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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, made as of the 6th day of October,
1999, by and between WACHOVIA CORPORATION (the "Corporation") and Xxxxxx X.
Xxxxxxx (the "Executive") is conditioned on, and shall be effective as of, the
consummation of the merger contemplated by the Agreement and Plan of Merger,
dated as of October 6, 1999, by and among the Corporation and BC Bankshares,
Inc. (the "Merger");
R E C I T A L S:
The Corporation desires to secure the services of the
Executive in its behalf or in behalf of one or more of its subsidiaries for
which the Executive may render services hereunder from time to time, in
accordance with the terms and conditions set forth herein. In addition, the
Corporation desires to provide the Executive with an incentive to remain in the
service of the Corporation or one or more of its subsidiaries by granting to the
Executive compensation security as set forth herein should his employment be
terminated by the Corporation without cause during the term of this Agreement.
NOW, THEREFORE, the Corporation and the Executive hereby
mutually agree as follows:
1. Employment.
(a) Duties. The Executive shall devote his working time
exclusively to the performance of such services for the Corporation or
one or more of its subsidiaries as may be assigned to him by the
Corporation from time to time, and shall perform such services
faithfully and to the best of his ability. Executive shall have the
title of Senior Vice President of Wachovia Bank, N.A. Executive shall
serve as Wachovia Bank, N.A.'s principal executive for Cherokee County
and, as such, his responsibilities shall include the on-going
management of banking operations, community activities and business
development in the Cherokee County market and, in any event, shall be
of a type for which the Executive is suited by background and training.
References herein to services rendered for the Corporation and
compensation and benefits payable or provided by the Corporation shall
include services rendered for and compensation and benefits payable or
provided by any subsidiary of the Corporation.
(b) Compensation. During the term, defined below, the
Executive shall be entitled to a base salary of $175,000, payable in
accordance with the Corporation's payroll policies, and shall be
eligible to receive discretionary base salary increases, based upon the
Executive's performance under the Corporation's
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salary administration program. The Executive shall also be an eligible
participant in the Management Incentive Plan ("MIP"). During the term,
the MIP award earned, if any, shall be determined in accordance with
the terms of the MIP; provided, however, that (i) for the 2000 plan
year, the Executive's MIP target award shall be no less than 30% of
base earnings and (ii) the Corporation shall pay the Executive a
minimum MIP award for the 2000 plan year of $49,500.
(c) Equity Awards/Other Benefits. The Executive shall be
entitled to receive the equity awards and employee benefits set forth
on Appendix A hereto.
2. Term of Agreement. Subject to the consummation of the
Merger, the Corporation agrees to employ the Executive and Executive
agrees to be so employed as set forth herein for the period commencing
with the effectiveness of the Merger (the "Effective Date") and ending
on the third anniversary thereof (subject to earlier termination as set
forth herein, the "term"). References herein to the "term" do not
include the Compensation Period described in Section 4. The Executive
understands that his execution of this Agreement is a condition
precedent to the Corporation's execution of the Agreement and Plan of
Merger. In consideration of the substantial expenses and other
obligations that the Corporation will incur in connection with the
Merger, including the obligations under this Agreement, the Executive
agrees and undertakes not to enter into any employment agreement or
similar arrangement (other than this Agreement ) with any party
(including, without limitation, BC Bankshares, Inc.) between the date
of this Agreement as first written above and the Effective Date or the
date of a valid termination of the Agreement and Plan of Merger, if
earlier.
3. Termination of Employment by the Corporation. The
Corporation may terminate the employment of the Executive at any time
for any reason; provided, that except as set forth in Sections 6 and 7,
the Corporation will provide the Executive with Compensation
Continuance to the extent described in Section 4 if the Executive's
employment is involuntarily terminated. The Executive's employment
shall be deemed to be involuntarily terminated if he is terminated by
the Corporation for any reason other than for "cause" as defined in
Section 6, or if he voluntarily terminates employment within six months
after: (a) his base salary is reduced below its level in effect on the
date hereof without the Executive's consent, (b) the duties assigned to
the Executive are not of the status and type described in Section 1(a)
and the Executive has not consented thereto or (c) the Corporation
requires Executive, without his consent, to be permanently based at any
office or location other than in Cherokee County, Georgia; provided,
however, that Executive acknowledges that he may be required to travel
on business to areas beyond Cherokee County and may, in the course of
his duties hereunder, be temporarily based in other locations. The
Executive shall be deemed to have
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consented to any reduction described in (a) or assignment described in
(b), unless he shall object thereto in writing within thirty days after
he receives notice thereof.
