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EXHIBIT 10.9
ARBITRATION NOTICE:
THIS AGREEMENT IS SUBJECT TO ARBITRATION PURSUANT TO THE SOUTH CAROLINA UNIFORM
ACT (SC CODE SS.15-48-10 ET SEQ.) AND ANY AMENDMENTS THERETO, AS MODIFIED
HEREIn.
EMPLOYMENT CONTRACT
THIS EMPLOYMENT AGREEMENT, entered into the 4th day of March, 2000, by
and between Beach First National Bancshares, Inc. and Beach First National Bank,
hereinafter referred to as "Bank", and Xxxx Xxxxxxxx, hereinafter referred to as
the "Executive".
W I T N E S S E T H T H A T:
WHEREAS, the Bank desires to employ Executive as the President and CEO
of Beach First National Bank and President of Beach First National Bancshares,
Inc., and Executive desires such employment upon the terms and conditions set
forth herein below.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements set forth herein, the parties agree as follows:
1. Employment: The Bank agrees to employ Executive as President
and Chief Executive Officer of Beach First National Bank and President of Beach
First National Bancshares, Inc., for a period of two (2) years commencing on
March 20, 2000, unless terminated by either party in accordance with the terms
herein. In the event Change in Control of the Bank occurs within the two (2)
year employment period, the Executive's employment will automatically extend for
an additional three (3) years. For the purposes of this Contract, a Change in
Control of the Bank shall mean that as of the date of this Contract, there is a
change in the members of the Board of Directors in that a majority of the
members are new members and have never served as members of the Bank Board or
that the Shareholders of the Bank approved a merger, consolidation or
reorganization unless such merger, consolidation or reorganization is as a
result of a complete liquidation or dissolution of the Bank or an agreement for
the sale or other disposition of all or substantially all of the assets of the
Bank to any entity other than a transfer to a subsidiary of the Bank. In the
event there occurs a change in control, any restrictions on any outstanding
incentive awards (included restricted stock), granted to the Executive under any
incentive plan or arrangement shall lapse and such incentive award or awards
shall immediately become one hundred (100%) percent vested; all stock options
and stock appreciation rights granted to the Executive shall become immediately
exercisable and shall become one hundred (100%) percent vested; and any
performance units granted to the Executive shall become one hundred (100%)
percent vested.
2. Performance: During the term of this Contract and any renewals
or extensions hereof, if any, Executive agrees to devote substantially all of
his full business time, attention and efforts to the performance of his duties
for the Bank, it being understood that the Executive's
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duties are executive and administrative and subject to definition and direction
by the Bank's Board of Directors. Provided, nothing herein contained shall
restrict or prevent Executive from personally, on his own account and solely for
his own benefit, investing in stocks, bonds, commodities, real estate or other
forms of investment and provided further, that Executive may engage in other
activities, such as professional, charitable, educational, religious and similar
types of organizations, speaking engagements, which are not, or are not likely
to become, in competition, directly or indirectly, with the Bank, and similar
type activities to the extent that such other activities do not inhibit or
prohibit the performance of Executive's duties or conflict with the business of
the Bank.
The Executive shall use his best efforts to assure (1) that Beach First
National Bank is operated in a manner that will achieve satisfactory ratings in
reports of examination by the Office of the Comptroller of the Currency and (2)
that the Bank and its holding company comply with the reporting requirements of
the applicable government agencies.
3. Compensation: As remuneration for the full-time services, the
Executive shall receive a salary of One Hundred Twenty-five and no/100
($125,000.00) Dollars per annum from which the appropriate employment taxes
shall be paid and said salary shall be paid bi-weekly.
4. Bonuses: On January 31 following the first year of the
agreement, the Executive will receive an eight (8%) percent cash bonus of the
net pre-tax income of the Bank for the year 2000. On January 31 following the
second year of the contract, the Executive will receive a five (5%) percent cash
bonus of the net pre-tax income of the Bank for the year 2001. As used in this
Section "net pre-tax income" shall mean income computed according to generally
accepted accounting principles plus the amount of any accrual for the bonus that
may be due to the Executive under this Section.
5. Other Benefits: The Bank shall make available to the Executive
the life insurance, dental and health insurance, disability insurance,
retirement benefits and such other benefits or plans as are provided to the Bank
employees and the Executive may participate in said programs if eligible and the
cost for participation will be the same as applicable to all other similarly
situated employees. If the Executive is continuously employed by the Bank for
ten (10) years and then leaves such employment, the Executive will be permitted,
to the extent allowed by the applicable insurers/providers, to continue to
participate in health and dental insurance and other employee benefits, at his
own expense (this obligation shall survive the termination of this Agreement).
