Exhibit 99.1
[FORM OF AGREEMENT]
THIS AGREEMENT IS SUBJECT TO ARBITRATION PURSUANT TO THE SOUTH
CAROLINA UNIFORM ARBITRATION ACT
STATE OF SOUTH CAROLINA )
) AMENDED AND RESTATED
COUNTY OF CHARLESTON ) EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (as amended and
restated, hereinafter referred to as the "Agreement") made and entered into as
of this ____ day of December, 2008, by and between Southcoast Community Bank,
(hereinafter the "Bank"), Southcoast Financial Corporation (the "Company") and
_________________ (hereinafter referred to as the "Employee").
WHEREAS, the Bank, the Company and the Employee entered into an
Employment Agreement dated as of ____________ (the "Original Agreement"); and
WHEREAS, the Bank, the Company and the Employee desire to amend the
Original Agreement in compliance with the recently enacted Internal Revenue Code
Section 409A and associated federal regulations; and
WHEREAS, the Original Agreement contained the following Recitals, which
the parties hereby reaffirm:
RECITALS:
A. The Employee is presently employed as the _________
_____________________________________ of the Bank and the _________ of
the Company.
B. The Employee has obtained substantial senior financial
management experience throughout his career, and can be expected to
make substantial contributions to the financial success of the Bank and
the Company and to contribute to the growth and development of the Bank
and the Company through his extensive knowledge and experience in the
business, affairs, and management of financial organizations such as
the Bank and the Company.
C. The Bank and the Company consider the retention of the
Employee in their service to be in their best interests in order to
insure and contribute to the continuity of management of the Bank and
the Company and to insure and contribute to the future progress and
financial success of the Bank and the Company.
D. The Bank and the Company recognize that in order to retain
the Employee's services, they must offer him compensation, benefits and
termination rights which executives of comparable background,
experience, ability and expertise receive for such an executive
position with a business organization of similar size and complexity;
and
WHEREAS, the parties desire to amend and restate the Original Agreement
setting forth the terms and conditions of the employment relationship among the
Bank, the Company and the Employee.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein set forth, the parties hereto amend and restate the Original
Agreement, as follows:
1. Employment. The Bank hereby employs the Employee in the capacity as
an officer having the title of _________________________________________________
and the Company hereby employs the Employee as a _______________________________
__________________, and the Employee hereby accepts such employment upon the
terms and conditions hereinafter set forth.
2. Term. The initial term of the Original Agreement was for three (3)
years beginning on the date of execution thereof. At the end of such initial
term, the Original Agreement automatically renewed annually for successive terms
of one year. Commencing on the date of execution of this Amended and Restated
Employment Agreement, the term of this Agreement shall be one year. At the end
of each anniversary of the date of execution of this Amended and Restated
Employment Agreement, the term of this Agreement shall be automatically extended
for one additional year unless the Employee is terminated or unless either party
gives 60 days written notice to the other prior to the expiration of the current
term that the term of this Agreement will not be so extended. References in this
Agreement to the term of this Agreement refer to the initial term and any
extended term.
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3. Compensation. The basic annual salary which the Bank shall pay to
the Employee for his services shall be not less than $_______, payable in equal
installments not less than monthly during the term of this Agreement. The Bank
shall review the basic salary at least annually, and shall provide for increases
as it deems appropriate in its sole discretion. To the extent not paid by the
Bank, such compensation shall be paid by the Company.
4. Benefits. In addition to the basic compensation hereinabove set
forth, the Bank agrees to pay or supply the following benefits:
(a) Life Insurance. The Bank shall provide Employee with the life
insurance benefits provided on Schedule A hereto.
(b) Health Insurance. The Bank shall provide the Employee with such
health and dental insurance benefits as may hereafter be made available to other
executive officers of the Bank.
(c) Disability. The Bank shall provide the Employee with disability
insurance in an amount equal at all times to not less than one-half of his
annual base salary.
