AMENDED AND RESTATED EMPLOYMENT AND NONCOMPETITION AGREEMENT
Exhibit
10.1
AMENDED
AND RESTATED
EMPLOYMENT
AND NONCOMPETITION AGREEMENT
THIS
AMENDED AND RESTATED EMPLOYMENT AND NONCOMPETITION AGREEMENT
(this
“Agreement”), dated as of May 1, 2006, by and between XXXXXX
X. XXXX, XX., an
individual resident of Richland County, South Carolina (“Employee”), and
SCBT
FINANCIAL CORPORATION,
a bank
holding corporation organized under the laws of South Carolina
(the “Company”).
Background
Statement
Employee
and the Company are entering into this agreement to establish certain terms
of
Employee’s employment with the Company, and are amending and restating the
Employment Agreement between the Company and Employee dated the 30th day of
September, 1999 in order to, among other things, extend the term of that
Agreement and provide additional benefits to Employee. The board of directors
of
the Company (the “Board”) believes it is in the best interest of the Company and
its subsidiaries to restrict competition with the Company and its subsidiaries
by key management personnel upon termination of their employment.
Statement
of Agreement
In
consideration of the mutual covenants herein, Employee and the Company agree
as
follows:
1.
Employment.
The
Company agrees to employ Employee, and Employee agrees to serve the Company,
upon the terms and conditions set forth in this Agreement.
2.
Term
of Employment.
The term
of Employee’s employment hereunder shall commence immediately upon the date
hereof and shall continue until the third anniversary of the date hereof, unless
terminated earlier as provided in Section 6 or 7 hereof (the “Term”); provided,
however, that on each anniversary date of this Agreement, the Term shall be
extended for one year (so that on each anniversary date the Term will be three
years) unless at least sixty (60) days prior to any such anniversary date either
party gives to the other notice in writing of non-renewal.
3.
Position
and Responsibilities.
During
the period of employment hereunder, Employee shall serve as, and with the title,
office, and authority of, President and Chief Executive Officer of the Company
and Chief Executive Officer of South Carolina Bank and Trust, N.A. (the “Bank”),
and shall report to the Board and the board of directors of the Bank (the “Bank
Board”). Employee shall have the duties, responsibilities, rights, power and
authority as President and Chief Executive Officer of the Company and Chief
Executive Officer of the Bank that may from time to time be delegated or
assigned to him by the Board and the Bank Board.
NOTICE
THIS
CONTRACT IS SUBJECT TO ARBITRATION PURSUANT TO THE UNIFORM ARBITRATION ACT
AS
ADOPTED IN SOUTH CAROLINA AT SECTION 00-00-00 XXXXXXX XXXXXXX 00-00-000,
XXXXX
XXXXXXXX CODE OF LAWS (1976, AS AMENDED).
5.
Compensation
and Benefits.
For all
services rendered by Employee to the Company hereunder, the Company shall
compensate Employee as follows:
(a)
Base
Salary.
During
the period of employment hereunder, the Company shall pay Employee an annual
salary (as increased by the Company from time to time in its sole discretion,
the “Base Salary”) of $300,000 per year, subject to applicable federal and state
income and social security tax withholding requirements. The Base Salary shall
be payable in accordance with the Company’s customary payroll
practices.
(b)
Reimbursement
of Expenses.
The
Company shall pay or reimburse Employee for all reasonable travel and other
business related expenses incurred by him in performing his duties under this
Agreement. Such expenses shall be appropriately documented and submitted to
the
Company in accordance with the Company’s policies and procedures as established
from time to time.
(c)
Vacation
and Sick Leave.
Employee
shall be provided with vacation and sick leave in accordance with the Company’s
policies and procedures for senior executives as established from time to
time.
(d)
Employee
Benefit Plans.
During
the period of employment hereunder, Employee shall be entitled to participate
in
the employee benefit plans of the Company or its successors or assigns, as
presently in effect or as they may be modified or added to from time to time,
to
the extent such benefit plans are provided to other senior
executives.
