Exhibit 10.4
NOTICE: THIS AGREEMENT IS SUBJECT TO ARBITRATION PURSUANT
TO THE SOUTH CAROLINA UNIFORM ARBITRATION ACT
NONCOMPETITION, SEVERANCE AND EMPLOYMENT AGREEMENT
THIS NONCOMPETITION, SEVERANCE AND EMPLOYMENT AGREEMENT (this "Agreement")
is made and entered into as of this 18th day of January, 2006, by and among
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, an individual (the "Executive"), GrandSouth Bancorporation, a
South Carolina corporation (the "Company"), and the Company's wholly-owned
subsidiary, GrandSouth Bank, a South Carolina corporation (the "Bank").
WHEREAS, the Bank and the Executive entered into a Noncompetition,
Severance and Employment Agreement dated as of January 18, 2006 (the "Bank
Agreement");
WHEREAS, the Bank Agreement was entered into prior to acquisition of the
Bank by the Company;
WHEREAS, the Executive, the Bank and the Company now desire to replace the
Bank Agreement with this Agreement;
WHEREAS, the Boards of Directors of the Company and the Bank continue to
believe that the Executive has been instrumental in the success of the Company
and the Bank since his employment in 1998;
WHEREAS, the Company desires to continue to employ the Executive as
President and Chief Executive Officer of the Company, and the Bank desires to
continue to employ the Executive as President and Chief Executive Officer of the
Bank;
WHEREAS, the Executive is willing to continue to accept the employment
contemplated herein under the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein and other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto agree as follows:
1. Employment. Subject to the terms and conditions hereof, the Company
hereby employs the Executive and the Executive hereby accepts such employment as
the President and Chief Executive Officer of the Company, and the Bank hereby
employs the Executive and the Executive hereby accepts such employment as the
President and Chief Executive Officer of the Bank, having such duties and
responsibilities as are set forth in Section 3 below.
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2. Definitions. For purposes of this Agreement, the following terms shall
have the meanings specified below.
"Change of Control" shall mean the occurrence during the Term of any of the
following events:
(a) An acquisition (other than directly from the Company) of any
voting securities of the Company (the "Voting Securities") by any "Person"
(as the term person is used for purposes of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934 (the "1934 Act")) immediately after which
such Person has "beneficial ownership" (within the meaning of Rule 13d-3
promulgated under the ▇▇▇▇ ▇▇▇) of 50% or more of the combined voting power
of the Company's then outstanding Voting Securities; provided, however,
that in determining whether a Change of Control has occurred, Voting
Securities which are acquired in a "Non-Control Acquisition" (as
hereinafter defined) shall not constitute an acquisition which would cause
a Change of Control. A "Non-Control Acquisition" shall mean an acquisition
by (i) an employee benefit plan (or a trust forming a part thereof)
maintained by (x) the Company or (y) any corporation or other Person of
which a majority of its voting power or its equity securities or equity
interest is owned directly or indirectly by the Company (a "Subsidiary"),
(ii) the Company or any Subsidiary, or (iii) any Person in connection with
a "Non-Control Transaction" (as hereinafter defined); or
(b) The individuals who, as of the date of this Agreement, are members
of the Board of Directors of the Company (the "Incumbent Board") cease for
any reason to constitute at least two-thirds of the Board of the Company;
provided, however, that if the election, or nomination for election by the
Company's stockholders, of any new director was approved by a vote of at
least two-thirds of the Incumbent Board, such new director shall, for
purposes of this Agreement, be considered as a member of the Incumbent
Board; or
(c) Approval by stockholders of the Company of:
(1) A merger, consolidation or reorganization involving the
Company, unless
i) the stockholders of the Company, immediately before such
merger, consolidation or reorganization, own, directly or
indirectly, immediately following such merger, consolidation or
reorganization, at least two-thirds of the combined voting power
of the outstanding voting securities of the corporation resulting
from such merger or consolidation or reorganization (the
"Surviving Corporation") in substantially the same proportion as
their ownership of
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the Voting Securities immediately before such merger,
consolidation or reorganization, and
ii) the individuals who were members of the Incumbent Board
immediately prior to the execution of the agreement providing for
such merger, consolidation or reorganization constitute at least
two-thirds of the members of the board of directors of the
Surviving Corporation.
(A transaction described in clauses (c)(1)(i) and (ii) shall
herein be referred to as a "Non-Control Transaction").
