Exhibit 10.8
Severance Agreement of Xxxxx X. Xxxxxx
STATE OF SOUTH CAROLINA )
) SEVERANCE AGREEMENT
COUNTY OF CHARLESTON )
THIS SEVERANCE AGREEMENT ("the Agreement") is entered into this 23rd day of
January 2002, by and between Tidelands Bancshares, Inc., a South Carolina
corporation (the "Employer"), which is the proposed holding company for
Tidelands National Bank (Proposed), a proposed national bank (the "Bank") (the
Employer and the Bank being referred to herein collectively as the "Released
Parties") and Xxxxx X. Xxxxxx, an individual resident of South Carolina (the
"Employee").
WHEREAS, Employee is the President and a director of Employer; and
WHEREAS, Employer has been in the process of organizing the Bank; and
WHEREAS, Employee is also an organizer of the Bank and agreed to serve as
President and Chief Executive Officer of the Bank; and
WHEREAS, Employer, the Bank and Employee entered into an Employment
Agreement dated March 7, 2002 (the "Employment Agreement"); and
WHEREAS, Employee desires to resign from all positions he holds with
Employer and the Bank, and for his employment to terminate, effective December
17, 2002; and
WHEREAS, Employee, Employer and the Bank desire to enter into this
Agreement in order to formalize Employee's resignation and the promises and
representations related thereto.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Employee, Employer and
the Bank hereby agree as follows:
1. Resignation. Employee hereby resigns from any and all positions he holds
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with Employer and the Bank, including his positions as President of Employer, as
a member of the board of directors of Employer, and as an organizer of the Bank.
His resignation and the termination of his employment are effective December 17,
2002.
2. Severance Payment. Employer shall pay to Employee a severance in the
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amount of 60 days wages, minus applicable withholdings, with such payment to be
made on the regularly scheduled pay periods over the next 60 days. In the event
Employee fails to comply with the provisions of this Agreement or otherwise
breaches this Agreement, Employer shall have no obligation to pay Employee the
severance payment set forth above. The language of this paragraph shall not
constitute a liquidated damages provision and in no way limits or prevents
Employer or the Bank from seeking monetary and other relief, whether at law or
equity, available to it as a result of a breach of this Agreement. Employee
acknowledges and agrees that no further sums or payments are due to him from
either Employer or the Bank and he makes no claim to any further sums under the
Employment Agreement or otherwise.
3. Release By Employee. As a material inducement to the Released Parties to
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make the promises described herein, Employee, for himself and his spouse, heirs,
representatives, and assigns, does hereby release and forever discharge the
Released Parties and their respective officers, directors, shareholders,
organizers, owners, agents, employees and affiliated companies from any actions,
suits, proceedings, claims, grievances, charges of discrimination or other
claims filed with administrative agencies, causes of action or actions for
reinstatement or damages, debts, dues, sums of money, accounts, benefits,
reckonings, covenants, contracts, agreements, promises, damages, claims for
damages, costs and expenses, attorneys' fees, and any and all claims, demands,
or liabilities whatsoever of every name and nature, whether known or unknown,
accrued or unaccrued, now existing or which may develop in the future, in law,
equity, or otherwise, which Employee ever had, now has, or hereafter can, shall
or may have against the Released Parties, their respective officers, directors,
shareholders, organizers, owners, agents, employees or affiliated companies,
individually, severally, jointly, collectively, derivatively or otherwise, for,
upon or by reason of any matter, cause or thing whatsoever, including but not
limited to, any and all charges arising out of: Title VII of the Civil Rights
Act of 1964,
as amended; the Age Discrimination in Employment Act, as amended; the Older
Workers' Benefit Protection Act, the Rehabilitation Act of 1973; the Employee
Retirement Income Security Act of 1974, as amended; the Americans With
Disabilities Act, as amended, 42 U.S.C. Sections 12101, et seq.; 42 U.S.C.
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Sections 1981, 1985, 1986, and 1988; the Family and Medical Leave Act of 1993;
the Fair Labor Standards Act; the Consolidated Omnibus Reconciliation Act of
1985; the Constitution, statutes, regulations or executive orders of the United
States and/or the State of South Carolina; the South Carolina Payment of Wages
Act; the common law, including but not limited to contractual claims and both
intentional and unintentional tort claims; and any claim or action, whether
known or unknown, accrued or unaccrued, now existing or which may develop in
the future, which Employee ever had, now has, or hereafter can, shall or may
have against the Released Parties, their respective officers, directors,
shareholders, organizers, owners, agents, employees or affiliated companies,
individually, severally, jointly, collectively, derivatively or otherwise,
arising out of, as a consequence of, for or by reason of, resulting from, or
relating in any way to the relationship and severing of this relationship
between Employee, Employer and the Bank; including, but not limited to, any
claims arising out of the Employment Agreement or the efforts to form the Bank
r any subsequent bank, including any rights as a shareholder or any rights to
any stock options, organizer warrants, or other rights to purchase or acquire
shares of common stock or other equity interests; provided, however, that this
Agreement shall not in any way affect the right of Employee to seek specific
enforcement of this Agreement or to xxx for a breach thereof.
4. Return of Employer's Property. Employee represents and warrants that he
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has delivered any and all documents, materials or other objects or things (and
any copies or duplicates of such things) in his possession, custody or control
which relate to the operations or business of Employer or the Bank, regardless
of whether or not the documents or materials or other things were prepared by
Employee. Employee also covenants that he shall promptly deliver to Employer any
and all documents, materials or other objects or things (and any copies or
duplicates of such things) which come within his possession, custody or control
which relate to the operations or business of Employer or the Bank.
