EXHIBIT 10.19
COMMUNITY CAPITAL CORPORATION
EMPLOYMENT AGREEMENT
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This Employment Agreement is made as of the 28th day of June 2000, by
and between Community Capital Corporation, a South Carolina corporation
("Corporation"), and Ralph Wesley Brewer ("Executive").
WHEREAS, the Corporation is a multi-bank holding company headquartered in
Greenwood, South Carolina currently operating five banks as wholly-owned
subsidiaries: Greenwood Bank & Trust; Clemson Bank & Trust; Community Bank &
Trust (formerly The Bank of Barnwell County); TheBank (formerly The Bank of
Belton); and Mid State Bank (formerly The Bank of Newberry County)
(collectively, the "Banks"); and
WHEREAS, Executive is currently employed by the Corporation with the
title of Vice-President/Controller;
WHEREAS, the Corporation desires to promote Executive to the position
of Chief Financial Officer; and
WHEREAS, the Corporation desires to employ the Executive, and the
Executive desires to be employed by the Corporation, in accordance with the
terms and conditions hereinafter set forth:
NOW, THEREFORE, in consideration of the mutual promises herein set
forth, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties, intending to be legally bound, agree
as follows:
1. Employment. The Corporation hereby agrees to employ the Executive to
perform the duties described in Section 3 below subject to and in accordance
with the terms and conditions hereof, and the Executive hereby accepts such
employment.
1. Term. The employment hereunder shall commence on the date hereof,
and shall continue for a period of three (3) years thereafter, unless terminated
in accordance with the provisions of Section 9 of this Agreement.
2. Duties of the Executive.
A. In accepting employment hereunder by the Corporation, the
Executive shall undertake and assume the responsibility of performing for and on
behalf of the Corporation the duties of Chief Financial Officer. The Executive
also agrees to serve, if elected, as an officer of any subsidiary or affiliate
of the Corporation. It is further understood and agreed that any expansion,
contraction or other modification of the Executive's duties shall not result in
any change in the Executive's compensation as stated in Section 4, unless the
Corporation and the Executive specifically shall agree otherwise in a duly
executed amendment of this Agreement.
B. During the term of this Agreement, except for periods of
absence occasioned by illness, reasonable vacation periods, and reasonable
leaves of absence, the Executive shall devote substantially all his business
time, attention, skill, and efforts to the faithful performance of his duties
hereunder including activities and services related to the organization,
operation and management of the Corporation. The Executive shall perform all of
his duties hereunder to the best of his ability and shall not, directly or
indirectly, engage or participate in any activities in conflict with the best
interests of the Corporation or the Banks, and will conduct all the Executive's
activities in strict loyalty to the Corporation and the Banks.
3. Compensation. As compensation for the services to be rendered by the
Executive for the Corporation under this Agreement, the Executive shall be
compensated as follows:
(A) Base Salary. The Executive shall receive an annual salary
of $80,000.00 payable in pay periods as determined by the Corporation, but in no
event less frequently than monthly.
(B) Vacation. The Corporation shall provide twenty (20)
business days of paid vacation time each calendar year. Such vacation days are
to be taken at such time or times as the Executive may reasonably request,
subject to the Corporation's convenience and prior approval, which approval
shall not be unreasonably withheld. Vacation time shall not cumulate year to
year.
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(C) Reimbursement for Expenses. The Corporation shall provide
reimbursement of all pre-approved reasonable expenses incurred by the Executive
for the benefit of the Corporation in the performance of his duties hereunder.
(D) Other Benefits. The Corporation shall provide other
benefits (e.g., health insurance coverage, dental insurance coverage, life
insurance, disability insurance, participation in pension plans, and paid leave,
etc.) reasonably comparable to, and no less favorable to the Executive than,
those benefits, if any, generally provided to other senior executives of the
Corporation.
The compensation stated above is intended to be the total compensation
paid to the Executive.
4. Relocation. As a condition of the Executive's employment hereunder,
on or before June 30, 2000, the Executive shall relocate his full-time residence
to anywhere within a ten (10) mile radius of Greenwood, South Carolina.
5. Confidentiality and Secrecy. The Executive acknowledges that in and
as a result of his employment hereunder, he will be making use of, acquiring,
and/or adding to confidential information of a special and unique nature and
value relating to the Corporation's business, including without limitation
technological know-how, copyrights, proprietary information, trade secrets,
systems, procedures, manuals, confidential reports, records, operational
expertise, lists of customers and projects, and the nature and type of services
rendered by the Corporation. As a material inducement to the Corporation to
enter into this Agreement and to pay to the Executive the compensation stated in
Section 4, the Executive covenants and agrees that during the term of his
employment hereunder, and for five (5) years after the termination thereof, he
shall not, directly or indirectly, make use of, or disclose to any person, any
confidential information of the Corporation, the Banks or their respective
affiliates.
