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EXHIBIT 10.32
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SEPARATION AND CONSULTING AGREEMENT
THIS SEPARATION AND CONSULTING AGREEMENT (the "Agreement") made and
entered into by and between XXXXX X. XXXX, III (the "Consultant") and FIRST
CHARTER CORPORATION, a North Carolina corporation ("First Charter")
(collectively defined and referred to as the "Parties");
WITNESSETH:
WHEREAS, Consultant served as President and then Chief Executive
Officer of First Charter's predecessor company, Carolina First BancShares, Inc.
("Carolina First"), for more than eight years and is highly knowledgeable about
the business and operations of that organization, the banking industry, and the
customers that such predecessor and First Charter served and continues to serve;
WHEREAS, on November 7, 1999, Consultant entered into an employment
agreement with First Charter, whereby First Charter agreed to employ Consultant
as Executive Vice President of First Charter effective upon the actual date of
merger of First Charter and Carolina First, after which Consultant would
voluntarily resign after a specified term but continue to provide services to
First Charter as an independent contractor for an additional period (the
"Employment Agreement");
WHEREAS, following the merger of First Charter and Carolina First
effective April 4, 2000, Consultant and First Charter have mutually indicated
their desire to advance the date upon which Consultant's services as an employee
would end and his services as an independent consultant would begin;
WHEREAS, the Parties desire to enter into a contractual consulting
arrangement on the terms set forth herein;
NOW, THEREFORE, in exchange for the premises and mutual covenants
contained in this Agreement, the Parties, intending legally to be bound, agree
as follows:
1. SEPARATION. The Parties agree that Consultant's last day of
employment with First Charter shall be June 30, 2000, it being expressly
understood that this Agreement is and will be enforceable and First Charter will
be in compliance with this Section 1 provided Consultant is paid his regular
salary and benefits through June 30, 2000. In addition, except as otherwise set
forth in Section 12 below, Consultant acknowledges and agrees that his right to
his regular salary and benefits with First Charter shall cease effective June
30, 2000, except that Consultant shall not forfeit any vested stock options or
vested 401(k), pension or retirement benefits earned by him during his
employment with Carolina First and/or First Charter, if any.
The Parties agree that the end of the employment relationship between
the Parties was and shall be treated as a voluntary separation by Consultant in
the personnel records of First Charter. The Parties also acknowledge and agree
that except for the post-employment confidentiality obligations of Consultant
contained in Section 8 of the Employment Agreement, the Employment Agreement
shall be terminated, effective June 30, 2000.
2. RELATIONSHIP. Effective July 1, 2000, the relationship of Consultant
to First Charter shall be that of an independent contractor, not an employee.
3. SERVICES. During the Consultancy Term (as defined in Section 4
below), Consultant agrees to provide up to twenty (20) hours per month in
consultation services related to First Charter's business, customers, products
and services as mutually agreed to by Consultant and the Chief Executive Officer
of First Charter (the "First Charter CEO") commensurate with Consultant's past
experience and expertise with Carolina First and First Charter, including but
not limited to work on special projects as may be assigned from time to time. In
addition, the Parties agree that during the Consultancy Term, First
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Charter shall not require Consultant, without Consultant's prior written
consent, to relocate from his then current residence in North Carolina in order
to provide services under this Agreement.
4. TERM OF CONSULTANCY. Subject to the right of either party to
terminate this Agreement as set forth in Section 13 below, Consultant shall
provide consulting services to First Charter pursuant to this Agreement for a
period beginning July 1, 2000 and ending July 31, 2007 (the "Consultancy Term"),
at which time Consultant agrees that his consultancy arrangement with First
Charter shall end. Consultant further agrees that after execution of this
Agreement by him, he will not apply for employment, reemployment or additional
contract work with First Charter in the future except as otherwise set forth in
this Agreement.
5. NO CONTROL BY FIRST CHARTER. The Parties acknowledge and agree that
Consultant shall use Consultant's own judgment as to the time, place, details
and means by which Consultant accomplishes the results of Consultant's services
under this Agreement, that Consultant is not subject to instructions by First
Charter as to when, where or how the services should be performed, that
Consultant is not required to work set hours of the day or week established by
First Charter, that Consultant is not required to perform services in a sequence
determined by First Charter, that Consultant is not required to submit regular
written reports and that nothing contained herein shall be construed to create
the relationship of employer and employee between First Charter and Consultant;
provided, however, Consultant is expected to provide the services contemplated
by this Agreement in a timely and competent manner in order to meet the needs of
First Charter.
6. INDEPENDENT CONTRACTOR. Because consultant is an independent
contractor, First Charter will not be responsible for payment of any F.I.C.A.,
F.U.T.A. or other similar charges or withholding for Consultant, and Consultant
acknowledges and agrees that it is Consultant's obligation to report and pay all
Federal, State and local income, self-employment and other taxes due for him on
all compensation from First Charter as may be required by law. First Charter
will issue a Form 1099 for all compensation paid to Consultant under this
Agreement.