(d) Retirement and Employee Benefit Plans. The Employee shall be
entitled to participate in any plan adopted by the Bank or the Company relating
to stock options, stock appreciation rights, stock purchases, pension, thrift,
profit sharing, bonus, performance award and incentive compensation, group life
insurance, medical insurance, education and other retirement or employee
benefits that the Bank or the Company may have already established, or may
hereafter adopt, for the benefit of the executive employees of the Employee's
class or all employees of the Bank or the Company, including executive employees
of the Employee's class.
(e) Disability/Salary Continuation. The Bank shall pay the Employee his
full salary then in effect and continue all benefits then in effect for a period
of one year after the Date of Termination (as hereafter defined) in the event of
the Employee's Disability. "Disability" or "Disabled" shall mean (i) the
Employee is unable to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment that can be expected to
result in death or can be expected to last for a continuous period of not less
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than 12 months; or (ii) the Employee is, by reason of any medically determinable
physical or mental impairment that can be expected to result in death or can be
expected to last for a continuous period of not less than 12 months, receiving
income replacement benefits for a period of not less than three months under an
accident and health plan covering employees of the Company; or (iii) the
Employee has been determined to be totally disabled by the Social Security
Administration or Railroad Retirement Board; or (iv) the Employee has been
determined to be disabled in accordance with a disability insurance program
provided by the Company or the Bank and in which Employee participates, provided
that the definition of disability applied under such disability insurance
program complies with the requirements of (i) or (ii) listed above.
(f) Other Benefits. The Bank shall provide the Employee all other
remunerations and fringe benefits as are available to executive officers of the
Bank, and any other benefits commensurate with the responsibility of and
functions performed by the Employee under this Agreement.
(g) Payment of Shortfall by Company. To the extent not provided by the
Bank, the benefits set forth in this Section 4 will be provided by the Company.
5. Duties. The Bank and the Company recognize the managerial and
executive ability of the Employee, and in recognition of those abilities, the
Bank designates the Employee as its ___________________________________________
_______ and the Company designates the Employee as a _________________________
_______________________, which titles carry with them the duties as specified in
the bylaws and resolutions of the Boards of Directors of the Bank and the
Company and as assigned by the Bank's President and CEO, or his designee. In
this capacity, the Employee is granted such authority and is responsible for
such duties as are commensurate with the authority being exercised and duties
being performed by the Employee immediately prior to the date of the execution
hereof and as may hereafter be designated by the Board of Directors of the Bank
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or the Company and as assigned by the Bank's President and CEO, or his designee.
The Employee shall perform his duties in accordance with such reasonable
standards established from time to time by the Board of Directors of the Bank
and the Company and as assigned by the Bank's President and CEO, or his
designee.
6. Termination of Employment.
(a) Termination by the Company and the Bank.
(i) Termination for Cause. The Employee shall be subject to
Termination for Cause. As used in this Agreement, "Termination for
Cause" shall mean termination on account of any of the following acts:
(A) the breach by Employee of any material provision of this
Agreement, provided that Bank gives the Employee written notice
of such breach and such breach is not cured within thirty (30)
days thereafter;
(B) the failure by the Employee to substantially perform his
duties under this Agreement (other than the Employee's inability
to perform, with or without reasonable accommodation, resulting
from his incapacity due to physical or mental illness or
impairment), after a demand for substantial performance is
delivered to him by the Bank, which demand specifically
identifies the manner in which the Employee is alleged to have
not substantially performed his duties;
(C) misconduct by the Employee (criminal, immoral or
otherwise) which is materially injurious to the Bank;
(D) the Employee's conviction of a felony or any crime of
moral turpitude;
(E) the commission by the Employee in the course of his
employment of an act of fraud, embezzlement, theft or dishonesty,
or any other illegal act or practice, which would constitute a
crime, (whether or not resulting in criminal prosecution or
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conviction), or any act or practice which has resulted in the
Employee becoming unbondable under the Bank's "banker's blanket
bond;"
(F) failure by the Employee to comply with the laws and
regulations applicable to the Bank which is materially injurious
to the Bank; or
(G) removal or permanent prohibition from participating in
the affairs of the Bank by an order or consent issued under
Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act.
