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THIS AGREEMENT IS SUBJECT TO ARBITRATION PURSUANT TO §15-48-10 OF THE SOUTH CAROLINA CODE OF LAWS (1976), AS AMENDED.
THIS SEPARATION AND RELEASE AGREEMENT (this "Agreement") is entered into and is effective as of this 1 st day of March, 2011, (the "Effective Date") by and between First Financial Holdings, Inc. ("First Financial"); First Federal Savings and Loan Association of Charleston, ("First Federal"), their subsidiaries, affiliates, and related entities (collectively the "Company"), and A. Thomas Hood, a resident of Charleston County (the "Executive").
WHEREAS , the Executive currently serves as President of First Federal; and
WHEREAS , the Executive has heretofore been declared medically disabled, and has taken a voluntary leave of absence (the "Leave of Absence") using accrued and earned Personal Time Off ("PTO") and Catastrophic Leave Time ("CAT"), as provided by the Company's policies and procedures; and
WHEREAS , the Executive and the Company mutually desire to agree upon the terms and conditions, as contained herein, for the termination of Executive's positions with the Company effective as of March 1, 2011 (the "Termination Date"); and
WHEREAS, the Executive and the Company intend that the terms and conditions of this Agreement shall govern all issues related to the Executive's separation from the Company, including separation payments to be made in connection with his medical disability, as set forth hereinafter.
NOW, THEREFORE, in consideration of the covenants and mutual promises contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Executive and the Company hereby agree that the foregoing recitals are true and accurate and further agree as follows:
1. Resignation; Board Positions and President of First Federal / Termination of Employment .
a. Resignation of Board Positions and President of First Federal . The Executive hereby agrees that, effective as of the Effective Date of this Agreement (also the "Termination Date"), he shall resign his position (1) as a Director of First Financial, First Federal, and any and all other Directorships or entities comprising the Company and (2) his position as President of First Federal and any and all other positions with the Company, which he may hold. The Executive shall execute and deliver the resignation(s) attached as Exhibit "A" contemporaneously with his execution of this Agreement, along with his attorney's certification in the form attached hereto as Exhibit "B".
b. Termination from the Company as an Employee . The Company and the Executive are parties to an Employment Agreement dated September 24, 2009 and any and all modifications thereof (the "Employment Agreement") whereby the Executive is an employee of the Company. The Company and the Executive hereby agree that this Agreement shall supersede the Employment Agreement. The Executive hereby agrees that, effective as of the Termination Date, his employment with the Company shall terminate. Executive further acknowledges that upon the Effective Date, the Employment Agreement shall terminate and, thereafter, shall be without force or effect, except to the extent that a provision of the Employment Agreement is expressly continued in effect by a provision of this Agreement, if any, such as the non-compete provision.
c. Termination of Employment . On and after the Termination Date, the Executive acknowledges and agrees that he will not represent himself as being an employee or director of the Company or any company affiliated with the Company (each an "Affiliate") for any purpose.
d. Restriction(s) on Executive's Sale of the Company's Stock . The Company will reasonably cooperate with the Executive regarding his periodic inquiries as to applicable restrictions on his sale of the Company's stock, which he owns, and to assist the Executive in his determination of whether or not he can buy or sell such stock; provided, however, that the Company and the Executive acknowledge and agree that any decision to buy or sell such stock is the Executive's decision and the Executive is solely responsible for complying with all applicable securities laws and regulations and other restrictions regarding his trading in the Company's stock.
e. Continued Co-operation By Executive . In the event that the Company finds that it needs/requires Executive's co-operation with action(s) to be taken by him and/or his signature(s) on documents relating to matters during the period that Executive was an employee and/or director of the Company, Executive will co-operate in taking such action(s) and/or signing such documentation as soon as reasonably possible following notification of such action(s) and/or his signature(s) and/or being needed/required by the Company.
2. Post-Termination Provision . In consideration of the releases and covenants provided by the Executive herein and the other terms and conditions hereof and, subject to the terms and conditions of this Agreement, including the Executive's executing (and not revoking) this Agreement and the Supplemental General Release (as hereinafter described), the Company agrees to the following and the Executive acknowledges and agrees that he will not be eligible for any other consideration/payment after the Termination Date except for the following:
a. Mortgage Loan Interest Rate . The Executive shall be eligible for the continued preferential mortgage loan interest rate provided under the Company's Employee Loan Rate for mortgage loans on the primary residence of employees until March 1, 2016, at which time this provision shall terminate and be of no further force or effect.
b. Separation/Lump Sum Payments . Provided that the Executive has not prior thereto revoked the execution of this Agreement or the Supplemental General Release, attached hereto, the Company shall pay to the Executive separation payments related to his aforementioned medical disability in a gross total amount of $541,785.00 to be paid as follows:
(1) $250,000.00, less statutory deductions, on July 1, 2011;
(2) $91,785.00, less statutory deductions, on January 1, 2012; and
(3) $200,000.00, less statutory deductions, on July 1, 2012.
c. Directors and Officers Liability Insurance ("D & O Insurance") . Until the expiration of any applicable statute(s) of limitation pertaining, the Company shall, so long as it carries such insurance coverage for its active officers and directors, maintain in full force and effect such D & O Insurance coverage as it carried prior to the Effective Date of this Agreement, which would cover the Executive against insured claims against the Company and/or the Executive in his sole capacity as a Director or Officer of the Company.
3. Return of Property . The Executive represents to the Company that he has destroyed, deleted, or returned to the Company any and all files or other property (both tangible, intangible, electronic, and intellectual) of the Company and any Affiliate without retaining any copies or extracts thereof. Notwithstanding the foregoing, the Executive has no duty with respect to any information that has been or is generally available to the public.
4. Regulatory/Public Filings Announcements . The Executive understands, acknowledges, and agrees that, because of his position(s) with the Company, the Company will (1) be obligated/required to make certain public filings with, for example, including, but not limited to, the Securities and Exchange Commission (the "SEC") and (2) will make available press release(s) to the media, both print and electronic, regarding his termination of employment with the Company. The Company will reasonably consult with the Executive prior to the release of such press release(s); provided, however, that the Executive shall have advisory input only and not veto power as to the contents of the press release(s) and the wording thereof.
5. Full Discharge . The Executive agrees and acknowledges that the payments and other terms and conditions provided in this Agreement: (a) are in full discharge of any and all liabilities and obligations of the Company to the Executive, monetarily or with respect to employee benefits or otherwise, including any and all obligations arising under any alleged written or oral employment agreement, policy, plan or procedure of the Company or any Affiliate, including the Employment Agreement and/or any alleged understanding or arrangement between the Executive and the Company or any of its officers or directors; and (b) exceed any payment, benefit, or other thing of value to which the Executive might otherwise be entitled but for this Agreement under any policy, plan or procedure of the Company or any prior agreement between the Executive and the Company or any Affiliate.
6. Future Conduct and Obligations .
a. The Executive, for himself and for his family (i.e., parents, siblings, spouse, children), heirs, dependents, assigns, agents, executors, administrators, trustees and legal representatives agrees that he will not (and will use his best efforts to cause such affiliates to not) at any time engage in any form of conduct, or make any statements or representations, that disparage or otherwise impair the reputation,
goodwill, or commercial interests of the Company, any Affiliates or any of their agents, officers, directors, employees and/or stockholders. The Company and their directors agree to not issue any press release or other statement that disparages or otherwi