EXHIBIT 10.10
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 8th day of April,
2005, by and
among L. Andrew
Westbrook,
III, an individual (the "Executive"), Peoples
Bancorporation, Inc.,
a South Carolina
corporation (the
"Company"),
and the
Company's wholly-owned
subsidiary,
The Peoples National
Bank, a national bank
(the "Bank").
WHEREAS, the Company desires that the Bank employ, and the Bank
desires
to employ, the Executive as President of the Bank;
WHEREAS, the Executive is willing 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 Bank hereby
employs the Executive and the Executive hereby accepts such employment as the
President of the Bank, having such duties and responsibilities as are set
forth
in Section 3 below.
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 (as
defined in Section 4 hereof) 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 1934 Act) 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
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(c) Consummation 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, more than 50%
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 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"); or
(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); or
(d) The occurrence
of any other
event or circumstance that is not
covered by subparagraphs (a) through (c) above that the
Board of Directors
of
the Company determines
affects the control of the Company and, in order
to
implement the purposes of this Agreement, as to which the Board of
Directors adopts a resolution that such event or circumstance
constitutes a
Change of Control for purposes of this Agreement.
(e) 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 (i)
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 (ii) 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
constitutes, on the
part of the Executive,
willful
and
continued failure to
implement or follow the directives, policies or
procedures 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 which is demonstrably likely to lead to material
injury
to
the Company or the Bank; or
(b) any act that
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
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<PAGE>
(c) any act that
constitutes, on the
part of the Executive,
fraud,
dishonesty, moral turpitude, gross negligence, or intentional
damage to the
property or business of the Bank or the Company; or
(d) the conviction (from which no appeal may be or is timely taken)
of
the
Executive of a felony; or
(e) 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
clauses (a) and (b)
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 of the Company
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 of
the
Company (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 of the Company (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 the Bank, 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, its Subsidiaries or
affiliates, 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. Confidential Information does not
include any of
the foregoing items which has become publicly known and made
generally available
through no wrongful act of Executive or of others who were under
confidentiality
obligations as to the
item or items involved
or improvements
or new versions
thereof.
"Disability" or "Disabled" shall mean the Executive's inability as a
result of physical or mental incapacity to substantially
perform his duties
for
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
Bank.
"Involuntary Termination" shall mean the termination of the
Executive's
employment by the
Executive within one
year following a
Change of Control (a)
which is due to: (i) a
material change of the Executive's responsibilities,
position (including
status as a President
of a bank Subsidiary of the Company,
the Company's
successor or ultimate parent entity), 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 material change in the terms (including the
rolling three year
termination
date) of this
Agreement;
or (iii) a
material
reduction in the
Executive's
compensation
or benefits; or (iv) a forced
relocation of the Executive outside the
Anderson/Easley/Greenville/Spartanburg
metropolitan area;
or (v) a significant increase in the Executive's travel
requirements; or (vi)
the Company's
insolvency; or (vii)
the Company's or the
Bank's breach
of any material provision of this Agreement; and (b) which
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<PAGE>
circumstance has not
been cured
within 30 days after
written notice of such
circumstance has been
given to the Company and the Bank by the Executive;
provided, however, if Executive has consented in writing to any of
the events in
(i) through (vii)
above, or has not objected in writing to
any of such events
within three months after the occurrence thereof, such event or
events shall not
constitute the basis for treating the Executive's termination of his employment
as an Involuntary Termination.
"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
within one year
following a Change of
Control which is
not the result of any of clauses (a)(i) through (vii) 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 of a company such as the Bank,
including, without
limitation,
those specified in the Bank's Bylaws and
applicable resolutions
and policies adopted by the Company's or the Bank's
respective Boards of Directors. 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; provided,
however, Executive shall only be deemed to be in breach of
(ii) or (iii) of this
section 3 after he has been given written notice by the
Board of Directors
of the Company or the Bank that such
Board believes he
is
engaging in an impermissible activity and the Executive has not
terminated such
activity within 15 days after such notice.
4.
Term. Unless
earlier terminated as provided in this
Agreement,
this
Agreement and the
Executive's
period of 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, unless Executive's employment is
earlier terminated
pursuant to Section 5 hereof. If no such notice is given and
the Executive's
employment is terminated pursuant to Section 5.1.3 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.
5.
Termination. The Bank
may terminate
Executive's employment
under this
Agreement at any time,
or Executive may
terminate his
employment
under this
Agreement at any time.
Executive's
sole rights to compensation under this
Agreement in the event of such termination are as set forth
below:
5.1 By the Bank. The
Bank shall have the
right to terminate
the Executive's
employment hereunder at any time and Executive's only rights to
compensation under this Agreement shall be as follows:
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5.1.1 If the Bank terminates Executive's employment
under this Agreement for Cause or as a result of Disability, the Company's and
the Bank's obligations
hereunder shall cease as of the date of
termination,
Executive shall
have no right to
compensation
or other benefits under this
Agreement for any period after the date of termination, and Executive shall be
subject to the non-competition provisions set forth in section 10
hereof.
5.1.2 If the Bank terminates Executive other than for
Cause or as a result of Disability 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 Bank terminates Executive other than for
Cause or as a result of Disability 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 Bank terminates Executive other than for
Cause, (A) all
rights of Executive pursuant to awa
