THIS CONTRACT IS SUBJECT TO ARBITRATION
PURSUANT TO S.C. UNIFORM ARBITRATION ACT
May 15, 1995
Xx. Xxxxx X. Xxxxxxx
President
Bank of Greenville, N.A. (In Organization)
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
Dear Xxxxx:
In order to induce you to remain in the employ of First United
Bancorporation, (the "Company") and/or one or more of its subsidiaries (all such
employment being referred to herein as employment by the Company) and to assist
you in being able to perform your duties without being distracted by the
possible effect on you of a change in control of the Company, this letter
agreement, which has been approved by the Board of Directors, sets forth the
severance benefits which the Company agrees will be provided to you in the event
your employment with the Company is terminated by the Company within the period
specified herein.
1. This agreement shall commence on the date not more than five years after the
date hereof that any person or group acting in concert acquires voting control
of the Company, directly or indirectly, or the Company is merged with or becomes
a subsidiary of any other company and shall continue in effect for two years
thereafter; provided, however, that commencing on the second anniversary hereof
and each anniversary thereafter, the term of this agreement shall automatically
be extended for one additional year unless at least 90 days prior to such date
the Company shall have given notice that the Company does not wish to extend
this agreement.
2. Termination by the Company of your employment based on disability as a result
of your incapacity due to physical or mental illness shall mean termination as
defined in the Company's disability retirement plan in effect at that time.
3. Termination by you or by the Company based on retirement shall mean
termination on your normal retirement date in accordance with the Company's
retirement plan as may be in effect on your normal retirement date.
4. Termination by the Company of your employment for "Cause" shall mean
termination upon (a) the willful and continued failure by you to perform
substantially your present duties with the Company (other than any such failure
resulting from your incapacity due to physical or mental illness) after a demand
for substantial performance is delivered to you by the Chairman of the Board or
President of the Company which specifically identifies the manner in which such
executive believes that you have not substantially performed your duties, or (b)
the willful engaging by you in misconduct which is materially and demonstrably
injurious to the Company. For the purposes of this paragraph, no act, or failure
to act, on your part shall be considered "willful" unless done, or omitted to be
done, by you in bad faith and without reasonable belief that your action or
omission was in, or not opposed to, the best interests of the
Company. Notwithstanding the foregoing, you shall not be deemed to have been
terminated for Cause unless and until there shall have been delivered to you a
copy of a resolution duly adopted by the affirmative vote of not less than
three-quarters of the entire membership of the Board at a meeting of the Board
called and held for the purpose (after reasonable notice to you and an
opportunity for you, together with your counsel, to be heard before the Board),
finding that in the good faith opinion of the Board you were guilty of the
conduct set forth above in (a) or (b) of this paragraph and specifying the
particulars thereof in detail.
5. You may terminate this contract for cause if your salary or benefits are
reduced or you are transferred to a different location or different duties or
your status or responsibilities are significantly changed without your consent.
Acceptance of any such change by you for a period of less than six months shall
not be deemed to be consent unless you specifically consent to such change in
writing. Consent to one change shall not constitute consent to any other
changes. You may also terminate this contract for cause if the individuals who
constitute the Board on the date hereof (the "Incumbent Board") cease for any
reason to constitute at least a majority thereof, provided that any person
becoming a director subsequent to the date hereof whose election, or nomination
for election by the Company's shareholders, was approved by a vote of at least
three quarters of the directors comprising the Incumbent Board shall be, for
purposes of this sentence, considered as though he were a member of the
Incumbent Board. You may terminate this contract without cause by giving Notice
of Termination.
6. Any purported termination by the Company or by you shall be communicated by
written Notice of Termination to the other party hereto. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which shall indicate
the specific termination provision in this agreement relied upon and shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of your employment under the provision so indicated.