7. LIMITATIONS. Consultant agrees that he does not have the authority
to legally bind or obligate First Charter in any matter, and further agrees that
he will not take any action inconsistent with this limitation of authority.
8. CONSULTANCY RESPONSIBILITIES. During the Consultancy Term,
Consultant agrees that he will:
A. Cooperate with employees of First Charter;
B. Coordinate his services with the First Charter CEO;.
C. Keep First Charter informed about the services he
provides and any matters or issues relating to his
services;
D. Devote the time, energy and skill reasonably
necessary to perform his services;
E. Act in the best interests of First Charter;
F. Abide by the general First Charter policies and
procedures applicable to his engagement as an
independent contractor as established from time to
time by First Charter;
G. Conduct himself in a decent, respectable and
professional manner, and not violate any laws, rules,
regulations or ordinances in connection with his
engagement as an independent contractor; and
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H. Not violate any terms of this Agreement.
9. OTHER ACTIVITIES. The Parties agree that Consultant may be engaged
as a consultant, employee or otherwise in for-profit business or commercial
activities for other parties during the Consultancy Term, provided that such
activities: (a) do not prevent or unduly limit Consultant's ability to perform
his ongoing obligations with First Charter, (b) are not competitive with First
Charter as outlined in Section 15 below, or (c) are not detrimental to First
Charter, or cause Consultant to breach any of the provisions of this Agreement.
In addition, in order to prevent any unintended conflict of interest with First
Charter, Consultant agrees that prior to engaging in such other activities, he
will notify the First Charter CEO of the same in advance for approval (whose
authorization shall not be unreasonably withheld).
10. CONSULTING FEES. During the Consultancy Term, the Parties agree
that First Charter shall pay Consultant at a monthly rate of:
A. $15,983.33 for services requested by and rendered to
First Charter for the period July 1, 2000 to December
31, 2000;
B. $17,441.67 for services requested by and rendered to
First Charter for the period January 1, 2001 to
December 31, 2001;
C. $19,045.83 for services requested by and rendered to
First Charter for the period January 1, 2002 to July
31, 2002;
D. $6,250.00 for services requested by and rendered to
First Charter for the period August 1, 2002 to July
31, 2003;
E. $6,875.00 for services requested by and rendered to
First Charter for the period August 1, 2003 to July
31, 2004;
F. $7,562.50 for services requested by and rendered to
First Charter for the period August 1, 2004 to July
31, 2005;
G. $8,318.75 for services requested by and rendered to
First Charter for the period August 1, 2005 to July
31, 2006; and
H. $9,150.62 for services requested by and rendered to
First Charter for the period August 1, 2006 to July
31, 2007.
11. OTHER EXPENSES OF CONSULTANT. Consultant shall be responsible for
all expenses which Consultant incurs in rendering services under this Agreement,
including without limitation, compensation to Consultant's assistants or agents,
if any, travel expenses, long distance and local telephone charges,
entertainment expenses, office rental or mortgage expenses, training expenses,
the cost of tools and supplies and all other expenses incurred in rendering
services under this Agreement. It is expressly understood that such expenses
will not be wholly or partially reimbursed by First Charter; provided, however,
that First Charter will reimburse Consultant for business travel or other
expenses requested and approved by First Charter in advance. Reimbursement by
First Charter for any expenses shall also be subject to First Charter's then
existing reimbursement policy.
12. SEVERANCE BENEFITS. In recognition of Consultant's prior years of
service and commitment to Carolina First and First Charter, and separate and
apart from the compensation that Consultant is to receive for the consulting
services to be rendered by him to First Charter as set forth above, First
Charter agrees to provide Consultant with the following severance benefits in
connection with Consultant's separation from First Charter:
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A. PAY IN LIEU OF BONUS. The Parties agree that given
Consultant's past service to Carolina First and First Charter and the
2000, 2001 and 2002 annual incentive bonuses forgone by him as a
consequence of his earlier separation from First Charter and advanced
service as a consultant, during the Consultancy Term, and provided
Consultant remains engaged as a consultant with First Charter at the
time the 2000, 2001 and 2002 annual incentive bonus payments are
otherwise payable to Consultant under the terms of this Section 12.a.,
First Charter shall pay Consultant:
(1) $35,000.00 in lieu of a pro rata annual bonus for the
remainder of fiscal year 2000, less applicable
withholding as required by law;
(2) $77,000.00 in lieu of an annual bonus for fiscal year
2001, less applicable withholding as required by law;
(3) $49,400 in lieu of a pro rata annual bonus for fiscal
year 2002, less applicable withholding as required by
law.