In addition, the Bank shall designate the Executive as the authorized
user of the Dunes Club membership for so long as the Executive remains the
President and CEO of Beach First National Bank.
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6. Vacation: The Executive may take the minimum amount of
vacation permitted in accordance with the then applicable policies of the Office
of the Comptroller of the Currency, which shall be a minimum of fifteen (15)
days annually.
7. Moving Expenses: The Executive shall be reimbursed his
reasonable moving expenses from Charlotte, North Carolina to Myrtle Beach, South
Carolina. He shall obtain two (2) estimates of his moving expenses and present
them to the Bank Personnel Committee for approval. The Executive will also be
eligible for temporary housing for a period of ninety (90) days in the maximum
amount of Three Thousand and no/100 ($3,000.00) Dollars. Executive must present
invoices or receipts for any reimbursement hereunder.
8. Grant of Options: The Bank will grant to the Executive options
under the Bank's incentive stock option plan to purchase five thousand (5,000)
shares of the Bank's common stock for an exercise price of Twelve and 50/100
($12.50) Dollars per share; provided, however, that options for two thousand
five hundred (2,500) shares shall not be exercisable for one (1) year and shall
lapse and not ever be exercisable if during the year Beach First National Bank
receives a less than satisfactory overall rating on a safety and soundness
examination conducted by the Office of the Comptroller of the Currency and the
Board of Directors does not find that the Executive made reasonable efforts to
avoid such a rating and is taking appropriate steps to cure the deficiencies
which led to such rating; and, provided further, that the options for the other
two thousand five hundred (2,500) shares shall not be exercisable for two (2)
years and shall likewise lapse if a less than satisfactory rating is received
during the second year and the Board of Directors not make such a funding.
Provided however, that if the Bank does not meet the criteria for any year, the
options may vest in the sole discretion of the Board of Directors and the Board
shall notify the Executive in writing if the options are to be vested. In
addition:
1. Options shall be subject to immediate vesting in the
event of a change in control;
2. All options shall be exercisable in accordance with
the Bank's stock option plan, as may be amended from
to time.
3. All options shall be exercisable at any time during
the ten (10) years following their vesting at the
Twelve and 50/100 ($12.50) Dollars per share price;
except all unexercised options will expire thirty
(30) days after termination of employment other than
as a result of death. In such event, Executive's
representative shall have the right to exercise said
options within six (6) months thereafter; and
4. All options are to be non-transferrable and
non-assignable except upon death and then only by
Executive's Will.
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In addition, the parties understand that the Bank may adopt an
incentive stock option plan after the effective date of this Agreement.
9. Expenses: The Executive shall be promptly reimbursed, against
presentation of vouchers or receipts, for all authorized expenses properly and
reasonably incurred by him on behalf of the Bank. In addition, the Bank will
provide the Executive with an automobile with approval of the Bank Personnel
Committee.
10. Confidential Information and Related Matters: Executive
acknowledges that the Bank has information which is proprietary, confidential
and information which constitutes trade secrets which the Bank uses in its
business and which is essential to the Bank's continued ability to compete and
be successful. Executive also acknowledges that the release of such information
would cause serious and irreparable harm to the Bank's business and the Bank has
expended considerable time, resources and capital in the development of this
information.
The term "Trade Secrets", shall be defined as set forth in the South
Carolina Uniform Trade Secrets Act which defines Trade Secrets as information,
including a formula, pattern, compilation, program, device, method, technique,
or process that (i) derives independent economic value, actual or potential,
from not being generally known to, and not being readily ascertainable by proper
means by other persons who can obtain economic value from its disclosure or use,
and (ii) is subject to efforts that are reasonable under the circumstances to
maintain its secrecy. The term "Confidential Information", shall mean Bank
materials and information to which the public does not have ready access to and
the Executive receives access or which Executive develops, individually or in
collaboration with others, as a result of or in the course of his employment or
through the use of any of Bank's facilities or resources. The following
constitutes "Trade Secrets" and "Confidential Information":
1. The internal computer software and Bank designed
programs utilized for marketing development, sales,
customer and event profiles;
2. Marketing and advertising plans and techniques,
purchasing information, price lists, price policies,
vendors' lists, profit margin information, quoting
procedures, daily, weekly, monthly and yearly
financial reports, customer profiles, customer
contacts, security procedures and existing and
potential customer data;
3. Personnel information such as employee's names and
addresses, salary and wage information, performance
criteria and job descriptions, performance
evaluations, personnel forms and procedures, training
programs and procedures;
4. All contracts, proposals, and accounts with vendors,
suppliers, and customers;
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5. Private telephone numbers, facsimile numbers and
e-mail's;
6. Customer/account lists/databases for business
contacts.
