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EXHIBIT 10.12
CONSULTING AGREEMENT BETWEEN COMMUNITY BANK & TRUST COMPANY
AND XXXX X. XXXXXXX
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CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made and entered into
this 4th day of June, 1998, by and between Community Bank & Trust Company
(hereinafter, the "Bank"), and Xxxx X. Xxxxxxx (hereinafter, "Xxxxxxx").
Xxxxxxx presently serves as the Chief Financial Officer of the Bank.
Pursuant to a letter agreement between Xxxxxxx and the Bank of even date
herewith (the "Letter Agreement"), Xxxxxxx has resigned from employment with the
Bank, effective upon the closing (the "Closing") of the sale of the Bank to
Carolina First BancShares, Inc. ("Carolina First") pursuant to an Agreement and
Plan of Merger between the Bank and Carolina First dated as of June 4, 1998 (the
"Merger Agreement").
Following the Closing, the Bank desires to engage Xxxxxxx in the
capacity set forth herein, in accordance with the terms and conditions of this
Agreement. Xxxxxxx is willing to serve as such in accordance with the terms and
conditions of this Agreement.
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Effective Time. This Agreement shall be effective as of the
effective date and time (the "Effective Time") of the merger (the "Merger")
provided for in the Merger Agreement.
2. Engagement. Xxxxxxx is hereby engaged at the Effective Time as a
consultant to the Bank and will provide the services described in Section 4
below.
3. Engagement Period. Unless earlier terminated herein in accordance
with Section 6 hereof, Xxxxxxx'x engagement under this Agreement shall begin at
the Effective Time and extend for a period (the "Engagement Period") ending on
the date which is nine (9) months after the Effective Time.
4. Extent of Service; Duties. During the Engagement Period, Xxxxxxx
agrees to devote substantial time and attention to the performance of his duties
hereunder and to make himself reasonably available for consultation with
Carolina First and the Bank on matters pertaining to the business of the Bank.
Pursuant to this Agreement, Xxxxxxx agrees to assist the Bank with respect to:
(i) Conversion of the Bank's data processing systems following the
Merger;
(ii) Tax reporting with respect to fiscal year 1998;
(iii) Year 2000 compliance issues;
(iv) Regulatory and other reporting; and
(v) Such other operational and business issues as the Bank may
reasonably request.
For all purposes hereof, Xxxxxxx shall be an independent contractor and not an
employee or officer of Carolina First, the Bank, or any affiliates or
subsidiaries thereof.
5. Compensation. During the Engagement Period, the Bank will pay to
Xxxxxxx $68,000, less any required tax and other withholdings, payable in equal
monthly installments ("Compensation").
6. Termination of Engagement.
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(a) Termination by the Bank. The Bank may terminate Xxxxxxx'x
consulting engagement during the Engagement Period for any reason, with or
without cause. Xxxxxxx'x engagement shall terminate automatically upon Xxxxxxx'x
death during the Engagement Period.
(b) Termination by Xxxxxxx. Xxxxxxx may at any time resign his
consulting engagement for the remainder of the Engagement Period.
7. Obligations of the Bank upon Termination.
(a) Termination by the Bank. If, during the Engagement Period, the
Bank shall terminate Xxxxxxx'x consulting engagement, then in consideration of
(i) Xxxxxxx'x services rendered pursuant to this Agreement prior to such
termination, (ii) Xxxxxxx'x covenants contained in Section 8 hereof, and (iii)
Xxxxxxx'x covenants contained in Section 3 of his Shareholder's Agreement with
Carolina First, dated as of the date hereof (the "Shareholder's Agreement"):
(i) if Xxxxxxx'x engagement is terminated by reason of a
breach of his obligations to the Bank, which breach cannot be cured or has not
been cured within 30 days' written notice of such breach, the Bank shall pay to
Xxxxxxx, in a lump sum in cash within 30 days after the Date of Termination,
the sum of Xxxxxxx'x Compensation through the Date of Termination to the extent
not theretofore paid ("Accrued Obligations"); and
(ii) if Xxxxxxx'x engagement is terminated otherwise than by
reason of a breach of his obligations to the Bank, the Bank shall pay to
Xxxxxxx, in a lump sum in cash within 30 days after the Date of Termination, the
Accrued Obligations, and the Bank shall continue to pay to Xxxxxxx his
Compensation in accordance with Section 5 hereof for the period beginning on the
date of his termination and ending on the last day of the scheduled Engagement
Period (the "Remaining Engagement Obligations"); provided, that, if Xxxxxxx'x
engagement is terminated by reason of Xxxxxxx'x death during the Engagement
Period, the Accrued Obligations and Remaining Engagement Obligations shall be
paid to Xxxxxxx'x estate in a lump sum in cash within 30 days of the Date of
Termination.
(b) Termination by Xxxxxxx. If, during the Engagement Period,
Xxxxxxx shall terminate this Agreement then in consideration of Xxxxxxx'x
services rendered prior to such termination and of Xxxxxxx'x covenants contained
in Section 8 hereof, the Bank shall pay to Xxxxxxx in a lump sum in cash within
30 days after the Date of Termination the Accrued Obligations, but no more.
8. Restrictive Covenants.
(a) Restriction on Disclosure and Use of Confidential Information.
