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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, made as of the 6th day of October,
1999, by and between WACHOVIA CORPORATION (the "Corporation") and Xxxxx X.
XxXxxxxx, Xx. (the "Executive") is conditioned on, and shall be effective as of
the consummation of the merger contemplated by the Agreement and Plan of Merger,
dated as of October 6, 1999, by and among the Corporation and BC Bankshares,
Inc. (the "Merger");
R E C I T A L S:
The Corporation desires to secure the services of the
Executive in its behalf or in behalf of one or more of its subsidiaries for
which the Executive may render services hereunder from time to time, in
accordance with the terms and conditions set forth herein. In addition, the
Corporation desires to provide the Executive with an incentive to remain in the
service of the Corporation or one or more of its subsidiaries by granting to the
Executive compensation security as set forth herein should his employment be
terminated by the Corporation without cause during the term of this Agreement.
NOW, THEREFORE, the Corporation and the Executive hereby
mutually agree as follows:
1. Employment.
(a) Duties. Executive shall have the title of Senior Vice
President of Wachovia Bank, N.A. Executive shall also serve as Chairman
of the Cherokee County operation of the Corporation and, in such
capacity, shall assist and consult with the Corporation concerning
business and community activities, assist in the retention of customers
and employees of the Cherokee County operations and generally assist in
the transition period following the combination of Wachovia Bank, N.A.
and Bank of Canton. Executive shall perform such services faithfully
and to the best of his ability. References herein to services rendered
for the Corporation and compensation and benefits payable or provided
by the Corporation shall include services rendered for and compensation
and benefits payable or provided by any subsidiary of the Corporation.
(b) Compensation. During the term, defined below, the
Executive shall be entitled to annual compensation at the rate if
$283,333, payable in semi-monthly installments.
(c) Medical and Other Benefits. During the term, the Executive
and his spouse shall be enrolled in the medical and other welfare
benefits offered by the
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Corporation. In addition, notwithstanding the expiration of the term,
upon the Executive's retirement the Executive shall be eligible for
retiree medical coverage offered by the Corporation between such
retirement date and the date on which the Executive attains age 65.
After age 65, any medical coverage offered by the Corporation shall be
secondary to Medicare.
2. Term of Agreement. Subject to the consummation of the
Merger, the Corporation agrees to employ the Executive and Executive
agrees to be so employed as set forth herein for the period commencing
with the effectiveness of the Merger (the "Effective Date") and ending
on the third anniversary thereof (subject to earlier termination as set
forth herein, the "term"). References herein to the "term" do not
include the Compensation Period described in Section 4. The Executive
understands that his execution of this Agreement is a condition
precedent to the Corporation's execution of the Agreement and Plan of
Merger. In consideration of the substantial expenses and other
obligations that the Corporation will incur in connection with the
Merger, including the obligations under this Agreement, the Executive
agrees and undertakes not to enter into any employment agreement or
similar arrangement (other than this Agreement ) with any party
(including, without limitation, BC Bankshares, Inc.) between the date
of this Agreement as first written above and the Effective Date or the
date of a valid termination of the Agreement and Plan of Merger, if
earlier.
3. Termination of Employment by the Corporation. The
Corporation may terminate the employment of the Executive at any time
for any reason; provided, that except as set forth in Sections 6 and 7,
the Corporation will provide the Executive with Compensation
Continuance to the extent described in Section 4 if the Executive's
employment is involuntarily terminated. The Executive's employment
shall be deemed to be involuntarily terminated if he is terminated by
the Corporation for any reason other than for "cause" as defined in
Section 6, or if he voluntarily terminates employment within six months
after: (a) his annual compensation is reduced below its level in effect
on the date hereof without the Executive's consent, (b) the duties
assigned to the Executive are not of the status and type described in
Section 1(a) and the Executive has not consented thereto or (c) the
Corporation requires Executive, without his consent, to be permanently
based at any office or location other than in Cherokee County, Georgia;
provided, however , that Executive acknowledges that he may be required
to travel on business to areas beyond Cherokee County and may, in the
course of his duties hereunder, be temporarily based in other
locations. The Executive shall be deemed to have consented to any
reduction described in (a), assignment described in (b), or relocation
described in (c), unless he shall object thereto in writing within
thirty days after he receives notice thereof.