Confidential information shall not include any materials or information
to the extent that such materials or information are publicly known (through no
wrongful act of Executive) or generally utilized by others engaged in the same
business or activities as the Bank or were known by Executive but not as a
result of due to his employment hereunder. Failure to designate any Confidential
Information as "confidential" shall not affect its status as Confidential
Information under the terms of this Contract.
Executive agrees that during the term of his employment, Executive
shall not use or disclose any Trade Secrets or Confidential Information of the
Bank, except as an employee of the Bank and with the consent of the Bank.
11. Covenant Not to Solicit Bank's Customers: During Executive's
employment and in the event of termination, for whatever reason, for a period of
two (2) years thereafter Executive will not directly or indirectly, alone or in
association with or on behalf of any other person or entity, solicit, divert or
take away or attempt to solicit, divert or take away from Beach First National
Bank any of its customers or potential customers for any business purpose
similar to the Bank except in the course of performing duties assigned to him or
her by the Bank. "Customers" shall mean any person, firm, corporation or other
entity for which Bank has performed services during the three (3) year period
immediately preceding Executive's termination. "Potential customers" shall mean
any person, firm, corporation or other entry which Bank has solicited or
identified for solicitation during Executive's employment with Bank.
12. Covenant Not to Compete: For a period of two (2) years after
the termination of employment, if such termination is by the Bank for cause as
set out in Section 13 or by the Executive for any reason other than a material
breach of this Agreement by the Bank, Executive will not, directly or
indirectly, for himself or on behalf of, or in conjunction with, any other
person, persons, employer, partnership or corporation be engaged or be employed
in a similar business or venture as the Bank' business in which Executive was
employed by Bank within the County of Horry.
Executive acknowledges that the two (2) year restriction and the
geographical restriction are fair and reasonable for the protection of the Bank.
The restrictions do not impose any undue hardship and would not deprive
Executive of the ability to earn a livelihood.
13. Termination: The Bank shall have the right to terminate this
Agreement for cause if any of the following events occur and the Executive is
given not less than seven (7) days notice that the Bank proposes to terminate
for cause and the Executive is given the opportunity to
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appear before the Board of Directors of the Bank and, if the event is curable,
the Executive is given a reasonable opportunity to cure:
1. The permanent disability of the Executive;
2. Executive's failure or refusal to comply with the
policies, standards and regulations of the Bank from
time to time established by the Board of Directors;
3. Executive's fraud, dishonesty or other misconduct in
the performance of his duties on behalf of the Bank;
4. The Executive is convicted of a felony or any other
crime involving fraud or dishonest, or any act of
misconduct which relates directly or indirectly to
the duties of the Executive;
5. A judgment is entered against Executive for:
embezzlement, fraud, breach of trust, theft,
violation of laws respecting controlled substances or
other misconduct which adversely affects the Bank or
the Executive's ability to perform his duties under
this Agreement and such judgment becomes final and
unappealable.
6. Any acts or conduct which amount to fraud,
dishonesty, willful misconduct, or unethical behavior
which adversely affects the Bank or the Executive's
ability to perform his duties under this Agreement;
7. Executive becomes bankrupt or insolvent;
8. Absenteeism not related to injury, illness, sickness
or permitted vacation.
14. Automatic Termination: The Bank has no obligation to provide
Executive notice more than once for any acts or matters for which Executive has
received any written warning or for which Executive has been provided an
opportunity to cure. In such event, termination can be automatic. Except for the
Bank's obligation to pay accrued benefits or salary earned, this Agreement shall
terminate upon the death of the Executive.