5. Release from Line of Credit. The Released Parties release Employee from
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any obligation that he has under the line of credit provided by Lowcountry
National Bank to Employer and will seek to remove his name from any liability or
guaranty for the line of credit. Employer agrees to indemnify and hold harmless
Employee from any liability, debt, claim or damages he sustains as a result of
his guaranteeing the line of credit as an organizer of Employer.
6. No Right to Stock Options; Redemption of Existing Stock. Employee
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acknowledges and agrees that his employment has terminated as set forth herein
and he has no rights in or claims to any stock options or organizer warrants
from either of the Released Parties or from any subsequent bank organized by the
Employer or the organizers of the Bank. Employee is the owner of 10 shares of
common stock of Employer, represented by certificate #1, which he purchased for
$100 and which he had agreed to resell to Employer for $100 at the conclusion of
Employer's stock offering to open the Bank. Employee agrees to, and hereby does,
sell back to Employer these 10 shares in exchange for cancellation of the
original uncashed check for $100 used to purchase the shares (check #2878 on
Employer's wife's account with Heritage Trust Federal Credit Union). Employee
authorizes Employer to xxxx each of the stock certificate #1 and the personal
check "cancelled" to document this stock repurchase.
7. Covenants in Employment Agreement. Employee reaffirms and agrees to
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abide by the covenants contained in Sections 5, 6, 7, 8 and 9 (except 9(c)) of
the Employment Agreement, a copy of which is attached hereto as Exhibit A and
incorporated herein by reference, and acknowledges and agrees that (a) there was
valid consideration for such covenants at the time given and separate and
independent consideration exists at this time in the form of the promises made
herein; (b) such covenants are reasonable in scope and necessary for the
legitimate interests of Employer; and (c) Employee has not breached any covenant
or portion thereof contained in Sections 5, 6, 7, 8 or 9 of the Employment
Agreement that is applicable during Employee's employment.
8. Remedies for Breach. Employee recognizes and agrees that a breach by
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Employee of any covenant contained in this Agreement, including specifically
Sections 5, 6, 7, 8 and 9 (except 9(c)) of the Employment Agreement, would cause
immeasurable and irreparable harm to Employer. In the event of a breach or
threatened breach of any such covenant, Employer shall be entitled to temporary
and permanent injunctive relief, restraining Employee from violating or
threatening to violate any covenant contained herein. The parties agree that the
relief described herein is in addition to such other and further relief as may
be available to the Released Parties at equity or by law. Nothing herein shall
be construed as prohibiting the Released Parties from pursuing any other
remedies available to them for such breach or threatened breach, including the
recovery of damages from Employee.
9. No Breach by Employer. Employee represents and warrants that as of the
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date of this Agreement there has been no breach of the Employment Agreement by
either of the Released Parties and the terms of this Agreement do not result in
a breach by either of them.
10. Binding Agreement. This Agreement shall bind and inure to the benefit
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of the Released Parties, their respective successors and assigns, and Employee
and his or her heirs and legal representatives. Employee's rights and
obligations under this Agreement are personal and not assignable.
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11. No Waiver. No waiver of a breach of any provision of this Agreement
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shall be construed to be a waiver of any breach of any other provision. No delay
with regard to enforcement of any breach of any provision of this Agreement
shall be construed to be a waiver of such breach.
12. Covenants are Necessary. The parties agree that the foregoing covenants
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in this Agreement are necessary for the legitimate business interests of the
Released Parties and impose a reasonable restraint on Employee in light of the
activities and business of the Released Parties on the date of the execution of
this Agreement.
13. Modifications. Any revisions or modifications of this Agreement must be
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in writing and must be signed by both parties hereto to be effective.
14. Entire Agreement and Severability. This Agreement (which includes
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Sections 5, 6, 7, 8 and 9 (except 9(c)) of the Employment Agreement) represents
the entire agreement between the parties, and there are no other agreements,
express or implied, between them. Any prior agreements, written or oral, are
superseded by this Agreement. Further, should any provision of this Agreement be
determined to be invalid by a court or government agency of competent
jurisdiction, the remainder shall remain in full force and effect.
15. Confidentiality. Any and all materials concerning this Agreement will
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be regarded as privileged communication between the parties and they will not
disseminate or release such matters by publication of any sort, in any manner or
means, to any person or persons. The content of this Agreement and Release will
not be disclosed other than to the parties, their family members, accountants or
attorneys on a need to know basis.
16. Opportunity to Review. Employee has been provided an opportunity to
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review this document and discuss it with his chosen counsel before signing it.
Employee represents that he is freely and voluntarily signing this Agreement in
exchange for the benefits provided herein. Employee represents and warrants that
he has been given a period of at least 21 days to consider the Agreement; that
he has read the Agreement in its entirety and understands the meaning and effect
of each of its paragraphs, that he is signing this Agreement of his own free
will with the intent of being bound by it.
17. Right to Revoke Agreement. Employee may revoke this Agreement at any
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time within a period of seven days of the execution of this Agreement by
providing Employer with written notice of such revocation. Upon revocation,
Employee shall return to Employer any payments that have been made to Employee
hereunder. If written notice of revocation is not given to Employer by the end
of the seventh day following the execution of this Agreement, there shall be no
further right of revocation.
18. Applicable Law and Choice of Forum. This Agreement shall be interpreted
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in accordance with the laws of the State of South Carolina. Further, both
parties agree that any action brought to enforce this Agreement must be brought
within a court of competent jurisdiction located within Charleston County, South
Carolina.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
Witnesses: Tidelands Bancshares, Inc.
/s/ Witness signature
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By: /s/ Xxxxx X. Xxxxxxxx
/s/ Witness signature ---------------------------
------------------------------ Its Chairman
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Employee:
/s/ Witness signature
------------------------------ /s/ Xxxxx X. Xxxxxx
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/s/ Witness signature Xxxxx X. Xxxxxx
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