Exhibit 10.10
Employment Agreement
with Xxxxx X. Xxxxx
EMPLOYMENT AGREEMENT
THIS AGREEMENT entered into on the 1st day of October, 1993 and amended
on this 27th day of September, 1996, by and between FIRST FEDERAL SAVINGS AND
LOAN ASSOCIATION OF CHARLESTON, (the "Association"), FIRST FINANCIAL HOLDINGS,
INC. (the "Holding Company") and XXXXX X. XXXXX (the "Employee").
WHEREAS, the Employee has heretofore been employed by the Association as
Senior Vice President and Chief Financial Officer and is experienced in all
phases of the business of the Association; and
WHEREAS, the parties desire by this writing to set forth the continued
employment relationship of the Association and the Employee;
NOW THEREFORE, it is AGREED as follows:
1. Employment. The Employee is employed as the Senior Vice President
and Chief Financial Officer of the Association. The Employee shall render
administrative and management services to the Association such as are
customarily performed by persons situated in a similar executive capacity.
She shall also promote, by entertainment or otherwise, as and to the extent
permitted by law, the business of the Association. The Employee's other
duties shall be such as the Board of Directors may from time to time
reasonably direct, including normal duties as an officer of the Association.
2. Base Compensation. The Association agrees to pay the Employee during
the term of this Agreement a salary at the rate of $88,440 per annum, payable
in cash not less frequently than monthly. Such rate of salary, or increased
rate of salary, if any, as the case may be, shall be reviewed by the Board of
Directors of the Association no less often than annually.
3. Discretionary Bonuses. The Employee shall be entitled to participate
in an equitable manner with all other key management personnel of the
Association in discretionary bonuses authorized and declared by the Board of
Directors of the Association to its key management employees. No other
compensation provided for in this Agreement shall be deemed a substitute for
the Employee's right to participate in such discretionary bonuses when and as
declared by the Board of Directors. Any such bonus shall take into account
the Association's current financial condition, operations, and the Board of
Directors' evaluation of the performance of the Employee.
4. (a) Participation in Retirement and Medical Plans. The Employee
shall be entitled to participate in any plan of the Association relating to
pension, profit-sharing, or other retirement benefits and medical coverage or
reimbursement plans that the Association may adopt for the benefit of its
employees.
(b) Employee Benefits; Expenses. The Employee shall be eligible to
participate in any fringe benefits that may be or become applicable to the
Association's executive employees, including participation in a stock option
or incentive plan adopted by the Board of Directors, and any other benefits
that are commensurate with the responsibilities and functions to be performed
by the Employee under this Agreement. The Association shall reimburse
Employee for all out-of-pocket expenses that Employee shall incur in
connection with his services for the Association.
5. Term. The initial term of employment under this Agreement
commenced October 1, 1993 for a one year period. As of the date of this
amendment hereto, the Employee's period of employment under this Agreement has
been extended by the Board of Directors through September 30, 1996. The said
36-month period of employment may be extended for an additional 12 full
calendar months by action of the Board of Directors at the September, 1997
meeting of the Board of Directors and at each succeeding September meeting of
the Board of Directors.
6. Loyalty; Noncompetition. (a) The Employee shall devote her full
time and best efforts to the performance of her employment under this
Agreement. During the term of this Agreement, the Employee shall not, at any
time or place, either directly or indirectly, engage in any business or
activity in competition with the business affairs or interests of the
Association or be a director, officer or employee of or consultant to any
bank, savings and loan association, credit union or similar thrift, savings
bank or institution.
(b) Upon termination of this Agreement for any reason other than the
reasons set forth in paragraph 9 of this Agreement, for a period of three (3)
years from the termination of this Agreement, the employee shall not at any
time or place, either directly or indirectly, engage in any business or
activity in competition with the business affairs or interests of the
Association or be a director, officer or employee of or consultant to any
bank, savings and loan association, credit union or similar thrift, savings
bank or institution in an area within a fifty (50) mile radius of any office
of any subsidiary or affiliate of the Holding Company.
(c) During the term of this Agreement, nothing in the foregoing
subparagraphs in paragraph 6 shall apply to subsidiaries and affiliates of the
Holding Company or shall be determined to prevent or limit the right of
Employee to invest in the capital stock or other securities of any business
dissimilar from that of employer or solely as a passive investor in any
business.
(d) Directly or indirectly engaging in any business or activity in
competition with the business affairs or interests of the Association shall
include engaging in business as owner, partner, agent or employee of any
person, firm or corporation engaged in such business individually or as
beneficiary by interest in any partnership, corporation or other business
entity or in being interested directly or indirectly in any such business
conducted by any person, firm or corporation.
