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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") dated as of July 27,
1999, is made by and between Greenville First Bancshares, Inc., a South
Carolina corporation (the "Employer" or the "Company") which is the proposed
bank holding company for Greenville First Bank (Proposed), a proposed national
bank (the "Bank"), and R. Xxxxxx Xxxxxx, Xx., an individual resident of South
Carolina (the "Executive").
The Employer is in the process of organizing the Bank, and the
Executive has agreed to serve as President and Chief Executive Officer of the
Bank and the Company. Upon organization of the Bank, the Employer and the
Executive contemplate that this Agreement will be assigned by the Employer to
the Bank and that the Bank will assume the duties of the Company hereunder
(except pursuant to Section 3). Following any such assignment, the term
"Employer" as used herein from time to time shall refer to the Bank.
The Employer recognizes that the Executive's contribution to the
growth and success of the Bank during its organization and initial years of
operations will be a significant factor in the success of the Bank. The
Employer desires to provide for the employment of the Executive in a manner
which will reinforce and encourage the dedication of the Executive to the Bank
and promote the best interests of the Bank and its shareholders. The Executive
is willing to serve the Employer on the terms and conditions herein provided.
Certain terms used in this Agreement are defined in Section 17 hereof.
In consideration of the foregoing, the mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Employment. The Employer shall employ the Executive, and the
Executive shall serve the Employer, as President and Chief Executive Officer of
the Bank and the Company upon the terms and conditions set forth herein. The
Executive shall also serve on the Board of Directors of the Company and the
Bank. The Executive shall have such authority and responsibilities consistent
with his position as are set forth in the Company's or the Bank's Bylaws or
assigned by the Company's or the Bank's Board of Directors (the "Board") from
time to time. The Executive shall devote his full business time, attention,
skill and efforts to the performance of his duties hereunder, except during
periods of illness or periods of vacation and leaves of absence consistent with
Bank policy. The Executive may devote reasonable periods to service as a
director or advisor to other organizations, to charitable and community
activities, and to managing his personal investments, provided that such
activities do not materially interfere with the performance of his duties
hereunder and are not in conflict or competitive with, or adverse to, the
interests of the Company or the Bank.
2. Term. Unless earlier terminated as provided herein, the
Executive's employment under this Agreement shall commence on the date hereof
and be for a term (the "Term") of three years. At the end of each year of the
Term, the Term shall be extended for an additional year so that the remaining
term shall continue to be three years; provided that the Executive or the Bank
may at any time, by written notice, fix the Term to a finite term of three
years commencing with the year of the notice. Notwithstanding the foregoing,
the Term of employment hereunder will end on the date that the Executive
attains the retirement age, if any, specified in the Bylaws of the Bank for
directors of the Bank.
3. Compensation and Benefits.
(a) Starting February 15, 1999, the Employer shall pay the
Executive an initial annual base salary of $123,000, plus his yearly medical
insurance premium. Executive shall receive a minimum annual increase in his
base salary equal to the previous year's base salary times the increase in the
Consumer Price Index during the previous year as stated in a nationally
recognized financial news source such as the Wall Street Journal (the
"Mandatory Annual Increase"). The Board (or an appropriate committee of the
Board) shall review the Executive's performance and salary at least annually
and may increase the Executive's base salary above the Mandatory Annual
Increase if it determines in its sole discretion that an additional increase is
appropriate.
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(b) The Executive shall receive a cash bonus in the amount of
$10,000 on the date that the Bank opens for business (the "Opening Date"). For
each anniversary of the Opening Date thereafter, the Executive shall be
eligible to receive a cash bonus equaling up to 5% of the net pretax
consolidated income of the Company (determined in accordance with generally
accepted accounting principals) if the Bank achieves certain performance levels
established by the board of directors from time to time (the "Bonus Plan").
(c) The Executive shall participate in the Bank's long-term
equity incentive program and be eligible for the grant of stock options,
restricted stock, and other awards thereunder or under any similar plan adopted
by the Company. As soon as an appropriate stock option plan is adopted by the
Board, the Company shall grant to the Executive an option to purchase a number
of shares of Common Stock equal to 5% of the number of shares sold in the
offering. The award agreement for the stock option shall provide that one-fifth
of the shares subject to the option will vest on each of the first five
anniversaries of the Opening Date, but only if the Executive remains employed
by the Company on such date, and shall contain other customary terms and
conditions. Nothing herein shall be deemed to preclude the granting to the
Executive of warrants or options under a director option plan in addition to
the options granted hereunder.
