Exhibit 10.1

Southern First Bank, N.A.

Salary Continuation Agreement

 

            This Salary Continuation Agreement (this “Agreement”) is made and entered into as of the 1 ^st day of October, 2008, by and between Southern First Bank, N.A. a South Carolina-chartered bank (the “Bank”), and ______________, its ___________ (the “Executive”).

 

            Whereas , the Executive has contributed substantially to the success of the Bank and the Bank desires that the Executive continue in its employ,

 

            Whereas , to encourage the Executive to remain an employee of the Bank, the Bank is willing to provide salary continuation benefits to the Executive, payable from the Bank’s general assets,

 

            Whereas , none of the conditions or events included in the definition of the term “golden parachute payment” that is set forth in section 18(k)(4)(A)(ii) of the Federal Deposit Insurance Act [12 U.S.C. 1828(k)(4)(A)(ii)] and in Federal Deposit Insurance Corporation Rule 359.1(f)(1)(ii) [12 CFR 359.1(f)(1)(ii)] exists or, to the best knowledge of the Bank, is contemplated insofar as the Bank is concerned, and

 

            Whereas , the parties hereto intend that this Agreement shall be considered an unfunded arrangement maintained primarily to provide supplemental retirement benefits for the Executive, and to be considered a non-qualified benefit plan for purposes of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”).  The Executive is fully advised of the Bank’s financial status.

 

            Now Therefore , in consideration of these premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Executive and the Bank hereby agree as follows.

 

Article 1

Definitions

 

            The following words and phrases used in this Agreement have the meanings specified.

 

            1.1        “ Accrual Balance ” means the liability that should be accrued by the Bank under generally accepted accounting principles (“GAAP”), as consistently applied in accordance with past practices at the Bank, for the Bank’s obligation to the Executive under this Agreement.

 

            1.2        “ Beneficiary ” means each designated person, or the estate of the deceased Executive, entitled to benefits, if any, upon the death of the Executive, determined according to Article 4.

 

            1.3        “ Beneficiary Designation Form ” means the form established from time to time by the Plan Administrator that the Executive completes, signs, and returns to the Plan Administrator to designate one or more Beneficiaries.

 

 

 

 

 

 

 

            1.4        “ Change in Control ” shall mean any one of the following events occurs, provided the event constitutes a change in control within the meaning of Internal Revenue Code section 409A and rules, regulations, and guidance of general application thereunder issued by the Department of the Treasury, and provided the occurrence of the event is objectively determinable and does not require the exercise of judgment or discretion on the part of the Plan Administrator or any other person  –

 

                        (a)        the individuals who, as of the date of this Agreement, are members of the Board of Directors of Southern First Bancshares, Inc., of which the Bank is a wholly owned subsidiary (the “Incumbent Board”) cease for any reason during any twelve (12) -month period to constitute more than fifty percent (50%) of the Board of Directors of Southern First Bancshares, Inc.; provided, however, that if the election, or nomination for election by Southern First Bancshares, Inc.’s shareholders, of any new director was approved in advance by a vote of more than fifty percent (50%) of the then existing Board of Directors of Southern First Bancshares, Inc., such new director shall, for purposes of this Agreement, be considered as a member of the Incumbent Board;

 

(b)        acquisitions during a twelve (12) – month period ending on the date of the most recent acquisition by such Person (as the term “person” is used for purposes of Section 13(d) or 14(d) of the Exchange Act, specifically excluding a transfer to a subsidiary of Southern First Bancshares, Inc.) of any voting securities of Southern First Bancshares, Inc. (the “Voting Securities”) by any Person immediately after which such Person has “Beneficial Ownership” (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of thirty-five percent (35%) or more of the combined voting power of Southern First Bancshares, Inc.'s then outstanding Voting Securities; or

 

(c)        acquisitions of the assets of Southern First Bancshares, Inc. that have a total gross fair market value equal to or more than forty percent (40%) of the total gross fair market value (as the term “gross fair market value” is used for purposes of Section 1.409A-3(g)(5)(vi) of the Code) of all of the assets of Southern First Bancshares, Inc. immediately prior to such acquisitions by any Person during a twelve (12) – month period ending on the date of the most recent acquisition.

 

            1.5        “ Code ” means the Internal Revenue Code of 1986, as amended, and rules, regulations, and guidance of general application issued thereunder by the Department of the Treasury.

 

            1.6        “ Disability ” means because of a medically determinable physical or mental impairment that can be expected to result in death or that can be expected to last for a continuous period of at least twelve (12) months, ( x ) the Executive is unable to engage in any substantial gainful activity, or ( y ) the Executive is receiving income replacement benefits for a period of at least three (3) months under an accident and health plan of the employer.  Medical determination of disability may be made either by the Social Security Administration or by the provider of an accident or health plan covering employees of the Bank.  Upon request of the Plan Administrator, the Executive must submit proof to the Plan Administrator of the Social Security Administration’s or provider’s determination.

 

 

 

 

 

 

 

            1.7        “ Early Termination ” means Separation from Service before Normal Retirement Age for reasons other than death, Disability, Termination for Cause, or after a Change in Control.

 

            1.8        “ Effective Date ” means October 1, 2008.

 

            1.9        “ Intentional ” does not mean an act or failure to act on the part of the Executive if it was due primarily to an error in judgment or negligence.  An act or failure to act on the Executive’s part shall be considered intentional if it is not in good faith and if it is without a reasonable belief that the action or failure to act is in the best interests of the Bank.

 

            1.10      “ Normal Retirement Age ” means the Executive’s 65 ^th birthday.

 

            1.11      “ Plan Administrator ” or “ Administrator ” means the plan administrator described in Article 8.

 

            1.12      “ Plan Year ” means a twelve (12) - month period commencing on January 1 and ending on December 31 of each year.  The initial Plan Year shall commence on the Effective Date of this Agreement.

 

            1.13      “ Separation from Service ” means the Executive’s service as an executive or independent contractor to the Bank and any member of a controlled group, as defined in Code section 414, terminates for any reason, other than because of a leave of absence approved by the Bank or the Executive’s death.  For purposes of this Agreement, if there is a dispute about the employment status of the Executive or the date of the Executive’s Separation from Service, such status will be determined in compliance with Section 409A of the Code, specifically Prop. Reg. § 1.409A-1(h).