(e) In the event of violation by Employee of this agreement for
loyalty and noncompetition, the Employee will be subject to damages and
because of the relationship of employer and employee, it is hereby agreed
injunctive relief is necessary for employer to enforce these provisions of the
agreement to protect its business and good will.
7. Standards. The Employee shall perform her duties under this
Agreement in accordance with such reasonable standards expected of employees
with comparable positions in comparable organizations and as may be
established from time to time by the Boards of Directors of the Association
and the Holding Company and its subsidiaries.
8. Vacation and Sick Leave. At such reasonable times as the Board of
Directors of the Association shall in its discretion permit, the Employee
shall be entitled, without loss of pay, to absent herself voluntarily from the
performance of her employment under this Agreement, all such voluntary
absences to count as vacation time; provided that:
(a) The Employee shall be entitled to any annual vacation in
accordance with the policies as periodically established by the Board of
Directors for senior management officials of the Association, which shall in
no event be less than the current policies of the Association.
(b) The timing of vacations shall be scheduled in a reasonable
manner by the Employee. The Employee shall not be entitled to receive any
additional compensation from the Association on account of her failure to take
a vacation; nor shall he be entitled to accumulate unused vacation from one
fiscal year to the next except to the extent authorized by the Board of
Directors for senior management officials of the Association.
(c) In addition to the aforesaid paid vacations, the Employee shall
be entitled without loss of pay, to absent herself voluntarily from the
performance of her employment with the Association for such additional period
of time and for such valid and legitimate reasons as the Board of Directors in
its discretion may determine. Further, the Board of Directors shall be
entitled to grant to the Employee a leave or leaves of absence with or without
pay at such time or times and upon such terms and conditions as the Board in
its discretion may determine.
(d) In addition, the Employee shall be entitled to an annual sick
leave as established by the Board of Directors for senior management officials
of the Association. In the event any sick leave time shall not have been used
during any year, such leave shall accrue to subsequent years only to the
extent authorized by the Board of Directors. Upon termination of her
employment, the Employee shall not be entitled to receive any additional
compensation from the Association for unused sick leave.
9. Termination and Termination Pay.
This Agreement shall be terminated upon the following occurrences:
(a) The death of the Employee during the term of this Agreement, in
which event the Employee's estate shall be entitled to receive the
compensation due the Employee through the last day of the calendar month in
which her death shall have occurred.
(b) This Agreement may be terminated at any time by a decision of
the Board of Directors of the Association for conduct not constituting
termination for "Just Cause," or by the Employee upon sixty (60) days written
notice to the Association, as the case may be. In the event this Agreement is
terminated by the Board of Directors without Just Cause, the Association shall
be obligated to continue to pay the Employee her salary up to the date of
termination of the term (including any renewal term) of this Agreement. In
the event this Agreement is terminated by the Employee, the compensation and
benefits will be terminated upon the effective date of the employment
termination or as may otherwise be determined by the Board of Directors.
(c) The Association reserves the right to terminate this Agreement
at any time for Just Cause. Termination for "Just Cause" shall mean
termination for personal dishonesty, incompetence, willful misconduct, breach
of a fiduciary duty involving personal profit, intentional failure to perform
stated duties, willful violation of any law, rule or regulation (other than a
law, rule or regulation relating to a traffic violation or similar offense),
final cease-and-desist order, termination under the provisions of
subparagraphs (d) and (e) below, or material breach of any provision of this
Agreement. Subject to the provisions of paragraph 12 hereof, in the event
this Agreement is terminated for Just Cause, the Association shall only be
obligated to continue to pay the Employee her salary up to the date of
termination.
(d) (i) If the Employee is suspended and/or temporarily prohibited
from participating in the conduct of the Association's affairs by a notice
served under Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act
("FDIA") (12 U.S.C. 1818(e)(3) and (g)(1)), the Association's obligations
under the Agreement shall be suspended as of the date of service, unless
stayed by appropriate proceedings. If the charges in the notice are
dismissed, the Association may in its discretion (a) pay the Employee all or
part of the compensation withheld while its contract obligations were
suspended and (b) reinstate (in whole or in part) any of its obligations that
were suspended.
(ii) If the Employee is removed and/or permanently prohibited
from participating in the conduct of the Association's affairs by an order
issued under Section 8(e)(4) or (g)(1) of the FDIA (12 U.S.C. 1818(e)(4) or
(g)(1)), all obligations of the Association under the Agreement shall
terminate as of the effective date of the order, but vested rights of the
contracting parties shall not be affected.