(e)
Incentive
Bonus Plans.
During
the period of employment hereunder, Employee shall be entitled to participate
in
the Company’s incentive-based bonus plans, applicable to his employment
position, in accordance with both the terms and conditions of such plans and
the
Company’s policies and procedures as established from time to time.
(f)
Other
Fringe Benefits.
During
the period of employment hereunder, the Company shall (i) provide Employee
with the use of an automobile, (ii) reimburse Employee for the expense of
his attendance at such meetings and conventions as may be approved by the Board,
and (iii) reimburse Employee for Country Club and such other dues and fees
as may be approved by the Board.
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(g)
Total
Compensation.
Employee’s Base Salary, the greater of Employee’s annual bonus for the fiscal
year preceding the fiscal year in which Employee’s employment terminates or the
average bonus for the five years preceding the year of termination, Employee’s
health, medical and dental insurance, and the fringe benefits provided in
Subsection (f) of this Section 5 (or a lump sum payment equal to the value
of
such benefits without commutation to present value) are together hereinafter
referred to as Employee’s “Total Compensation.” Total Compensation does not
include any payments under the Company’s long term incentive program paid in
Company common stock.
6.
Termination
of Employment.
(a)
Termination
Upon Death, Disability, or For Cause.
The
Company shall have the right to terminate Employee’s employment hereunder upon
the death or Disability (as defined below) of Employee or for Cause (as defined
below). If Employee’s employment is terminated upon Employee’s death or
Disability, the Company will pay to or for the benefit of Employee or his estate
an amount equal to Employee’s Total Compensation for the twelve month period
preceding death or Disability in equal monthly installments during the twelve
month period following death or Disability or in a lump sum as determined by
the
Board in its discretion (but without any reduction for commutation to present
value), and in the case of Disability the Company will continue Employee’s
health, medical, and dental insurance coverages for such twelve month period
on
the same basis as in effect on the date of Disability. If Employee’s employment
is terminated for Cause, the Company shall have no further obligation to
Employee under this Agreement. Termination for Disability or for Cause shall
be
effective immediately or upon notice to Employee of such termination as may
be
determined by the Board. For purposes of this Agreement:
(i)“Disability”
means “disability” (as defined under the Company’s disability insurance policy
maintained for Bank executives from time to time) suffered by Employee for
a
continuous period of at least six months or any impairment of mind or body
that
is likely to result in a “disability” of Employee for more than three months
during any twelve-month period.
(ii)“Cause”
means: (A) the repeated failure of Employee to perform his responsibilities
and duties hereunder
after
Employee has been given written notice by the Chairman of the Board specifying
in general the reasons Employee is failing to perform his duties and
responsibilities hereunder, (B) the commission of an act by Employee
constituting dishonesty or fraud against the Company or any of its affiliates;
(C) the conviction for or the entering of a guilty or no contest plea with
respect to a felony; (D) habitual absenteeism, reporting to work under the
influence of alcohol or unlawful use of controlled substances; or (E) the
commission of an act by Employee involving gross negligence or moral turpitude
that brings the Company or any of its affiliates into public disrepute or
disgrace or causes material harm to the customer relations, operations or
business prospects of the Company or any of its affiliates.
In
the
event of the termination of Employee’s employment for Cause under this
Section 6(a),
Employee
shall be entitled only to the Base Salary earned through the date of
termination.
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(b)
Termination
Without Cause.
The
Company shall have the right to terminate Employee’s employment at any time and
for any reason subject to the provisions of this Section 6(b).
In the
event that the Company shall terminate Employee’s employment for any reason
other than as provided in Section 6(a),
the
Company shall as its sole obligation hereunder continue to pay to
Employee his Total Compensation, subject to applicable federal and state
income and social security tax withholding requirements and in accordance with
the Company’s customary payroll practices, and shall continue Employee’s health,
medical and dental insurance and other benefits on the same basis as in effect
at the time of termination, in each case during the twelve month period
following termination. In addition, Employee shall receive compensation for
two
years for Employee’s covenant not to compete with the Company as provided in
Section 9(f) below.