(2) A complete liquidation or dissolution of the Company; or
(3) An agreement for the sale or other disposition of all or substantially
all of the assets of the Company to any Person (other than a transfer to a
Subsidiary).
(d) Notwithstanding anything contained in this Agreement to the
contrary, if the Executive's employment is terminated prior to a Change of
Control and the Executive reasonably demonstrates that such termination (1)
was at the request of a third party who has indicated an intention or taken
steps reasonably calculated to effect a Change of Control and who
effectuates a Change of Control (a "Third Party") or (2) otherwise occurred
in connection with, or in anticipation of, a Change of Control which
actually occurs, then for all purposes of this Agreement, the date of a
Change of Control with respect to the Executive shall mean the date
immediately prior to the date of such termination of the Executive's
employment.
"Cause" shall mean:
(a) any act that (i) constitutes, on the part of the Executive, fraud,
dishonesty, willful failure to follow the directives or implement the
policies of the Board of Directors of the Company or the Bank, willful
violation of any state or federal law or regulation applicable to the
Company or the Bank, gross malfeasance of duty, conduct grossly
inappropriate to the Executive's office, or a material willful violation of
this Agreement, and (ii) is demonstrably likely to lead to material injury
to the Company or the Bank or resulted or was intended to result in direct
or indirect gain to or personal enrichment of the Executive at the expense,
direct or indirect, of the Company or the Bank; or
(b) the conviction (from which no appeal may be or is timely taken) of
the Executive of a felony; or
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(c) the suspension or removal of the Executive by federal or state
banking regulatory authorities acting under lawful authority pursuant to
provisions of federal or state law or regulation which may be in effect
from time to time;
provided, however, that in the case of clause (a) above, such conduct shall
not constitute Cause:
(x) unless (i) there shall have been delivered to the Executive a
written notice setting forth with specificity the reasons that the Board
believes the Executive's conduct meets the criteria set forth in clause
(a), (ii) the Executive shall have been provided the opportunity to be
heard in person by the Board (with assistance of the Executive's counsel if
the Executive so desires), and (iii) after such hearing, the termination is
evidenced by a resolution adopted in good faith by two-thirds of the
members of the Board (other than the Executive); or
(y) if such conduct (i) was believed by the Executive in good faith to
have been in, or not opposed to, the interests of the Company, and (ii) was
not intended to, and did not, result in the direct or indirect gain to or
personal enrichment of the Executive.
"Confidential Information" shall mean all business and other information
relating to the business of the Company, including without limitation, technical
or non-technical data, programs, methods, techniques, processes, financial data,
financial plans, product plans, and lists of actual or potential customers,
which (i) derives economic value, actual or potential, from not being generally
known to, and not being readily ascertainable by proper means by, other Persons,
and (ii) is the subject of efforts that are reasonable under the circumstances
to maintain its secrecy or confidentiality. Such information and compilations of
information shall be contractually subject to protection under this Agreement
whether or not such information constitutes a trade secret and is separately
protectable at law or in equity as a trade secret.
"Disability" or "Disabled" shall mean the Executive's inability as a result
of physical or mental incapacity to substantially perform his duties for the
Company or the Bank on a full-time basis for a period of six (6) months as
determined by an independent physician selected with the approval of both the
Executive and the Company.
"Involuntary Termination" shall mean the termination of the Executive's
employment by the Executive following a Change of Control which is due to: (i) a
material change of the Executive's responsibilities, position (including status
as President/Chief Executive Officer of the Company, its successor or ultimate
parent entity, and the Bank), office, title, reporting relationships or working
conditions, authority or duties (including changes resulting from the assignment
to the Executive of any duties inconsistent with his positions, duties or
responsibilities as in effect immediately prior to the Change of Control); or
(ii) a change in the terms or status (including the rolling three year
termination date) of this Agreement; or (iii) a reduction in the Executive's
compensation or benefits; or (iv) a forced relocation of the Executive outside
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▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇; or (v) a significant increase in the
Executive's travel requirements; or (vi) any attempted termination for Cause
that does not comply with the substantive and procedural provisions set forth in
the definition of Cause; or (vii) the Company's insolvency; or (viii) the
Company's breach of this Agreement; and such circumstance has not been cured
within 15 business days after written notice of such circumstance has been given
to the Company and the Bank by the Executive.
"Person" shall mean any individual, corporation, bank, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
other entity.
"Voluntary Termination" shall mean the termination by Executive of
Executive's employment following a Change of Control which is not the result of
any of clauses (i) through (viii) set forth in the definition of Involuntary
Termination above.