6. Covenants Against Competition. In view of the unique value to the
Corporation of the services of the Executive for which the Corporation has
contracted hereunder, because of the confidential information to be obtained by
or disclosed to the Executive, as hereinabove set forth, and because the
Executive's employment hereunder will result in the Executive's development of a
unique relationship with customers and employees, as a material inducement to
the Corporation to enter into this Agreement and to pay to the Executive the
compensation stated in Section 4, the Executive covenants and agrees as follows:
(A) During the Executive's employment hereunder, and for a
period of three (3) years after the termination of the Executive's employment
hereunder for any reason, the Executive shall not directly or indirectly solicit
or divert employment of any employee of the Corporation and/or any of the Banks
or employ any person previously employed by the Corporation and/or any of the
Banks.
(B) During the Executive's employment hereunder, and for a
period of three (3) years after the termination of the Executive's employment
hereunder for any reason, the Executive shall not directly or indirectly
solicit, divert or convert, or assist another person or entity to solicit,
divert or convert, the Corporation's and/or any Bank's customers to any other
company or entity.
(C) During the Executive's employment hereunder, and for a
period of three (3) years after the termination of the Executive's employment
with the Corporation for any reason, the Executive shall not within the
geographic area specified below engage in any business or perform any services,
directly or indirectly, in competition with the business of the Corporation
and/or the Banks or have any interest, whether as a proprietor, partner,
employee, stockholder (directly or beneficially), principal, agent, consultant,
director, officer, or in any other capacity or manner whatsoever, in any
enterprise that shall so engage; except that the Executive shall be permitted to
own for investment purposes only, directly or beneficially, up to (but not more
than) 2% in the aggregate of the stock of a competing corporation which is
publicly-traded on a national stock exchange or the NASDAQ National Market
System, so long as the Executive is not a controlling person of, or a member of
a group that controls, such corporation and the Executive is not otherwise
affiliated in any capacity with such corporation. The restrictions of this
Section 7(C) shall apply everywhere within a fifty (50) mile radius of the
Corporation's headquarters, currently located at 1402-C Highway 72, Greenwood,
South Carolina, 29649, and everywhere within a twenty-five (25) mile radius of
each of the Banks' branch offices existing at the time the Executive's
employment terminates hereunder. Notwithstanding anything contained herein to
the contrary, in the event of a Change in Ownership as defined below during the
term of this Agreement, this Section 7(C) shall be null, void, and without
effect. For purposes of this Section, the term "Change in Ownership" shall mean
the first to occur of the following:
a. Any person or entity, or any two or more persons
or entities acting as a group as defined in Section 13(d)(3) of the Federal
Securities and Exchange Act of 1934, shall acquire ownership of fifty (50%)
percent or more of the outstanding voting stock of the Corporation; or
b. The acquisition of, or sale of, all or
substantially all of the assets of the Corporation, except to an Affiliate as
defined herein below; or
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c. The merger of the Corporation into another entity
that is not an Affiliate as defined herein below, and the Corporation is not the
survivor of such merger.
For purposes hereof, an "Affiliate" is any entity controlling,
controlled by, or under common control with the Corporation. For this purpose,
"control" means legal or beneficial ownership of fifty (50%) percent or more of
the equity or voting interests in an entity.
7. Reasonableness, Enforceability and Remedies.
(A) The Executive has carefully read and considered the
provisions of Sections 6, 7, and 8, and, having done so, agrees that the
restrictions set forth in these Sections, including, but not limited to, the
time period of restriction and geographic limitations set forth in Section 7,
are fair and reasonable and are reasonably required for the protection of the
interests of the Corporation and each of the Banks and their respective
officers, directors, shareholders, employees, and affiliates.
(B) In the event that, notwithstanding the foregoing, any of
the provisions of Sections 6, 7, and 8 or any parts thereof shall be held to be
invalid or unenforceable, the remaining provisions or parts thereof shall
nevertheless continue to be valid and enforceable as though the invalid or
unenforceable portions or parts had not been included therein. In the event that
any provision of Sections 6 or 7 relating to the time period and/or geographic
restrictions and/or related aspects shall be declared by a court of competent
jurisdiction to exceed the maximum restrictiveness such court deems reasonable
and enforceable, the time period and/or geographic restrictions and/or related
aspects deemed reasonable and enforceable by the court shall become and
thereafter be the maximum restriction in such regard, and the restriction shall
remain enforceable to the fullest extent deemed reasonable by such court.