Required Procedures for termination for Cause. The decision
of the Bank or the Company to terminate the Employee's employment
for Cause shall only be made in the following manner. The Chief
Executive Officer (CEO) of the terminating entity shall review
the acts or omissions constituting Cause. The Employee shall be
given notice of the acts or omissions constituting Cause. The
Employee shall be given an opportunity to be heard by the CEO in
order to rebut the existence of such acts or omissions.
Thereafter, termination shall be by written Notice of Termination
and specify an effective date of termination in such Notice of
Termination, which may be immediately. The Employee may be
suspended, with pay, by the CEO of the terminating entity prior
to or subsequent to the notice to the Employee of the acts or
omissions constituting Cause.
Effect of termination for Cause. The Employee shall have no
right to receive from the Bank or the Company, and shall not
receive from the Bank or the Company, compensation or other
benefits provided for herein or otherwise provided by the Bank or
the Company for any period after the date of Termination for
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Cause. Notwithstanding the foregoing provisions of this
paragraph, no Termination for Cause shall affect vested rights of
the parties hereto.
(ii) Termination Other Than For Cause.
(A) The Employee's employment may be terminated for any
reason or for no reason in the sole discretion of the Bank or the
Company.
Compensation and Benefits to be provided. Except as
otherwise limited herein or as otherwise limited by the
regulations of the Federal Deposit Insurance Corporation, the
Bank agrees that, in the event of its termination of the
Employee's employment other than for Cause prior to the
expiration of the term of this Agreement, Employee shall be
entitled to (1) Employee's Full Annual Compensation (as
hereinafter defined), and (2) the Benefits provided for in
Subsection 6(a)(ii)(D) of this Agreement, as such Full Annual
Compensation and Benefits are in effect immediately prior to
termination, for a period of one year, unless the Employee shall
become disabled as described in Subsection 4(e) hereof, in which
case the provisions of Subsection 4(e) shall apply. Compensation
to be paid pursuant to this Subsection 6(a)(ii)(A) and Benefits
required to be paid in cash pursuant to Subsection 6(a)(ii)(D)
shall be paid in equal monthly installments over the remaining
term of this Agreement.
(B) Any termination of Employee's employment by the Bank or
the Company without Cause and any resignation by the Employee,
each with a Date of Termination (as defined in Subsection 6(d))
at any time within 24 months following a Change in Control of the
Bank or the Company (as hereinafter defined), shall constitute an
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involuntary termination of employment by the Bank and the Company
other than Termination for Cause and shall entitle Employee to
the compensation and benefits provided in this Subsection
6(a)(ii)(B), but, in the case of resignation by the Employee,
only if such resignation is preceded by one or more of the
following events that occurs after the Change in Control: (1) any
material decrease, or series of decreases which taken as a whole
are material, in the nature or scope of the Employee's duties,
responsibilities and authorities, without the written consent of
the Employee as to each and every such decrease, from the greater
of those duties, responsibilities or authorities being exercised
and performed by the Employee immediately prior to the Change in
Control; or (2) any attempt by the Bank or the Company to
relocate the Employee to a location outside of South Carolina
without his written consent thereto given not more than one (1)
year prior thereto. Employee's termination of his employment for
any of the foregoing reasons shall constitute termination of
employment for "Good Reason."
Notice and Cure period. In order for the Employee's
resignation for Good Reason to constitute an involuntary
termination of employment by the Bank or the Company, the
Employee must give a Notice of Termination to the Company and the
Bank setting forth the existence of one or more of the conditions
described above in this Subsection 6(a)(ii)(B) within 90 days
after the initial existence of the condition, and the Company and
the Bank shall have 30 days thereafter to remedy the condition.