3. Duties. During the Term hereof, the Executive shall have such duties and
authority as are typical of a President and Chief Executive Officer of companies
such as the Company and the Bank, including, without limitation, those specified
in the Company's and the Bank's Bylaws. Executive agrees that during the Term
hereof, he will devote his full time, attention and energies to the diligent
performance of his duties. Executive shall not, without prior written consent of
the Company and the Bank, at any time during the Term hereof (i) accept
employment with, or render services of a business, professional or commercial
nature to, any Person other than the Company and the Bank, (ii) engage in any
venture or activity which the Company or the Bank may in good faith consider to
be competitive with or adverse to the business of the Company, the Bank or of
any other affiliate of the Company, whether alone, as a partner, or as an
officer, director, employee or shareholder or otherwise, except that the
ownership of not more than 5% of the stock or other equity interest of any
publicly traded corporation or other entity shall not be deemed a violation of
this Section, or (iii) engage in any venture or activity which the Board of
Directors of the Company or the Bank may in good faith consider to interfere
with Executive's performance of his duties hereunder.
4. Term. Unless earlier terminated as provided herein, the Executive's
employment hereunder shall be for a rolling term of three years (the "Term")
commencing on the date hereof, with compensation to be effective as of the date
of this Agreement. This Agreement shall be deemed to extend each day for an
additional day automatically and without any action on behalf of any party
hereto; provided, however, that any party may, by notice to the others, cause
this Agreement to cease to extend automatically and, upon such notice, the
"Term" of this Agreement shall be the three years following the date of such
notice, and this Agreement shall terminate upon the expiration of such Term. If
no such notice is given and this Agreement is terminated pursuant to Section 5
hereof, for the purposes of calculating any amounts payable to the Executive as
a result of such termination, the remaining Term of this Agreement shall be
deemed to be three years from the date of such termination.
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5. Termination. This Agreement may be terminated as follows:
5.1 By the Company or the Bank. The Company or the Bank shall have the
right to terminate the Executive's employment hereunder at any time during
the Term hereof (i) for Cause, (ii) if the Executive becomes Disabled, or
(iii) upon the Executive's death.
5.1.1 If the Company or the Bank terminates Executive's
employment under this Agreement pursuant to clauses (i) through (iii)
of Section 5.1, the Company's and the Bank's obligations hereunder
shall cease as of the date of termination without prejudice to any
vested rights to benefits provided hereunder; provided, however, if
Executive is terminated for Cause after a Change of Control, then such
termination shall be treated as a Voluntary Termination as
contemplated in Section 5.2 below.
5.1.2 If the Company or the Bank terminates Executive other than
pursuant to clauses (i) through (iii) of Section 5.1 and there has
been a Change of Control, Executive shall be entitled to receive, as
severance, immediately upon such termination, the compensation and
benefits provided in Section 6 hereof that would otherwise be payable
over the three years subsequent to such termination.
5.1.3 If the Company or the Bank terminates Executive other than
pursuant to clauses (i) through (iii) of Section 5.1 and in the
absence of a Change of Control, Executive shall be entitled to
receive, as severance, immediately upon such termination, the
compensation and benefits provided in Section 6 hereof for the
remaining Term of this Agreement.
5.1.4 If the Company or the Bank terminates Executive other than
pursuant to clauses (i) through (iii) of Section 5.1, (A) all rights
of Executive pursuant to awards of share grants or options granted by
the Company or the Bank shall be deemed to have vested and shall be
released from all conditions and restrictions, except for restrictions
on transfer pursuant to the Securities Act of 1933, as amended, and
(B) the Executive shall be deemed to be credited with service with the
Company and the Bank for such remaining Term for the purposes of the
Company's and the Bank's benefit plans, including, without limitation,
any restricted stock agreements hereafter entered into with Executive.
5.1.5 For purposes of determining severance payments pursuant to
Sections 5.1.2, 5.1.3, 5.2.2 and 5.2.3, (i) the amount of annual
salary shall be deemed to be the annualized salary being paid
immediately prior to the termination, (ii) the annual amount of
unfixed compensation (such as a bonus) shall be deemed to be equal to
the average of such compensation over the three year period
immediately prior to the termination, and (iii) the annual amount of
benefits shall be deemed to be the sum of the costs to the Company and
the Bank of providing the benefits to the Executive for the twelve
month period ending immediately prior to the termination.
