Exhibit 10.6
SECOND AMENDED AND RESTATED
EMPLOYMENT AND NON-COMPETITION AGREEMENT
THIS AGREEMENT, dated and effective this 31
st
day of
December, 2008, 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 John C. Pollok
(the “Employee”).
WHEREAS, the Company and Employee formerly entered into an Agreement
entitled Employment Agreement dated October 23, 2002 and thereafter
entered into an Amended and Restated Employment and Non-Competition Agreement
effective September 1, 2006; and
WHEREAS,
Company and Employee wish to terminate the Amended and Restated Employment and
Non-Competition Agreement effective September 1, 2006, 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 Chief Operating Officer and Chief Financial Officer of
the Company and SCBT, 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 SCBT, 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 the
THIS AGREEMENT IS SUBJECT TO BINDING
ARBITRATION PURSUANT TO S. C. CODE §
15-48-10
ET
SEQ.,
AS AMENDED FROM TIME TO TIME
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”),
which currently is $261,120.00 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. In no event, however, shall reimbursement of
expenses be paid later than the end of the year following the year in which the
expense was incurred.
(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 a country club in Columbia, South Carolina to be
determined by Company and Employee. Any and all reimbursements payable to the
Employee for attending meetings and conventions which Employee is required
by the Company to attend shall be paid no later than the end of the year
following the year in which the expense was incurred.
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(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.
6.
Termination of Employment
.
(a)
Termination Upon Death, Disability or For Cause
. The Company shall have 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 six months or any impairment of mind or body that
is likely to result in a “disability” of Employee for more than three 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 al
cohol, 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
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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 six month period
immediately following termination. To the extent that any amount payable during
this six month period following termination exceeds the lesser of (1) two
times the employee’s annual rate of compensation for the taxable year before
the taxable year in which the termination occurs, or (2) two times
the then current compensation limit set for tax-qualified retirement plans
under Internal Revenue Code Section 401(a)(17), such excess
amount shall not be paid to Employee before the date that is six months
after the date of termination of the Employee (or, if earlier than the end of
the six month period, the date of death of the Employee). In addition,
for a period of six 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 10
th
of the month for which coverage is
sought (i.e. January 10
th
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 six 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 six 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.
(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
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(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 two and one-half (2½) times the Employee’s Total
Compensation.
(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 made immediately upon the cessation of employment and the
second to be made exactly one year later.
To the extent that any amount
payable immediately upon the cessation of employment exceeds the
lesser of (1) two times the employee’s annual rate of compensation for the
taxable year before the taxable year in which the termination occurs, or (2) two
times the then current compensation limit set for tax-qualified retirement
plans under Internal Revenue Code Section 401(a)(17), such excess
amount shall not be paid to Employee before the date that is six months
after the date of termination of the Employee (or, if earlier than the end of
the six month period, the date of death of the Employee).
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, successors, assigns,
their officers, directors, agents, employees, etc.
(c) Notwithstanding
anything in this Agreement to the contrary, in the event it shall be determined
that any payment or distribution to or for the benefit of the Employee (whether
paid or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise, but determined without regard to any additional
payments required under this Section 7(c) (a “Payment”)) would be
subject to the excise tax imposed by Section 4999 of the Code or any
interest or penalties are incurred by the Employee with respect to such excise
tax (such excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the “Excise Tax”), then the Employee
shall be entitled to receive (to the extent not paid directly by the Company as
withholding taxes) an additional payment (a “Gross-Up
5
Payment”). As used herein, the term Gross-Up Payment refers to a payment to reimburse the Employee in
an amount equal to all or a designated portion of the Federal, state, local, or
foreign taxes imposed upon the Employee as a result of compensation paid or
made available to the Employee by the Company, including the amount of
additional taxes imposed on the Employee due to the Company’s payment of the
initial taxes on such compensation. The
Gross-Up Payment shall be the amount such that after payment by the Employee of
all taxes (including any interest or penalties imposed with respect to such
taxes) with respect to Payments including, without limitation, any income taxes
(and any interest and penalties imposed with respect thereto) and Excise Tax
imposed upon the Gross-Up Payment, the Employee retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
All determinations required to be made under this Section 7(c),
including whether and when a Gross-Up Payment is required and the amount of
such Gross-Up Payment and the assumptions to be utilized in arriving at such
determination, shall be made by the accounting firm (the “Accounting Firm”)
conducting the audit of the Company at the time in question; provided, however,
that the Accounting Firm shall not determine that no Excise Tax is payable by
the Employee unless it delivers to the Employee a written opinion (the “Accounting
Opinion”) that failure to report the Excise Tax on the Employee’s applicable
federal income tax return would not result in the imposition of a negligence or
similar penalty. In the event that the
Accounting Firm has served, at any time during the two years immediately
preceding a Change of Control, as accountant or auditor for the individual,
entity or group that is involved in effecting or has any material interest in a
Change of Control, the Employee shall appoint a nationally recognized
accounting firm that is reasonably acceptable to the Company to make the
determinations and perform the other functions specified in this Section 7(c) (which
accounting firm shall then be referred to as the Accounting Firm
hereunder). All fees and expenses of the
Accounting Firm shall be borne solely by the Company. Within fifteen days of the receipt of notice
from the Employee that there has been a Payment, or such earlier time as is
requested by the Company, the Accounting Firm shall make all determinations
required under this Section 7(c), shall provide to the Company and the
Employee a written report setting forth such determinations, together with
detailed supporting calculations, and, if the Accounting Firm determines that
no Excise Tax is payable, shall deliver the Accounting Opinion to the
Employee. Any Gross-Up Payment, as
determined pursuant to this Section 7(c), shall be (i) paid by the
Company to taxing authorities to the extent required by applicable law and (ii) to
the extent not so paid and not required to be so paid in the future, paid by
the Company to the Employee at such times as the Accounting Firm determines
that the related tax payments by the Employee are due. Subject to the remainder of this Section 7(c),
any determination by the Accounting Firm shall be binding upon the Company and
the Employee. As a result of uncertainty
in the application of Section 4999 of the Internal Revenue Code at the
time of the initial determination by the Accounting Firm hereunder, it is
possible that Gross-Up Payments that will not have been made by the Company
should have been made (“Underpayment”) consistent with the calculations
required to be made hereunder. In the
event that it is ultimately determined in accordance with the procedures set
forth in this Section 7(c) that the Employee is required to make a
payment of any Excise Tax, the Accounting Firm shall determine the amount of
the Underpayment that has occurred, and any such Underpayment shall be promptly
paid by the Company to or for the benefit of the Employee.