 

            1.14      “ Termination for Cause ” and “ Cause ” shall have the meaning specified in any effective severance or employment agreement existing on the date hereof or hereafter entered into between the Executive and the Bank and/or Southern First Bancshares, Inc.  If the Executive is not a party to a severance or employment agreement containing a definition for termination for cause, Termination for Cause, for purposes of this Agreement, means the Bank and/or Southern First Bancshares, Inc. terminates the Executive’s employment for any of the following reasons –

 

                        (a)        the Executive’s gross negligence or gross neglect of duties or intentional and material failure to perform stated duties after written notice thereof, or

 

                        (b)        disloyalty or dishonesty by the Executive in the performance of the Executive’s duties, or a breach of the Executive’s fiduciary duties for personal profit, in any case whether in the Executive’s capacity as a director or officer, or

 

                        (c)        intentional wrongful damage by the Executive to the business or property of the Bank or Southern First Bancshares, Inc. or any of its affiliates, including without limitation the reputation of the Bank or Southern First Bancshares, Inc., which in the judgment of the Bank or Southern First Bancshares, Inc. causes material harm to the Bank or Southern First Bancshares, Inc. or any of its affiliates, or

 

 

 

 

 

 

 

                        (d)       a willful violation by the Executive of any applicable law or significant policy of the Bank or Southern First Bancshares, Inc. or any of its affiliates that, in the Bank’s or Southern First Bancshares, Inc.’s judgment, results in an adverse effect on the Bank or Southern First Bancshares, Inc. or any of its affiliates, regardless of whether the violation leads to criminal prosecution or conviction.  For purposes of this Agreement, applicable laws include any statute, rule, regulatory order, statement of policy, or final cease-and-desist order of any governmental agency or body having regulatory authority over the Bank or Southern First Bancshares, Inc., or

 

                        (e)        the occurrence of any event that results in the Executive being excluded from coverage, or having coverage limited for the Executive as compared to other executives of the Bank or Southern First Bancshares, Inc., under the Bank’s or Southern First Bancshares, Inc.’s blanket bond or other fidelity or insurance policy covering its directors, officers, or employees, or

 

                        (f)        the Executive is removed from office or permanently prohibited from participating in the Bank’s or Southern First Bancshares, Inc.’s affairs by an order issued under section 8(e)(4) or section 8(g)(1) of the Federal Deposit Insurance Act, 12 U.S.C. 1818(e)(4) or (g)(1), or

 

                        (g)        conviction of the Executive for or plea of no contest to a felony or conviction of or plea of no contest to a misdemeanor involving moral turpitude, or the actual incarceration of the Executive for forty-five (45) consecutive days or more.

 

Article 2

Lifetime with a Fifteen (15) – Year Term Certain Benefits Period

 

            2.1        Normal Retirement Benefit .  Unless Separation from Service or a Change in Control occurs before Normal Retirement Age, when the Executive attains the Normal Retirement Age the Bank shall pay to the Executive the benefit described in this section 2.1 instead of any other benefit under this Agreement.  If the Executive’s Separation from Service thereafter is a Termination for Cause or if this Agreement terminates under Article 5, no further benefits shall be paid.

 

            2.1.1    Amount of Benefit . The annual benefit under this section 2.1 is ___________________________.

 

            2.1.2    Payment of Benefit .  The Bank shall pay the annual benefit to the Executive in twelve (12) equal monthly installments payable on the first (1 ^st ) day of each month, beginning with the month immediately after the month in which the Executive attains the Normal Retirement Age.  The Normal Retirement annual benefit shall be paid to the Executive for the Executive’s lifetime with a fifteen (15) – year term certain period.

 

 

 

 

 

 

 

            2.2        Early Termination Benefit .  Provided the Executive shall have been continuously employed by the Bank for five (5) consecutive years from the Effective Date when Early Termination occurs, upon such Early Termination the Bank shall pay to the Executive the benefit described in this section 2.2 instead of any other benefit under this Agreement.  The Executive and the Executive’s Beneficiary shall be entitled to no benefits whatsoever under this Agreement if Early Termination occurs before the Executive shall have been continuously employed by the Bank for five (5) consecutive years from the Effective Date; provided, however,  all of the Executive’s benefits under this section 2.2 shall be forfeited if at any time from the date of the Executive’s Early Termination and for a period of one (1) year thereafter, the Executive (without the prior written consent of the Bank) competes with the Bank or Southern First Bancshares, Inc. or any of its subsidiaries, directly or indirectly, by engaging in forming, by serving as an organizer, director, officer of, employee or agent, or consultant to, or by acquiring or maintaining more than a one percent (1%) passive investment in, a depository financial institution or holding company thereof if such depository financial institution or holding company has or establishes one (1) or more offices or branches which are located within thirty (30) miles of any office or branch of the Bank in existence at the date of the Executive’s Early Termination. 

 

            2.2.1    Amount of Benefit .  The annual benefit under this section 2.2 is calculated by taking the Accrual Balance existing at the end of the month immediately before the month in which Separation from Service occurs, compounding this Accrual Balance forward to the Executive’s Normal Retirement Age taking into account interest at the discount rate or rates established by the Plan Administrator, and amortizing this resulting amount over the period specified in section 2.2.2 beginning with the Executive's Normal Retirement Age.

 

            2.2.2    Payment of Benefit .   The Bank shall pay the annual benefit to the Executive in twelve (12) equal monthly installments payable on the first (1 ^st ) day of each month, beginning with the later of ( x ) the seventh (7 ^th ) month after the Executive’s Separation from Service, or ( y ) the month immediately after the month in which the Executive attains the Normal Retirement Age.  The annual benefit shall be paid to the Executive for the Executive’s lifetime with a fifteen (15) – year term certain period.

 

            2.3        Disability Benefit .  Upon Separation from Service because of Disability before Normal Retirement Age, the Bank shall pay to the Executive the benefit described in this section 2.3 instead of any other benefit under this Agreement.

 

            2.3.1    Amount of Benefit .   The annual benefit under this section 2.3 is calculated by taking the Accrual Balance existing at the end of the month immediately before the month in which Separation from Service occurs, compounding this Accrual Balance forward to the Executive’s Normal Retirement Age taking into account interest at the discount rate or rates established by the Plan Administrator, and amortizing this resulting amount over the period specified in section 2.3.2 beginning with the Executive's Normal Retirement Age.

 

            2.3.2    Payment of Benefit .  Beginning with the later of ( x ) the seventh (7 ^th ) month after the Executive’s Separation from Service, or ( y ) the month immediately after the month in which the Executive attains the Normal Retirement Age, the Bank shall pay the Disability benefit to the Executive in twelve (12) equal monthly installments on the first (1 ^st ) day of each month.  The annual benefit shall be paid to the Executive for the Executive’s lifetime with a fifteen (15) – year term certain period.

 

 

 

 

 

 

 

            2.4        Change in Control Benefit .  If a Change in Control occurs after the date of this Agreement but before Normal Retirement Age and before Separation from Service, the Bank shall pay to the Executive the benefit described in this section 2.4 instead of any other benefit under this Agreement and the Bank shall exercise its discretion to terminate this Agreement.

 

 2.4.1   Amount of Benefit .  The benefit under this section 2.4 is the amount equal to the greater of: (i)                                Dollars or (ii) the Executive’s Accrual Balance at the time of the Change in Control.

