AMENDED AND RESTATED EMPLOYMENT AND NON-COMPETITION AGREEMENT
Exhibit
10.4
AMENDED
AND RESTATED
EMPLOYMENT
AND NON-COMPETITION AGREEMENT
THIS
AGREEMENT, dated and effective this 1st day of September 2006, between SCBT
Financial Corporation, which was formerly known as First National Corporation,
a
bank holding company organized and existing under the laws of the State of
South
Carolina (the “Company”), and Xxxxxx X. Xxxx (the “Employee”).
WHEREAS,
the Company and Employee formerly entered into an Agreement entitled Employment
Agreement dated November 10, 1998 and Employment Agreement Amendment dated
December 5, 2001; and
WHEREAS,
Company and Employee wish to terminate the Employment Agreement dated November
10, 1998 and the Employment Agreement Amendment dated December 5, 2001, and
enter into this Agreement under the terms and conditions set forth
herein.
NOW,
THEREFORE, in consideration of mutual covenants contained herein, and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the parties do mutually 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.The
term
of this employment hereunder shall commence immediately upon the date hereof
and
shall continue for a period of three year unless terminated earlier as provided
herein (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. If one of the parties provides notice in accordance with this
Section 2 but the parties do not enter into a new Agreement prior to the
expiration of the Term, the Employee’s employment shall become one of at-will.
3.
Position
and Responsibilities.
During
the period of employment hereunder, Employee shall serve as President and Chief
Executive Officer of South Carolina Bank and Trust of the Piedmont, N.A., a
wholly-owned subsidiary of the Company (the “Bank”), or in such other office and
authority as may be designated by the Board of Directors of the Company and
South Carolina Bank and Trust of the Piedmont, N.A. Employee shall have the
duties, responsibilities, rights, power and authority that may be from time
to
time delegated or assigned to him by the Board of Directors of the Company
and
the Bank.
4.
Duties.
During
the
period of employment hereunder, Employee shall devote all of his business time,
attention, skills and efforts to the business of the Company and the faithful
performance of his duties and responsibilities hereunder. Employee shall be
loyal to
THIS
AGREEMENT IS SUBJECT TO BINDING
ARBITRATION
PURSUANT TO S. C. CODE §15-48-10
ET
SEQ.,
AS
AMENDED FROM TIME TO TIME
the
Company and shall refrain from rendering any business services to any person
or
entity other than the Company and its affiliates without the prior written
consent of the Company. Employee may, and is encouraged to participate in such
civic, charitable, and community activities that do not substantially interfere
with the performance of his duties under this Agreement. Employee shall be
permitted to make private investments so long as these investments do not
materially and adversely affect his employment hereunder.
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,
“Base Salary”) of $182,250.00 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 similarly situated
employees.
(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 and amended 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
the
Company requires him to attend, and (iii) pay on behalf of Employee dues
required to maintain membership during his employment in the Country Club of
Rock Hill.
(g)
Total
Compensation.
As used
herein, the term Total Compensation shall refer to the aggregate total of:
(i)
the Employee’s Base Salary at the time the Employee’s employment terminates,
(ii) the greater of the Employee’s annual bonus for the fiscal year immediately
preceding the fiscal year in which Employee’s employment terminates or the
average of the annual bonus for the prior five fiscal years preceding
termination, and (iii) the amount the Company contributes towards Employee’s
health and dental insurance on a monthly basis as of the time the Employee’s
employment terminates.
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6.
Termination
of Employment.
(a)
Termination
Upon Death, Disability or For Cause.
The
Company shall 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 due to death, Disability or 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 such notice to Employee of such termination as may be
determined by the Board of Directors. For the purpose of this
Agreement:
(i)
“Disability”
means “disability” (as such term is 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 three months or any impairment
of
mind or body that is likely to result in a “disability” of Employee for more
than six months during any twelve-month period.
(ii)
“Cause”
means: (A) the repeated failure of Employee to perform his responsibilities
and
duties hereunder; (B) the commission of an act by Employee constituting
dishonesty or fraud against the Company or the Bank; (C) being charged with
a
felony; (D) habitual absenteeism; (E) Employee
is determined to have been on the job while under the influence of alcohol,
unauthorized or illegal drugs, prescription drugs that have not been prescribed
for the Employee, or other substances that have the potential to impair the
Employee’s judgment or performance; (F)
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 its affiliates; (G) bringing
firearms or weapons into the workplace; (H) the Employee’s failure to comply
with policies, standards, and regulations of Company; (I)
the
Employee’s engagement in conduct which is in material contravention of any
federal, state or local law or ordinance other than a minor offense which does
not reflect or impact upon the Employer or Bank; (J) the Employee’s engagement
in conduct which is unbecoming to or inconsistent with the duties and
responsibilities of a member of management of the Employer; or (K) the Employee
engaging
in sexual or other form of illegal harassment.