(c)
Termination
by
Employee for Good Reason.
Employee
shall have the right to terminate his employment hereunder for Good Reason.
For
purposes of this Agreement, “Good Reason” shall mean, without Employee’s express
written consent, the occurrence of any of the following circumstances
unless
such
circumstances are fully corrected within thirty days after Employee notifies
the
Company in writing of the existence of such circumstances as hereinafter
provided:
(i)
the
assignment to Employee of any duties, functions or responsibilities other than
those contemplated by Section 3 hereof or materially inconsistent with the
position with the Company that Employee held immediately prior to the assignment
of such duties or responsibilities or any adverse alteration in the nature
or
status of Employee’s responsibilities or the condition of Employee’s employment
from those contemplated in Section 3 hereof;
(ii)
a
reduction by the Company in Employee’s total compensation as in effect on the
date hereof or as it may be increased from time to time, except for
across-the-board salary reductions similarly affecting all management personnel
of the Company;
(iii)
the
relocation of the Company’s headquarters to a location more than fifty miles
from its current location in Columbia, South Carolina, or the Company’s
requiring Employee to be based anywhere other than the Company’s offices at such
location, except for required travel on Company business;
(iv)
the
failure by the Company to pay Employee any portion of Employee’s compensation
within the time guidelines established pursuant to standard Company policies,
or
any other material breach by the Company of any other material provision of
this
Agreement; or
(v)
the
giving
of notice by the Company of non-renewal of this Agreement pursuant to Section
2
hereof.
Employee
shall notify the Company in writing that he believes that one or more of the
circumstances described above exists, and of his intention to terminate this
Agreement for Good Reason as a result thereof, within sixty days of the time
that he gains knowledge of such circumstances. Employee shall not deliver a
notice of termination of this Agreement until thirty days after he delivers
the
notice described in the preceding sentence, and Employee may do so only if
the
circumstances described in such notice have not been corrected in all material
respects by the Company.
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In
the
event Employee terminates his employment pursuant to this
Section 6(c) for
Good
Reason, and subject to Section 7(a) below in the event of termination within
three years after a Change of Control, the Company shall continue to pay to
Employee his Total Compensation, subject to applicable federal and state income
and social security tax withholding and in accordance with the Company’s
customary payroll practices, and shall continue Employee’s health, medical and
dental insurance and other benefits on the same basis as in effect at the time
of such termination, in each case during the twelve month period following
termination of employment. In addition, Employee shall receive compensation
for
two years for Employee’s covenant not to compete with the Company as provided in
Section 9(f) below.
(d)
Termination
by Employee without Good Reason.
Employee
shall have the right at any time voluntarily to terminate his employment and
this Agreement, in which case (except as otherwise provided in Section 6(c)
above) Employee shall be entitled only to Employee’s Base Salary through the
date of termination, plus Employee’s Total Compensation for two years for
Employee’s covenant not to compete with the Company as provided in Section 9(f)
below.
(e)
Resignation
from Boards.
Upon
termination of Employee’s employment for any reason, Employee by execution of
this Agreement resigns as a member of the Board and the Bank Board, such
resignation to be effective immediately at the time Employee’s employment
terminates.
7.
Change
of Control.
(a)
If
(i)
a
Change
of Control (as defined below) occurs during the Term of this Agreement or any
extension thereof, and
(ii)
(A) Employee’s
employment is terminated in anticipation of a Change of Control, or
(B) Employee is employed by the Company or an affiliate thereof at the time
such Change of Control occurs, and
at any
time during the three-year period following such Change of Control,
(1)
Employee
is given notice of non-renewal of this Agreement pursuant to Section 2 hereof,
or his employment is terminated by the Company or an affiliate or successor
thereof for any reason other than for death, Disability or Cause,
or
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(2)
Employee
terminates his employment during the Window Period, as hereinafter defined,
for
any reason other than death or Disability, or Employee terminates his employment
for Good Reason,
the
Company (or its successors) shall pay Employee, or his beneficiary in the event
of his subsequent death, subject to applicable federal and state income, social
security and other employment tax withholding, an amount (the “Change of Control
Payment”) equal to .99 times Employee’s Total Compensation in effect at the date
of termination of employment.