15. Arbitration: In the event of any controversy or claim arising
out of or relating to this Agreement, or the breach, termination or validity
thereof, the parties will attempt in good faith to resolve such controversy or
claim. If the matter has not been resolved within sixty (60) days of the
commencement of such discussions (which period may be extended by mutual
agreement), then the parties hereby agree to immediately submit the controversy
to binding arbitration. The arbitration shall be conducted by a single
arbitrator in accordance with the American Arbitration Association. Judgment
upon the award rendered by the arbitrator may be entered by a court having
jurisdiction thereof. Arbitration shall take place in Horry County,
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South Carolina. Each of the parties shall use all reasonable efforts to insure
that any arbitration proceeding is completed with in sixty (60) days following
notice of a request for arbitration hereunder.
16. Board of Directors: The Bank will cause the Executive to be
elected to the Board of Directors of the Bank as a voting member and the
Executive shall serve thereon during his employ hereunder. The Bank will cause
the Executive to be a management nominee for election to the Bank's Board of
Directors during the term of this Agreement. Upon termination of Executive's
employment hereunder, Executive shall automatically resign any positions with
the Bank including Board membership.
17. Payment by the Bank: In the event that any payment required
under this Agreement would be considered a "golden parachute payment" under 12
C.F.R. ss.359.1, the Bank shall not be obligated to make such payment at such
time but shall defer making such payment until such time as the making of the
payment would not be considered to be a "golden parachute payment."
18. Continuation of Employment: Not later than eighteen (18)
months after the date of this Agreement the parties agree to meet and discuss in
good faith the continuation of the Executive's employment after the term of this
Agreement.
19. Governing Law: This Agreement shall be governed by and
construed with the laws of the State of South Carolina without regard to
conflicts of laws provisions thereof.
20. Prior Agreements: This Agreement supersedes any prior
agreements or understandings by and/or between the parties and constitutes the
entire agreement between the parties and may be modified only by a writing
signed by all of the parties hereto.
21. Notice: For the purposes of this Agreement, notices and all
other communications provided for in the Agreement shall be in writing and shall
be deemed duly given when delivered or mailed by the United States Certified or
Registered Mail, Return Receipt Requested, Postage Prepaid, addressed as
follows:
Beach First National Bank
0000 Xxxxx Xxx Xxxxxx
Xxxxxx Xxxxx, Xxxxx Xxxxxxxx 00000
Xxxx Xxxxxxxx
c/o Beach First National Bank
0000 Xxxxx Xxx Xxxxxx
Xxxxxx Xxxxx, Xxxxx Xxxxxxxx 00000
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or to such other address as either party may have furnished the other in writing
in accordance herewith except that notices or chance of address shall be
effective only upon receipt.
IN WITNESS WHEREOF, Bank and the Executive have caused this instrument
to be executed on the date first above written.
Bank:
Beach First National Bancshares, Inc.
/s/ Xxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx III
------------------------------ --------------------------------------
/s/ Xxx X. Xxxxx Its: Chairman
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Beach First National Bank
/s/ Xxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx III
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/s/ Xxx X. Xxxxx Its: Chairman
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Executive:
/s/ Xxxxx Xxxxxxx /s/ Xxxxxx X. Xxxxxxxx, III
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/s/ Xxx X. Xxxxx Xxxx Xxxxxxxx
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STATE OF SOUTH CAROLINA )
) PROBATE
COUNTY OF HORRY )
PERSONALLY appeared before me the undersigned witness and made oath
that (s)he saw the within named Bank by its Chairman, Xxxxxxx X. Xxxxxx, III
sign, seal and as its act and deed deliver the within written Agreement; and
that (s)he with the other witness subscribed above witnessed the execution
thereof.
/s/ Xxx X. Xxxxx
----------------------------
Xxx X. Xxxxx
SWORN to before me this 4th
day of March, 2000
Xxxxx X. Xxxxxxxxx (LS)
Notary Public for South Carolina
My Commission Expires: August 14, 0000
XXXXX XX XXXXX XXXXXXXX )
) PROBATE
COUNTY OF HORRY )
PERSONALLY appeared before me the undersigned witness and made oath
that (s)he saw the within named Xxxx Xxxxxxxx sign, seal and as his/her act and
deed deliver the within written Agreement; and that (s)he with the other witness
subscribed above witnessed the execution thereof.
/s/ Xxx X. Xxxxx
--------------------------
Xxx X. Xxxxx
SWORN to before me this 4th
day of March, 2000
Xxxxx x. Xxxxxxxxx (LS)
Notary Public for South Carolina
My Commission Expires: August 14, 2006
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