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4. Compensation Continuance. If the Executive's employment
hereunder is involuntarily terminated as described in Section 3, he
will be entitled to receive the cash compensation and benefits
described in (a) and (b) below (herein, "Compensation Continuance") for
the period beginning with the date of such involuntary termination and
ending with the expiration of the three year term of this Agreement
(such period is referred to herein as the "Compensation Period"). The
cash compensation and benefits are as follows:
(a) Cash Compensation. The amount of cash
compensation to be received monthly during the Compensation
Period shall equal one-twelfth of the Executive's highest
annual rate of salary from the Corporation in effect during
the 12-month period prior to his involuntary termination. Each
monthly payment of such cash compensation shall have deducted
therefrom all payroll taxes and withholdings required by law.
(b) Employee Benefits. During the Compensation Period
the Executive shall be carried on the payroll of the
Corporation, and shall be deemed to be continuing in the
employment of the Corporation for the purpose of applying and
administering employee benefit plans of the Corporation (other
than any tax-qualified retirement plans) and individual
contracts between the Corporation and the Executive providing
supplemental or equalization payments or benefits with respect
to the Executive. The Executive shall participate in any
changes during the Compensation Period in benefit plans or
programs applicable generally to employees of the Corporation,
or to a class of employees which includes executives of the
Corporation, but shall not have any right or option to
participate in any such plan or program in which he was not a
participant immediately prior to his involuntary termination
of employment. The Corporation shall have no obligation to the
Executive to make any change or improvement in any such
contract during the Compensation Period even if the
Corporation shall make changes or improvements during such
period in similar contracts, if any, with other executives of
the Corporation.
In the event that the Executive shall engage in full-time employment
permitted hereunder for another employer or on a self-employed basis
during the Compensation Period, his employment with the Corporation
shall be deemed to have terminated for purposes of Section 4(b) as of
the date he begins such full-time employment, but the payments in
Section 4(a) shall continue for the remainder of the Compensation
Period, subject to the provisions of Section 7.
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5. Voluntary Termination of Employment by the Executive.
(a) The Executive reserves the right to terminate his
employment voluntarily at any time for any reason following at least 90
days= notice to the Corporation. If such notice shall be given, this
Agreement shall terminate as of the effective date of termination as
set forth in such notice (or the date 90 days from the date of receipt
by the Corporation of such notice, if no effective date shall be set
forth therein), unless sooner terminated as provided in Section 3, 6 or
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Continuance as a result of such voluntary termination.
(b) Notwithstanding anything to the contrary contained in
Section 5(a) of this Agreement, the Executive shall be entitled to
receive the Compensation Continuance described in Section 4 in the
event the Executive voluntarily terminates his employment for any
reason during the 30-day period following the first anniversary of the
Merger.
6. Termination for Cause. This Agreement shall immediately be
terminated and the Corporation shall non longer have any obligation
hereunder (including but not limited to any obligation on the part of
the Corporation to provide Compensation Continuance) if the Executive's
employment is terminated for "cause". Termination for cause shall occur
when termination results from the Executive's (a) criminal dishonesty,
(b) refusal to perform his duties hereunder on substantially a
full-time basis, (c) refusal to act in accordance with any specific
substantive instructions of the executive officer or officers of the
Corporation who are responsible for the oversight of the Cherokee
County operation, or the Board of Directors of the Corporation, or (d)
engaging in conduct which could be materially damaging to the
Corporation without a reasonable good faith belief that such conduct
was in the best interests of the Corporation. The determination of
whether a termination is for cause shall be made by the Management
Resources and Compensation Committee of the Board of Directors of the
Corporation (the "Committee"), and such determination shall be final
and conclusive on the Executive and all other persons affected thereby.
7. Executive's Obligations: Early Termination of Compensation
Period.
(a) During the Compensation Period, the Executive shall
provide consulting services to the Corporation at such time or times as
the Corporation shall reasonable request, subject to appropriate notice
and to reimbursement by the Corporation of all reasonable travel and
other expenses incurred and paid by the Executive. In the event the
Executive shall engage in full-time employment permitted hereunder
during the Compensation Period for another employer or on a
self-employed basis, his obligation to provide the consulting services
hereunder shall be limited by the requirements of such employment.