(e) If the Association is in default (as defined in Section 3(x)(1)
of the FDIA), all obligations under this Agreement shall terminate as of the
date of default, but this paragraph shall not affect any vested rights of the
parties.
(f) All obligations under this Agreement may be terminated: (i) by
the Director of the Office of Thrift Supervision (the "Director") or his or
her designee at the time the Federal Deposit Insurance Corporation or the
Resolution Trust Corporation enters into an agreement to provide assistance to
or on behalf of the Association under the authority contained in Section 13(c)
of the FDIA or (ii) by the Director, or his or her designee at the time the
Director or such designee approves a supervisory merger to resolve problems
related to operation of the Association or when the Association is determined
by the Director to be in an unsafe or unsound condition. Any rights of the
parties that have already vested, however, shall not be affected by such
action.
(g) If, after a "Change of Control" (as hereinafter defined) of the
Association or the Holding Company, the Association shall terminate the
employment of the Employee during the period of employment under this
Agreement for any reason other than Just Cause, as defined in paragraph 9(c),
or otherwise change the present capacity or circumstances in which the
Employee is employed as set forth in paragraph 1 of this Agreement, or cause a
reduction in the Employee's responsibilities or authority or compensation or
other benefits provided under this Agreement without the Employee's written
consent, then the Association shall pay to the Employee and provide the
Employee, or to his beneficiaries, dependents and estate, as the case may be,
with the following:
(i) The Association shall promptly pay to the Employee an amount
equal to the product of 2.99 times the Employee's "base amount" as defined in
Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended.
(ii) During the period of 36 calendar months beginning with
the event of termination, the Employee, her dependents, beneficiaries and
estate shall continue to be covered under all employee benefit plans of the
Association, including without limitation the Association's pension plan, life
insurance and health insurance as if the Employee was still employed during
such period under this Agreement.
(iii) If and to the extent that benefits or service credit
for benefits provided by paragraph 9(g)(ii) shall not be payable or provided
under any such plans to the Employee, her dependents, beneficiaries and
estate, by reason of her no longer being an employee of the Association as a
result of termination of employment, the Association shall itself pay or
provide for payment of such benefits and service credit for benefits to the
Employee, her dependents, beneficiaries and estate. Any such payment relating
to retirement shall commence on a date selected by the Employee which must be
a date on which payments under the Association's qualified pension plan or
successor plan may commence.
(iv) If the Employee elects to have benefits commence prior
to the normal retirement age under the qualified pension plan or any successor
plan maintained by the Association and thereby incurs an actuarial reduction
in his monthly benefits under such plan, the Association shall itself pay or
provide for payment to the Employee of the difference between the amount that
would have been paid if the benefits commenced at normal retirement age and
the actuarially reduced amount paid upon the early commencement of benefits.
(v) The Association shall pay all legal fees and expenses which
the Employee may incur as a result of the Association's contesting the
validity or enforceability of this Agreement that results in a legal judgement
in her favor or legal settlement and the Employee shall be entitled to receive
interest thereon for the period of any delay in payment from the date such
payment was due at the rate determined by adding two hundred basis points to
the six month Treasury Xxxx rate.
(vi) The Employee shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other
employment or otherwise nor shall any amounts received from other employment
or otherwise by the Employee offset in any manner the obligations of the
Association hereunder.
10. Change of Control. A "Change of Control" shall be deemed to
have occurred, if:
(i) Any person becomes the beneficial owner, directly or
indirectly, of 25% or more of the outstanding shares of any class of voting
stock issued by the Association or the Holding Company;
(ii) Any person becomes the beneficial owner, directly or
indirectly, of 10% or more, but less than 25%, of the outstanding shares of
any class of voting stock issued by the Association or the Holding Company, if
the Board of Directors of the Association or the Holding Company, or the
Office of Thrift Supervision ("OTS"), or other appropriate regulatory
authority, has made a determination that such beneficial ownership constitutes
or will constitute control of the Association or the Holding Company;
(iii) Any person (other than the persons named as proxies
solicited on behalf of the Board of Directors of the Association or the
Holding Company) holds revocable or irrevocable proxies as to the election or
removal of two or more directors of the Association or the Holding Company, or
for 25% or more of the total number of voting shares of the Association or the
Holding Company;
(iv) The OTS or other appropriate regulatory authority has given
the required approval of non-objection to the acquisition or control of the
Association or the Holding Company by any person;
(v) Any person has commenced a tender or exchange offer, or
entered into an agreement or received an option, to acquire beneficial
ownership of 25% or more of the total number of voting shares of the
Association or the Holding Company, whether or not the required approval or
non-objection for such acquisition has been received from the OTS, or other
appropriate regulatory authority, if the Association's or the Holding
Company's Board of Directors has made a determination that such action
constitutes or will constitute a Change in Control; or
(vi) During any period of 24 consecutive months, individuals who
at the beginning of such period constitute the Association's or the Holding
Company's Board of Directors cease for any reason to constitute at least a
majority of the Board, unless the election of each director who was not a
director at the beginning of such period has been approved in advance by
directors representing at least two-thirds of the directors then in office who
were directors at the beginning of the period.