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5.2 By Executive. Executive shall have the right to terminate his
employment hereunder if (i) the Company or the Bank materially breaches
this Agreement and such breach is not cured within 30 days after written
notice of such breach is given by Executive to the Company and the Bank;
(ii) there is a Voluntary Termination; or (iii) there is an Involuntary
Termination.
5.2.1 If Executive terminates his employment other than pursuant
to clauses (i) through (iii) of Section 5.2, the Company's and the
Bank's obligations under this Agreement shall cease as of the date of
such termination and Executive shall be subject to the non-competition
provisions set forth in section 10 hereof.
5.2.2 If Executive terminates his employment hereunder pursuant
to either clause (i) or (iii) of Section 5.2, Executive shall be
entitled to receive immediately as severance the compensation and
benefits provided in Section 6 hereof that would otherwise be payable
over the three years subsequent to such termination.
5.2.3 If Executive terminates his employment pursuant to clause
(ii) of Section 5.2, Executive shall be entitled to receive
immediately as severance the compensation and benefits provided in
Section 6 hereof for one year following the date of his Voluntary
Termination.
5.2.4 In addition, in the event of such termination pursuant to
any of clauses (i) through (iii) of this Section 5.2, (A) all rights
of Executive pursuant to awards of share grants or options granted by
the Company or the Bank shall be deemed to have vested and shall be
released from all conditions and restrictions, except for restrictions
on transfer pursuant to the Securities Act of 1933, as amended, and
(B) the Executive shall be deemed to be credited with service with the
Company and the Bank for the remaining Term for the purposes of the
Company's and the Bank's benefit plans.
5.3 Limitation on Availability of Severance Benefits. Any severance
benefits to Executive conditioned on a Change of Control which shall not
have been claimed by Executive in writing within three (3) years following
a Change of Control shall be null, void, and deemed to have been waived by
Executive.
6. Compensation. In consideration of Executive's services and covenants
hereunder, the Company or the Bank shall pay to Executive the compensation and
benefits described below (which compensation shall be paid in accordance with
the normal compensation practices of the Company or the Bank and shall be
subject to such deductions and withholdings as are required by law or policies
of the Company and the Bank in effect from time to time, provided that his
salary pursuant to section 6.1 shall be payable not less frequently than
monthly):
6.1 Annual Salary. During the Term hereof, the Company or the Bank
shall pay to Executive a salary at a rate of $___________ per annum.
Executive's salary will be reviewed by the Board of Directors of the
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Company or the Bank at the beginning of each of its fiscal years and, in
the sole discretion of the Board of Directors of the Company or the Bank,
may be increased for such year.
6.2 Annual Incentive Bonus. During the Term hereof, the Company or the
Bank shall pay to Executive an annual incentive cash bonus in accordance
with the terms of any incentive plans adopted by the Board of Directors of
the Company or the Bank.
6.3 Stock Options. During the Term hereof, the Board of Directors of
the Company may grant Executive options to purchase Company common stock in
accordance with the terms of the Company's stock option plan.
6.4 Other Benefits. Executive shall be entitled to share in any other
employee benefits generally provided by the Company and the Bank to their
most highly ranking executives for so long as the Company or the Bank
provides such benefits. The Company or the Bank shall also provide
Executive with a Company-paid automobile and reasonable club dues for one
country club. Executive shall also be entitled to participate in all other
benefits accorded generally to Company and Bank employees.
6.5 Executive's Right To Benefits Absolute. The right of the Executive
to receive the benefits set forth in this Agreement shall be absolute and
not subject to any right of set-off or counterclaim the Company or the Bank
may have against Executive.
6.6 Discharge of Payment Obligation. The Company's obligation to make
any payments owed to the Executive under this Agreement shall be discharged
to the extent such payments are made by the Bank, and the Bank's obligation
to make any payments owed to the Executive under this Agreement shall be
discharged to the extent such payments are made by the Company.
7. Accelerated Vesting of Executive's Stock Options . Anything set forth
herein to the contrary notwithstanding, Executive's stock options shall vest
immediately upon the occurrence of a Change of Control, even if the Executive
remains employed with the Company or the Bank after a Change of Control.
However, to the extent that this Agreement is inconsistent with the Company's
Stock Option Plan, the terms of the Stock Option Plan shall control. Moreover,
anything set forth herein to the contrary notwithstanding, Executive shall have
a minimum of one (1) year from the date of vesting to exercise such stock option
rights.