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The Employee shall notify the Company in writing of any claims by the
Internal Revenue Service that, if successful, would require the payment by the
Company of the Gross-Up Payment. Such
notification shall be given as soon as practicable but no later than thirty
days after the Employee actually receives notice in writing of such claim and
shall apprise the Company of the nature of such claim and the date on which
such claim is requested to be paid; provided, however, that the failure of the
Employee to notify the Company of such claim (or to provide any required
information with respect thereto) shall not affect any rights granted to the
Employee under this Section 7(c) except to the extent that the
Company is materially prejudiced in the defense of any such claim as a direct
result of such failure. The Employee
shall not pay such claim prior to the expiration of the thirty day period
following the date on which he gives such notice to the Company (or such
shorter period ending on the date that any payment of taxes with respect to
such claim is due). If the Company
notifies the Employee in writing prior to the expiration of such period that it
desires to contest such claim, the Employee shall:
(i) give the Company any information
reasonably requested relating to such claim;
(ii) take such action in connection with
contesting such claim as the Company shall reasonably request in writing from
time to time, including, without limitation, accepting legal representation
with respect to such claim by an attorney selected by the Company and
reasonably acceptable to the Employee;
(iii) cooperate with the Company in good
faith to effectively contest such claim; and
(iv) if the Company elects not to assume
and control the defense of such claim, permit the Company to participate in any
proceedings relating to such claim;
provided, however,
that the Company shall bear and pay directly all costs and expenses (including
additional interest and penalties) incurred in connection with such contest and
shall indemnify and hold the Employee harmless, on an after-tax basis, for any
Excise Tax or income tax (including interest and penalties with respect
thereto) imposed as a result of such representation and payment of costs and
expenses. Without limiting the foregoing
provisions of this Section 7(b), the Company shall have the right, at its
sole option, to assume the defense of and control all proceedings in connection
with such contest, in which case it may pursue or forego any and all administrative
appeals, proceedings, hearings and conferences with the taxing authority in
respect of such claim and may either direct the Employee to pay the tax claimed
and sue for a refund or contest the claim in any permissible manner, and the
Employee agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or more
appellate courts, as the Company shall determine; provided, however, that if
the Company directs the Employee to pay such claim and sue for a refund, the
Company shall advance the amount of such payment to the Employee on an
interest-free basis, and shall indemnify and hold the Employee harmless, on an
after-tax basis, from any Excise Tax or income tax (including interest or
penalties with respect thereto) imposed with respect to such advance or with
respect to any imputed income with respect to such advance. Furthermore, the Company’s right to assume
the defense of and control the contest shall be limited to issues with
7
respect to which a
Gross-Up Payment would be payable hereunder, and the Employee shall be entitled
to settle or contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority.
If,
after the receipt by the Employee of an amount advanced by the Company pursuant
to this Section 7(c), the Employee becomes entitled to receive any refund
with respect to such claim, the Employee shall (subject to the Company’s
complying with the requirements hereof) promptly pay to the Company the amount
of such refund (together with any interest paid or credited thereon after taxes
applicable thereto).
In
no event shall the Gross-Up Payment be made payable, and payment actually be
made, by the Company any later than by the end of the Employee’s taxable
year next following the Employee’s taxable year in which the Employee remits
the related taxes. In addition, any reimbursement by the Company of
expenses incurred due to a tax audit or litigation addressing the existence or
amount of a tax liability, whether Federal, state, local, or foreign, shall be
made payable and actually paid by the end of the Employee’s taxable year
following the Employee’s taxable year in which the taxes that are the subject
of the audit or litigation are remitted to the taxing authority, or where as a
result of such audit or litigation no taxes are remitted, the end of the
Employee’s taxable year following the Employee’s taxable year in which the
audit is completed or there is a final and non-appealable settlement or other
resolution of the litigation.