4. Compensation Continuance. If the Executive's employment
hereunder is involuntarily terminated as described in Section 3, he
will be entitled to receive the cash compensation and benefits
described in (a), (b) and (c) below (herein, "Compensation
Continuance") for the period beginning with the date of such
involuntary termination and ending with the expiration of the three
year term of this Agreement (such period is referred to herein as the
"Compensation Period"). The cash compensation and benefits are as
follows:
(a) Cash Compensation. The amount of cash
compensation to be received monthly during the Compensation
Period shall equal one-twelfth of the sum of (i) the
Executive's highest annual rate of salary from the Corporation
in effect during the 12-month period prior to his involuntary
termination, plus (ii) an amount equal to the average of the
incentive compensation paid to the Executive by the
Corporation, if any, for the three consecutive calendar years
next preceding the year of termination (or, if less than three
years, the entire period of Executives employment with the
Corporation); provided that the incentive compensation to be
recognized for this purpose shall be approved by the
Management Resources and Compensation Committee, plus (iii)
the average of any annual contributions by the Corporation
(excluding participant contributions) in behalf of the
Executive under the Retirement Savings and Profit-Sharing Plan
of Wachovia Corporation and the Wachovia Corporation Executive
Deferred Compensation Plan for the three consecutive calendar
years preceding the year of such termination (or, if less than
three years, the entire period of Executives employment with
the Corporation). Each monthly payment of such cash
compensation shall have deducted therefrom all payroll taxes
and withholdings required by law.
(b) Employee Benefits. During the Compensation Period
the Executive shall be carried on the payroll of the
Corporation, and shall be deemed to be continuing in the
employment of the Corporation for the purpose of applying and
administering employee benefit plans of the Corporation (other
than any tax-qualified retirement plans) and individual
contracts between the Corporation and the Executive providing
supplemental or equalization payments or benefits with respect
to the Executive. The Executive shall participate in any
changes during the Compensation Period in benefit plans or
programs applicable generally to employees of the Corporation,
or to a class of employees which includes
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executives of the Corporation, but shall not have any right or
option to participate in any such plan or program in which he
was not a participant immediately prior to his involuntary
termination of employment. Any individual contract between the
Corporation and the Executive in effect at the time of his
involuntary termination of employment may be terminated or
amended by the Corporation to the extent permitted by the
terms of such contract. The Corporation shall have no
obligation to the Executive to make any change or improvement
in any such contract during the Compensation Period even if
the Corporation shall make changes or improvements during such
period in similar contracts, if any, with other executives of
the Corporation.
(c) Acceleration of Stock Options and Restricted
Awards. Immediately upon termination of the Executive's
employment, all options previously granted to the Executive
and outstanding on the date of termination to acquire shares
of common stock of the Corporation shall become fully vested
and exercisable (or subject to surrender) in full and all
restricted awards shall be deemed to be earned in full and any
restrictions thereon shall lapse.
In the event that the Executive shall engage in full-time employment
permitted hereunder for another employer or on a self-employed basis
during the Compensation Period, his employment with the Corporation
shall be deemed to have terminated for purposes of Section 4(b) as of
the date he begins such full-time employment, but the payments in
Section 4(a) shall continue for the remainder of the Compensation
Period and the rights under Section 4(c) shall be applicable, in each
case subject to the provisions of Section 7.
5. Voluntary Termination of Employment by the Executive. The
Executive reserves the right to terminate his employment voluntarily at
any time for any reason following at least 90 days= notice to the
Corporation. If such notice shall be given, this Agreement shall
terminate as of the effective date of termination as set forth in such
notice (or the date 90 days from the date of receipt by the Corporation
of such notice, if no effective date shall be set forth therein),
unless sooner terminated as provided in Section 3, 6 or 9. The
Executive shall not be entitled to any form of Compensation Continuance
as a result of such voluntary termination.
6. Termination for Cause. This Agreement shall immediately be
terminated and the Corporation shall no longer have any obligation
hereunder (including but not limited to any obligation on the part of
the Corporation to provide Compensation Continuance) if the Executive's
employment is terminated
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for "cause". Termination for cause shall occur when termination results
from the Executive's (a) criminal dishonesty, (b) refusal to perform
his duties hereunder on substantially a full-time basis, (c) refusal to
act in accordance with any specific substantive instructions of the
executive officer or officers of the Corporation who are delegated
oversight responsibilities for the Cherokee County operation, or the
Board of Directors of the Corporation, or (d) engaging in conduct which
could be materially damaging to the Corporation without a reasonable
good faith belief that such conduct was in the best interests of the
Corporation. The determination of whether a termination is for cause
shall be made by the Management Resources and Compensation Committee of
the Board of Directors of the Corporation (the "Committee"), and such
determination shall be final and conclusive on the Executive and all
other persons affected thereby.
7. Executive's Obligations: Early Termination of Compensation
Period.