 

            2.4.2    Payment of Benefit .  The Bank shall pay the Change in Control benefit under section 2.4 of this Agreement to the Executive in one lump-sum within three (3) days after the Change in Control.  Payment of the Change in Control benefit shall fully discharge the Bank from all obligations under this Agreement, except the legal fee reimbursement obligation under section 7.13 and the obligation to make section 280G excise-tax gross-up payments under section 7.14.

 

            2.5        Lump-sum Payment of Normal Retirement Benefit, Early Termination Benefit, or Disability Benefit Being Paid to the Executive when a Change in Control Occurs .  If a Change in Control occurs at any time during the salary continuation benefit payment period and if when the Change in Control occurs the Executive is receiving the benefit provided by sections 2.1.2, 2.2.2, or 2.3.2, the Bank shall pay the present value, calculated at the discount rate or rates established by the Plan Administrator, of the remaining salary continuation benefits to the Executive in a single lump sum within three (3) days after the Change in Control. 

 

            2.6        Contradiction Between the Agreement and Schedule A .  Schedule A attached hereto and incorporated herein contains sample calculations of the Executive’s potential benefits under the various sections of this Agreement, using certain assumptions as detailed in the attached Schedule A.  These calculations are for illustrative and informational purposes only and are subject to change due to changes in the assumptions from time to time, such as changes in the assumed discount rate, variations between the assumed timing of certain payments and events and the eventual actual timing of such payments and events, and other factors.  If there is a contradiction between the terms of this Agreement and Schedule A concerning the actual amount of a particular benefit amount due the Executive under this Agreement, then the actual amount of the benefit as set forth in this Agreement shall control.  If the Plan Administrator changes the discount rate employed for purposes of calculating the Accrual Balance, the Plan Administrator shall prepare or cause to be prepared a revised Schedule A, which shall supersede and replace any and all Schedules A previously prepared under or attached to this Agreement.

 

            2.7        Savings Clause Relating to Compliance with Code Section 409A .  Despite any contrary provision of this Agreement, if when the Executive’s employment terminates the Executive is a specified employee, as defined in Code section 409A, and if any payments under Article 2 of this Agreement will result in additional tax or interest to the Executive because of section 409A, the Executive will not be entitled to the payments under Article 2 until the earliest of ( x ) the date that is at least six (6) months after termination of the Executive’s employment for reasons other than the Executive’s death, ( y ) the date of the Executive’s death, or ( z ) any earlier date that does not result in additional tax or interest to the Executive under section 409A.  If any provision of this Agreement would subject the Executive to additional tax or interest under section 409A, the Bank shall reform the provision.  However, the Bank shall maintain to the maximum extent practicable the original intent of the applicable provision without subjecting the Executive to additional tax or interest, and the Bank shall not be required to incur any additional compensation expense as a result of the reformed provision.

 

 

 

 

 

 

 

            2.8        One Benefit Only .  Despite anything to the contrary in this Agreement, the Executive and Beneficiary are entitled to one benefit only under this Agreement, which shall be determined by the first event to occur that is dealt with by this Agreement.  Except as provided in section 2.5 or Article 3, subsequent occurrence of events dealt with by this Agreement shall not entitle the Executive or Beneficiary to other or additional benefits under this Agreement.

 

            2.9        United States Treasury Capital Purchase Program Payment Limitations.  Notwithstanding anything in this Agreement to the contrary, any payments to the Executive shall be limited to the extent required under the United States Treasury Capital Purchase Program (the "Program") and related regulations in the event that the Bank or its holding company participates in the Program.  The Executive agrees to such amendments, agreements, or waivers that may be required by the United States Treasury or requested by the Bank or its holding company to comply with the terms of the Program.

 

Article 3

Death Benefits

 

            3.1        Death during Active Service .  Except as provided in section 5.2, if the Executive dies in active service to the Bank before Normal Retirement Age, the Executive’s Beneficiary shall be entitled to:

 

            3.1.1    Amount of Benefit .  The benefit under this section 3.1 is an amount equal to the Executive’s Accrual Balance at the time of the Executive’s death.

 

            3.1.2    Payment of Benefit .  The Bank shall pay the Death during Active Service benefit to the Executive’s Beneficiary within sixty (60) days of the Executive’s death.

 

3.2       Death before any Separation from Service but after Normal Retirement Age and before the End of the Fifteen (15) – Year Term Certain Period.   If the Executive dies before any Separation from Service and the Executive is receiving the Executive’s normal retirement benefit provided by section 2.1, but the Executive has not received the Executive’s normal retirement benefit for the full fifteen (15) – year term certain period, the Executive’s Beneficiary shall be entitled to:

 

3.2.1    Amount and Payment of Benefit .   At the Bank’s sole discretion upon the Executive’s death, the benefit under this section 3.2 shall be either: (i) the present value, calculated at the discount rate or rates established by the Plan Administrator, at the Executive’s death of the Executive’s remaining salary continuation benefits as determined under section 2.1, paid to the Executive’s Beneficiary in a lump-sum within sixty (60) days of the Executive’s death; or (ii) the Executive’s remaining salary continuation benefits as determined under section 2.1, paid to the Executive’s Beneficiary at the times specified in section 2.1; provided , however , that no benefits under this Agreement shall be paid or payable to the Executive or the Executive’s Beneficiary if this Agreement is terminated under Article 5.

 

 

 

 

 

 

 

            3.3        Death after Separation from Service before Normal Retirement Age .  If the Executive dies after Separation from Service and the Executive is entitled to the Early Termination benefit provided by section 2.2 or the Disability benefit provided by section 2.3, but has not started receiving such benefits because the Executive has not reached the Normal Retirement Age, the Executive’s Beneficiary shall be entitled to:

 

3.3.1    Amount of Benefit .   The lump-sum benefit under this section 3.3 is the present value, calculated at the discount rate or rates established by the Plan Administrator, at the Executive’s death of the Accrual Balance which existed at the end of the month immediately before the month in which Separation from Service occurred, after compounding this Accrual Balance forward to the Executive’s Normal Retirement Age taking into account interest at the discount rate or rates established by the Plan Administrator.  Assuming the two discount rates referred to in the previous sentence are the same, the resulting lump-sum benefit under this section 3.3 would be the Executive’s Accrual Balance which existed at the end of the month immediately before the month in which Separation from Service occurred; provided , however , that no benefits under this Agreement shall be paid or payable to the Executive or the Executive’s Beneficiary if this Agreement is terminated under Article 5.

 

3.3.2    Payment of Benefit .  The Bank shall pay the Death after Separation from Service before Normal Retirement Age lump-sum benefit to the Executive’s Beneficiary within sixty (60) days of the Executive’s death. 