(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)
a material
diminution in the employee’s authority, duties, 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 material
diminution in the authority, duties, or responsibilities of the supervisor to
whom the Employee is required to report;
(iii)
a material
diminution in the budget (if any) over which the Employee retains authority;
(iv)
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;
8
(v)
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 the Company’s offices at such
location, except for required travel on Company business;
(vi)
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
(vii)
any other
action or inaction that constitutes a material breach of the terms of the
Employee’s employment agreement.
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 ninety 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) A change in
ownership of the Company occurs on the date that any one person, or more than
one person acting as a group (as determined in Paragraph (i)(5)(v)(B) of
Treasury
Regulation Section
1.409A-3), acquires ownership
of more than 50% of the total fair market
value or total voting power of the Company or Bank other than (A) with
respect to the Bank, the Company (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) A change in the
effective control of the Company occurs on the date that (a) a person, or
more than one person acting as a group (as determined in Paragraph (i)(5)(v)(B) of
Treasury
Regulation Section
1.409A-3), acquires
ownership
(or having acquired during the 12-month period ending on the date
of his most recent acquisition) of 30%
or more of the total voting power of the stock of the Company or Bank, or (b) a
majority of the members of the Company’s board of directors is replaced during
any 12-month period by directors whose appointment or election is not endorsed
by a majority of the members of the Company’s board of directors prior to the
date of appointment or election, provided that the Company is a corporation for
which there is no majority shareholder.
9
(iii) A change in the
ownership of a substantial portion of the Company’s assets occurs on the date
that any one person, or more than one person acting as a group (as determined
in Paragraph (i)(5)(v)(B) of Treasury
Regulation Section
1.409A-3),
acquires
(or having acquired during the 12-month period ending on the date
of his most recent acquisition) assets
from the Company that have a total gross fair market value equal to or more
than 40 percent of the total gross fair market value of all of the assets of
the Company immediately prior to such acquisition. For purposes of this provision, gross fair
market value means the value of the assets of the Company, or the value of the
assets being disposed of, determined without regard to any liabilities
associated with such assets.
This
definition of Change in Control is intended to fully comply with the definition
of a change in control event as set forth in Treasury Regulation Section 1.409A-3(i)(5).
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.
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(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.
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
two years 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
11
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.
(d)
Providing Copy of Agreemen
t. 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
12
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 Amended and Restated Employment
and Non-Competition Agreement effective September 1, 2006, between
Employee and the Company is 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.
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
13
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.
(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. Further, this agreement is
governed by and is intended to comply with in all respects, or provide
exemptions from, the requirements of Internal Revenue Code Section 409A
and the regulations issued thereunder by the Secretary of the Treasury.
(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.
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SCBT FINANCIAL CORPORATION
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By:
Robert R. Hill, Jr.
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Its:
CEO
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EMPLOYEE
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John
C. Pollok
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14
Exhibit 10.7
SECOND AMENDED AND RESTATED
EMPLOYMENT AND NON-COMPETITION AGREEMENT
THIS AGREEMENT, dated and effective this 31
st
day of December 2008,
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 Joe E. Burns (the “Employee”).
WHEREAS, the Company and Employee formerly entered into an Agreement
entitled Employment Agreement dated October 23, 2002 and thereafter
entered into an Amended and Restated Employment and Non-Competition Agreement
effective September 1, 2006; and
WHEREAS,
Company and Employee wish to terminate the Amended and Restated Employment and
Non-Competition Agreement effective September 1, 2006, 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 Chief Credit
Officer of the Company and South Carolina Bank and Trust, 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, 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 the
THIS AGREEMENT IS SUBJECT TO BINDING
ARBITRATION PURSUANT TO S. C. CODE §15-48-10
ET SEQ.,
AS AMENDED FROM TIME TO TIME
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”), which currently is
$193,800.00 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. In no event, however, shall reimbursement of
expenses be paid later than the end of the year following the year in which the
expense was incurred.
(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 reimburse Employee for the expense of his attendance at such
meetings and conventions the Company requires him to attend. Company will also pay on behalf of Employee
dues required to maintain membership during his employment in a country club in
Columbia, South Carolina to be determined by Company and Employee.
Any
and all reimbursements payable to the Employee for attending meetings and
conventions which Employee is required by the Company to attend shall be paid
no later than the end of the year following the year in which the expense was
incurred.
2
(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.
6.
Termination of Employment
.
(a)
Termination Upon Death, Disability or For Cause
. The Company shall have 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 al
cohol, 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
3
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 six month period
immediately following termination. To
the extent that any amount payable during this six month period following
termination exceeds the lesser of (1) two times the employee’s annual rate
of compensation for the taxable year before the taxable year in which the
termination occurs, or (2) two times the then current compensation limit
set for tax-qualified retirement plans under Internal Revenue Code Section 401(a)(17),
such excess amount shall not be paid to Employee before the date that is
six months after the date of termination of the Employee (or, if earlier than the
end of the six month period, the date of death of the Employee). In addition,
for a period of six 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 10
th
of the month for which coverage is
sought (i.e. January 10
th
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 six 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 six 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.
