Exhibit 10.7
SECOND 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 Joe E. Burns (the
“Employee”).
WHEREAS, the Company and Employee
formerly entered into an Agreement entitled Employment Agreement
dated October 23, 2002 and thereafter entered into an Amended
and Restated Employment and Non-Competition Agreement effective
September 1, 2006; and
WHEREAS, Company and Employee wish
to terminate the Amended and Restated Employment and
Non-Competition Agreement effective September 1, 2006, and
enter into this 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 year 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 Chief
Credit Officer of the Company and South Carolina Bank and Trust,
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 South
Carolina Bank and Trust, 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
THIS AGREEMENT IS SUBJECT TO
BINDING
ARBITRATION PURSUANT TO S. C.
CODE §15-48-10 ET SEQ.,
AS AMENDED FROM TIME TO
TIME
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 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 $193,800.00 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 reimburse Employee for the
expense of his attendance at such meetings and conventions the
Company requires him to attend. Company will also 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.
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(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
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 or 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
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estate unless the Employee has directed
otherwise in a writing directed to the Company prior to his
death.
(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
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(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 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 sec