Compensation and Benefits to be provided. The compensation
and benefits which shall be paid and provided, respectively, to
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the Employee pursuant to this Subsection 6(a)(ii)(B) shall be
three times the Full Annual Compensation and Benefits provided
for in this Agreement. Such compensation and benefits shall be
paid in a lump sum within five business days after the Date of
Termination. Such payments shall be made and such benefits shall
be provided notwithstanding any other employment obtained by
Employee.
Change in Control Defined. For purposes of the foregoing,
the phrase "Change in Control" of the Bank or the Company shall
refer to acquisition in any manner of the ownership of shares of
the Bank or the Company having 51% or more of the total voting
power of the Company's or the Bank's common stock, by any person,
or persons acting as a group.
(C) "Full Annual Compensation" as used in this Subsection
6(a)(ii) shall mean (1) Employee's basic annual salary on the
Date of Termination or, if greater and following a Change in
Control, Employee's basic annual salary immediately prior to the
Change in Control, plus (2) the average of any bonuses and other
non-equity compensation paid for the three calendar years
immediately preceding the Date of Termination.
(D) In every case where the Employee is entitled to receive
benefits in accordance with this Subsection 6(a)(ii), "Benefits"
shall mean and be limited to life insurance, health and dental
insurance, and disability insurance as in effect immediately
preceding the Date of Termination or, if greater, immediately
preceding the effective date of a Change in Control, and shall
also mean the pre-tax cash value of all retirement plan
contributions made by the Company or the Bank for the benefit of
the Employee for the calendar year immediately preceding the Date
of Termination. Such Benefits may, at the option of the Bank, the
Company or any successor thereto, be provided by (1) a
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continuation of the Benefits without diminution, (2) substitution
of other policies, plans, goods or services affording
substantially identical coverage or value, or (3) cash payment in
the amount it would cost to provide the policies, plans, goods or
services affording substantially identical coverage or value to
the Employee.
(iii) Excess Parachute Payment. Notwithstanding the
foregoing, if the payments under Section 6(a)(ii), either
alone or together with other payments which the Employee has
the right to receive from the Bank and the Company, would
constitute a "parachute payment" (as defined in Section 280G
of the Internal Revenue Code of 1986, as amended (the
"Code")), such severance payment shall be reduced to the
largest amount as will result in no portion of the severance
payment under this Section 6 being subject to the excise tax
imposed by Section 4999 of the Code or the disallowance of a
deduction to the Bank under Section 280G(a) of the Code.
(b) Termination by Employee. The Employee may terminate his employment at
any time by giving written Notice of Termination to the Bank and the Company not
less than ninety (90) days prior to the Date of Termination. In the event of
such termination by Employee, other than under circumstances constituting Good
Reason under Subsection 6(a)(ii)(B), the Bank and the Company shall be obligated
only to continue to compensate and provide the benefits hereunder to Employee up
to the Date of Termination. This provision shall not be interpreted as in any
manner whatsoever limiting the vested rights of the Employee under any other
agreement between the Employee and the Bank or the Company, including, without
limitation, any retirement, deferred compensation, or fringe benefit agreement,
whether or not such agreements are in existence at the time of the execution
hereof.
(c) Required Suspension and Termination Provisions. Notwithstanding any
other provision of this Agreement, the following provisions are included in this
Agreement concerning its suspension and termination.
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(i) If the Employee is suspended or temporarily prohibited from
participating in the Bank's affairs by a notice served under 12 U. S. C.
Section 1818(e)(3) or (g)(1), the Bank's obligations under this Agreement
shall be suspended as of the date of service unless stayed by appropriate
proceedings. If the charges in the notice are dismissed, the Bank may in
its discretion (i) pay the Employee all or part of the compensation
withheld while the obligations under this Agreement were suspended and (ii)
reinstate (in whole or in part) any of such obligations which were
suspended.