(C) The Executive acknowledges that the services he is to
render are of a special and unusual character with a unique value to the
Corporation, the loss of which cannot adequately be compensated by damages in an
action at law. The Executive further acknowledges that the promotion of the
Executive to the office of Chief Financial Officer and increase in Executive's
compensation as set forth in Section 4 above from its current level, are
adequate consideration for the restrictions set forth in Sections 6 and 7
herein. In the event of a breach or threatened breach by the Executive of any of
the provisions of Sections 6 or 7, the Corporation and the Banks, in addition to
and not in limitation of, any other rights, remedies, or damages available to
the Corporation and the Banks under this Agreement, shall be entitled to a
permanent injunction in order to prevent or restrain any such breach by the
Executive or by the Executive's partners, agents, representatives, servants,
employers, employees, consulting clients, and/or any and all persons directly or
indirectly acting for or with him. The Executive acknowledges and agrees that
each of the Banks shall benefit from this Agreement and the services to be
provided by Executive hereunder.
(D) The Executive covenants and agrees that if he shall
violate any of his covenants or agreements under Sections 6 or 7, the
Corporation and each of the Banks shall be entitled to: (i) an accounting and
repayment of all profits, compensation, commissions, remuneration, or other
benefits that the Executive directly or indirectly has realized and/or may
realize as a result of, growing out of, or in connection with, any such
violation; (ii) recover actual damages incurred by the Corporation and each of
the Banks or their affiliates as a result of any such violation; (iii) any
injunctive relief to which the Corporation and each of the Banks is or may be
entitled at law, in equity, or under this Agreement; and (iv) exercise its other
rights respecting a breach of this Agreement as set forth herein.
(E) The Executive's obligations under Sections 6, 7, and 8
shall survive any termination of employment hereunder.
8. Termination.
(A) For Cause By The Corporation. Notwithstanding any other
provision hereof, the Corporation may terminate the Executive's employment under
this Agreement immediately at any time for "cause". For purposes hereof the term
"cause" shall include, but not be limited to, the commission of any of the
following by the Executive: dishonesty; theft; unethical business conduct;
indictment for a felony; indictment for a misdemeanor involving moral turpitude;
drug or alcohol addiction; lack of competence in the performance of any duty on
behalf of the Corporation and/or the Banks; violation of the terms and
provisions of this Agreement; insubordination or failure to comply with
reasonable instructions of the Corporation; material violation by Executive of
any federal or state banking law, rule or regulation; causing or permitting,
whether intentionally or negligently, the Corporation and/or any of the Banks to
materially violate any federal or state banking law, rule or regulation; if
Executive is suspended and/or temporarily prohibited from participating in the
conduct of the Corporation's or any of the Banks' affairs by notice served under
Section 8(e) of the Federal Deposit Insurance Act (12 U.S.C., Section 1818(e));
or failure of Executive to relocate his residence in accordance with Section 5
above. All compensation (including without limitation the Base Salary and all
perquisites and fringe benefits) to which the Executive would otherwise be
entitled (for periods after the effective date of such termination) shall be
discontinued and forfeited as of the effective date of such termination.
(B) Disability. In the event of the Executive's disability
during employment under this Agreement, then employment under this Agreement
shall terminate. For purposes of this Agreement, except as provided herein
below,
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"disability" shall mean the inability of the Executive, due to sickness or other
incapacity, to perform his duties under this Agreement for a period in excess of
ninety (90) substantially consecutive days. Such termination shall become
effective at the Corporation's election upon the expiration of such ninety (90)
day period of disability. Upon termination of employment under this Agreement
due to the Executive's disability, the Executive shall be entitled to payment of
his Base Salary up to the date of termination.
(C) Termination By the Executive. The Executive may with or
without cause terminate this Agreement upon sixty (60) days prior written notice
to the Corporation. In the event of such termination, all compensation
(including without limitation the Base Salary and all perquisites and fringe
benefits) to which the Executive would otherwise be entitled (for periods after
the effective date of such termination) shall be discontinued and forfeited as
of the effective date of such termination. The Executive's death shall be deemed
termination of this Agreement pursuant to this Section 9(C).