(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
4
(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 twice the Employee’s Total Compensation.
(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 and the second to be made exactly one year later. To the extent that any amount
payable immediately upon the cessation of employment exceeds the
lesser of (1) two times the employee’s annual rate of compensation for the
taxable year before the taxable year in which the termination occurs, or (2) two
times the then current compensation limit set for tax-qualified retirement
plans under Internal Revenue Code Section 401(a)(17), such excess
amount shall not be paid to Employee before the date that is six months
after the date of termination of the Employee (or, if earlier than the end of
the six month period, the date of death of the Employee).
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, successors,
assigns, 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.
5
(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) a material
diminution in the employee’s authority, duties, 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
material diminution in the authority, duties, or responsibilities of the
supervisor to whom the Employee is required to report;
(iii) a
material diminution in the budget (if any) over which the Employee retains
authority;
(iv) 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;
(v) 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 the Company’s offices at such location, except for required
travel on Company business;
(vi) 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
(vii) any other action or inaction that
constitutes a material breach of the terms of the Employee’s employment
agreement.
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 ninety
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
6
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) A
change in ownership of the Company occurs on the date that any one person, or
more than one person acting as a group (as determined in Paragraph (i)(5)(v)(B) of
Treasury
Regulation Section
1.409A-3), acquires
ownership
of more than
50% of the total fair market value or total voting power of the Company or Bank
other than (A) with respect to the Bank, the Company (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) A
change in the effective control of the Company occurs on the date that (a) a
person, or more than one person acting as a group (as determined in Paragraph
(i)(5)(v)(B) of Treasury
Regulation Section
1.409A-3), acquires
ownership
(or having acquired during the 12-month period
ending on the date of his most recent acquisition) of 30% or more of the total voting power of the stock of the Company or
Bank, or (b) a majority of the members of the Company’s board of directors
is replaced during any 12-month period by directors whose appointment or
election is not endorsed by a majority of the members of the Company’s board of
directors prior to the date of appointment or election, provided that the
Company is a corporation for which there is no majority shareholder.
(iii) A
change in the ownership of a substantial portion of the Company’s assets occurs
on the date that any one person, or more than one person acting as a group (as
determined in Paragraph (i)(5)(v)(B) of Treasury
Regulation Section
1.409A-3),
acquires
(or having acquired during the 12-month period
ending on the date of his most recent acquisition) assets from the Company that have a total gross fair market value equal
to or more than 40 percent of the total gross fair market value of all of the
assets of the Company immediately prior to such acquisition. For purposes of this provision, gross fair
market value means the value of the assets of the Company, or the value of the
assets being disposed of, determined without regard to any liabilities
associated with such assets.
This definition of Change in Control is intended to fully comply with
the definition of a change in control event as set forth in Treasury Regulation
Section 1.409A-3(i)(5).
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.
7
(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.
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
8
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 12 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.
(d)
Providing
Copy of Agreemen
t. 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.
9
(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 Amended and Restated Employment and Non-Competition Agreement
effective September 1, 2006, between Employee and the Company is 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.
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.
10
(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.
(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. Further, this agreement is governed by and is
intended to comply with in all respects, or provide exemptions from, the
requirements of Internal Revenue Code Section 409A and the regulations
issued thereunder by the Secretary of the Treasury.
(j)
Arbitration
. With the exception of enforcement of the
covenants
11
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.
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SCBT FINANCIAL CORPORATION
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By: Robert R. Hill, Jr.
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Its: CEO
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EMPLOYEE
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Joe E. Burns
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12
Exhibit 10.8
SECOND AMENDED AND RESTATED
EMPLOYMENT AND NON-COMPETITION AGREEMENT
THIS
AGREEMENT, dated and effective this 31
st
day of December 2008,
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 Thomas S. Camp (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 thereafter entered into an Amended and Restated
Employment and Non-Competition Agreement effective September 1, 2006; and
WHEREAS, Company and
Employee wish to terminate the Amended and Restated Employment and
Non-Competition Agreement effective September 1, 2006, 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 years 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 CEO of SCBT of the Piedmont, N.A., a
Division of SCBT, 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 the Bank.
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”), which currently is
$206,550.00 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. In no event, however, shall reimbursement of
expenses be paid later than the end of the year following the year in which the
expense was incurred.
(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. Any and all reimbursements payable to the Employee for attending
meetings and conventions which Employee is required by the Company to attend
shall be paid no later than the end of the year following the year in which the
expense was incurred.
(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
2
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.
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 al
cohol, 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
3
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. To the extent that any amount payable during
this six month period following termination exceeds the lesser of (1) two
times the employee’s annual rate of compensation for the taxable year before
the taxable year in which the termination occurs, or (2) two times
the then current compensation limit set for tax-qualified retirement plans
under Internal Revenue Code Section 401(a)(17), such excess
amount shall not be paid to Employee before the date that is six months
after the date of termination of the Employee (or, if earlier than the end of
the six month period, the date of death of the Employee). 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 m
aintain
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 10
th
of the month
for which coverage is sought (i.e. January 10
th
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.