(d) The Executive shall participate in all retirement, welfare
and other benefit plans or programs of the Employer now or hereafter applicable
generally to employees of the Employer or to a class of employees that includes
senior executives of the Employer.
(e) The Employer shall provide the Executive with a term life
insurance policy providing for death benefits totaling $300,000 payable to the
Executive's spouse and heirs (and may provide for additional death benefits of
up to $700,000 payable to the Employer), and the Executive shall cooperate with
the Employer in the securing and maintenance of such policy. The Employer shall
also pay for an accident liability policy on the Executive totaling $1,000,000
to protect the Employer from damages or lawsuits resulting from injuries to
third parties caused by the Executive.
(f) The Employer shall provide the Executive with an automobile
either owned or leased by the Company of a make and model appropriate to the
Executive's status. The total cost of this automobile, including lease
payments, if any, insurance, taxes and other expenses associated with the
automobile, shall not exceed $700 per month.
(g) In addition, commencing on the Opening Date, the Employer
shall obtain a membership in and pay the initiation fee (not to exceed $10,000)
for and the dues pertaining to an area country club and shall designate the
Executive as the authorized user of such membership for so long as the
Executive remains the President and CEO of the Employer and this Agreement
remains in force.
(h) The Employer shall reimburse the Executive for reasonable
travel and other expenses related to the Executive's duties which are incurred
and accounted for in accordance with the normal practices of the Employer.
4. Termination.
(a) The Executive's employment under this Agreement may be
terminated prior to the end of the Term only as follows:
(i) upon the death of the Executive;
(ii) upon the disability of the Executive for a
period of 180 days which, in the opinion of the Board of
Directors, renders him unable to perform the essential
functions of his job and for which reasonable accommodation
is unavailable. For purposes of this Agreement, a "disability"
is defined as a physical or mental impairment that
substantially limits one or
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more major life activities, and a "reasonable accommodation" is one
that does not impose an undue hardship on the Employer;
(iii) by the Employer for Cause upon delivery of a Notice
of Termination to the Executive;
(iv) by the Executive for Good Reason upon delivery of a
Notice of Termination to the Employer within a 90-day period beginning
on the 30th day after the occurrence of a Change in Control or within
a 90-day period beginning on the one year anniversary of the
occurrence of a Change in Control;
(v) by the Employer if its effort to organize the Bank
is abandoned; and
(vi) by the Executive effective upon the 30th day after
delivery of a Notice of Termination.
(a) If the Executive's employment is terminated because of the
Executive's death, the Executive's estate shall receive any sums due him as
base salary and/or reimbursement of expenses through the end of the month
during which death occurred, plus any bonus earned or accrued under the Bonus
Plan through the date of death (including any amounts awarded for previous
years but which were not yet vested) and a pro rata share of any bonus with
respect to the current fiscal year which had been earned as of the date of the
Executive's death.
(b) During the period of any incapacity leading up to the
termination of the Executive's employment as a result of disability, the
Employer shall continue to pay the Executive his full base salary at the rate
then in effect and all perquisites and other benefits (other than any bonus)
until the Executive becomes eligible for benefits under any long-term
disability plan or insurance program maintained by the Employer, provided that
the amount of any such payments to the Executive shall be reduced by the sum of
the amounts, if any, payable to the Executive for the same period under any
disability benefit or pension plan of the Employer or any of its subsidiaries.
Furthermore, the Executive shall receive any bonus earned or accrued under the
Bonus Plan through the date of incapacity (including any amounts awarded for
previous years but which were not yet vested) and a pro rata share of any bonus
with respect to the current fiscal year which had been earned as of the date of
the Executive's incapacity.
(c) If the Executive's employment is terminated for Cause as
provided above, or if the Executive resigns (except for a termination of
employment pursuant to Section 4(e)), the Executive shall receive any sums due
him as base salary and/or reimbursement of expenses through the date of such
termination.
(d) If the Executive's employment is terminated by the Executive
pursuant to clause (iv) of Section 4(a), in addition to other rights and
remedies available in law or equity, the Executive shall be entitled to the
following:
(i) the Employer shall pay the Executive in cash
within fifteen days of the Termination Date severance
compensation in an amount equal to 100% of his then current
monthly base salary each month for twelve months from the
Termination Date, plus any bonus earned or accrued under the
Bonus Plan through the Termination Date (including any amounts
awarded for previous years but which were not yet vested) and a
pro rata share of any bonus with respect to the current fiscal
year which had been earned as of the Termination Date.