Such amounts shall be payable by First Charter to Consultant
at the same time that annual incentive compensation bonuses, if any,
are paid for the corresponding fiscal years for officers of First
Charter and its subsidiaries who report directly to the then First
Charter CEO. In addition, the Parties agree that in the event that no
annual incentive bonus is paid to such officers for any fiscal year
2000, 2001 or 2002, then with respect to such applicable fiscal year,
First Charter shall pay Consultant the applicable pay in lieu of bonus
amount set forth in this Section 12.a. no later than February 28 of the
following applicable fiscal year in question, provided Consultant
remains engaged as a consultant with First Charter as of the applicable
February 28 date.
B. HEALTH INSURANCE BENEFITS. During the period of the
Consultancy Term from July 1, 2000 to July 31, 2002 (the "Insurance
Period"), and provided Consultant remains engaged as a consultant with
First Charter during the Insurance Period, First Charter will continue
to provide to Consultant those general group health benefits that he
received and/or in which he participated with First Charter immediately
prior to his separation as an employee from First Charter (including
coverage for Consultant's dependents to the extent such coverage is
provided by First Charter for its then employees generally), provided
such continued participation is possible under the terms and provisions
of such plans and programs. In the event that participation in any such
plan or program is barred during the Insurance Period, and provided
Consultant remains engaged as a consultant with First Charter during
the Insurance Period, First Charter shall arrange to provide Consultant
with health insurance benefits at First Charter's expense for the
Insurance Period, with such benefits being substantially similar to
those which Consultant would otherwise have been entitled to receive
under such plans and programs from which his continued participation is
barred. However, in no event will Consultant receive from First Charter
such health insurance benefits if and to the extent Consultant receives
comparable insurance benefits from any other source.
In addition, the Parties further agree that with the exception
of termination by First Charter "Without Cause" or by Consultant "For
Good Reason" (in which case the terms of Section 13.f. of this
Agreement shall control), following the end of the Insurance Period or
the effective date of the end of Consultant's consultancy relationship
with First Charter, whichever is earlier, Consultant and/or his
eligible dependents will be offered the opportunity to obtain
continuation medical coverage as allowed by and pursuant to COBRA.
First Charter further agrees to provide assistance to Consultant with
respect to the exercising of any conversion rights that he may have, if
any, with respect to First Charter's then group health and life
insurance plans.
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C. LIFE INSURANCE BENEFITS. During the period of the
Consultancy Term from July 1, 2000 to July 23, 2002 and provided
Consultant remains engaged as a consultant with First Charter during
such time period, First Charter will continue to provide to Consultant
those general group life insurance benefits that he received and/or in
which he participated with First Charter immediately prior to his
separation as an employee from First Charter, provided such continued
participation is possible under the terms and provisions of such plans
and programs. In the event that participation in any such plan or
program is barred during the period July 1, 2000 to July 23, 2002, and
provided Consultant remains engaged as a consultant with First Charter
during such time period, First Charter shall arrange to provide
Consultant with life insurance benefits at First Charter's expense for
such time period, with such benefits being substantially similar to
those which Consultant would otherwise have been entitled to receive
under such plans and programs from which his continued participation is
barred.
D. COMPANY CAR. Consultant may continue to have the use of the
Mercury Marquis owned by First Charter and currently used by Consultant
(the "Company Car") through June 30, 2000. Consultant agrees that he
shall return the Company Car to First Charter upon or before June 30,
2000. Consultant also acknowledges and agrees that, unless otherwise
authorized by the First Charter CEO for specified First Charter
business, his authorization for travel and other expenses associated
with the use of the Company Car shall be discontinued as of June 30,
2000. However, notwithstanding the above, the Parties agree that
immediately following June 30, 2000, Consultant will have the option to
purchase the Company Car at its then wholesale Xxxxxx "bluebook" value
of $18,245.65, provided that Consultant exercises this vehicle purchase
option on or before July 31, 2000.
13. TERMINATION.
A. TERMINATION EVENTS. The Consultancy Term shall terminate
immediately upon the occurrence of any of the following events: (i)
upon the death of Consultant; (ii) upon the effective date of
Termination by Consultant Without Good Reason (as defined below); or
(iii) upon the effective date of Termination by Consultant For Good
Reason (as defined below); (iv) upon the close of business on the date
First Charter gives Consultant written notice of Termination for Just
Cause (as defined below); or (v) upon the 60th day following the date
First Charter gives Consultant written notice of Termination Without
Cause (as defined below).
B. TERMINATION BY CONSULTANT WITHOUT GOOD REASON. For purposes
of this Agreement, "Termination by Consultant Without Good Reason"
shall mean any voluntary termination by Consultant of his consultancy
arrangement with First Charter for any reason other than "Termination
for Good Reason". Consultant is required to give at least thirty (30)
days advance written notice of termination to First Charter, and First
Charter is entitled upon receiving such notice, in its discretion, to
accept such termination as effective on: (i) the termination date
proposed by Consultant, or (ii) such other earlier date designated by
the First Charter CEO. In addition, First Charter will be required to
pay Consultant his consulting fees only through Consultant's final
termination date as agreed to or revised by the First Charter CEO,
regardless of whether Consultant is actually permitted to perform any
services for First Charter during that period.