(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
4
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.
(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.
To the extent that any amount
payable immediately upon the cessation of employment exceeds the
lesser of (1) two times the employee’s annual rate of compensation for the
taxable year before the taxable year in which the termination occurs, or (2) two
times the then current compensation limit set for tax-qualified retirement
plans under Internal Revenue Code Section 401(a)(17), such excess
amount shall not be paid to Employee before the date that is six months
after the date of termination of the Employee (or, if earlier than the end of
the six month period, the date of death of the Employee).
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, successors, assigns, 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:
5
(i)
a material diminution in the
employee’s authority, duties, 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 material
diminution in the authority, duties, or responsibilities of the supervisor to
whom the Employee is required to report;
(iii)
a material
diminution in the budget (if any) over which the Employee retains authority;
(iv)
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;
(v)
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;
(vi)
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
(vii)
any other action or inaction
that constitutes a material breach of the terms of the Employee’s employment
agreement.
“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 ninety 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) A change in
ownership of the Company occurs on the date that any one person, or more than
one person acting as a group (as determined in Paragraph
6
(i)(5)(v)(B) of Treasury
Regulation Section
1.409A-3),
acquires ownership
of more
than 50% of the total fair market value or total voting power of the Company or
Bank other than (A) with respect to the Bank, the Company (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) A change in the
effective control of the Company occurs on the date that (a) a person, or
more than one person acting as a group (as determined in Paragraph (i)(5)(v)(B) of
Treasury
Regulation Section
1.409A-3), acquires
ownership
(or having acquired during the 12-month period ending on the date
of his most recent acquisition) of 30%
or more of the total voting power of the stock of the Company or Bank, or (b) a
majority of the members of the Company’s board of directors is replaced during
any 12-month period by directors whose appointment or election is not endorsed
by a majority of the members of the Company’s board of directors prior to the
date of appointment or election, provided that the Company is a corporation for
which there is no majority shareholder.
(iii) A change in the
ownership of a substantial portion of the Company’s assets occurs on the date
that any one person, or more than one person acting as a group (as determined
in Paragraph (i)(5)(v)(B) of Treasury
Regulation Section
1.409A-3),
acquires
(or having acquired during the 12-month period ending on the date
of his most recent acquisition) assets
from the Company that have a total gross fair market value equal to or more
than 40 percent of the total gross fair market value of all of the assets of
the Company immediately prior to such acquisition. For purposes of this provision, gross fair
market value means the value of the assets of the Company, or the value of the
assets being disposed of, determined without regard to any liabilities
associated with such assets.
This
definition of Change in Control is intended to fully comply with the definition
of a change in control event as set forth in Treasury Regulation Section 1.409A-3(i)(5).
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
7
(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.
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.
8
(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.
(d)
Providing
Copy of Agreemen
t. 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.
9
(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 Amended and Restated
Employment and Non-Competition Agreement effective September 1, 2006,
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.
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.
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(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.
(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. Further, this agreement is governed by and is
intended to comply with in all respects, or provide exemptions from, the
requirements of Internal Revenue Code Section 409A and the regulations
issued thereunder by the Secretary of the Treasury.
(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
11
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.
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SCBT FINANCIAL CORPORATION
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By:
Robert R. Hill, Jr.
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Its:
CEO
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EMPLOYEE
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Thomas
S. Camp
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12
Exhibit 10.9
SECOND AMENDED AND RESTATED
EMPLOYMENT AND NON-COMPETITION AGREEMENT
THIS AGREEMENT, dated and effective this 31
st
day of December 2008,
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 Richard C. Mathis (the “Employee”).
WHEREAS, the Company and Employee formerly entered into an Agreement
entitled Employment Agreement dated October 23, 2002 and thereafter
entered into an Amended and Restated Employment and Non-Competition Agreement
effective September 1, 2006; and
WHEREAS,
Company and Employee wish to terminate the Amended and Restated Employment and
Non-Competition Agreement effective September 1, 2006, 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 years 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 Executive Vice
President and Chief Risk Officer of the Company and SCBT, 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 SCBT,
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 the
THIS AGREEMENT IS SUBJECT TO BINDING
ARBITRATION PURSUANT TO S. C. CODE §15-48-10
ET SEQ.,
AS AMENDED FROM TIME TO TIME
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”),
which currently is $190,000.00 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. In
no event, however, shall reimbursement of expenses be paid later than the end
of the year following the year in which the expense was incurred.
(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 reimburse Employee for the expense of his attendance at such
meetings and conventions the Company requires him to attend. Company will also pay on behalf of Employee
dues required to maintain membership during his employment in a country club in
Columbia, South Carolina to be determined by Company and Employee.
Any and all reimbursements payable to the
Employee for attending meetings and conventions which Employee is required
by the Company to attend shall be paid no later than the end of the year
following the year in which the expense was incurred.
2
(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.
6.
Termination of Employment
.