(ii) If Employee is removed and/or permanently prohibited from
participating in the affairs of the Bank by an order issued under 12 U.S.C.
ss. 1818(e)(4) or (g)(1), all obligations of the Bank and the Company under
this Agreement shall terminate as of the effective date of the order.
(iii) If the Bank is in default (as defined in 12 U. S. C. Section
1813(x)(1)), all obligations under this Agreement shall terminate as of the
date of default.
(iv) Any payments made to the Employee pursuant to this Agreement, or
otherwise, are subject to and conditioned upon their compliance with 12
U.S.C. Section 1828(k) or any successor provision thereof and any
regulations promulgated thereunder.
Notwithstanding the provisions of this Subsection 6(c), no termination
pursuant to this subsection 6(c) shall affect vested rights of the parties
hereto.
(d) Date of Termination. "Date of Termination" shall mean:
(i) if the Employee's employment is terminated by reason of his death,
his date of death;
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(ii) if the Employee's employment is terminated for Disability, thirty
(30) days after Notice of Termination is given (provided that the Employee
shall not have returned to the performance of his duties as provided under
Section 4(e) hereof;
(iii) if the Employee's employment is terminated for Good Reason
pursuant to Subsection 6(a)(ii)(B), the 31st day following the date of
Employee's notice to the Bank of the existence of a condition constituting
a reason for termination under that Subsection, if the Bank shall have
failed to remedy the condition by the end of the 30th day following the
date of Employee's notice; or
(iv) if the Employee's employment is terminated by action of either
party for any other reason, the date specified in the Notice of
Termination.
(e) Notice of Termination. "Notice of Termination" shall mean a written
notice which shall include the specific termination provision under this
Agreement relied upon, and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Employee's
employment. Any purported termination of the Employee's employment hereunder by
action of either party shall be communicated by delivery of a Notice of
Termination to the other party, except in the event of Employee's death.
7. Relocation. The Bank and the Company hereby agree that the Employee
shall not be required to relocate his residence at any time during the term of
this Agreement without the Employee's written consent thereto given not less
than one (1) year prior thereto. Furthermore, Employee shall continue to make
his primary business headquarters in Mount Pleasant, South Carolina.
8. Confidentiality.
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(a) The Employee recognizes that his activities on behalf of the Bank
require considerable responsibility and trust. Relying on the ethical
responsibilities and undivided loyalty of the Employee, the Bank has and will
and the Company and its subsidiaries will in the future entrust the Employee
with highly sensitive confidential, restricted and proprietary information
involving Confidential Information (as defined below).
(b) For the purposes of this Agreement, "Confidential Information" means
any data or information, that is material to the Bank, the Company or the
subsidiaries of the Company, and not generally known by the public. To the
extent consistent with the foregoing definition, Confidential Information
includes (without limitation): (i) the profit and performance reports, pricing
policies, training manuals, marketing and pricing procedures, financing methods
of the Bank, the Company or the subsidiaries of the Company, and all other
business records of the Bank, the Company or the subsidiaries of the Company;
(ii) the identities of the customers of the Bank, the Company or the
subsidiaries of the Company, their specific demands, and their current and
anticipated requirements for the products and services of the Bank, the Company
or the subsidiaries of the Company; (iii) the business plans and internal
financial statements and projections of the Bank, the Company or the
subsidiaries of the Company; and (iv) the specifics of any specialized products
or services of the Bank, the Company or the subsidiary of the Company may offer
or provide to its customers.
(c) The Employee recognizes the proprietary and sensitive nature of the
Bank, the Company and its subsidiaries' Confidential Information. The Employee
agrees to abide by all of the Bank's and the Company's rules and procedures
designed to protect their Confidential Information and to preserve and maintain
all such information in strict confidence during the Employee's employment by
the Bank and as long thereafter as the Confidential Information remains, in the
sole opinion of the Bank, the Company and its subsidiaries, proprietary and
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confidential to the Bank, the Company and its subsidiaries. The Employee agrees
not to use, disclose or in any other way use or disseminate any Confidential
Information to any person not properly authorized by the Bank, the Company or
the subsidiaries of the Company.