C. TERMINATION BY CONSULTANT FOR GOOD REASON. For purposes of
this Agreement, "Termination by Consultant For Good Reason" shall mean
any voluntary termination by Consultant of his consultancy arrangement
with First Charter for a reduction, without Consultant's prior written
consent, in the rate of Consultant's agreed consulting fees set forth
in Section 10 above, severance pay in lieu of bonus set forth in
Section 12.a. above, or health or life insurance benefits as provided
in Sections 12.b. and 12.c. above (with the exception of reductions in
consultancy fees, severance pay in lieu of bonus, and/or health or life
insurance benefits resulting from termination by First Charter "For
Just Cause", termination by Consultant "Without Good Reason", or a
reduction in or modification of group health or group life insurance
benefits
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otherwise provided to then First Charter employees as may be made by
the applicable carriers and/or First Charter from time to time in their
absolute and sole discretion). Consultant is required to give written
notice of termination to First Charter, and First Charter is entitled
upon receiving such notice, in its discretion, to accept such
termination as effective on: (i) the termination date proposed by
Consultant, or (ii) such other earlier date designated by the First
Charter CEO. In addition, except as provided in Section 13.f. below,
First Charter will be required to pay Consultant his consulting fees
only through Consultant's final termination date as agreed to or
revised by the First Charter CEO, regardless of whether Consultant is
actually permitted to perform any services for First Charter during
that period.
D. TERMINATION FOR JUST CAUSE. For purposes of this Agreement,
"Termination for Just Cause" shall mean termination of the consultancy
arrangement of Consultant by First Charter as the result of: (i) any
conviction, guilty plea, confession or plea of nolo contendere by
Consultant for any crime involving moral turpitude or for any felony;
or (ii) any act of fraud or dishonesty by Consultant in connection with
Consultant's consultancy arrangement with First Charter or against any
of First Charters' customers; or (iii) the breach or threatened breach
of any provision of this Agreement by Consultant; or (iv) the refusal
of Consultant to perform specific lawful consulting requests made by
the Board of Directors of First Charter or the First Charter CEO
consistent with the terms of and Consultant's obligation under this
Agreement. The Parties further agree that with the exception of
Consultant's obligations under Sections 14 or 15 of this Agreement set
forth below, for purposes of this Agreement, Consultant's conduct under
subsections (iii) or (iv) of this paragraph shall not be grounds for
termination of Consultant by First Charter "For Just Cause" unless and
until First Charter has given Consultant written notice of the breach,
threatened breach and/or refusal to perform at issue and Consultant
fails to cure such violation(s) within thirty (30) days of any such
written notice.
E. TERMINATION WITHOUT CAUSE. For purposes of this Agreement,
"Termination Without Cause" shall mean any termination of the
consultancy arrangement of Consultant by First Charter for any reason
other than termination due to the death of Consultant or "Termination
for Just Cause".
F. EFFECT OF TERMINATION. If termination of the Consultancy
Term is due to the death of Consultant, Consultant's estate or legal
representative shall be paid Consultant's then remaining earned but
unpaid consulting fees and accrued pay in lieu of bonus (as defined in
Sections 10 and 12 above) plus all consulting fees and other pay in
lieu of bonus that would have been paid to Consultant under this
Agreement had Consultant completed the Consultancy Term, payable in
monthly installments commencing immediately upon the death of
Consultant, less applicable deductions required by law. In addition, if
termination of the Consultancy Term is due to the death of Consultant,
all supplemental benefits, awards, grants and options under any First
Charter or First Charter National Bank supplemental agreement, stock
option or grant will be fully vested notwithstanding any other
provision in such plan or grant.
If termination of the Consultancy Term occurs at any time due
to termination by First Charter "Without Cause" or by Consultant "For
Good Reason", then Consultant shall be entitled to: (i) be paid
Consultant's then remaining earned but unpaid consulting fees and
accrued pay in lieu of bonus (as defined in Sections 10 and 12 above)
plus all consulting fees and other pay in lieu of bonus that would have
been paid to Consultant under this Agreement had Consultant completed
the Consultancy Term; (ii) continuation of health and life insurance
benefits for Consultant and health insurance benefits for his eligible
dependents as set forth in Sections 12.b. and 12.c. above (including
the right to the provision of alternative equivalent coverage as set
forth in Sections 12.b. and 12.c. of this Agreement in the event that
participation in any such health or life insurance plan or program is
barred); (iii) obtain continuation medical coverage as allowed by and
pursuant to COBRA and insurance conversion assistance following the end
of the Insurance Period as provided in Section 12.b. above, if and as
applicable; and (iv) acceleration of vesting of all supplemental
benefits, awards, grants, and options under any First Charter or First
Charter
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National Bank supplemental agreement, stock option plan or grant
notwithstanding any other provision in such plan or grant.