(a)
Termination Upon Death,
Disability or For Cause
. The
Company shall have 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 al
cohol, 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
3
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 six month period
immediately following termination. To
the extent that any amount payable during this six month period following
termination exceeds the lesser of (1) two times the employee’s annual rate
of compensation for the taxable year before the taxable year in which the
termination occurs, or (2) two times the then current
compensation limit set for tax-qualified retirement plans under Internal
Revenue Code Section 401(a)(17), such excess amount shall not be paid
to Employee before the date that is six months after the date of termination of
the Employee (or, if earlier than the end of the six month period, the date of
death of the Employee). In
addition,
for a
period of six 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 10
th
of the month for which
coverage is sought (i.e. January 10
th
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 six 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 six 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.
(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
4
(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 twice the
Employee’s Total Compensation.
(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 and
the second to be made exactly one year later.
To the extent that any amount
payable immediately upon the cessation of employment exceeds the
lesser of (1) two times the employee’s annual rate of compensation for the
taxable year before the taxable year in which the termination occurs, or (2) two
times the then current compensation limit set for tax-qualified retirement
plans under Internal Revenue Code Section 401(a)(17), such excess
amount shall not be paid to Employee before the date that is six months
after the date of termination of the Employee (or, if earlier than the end of
the six month period, the date of death of the Employee).
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, successors,
assigns, 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.
5
(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).
(d) 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) a material
diminution in the employee’s authority, duties, 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
material diminution in the authority, duties, or responsibilities of the
supervisor to whom the Employee is required to report;
(iii) a
material diminution in the budget (if any) over which the Employee retains
authority;
(iv) 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;
(v) 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 the Company’s offices at such location, except for required
travel on Company business;
(vi) 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
(vii) any other action or inaction that
constitutes a material breach of the terms of the Employee’s employment
agreement.
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 ninety
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
6
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) A
change in ownership of the Company occurs on the date that any one person, or
more than one person acting as a group (as determined in Paragraph (i)(5)(v)(B) of
Treasury
Regulation Section
1.409A-3), acquires
ownership
of more than
50% of the total fair market value or total voting power of the Company or Bank
other than (A) with respect to the Bank, the Company (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) A
change in the effective control of the Company occurs on the date that (a) a
person, or more than one person acting as a group (as determined in Paragraph
(i)(5)(v)(B) of Treasury
Regulation Section
1.409A-3), acquires
ownership
(or having acquired during the 12-month period
ending on the date of his most recent acquisition) of 30% or more of the total voting power of the stock of the Company or
Bank, or (b) a majority of the members of the Company’s board of directors
is replaced during any 12-month period by directors whose appointment or
election is not endorsed by a majority of the members of the Company’s board of
directors prior to the date of appointment or election, provided that the
Company is a corporation for which there is no majority shareholder.
(iii) A
change in the ownership of a substantial portion of the Company’s assets occurs
on the date that any one person, or more than one person acting as a group (as
determined in Paragraph (i)(5)(v)(B) of Treasury
Regulation Section
1.409A-3),
acquires
(or having acquired during the 12-month period
ending on the date of his most recent acquisition) assets from the Company that have a total gross fair market value equal
to or more than 40 percent of the total gross fair market value of all of the
assets of the Company immediately prior to such acquisition. For purposes of this provision, gross fair
market value means the value of the assets of the Company, or the value of the
assets being disposed of, determined without regard to any liabilities
associated with such assets.
This definition of Change in Control is intended to fully comply with the
definition of a change in control event as set forth in Treasury Regulation Section 1.409A-3(i)(5).
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.
7
(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.
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
8
affiliated
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 any 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 12 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.
(d)
Providing
Copy of Agreemen
t. 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.
9
(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© 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 Amended and Restated
Employment and Non-Competition Agreement effective September 1, 2006,
between Employee and the Company is 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.
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.
10
(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.
(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. Further, this agreement is governed by and is
intended to comply with in all respects, or provide exemptions from, the requirements
of Internal Revenue Code Section 409A and the regulations issued
thereunder by the Secretary of the Treasury.
11
(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.
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SCBT FINANCIAL CORPORATION
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By: Robert R. Hill, Jr.
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Its: CEO
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EMPLOYEE
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Richard C. Mathis
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12
Exhibit 10.10
AMENDED
AND RESTATED
EMPLOYMENT
AND NON-COMPETITION AGREEMENT
THIS
AGREEMENT, dated and effective this 31
st
day of December 2008,
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 Dane Murray (the “Employee”).
WHEREAS,
the Company and Employee formerly entered into an Agreement entitled Employment
and Non-Competition Agreement dated September 1, 2006,
WHEREAS,
Company and Employee wish to terminate the Employment and Non-Competition
Agreement dated September 1, 2006 and enter into this Amended and Restated
Employment and Non-Competition 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 Senior Executive Vice President
of SCBT, 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 SCBT, 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 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
THIS AGREEMENT IS SUBJECT TO BINDING
ARBITRATION PURSUANT TO S. C. CODE §15-48-10 ET SEQ.,
AS AMENDED FROM TIME TO TIME
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”),
which currently is $190,740.00 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. In no event, however, shall reimbursement of
expenses be paid later than the end of the year following the year in which the
expense was incurred.