9. Return of Materials. Upon the request of the Bank, and in any event,
upon the termination of the Employee's employment, the Employee must return to
the Bank, the Company or the subsidiaries of the Company and leave at the
disposal of the Bank, the Company or the subsidiaries of the Company, all
memoranda, notes, records, and other documents or electronic files pertaining to
the business of the Bank, the Company and the subsidiaries of the Company, or
the Employee's specific duties for such entities (including all copies of such
materials). The Employee must also return to the Bank, the Company and the
subsidiaries of the Company, and leave at the disposal of the Bank, the Company
and the subsidiaries of the Company, all materials involving any Confidential
Information of the respective entities.
10. Implementation. The covenants contained herein shall be construed as
covenants independent of one another, and as obligations distinct from any other
contract between the Employee and the Company or the Bank. Any claim the
Employee may have against the Company or the Bank shall not constitute a defense
to enforcement by the Bank of this Agreement. The covenants made by the Employee
herein shall survive termination of the Employee's employment, regardless of who
causes the termination and under what circumstances.
11. Restrictive Covenants. In consideration of the Bank's employment of the
Employee and the benefits provided hereby, the Employee agrees that in addition
to any other limitation: (i) for a period of twelve (12) months after the
termination of this Agreement by the Employee other than for Good Reason
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pursuant to Subsection 6(a)(ii)(B), or (ii) during the continuation of
compensation payments pursuant to Subsection 6(a)(ii)(A) above, whichever is
later, he will not, within a twenty-five (25) mile radius of any operating
office of the Company, any of its subsidiaries, or the Bank, manage, operate or
be employed by, participate in, or be connected in any manner with the
management, operation, or control of any banking business whether or not carried
on by a bank. The Employee further agrees, that for a period of twelve (12)
months after the termination of his employment hereunder by the Employee other
than for Good Reason pursuant to Subsection 6(a)(ii)(B) or the completion of
compensation payments pursuant to Subsection 6(a)(ii)(A) above, whichever is
later, he will not solicit the business or patronage, directly or indirectly,
from any customers of the Bank (or any other office of the Company or of a
subsidiary of the Company if Employee should have been employed by and located
at such office) and the Employee will not seek to or assist others to persuade
any employee of the Bank engaged in similar work or related to the Bank's work
to discontinue employment with the Bank or seek employment or engage in any
business of the Bank. Furthermore, the Employee will not communicate to any
person, firm or corporation any information related to customer lists, prices,
secrets or other Confidential Information which he might from time to time
acquire with respect to the business of the Bank, the Company, or its
subsidiaries, or any of their affiliates. The Employee agrees to disclose the
contents of this Agreement to any subsequent employer for a period of twelve
(12) months following termination of his employment hereunder, the termination
of this Agreement or completion of compensation payments pursuant to Subsection
6(a)(ii)(A) above, whichever is later.
12. Non-Disparagement. Neither the Employee nor the Company or the Bank
will disparage, portray in a negative light, or make any statement which would
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be harmful to, or lead to unfavorable publicity for, any of the Employee, the
Company or the Bank, or any of its or their current or former directors,
officers or employees, including without limitation, in any and all interviews,
oral statements, written materials, electronically displayed materials and
materials or information displayed on internet or intranet-related sites;
provided however, that this paragraph will not apply to the extent the Employee
or any agent of the Company or the Bank is making statements or pleadings in
litigation with each other, or when required by law or by order of a court or
other legal body having jurisdiction or when responding to any inquiry from any
governmental or regulatory agency or from any person to whom the Employee has
given the Company or the Bank as a reference.