Xxxxxxx covenants and agrees to treat as confidential and not to disclose and to
use only for the advancement of the interests of Carolina First and the Bank all
information, plans, records, trade secrets, business secrets, and confidential
or other data of Carolina First and/or the Bank, submitted to Xxxxxxx or
compiled, received, or otherwise discovered by Xxxxxxx from time to time in the
course of his engagement for use in Carolina First's or the Bank's business,
which Xxxxxxx knows to have been acquired by him in confidence or which he knows
would not otherwise be available to competitors of Carolina First or the Bank,
or to members of the public and which would not otherwise become known to said
competitors or members of the public. For purposes of this Section 8, the term
"Carolina First" shall also include Carolina First's subsidiaries and other
affiliates.
(b) Return of Property. Xxxxxxx agrees that upon termination of his
engagement with the Bank, for any reason, voluntary or involuntary, with or
without cause, he will immediately return to Carolina First and the Bank any
property, customer lists, shareholder lists (of Carolina First and the Bank),
information, forms, formulae, plans, documents or other written or computer
material or data, software or firmware, or copies of the same, belonging to
Carolina First, the Bank or its affiliates, or any of their customers, within
his possession, and will not at any time thereafter copy, reproduce or otherwise
facilitate the future disclosure of the same. Xxxxxxx further agrees that he
will not retain or use for his account at any time any trade names, trademark,
service xxxx,
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or other proprietary business designation used or owned in connection with the
business of Carolina First, the Bank or their affiliates or subsidiaries.
(c) Nonsolicitation of Customers and Employees. Following
termination of his engagement, and for two (2) years thereafter, Xxxxxxx shall
not (i) use any information obtained as a result of his engagement with the Bank
or his prior employment by the Bank to solicit any business of any customers, or
(ii) solicit the employment of any employees of the Bank, Carolina First, or
their affiliates or subsidiaries.
9. Representations and Warranties. Xxxxxxx hereby represents and
warrants to the Bank that Xxxxxxx'x execution of this Agreement and performance
of his obligations hereunder will not violate the terms or conditions of any
contract or obligation, written or oral, between Xxxxxxx and any other person or
entity.
10. Assignment and Successors.
(a) Xxxxxxx. This Agreement is personal to Xxxxxxx and without the
prior written consent of the Bank shall not be assignable by Xxxxxxx otherwise
than by will or the laws of descent and distribution. This Agreement shall inure
to the benefit of and be enforceable by Xxxxxxx'x legal representatives.
(b) The Bank. This Agreement shall inure to the benefit of and be
binding upon the Bank and its successors and assigns. As used in this Agreement,
"the Bank" shall mean the Bank as hereinbefore defined and any successor to its
business and/or assets as aforesaid which assumes and agrees to perform this
Agreement, whether by operation of law or otherwise.
11. Miscellaneous.
(a) Waiver. Failure of either party to insist, in one or more
instances, on performance by the other in strict accordance with the terms and
conditions of this Agreement shall not be deemed a waiver or relinquishment of
any right granted in this Agreement, unless such waiver is contained in a
writing signed by the party making the waiver.
(b) Severability. If any provision or covenant, or any part
thereof, of this Agreement should be held by any court to be invalid, illegal or
unenforceable, either in whole or in part, such invalidity, illegality or
unenforceability shall not affect the validity, legality or enforceability of
the remaining provisions or covenants, or any part thereof, of this Agreement,
all of which shall remain in full force and effect.
(c) Other Agents. Nothing in this Agreement is to be interpreted as
limiting the Bank from employing other personnel on such terms and conditions as
may be satisfactory to it.
(d) Entire Agreement. Beginning at the Effective Time and except as
specifically provided herein, in the Letter Agreement or in the Shareholder's
Agreement, this Agreement contains the entire agreement between the Bank and
Xxxxxxx with respect to the subject matter hereof, and, except as provided to
the contrary herein, it supersedes and invalidates any previous agreements or
contracts between them which relate to the subject matter hereof; provided,
however, that this Agreement does not supersede or invalidate the Letter
Agreement.
(e) Governing Law. Except to the extent preempted by federal law,
and without regard to conflict of laws principles, the laws of the State of
North Carolina shall govern this Agreement in all respects, whether as to its
validity, construction, capacity, performance or otherwise.
(f) Notices. All notices, requests, demands and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given if delivered or three days after mailing if
mailed, first class, certified mail, postage prepaid:
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To the Bank: Community Bank & Trust Company
0 Xxxxx Xxxx Xxxxxx
Xxxxxx, Xxxxx Xxxxxxxx 00000
Facsimile No. (000) 000-0000
Attention: President
To Xxxxxxx: Xxxx X. Xxxxxxx
000 Xxxx Xxxxx Xxxxx
Xxxxxx, Xxxxx Xxxxxxxx
Any party may change the address to which notices, requests, demands and other
communications shall be delivered or mailed by giving notice thereof to the
other party in the same manner provided herein.
(g) Amendments and Modifications. This Agreement may be amended or
modified only by a writing signed by both parties hereto, which makes specific
reference to this Agreement.
(h) Headings. Headings, titles and captions contained in this Agreement
are inserted only as a matter of convenience and reference and in no way define,
limit, extend, or describe the scope of this Agreement or the intent of any
provisions hereof.
(signatures on following page)
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the date first above written.
WITNESS COMMUNITY BANK & TRUST COMPANY
/s/ Xxxxxxx X. Xxxx By: /s/ Xxxx X. Xxxx
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Title: Vice President
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WITNESS XXXX X. XXXXXXX
/s/ Xxxxxx X. Xxxxxxx /s Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