(ii) for the period from the Termination Date
through the date that the Executive attains the age of 65 (the
"Continuation Period"), the Employer shall at its expense
continue on behalf of the Executive and his dependents and
beneficiaries the life insurance, disability, medical, dental,
and hospitalization benefits provided (x) to the Executive at
any time during the 90-day period prior to the Change in
Control or at any time thereafter or (y) to other similarly
situated executives who continue in the employ of the Employer
during the Continuation Period. Such
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coverage and benefits (including deductibles and costs) shall
be no less favorable to the Executive and his dependents and
beneficiaries than the most favorable of such coverages and
benefits during any of the periods referred to above. The
Employer's obligation hereunder with respect to the foregoing
benefits shall be limited to the extent that the Executive
obtains any such benefits pursuant to a subsequent employer's
benefit plans, in which case the Employer may reduce the
coverage of any benefits it is required to provide the
Executive hereunder as long as the aggregate coverages and
benefits of the combined benefit plans is no less favorable
to the Executive than the coverages and benefits required to
be provided hereunder. This subsection (ii) shall not be
interpreted so as to limit any benefits to which the
Executive or his dependents or beneficiaries may be entitled
under any of the Employer's employee benefit plans, programs,
or practices following the Executive's termination of
employment, including, without limitation, retiree medical
and life insurance benefits; and
(iii) the restrictions on any outstanding incentive
awards (including restricted stock) granted to the Executive
under the Company's or the Bank's long-term equity incentive
program or any other incentive plan or arrangement shall
lapse and become 100% vested, all stock options and stock
appreciation rights granted to the Executive shall become
immediately exercisable and shall become 100% vested, all
performance units granted to the Executive shall become 100%
vested, and the restrictive covenants contained in Section 9
shall not apply to the Executive.
(e) If the Executive's employment is terminated pursuant to
clause (v) of Section 4(a), the Employer shall pay to the Executive severance
compensation in an amount equal to 100% of his then current monthly base salary
each month for six months from the date of termination.
(f) If the Employer terminates the Executive's employment
other than pursuant to clauses (i), (ii), (iii) or (v) of Section 4(a), the
Employer shall pay to the Executive severance compensation in an amount equal
to 100% of his then current monthly base salary each month for twelve months
from the date of termination, plus any bonus earned or accrued under the Bonus
Plan through the date of termination (including any amounts awarded for
previous years but which were not yet vested) and a pro rata share of any bonus
with respect to the current fiscal year which had been earned as of the date of
the Executive's termination.
(g) With the exceptions of the provisions of this Section 4,
and the express terms of any benefit plan under which the Executive is a
participant, it is agreed that, upon termination of the Executive's employment,
the Employer shall have no obligation to the Executive for, and the Executive
waives and relinquishes, any further compensation or benefits (exclusive of
COBRA benefits). At the time of termination of employment, the Employer and the
Executive shall enter into a mutually satisfactory form of release
acknowledging such remaining obligations and discharging both parties, as well
as the Employer's officers, directors and employees with respect to their
actions for or on behalf of the Employer, from any other claims or obligations
arising out of or in connection with the Executive's employment by the
Employer, including the circumstances of such termination.
(h) In the event that the Executive's employment is
terminated for any reason, the Executive shall (and does hereby) tender his
resignation as a director of the Employer and effective as of the date of
termination.
(j) The parties intend that the severance payments and other
compensation provided for herein are reasonable compensation for the
Executive's services to the Employer and shall not constitute "excess parachute
payments" within the meaning of Section 280G of the Internal Revenue Code of
1986 and any regulations thereunder. In the event that the Employer's
independent accountants acting as auditors for the Employer 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
increased, on a tax gross-up basis, so as to reimburse the Executive for the
tax payable by the Executive, pursuant to Section 4999 of the Internal Revenue
Code, on such "excess parachute payments," taking into account all taxes
payable by the Executive with respect to such tax gross-up payments hereunder,
so that the Executive shall be, after payment of all taxes, in the same
financial position as if no taxes under Section 4999 had been imposed upon him.