 

3.4       Death after Separation from Service after Normal Retirement Age .  If the Executive dies after Separation from Service and the Executive is receiving the normal retirement benefit provided by section 2.1, the Early Termination benefit provided by section 2.2, or the Disability benefit provided by section 2.3, the Executive’s Beneficiary shall be entitled to:

 

3.4.1    Amount and Payment of Benefit .   At the Bank’s sole discretion upon the Executive’s death, the benefit under this section 3.4 shall be either: (i) the present value, calculated at the discount rate or rates established by the Plan Administrator, at the Executive’s death of the Executive’s remaining salary continuation benefits as determined under section 2.1, 2.2, or 2.3, as applicable, paid to the Executive’s Beneficiary in a lump-sum within sixty (60) days of the Executive’s death; or (ii) the Executive’s remaining salary continuation benefits as determined under section 2.1, 2.2, or 2.3, as applicable, in the amounts specified in the applicable section, paid to the Executive’s Beneficiary at the times specified in the applicable section; provided , however , that no benefits under this Agreement shall be paid or payable to the Executive or the Executive’s Beneficiary if this Agreement is terminated under Article 5. 

 

Article 4

Beneficiaries

 

            4.1       Beneficiary Designations .  The Executive shall have the right to designate at any time a Beneficiary to receive any benefits payable under this Agreement upon the death of the Executive.  The Beneficiary designated under this Agreement may be the same as or different from the beneficiary designation under any other benefit plan of the Bank in which the Executive participates.

 

 

 

 

 

 

 

            4.2        Beneficiary Designation: Change .  The Executive shall designate a Beneficiary by completing and signing the Beneficiary Designation Form and delivering it to the Plan Administrator or its designated agent.  The Executive’s Beneficiary designation shall be deemed automatically revoked if the Beneficiary predeceases the Executive or if the Executive names a spouse as Beneficiary and the marriage is subsequently dissolved.  The Executive shall have the right to change a Beneficiary by completing, signing, and otherwise complying with the terms of the Beneficiary Designation Form and the Plan Administrator’s rules and procedures, as in effect from time to time.  Upon the acceptance by the Plan Administrator of a new Beneficiary Designation Form, all Beneficiary designations previously filed shall be cancelled.  The Plan Administrator shall be entitled to rely on the last Beneficiary Designation Form filed by the Executive and accepted by the Plan Administrator before the Executive’s death.

 

            4.3        Acknowledgment .  No designation or change in designation of a Beneficiary shall be effective until received, accepted, and acknowledged in writing by the Plan Administrator or its designated agent.

 

            4.4        No Beneficiary Designation .  If the Executive dies without a valid beneficiary designation, or if all designated Beneficiaries predecease the Executive, then the Executive’s spouse shall be the designated Beneficiary.  If the Executive has no surviving spouse, the benefits shall be made to the personal representative of the Executive’s estate.

 

            4.5        Facility of Payment .  If a benefit is payable to a minor, to a person declared incapacitated, or to a person incapable of handling the disposition of his or her property, the Bank may pay such benefit to the guardian, legal representative, or person having the care or custody of the minor, incapacitated person, or incapable person.  The Bank may require proof of incapacity, minority, or guardianship as it may deem appropriate before distribution of the benefit.  Distribution shall completely discharge the Bank from all liability for the benefit.

 

Article 5

General Limitations

 

            5.1        Termination for Cause .  Despite any contrary provision of this Agreement, the Bank shall not pay any benefit under this Agreement and this Agreement shall terminate if Separation from Service is the result of Termination for Cause. 

 

            5.2        Suicide or Misstatement .  The Bank shall not pay any benefit under this Agreement and the Beneficiary shall be entitled to no benefits if the Executive commits suicide within two (2) years after the date of this Agreement or if the Executive makes any material misstatement of fact on any application or resume provided to the Bank or on any application for benefits provided by the Bank.

 

            5.3        Removal .  If the Executive is removed from office or permanently prohibited from participating in the Bank’s affairs by an order issued under section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, 12 U.S.C. 1818(e)(4) or (g)(1), all obligations of the Bank under this Agreement shall terminate as of the effective date of the order.

 

            5.4        Default .  Despite any contrary provision of this Agreement, if the Bank is in “default” or “in danger of default,” as those terms are defined in section 3(x) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(x), all obligations under this Agreement shall terminate.

 

 

 

 

 

 

 

            5.5        FDIC Open-Bank Assistance .  All obligations under this Agreement shall terminate, except to the extent determined that continuation of the contract is necessary for the continued operation of the Bank, when the Federal Deposit Insurance Corporation enters into an agreement to provide assistance to or on behalf of the Bank under the authority contained in Federal Deposit Insurance Act section 13(c).  12 U.S.C. 1823(c).  Rights of the parties that have already vested shall not be affected by such action, however.

 

 

Article 6

Claims and Review Procedures

 

            6.1        Claims Procedure .  A person or beneficiary (“claimant”) who has not received benefits under this Agreement that he or she believes should be paid shall make a claim for such benefits as follows –

 

            6.1.1    Initiation – Written Claim .  The claimant initiates a claim by submitting to the Administrator a written claim for the benefits.  If the claim relates to the contents of a notice received by the claimant, the claim must be made within sixty (60) days after the notice was received by the claimant.  All other claims must be made within one-hundred eighty (180) days after the date of the event that caused the claim to arise.  The claim must state with particularity the determination desired by the claimant.

 

            6.1.2    Timing of Bank Response .  The Bank shall respond to the claimant within ninety (90) days after receiving the claim.  If the Bank determines that special circumstances require additional time for processing the claim, the Bank may extend the response period by an additional ninety (90) days by notifying the claimant in writing before the end of the initial ninety (90) - day period that an additional period is required.  The notice of extension must state the special circumstances and the date by which the Bank expects to render its decision.

 

            6.1.3    Notice of Decision .  If the Bank denies part or all of the claim, the Bank shall notify the claimant in writing of the denial.  The Bank shall write the notification in a manner calculated to be understood by the claimant.  The notification shall set forth –

 

                                                            6.1.3.1             the specific reasons for the denial,

 

                                                            6.1.3.2             a reference to the specific provisions of the Agreement on which the denial is based,

 

                                                            6.1.3.3             a description of any additional information or material necessary for the claimant to perfect the claim and an explanation of why it is needed,

 

                                                            6.1.3.4             an explanation of the Agreement’s review procedures and the time limits applicable to such procedures, and

 

                                                            6.1.3.5             a statement of the claimant’s right to bring a civil action under ERISA section 502(a) following an adverse benefit determination on review.

 

 

 

 

 

 

 

            6.2        Review Procedure .  If the Bank denies part or all of the claim, the claimant shall have the opportunity for a full and fair review by the Bank of the denial, as follows –

 

            6.2.1    Initiation – Written Request .  To initiate the review, the claimant, within sixty (60) days after receiving the Bank’s notice of denial, must file with the Bank a written request for review.