In
the
event of termination of Employee’s employment for death, Disability or Cause
under this Section 6(a), Employee shall be entitled only to the Base Salary
earned through the date of termination. In the case of the Employee’s death such
payment shall be made to Employee’s estate unless the Employee has directed
otherwise in a writing directed to the Company prior to his death.
(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
pay
to Employee the Base Salary, subject to applicable federal and state income
and
social security tax withholding requirements and in accordance with the
Company’s customary payroll practices, for the 12 month period immediately
following termination. In addition, for a period of 12 months, the Company
shall
contribute towards Employee’s COBRA premium, i.e., pay the same monthly amount
for family coverage as it would if he were an active employee, if Employee
is
covered under Company or Bank’s health welfare benefit plan prior to the
cessation of his employment and elects to maintain coverage through COBRA.
Employee shall be responsible for the remaining portion of the monthly COBRA
premium during this period. If Employee fails to make his portion of the COBRA
payment before the 10th
of the
month for which coverage is sought (i.e. January 10th
for
January coverage), Company’s obligation under this Section 6(b) to pay toward
Employee’s monthly COBRA premium shall cease. If Employee elects to extend
coverage under Company or Bank’s health welfare benefit plan after 12 months,
Employee will be responsible for the payment of the entire applicable COBRA
premium. If Employee becomes eligible to enroll in another employer-sponsored
health welfare benefit plan prior to end of the 12 months, Company’s obligation
under this Section 6(b) to pay toward Employee’s monthly COBRA premium shall
cease. The Company’s obligations to make certain payments to or on behalf of the
Employee under this Section 6(b) is expressly conditioned upon the Employee
executing and returning to Company a settlement agreement that will include
a
full waiver and release of all claims, including potential claims known or
unknown, against Company, Bank, their officers, directors, agents, employees,
etc.
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(c)
Termination
by Employee.
Employee
shall have the right at any time voluntarily to terminate his employment, upon
30 days written notice, in which event Employee shall be entitled only to the
Base Salary through the date of termination.
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 in Control, or
(B) Employee is employed by the Company or an affiliate thereof at the time
such
Change of Control occurs, and
at
anytime within one year after the Change in Control occurs
(1)
the
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
(2)
Employee
voluntarily 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, as hereinafter defined,
the
Company (or its successors) shall pay to 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 in
Control Payments”) equal to three times the Employee’s Total
Compensation.
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(b)
The
Change
of Control Payment is in
lieu
of and not in addition to
any
payments provided for under Section 6 of this Agreement. Such amount shall
be
paid in two equal payments each consisting of one-half the total Change of
Control Payments with the first payment to be made immediately upon the
cessation of employment, the second to be made exactly one year later. The
Company or its successor’s obligations to make certain payments to or on behalf
of the Employee under this Section 7 is expressly conditioned upon the Employee
executing and returning to Company or its successor a settlement agreement
that
will include a full waiver and release of all claims, including potential claims
known or unknown, against Company, Bank, their officers, directors, agents,
employees, etc.
(c)
Notwithstanding
anything in this Agreement to the contrary, if a Change of Control occurs after
the date of this Agreement, and if Employee is entitled under any agreement
or
arrangement to receive compensation that would constitute a parachute payment
(including, without limitation, the vesting of any rights) within the meaning
of
Code §280G (the “Parachute Payments”), the Change of Control Payment shall be
reduced to the extent necessary to cause the aggregate present value of all
payments in the nature of compensation to Employee that are contingent on a
change in the ownership or effective control of the Company or in the ownership
of a substantial portion of the assets of the Company, not to exceed 2.99 times
the Base Amount, all within the meaning of Code §280G.
(d)
For
purposes of this Section, “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).
(e)
For
purposes of this Section, “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 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 Rock Hill or Columbia, except
for required travel on Company business;
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(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.
“Good
Reason,” however, shall not include the folding or merging of South Carolina
Bank and Trust of the Piedmont, N.A. into the Company or any other action
whereby South Carolina Bank and Trust of the Piedmont, N.A. becomes a part
of
the Company.
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 the Employee may do so only
if
the circumstances described in such notice have not been corrected in all
material respects by the Company.
(f)
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;
(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.
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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 or clients that is confidential or proprietary.
(a)
Use
and Maintenance of Confidential Information. At
all
time, 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 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 Bank’s competitors or the public; (ii) all confidential information
obtained by the Company or the Bank from third parties and customers concerning
the business of the Company, 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, customer list, confidential information by customers or clients,
sales and cost information and financial results and performance. 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.
(b)
Return
of information.
The
Employee acknowledges that all information, the disclosure of which is
prohibited by Section 8(a) above, is of a confidential and proprietary character
and of great value to the Company and shall remain the exclusive property of
the
Company. Upon the termination of employment with the Company, the Employee
agrees to immediately deliver to the Company all records, calculations,
memoranda, papers, data, lists, and documents of any description which refer
to
or relate in any way to such information and to return to the Company any of
its
equipment and property which may then be in the Employee’s possession or under
his control.