(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 a country club in
Columbia, South Carolina to be determined by Company and Employee.
Any and all reimbursements payable to the
Employee for attending meetings and conventions which Employee is required
by the Company to attend shall be paid no later than the end of the year
following the year in which the expense was incurred.
(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
2
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.
6.
Termination of Employment
.
(a)
Termination Upon Death, Disability or For Cause
. The Company shall have 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 al
cohol, 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.
3
(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 six month period
immediately following termination. To the extent that any amount payable during
this six month period following termination exceeds the lesser of (1) two
times the employee’s annual rate of compensation for the taxable year before
the taxable year in which the termination occurs, or (2) two times
the then current compensation limit set for tax-qualified retirement plans
under Internal Revenue Code Section 401(a)(17), such excess
amount shall not be paid to Employee before the date that is six months
after the date of termination of the Employee (or, if earlier than the end of
the six month period, the date of death of the Employee). In addition,
for a period of six 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 m
aintain
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 10
th
of the month
for which coverage is sought (i.e. January 10
th
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 six 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 six 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.
(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
4
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 one times the Employee’s Total Compensation.
(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 equal monthly
installments over the twelve-month period following termination, or at the
option of Employee, shall be paid in a lump sum at the time of termination
without any reduction for commutation to present value. To the extent that any amount payable immediately upon the cessation
of employment exceeds the lesser of (1) two times the employee’s
annual rate of compensation for the taxable year before the taxable year in
which the termination occurs, or (2) two times the then current
compensation limit set for tax-qualified retirement plans under Internal
Revenue Code Section 401(a)(17), such excess amount shall not be paid
to Employee before the date that is six months after the date of termination of
the Employee (or, if earlier than the end of the six month period, the date of
death of the Employee).
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, successors, assigns, 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
5
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) a material diminution in the
employee’s authority, duties, 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 material
diminution in the authority, duties, or responsibilities of the supervisor to
whom the Employee is required to report;
(iii) a material
diminution in the budget (if any) over which the Employee retains authority;
(iv) 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;
(v) 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 the Company’s
offices at such location, except for required travel on Company business;
(vi) 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
(vii) any other action or inaction that constitutes a material
breach of the terms of the Employee’s employment agreement.
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 ninety 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.
6
(f) For purposes of this Agreement, “
Change
of Control
” means the occurrence of one of the following:
(i) A change in
ownership of the Company occurs on the date that any one person, or more than
one person acting as a group (as determined in Paragraph (i)(5)(v)(B) of
Treasury
Regulation Section
1.409A-3), acquires
ownership
of more than 50% of the total
fair market value or total voting power of the Company or Bank other
than (A) with respect to the Bank, the Company (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) A change in the
effective control of the Company occurs on the date that (a) a person, or
more than one person acting as a group (as determined in Paragraph (i)(5)(v)(B) of
Treasury
Regulation Section
1.409A-3), acquires
ownership
(or having acquired during the 12-month period ending on the date
of his most recent acquisition) of 30%
or more of the total voting power of the stock of the Company or Bank, or (b) a
majority of the members of the Company’s board of directors is replaced during
any 12-month period by directors whose appointment or election is not endorsed
by a majority of the members of the Company’s board of directors prior to the
date of appointment or election, provided that the Company is a corporation for
which there is no majority shareholder.
(iii) A change in the
ownership of a substantial portion of the Company’s assets occurs on the date
that any one person, or more than one person acting as a group (as determined
in Paragraph (i)(5)(v)(B) of Treasury
Regulation Section
1.409A-3),
acquires
(or having acquired during the 12-month period ending on the date
of his most recent acquisition) assets
from the Company that have a total gross fair market value equal to or more
than 40 percent of the total gross fair market value of all of the assets of
the Company immediately prior to such acquisition. For purposes of this provision, gross fair
market value means the value of the assets of the Company, or the value of the
assets being disposed of, determined without regard to any liabilities
associated with such assets.
This
definition of Change in Control is intended to fully comply with the definition
of a change in control event as set forth in Treasury Regulation Section 1.409A-3(i)(5).
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
7
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.
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,
8
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
12 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.
(d)
Providing Copy of
Agreemen
t. 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.
9
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 and
Non-Competition Agreement effective September 1, 2006, between Employee
and the Company is 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.
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
10
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.
(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. Further, this agreement is governed by and is
intended to comply with in all respects, or provide exemptions from, the
requirements of Internal Revenue Code Section 409A and the regulations
issued thereunder by the Secretary of the Treasury
(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,
11
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.
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SCBT FINANCIAL CORPORATION
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By:
Robert R. Hill, Jr.
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Its:
CEO
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EMPLOYEE
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Dane
Murray
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12
Exhibit 10.11
AMENDED AND RESTATED
EMPLOYMENT AND NON-COMPETITION AGREEMENT
THIS
AGREEMENT, dated and effective this 31
st
day of December 2008,
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 John Windley (the “Employee”).