Otherwise, following the termination or end of the Consultancy
Term for any reason, except for the payment of any earned but unpaid
consulting fees and Consultant's opportunity to obtain continuation
medical coverage as allowed by and pursuant to COBRA, if and as
applicable, Consultant's right to receive consulting fees from First
Charter shall cease, and Consultant shall not be entitled to receive
any additional compensation, severance or benefits of any kind from
First Charter, except that Consultant shall not forfeit any vested
stock option or vested 401(k) or pension or retirement benefits earned
by him during his prior employment with Carolina First and/or First
Charter, if any.
14. CONFIDENTIAL INFORMATION. For and in consideration of the terms of
this Agreement, Consultant agrees to the following for the ongoing protection of
First Charter:
A. OBLIGATIONS. Except to the extent that the use or
disclosure of any "Confidential Information" (as defined below) is
required to carry out Consultant's assigned duties as a consultant with
First Charter, during the term of Consultant's independent contractor
relationship with First Charter and after the termination or end of
such relationship for whatever reason, Consultant agrees that he will
not, without prior written approval by the First Charter CEO: (1)
misappropriate, (2) use for the purpose of competing with First
Charter, either directly or indirectly, (3) disclose to any third
party, either directly or indirectly, or (4) aid anyone else in
disclosing to any third party, either directly or indirectly, all or
any part of any "Confidential Information" (as defined below),
regardless of whether or not developed by Consultant during the course
of his prior employment with Carolina First and/or First Charter or
subsequent engagement as an independent contractor. Consultant further
makes the same pledge with regard to the confidential information of
First Charter's and its subsidiaries' customers, contractors, or others
with whom First Charter or its subsidiaries have a business
relationship.
B. SCOPE. "Confidential Information" shall include, but not be
limited to, any and all versions of First Charter's or its
subsidiaries' and predecessors' (including Carolina First's) computer
software, hardware, and documentation; all methods, processes,
techniques, practices, product designs, pricing information, billing
histories, customer requirements, customer lists, account data, loan
records, employee lists and salary/commission information, personnel
matters, financial data, operating results, plans, contractual
relationships, and projections for business opportunities for new or
developing business of First Charter or its subsidiaries; and all other
confidential or proprietary information, patents, ideas, know-how and
trade secrets which are in the possession of First Charter or its
subsidiaries, no matter what the source, including any such information
that First Charter or its subsidiaries or predecessors obtained or
obtain from a customer, contractor or another party or entity and that
First Charter treats or designates as confidential or proprietary
information, whether or not such information is owned or was developed
by First Charter. "Confidential Information" shall not include
information which is generally known or available to the public or the
banking industry in general.
C. RETURN OF DOCUMENTS/DATA. Consultant acknowledges and
agrees that all customer files, account records, customer lists,
manuals, letters, contracts, agreements, notes, notebooks, records,
reports, memoranda and all other Carolina First and/or First Charter
materials, documents and data used, prepared or collected by Consultant
as part of his prior employment with First Charter and Carolina First
or subsequent engagement as an independent contractor with First
Charter, in whatever form, are and will remain the property of First
Charter. Consultant also acknowledges and agrees that all "Confidential
Information" (as defined in Section 14.b. above) that comes into his
possession while an independent contractor with First Charter, whether
prepared by Consultant or others, is and will remain the property of
First Charter. Accordingly, Consultant agrees that, in the event of the
end of his independent contractor relationship with First Charter for
any reason, Consultant will return and make available to First
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Charter prior to the last day of Consultant's engagement with First
Charter all such First Charter documents and information, as well as
all documents and other materials of any kind that constitute or
contain any "Confidential Information", in Consultant's possession or
control, regardless of how stored or maintained, including all
originals, copies and compilations and all information stored or
maintained on computer, tapes, discs or any other electronic or other
form of technology.
15. COVENANT NOT TO COMPETE. For and in consideration of this Agreement
and Consultant's engagement as an independent contractor with First Charter,
Consultant agrees that, unless specifically authorized by First Charter in
writing, Consultant will not during the Consultancy Term and for a period of two
(2) years from the earlier of Consultant ceasing to perform service hereunder or
the scheduled Consultancy Term has terminated or ended (whatever the reason for
the end of the independent contractor relationship):
A. Engage in any "Competitive Activity" (as defined below)
within the "Restricted Territory" (as defined below);
B. Serve as an employee, director, owner, partner, contractor,
consultant or agent of, or own any interest in (except for beneficially
owning the stock or options to acquire stock totaling less than 5% of
the outstanding shares in a "public" competitor), any person, firm or
corporation that engages in "Competitive Activity" within the
"Restricted Territory"; or
C. Engage in any "Competitive Activity" with, for or towards
or divert, attempt to divert or direct others to divert any business of
First Charter from an existing First Charter customer, a joint venturer
or other business partner of First Charter (hereinafter referred to as
an "affiliate"), or from a potential customer identified through leads
or relationships developed during the last two (2) years of
Consultant's employment with First Charter, within the "Restricted
Territory.