(c)
No
Removal of Information.
Except
as necessary to perform his job, under no circumstances shall the Employee
remove from the Company’s or Bank’s office any of the Company’s books, records,
documents, blueprints, customer lists, any other stored information whether
stored as paper, electronically or otherwise, or any copies thereof, without
the
written permission of the Company; nor shall the Employee make any copies of
such books, records, documents, blueprints, customer lists, or other stored
information for use outside of the Company’s offices except as specifically
authorized by the Company or as necessary to perform his job.
7
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. Further, Employee shall not without the written permission
of
the Company 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”) with respect to any of the
other services provided by the Company and its affiliates during the Term,
but
such permission by the Company shall not be unreasonably denied.
(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 the
purpose of Section 9 of this Section, “Noncompetition Period” shall mean the
period of employment hereunder and the period commencing on the date of
termination of employment and ending 18 months thereafter. If employee is found
to have violated the covenants contained herein during the Noncompetition Period
such Noncompetition Period shall be extended for a period equal to the amount
of
time the Employee is found to have been in non-compliance.
(c)
Geographic
Scope.
The
restrictions on competition set forth in Section shall apply to any county
in
the State of South Carolina or any county in any other state in which the
Company or 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.
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(d)
Providing
Copy of Agreement.
Employee shall provide a copy of this Agreement to any person or entity with
whom Employee interviews during the time limitations set forth in this Section
9(a).
(e)
Employee’s
Representation.
Employee
represents that his experience and capabilities are such that the provisions
of
this Section 9 will not unreasonably limit him in earning a livelihood in the
event that Employee’s employment with the Company terminated.
(f)
Obligations
Survive.
Employee’s obligations under Sections 8 and 9 shall survive any termination of
his employment with the Company.
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.
(a)
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.
(b)
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 determines to be fair and reasonable, it being
the
intent of each of the parties hereto be subject to an agreement that is
necessary for the protection of the legitimate interest of the Company and
it
successors or assigns and that is not unduly harsh in curtaining the legitimate
rights of the Employee. If the court declines to define less broad permissible
restrictions, the parties agree to submit to binding arbitration the permissible
scope of reasonable restrictions, pursuant to the South Carolina Uniform
Arbitration Act, and agree that such arbitration result shall be incorporated
into this Agreement and that this Agreement will be amended
accordingly.
(c)
Employee
agrees that if he breaches any of the covenants set forth in this Agreement,
Company shall be entitled to setoff its damages against any amount owed by
Company (or successor) to Employee and to cease making payments to Company
pending a resolution of the controversy. This Paragraph 10(c) shall in no way
limit the Company’s right to simultaneously seek and obtain injunctive relief as
set forth in Paragraph 10(a).
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 November 10, 1998 and the Employment Agreement
Amendment dated December 5, 2001, between Employee and the Company are 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, right and privileges
under such agreement.
9
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 (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 respective successors and assigns.
(d)
Amendment
of Agreement.
This
Agreement may not be amended except by an instrument in writing signed by the
parties hereto.
(e)
Insurance.
The
Company, at is 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.
(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.
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(i)
Governing
Law.
This
Agreement has been executed and delivered in the State of South Carolina, and
the laws of such state shall govern its validity, interpretation, performance
and enforcement.
(j)
Arbitration.
With
the
exception of enforcement of the covenants discussed in Sections 8 and 9 of
this
Agreement, all claims, disputes and other matters in question between the
Company, or it successors, and the Employee including those arising out of,
or
relating to, this Agreement or the validity, interpretation, enforceability
or
breach thereof, which are not resolved by agreement of the parties, shall be
subject to binding and mandatory arbitration pursuant to the South Carolina
Uniform Arbitration Act contained in S.C. Code §§ 15-48-10 et seq.,
as
amended from time to time.
Such
arbitration shall be held in Columbia, South Carolina and shall be conducted
in
accordance with the rules of the American Arbitration Association, and judgment
upon such award may be entered in any court having jurisdiction. The expenses
of
the arbitration shall be borne by the Company or its successor; however, each
party shall bear his or its own costs and attorney’s fees unless a statutory
cause of action provides for such an award.
IN
WITNESS
WHEREOF, the parties hereto have executed this Agreement as of the day and
year
first above written.
|
SCBT
FINANCIAL CORPORATION
|
|
| Date approved: November 1, 2006 | |
|
/s/
Xxxxxx X. Xxxx, Xx.
|
|
|
By:
Xxxxxx X. Xxxx, Xx.
|
|
|
Its:
CEO
|
|
|
EMPLOYEE
|
|
|
/s/
Xxxxxx X. Xxxx
|
|
|
Xxxxxx
X. Xxxx
|
11