(a) The Executive has obtained and may obtain confidential
information concerning the businesses, operations, financial affairs,
organizational and personnel matters, policies, procedures and other
non-public matters of the Corporation and its affiliates, and those of
third parties that is not generally disclosed to persons not employed
by the Corporation or its subsidiaries. Such information (referred to
herein as the "Confidential Information") may have been or may be
provided in written form or orally. The Executive shall not disclose to
any other person the Confidential Information at any time during or
after the term and the Compensation Period, provided that the Executive
may disclose such Confidential Information only to a person who is then
a director, officer, employee, partner, attorney or agent of the
Corporation who, in the Executive's reasonable good faith judgement,
has a need to know the Confidential Information.
(b) In view of the Executive's importance to the success of
the Corporation's business, the Executive and the Corporation agree
that the Corporation would likely suffer significant harm from the
Executive's competing with the Corporation during the Executive's
employment and for some period of time thereafter. Accordingly, the
Executive agrees that the Executive shall not engage in competitive
employment while employed by the Corporation and for a period equal to
the greater of (i) the Compensation Period and (ii) twenty-four (24)
months following the Executive's termination of employment by the
Corporation for cause or voluntary termination by the Executive during
the term. The Executive shall be deemed to engage in competitive
employment if he shall, without the prior written consent of the
Committee, render services as an employee, officer, director,
consultant, partner or otherwise for or of any organization which
conducts, or is otherwise engaged in the commercial and retail
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banking business within the following counties in the State of Georgia:
Cherokee County, Bartow County, Xxxx County, Xxxxxx County, Forsyth
County, Xxxxxx County, Xxxxxx County, and Xxxxxxx County.
(c) While employed by the Corporation and for a period equal
to the greater of (i) the Compensation Period and (ii) twenty four (24)
months following the Executive's termination of employment by the
Corporation for cause or voluntary termination by the Executive during
the term, the Executive agrees that the Executive shall not, in any
manner, directly or indirectly, (i) solicit by mail, by telephone, by
personal meeting, or by any other means, either directly or indirectly,
any customer or prospective customer of the Corporation to whom the
Executive provided services, or for whom the Executive transacted
business, or whose identity became known to the Executive in connection
with the Executive's employment with the Corporation (including
employment with any predecessor or successor entities), to transact
business with a person or an entity other than the Corporation or its
affiliates or reduce or refrain from doing any business with the
Corporation, or its affiliates or (ii) interfere with or damage (or
attempt to interfere with or damage) any relationship between the
Corporation or its affiliates and any such customer or prospective
customer. The term "solicit" as used in this paragraph and paragraph
(d) means any communication of any kind whatsoever, inviting,
encouraging or requesting any person to take or refrain from taking any
action with respect to the business of the Corporation and its
subsidiaries.
(d) While employed by the Corporation and for a period equal
to the greater of (i) the Compensation Period and (ii) twenty four (24)
months following the Executive's termination of employment by the
Corporation for cause or voluntary termination by the Executive during
the term, the Executive agrees that the Executive shall not, in any
manner, directly or indirectly, solicit any person who is an employee
of the Corporation or any of its affiliates to apply for or accept
employment or a business opportunity with any person or entity.
(e) The Executive acknowledges that a violation on the
Executive's part of this Section 7 would cause immeasurable and
irreparable damage to the Corporation. Accordingly, the Executive
agrees that the Corporation shall be entitled to injunctive relief in
any court of competent jurisdiction for any actual or threatened
violation of any of the provisions of this Section 7 in addition to any
other remedies it may have.
(f) In addition to the Corporation's rights set forth in
paragraph (e), in the event that the Executive shall materially violate
the terms and conditions of paragraphs (a), (b), (c) or (d) of this
Section 7, the Corporation may terminate the Compensation Period and
Compensation Continuance, if applicable, to the
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Executive. The Committee shall be responsible for determining whether
the Executive shall have violated this Section 7. Upon the request of
the Executive, such Committee shall provide an advance opinion as to
whether a proposed activity would violate the provisions of Section 7.
8. Facilitation of Transfer of Customer Relationships. (a) If
the term is voluntarily terminated by the Executive, the Executive
shall, during the Facilitation Period (as defined below), take all
actions and do all things as may be reasonably requested by the
Corporation (in writing, if the Executive so requests) from time to
time and as may be reasonable under the circumstances to maintain for
the Corporation and its affiliates, the business, goodwill, and
business relationships of any of any such entity's customers with which
the Executive worked during the term of the Executive's employment by
the Corporation or any predecessor or successor. The Corporation
acknowledges that to the extent it requires the Executive to be off
premises, the Executive's ability to cooperate with the Corporation
under this Section 8 may be limited.
(b) For purposes of this Section 8, "Facilitation Period"
shall mean the 90-day period beginning on the date on which a notice of
termination is delivered.