7. "Date of Termination" shall mean (a) if your employment is to be terminated
for Disability, thirty days after Notice of Termination is given (provided that
you shall not have returned to the performance of your duties on a full-time
basis during such thirty day period), and (b) if your employment is to be
terminated by the Company for Cause, the date on which a Notice of Termination
is given, and (c) if your employment is to be terminated by you or by the
Company for any other reason, the date no earlier than ninety days after the
date on which a Notice of Termination is given, unless otherwise agreed by the
party receiving the Notice of Termination. Notwithstanding anything in the
foregoing to the contrary, if the party receiving the Notice of Termination has
not previously agreed to the termination, then within thirty days after any
Notice of Termination is given, the party receiving such Notice of Termination
may notify the other party that a dispute exists concerning the termination, in
which event the Date of Termination shall be the date set either by mutual
written agreement of the parties or by the arbitrators in a proceeding as
provided in Section 15 hereof.
8. If your employment shall be terminated for Cause, the Company shall pay you
your full base salary through the Date of Termination at the rate in effect just
prior to the time a Notice of Termination is given.
9. If your employment shall be terminated by physical or mental disability, you
shall receive such benefits as are provided in the Company's disability plan
then in effect.
10. If your employment is terminated by the Company other than for Cause or
physical or mental disability, or terminated by you for cause pursuant to
Paragraph 5 hereof the Company will pay to you
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your salary for two years in a lump sum or monthly at your option, provided,
however, that, if the amount of such payment, or the present value of the
monthly payments if elected, equal or exceed two times the base amount described
in Section 380G of the Internal Revenue Code then the amount due hereunder shall
be two times the base amount less $100. This will be deemed severance pay. You
shall not be under any duty to mitigate damages and no income received by you
thereafter shall reduce the amount due you hereunder. For purposes of
determining the amount due you the term salary includes all direct compensation
plus an amount sufficient for you to obtain medical, disability and life
insurance coverage equivalent to that provided by the Company plus any amounts
contributed to the Company pension plan on your behalf by the Company.
11. Nothing herein shall deprive you of any vested benefits that you have in the
Company's retirement or other employee benefit plan.
12. This agreement shall inure to the benefit of and be enforceable by your
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If you should die while any amount would
still be payable to you hereunder if you had continued to live, all such
amounts, unless otherwise provided herein, shall be paid in accordance with the
terms of this agreement to your devisee, legatee or designee or, if there be no
such designee, to your estate.
13. No provision of this Agreement may be modified, waived or discharged unless
such modification, waiver or discharge is agreed to in a writing signed by you
and the Chairman of the Board or President of the Company. No waiver by either
party hereto at any time of any breach by the other party hereto of, or of
compliance with, any condition or provision of this agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not expressly set
forth in this agreement. The validity, interpretation, construction and
performance of this agreement shall be governed by the laws of the State of
South Carolina.
14. The invalidity or unenforceability of any provision of this agreement shall
not affect the validity or enforceability of any other provision of this
agreement, which shall remain in full force and effect.
15. Any dispute or controversy arising under or in connection with this
agreement shall be settled exclusively by arbitration in Anderson, South
Carolina, by three arbitrators in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrators' award in any court having jurisdiction; provided, however, that you
shall be entitled to seek specific performance of your 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. The Company shall bear all
costs and expenses arising in connection with any arbitration proceeding
pursuant to this Section.
16. Should the Company merge with another corporation and the Company is not the
surviving corporation in such a merger or consolidation, the Company will obtain
as a condition of merger or consolidation assent to and assumption of this
agreement by the corporation which will be the surviving corporate entity in
such merger or consolidation. Upon such assumption the term Company shall mean
the corporate entity which is the survivor of the merger or consolidation.
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The principal purpose of this agreement is to protect you against
changes in your pay or status resulting from changes in control of the Company
as a consequence of a merger, consolidation or change in voting control of the
Company.
If this letter correctly sets forth our agreement on the subject matter
hereof, kindly sign and return to the Company the enclosed copy of this letter
which will then constitute our agreement on this subject.
Sincerely,
Xxxxx X. Xxxxxxx
President
First United Bancorporation
I agree to the terms of letter.
/s/Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
May 15, 1995
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