 

            6.2.2    Additional Submissions – Information Access .  The claimant shall then have the opportunity to submit written comments, documents, records, and other information relating to the claim.  The Bank shall also provide the claimant, upon request and free of charge, reasonable access to and copies of all documents, records, and other information relevant (as defined in applicable ERISA regulations) to the claimant’s claim for benefits.

 

            6.2.3    Considerations on Review .  In considering the review, the Bank shall take into account all materials and information the claimant submits relating to the claim, without regard to whether the information was submitted or considered in the initial benefit determination.

 

            6.2.4    Timing of Bank Response .  The Bank shall respond in writing to the claimant within sixty (60) days after receiving the request for review.  If the Bank determines that special circumstances require additional time for processing the claim, the Bank may extend the response period by an additional sixty (60) days by notifying the claimant in writing before the end of the initial sixty (60) - day period that an additional period is required.  The notice of extension must state the special circumstances and the date by which the Bank expects to render its decision.

 

            6.2.5    Notice of Decision .  The Bank shall notify the claimant in writing of its decision on review.  The Bank shall write the notification in a manner calculated to be understood by the claimant.  The notification shall set forth –

 

                                                            6.2.5.1             the specific reason for the denial,

 

                                                            6.2.5.2             a reference to the specific provisions of the Agreement on which the denial is based,

 

                                                            6.2.5.3             a statement that the claimant is entitled to receive, upon request and free of charge, reasonable access to and copies of all documents, records, and other information relevant (as defined in applicable ERISA regulations) to the claimant’s claim for benefits, and

 

                                                            6.2.5.4             a statement of the claimant’s right to bring a civil action under ERISA section 502(a).

 

 

 

 

 

 

 

Article 7

Miscellaneous

 

            7.1        Amendments and Termination .  Subject to section 7.15 of this Agreement, this Agreement may be amended solely by a written agreement signed by the Bank and by the Executive, and except for termination occurring under Article 5 this Agreement may be terminated solely by a written agreement signed by the Bank and by the Executive.

 

            7.2        Binding Effect .  This Agreement shall bind the Executive, the Bank, and their beneficiaries, survivors, executors, successors, administrators, and transferees.

 

            7.3        No Guarantee of Employment .  This Agreement is not an employment policy or contract.  It does not give the Executive the right to remain an employee of the Bank, nor does it interfere with the Bank’s right to discharge the Executive.  It also does not require the Executive to remain an employee nor interfere with the Executive’s right to terminate employment at any time.

 

            7.4        Non-Transferability .  Benefits under this Agreement cannot be sold, transferred, assigned, pledged, attached, or encumbered in any manner.

 

            7.5        Successors; Binding Agreement .  The Bank will require any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business or assets of the Bank, by an assumption agreement in form and substance satisfactory to the Executive, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Bank would be required to perform this Agreement if no such succession had occurred.

 

            7.6        Tax Withholding .  The Bank shall withhold any taxes that are required to be withheld from the benefits provided under this Agreement.

 

            7.7        Applicable Law .  This Agreement and all rights hereunder shall be governed by the laws of the State of South Carolina, except to the extent preempted by the laws of the United States of America.

 

            7.8        Unfunded Arrangement .  The Executive and Beneficiary are general unsecured creditors of the Bank for the payment of benefits under this Agreement.  The benefits represent the mere promise by the Bank to pay the benefits.  Rights to benefits are not subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or garnishment by creditors.  Any insurance on the Executive’s life is a general asset of the Bank to which the Executive and Beneficiary have no preferred or secured claim.

 

            7.9        Entire Agreement .  This Agreement constitutes the entire agreement between the Bank and the Executive concerning the subject matter.  No rights are granted to the Executive under this Agreement other than those specifically set forth.

 

 

 

 

 

 

 

            7.10      Severability .  If for any reason any provision of this Agreement is held invalid, such invalidity shall not affect any other provision of this Agreement not held invalid, and each such other provision shall continue in full force and effect to the full extent consistent with law.  If any provision of this Agreement is held invalid in part, such invalidity shall not affect the remainder of the provision not held invalid, and the remainder of such provision together with all other provisions of this Agreement shall continue in full force and effect to the full extent consistent with law.

 

            7.11      Headings .  Caption headings and subheadings herein are included solely for convenience of reference and shall not affect the meaning or interpretation of any provision of this Agreement.

 

            7.12      Notices .  All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered by hand or mailed, certified or registered mail, return receipt requested, with postage prepaid, to the following addresses or to such other address as either party may designate by like notice.  If to the Bank, notice shall be given to the board of directors, Southern First Bank, N.A., 112 Haywood Road, Greenville, South Carolina 29607, or to such other or additional person or persons as the Bank shall have designated to the Executive in writing.  If to the Executive, notice shall be given to the Executive at the Executive’s address appearing on the Bank’s records, or to such other or additional person or persons as the Executive shall have designated to the Bank in writing.

 

 

 

 

 

 

 

            7.13      Payment of Legal Fees .  The Bank is aware that after a Change in Control management of the Bank could cause or attempt to cause the Bank to refuse to comply with its obligations under this Agreement, or could institute or cause or attempt to cause the Bank to institute litigation seeking to have this Agreement declared unenforceable, or could take or attempt to take other action to deny Executive the benefits intended under this Agreement.  In these circumstances, the purpose of this Agreement would be frustrated.  It is the intention of the Bank that the Executive not be required to incur the expenses associated with the enforcement of rights under this Agreement, whether by litigation or other legal action, because the cost and expense thereof would substantially detract from the benefits intended to be granted to the Executive hereunder.  It is the intention of the Bank that the Executive not be forced to negotiate settlement of rights under this Agreement under threat of incurring expenses.  Accordingly, if after a Change in Control occurs it appears to the Executive that ( x ) the Bank has failed to comply with any of its obligations under this Agreement, or ( y ) the Bank or any other person has taken any action to declare this Agreement void or unenforceable, or instituted any litigation or other legal action designed to deny, diminish, or to recover from the Executive the benefits intended to be provided to the Executive hereunder, the Bank irrevocably authorizes the Executive from time to time to retain counsel of the Executive’s choice, at the expense of the Bank as provided in this section 7.13, to represent the Executive in connection with the initiation or defense of any litigation or other legal action, whether by or against the Bank or any director, officer, stockholder, or other person affiliated with the Bank, in any jurisdiction.  Notwithstanding any existing or previous attorney-client relationship between the Bank and any counsel chosen by the Executive under this section 7.13, the Bank irrevocably consents to the Executive entering into an attorney-client relationship with that counsel, and the Bank and the Executive agree that a confidential relationship shall exist between the Executive and that counsel.  The fees and expenses of counsel selected from time to time by the Executive as provided in this section shall be paid or reimbursed to the Executive by the Bank on a regular, periodic basis upon presentation by the Executive of a statement or statements prepared by such counsel in accordance with such counsel’s customary practices, up to a maximum aggregate amount of Five Hundred Thousand & No/100 ($500,000) Dollars, whether suit be brought or not, and whether or not incurred in trial, bankruptcy, or appellate proceedings.  The Bank’s obligation to pay the Executive’s legal fees provided by this section 7.13 operates separately from and in addition to any legal fee reimbursement obligation the Bank may have with the Executive under any separate employment, severance, or other agreement between the Executive and the Bank.  Anything in this section 7.13 to the contrary notwithstanding however, the Bank shall not be required to pay or reimburse the Executive’s legal expenses if doing so would violate section 18(k) of the Federal Deposit Insurance Act [12 U.S.C. 1828(k)] and Rule 359.3 of the Federal Deposit Insurance Corporation [12 CFR 359.3].