The
Change
of Control Payment is in
lieu
of and not in addition to
any
payments provided for under Section 6 of this Agreement, but the Change of
Control Payment is in
addition to
the
payment for Employee’s covenant not to compete provided for under Section 9(f)
of this Agreement. The Change of Control Payment shall be paid in a lump sum
at
the time of termination without any reduction for commutation to present value.
(b)
Notwithstanding
anything in this Agreement to the contrary, in the event it shall be determined
that any payment or distribution to or for the benefit of the Employee (whether
paid or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise, but determined without regard to any additional payments
required under this Section 7(b) (a “Payment”)) would be subject to the excise
tax imposed by Section 4999 of the Code or any interest or penalties are
incurred by the Employee with respect to such excise tax (such excise tax,
together with any such interest and penalties, are hereinafter collectively
referred to as the “Excise Tax”), then the Employee shall be entitled to receive
(to the extent not paid directly by the Company as withholding taxes) an
additional payment (a “Gross-Up Payment”) in an amount such that after payment
by the Employee of all taxes (including any interest or penalties imposed with
respect to such taxes) with respect to Payments including, without limitation,
any income taxes (and any interest and penalties imposed with respect thereto)
and Excise Tax imposed upon the Gross-Up Payment, the Employee retains an amount
of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
All
determinations required to be made under this Section 7(b), including whether
and when a Gross-Up Payment is required and the amount of such Gross-Up Payment
and the assumptions to be utilized in arriving at such determination, shall
be
made by the accounting firm (the “Accounting Firm”) conducting the audit of the
Company at the time in question; provided, however, that the Accounting Firm
shall not determine that no Excise Tax is payable by the Employee unless it
delivers to the Employee a written opinion (the “Accounting Opinion”) that
failure to report the Excise Tax on the Employee’s applicable federal income tax
return would not result in the imposition of a negligence or similar penalty.
In
the event that the Accounting Firm has served, at any time during the two years
immediately preceding a Change of Control, as accountant or auditor for the
individual, entity or group that is involved in effecting or has any material
interest in a Change of Control, the Employee shall appoint a nationally
recognized accounting firm that is reasonably acceptable to the Company to
make
the determinations and perform the other functions specified in this Section
7(b) (which accounting firm shall then be referred to as the Accounting Firm
hereunder). All fees and expenses of the Accounting Firm shall be borne solely
by the Company. Within fifteen days of the receipt of notice from the Employee
that there has been a Payment, or such earlier time as is requested by the
Company, the Accounting Firm shall make all determinations required under this
Section 7(b), shall provide to the Company and the Employee a written report
setting forth such determinations, together with detailed supporting
calculations, and, if the Accounting Firm determines that no Excise Tax is
payable, shall deliver the Accounting Opinion to the Employee. Any Gross-Up
Payment, as determined pursuant to this Section 7(b), shall be (i) paid by
the
Company to taxing authorities to the extent required by applicable law and
(ii)
to the extent not so paid and not required to be so paid in the future, paid
by
the Company to the Employee at such times as the Accounting Firm determines
that
the related tax payments by the Employee are due. Subject to the remainder
of
this Section 7(b), any determination by the Accounting Firm shall be binding
upon the Company and the Employee. As a result of uncertainty in the application
of Section 4999 of the Internal Revenue Code at the time of the initial
determination by the Accounting Firm hereunder, it is possible that Gross-Up
Payments that will not have been made by the Company should have been made
(“Underpayment”) consistent with the calculations required to be made hereunder.