11. Disability. If the Employee shall become disabled or
incapacitated to the extent that she is unable to perform the duties of Senior
Vice President and Chief Financial Officer, she shall be eligible to
participate in the Association's long-term disability plan as established by
the Board of Directors for employees and management personnel, or any other
disability plan which may be established by the Board of Directors for
management personnel. Upon returning to active full-time employment, the
Employee's full compensation as set forth in the paragraphs of this Agreement
entitled "Compensation" and "Discretionary Bonuses" shall be reinstated. In
the event that said Employee returns to active employment on other than a
full-time basis, then her compensation (as set forth in the paragraph of this
Agreement entitled "Compensation") shall be reduced in proportion to the time
spent in said employment. However, if she is again unable to perform the
duties of Senior Vice President and Chief Financial Officer hereunder due to
illness or other incapacity, she must have been engaged in active full-time
employment for at least twelve (12) consecutive months immediately prior to
such later absence or inability in order to qualify for the full or partial
continuance of her salary under the paragraph entitled "Disability."
12. Expenses to Enforce Agreement. In the event any dispute shall
arise between the Employee and the Association or the Holding Company as to
the terms or interpretation of this Agreement, whether instituted by formal
legal proceedings or otherwise, including any action taken by Employee in
defending against any action taken by the Association or the Holding Company,
the prevailing party shall be reimbursed for all costs and expenses, including
reasonable attorney's fees, arising from such dispute, proceedings or actions.
Such reimbursement shall be paid within 10 days of the furnishing to the non-
prevailing party of written evidence, which may be in the form of a cancelled
check or receipt, among other things, of any costs or expenses incurred by the
prevailing party. Any such request for reimbursement shall be made no more
frequently than at 60-day intervals.
13. Successor and Assigns. (a) This Agreement shall inure to the
benefit of and be binding upon any corporate or other successor of the
Association and the Holding Company which shall acquire, directly or
indirectly, by merger, consolidation, purchase or otherwise, all or
substantially all of the assets of the Association.
(b) Since the Association is contracting for the unique and
personal skills of the Employee, the Employee shall be precluded from
assigning or delegating her rights or duties hereunder without first obtaining
the written consent of the Association.
14. Amendments. No amendments or additions to this Agreement shall be
binding unless in writing and signed by the parties hereto, except as herein
otherwise provided.
15. Applicable Law. This Agreement shall be governed in all respects
whether as to validity, construction, capacity, performance or otherwise, by
the laws of South Carolina, except to the extent that Federal law shall be
deemed to apply. This Agreement is intended to comply with the requirements of
12 CFR Section 563.39 and to the extent it conflicts with the provisions of
that Section, Section 563.39 shall control. Any payments made to the employee
pursuant to this Agreement, or otherwise, shall be subject to and conditioned
upon compliance with 12 U.S.C. Section 1828(k) and any regulations promulgated
thereunder.
16. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first hereinabove written.
FIRST FEDERAL SAVINGS AND LOAN
ASSOCIATION OF CHARLESTON
ATTEST:
/s/ Xxxxxxx X. Xxxxxxxxx BY /s/ D. Xxx Xxxxx
Xxxxxxx X. Xxxxxxxxx D. Xxx Xxxxx
Chairman of the Board
ATTEST: FIRST FINANCIAL HOLDINGS, INC.
/S/ Xxxxxxx X. Xxxxxxxxx BY /s/ D. Xxx Xxxxx
Xxxxxxx X. Xxxxxxxxx D. Xxx Xxxxx
Chairman of the Board
/s/Xxxxxxx X. XxXxxx /s/ Xxxxx X. Xxxxx
Witness Xxxxx X. Xxxxx