 

            7.14      Internal Revenue Code Section 280G Gross Up .  (a)  Additional Payment to Account for Excise Taxes .  If as the result of a Change in Control the Executive becomes entitled to acceleration of benefits under this Agreement or under any other plan or agreement of or with the Bank or its affiliates (together, the “Total Benefits”), and if any of the Total Benefits will be subject to the Excise Tax as set forth in sections 280G and 4999 of the Internal Revenue Code of 1986 (the “Excise Tax”), the Bank shall pay to the Executive the following additional amounts, consisting of ( x ) a payment equal to the Excise Tax payable by the Executive on the Total Benefits under section 4999 of the Internal Revenue Code (the “Excise Tax Payment”), and ( y ) a payment equal to the amount necessary to provide the Excise Tax Payment net of all income, payroll and excise taxes.  Together, the additional amounts described in clauses ( x ) and ( y ) are referred to in this Agreement as the “Gross-Up Payment Amount.”

 

            Calculating the Excise Tax .  For purposes of determining whether any of the Total Benefits will be subject to the Excise Tax and for purposes of determining the amount of the Excise Tax,

 

                        1)         Determination of “Parachute Payments” Subject to the Excise Tax : any other payments or benefits received or to be received by the Executive in connection with a Change in Control or the Executive’s Separation from Service (whether under the terms of this Agreement or any other agreement or any other benefit plan or arrangement with the Bank, any person whose actions result in a Change in Control, or any person affiliated with the Bank or such person) shall be treated as “parachute payments” within the meaning of section 280G(b)(2) of the Internal Revenue Code, and all “excess parachute payments” within the meaning of section 280G(b)(1) shall be treated as subject to the Excise Tax, unless in the opinion of the certified public accounting firm that is retained by the Bank as of the date immediately before the Change in Control (the “Accounting Firm”) such other payments or benefits do not constitute (in whole or in part) parachute payments, or such excess parachute payments represent (in whole or in part) reasonable compensation for services actually rendered within the meaning of section 280G(b)(4) of the Internal Revenue Code in excess of the base amount (as defined in section 280G(b)(3) of the Internal Revenue Code), or are otherwise not subject to the Excise Tax,

 

                        2)         Calculation of Benefits Subject to Excise Tax :  the amount of the Total Benefits that shall be treated as subject to the Excise Tax shall be equal to the lesser of ( x ) the total amount of the Total Benefits reduced by the amount of such Total Benefits that in the opinion of the Accounting Firm are not parachute payments, or ( y ) the amount of excess parachute payments within the meaning of section 280G(b)(1) (after applying clause (1), above), and

 

 

 

 

 

 

 

                        3)         Value of Noncash Benefits and Deferred Payments :  the value of any noncash benefits or any deferred payment or benefit shall be determined by the Accounting Firm in accordance with the principles of sections 280G(d)(3) and (4) of the Internal Revenue Code.

 

            Assumed Marginal Income Tax Rate . For purposes of determining the amount of the Gross-Up Payment Amount, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar years in which the Gross-Up Payment Amount is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s residence on the date of Separation from Service, net of the reduction in federal income taxes that can be obtained from deduction of such state and local taxes (calculated by assuming that any reduction under section 68 of the Internal Revenue Code in the amount of itemized deductions allowable to the Executive applies first to reduce the amount of such state and local income taxes that would otherwise be deductible by the Executive, and applicable federal FICA and Medicare withholding taxes).

 

            Return of Reduced Excise Tax Payment or Payment of Additional Excise Tax .  If the Excise Tax is later determined to be less than the amount taken into account hereunder when the Executive’s employment terminated, the Executive shall repay to the Bank – when the amount of the reduction in Excise Tax is finally determined – the portion of the Gross-Up Payment Amount attributable to the reduction (plus that portion of the Gross-Up Payment Amount attributable to the Excise Tax, federal, state and local income taxes and FICA and Medicare withholding taxes imposed on the Gross-Up Payment Amount being repaid by the Executive to the extent that the repayment results in a reduction in Excise Tax, FICA, and Medicare withholding taxes and/or a federal, state, or local income tax deduction).

 

            If the Excise Tax is later determined to be more than the amount taken into account hereunder when the Executive’s employment terminated (due, for example, to a payment whose existence or amount cannot be determined at the time of the Gross-Up Payment Amount), the Bank shall make an additional Gross-Up Payment Amount to the Executive for that excess (plus any interest, penalties, or additions payable by the Executive for the excess) when the amount of the excess is finally determined.

 

            (b)        Responsibilities of the Accounting Firm and the Bank .  Determinations Shall Be Made by the Accounting Firm .  Subject to the provisions of section 7.14(a), all determinations required to be made under this section 7.14(b) – including whether and when a Gross-Up Payment Amount is required, the amount of the Gross-Up Payment Amount and the assumptions to be used to arrive at the determination (collectively, the “Determination”) – shall be made by the Accounting Firm, which shall provide detailed supporting calculations both to the Bank and the Executive within 15 business days after receipt of notice from the Bank or the Executive that there has been a Gross-Up Payment Amount, or such earlier time as is requested by the Bank.

 

            Fees and Expenses of the Accounting Firm and Agreement with the Accounting Firm .  All fees and expenses of the Accounting Firm shall be borne solely by the Bank.  The Bank shall enter into any agreement requested by the Accounting Firm in connection with the performance of its services hereunder.

 

 

 

 

 

 

 

            Accounting Firm’s Opinion .  If the Accounting Firm determines that no Excise Tax is payable by the Executive, the Accounting Firm shall furnish the Executive with a written opinion to that effect, and to the effect that failure to report Excise Tax, if any, on the Executive’s applicable federal income tax return will not result in the imposition of a negligence or similar penalty.