In the event that it is ultimately determined in accordance with the procedures
set forth in this Section 7(b) that the Employee is required to make a payment
of any Excise Tax, the Accounting Firm shall determine the amount of the
Underpayment that has occurred, and any such Underpayment shall be promptly
paid
by the Company to or for the benefit of the Employee.
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The
Employee shall notify the Company in writing of any claims by the Internal
Revenue Service that, if successful, would require the payment by the Company
of
the Gross-Up Payment. Such notification shall be given as soon as practicable
but no later than thirty days after the Employee actually receives notice in
writing of such claim and shall apprise the Company of the nature of such claim
and the date on which such claim is requested to be paid; provided, however,
that the failure of the Employee to notify the Company of such claim (or to
provide any required information with respect thereto) shall not affect any
rights granted to the Employee under this Section 7(b) except to the extent
that
the Company is materially prejudiced in the defense of any such claim as a
direct result of such failure. The Employee shall not pay such claim prior
to
the expiration of the thirty day period following the date on which he gives
such notice to the Company (or such shorter period ending on the date that
any
payment of taxes with respect to such claim is due). If the Company notifies
the
Employee in writing prior to the expiration of such period that it desires
to
contest such claim, the Employee shall:
(i)
give
the
Company any information reasonably requested relating to such
claim;
(ii)
take
such
action in connection with contesting such claim as the Company shall reasonably
request in writing from time to time, including, without limitation, accepting
legal representation with respect to such claim by an attorney selected by
the
Company and reasonably acceptable to the Employee;
(iii)
cooperate
with the Company in good faith to effectively contest such claim;
and
(iv)
if
the
Company elects not to assume and control the defense of such claim, permit
the
Company to participate in any proceedings relating to such claim;
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provided,
however, that the Company shall bear and pay directly all costs and expenses
(including additional interest and penalties) incurred in connection with such
contest and shall indemnify and hold the Employee harmless, on an after-tax
basis, for any Excise Tax or income tax (including interest and penalties with
respect thereto) imposed as a result of such representation and payment of
costs
and expenses. Without limiting the foregoing provisions of this Section 7(b),
the Company shall have the right, at its sole option, to assume the defense
of
and control all proceedings in connection with such contest, in which case
it
may pursue or forego any and all administrative appeals, proceedings, hearings
and conferences with the taxing authority in respect of such claim and may
either direct the Employee to pay the tax claimed and xxx for a refund or
contest the claim in any permissible manner, and the Employee agrees to
prosecute such contest to a determination before any administrative tribunal,
in
a court of initial jurisdiction and in one or more appellate courts, as the
Company shall determine; provided, however, that if the Company directs the
Employee to pay such claim and xxx for a refund, the Company shall advance
the
amount of such payment to the Employee on an interest-free basis, and shall
indemnify and hold the Employee harmless, on an after-tax basis, from any Excise
Tax or income tax (including interest or penalties with respect thereto) imposed
with respect to such advance or with respect to any imputed income with respect
to such advance. Furthermore, the Company’s right to assume the defense of and
control the contest shall be limited to issues with respect to which a Gross-Up
Payment would be payable hereunder, and the Employee shall be entitled to settle
or contest, as the case may be, any other issue raised by the Internal Revenue
Service or any other taxing authority.
If,
after
the receipt by the Employee of an amount advanced by the Company pursuant to
this Section 7(b), the Employee becomes entitled to receive any refund with
respect to such claim, the Employee shall (subject to the Company’s complying
with the requirements hereof) promptly pay to the Company the amount of such
refund (together with any interest paid or credited thereon after taxes
applicable thereto).
(c)
For
purposes of this Agreement, “Window Period” shall mean the thirty-day period
immediately following elapse of six months after the occurrence of any Change
of
Control (as defined below).