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5. Ownership of Work Product. The Employer shall own all Work
Product arising during the course of the Executive's employment (prior, present
or future). For purposes hereof, "Work Product" shall mean all intellectual
property rights, including all Trade Secrets, U.S. and international
copyrights, patentable inventions, and other intellectual property rights in
any programming, documentation, technology or other work product that relates
to the Employer, its business or its customers and that employee conceives,
develops, or delivers to the Employer at any time during his employment, during
or outside normal working hours, in or away from the facilities of the
Employer, and whether or not requested by the Employer. If the Work Product
contains any materials, programming or intellectual property rights that the
Executive conceived or developed prior to, and independent of, the Executive's
work for the Employer, the Executive agrees to point out the pre-existing items
to the Employer and the Executive grants the Employer a worldwide,
unrestricted, royalty-free right, including the right to sublicense such items.
The Executive agrees to take such actions and execute such further
acknowledgments and assignments as the Employer may reasonably request to give
effect to this provision.
6. Protection of Trade Secrets. The Executive agrees to maintain
in strict confidence and, except as necessary to perform his duties for the
Employer, the Executive agrees not to use or disclose any Trade Secrets of the
Employer during or after his employment. "Trade Secret" means information,
including a formula, pattern, compilation, program, device, method, technique,
process, drawing, cost data or customer list, that: (i) derives economic value,
actual or potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic value
from its disclosure or use; and (ii) is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy.
7. Protection of Other Confidential Information. In addition,
the Executive agrees to maintain in strict confidence and, except as necessary
to perform his duties for the Employer, not to use or disclose any Confidential
Business Information of the Employer during his employment and for a period of
24 months following termination of the Executive's employment. "Confidential
Business Information" shall mean any internal, non-public information (other
than Trade Secrets already addressed above) concerning the Employer's financial
position and results of operations (including revenues, assets, net income,
etc.); annual and long-range business plans; product or service plans;
marketing plans and methods; training, educational and administrative manuals;
customer and supplier information and purchase histories; and employee lists.
The provisions of Sections 6 and 7 above shall also apply to protect Trade
Secrets and Confidential Business Information of third parties provided to the
Employer under an obligation of secrecy.
8. Return of Materials. The Executive shall surrender to the
Employer, promptly upon its request and in any event upon termination of the
Executive's employment, all media, documents, notebooks, computer programs,
handbooks, data files, models, samples, price lists, drawings, customer lists,
prospect data, or other material of any nature whatsoever (in tangible or
electronic form) in the Executive's possession or control, including all copies
thereof, relating to the Employer, its business, or its customers. Upon the
request of the Employer, employee shall certify in writing compliance with the
foregoing requirement.
9. Restrictive Covenants.
(a) No Solicitation of Customers. During the Executive's
employment with the Employer and for a period of 12 months thereafter, the
Executive shall not (except on behalf of or with the prior written consent of
the Employer), either directly or indirectly, on the Executive's own behalf or
in the service or on behalf of others, (A) solicit, divert, or appropriate to
or for a Competing Business, or (B) attempt to solicit, divert, or appropriate
to or for a Competing Business, any person or entity that is or was a customer
of the Employer or any of its Affiliates on the date of termination and is
located in the Territory and with whom the Executive has had material contact.
This restriction does not apply after a Change in Control.
(b) No Recruitment of Personnel. During the Executive's
employment with the Employer and for a period of 12 months thereafter, the
Executive shall not, either directly or indirectly, on the Executive's own
behalf or in the service or on behalf of others, (A) solicit, divert, or hire
away, or (B) attempt to solicit, divert, or hire away, to any Competing
Business located in the Territory, any employee of or consultant to the
Employer or any of its Affiliates engaged or experienced in the Business,
regardless of whether the employee or consultant is full-time
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or temporary, the employment or engagement is pursuant to written agreement, or
the employment is for a determined period or is at will. This restriction does
not apply after a Change in Control.
(c) Non-Competition Agreement. During the Executive's
employment with the Employer and for a period of 12 months thereafter, the
Executive shall not (without the prior written consent of the Employer) compete
with the Employer or any of its Affiliates by, directly or indirectly, forming,
serving as an organizer, director or officer of, or consultant to, or acquiring
or maintaining more than a 1% passive investment in, a depository financial
institution or holding company therefor if such depository institution or
holding company has one or more offices or branches located in the Territory.
Notwithstanding the foregoing, the Executive may serve as an officer of or
consultant to a depository institution or holding company therefor even though
such institution operates one or more offices or branches in the Territory, if
the Executive's employment does not directly involve, in whole or in part, the
depository financial institution's or holding company's operations in the
Territory. This restriction does not apply after a Change in Control.