8. Parachute Payments. Notwithstanding any other provision of this
Agreement, if any payment provided for in this Agreement would, if paid,
constitute a "golden parachute payment" as defined in 12 C.F.R. ss. 359.1(f) as
in effect on the date of this Agreement, the obligation of the Company or the
Bank to make such payment shall be subject to an additional condition that the
circumstances which cause the payment to be a "golden parachute payment" shall
have ceased to exist but such payment will become payable in full at such time
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as the condition is met together with interest at the prime rate, compounded
annually, from the date such payment would have been due had it not been a
"golden parachute payment" until paid.
9. Confidentiality.
9.1 Company and Bank Confidential Information. Executive acknowledges
that, prior to and during the term of this Agreement, the Company and the
Bank have furnished and will furnish to Executive, and the Executive will
develop for the benefit of the Company and the Bank, Confidential
Information which could be used by Executive on behalf of a competitor of
the Company or the Bank to the Company's or the Bank's substantial
detriment. Executive acknowledges that Confidential Information is the sole
property of the Company and the Bank. In view of the foregoing, Executive
acknowledges and agrees that the restrictive covenants contained in this
Agreement are reasonably necessary to protect the Company's and the Bank's
legitimate business interests and goodwill. Executive agrees that he shall
protect the Company's and the Bank's Confidential Information and shall not
disclose to any Person, or otherwise use, except in connection with his
duties performed in accordance with this Agreement, any Confidential
Information; provided, however, that Executive may make disclosures
required by a valid order or subpoena issued by a court or administrative
agency of competent jurisdiction, in which event Executive will, if
permitted to do so under applicable law, promptly notify the Company and
the Bank of such order or subpoena to provide the Company and the Bank an
opportunity to protect its interests. Upon the termination or expiration of
his employment hereunder, the Executive agrees to deliver promptly to the
Company and the Bank all of their respective files, customer lists,
management reports, memoranda, research, forms, financial data and reports
and other documents supplied to or created by him in connection with his
employment hereunder (including all copies of the foregoing) in his
possession or control and all of the Company's and Bank's equipment and
other materials in his possession or control. This provision shall survive
for 24 months after the later of termination of employment of Executive
with the Bank or the Company.
9.2 Third Party Confidential Information. Executive shall also hold in
the strictest confidence all confidential or proprietary information that
the Company or the Bank has received from any third party to which it is
the Company's or the Bank's obligation to maintain the confidentiality of
such information and to use it only for certain limited purposes, and
Executive shall not disclose such information to any person, firm or
corporation or use it except as necessary in carrying out Executive's work
for the Company or the Bank consistent with the Company's or the Bank's
agreement with such third party.
10. Noncompetition. In the event that Executive's employment with the
Company or the Bank is terminated before a Change of Control voluntarily by the
Executive or by the Board of Directors for Cause, then Executive shall not, for
a period of one (1) year following such termination of employment:
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(i) become employed by any insured depository institution that has
customers or does business as follows:
(a) has an office situated in or an agent or agents regularly working
in any city in which the Bank has an office in which an agent or
agents of the Bank regularly work, or
(b) has a significant number of offices situated in or a significant
number of agents regularly working in any city in which the Bank
has a significant number of offices or in which a significant
number of agents of the Bank regularly work, or
(c) has a significant number of customers located in any county of
South Carolina where the Bank has a significant number of
customers, or
(d) shares a significant number of customers with the Bank.
(ii) interfere or attempt to interfere with any business relationship of
the Company or the Bank, including, without limitation, employee and
customer relationships, whether by lawful competition or otherwise; or
(iii)engage, directly or indirectly, in any business or activity which
requires Executive, or any person or party employed by him or whom he
represents, to provide Confidential Information or other data obtained
by Executive as a result of his employment with the Company or the
Bank to any other person or party who is then engaged in providing
similar services to those of the Company or the Bank for use in
competing with the Company or the Bank; or
(iv) solicit from any customer of the Bank any business that such customer
has customarily done or contemplates doing with the Bank; or
(v) solicit any business that could be done by the Company or the Bank
from any customer of the Bank with whom the Executive had contact
while employed by the Bank; or
(vi) solicit any business on the basis of, or advertise, the Executive's
former affiliation with the Company or the Bank; or
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(vii) solicit, encourage or assist any other person to solicit or
encourage any employee of the Company or the Bank to terminate
such employment; or
(viii) otherwise compete against the Company or the Bank, directly or
indirectly, whether as principal, agent, employee, or owner of any
entity (if the percentage or ownership exceeds 10% of the entity).