(d)
For
purposes of this Agreement, “Change
of Control”
means
the occurrence of one of the following:
(i)
any
“person” (as that term is used in Sections 13(d)(1) of the Securities
Exchange Act of 1934, as amended) becomes the owner (as determined pursuant
to
the provisions of Section 13(d) of the Securities Exchange Act of 1934, without
regard to the requirements set forth in Section 13(d)(1) in regard to
registration), directly or indirectly, of 50% or more of the common voting
stock
of the Company or the Bank or their respective successors other than
(A) with respect to the Bank and its successors, the Company or any of its
successors, (B) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company, (C) Employee or a group of persons
including Employee, and (D) an underwriter or group of underwriters owning
shares of common voting stock in connection with a bona fide public offering
of
such shares and the sale of such shares to the public;
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(ii)
there
shall be any consolidation or merger of the Company or the Bank as a result
of
which the holders of 50% or more of the voting capital stock (if any) of the
surviving corporation immediately after the transaction were not holders of
voting capital stock of the Company or the Bank, as the case may be, immediately
prior to the transaction;
(iii)
there
occurs the sale or transfer of all or substantially all of the assets of the
Company or the Bank or the liquidation or dissolution of the Company or the
Bank; or
(iv)
individuals
who constitute the Board as of the effective date of this Agreement (the
“Incumbent Board”), cease for any reason (including but not limited to a change
mandated by any statute or regulation) to constitute a majority of the Board;
provided, however, that any individual becoming a director subsequent to the
date of this Agreement whose election or nomination for election was approved
by
a vote of at least a majority of the Incumbent Board shall be a member of the
Incumbent Board; except that any individual elected to the Board whose initial
election occurs as a result of any actual or threatened election contest that
is
or would be subject to the provisions of Rule 14a-11 under the Securities
Exchange Act of 1934, shall not be deemed to be a member of the Incumbent
Board.
8.
Confidential
Information.
Employee
acknowledges that during, and as a result of, Employee’s employment with the
Company and the Bank, Employee will acquire, be exposed to and have access
to,
material, data and information of the Company and its affiliates and/or its
customers, suppliers or clients that is confidential or proprietary. At all
times, both during and after the period of employment hereunder, Employee shall
keep and retain in confidence and shall not disclose, except as required in
the
course of Employee’s employment with the Company and the Bank, to any person or
entity, or use for his own purposes, any of this proprietary or confidential
information. For purposes of this Section 8, such information shall
include, but shall not be limited to: (i) the Company’s or the Bank’s
standard operating procedures, processes, know-how and technical and product
information, any of which is of value to the Company or the Bank and not
generally known by the Company’s or the Bank’s competitors or the public;
(ii) all confidential information obtained from third parties and customers
concerning the business of the Company or its affiliates, including any customer
lists or data; and (iii) confidential business information of the Company
or its affiliates, including marketing and business plans, strategies,
projections, business opportunities, client lists, sales and cost information
and financial results and performance. Such information shall not include
information that is disclosed pursuant to issuance of legal process or
regulatory action, information that is in the public domain, or information
disclosed to Employee by a person who has no duty to the Company or its
affiliates to keep the information confidential. Employee acknowledges that
the
obligations pertaining to the confidentiality and non-disclosure of information
shall remain in effect indefinitely, or until the Company has released any
such
information into the public domain, in which case Employee’s obligation
hereunder shall cease with respect only to such information so
released.
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9.
Noncompetition.
(a)
Noncompetition.
Employee
shall not take any of the following actions during the applicable Noncompetition
Period (as defined below):
(i)
Become
employed by (as an officer, director, employee, consultant or otherwise),
involved or engaged in, or otherwise commercially interested in or affiliated
with (other than as a less than 5% equity owner of any corporation traded on
any
national, international or regional stock exchange or in the over-the-counter
market) any person or entity that competes with the Company or an affiliate
thereof (each, a “Company Affiliate”) in the business of providing traditional
banking services or other services provided by the Company and its affiliates
during the Term.
(ii)
Solicit
or
attempt to solicit, for competitive purposes, the business of any of the clients
or customers of any Company Affiliate, or otherwise induce such customers or
clients or prospective customers or clients to reduce, terminate, restrict
or
alter their business relationship with any Company Affiliate in any fashion;
or
(iii)
Induce
or
attempt to induce any employee of any Company Affiliate to leave the Company
for
the purpose of engaging in a business operation that is competitive with the
Company.