13. Remedies for Breach of Employment Contract. Irreparable harm shall be
presumed if the Employee breaches any covenant of this Agreement. The faithful
observance of all covenants in this Agreement is an essential condition to the
Employee's employment, and the Bank, the Company and the subsidiaries of the
Company are depending upon absolute compliance. Damages would probably be very
difficult to ascertain if the Employee breached any covenant in this Agreement.
This Agreement is intended to protect the proprietary rights of the Bank, the
Company and the subsidiaries of the Company in many important ways. In light of
these facts, the Employee agrees that any court of competent jurisdiction should
immediately enjoin any breach of this Agreement, upon the request of the Bank,
the Company, the subsidiaries of the Company, and the Employee specifically
releases the Bank, the Company, and the subsidiaries of the Company, from the
requirement to post any bond in connection with a temporary or interlocutory
injunctive relief, to the extent permitted by law.
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14. Assignment. This Agreement shall be construed as an agreement for
personal services and shall not be subject to assignment by either party without
the written consent of both parties.
15. Stock Options and Rights. In the event of any termination of this
Agreement pursuant to section 6(a)(ii), outstanding stock options and stock
appreciation rights, and any and all rights under performance stock award plans,
restricted stock plans and any other stock option, or incentive stock plans
shall become immediately and fully exercisable for a period of sixty (60) days
following the last payment required by this Agreement to be made by the Bank or
the Company to Employee; provided, however, that no such option or right shall
be exercisable after the termination date of such option or right. The
provisions of this section shall be in addition to the Employee's rights granted
in connection with such stock options or other rights, and such rights and
options shall continue to be exercisable pursuant to their terms and their
governing plans.
16. Governing Law. The law of South Carolina shall govern this Agreement,
subject only to any conflicting federal statutes and regulations as they exist
or may be adopted or promulgated from time to time affecting financial
institutions whose deposit accounts are insured by the Federal Deposit Insurance
Corporation and their operations; in the event of such conflict, the appropriate
federal statutes and regulations shall govern this Agreement.
17. Arbitration. Unless otherwise provided by the regulations of the
Federal Deposit Insurance Corporation or otherwise provided in this Agreement,
any dispute or controversy, arising under or in connection with this Agreement
shall be settled exclusively by arbitration in Mount Pleasant, South Carolina,
by three arbitrators pursuant to the Federal Arbitration Act or the South
Carolina Uniform Arbitration Act, as applicable, in accordance with the rules of
the American Arbitration Association then in effect. Judgment may be entered on
the arbitrators' award in any court having jurisdiction. Notwithstanding the
foregoing, Employee, the Bank or the Company shall be entitled to seek
injunctive relief in any court of competent jurisdiction without initiating an
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arbitration proceeding. Further, Employee shall be entitled to seek specific
performance of any right to be paid until the Date of Termination during the
pendency of any dispute or controversy arising under or in connection with this
Agreement. Any civil action seeking injunctive relief, specific performance,
challenging an arbitration proceeding or award or otherwise related to this
Agreement will be instituted and maintained in the federal or state courts for
Charleston County, South Carolina, and the parties hereby consent to the
personal jurisdiction of such courts. Each party to any such arbitration or
judicial proceeding shall bear its own attorneys' fees and costs.
18. Binding Effect. This Agreement and the rights, powers and duties set
forth herein shall bind and inure to the benefit of the successors and assigns
of the parties hereto.
19. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to specific matters addressed herein,
and supersedes all prior inconsistent agreements, written or oral, with respect
to such specific matters.
20. Waiver. The failure of either party to insist in any one or more
instances upon performance of any terms or conditions of this Agreement shall
not be construed as a waiver of future performance of any such term, covenant or
condition, but the obligations of either party with respect thereto shall
continue in full force and effect.
21. Severability. All agreements, provisions and covenants contained herein
are severable, and in the event that any one or more of them shall be held to be
invalid, illegal or unenforceable in any respect by any court of competent
jurisdiction, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected thereby and this
Agreement shall be interpreted as if such invalid, illegal or unenforceable
agreements, provisions or covenants were not contained herein.
