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
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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.
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(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
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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 a