(b)
Noncompetition
Period.
For
purposes of this Section 9 “Noncompetition Period” shall mean the period of
employment hereunder and the period commencing on the date of termination of
employment and ending twenty four months thereafter; provided, however, that
in
the event Employee is terminated for Cause pursuant to the provisions of Section
6(e) hereof, the Noncompetition Period shall mean the period commencing on
the
date of termination and ending twelve months thereafter.
(c)
Geographic
Scope.
The
restrictions on competition and solicitation set forth in this Section 9
shall
apply to any county in the State of South Carolina or in any other state in
which the Company or a Company Affiliate is conducting business operations
during the Noncompetition Period. However, the restrictions are intended to
apply only with respect to personal activities of Employee within any such
county and shall not be deemed to apply if Employee is employed by a corporation
that has branch offices within any such county but Employee does not personally
work in or have any business contacts with persons in such county.
(d)
Providing
Copy of Agreement.
Employee
shall provide a copy of this Agreement to any person or entity with whom
Employee interviews that is in competition with the Company during the
Noncompetition Period.
(e)
Obligations
Survive.
Employee’s obligations under this Section 9
shall
survive any termination of his employment with the Company.
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(f)
Payment
for Noncompetition.
In
addition to the payments to Employee provided by Sections 6(b) (the
Company’s termination of Employee without Cause), 6(c) (termination of
employment by Employee for Good Reason), 6(d) (Employee’s voluntary termination
of employment), or 7 (termination of employment
after a
Change of Control), Employee shall be paid for not competing with the Company
as
above provided Employee’s Total Compensation in effect at the time of
termination of his employment for a period of two years, such payment to be
made
in two equal lump sum payments with no reduction for commutation to present
value, with the first payment of one-half the total amount to be paid to be
made
at the time of termination of Employee’s employment and the second payment of
one-half the total amount to be paid to be made on the first anniversary of
termination of Employee’s employment.
10.
Company’s
Right to Obtain an Injunction.
Employee
acknowledges that the Company will have no adequate means of protecting its
rights under Sections 8
and
9
other
than
by securing an injunction. Accordingly, Employee agrees that the Company is
entitled to enforce this Agreement by obtaining a preliminary and permanent
injunction and any other appropriate equitable relief in any court of competent
jurisdiction. Employee acknowledges that the Company’s recovery of damages will
not be an adequate means to redress a breach of this Agreement. Nothing
contained in this Section 10
shall
prohibit the Company from obtaining any appropriate remedies in addition to
injunctive relief, including recovery of damages.
11.
Waiver
of Rights.
In
consideration of the employment offered hereunder and the payments made pursuant
to Section 5
and
the
other terms of this Agreement, Employee acknowledges that the Employment
Agreement dated September 30, 1999, between Employee and the Company is hereby
terminated, and Employee forever waives, releases and discharges the Company,
any Company Affiliate, and any of their subsidiaries, shareholders or affiliates
and any of their successors and assigns from any claims, rights and privileges
under such agreement.
12.
General
Provisions.
(a)
Entire
Agreement.
This
Agreement contains the entire understanding between the parties hereto relating
to the employment of Employee by the Company and supersedes any and all prior
employment or compensation agreements between the Company and
Employee.
(b)
Assignability.
Neither
this Agreement nor any right or interest hereunder shall be assignable by
Employee, his beneficiaries or legal representatives, without the Company’s
prior
written consent; provided,
however,
that
nothing shall preclude (i) Employee from designating a beneficiary to
receive any benefit payable hereunder
upon his
death or Disability, or (ii) the executors, administrators or other legal
representatives of Employee or his estate from assigning any rights hereunder
to
the person or persons entitled thereunto.
(c)
Binding
Agreement.