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(b) The Executive has obtained and may obtain confidential
information concerning the businesses, operations, financial affairs,
organizational and personnel matters, policies, procedures and other
non-public matters of the Corporation and its affiliates, and those of
third parties that is not generally disclosed to persons not employed
by the Corporation or its subsidiaries. Such information (referred to
herein as the "Confidential Information") may have been or may be
provided in written form or orally. The Executive shall not disclose to
any other person the Confidential Information at any time during or
after the term and the Compensation Period, provided that the Executive
may disclose such Confidential Information only to a person who is then
a director, officer, employee, partner, attorney or agent of the
Corporation who, in the Executive's reasonable good faith judgement,
has a need to know the Confidential Information.
(c) In view of the Executive's importance to the success of
the Corporation's business, the Executive and the Corporation agree
that the Corporation would likely suffer significant harm from the
Executive's competing with the Corporation during the Executive's
employment and for some period of time thereafter. Accordingly, the
Executive agrees that the Executive shall not engage in competitive
employment while employed by the Corporation and for a period equal to
the greater of (i) the Compensation Period and (ii) twenty-four (24)
months following the Executive's termination of employment by the
Corporation for cause or by the Executive for any reason during the
term. The Executive shall be deemed to engage in competitive employment
if he shall, without the prior written consent of the Committee, render
services as an employee, officer, director, consultant, partner or
otherwise for or of any organization which conducts, or is otherwise
engaged in the commercial and retail banking business within the
following counties in the State of Georgia: Cherokee County, Bartow
County, Xxxx County, Xxxxxx County, Forsyth County, Xxxxxx County,
Xxxxxx County and Xxxxxxx County.
(d) While employed by the Corporation and for a period equal
to the greater of (i) the Compensation Period and (ii) twenty four (24)
months following the Executive's termination of employment by the
Corporation for cause or voluntary termination other than pursuant to
Section 5(b) hereof by the Executive during the term, the Executive
agrees that the Executive shall not, in any manner, directly or
indirectly, (i) solicit by mail, by telephone, by personal meeting, or
by any other means, either directly or indirectly, any customer or
prospective customer of the Corporation to whom the Executive provided
services, or for whom the Executive transacted business, or whose
identity became known to the Executive in connection with the
Executive's employment with the Corporation (including employment with
any predecessor or successor entities), to transact business with a
person or an entity other than the Corporation or its affiliates or
reduce or refrain from doing any business with the Corporation, or its
affiliates or
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(ii) interfere with or damage (or attempt to interfere with or damage)
any relationship between the Corporation or its affiliates and any such
customer or prospective customer. The term "solicit" as used in this
paragraph and paragraph (d) means any communication of any kind
whatsoever, inviting, encouraging or requesting any person to take or
refrain from taking any action with respect to the business of the
Corporation and its subsidiaries.
(e) While employed by the Corporation and for a period equal
to the greater of (i) the Compensation Period and (ii) twenty four (24)
months following the Executive=s termination of employment by the
Corporation for cause or voluntary termination other than pursuant to
Section 5(b) hereof by the Executive during the term, the Executive
agrees that the Executive shall not, in any manner, directly or
indirectly, solicit any person who is an employee of the Corporation or
any of its affiliates to apply for or accept employment or a business
opportunity with any person or entity.
(f) The Executive acknowledges that a violation on the
Executive's part of this Section 7 would cause immeasurable and
irreparable damage to the Corporation. Accordingly, the Executive
agrees that the Corporation shall be entitled to injunctive relief in
any court of competent jurisdiction for any actual or threatened
violation of any of the provisions of this Section 7 in addition to any
other remedies it may have.
(g) In addition to the Corporation's rights set forth in
paragraph (f), in the event that the Executive shall materially violate
the terms and conditions of paragraphs (b), (c), (d) or (e) of this
Section 7, the Corporation may terminate the Compensation Period and
Compensation Continuance, if applicable, to the Executive. The
Committee shall be responsible for determining whether the Executive
shall have violated this Section 7. Upon the request of the Executive,
such Committee shall provide an advance opinion as to whether a
proposed activity would violate the provisions of Section 7.
8. Facilitation of Transfer of Customer Relationships. (a) If
the term is terminated by the Executive for any reason, the Executive
shall, during the Facilitation Period (as defined below), take all
actions and do all things as may be reasonably requested by the
Corporation (in writing, if the Executive so requests) from time to
time and as may be reasonable under the circumstances to maintain for
the Corporation and its affiliates, the business, goodwill, and
business relationships of any of any such entity's customers with which
the Executive worked during the term of the Executive's employment by
the Corporation or any predecessor or successor. The Corporation
acknowledges that to the extent it requires the Executive to be off
premises, the Executive's ability to cooperate with the Corporation
under this Section 8 may be limited.