22. Indemnification. The Bank and the Company shall indemnify the Employee
to the extent of the indemnification provided for in any agreement, bylaw or
charter provision of the Bank or the Company, or any provision of law, rule or
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regulation, any of which may be applicable to the Employee or generally
applicable to other executive officers of the Employee's class or any lesser
class.
23. Payment Obligation. The Bank and the Company recognize that the
provisions of this Agreement, including the termination provisions, protecting
the Employee's rights to compensation and benefits in the event of a termination
hereof, other than Termination for Cause, leave of absence or Disability, are an
essential element of the basis of the bargain with the Employee. Accordingly,
all amounts payable by the Bank or the Company hereunder shall be paid without
notice or demand. The Employee shall not be obligated to seek other employment
in mitigation of the amounts payable or arrangements made under any provision of
this Agreement; provided, however, that the obtaining of any such other
employment shall reduce the Bank's and the Company's obligations to make the
payments and provide at its expense the benefits required to be paid and
provided under this Agreement by an amount equal to the payments or benefits
received from such other employment, and Employee shall promptly notify the
Company or the Bank of his employment and the receipts therefrom.
24. Notices. Any notices to be given hereunder by either party to the other
may be effected either by personal delivery in writing or by mail, registered or
certified postage prepaid, with return receipt requested. Mailed notices shall
be addressed to the parties at the addresses appearing herein, but each party
may change its address by written notice in accordance with this paragraph.
Notices delivered personally shall be deemed communicated as of actual receipt;
mailed notices shall be deemed communicated as of five (5) days after mailing.
TO THE BANK: Chairman of the Board of Directors
Southcoast Community Bank
000 Xxxxxxx Xxxxx Xxxxxxxxx
Xx. Xxxxxxxx, X.X. 00000
TO THE COMPANY: Chairman of the Board of Directors
Southcoast Financial Corporation
000 Xxxxxxx Xxxxx Xxxxxxxxx
Xx. Xxxxxxxx, X.X. 00000
TO THE EMPLOYEE: _________________________
Southcoast Community Bank
530 Xxxxxxx Xxxxx Boulevard
Mt. Pleasant, S.C. 29464
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25. Section 409A Savings Clause. Despite any contrary provision of this
Agreement, if when the Employee's employment terminates the Employee is a
"specified employee," as defined in section 409A of the Internal Revenue Code,
and if any payments or benefits under this Agreement will result in additional
tax or interest to the Employee because of section 409A, the Employee shall not
be entitled to the payments or benefits until the earliest of (x) the date that
is at least six months after termination of the Employee's employment for
reasons other than the Employee's death, (y) the date of the Employee's death,
or (z) any earlier date that does not result in additional tax or interest to
the Employee under section 409A. As promptly as possible after the end of the
period during which payments or benefits are delayed under this provision, the
entire amount of delayed payments shall be paid to Employee in a single lump
sum. References in this Agreement to section 409A of the Internal Revenue Code
of 1986 include rules, regulations and guidance of general application issued by
the Department of the Treasury under such section 409A.
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IN WITNESS WHEREOF, the Bank and the Company have duly executed this
Agreement by their duly authorized corporate officers set forth below and the
Employee has duly executed this Agreement as of the day and year first above
written.
WITNESSES: SOUTHCOAST COMMUNITY BANK
By:----------------------------------------
------------------------------- Its: Chairman of the Board of Directors
-------------------------------
As to the Bank
SOUTHCOAST FINANCIAL CORPORATION
By:----------------------------------------
------------------------------- Its: Chairman of the Board of Directors
-------------------------------
As to the Company
------------------------------- -------------------------------------------
________________________
-------------------------------
As to the Employee
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SCHEDULE A
(1) Life Insurance Benefits:
