
adequate remedy at law to protect the Bank's interests, the Bank shall have
the right to receive, and Executive hereby consents to the issuance of, a
permanent injunction enjoining Executive from any violation of the
covenants and agreements set forth in paragraphs 9 and 10 hereof. The
foregoing remedy shall be in addition to, and not in limitation of, any
other rights or remedies to which the Bank is or may be entitled at law or
in equity respecting this Agreement.
13. Attorneys' Fees. In the event any party hereto is required to engage in
legal action, including arbitration, against any other party hereto, either
as plaintiff or defendant, in order to enforce or defend any of its or his
rights under this Agreement, and such action results in a final judgment or
award in favor of one or more parties, then the party or parties against
whom said final judgment or award is obtained shall reimburse the
prevailing party or parties for all legal fees and expenses incurred by the
prevailing party or parties in asserting or defending its or his rights
hereunder in the event the court or arbitrator determines that the actions
of the party or parties against whom final judgment or award is obtained
were reckless, or in willful disregard of the obligations of this
Agreement, or the court or arbitrator otherwise so orders.
8
14. Federal Income Tax Withholding. The Bank may withhold from any benefits
payable under this Agreement all federal, state, city, or other taxes as
shall be required pursuant to any law or governmental regulation or ruling.
15. Effect of Prior Agreements. This Agreement contains the entire
understanding between the parties hereto and supersedes any prior
employment agreement and any contemporaneous oral agreement or
understanding by, between, or among the Bank and Executive.
16. General Provisions.
(a) Nonassignability. Neither this Agreement nor any right or interest
hereunder shall be assignable by Executive, his beneficiaries or legal
representatives, without the prior written consent of the Bank;
provided, however, that nothing in this paragraph 16(a) shall preclude
(i) Executive from designating a beneficiary to receive any benefits
payable hereunder upon his death, or (ii) the executors,
administrators, or other legal representatives of Executive or his
estate from assigning any rights hereunder to the person or persons
entitled thereto. The Bank may assign this Agreement to an affiliate
of the Bank without the consent of Executive.
(b) No Attachment. 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, and any attempt,
voluntary or involuntary, to effect any such action shall be null,
void, and of no effect.
(c) Binding Agreement. This Agreement shall be binding upon, and inure to
the benefit of, the Bank and Executive and their respective heirs,
successors, assigns, and legal representatives.
17. Modification and Waiver.
(a) Amendment of Agreement. This Agreement may not be modified or amended
except by an instrument in writing, signed by the parties hereto, and
which specifically refers to this Agreement.
(b) Waiver. No term or condition of this Agreement shall be deemed to have
been waived, nor shall there be 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 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 or as to any act other than that specifically
waived.
18. Severability. If for any reason any provision of this Agreement is held
invalid, such invalidity shall not affect any other provision of this
Agreement not held invalid, and each such other provision shall to the full
extent consistent with law continue in full force and effect. If any
provision of this Agreement shall be held invalid in part, such invalidity
shall in no way affect the rest of such provision not held so invalid, and
the rest of such provision, together with all other provisions of this
Agreement, shall to the full extent consistent with law continue in full
force and effect.
19. Headings. The headings of 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.
20. Governing Law. This Agreement has been executed and delivered in the State
of South Carolina, and its validity, interpretation, performance, and
enforcement shall be governed by the laws of said State.
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21. Arbitration. Any controversy or claim arising out of or relating to this
Agreement shall be settled by binding arbitration by three arbitrators, as
applicable, under the applicable rules of the American Arbitration
Association. Judgment on any award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof; provided that any party
may seek injunctive relief to enforce provisions of this Agreement without
initiating an arbitration proceeding. The location of any arbitration shall
be Camden, South Carolina. Any civil action seeking injunctive relief,
challenging an arbitration proceeding or award or otherwise related to this
Agreement will be instituted and maintained in the federal or state courts
for Kershaw County, South Carolina and the parties hereby consent to the
personal jurisdiction of said courts.
22. Rights of Third Parties. Nothing herein expressed or implied is intended to
or shall be construed to confer upon or give to any person, firm, or other
entity, other than the parties hereto and their permitted assigns, any
rights or remedies under or by reason of this Agreement.
23. Notices. All notices, requests, demands, and other communications provided
for by this Agreement shall be in writing and shall be sufficiently given
if and when mailed in the United States by registered or certified mail, or
personally delivered, to the party entitled thereto at the address stated
below or to such changed address as the addressee may have given by a
similar notice:
To Bank: Chairman of the Board
The Bank of Camden
000 XxXxxx Xxxxxx
Xxxxxx, Xxxxx Xxxxxxxx 00000
To Executive: Xx. Xxxxxxx X. Xxxxxxxx, III
The Bank of Camden
000 XxXxxx Xxxxxx
Xxxxxx, Xxxxx Xxxxxxxx 00000
IN WITNESS WHEREOF, the Bank has caused this Agreement to be executed
and its seal to be affixed hereunto by its duly authorized officers, and
Executive has signed this Agreement, as of the Effective Date set forth above.
[SIGNATURES OMITTED]
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