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(b) For purposes of this Section 8, "Facilitation Period"
shall mean the 90-day period beginning on the date on which a notice of
termination is delivered, provided, however, that in the event the
Executive terminates his employment during the 30-day period following
the first anniversary of the Merger, the "Facilitation Period" shall
mean such 30-day period.
9. Death and Disability. In the event that, during the term of
this Agreement or during the Compensation Period, the Executive shall
die or shall become entitled to benefits under the Corporation's
Long-Term Disability Plan, this Agreement shall thereupon terminate and
neither the Executive nor any other person shall have any further
rights or benefits hereunder (including any rights to Compensation
Continuance).
10. Other Severance Benefits. Except as otherwise provided in
this Agreement, the Executive shall not be entitled to any form of
severance benefits, including benefits otherwise payable under any of
the Corporation's regular severance plans or policies, irrespective of
the circumstances of his termination of employment. The Executive
agrees that the payments and benefit provided hereunder, subject to the
terms and conditions hereof, shall be in full satisfaction of any
rights which he might otherwise have or claim by operation of law, by
implied contract or otherwise, except for rights which he may have
under employee benefit plans of the Corporation or individual written
contracts with the Corporation.
11. Waiver of Claims. In the event of the termination of the
Executive's employment by the Corporation without cause, or in
circumstances that constitute Executive's involuntary termination,
within the meaning set forth in Section 3, or if Executive voluntarily
terminates his employment pursuant to Section 5(b), in consideration of
the obligations of the Corporation hereunder, the Executive shall, and
does hereby, unconditionally release the Corporation, its directors,
officers, employees and shareholders, from any and all claims,
liabilities and obligations of any nature pertaining to termination of
the Executive's employment by the Corporation, including but not
limited to (a) any claims under federal, state or local laws
prohibiting discrimination, including without limitation the Age
Discrimination in Employment Act of 1967, as amended, or (b) any claims
growing out of any alleged legal restrictions on the Corporation's
right to terminate the Executive's employment, such as any alleged
implied contract of employment or termination contrary to public
policy. The Executive acknowledges and shall acknowledge in such
release, that he has been advised to consult with an attorney prior to
signing the release, that he has had no less than twenty-one days to
consider the release prior to its execution, and that he may revoke the
release at any time within seven days following the execution thereof.
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12. Notices. All notices hereunder shall be in writing and
deemed properly given if delivered by hand and receipted or if mailed
by registered mail, return receipt requested. Notices to the
Corporation shall be directed to the Secretary of the Corporation with
a copy directed to the General Counsel. Notices to the Executive shall
be directed to his last known address.
13. Miscellaneous.
(a) The waiver, whether express or implied, by either
party of a violation of any of the provisions of this
Agreement shall not operate or be construed as a waiver of any
subsequent violation of any such provision.
(b) No right, benefit or interest hereunder shall be
subject to assignment, encumbrance, charge, pledge,
hypothecation or set off in respect of any claim, debt or
obligation, or similar process.
(c) This Agreement may not be amended, modified or
canceled except by written agreement of the parties.
(d) In the event that any provision or portion of
this Agreement shall be determined to be invalid or
unenforceable for any reason, the remaining provisions of this
Agreement shall remain in full force and effect to the fullest
extent permitted by law.
(e) This Agreement shall be binding upon and inure to
the benefit of the Executive and the Corporation, and their
respective heirs, successors and assigns.
(f) No benefit or promise hereunder shall be secured
by any specific assets of the Corporation. The Executive shall
have only the rights of an unsecured general creditor of the
Corporation in seeking satisfaction of such benefits or
promises.
(g) This Agreement shall be governed by and construed
in accordance with the laws of the State of North Carolina.
(h) This Agreement sets forth the entire agreement
and understanding of the parties hereto with respect to the
matters covered hereby.
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IN WITNESS WHEREOF, this Agreement has been executed by or in
behalf of the parties hereto as of the date first above written.
WACHOVIA CORPORATION
By: /s/ G. Xxxxxx Xxxxxxxxxxx
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Name: G. Xxxxxx Xxxxxxxxxxx
Title: President and Chief Operating
Officer
Attest:
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Secretary
[Corporate Seal]
/s/ Xxxxx X. XxXxxxxx, Xx.
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Xxxxx X. XxXxxxxx, Xx.
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