The parties hereto intend the geographic areas and all other restrictions set
forth herein to be completely severable and independent; if any of the
restrictions set forth above are determined to be either unenforceable, or
unenforceable in any of the geographic areas set forth above, the parties intend
that the restrictions set forth above shall continue to apply to the remaining
geographic areas set forth above and that the other restrictions set forth above
shall continue to apply.
In the event that Executive's employment is terminated for any reason
following a Change of Control (whether by the Company or the Bank or Executive),
it is expressly acknowledged that there shall be no limitation on any
competitive activity of Executive, including direct competition with the Company
or the Bank or their successors, and neither the Company nor the Bank shall be
entitled to injunctive relief with respect to any such competitive activities of
Executive.
11. Trust. The Company shall establish an irrevocable trust to fund the
obligations hereunder (which may be a "rabbi trust" if so requested by
Executive), which trust (i) shall have as trustee an individual acceptable to
Executive, (ii) shall be funded upon the earlier of a Change of Control or the
approval of any regulatory application filed by a potential acquiror of the
Company seeking to acquire control of the Company, and (iii) shall contain such
other terms and conditions as are reasonably necessary in Executive's
determination to ensure the Company's and the Bank's compliance with its
obligations hereunder.
12. Assignment. The parties acknowledge that this Agreement has been
entered into due to, among other things, the special skills of Executive, and
agree that this Agreement may not be assigned or transferred by Executive, in
whole or in part, without the prior written consent of the Company and the Bank.
13. Notices. All notices, requests, demands, and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given if delivered or seven days after mailing if mailed, first class,
certified mail postage prepaid:
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To the Bank: GrandSouth Bank
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: Chairman of the Board
To the Company: GrandSouth Bancorporation
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: Chairman of the Board
To Executive: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Any party may change the address to which notices, requests, demands, and other
communications shall be delivered or mailed by giving notice thereof to the
other party in the same manner provided herein.
14. Provisions Severable. If any provision or covenant, or any part
thereof, of this Agreement should be held by any court to be invalid, illegal or
unenforceable, either in whole or in part, such invalidity, illegality or
unenforceability shall not affect the validity, legality or enforceability of
the remaining provisions or covenants, or any part thereof, of this Agreement,
all of which shall remain in full force and effect.
15. Remedies. (a) The Executive acknowledges that if he breaches or
threatens to breach his covenants and agreements in Sections 9 and 10 of this
Agreement, such actions may cause irreparable harm and damage to the Company or
the Bank which could not be compensated by monetary damages alone. Accordingly,
if Executive breaches or threatens to breach Section 9 or Section 10 of this
Agreement, the Company and the Bank shall be entitled to injunctive relief, in
addition to any other rights or remedies of the Company or the Bank.
(b) In the event that Executive is reasonably required to engage legal
counsel to defend or enforce his rights hereunder against the Company or the
Bank, Executive shall be entitled to receive from the Company his reasonable
attorney's fees and costs.
16. Arbitration. Any dispute or controversy, other than a claim for
injunctive relief pursuant to Section 15(a) hereof, arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
Greenville, South Carolina, by three arbitrators in accordance with the rules of
the American Arbitration Association then in effect. Judgment may be entered on
the arbitrators' award in any court having jurisdiction; provided, however, that
Executive shall be entitled to seek specific performance of the right to be paid
until the Date of Termination during the pendency of any dispute or controversy
arising under or in connection with this Agreement. The Company shall bear all
costs and expenses arising in connection with any arbitration proceeding
pursuant to this Section.
17. Waiver. Except as provided in Section 5.3 hereof, failure of either
party to insist, in one or more instances, on performance by the other in strict
accordance with the terms and conditions of this Agreement shall not be deemed a
waiver or relinquishment of any right granted in this Agreement or of the future
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performance of any such term or condition or of any other term or condition of
this Agreement, unless such waiver is contained in a writing signed by the party
making the waiver.
18. Amendments and Modifications. This Agreement may be amended or modified
only by a writing signed by the parties hereto.
19. Governing Law. The validity and effect of this Agreement shall be
governed by and construed in accordance with the laws of the State of South
Carolina.
20. Integration. This Agreement represents the entire agreement and
understanding between the parties as to the subject matter herein and supersedes
all prior or contemporaneous agreements whether written or oral. This Agreement
also specifically replaces and supercedes the Bank Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
[SIGNATURES OMITTED]
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