10. Independent Provisions. The provisions in each of the above
Sections 9(a), 9(b), and 9(c) are independent, and the unenforceability of any
one provision shall not affect the enforceability of any other provision.
11. Successors; Binding Agreement. The rights and obligations of
this Agreement shall bind and inure to the benefit of the surviving corporation
in any merger or consolidation in which the Employer is a party, or any
assignee of all or substantially all of the Employer's business and properties.
The Executive's rights and obligations under this Agreement may not be assigned
by him, except that his right to receive accrued but unpaid compensation,
unreimbursed expenses and other rights, if any, provided under this Agreement
which survive termination of this Agreement shall pass after death to the
personal representatives of his estate.
12. Notice. For the purposes of this Agreement, notices and all
other communications provided for in the Agreement shall be in writing and
shall be deemed to have been duly given when personally delivered or sent by
certified mail, return receipt requested, postage prepaid, addressed to the
respective addresses last given by each party to the other; provided, however,
that all notices to the Employer shall be directed to the attention of the
Employer with a copy to the Secretary of the Employer. All notices and
communications shall be deemed to have been received on the date of delivery
thereof.
13. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of South
Carolina without giving effect to the conflict of laws principles thereof. Any
action brought by any party to this Agreement shall be brought and maintained
in a court of competent jurisdiction in State of South Carolina.
14. Non-Waiver. Failure of the Employer to enforce any of the
provisions of this Agreement or any rights with respect thereto shall in no way
be considered to be a waiver of such provisions or rights, or in any way affect
the validity of this Agreement.
15. Enforcement. The Executive agrees that in the event of any
breach or threatened breach by the Executive of any covenant contained in
Section 9(a), 9(b), or 9(c) hereof, the resulting injuries to the Employer
would be difficult or impossible to estimate accurately, even though
irreparable injury or damages would certainly result. Accordingly, an award of
legal damages, if without other relief, would be inadequate to protect the
Employer. The Executive, therefore, agrees that in the event of any such
breach, the Employer shall be entitled to obtain from a court of competent
jurisdiction an injunction to restrain the breach or anticipated breach of any
such covenant, and to obtain any other available legal, equitable, statutory,
or contractual relief. Should the Employer have cause to seek such relief, no
bond shall be required from the Employer, and the Executive shall pay all
attorney's fees and court costs which the Employer may incur to the extent the
Employer prevails in its enforcement action.
16. Saving Clause. The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any provision shall
not affect the validity or enforceability of the other provisions hereof. If
any provision or clause of this Agreement, or portion thereof, shall be held by
any court or other tribunal of
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competent jurisdiction to be illegal, void, or unenforceable in such
jurisdiction, the remainder of such provision shall not be thereby affected and
shall be given full effect, without regard to the invalid portion. It is the
intention of the parties that, if any court construes any provision or clause
of this Agreement, or any portion thereof, to be illegal, void, or
unenforceable because of the duration of such provision or the area or matter
covered thereby, such court shall reduce the duration, area, or matter of such
provision, and, in its reduced form, such provision shall then be enforceable
and shall be enforced. The Executive and the Employer hereby agree that they
will negotiate in good faith to amend this Agreement from time to time to
modify the terms of Sections 9(a), 9(b), and 9(c), the definition of the term
"Territory," and the definition of the term "Business," to reflect changes in
the Employer's business and affairs so that the scope of the limitations placed
on the Executive's activities by Section 9 accomplishes the parties' intent in
relation to the then current facts and circumstances. Any such amendment shall
be effective only when completed in writing and signed by the Executive and the
Employer.
17. Certain Definitions.
(a) "Affiliate" shall mean any business entity
controlled by, controlling or under common control with the Employer.
(b) "Business" shall mean the operation of a depository
financial institution, including, without limitation, the solicitation and
acceptance of deposits of money and commercial paper, the solicitation and
funding of loans and the provision of other banking services, and any other
related business engaged in by the Employer or any of its Affiliates as of the
date of termination.