Furthermore, Consultant will not during the Consultancy Term, and for a
period of three (3) years from the earlier of Consultant ceasing to perform
services hereunder or the scheduled Consultancy Term has ended, solicit or hire
for employment or as an independent contractor any employee of First Charter,
First Charter National Bank or any of First Charter's affiliates or
subsidiaries, or solicit, assist, induce, recruit, or assist or induce anyone
else to recruit, or cause another person in the employ of First Charter, First
Charter National Bank or any of First Charter's affiliates or subsidiaries to
leave his or her employment with First Charter, First Charter National Bank or
First Charter's affiliate or subsidiary for the purpose of joining, associating,
or becoming employed with any business or activity with which Consultant is or
expects to be directly or indirectly associated or employed.
"Competitive Activity" means: (1) the business activities engaged in by
First Charter during Consultant's consultancy with First Charter, including the
sales, marketing, distribution and provision of banking, financial and insurance
services or other products or services of the type of which Consultant was
involved during his consultancy with First Charter; and/or (2) the performance
of any other business activities competitive with First Charter and/or the Bank
for or on behalf of any financial or insurance services entity.
"Restricted Territory" means: (1) any county where First Charter or
First Charter National Bank have offices upon the end of Consultant's
consultancy with First Charter; and/or (2) the geographic area encompassing a
fifty (50) mile radius of Concord, North Carolina.
Consultant further agrees that except with the express written consent
of the Board, Consultant will not engage in any Competitive Activity
individually or with any entity or individual other than First Charter, the
Board or its subsidiaries during the Consultancy Term.
16. REASONABLENESS. Consultant acknowledges that the restrictions
placed upon him by Sections 14 and 15 of this Agreement are reasonable given the
nature of Consultant's past positions with
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First Charter and Carolina First, Consultant's services to be provided to First
Charter, the area in which First Charter markets its products and services, and
the consideration provided by First Charter to Consultant pursuant to this
Agreement. Specifically, Consultant acknowledges that the length of the Covenant
Not to Compete in Section 15 is reasonable and that the definitions of
"Competitive Activity" and "Restricted Territory" are reasonable. Consultant
further understands that his obligations under Sections 14 and 15 of this
Agreement will continue whether or not his consultancy with First Charter is
terminated voluntarily or involuntarily, or with or without Just Cause.
17. MUTUAL RELEASE. In exchange for First Charter's agreement to engage
Consultant on an earlier basis as an independent contractor pursuant to the
terms outlined in this Agreement, the severance benefits set forth above, the
provision of a sum certain for pay in lieu of bonus, and the other consideration
to Consultant set forth in this Agreement, Consultant agrees that with the
exception of any claims that Consultant has or may have for indemnification as
an officer, director or agent of First Charter or its predecessors or
affiliates, Consultant hereby releases and discharges First Charter, its
affiliates, parents, subsidiaries and divisions, as well as such entities'
respective officers, directors, trustees, shareholders, employees, agents,
administrators, predecessors, successors, assigns and representatives, of and
from any and all claims, actions, damages or demands of any kind whatsoever,
whenever or wherever they arose, that Consultant has, may have or may have had
at the time of or prior to his execution of this Agreement, including but not
limited to any claims arising out of or related to Consultant's entering into
this Agreement, Consultant's prior employment with First Charter, Carolina
First, or their respective predecessors, affiliates, parents, subsidiaries or
divisions, Consultant's separation from First Charter, any claims arising under
Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment
Act, 29 U.S.C. ss. 621, et seq., the Americans with Disabilities Act, the Family
and Medical Leave Act, the Fair Labor Standards Act, the Employee Retirement
Income Security Act, the North Carolina Equal Employment Practices Act, the
North Carolina Wage and Hour Act, and any and all other state or federal claims,
whether under tort or contract, or under statute or otherwise. Consultant
further agrees not to file, institute or pursue any lawsuit, claim or
administrative action against such entities and individuals relating to those
claims.
In exchange for Consultant's promises and agreements contained in this
Agreement as well as his agreement to enter into this consultancy arrangement on
an earlier basis pursuant to the terms outlined in this Agreement, First
Charter, for itself, its affiliates, parents, subsidiaries and divisions, as
well as such entities' respective officers, directors, trustees, shareholders,
employees, agents, administrators, successors, assigns and representatives,
hereby releases and discharges Consultant and his administrators, heirs,
beneficiaries, executors, agents and assigns, of and from any and all claims,
actions, damages or demands of any kind whatsoever, whenever or wherever they
arose, relating to any and all claims that it or they have, may have or may have
had against Consultant at the time of or prior to its execution of this
Agreement arising out of Consultant's prior performance of his authorized and
assigned duties with First Charter or its predecessors and related affiliates,
including but not limited to any claims arising out of or related to First
Charter's entering into this Agreement, any claims arising under contract or
tort or any federal, state, or local laws, statutes, rules and regulations, or
federal or state common law, except that this release shall not apply with
respect to any claims, actions, damages or demands that First Charter, it
predecessors or related entities may have in the event that, during Consultant's
prior employment with First Charter or its predecessors and related affiliates,
Consultant committed or engaged in actions or conduct that would constitute
gross negligence, fraud, embezzlement, malfeasance or dereliction of duty and
about which the First Charter CEO, the President of First Charter, and their
current direct reports do not currently have knowledge as of the date of First
Charter's entering into this Agreement (collectively, "Such Released Claims").