This
Agreement shall be binding upon, and inure to the benefit of, Employee and
the
Company and their permitted successors and assigns.
(d)
Amendment
of Agreement.
This
Agreement may not be amended except by an instrument in writing signed by the
parties hereto.
-11-
(e)
Insurance.
The
Company, at its discretion, may apply for and procure in its own name and for
its own benefit, life insurance on Employee in any amount or amounts considered
advisable; and Employee shall have no right, title or interest therein. Employee
shall submit to any medical or other examination and execute and deliver any
applications or other instruments in writing as may be reasonably necessary
to
obtain such insurance.
(f)
Severability.
If any
provision contained in this Agreement shall for any reason be held invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement, but
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein. If a court determines that this
Agreement or any covenant contained herein is unreasonable, void or
unenforceable, for any reason whatsoever, then in such event the parties hereto
agree that the duration, geographical or other limitation imposed herein should
be such as the court, or jury, as the case may be, determines to be fair and
reasonable, it being the intent of each of the parties hereto to be subject
to
an agreement that is necessary for the protection of the legitimate interest
of
the Company and its successors or assigns and that is not unduly harsh in
curtailing the legitimate rights of the Employee.
(g)
Notices.
All
notices under this Agreement shall be in writing and shall be deemed effective
when delivered in person (with respect to the Company, to the Company’s
secretary) or when mailed, if mailed by certified mail, return receipt
requested. Notices mailed shall be addressed, in the case of Employee, to his
last known residential address, and in the case of the Company, to its corporate
headquarters, attention of the Secretary, or to such other address as Employee
or the Company may designate in writing at any time or from time to time to
the
other party in accordance with this Section.
(h)
Waiver.
No delay
or omission by either party hereto in exercising any right, power or privilege
hereunder shall impair such right, power or privilege, nor shall any single
or
partial exercise of any right, power or privilege preclude any further exercise
thereof or the exercise of any other right, power or privilege. The provisions
of this Section 12(h)
cannot be
waived except in writing signed by both parties.
(i)
Governing
Law.
This
agreement shall be governed and construed in accordance with the laws of the
State of South Carolina.
(j)
Arbitration.
This
contract is subject to arbitration pursuant to the Uniform Arbitration Act,
as
adopted in South Carolina at Section 15-48-10 through Section 00-00-000, South
Carolina Code of Laws (1976, as amended). Any controversy or claim arising
out
of or relating to this Agreement or the validity, interpretation, enforceability
or breach thereof, which is not settled by agreement among the parties, shall
be
settled by arbitration
in
Columbia, South Carolina, in accordance with the Rules of the American
Arbitration Association, and judgment upon the award rendered in such
arbitration may be entered in any court having jurisdiction. All expenses
(including, without limitation, legal fees and expenses) incurred by Employee
in
connection with, or in prosecuting or defending, any claim or controversy
arising out of or relating to this Agreement following a Change of Control
shall
be paid by the Company, unless Employee fails to prevail in any such claim
or
controversy and the Company receives a written opinion of independent legal
counsel, selected by the Board of Directors of the Company, to the effect that
such expenses were not incurred by Employee in good faith. Pending any such
determination, such expenses shall be paid by the Company on a monthly basis,
upon an undertaking by Employee to repay to the Company amounts so advanced
if
Employee fails to prevail in any such claim or controversy, and it should be
thus determined that the expenses were not incurred by Employee in good
faith.
-12-
IN
WITNESS WHEREOF,
the
parties have executed this Agreement as of the day and year first above
written.
|
SCBT
FINANCIAL CORPORATION
|
||
| Date approved: November 1, 2006 |
|
By:
|
/s/
Xxxxxx X. Xxxxxx
|
|
|
Xxxxxx
X. Xxxxxx
|
||
|
Chairman
of the Board
|
|
EMPLOYEE
|
||
|
/s/
Xxxxxx X. Xxxx, Xx.
|
||
|
Xxxxxx
X. Xxxx, Xx.
|
-13-