 

            Accounting Firm’s Determination Is Binding; Underpayment and Overpayment .  The Determination by the Accounting Firm shall be binding on the Bank and the Executive.  Because of the uncertainty in determining whether any of the Total Benefits will be subject to the Excise Tax at the time of the Determination, it is possible that a Gross-Up Payment Amount that should have been made will not have been made by the Bank (“Underpayment”), or that a Gross-Up Payment Amount will be made that should not have been made by the Bank  (“Overpayment”).  If, after a Determination by the Accounting Firm, the Executive is required to make a payment of additional Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred.  The Underpayment (together with interest at the rate provided in section 1274(d)(2)(B) of the Internal Revenue Code) shall be paid promptly by the Bank to or for the benefit of the Executive.  If the Gross-Up Payment Amount exceeds the amount necessary to reimburse the Executive for his or his Excise Tax according to section 7.14(a), the Accounting Firm shall determine the amount of the Overpayment that has been made.  The Overpayment (together with interest at the rate provided in section 1274(d)(2)(B) of the Internal Revenue Code) shall be paid promptly by the Executive to or for the benefit of the Bank.  Provided that the Executive’s expenses are reimbursed by the Bank, the Executive shall cooperate with any reasonable requests by the Bank in any contests or disputes with the Internal Revenue Service relating to the Excise Tax.

 

            Accounting Firm Conflict of Interest .  If the Accounting Firm is serving as accountant or auditor for the individual, entity, or group effecting the Change in Control, the Executive may appoint another nationally recognized public accounting firm to make the Determinations required hereunder (in which case the term “Accounting Firm” as used in this Agreement shall be deemed to refer to the accounting firm appointed by the Executive under this paragraph).

 

            7.15      Termination or Modification of Agreement Because of Changes in Law, Rules or Regulations .  The Bank is entering into this Agreement on the assumption that certain existing tax laws, rules, and regulations will continue in effect in their current form.  If that assumption materially changes and the change has a material detrimental effect on this Agreement, then the Bank reserves the right to terminate or modify this Agreement accordingly, subject to the written consent of the Executive, which shall not be unreasonably withheld.  This section 7.15 shall become null and void effective immediately upon a Change in Control.

 

Article 8

Administration of Agreement

 

            8.1        Plan Administrator Duties .  This Agreement shall be administered by a Plan Administrator consisting of the Bank’s board of directors or such committee or person(s) as the board shall appoint.  The Executive may be a member of the Plan Administrator.  The Plan Administrator shall also have the discretion and authority to ( x ) make, amend, interpret, and enforce all appropriate rules and regulations for the administration of this Agreement and ( y ) decide or resolve any and all questions, including interpretations of this Agreement, as may arise in connection with the Agreement.

 

 

 

 

 

 

 

            8.2       Agents .  In the administration of this Agreement, the Plan Administrator may employ agents and delegate to them such administrative duties as it sees fit (including acting through a duly appointed representative) and may from time to time consult with counsel, who may be counsel to the Bank.

 

            8.3        Binding Effect of Decisions .  The decision or action of the Plan Administrator with respect to any question arising out of or in connection with the administration, interpretation, and application of the Agreement and the rules and regulations promulgated hereunder shall be final and conclusive and binding upon all persons having any interest in the Agreement.  No Executive or Beneficiary shall be deemed to have any right, vested or nonvested, regarding the continued use of any previously adopted assumptions.

 

            8.4        Indemnity of Plan Administrator .  The Bank shall indemnify and hold harmless the members of the Plan Administrator against any and all claims, losses, damages, expenses, or liabilities arising from any action or failure to act with respect to this Agreement, except in the case of willful misconduct by the Plan Administrator or any of its members.

 

            8.5        Bank Information .  To enable the Plan Administrator to perform its functions, the Bank shall supply full and timely information to the Plan Administrator on all matters relating to the date and circumstances of the retirement, Disability, death, or Separation from Service of the Executive and such other pertinent information as the Plan Administrator may reasonably require.

 

 

 

[SIGNATURES APPEAR ON THE FOLLOWING PAGE]

 

 

           

 

 

 

 

 

 

In Witness Whereof , the Executive and a duly authorized officer of the Bank have executed this Salary Continuation Agreement this ____ day of ____________________, 2008, to be effective as of the date first written above.

 

Executive :                                                               Bank :

 

                                                                                    Southern First Bank, N.A.

 

                                                                                     By:                                                                                                                   

                                                                                                R. Arthur Seaver, Jr.  

                                                                                    Its:   Chief Executive Officer

 

 

                                                                                    And By:                                                                                                       

                                                                                                       James B. Orders, III

                                                                                    Its:   Chairman of the Board

 

 

 

 

 

 

Beneficiary Designation

Southern First Bank, N.A.

Salary Continuation Agreement

 

            I, _____________________, designate the following as beneficiary of any death benefits under this Salary Continuation Agreement –

 

            Primary:                                                                                                                                 

                                                                                                                                                           .

 

            Contingent:                                                                                                                            

                                                                                                                                                            .

 

            Note:  To name a trust as beneficiary, please provide the name of the trustee(s) and the exact name and date of the trust agreement .

 

            I understand that I may change these beneficiary designations by filing a new written designation with the Bank.  I further understand that the designations will be automatically revoked if the beneficiary predeceases me, or if I have named my spouse as beneficiary and our marriage is subsequently dissolved.

 

                                    Signature:                                                                                                                        

                                                           

 

                                    Date:                                                            , 2008

 

 

            Accepted by the Bank this               day of                                             , 2008.

 

                                                            By:                                                                                                                                                        

 

                                                            Print Name:                                                                                                                   

 

                                                            Title:                                                                                                                                                      

 

 

 

 

 

 

 

Schedule A

Southern First Bank, N.A.

Salary Continuation Agreement

 

[Executive]

 

SCHEDULE A ASSUMPTIONS:

 

1. Please Note:  The Schedule A calculations below are for illustrative and informational purposes only and are subject to change due to changes in the assumptions from time to time, such as changes in the assumed discount rate, variations between the assumed timing of certain payments and the eventual actual timing of such payments, and other factors.  The below calculations assume a six and one-quarter percent (6.25%) discount rate and a October 1, 2008 SERP Effective Date.  If there is a contradiction between the terms of the Agreement and this Schedule A concerning the actual amount of a particular benefit amount due to the Executive, then the actual amount of the benefit set forth in the Agreement shall control.  If the Plan Administrator changes the discount rate employed for purposes of calculating the Accrual Balance, the Plan Administrator shall prepare or cause to be prepared a revised Schedule A for the Executive, which shall supersede and replace any and all Schedules A previously prepared under or attached to this Agreement.

 

1. The Schedule A calculations below assume a benefit payable for the Executive’s lifetime after age sixty-five (65), with a minimum benefit for a fifteen (15) – year term certain period.

 

1. The Change in Control benefit for _________________ is an amount equal to the greater of his annual retirement benefit (_____________________($__________) dollars) or his Accrual Balance at the time of the Change in Control.

 

1. The Schedule A calculations assume that payment of the early termination and disability benefits begins immediately after the Executive attains age sixty-five (65).  The possible six (6) – month delay because of Internal Revenue Code section 409A is ignored for calculation purposes.