First Charter further agrees not to file, institute or pursue any lawsuit, claim
or administrative action against Consultant relating to Such Released Claims.
It is also expressly understood that these releases are and shall
continue to be enforceable regardless of whether there is a subsequent dispute
between the Parties concerning any alleged breach of this Agreement.
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18. AGREEMENT CONFIDENTIALITY. The Parties agree that the terms of this
Agreement shall remain confidential. The Parties, however, agree that: (a) First
Charter may disclose the terms of this Agreement to officers, directors and
management level employees of First Charter, to professionals representing it,
to its insurance agents and carriers, and to affiliates and employees of the
same with a need to know or in order to give effect to this Agreement; and (b)
Consultant may disclose the terms of this Agreement to his spouse, children,
accountant and attorney; provided that such third parties comply with the
confidentiality requirements set forth above. In addition, the Parties agree
that they are permitted to disclose the terms of this Agreement to the IRS and
the North Carolina Department of Revenue, if necessary, and as otherwise
required by law.
19. BREACH. Consultant agrees to submit to the jurisdiction of the
courts of North Carolina and agrees that, in the event of any breach or
threatened breach of Sections 14 or 15 of this Agreement by Consultant, First
Charter shall be entitled to an injunction, without bond, restraining such
breach. In addition, Consultant and First Charter agree that the prevailing
party in any legal action to enforce the terms of this Agreement shall be
entitled to costs and attorneys' fees relating to any such proceeding, but
nothing herein shall be construed as prohibiting the Parties from pursuing other
remedies available to them for any breach or threatened breach. Moreover,
Consultant also agrees that if Consultant breaches any of Sections 14 or 15
above, Consultant shall forfeit at the time of the breach the right to any
additional future payments or benefits under this Agreement, except to the
extent such benefits or payments are vested and earned. In such case, Consultant
and First Charter agree that the confidential information and non-compete
obligations contained in this Agreement shall remain valid and enforceable based
on the consideration actually provided.
20. ACKNOWLEDGMENT BY CONSULTANT. First Charter specifically advises
Consultant to consult a lawyer before signing this Agreement concerning the
terms of this Agreement and his rights under the Age Discrimination in
Employment Act, 29 U.S.C. ss. 621 et seq. Consultant acknowledges that he has
carefully read this Agreement, that he knows and understands the contents of
this Agreement, that he has had ample opportunity to review the terms of this
Agreement, that he is under no pressure to execute this Agreement, that he has
consulted with or had the opportunity to consult with a lawyer regarding this
Agreement, and that he executes this Agreement of his own free will.
21. WAITING PERIOD. Consultant hereby acknowledges and understands that
after receiving this Agreement from First Charter, he shall have at least
twenty-one (21) days to consider signing this Agreement, and is further aware of
his right to consult with an attorney prior to signing this Agreement. By
signing this Agreement, Consultant acknowledges his right to consider whether to
sign this Agreement for a period of at least twenty-one (21) days. If Consultant
elects not to take twenty-one (21) days to sign this Agreement, Consultant
acknowledges that the period of time used by him prior to signing this Agreement
was ample time to consider and review this Agreement, it being expressly
understood that First Charter is imposing no requirement or duress on Consultant
to take less than twenty-one (21) days to consider signing this Agreement. If
Consultant does not sign this Agreement within twenty-one (21) days of
presentation by First Charter, he further acknowledges that First Charter has
the option to withdraw its offers set forth in this Agreement.
22. REVOCATION RIGHTS. Consultant acknowledges and understands that he
shall have seven (7) days from the date this Agreement is signed by him to
revoke this Agreement by advising First Charter in writing of the revocation. If
the Agreement is not revoked within seven (7) days from the signing of this
Agreement by Consultant, this Agreement shall become effective and enforceable
as to all Parties on the eighth day following the signing of this Agreement by
all Parties.
23. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of Consultant, First Charter and First Charter National
Bank and their respective successors, assigns, heirs and personal
representatives; provided, however, that Consultant may not assign any of his
rights, title or interest in this Agreement. Consultant further acknowledges and
agrees that in the event of the transfer and/or assignment of this Agreement to
a successor or assignee of First Charter, this Agreement shall remain valid and
be fully enforceable by such entity. First Charter will require any
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successor (whether direct or indirect, by purchase, merger, consolidation, share
exchange or otherwise) to all or substantially all of the business and/or assets
of First Charter, by agreement in form and substance satisfactory to Consultant,
to expressly assume and agree to perform all of First Charter's obligations
under this Agreement in the same manner and to the same extent that First
Charter would be required to perform it if no such succession had taken place.