9. Death and Disability. In the event that, during the term of
this Agreement or during the Compensation Period, the Executive shall
die or shall become entitled to benefits under the Corporation's
Long-Term Disability Plan, this Agreement shall thereupon terminate and
neither the Executive nor any other person shall have any further
rights or benefits hereunder (including any rights to Compensation
Continuance).
10. Other Severance Benefits. Except as otherwise provided in
this Agreement, the Executive shall not be entitled to any form of
severance benefits, including benefits otherwise payable under any of
the Corporation's regular severance plans or policies, irrespective of
the circumstances of his termination of employment. The Executive
agrees that the payments and benefit provided hereunder, subject to the
terms and conditions hereof, shall be in full satisfaction of any
rights which he might otherwise have or claim by operation of law, by
implied contract or otherwise, except for rights which he may have
under employee benefit plans of the Corporation or individual written
contracts with the Corporation.
11. Waiver of Claims. In the event of the termination of the
Executive's employment by the Corporation without cause, or in
circumstances that constitute Executive's involuntary termination,
within the meaning set forth in Section 3, in consideration of the
obligations of the Corporation hereunder, the Executive shall, and does
hereby, unconditionally release the Corporation, its
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directors, officers, employees and shareholders, from any and all
claims, liabilities and obligations of any nature pertaining to
termination of the Executive's employment by the Corporation, including
but not limited to (a) any claims under federal, state or local laws
prohibiting discrimination, including without limitation the Age
Discrimination in Employment Act of 1967, as amended, or (b) any claims
growing out of any alleged legal restrictions on the Corporation's
right to terminate the Executive's employment, such as any alleged
implied contract of employment or termination contrary to public
policy. The Executive acknowledges and shall acknowledge in such
release, that he has been advised to consult with an attorney prior to
signing the release, that he has had no less than twenty-one days to
consider the release prior to its execution, and that he may revoke the
release at any time within seven days following the execution thereof.
12. Notices. All notices hereunder shall be in writing and
deemed properly given if delivered by hand and receipted or if mailed
by registered mail, return receipt requested. Notices to the
Corporation shall be directed to the Secretary of the Corporation with
a copy directed to the General Counsel. Notices to the Executive shall
be directed to his last known address.
13. Miscellaneous.
(a) The waiver, whether express or implied, by either
party of a violation of any of the provisions of this
Agreement shall not operate or be construed as a waiver of any
subsequent violation of any such provision.
(b) No right, benefit or interest hereunder shall be
subject to assignment, encumbrance, charge, pledge,
hypothecation or set off in respect of any claim, debt or
obligation, or similar process.
(c) This Agreement may not be amended, modified or
canceled except by written agreement of the parties.
(d) In the event that any provision or portion of
this Agreement shall be determined to be invalid or
unenforceable for any reason, the remaining provisions of this
Agreement shall remain in full force and effect to the fullest
extent permitted by law.
(e) This Agreement shall be binding upon and inure to
the benefit of the Executive and the Corporation, and their
respective heirs, successors and assigns.
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(f) No benefit or promise hereunder shall be secured
by any specific assets of the Corporation. The Executive shall
have only the rights of an unsecured general creditor of the
Corporation in seeking satisfaction of such benefits or
promises.
(g) This Agreement shall be governed by and construed
in accordance with the laws of the State of North Carolina.
(h) This Agreement sets forth the entire agreement
and understanding of the parties hereto with respect to the
matters covered hereby.
IN WITNESS WHEREOF, this Agreement has been executed by or in
behalf of the parties hereto as of the date first above written.
WACHOVIA CORPORATION
By: /s/ G. Xxxxxx Xxxxxxxxxxx
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Name: G. Xxxxxx Xxxxxxxxxxx
Title: President and Chief Operating
Officer
Attest:
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Secretary
[Corporate Seal]
/s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxx
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APPENDIX A
Employee Benefits
During the term of this Agreement, Executive shall be eligible to participate in
the employee benefit plans generally provided to salaried employees of the
Corporation. In addition, the Executive shall participate in the automobile
allowance program. The Corporation shall provide the Executive with an
automobile allowance of $700 per month, payable semi-monthly and net of
applicable income and payroll tax withholdings.
Equity Awards
Executive shall be granted an award of 5,000 restricted stock units on the
Effective Date of the Merger. This restricted award will vest on the third
anniversary of the award, subject to the Executive=s continuous employment with
the Corporation, and, subject to Section 4(c) hereof, shall otherwise be subject
to the terms and conditions of the Stock Plan of the Corporation (the "Stock
Plan"). In addition, the Executive shall receive an option to purchase 5,000
shares of Wachovia Corporation common stock as of the Effective Date of the
Merger. The stock options vest over a five-year period at a rate of 20% per
year, commencing on the first anniversary of grant, and, subject to Section 4(c)
hereof, shall otherwise be subject to the terms and conditions of the Stock
Plan.
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