9. Annual Review. On or about each anniversary of the date of this
Agreement, during the term of this Agreement, this Agreement, including the
compensation provisions of Section 4, shall be reviewed by the Executive and the
Corporation; provided, however, neither party shall have any obligation to
modify this Agreement, and no amendment or other modification hereof shall be
effective unless mutually agreed to by the parties in writing.
10. Burden and Benefit. This Agreement shall be binding upon, and shall
inure to the benefit of, the Corporation and the Executive, and their respective
heirs, personal and legal representatives, successors, and permitted assigns.
11. Assignment. This Agreement and any rights hereunder are personal to
the Executive and shall not be assigned or otherwise transferred by the
Executive. The Corporation shall be entitled to assign this Agreement to any
corporation controlled by or under common control with the Corporation, or in
connection with the acquisition of, or sale of substantially all of, the assets
of business to which this Agreement pertains.
12. Governing Law/Jurisdiction. The construction and interpretation of
this Agreement shall at all times and in all respects be governed by the laws of
the State of South Carolina. The parties hereby (i) agree that any litigation,
action or proceeding arising out of or relating to this Agreement may be
instituted in a state or federal court in the State of South Carolina, (ii)
waives any objection which it might have now or hereafter to any such
litigation, action or proceeding based upon improper venue or inconvenient
forum, and (iii) irrevocably submits to the jurisdiction of such courts in any
such litigation, action or proceeding. For all purposes of this Agreement, the
parties hereby submit to the venue and jurisdiction of the courts in the State
of South Carolina, irrevocably consent to personal jurisdiction of such courts,
and further agree that service of process upon any party hereto may be effected
pursuant to United States mail.
13. Usage. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Term such as "hereof", "hereunder",
"hereto", "herein", and words of similar import shall refer to this Agreement in
its entirety and all references shall refer to specified portions of this
Agreement, unless the context clearly requires otherwise.
14. Severability. The provisions of this Agreement shall be deemed
severable, and the invalidity or unenforceability of any one or more of the
provisions of this Agreement shall not affect the validity and enforceability of
the other provisions. Without limiting the generality of the foregoing or of
Section 8, each provision, sub-provision, part, and sub-part of Sections 6, 7,
and 8 shall be deemed severable.
15. Survival. The Executive's obligations pursuant to Section 6, 7, and
8 hereof shall survive the termination of this Agreement.
16. Modifications. This Agreement can only be modified by a written
agreement duly signed by authorized representatives of the parties hereto.
Moreover, in order to avoid uncertainty, ambiguity and misunderstandings in
their relationships, the parties hereto covenant and agree not to enter into any
oral agreement or understanding inconsistent or in conflict with this Agreement;
and the parties hereto further covenant and agree that any oral communication
allegedly or purportedly constituting such an agreement or understanding shall
be absolutely null, void and without effect.
17. Waiver. Any waiver by either party of any breach or any term or
condition hereof shall be effective only if in writing and such writing shall
not be deemed to be a waiver of any subsequent or other breach, term or
condition of this Agreement.
18. No Inference Against Author. No provision of this Agreement shall
be interpreted against any party because such party or its legal representative
drafted such provision.
19. Notice. Any notice, request, approval, consent, demand or other
communication hereunder shall be effective if in writing and upon the first to
occur of the following: (i) upon receipt by the party to whom such notice,
request, approval,
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consent, demand or other communication is being given; or (ii) three (3)
business days after being duly deposited in the U.S. Mail, certified, return
receipt requested, and addressed as follows:
EXECUTIVE: Ralph Wesley Brewer
112 Spruce Court
Greenwood, SC 29649
CORPORATION: Community Capital Corporation
----------- 1402-C Highway 72
Greenwood, SC 29649
Attn: William G. Stevens
The parties hereto may change their respective addresses by notice in writing
given to all other parties to this Agreement.
20. Entire Agreement. This Agreement contains the entire agreement and
understanding by and between the Corporation and the Executive with respect to
the subject matter hereof and supersedes all prior and contemporaneous, written
or oral agreements and representations between the parties with respect hereto.
IN WITNESS WHEREOF, the Corporation and the Executive have duly
executed this Agreement under seal to be effective as of the day and year first
above written.
IN THE PRESENCE OF: CORPORATION:
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COMMUNITY CAPITAL CORPORATION
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Witness (SEAL)
By: /S/ W.G. STEVENS
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Witness Its: C.E.O.
EXECUTIVE:
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By: /S/ RALPH WESLEY BREWER (SEAL)
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Witness Ralph Wesley Brewer
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Witness