Failure of First Charter to obtain such agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall entitle
Consultant to compensation from First Charter in the same amount and on the same
terms as he would be entitled to hereunder if he had completed the Consultancy
Term, except that for purposes of implementing the foregoing, the date on which
any such succession becomes effective shall be deemed the date Consultant's
employment was terminated. As used in this Agreement, "First Charter" shall mean
First Charter as defined herein and any successor to its business and/or assets
as aforesaid that executes and delivers the agreement provided for in this
Section 23 or that otherwise becomes bound by the all terms and provisions of
this Agreement by operation of law.
24. APPLICABLE LAW. The Parties agree that this Agreement shall be
construed in accordance with the laws of the State of North Carolina.
25. DISSOLUTION OR MERGER. In the event that First Charter consolidates
or merges into or with, or transfers all or substantially all of its assets to,
another entity and such other entity assumes this Agreement, the term "First
Charter" as used herein shall mean such other entity, and the Parties agree that
this Agreement shall continue in full force and effect without any further
action on the part of either First Charter, its successor or assign, or
Consultant.
26. WAIVER OF BREACH. No waiver of any breach of this Agreement shall
operate or be construed as a waiver of any subsequent breach by any party. No
waiver shall be valid unless in writing and signed by the party waiving any
particular provision.
27. SEVERABILITY. The Parties understand and agree that every provision
of this Agreement is severable from each other provision of this Agreement.
Thus, the Parties agree that if any part of the covenants or provisions
contained in this Agreement is determined by a court of competent jurisdiction
or by any arbitration panel to which a dispute is submitted to be invalid,
illegal or incapable of being enforced, then such covenant or provision, with
such modification as shall be required in order to render such covenant or
provision not invalid, illegal or incapable of being enforced, shall remain in
full force and effect, and all other covenants and provisions contained in this
Agreement shall, nevertheless, remain in full force and effect to the fullest
extent permissible by law. The Parties further agree that, if any court or panel
makes such a determination, such court or panel shall have the power to reduce
the duration, scope and/or area of such provisions and/or delete specific words
and phrases by "blue penciling" and, in its reduced or blue penciled form, such
provisions shall then be enforceable as allowed by law.
28. COUNTERPARTS. This Agreement may be executed in duplicate
counterparts, each of which shall be deemed an original and all of which shall
constitute but one and the same instrument.
29. ENTIRE AGREEMENT. This Agreement replaces Consultant's Employment
Agreement with First Charter and any other prior employment agreements with
First Charter predecessors, including Carolina First, except for Exhibit B to
the Employment Agreement with First Charter, which is ratified and affirmed and
shall remain in full force and effect as a fully earned and vested benefit of
Consultant. Consultant has no oral representations, understandings or agreements
with First Charter or any of its officers, directors or representatives
inconsistent with this Agreement. This written Agreement is the final, complete
and exclusive statement and expression of the agreement between First Charter
and Consultant and of all the terms of this Agreement, and it cannot be varied,
contradicted or supplemented by evidence of any prior or contemporaneous oral or
written agreements. This written Agreement may not be later modified except by a
further writing signed by a duly authorized officer of First Charter and
Consultant, and no term of this Agreement may be waived except by writing signed
by the party waiving the benefit of such term. The foregoing not withstanding,
nothing contained herein shall be deemed to affect or limit Consultant's rights
under Exhibit B to the Employment Agreement or to any stock options, stock
13
appreciation rights, "STARs" or other Rights (as defined in the prior Agreement
and Plan of Merger between First Charter and Carolina First), all of which were
fully earned and vested as of the effective date of the merger.
30. NOTICE. Whenever any notice is required hereunder, it shall be
given in writing addressed as follows:
To First Charter: Xxxxx Xxxxxx Xxxxxxx
SVP, Human Resources
First Charter National Bank
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
To Consultant: Xxxxx X. Xxxx, III
000 Xxxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Notice shall be deemed given and effective on the earlier of three (3)
days after the deposit in the U.S. mail of a writing addressed as above and sent
first class mail, certified, return receipt requested, or when actually
received. Either party may change the address for notice by notifying the other
party of such change in accordance with this Section 30.
IN WITNESS WHEREOF, the undersigned hereto set their hands and seals as
of the dates set forth below.
Executed and presented for consideration to Consultant by First
Charter, this the 29th day of June, 2000.
FIRST CHARTER CORPORATION
By:/s/ Xxxxx Xxxxxx Xxxxxxx
------------------------
Accepted and signed by Consultant, this the 29th day of June, 2000.
/s/ Xxxx X. Xxxx, III (SEAL)
--------------------------
Xxxxx X. Xxxx, III