(c) "Cause" shall consist of any of (A) the commission
by the Executive of a willful act (including, without limitation, a dishonest
or fraudulent act) or a grossly negligent act, or the willful or grossly
negligent omission to act by the Executive, which is intended to cause, causes
or is reasonably likely to cause material harm to the Employer (including harm
to its business reputation), (B) the indictment of the Executive for the
commission or perpetration by the Executive of any felony or any crime
involving dishonesty, moral turpitude or fraud, (C) the material breach by the
Executive of this Agreement that, if susceptible of cure, remains uncured ten
days following written notice to the Executive of such breach, (D) the receipt
of any form of notice, written or otherwise, that any regulatory agency having
jurisdiction over the Employer intends to institute any form of formal or
informal (e.g., a memorandum of understanding which relates to the Executive's
performance) regulatory action against the Executive or the Employer or the
Employer (provided that the Board of Directors determines in good faith, with
the Executive abstaining from participating in the consideration of and vote on
the matter, that the subject matter of such action involves acts or omissions
by or under the supervision of the Executive or that termination of the
Executive would materially advance the Employer's compliance with the purpose
of the action or would materially assist the Employer in avoiding or reducing
the restrictions or adverse effects to the Employer related to the regulatory
action); (E) the exhibition by the Executive of a standard of behavior within
the scope of his employment that is materially disruptive to the orderly
conduct of the Employer's business operations (including, without limitation,
substance abuse or sexual misconduct) to a level which, in the Board of
Directors' good faith and reasonable judgment, with the Executive abstaining
from participating in the consideration of and vote on the matter, is
materially detrimental to the Employer's best interest, that, if susceptible of
cure remains uncured ten days following written notice to the Executive of such
specific inappropriate behavior; or (F) the failure of the Executive to devote
his full business time and attention to his employment as provided under this
Agreement that, if susceptible of cure, remains uncured 30 days following
written notice to the Executive of such failure.
(d) "Change in Control" shall mean the occurrence during
the Term of any of the following events, unless such event is a result of a
Non-Control Transaction:
(i) The individuals who, as of the date of this
Agreement, are members of the Board of Directors of the
Employer (the "Incumbent Board") cease for any reason to
constitute at least fifty percent of the Board of Directors
of the Employer; provided, however, that if the election, or
nomination for election by the Employer's shareholders, of
any new director was approved in advance by a vote of at
least fifty percent of the Incumbent Board, such new director
shall, for purposes of this Agreement, be considered as a
member of the Incumbent Board; provided, further, that no
individual shall be considered a member of the Incumbent
Board if such individual initially
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assumed office as a result of either an actual or threatened
"Election Contest" (as described in Rule 14a-11 promulgated
under the Securities Exchange Act of 1934 (the "Exchange
Act"), or other actual or threatened solicitation of proxies
or consents by or on behalf of any person other than the
Board of Directors of the Employer (a "Proxy Contest"),
including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest.
(ii) An acquisition (other than directly from
the Employer) of any voting securities of the Employer (the
"Voting Securities") by any "Person" (as the term "person" is
used for purposes of Section 13(d) or 14(d) of the Exchange
Act) immediately after which such Person has "Beneficial
Ownership" (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 20% or more of the combined voting
power of the Employer's then outstanding Voting Securities;
provided, however, that in determining whether a Change in
Control has occurred, Voting Securities which are acquired in
a Non-Control Acquisition shall not constitute an acquisition
which would cause a Change in Control.
(iii) Approval by the shareholders of the
Employer of: (i) a merger, consolidation, or reorganization
involving the Employer; (ii) a complete liquidation or
dissolution of the Employer; or (iii) an agreement for the
sale or other disposition of all or substantially all of the
assets of the Employer to any Person (other than a transfer
to a Subsidiary).
(iv) A notice of an application is filed with
the Office of Comptroller of the Currency (the "OCC") or the
Federal Reserve Board or any other bank or thrift regulatory
approval (or notice of no disapproval) is granted by the
Federal Reserve, the OCC, the Federal Deposit Insurance
Corporation, or any other regulatory authority for permission
to acquire control of the Employer or any of its banking
subsidiaries.
(e) "Competing Business" shall mean any business that,
in whole or in part, is the same or substantially the same as the Business.