WHEREAS, the
Company and Employee formerly entered into an Agreement entitled Employment and
Non-Competition Agreement dated September 1, 2006,
WHEREAS,
Company and Employee wish to terminate the Employment and Non-Competition
Agreement dated September 1, 2006 and enter into this Amended and Restated
Employment and Non-Competition 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 years 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 of SCBT, 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 SCBT, 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 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
THIS AGREEMENT IS SUBJECT TO BINDING
ARBITRATION PURSUANT TO S. C. CODE §15-48-10 ET SEQ.,
AS AMENDED FROM TIME TO TIME
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”), which currently is
$219,300.00 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. In
no event, however, shall reimbursement of expenses be paid later than the end
of the year following the year in which the expense was incurred.
(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 a country club in Columbia, South Carolina
to be determined by Company and Employee.
Any and all reimbursements payable to the Employee for attending
meetings and conventions which Employee is required by the Company to attend
shall be paid no later than the end of the year following the year in which the
expense was incurred.
(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
2
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 of 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.
6.
Termination of Employment
.
(a)
Termination Upon Death, Disability or For Cause
. The Company shall have 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.
3
(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 six month period immediately following termination. To
the extent that any amount payable during this six month period following
termination exceeds the lesser of (1) two times the employee’s annual rate
of compensation for the taxable year before the taxable year in which the
termination occurs, or (2) two times the then current
compensation limit set for tax-qualified retirement plans under Internal
Revenue Code Section 401(a)(17), such excess amount shall not be paid
to Employee before the date that is six months after the date of termination of
the Employee (or, if earlier than the end of the six month period, the date of
death of the Employee). In
addition, for a period of six 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 10
th
of the month for which coverage is sought (i.e. January 10
th
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 six 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 six
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.
(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
4
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 twice the Employee’s Total
Compensation.
(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 and the second to be made exactly one year later. To the extent that any amount
payable immediately upon the cessation of employment exceeds the
lesser of (1) two times the employee’s annual rate of compensation for the
taxable year before the taxable year in which the termination occurs, or (2) two
times the then current compensation limit set for tax-qualified retirement
plans under Internal Revenue Code Section 401(a)(17), such excess
amount shall not be paid to Employee before the date that is six months after
the date of termination of the Employee (or, if earlier than the end of the six
month period, the date of death of the Employee). 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, successors, assigns,
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
5
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)
a
material diminution in the employee’s authority, duties, 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 material diminution in the authority,
duties, or responsibilities of the supervisor to whom the Employee is required
to report;
(iii)
a material diminution in the budget (if any)
over which the Employee retains authority;
(iv)
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;
(v)
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 the Company’s offices at such location, except for
required travel on Company business;
(vi)
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
(vii)
any other action or
inaction that constitutes a material breach of the terms of the Employee’s
employment agreement.
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 ninety
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.
6
(f)
For
purposes of this Agreement, “
Change of Control
” means the occurrence of
one of the following:
(i) A
change in ownership of the Company occurs on the date that any one person, or
more than one person acting as a group (as determined in Paragraph (i)(5)(v)(B) of
Treasury
Regulation Section
1.409A-3), acquires
ownership
of more than
50% of the total fair market value or total voting power of the Company or Bank
other than (A) with respect to the Bank, the Company (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) A
change in the effective control of the Company occurs on the date that (a) a
person, or more than one person acting as a group (as determined in Paragraph
(i)(5)(v)(B) of Treasury
Regulation Section
1.409A-3), acquires
ownership
(or having acquired during the 12-month period
ending on the date of his most recent acquisition) of 30% or more of the total voting power of the stock of the Company or
Bank, or (b) a majority of the members of the Company’s board of directors
is replaced during any 12-month period by directors whose appointment or
election is not endorsed by a majority of the members of the Company’s board of
directors prior to the date of appointment or election, provided that the
Company is a corporation for which there is no majority shareholder.
(iii) A
change in the ownership of a substantial portion of the Company’s assets occurs
on the date that any one person, or more than one person acting as a group (as
determined in Paragraph (i)(5)(v)(B) of Treasury
Regulation Section
1.409A-3),
acquires
(or having acquired during the 12-month period
ending on the date of his most recent acquisition) assets from the Company that have a total gross fair market value equal
to or more than 40 percent of the total gross fair market value of all of the
assets of the Company immediately prior to such acquisition. For purposes of this provision, gross fair
market value means the value of the assets of the Company, or the value of the
assets being disposed of, determined without regard to any liabilities
associated with such assets.
This definition of Change in Control is intended to fully comply with
the definition of a change in control event as set forth in Treasury Regulation
Section 1.409A-3(i)(5).
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
7
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.
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,
8
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.
(d)
Providing Copy of Agreemen
t. 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.
9
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 and
Non-Competition Agreement effective September 1, 2006, between Employee
and the Company is 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.
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
10
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.
(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. Further, this agreement is governed by and is
intended to comply with in all respects, or provide exemptions from, the
requirements of Internal Revenue Code Section 409A and the regulations
issued thereunder by the Secretary of the Treasury.
(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,
11
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.
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SCBT FINANCIAL CORPORATION
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By: Robert R. Hill, Jr.
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Its: CEO
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EMPLOYEE
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John Windley
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