(f) "Good Reason" shall mean the occurrence after a
Change in Control of any of the events or conditions described in subsections
(i) through (viii) hereof:
(i) a change in the Executive's status, title,
position or responsibilities (including reporting
responsibilities) which, in the Executive's reasonable
judgment, represents an adverse change from his status,
title, position or responsibilities as in effect at any time
within ninety days preceding the date of a Change in Control
or at any time thereafter; the assignment to the Executive of
any duties or responsibilities which, in the Executive's
reasonable judgment, are inconsistent with his status, title,
position or responsibilities as in effect at any time within
ninety days preceding the date of a Change in Control or at
any time thereafter; any removal of the Executive from or
failure to reappoint or reelect him to any of such offices or
positions, except in connection with the termination of his
employment for Disability or Cause, as a result of his death,
or by the Executive other than for Good Reason, or any other
change in condition or circumstances that in the Executive's
reasonable judgment makes it materially more difficult for
the Executive to carry out the duties and responsibilities of
his office than existed at any time within ninety days
preceding the date of Change in Control or at any time
thereafter;
(ii) a reduction in the Executive's base salary
or any failure to pay the Executive any compensation or
benefits to which he is entitled within five days of the date
due;
(iii) the Employer's requiring the Executive to
be based at any place outside a 30-mile radius from the
executive offices occupied by the Executive immediately prior
to the Change in Control, except for reasonably required
travel on the Employer's business which is not materially
greater than such travel requirements prior to the Change in
Control;
(iv) the failure by the Employer to (A) continue
in effect (without reduction in
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benefit level and/or reward opportunities) any material
compensation or employee benefit plan in which the Executive
was participating at any time within ninety days preceding
the date of a Change in Control or at any time thereafter,
unless such plan is replaced with a plan that provides
substantially equivalent compensation or benefits to the
Executive, or (B) provide the Executive with compensation and
benefits, in the aggregate, at least equal (in terms of
benefit levels and/or reward opportunities) to those provided
for under each other employee benefit plan, program and
practice in which the Executive was participating at any time
within ninety days preceding the date of a Change in Control
or at any time thereafter;
(v) the insolvency or the filing (by any party,
including the Employer) of a petition for bankruptcy of the
Employer, which petition is not dismissed within sixty days;
(vi) any material breach by the Employer of any
material provision of this Agreement;
(vii) any purported termination of the
Executive's employment for Cause by the Employer which does
not comply with the terms of this Agreement; or
(viii) the failure of the Employer to obtain an
agreement, satisfactory to the Executive, from any successor
or assign to assume and agree to perform this Agreement, as
contemplated in Section 11 hereof.
Any event or condition described in clause (i) through (viii) above
which occurs prior to a Change in Control but which the Executive reasonably
demonstrates (A) was at the request of a third party, or (B) otherwise arose in
connection with, or in anticipation of, a Change in Control which actually
occurs, shall constitute Good Reason for purposes of this Agreement,
notwithstanding that it occurred prior to the Change in Control. The
Executive's right to terminate his employment for Good Reason shall not be
affected by his incapacity due to physical or mental illness.
(g) "Non-Control Transaction" shall mean a transaction
described below:
(i) the shareholders of the Employer,
immediately before such merger, consolidation or
reorganization, own, directly or indirectly, immediately
following such merger, consolidation or reorganization, at
least 50% of the combined voting power of the outstanding
voting securities of the corporation resulting from such
merger, consolidation or reorganization (the "Surviving
Corporation") in substantially the same proportion as their
ownership of the Voting Securities immediately before such
merger, consolidation or reorganization; and
(ii) immediately following such merger,
consolidation or reorganization, the number of directors on
the board of directors of the Surviving Corporation who were
members of the Incumbent Board shall at least equal the
number of directors who were affiliated with or appointed by
the other party to the merger, consolidation or
reorganization.
(h) "Territory" shall mean a radius of thirty miles from
(i) the main office of the Employer or (ii) any branch office of the Employer.
(i) "Notice of Termination" shall mean a written notice
of termination from the Employer of the Executive which specifies an effective
date of termination, indicates the specific termination provision in this
Agreement relied upon, and sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated.
18. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto and supersedes all prior agreements, if
any, understandings and arrangements, oral or written, between the parties
hereto with respect to the subject matter hereof.
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19. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Employer has caused this Agreement to be
executed and its seal to be affixed hereunto by its officers thereunto duly
authorized, and the Executive has signed and sealed this Agreement, effective
as of the date first above written.
GREENVILLE FIRST BANCSHARES, INC.
ATTEST:
By: /s/ X. X. Xxxx By: /s/ Xxxxx X. Orders III
------------------------ -------------------------------
Name: Xxxxx X. Xxxx Title: Chairman
-----------------------
EXECUTIVE
/s/ R. Xxxxxx Xxxxxx, Xx.
-----------------------------------
R. Xxxxxx Xxxxxx, Xx.
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