 

1. The early termination and disability benefits are actually based on the Executive’s Accrual Balance existing at the end of the month immediately before early termination occurs or immediately before the month in which termination because of disability occurs, compounding this Accrual Balance forward to the Executive’s Normal Retirement Age taking into account interest at the discount rate or rates established by the Plan Administrator, and amortizing this resulting amount over the Executive’s lifetime for a fifteen (15) – year term certain period beginning with the Executive’s Normal Retirement Age.  For clarity, Schedule A shows early termination and disability benefits based on the Executive’s end-of-year Accrual Balances.  For example, ______________ $17,105 early termination and disability benefit at age 54 is based on his December 31, 2011 Accrual Balance, as compounded and amortized as discussed above.  Accordingly,

 

 

 

 

 

 

 

Schedule A

Southern First Bank, N.A.

Salary Continuation Agreement

 

[Executive]

 

SCHEDULE A ASSUMPTIONS (continued):

 

the $17,105 early termination and disability benefit assumes his termination occurs in January 2012.

 

1. For _______________, the Change in Control benefit is based on his Accrual Balance when the change in control occurs.  For clarity, the Schedule A shows Change in Control benefits based on end-of-year Accrual Balances.  For example, _____________ $84,180 Change in Control benefit at age 54 is based on his December 31, 2011 Accrual Balance.  Accordingly, the $84,180 Change in Control benefit assumes the change in control occurs in January 2012.

 

 

 

 

 

 

 

Schedule A

 

 

[Executive]

 

 

 

 

 

 

 

 

Exhibit 10.2

 

FIRST AMENDMENT

TO

SOUTHERN FIRST BANK, N.A.

SALARY CONTINUATION AGREEMENT

 

 

            THIS FIRST AMENDMENT TO SALARY CONTINUATION AGREEMENT (this " Amendment ") is executed by the undersigned to be effective ____________, 2008.  Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Salary Continuation Agreement (the " Agreement ") by and between Greenville First Bank, N.A. now known as Southern First Bank, N.A. (the "Bank") and ____________________ (the "Executive" ).

 

W I T N E S S E T H :

 

            WHEREAS , the Bank, a South Carolina-chartered bank, amended its Charter to reflect the Bank's name change from Greenville First Bank, N.A. to Southern First Bank, N.A.;

 

            WHEREAS , on June 17, 2008 the Board of Directors of the Bank approved and authorized the Bank to amend Section 2.1.1 Amount of Benefit of ARTICLE 2 and Schedule A of the Agreement to reflect the increase in the amount of the annual benefit from _________________ ($_____________) Dollars to ____________________ ($_______________) Dollars;

 

            WHEREAS, the Bank, or its holding company, may be a participant in the United States Treasury Capital Purchase Program (the "Program") and, therefore, the Bank desires to amend the Agreement for the parties to acknowledge the possible payment limitations of the Agreement to the extent it may be required under the Program and related regulations; and

 

            WHEREAS , the parties now desire to enter into this Amendment to (i) reflect the name change of the Bank; (ii) increase the amount of the Normal Retirement Benefit; (iii) revise Schedule A to reflect such increase; and (iv) provide for limitations on any payments to be received by the Executive to the extent required under the Program.

 

            NOW THEREFORE , in consideration of the matters set forth above, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

           

            1.    Any and all references in the Agreement to Greenville First Bank, N.A. shall now be references to Southern First Bank, N.A.;

 

2.    Section 2.1.1 Amount of Benefit of ARTICLE 2 of the Agreement is hereby amended by deleting it in its entirety and replacing it with the following Section 2.1.1:

 

"______________.  The annual benefit under this section ____ is _________________ ($____________) Dollars."

 

 

 

 

 

 

 

            3.  Schedule A of the Agreement is hereby amended by deleting it in its entirety and replacing it with the First Amended Schedule A attached hereto and made a part hereof.

 

            4.         Section 2.9 is hereby added to the Agreement as follows:

 

" 2.9       United States Treasury Capital Purchase Program Payment Limitations.  Notwithstanding anything in this Agreement to the contrary, any payments to the Executive shall be limited to the extent required under the United States Treasury Capital Purchase Program (the "Program") and related regulations in the event that the Bank or its holding company participates in the Program.  The Executive agrees to such amendments, agreements, or waivers that may be required by the United States Treasury or requested by the Bank or its holding company to comply with the terms of the Program. "

 

            5.    Except as expressly herein modified and amended, all terms, provisions, and conditions of the Agreement shall remain in full force and effect.

 

            6.    This Amendment may be executed in counterparts, each of which shall for all purposes be deemed an original, and all of such counterparts shall together constitute one and the same amendment.

 

            7.     This Amendment shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, legal representatives and assigns.

 

            IN WITNESS WHEREOF , the undersigned have caused this Amendment to be duly executed the 17th day of December, 2008, effective as of the date first written above.

           

 

EXECUTIVE:                                                          BANK:

                                                                                    .

 

 

                                                                                    By:                                                                  

                                                                            

 

                                                                                    Its:                                                       

 

 

                                                                                    And By:                                                          

                                                                                                    

 

                                                                                    Its:             ________________________       

 

                                                                                   

                                                                  

 

 

 

 

 

 

First Amended Schedule A

Southern First Bank, N.A.

Salary Continuation Agreement

 

_____________________________

 

SCHEDULE A ASSUMPTIONS:

 

1. Please Note:  The Schedule A calculations below are for illustrative and informational purposes only and are subject to change due to changes in the assumptions from time to time, such as changes in the assumed discount rate, variations between the assumed timing of certain payments and the eventual actual timing of such payments, and other factors.  The below calculations assume a six and one-quarter percent (6.25%) discount rate and an October 1, 2008 Amended SERP Effective Date.  If there is a contradiction between the terms of the Agreement and this Schedule A concerning the actual amount of a particular benefit amount due to the Executive, then the actual amount of the benefit set forth in the Agreement shall control.  If the Plan Administrator changes the discount rate employed for purposes of calculating the Accrual Balance, the Plan Administrator shall prepare or cause to be prepared a revised Schedule A for the Executive, which shall supersede and replace any and all Schedules A previously prepared under or attached to this Agreement.

 

1. The Schedule A calculations below assume a benefit payable for the Executive’s lifetime after age sixty-five (65), with a minimum benefit for a fifteen (15) – year term certain period.

 

1. The change-in-control benefit for Mr. Seaver is his normal retirement age Accrual Balance, without any additional discount for the time value of money. 

 

1. The Schedule A calculations assume that payment of the early termination and disability benefits begins immediately after the Executive attains age sixty-five (65).  The possible six (6) – month delay because of Internal Revenue Code section 409A is ignored for calculation purposes.

 

1. The early termination and disability benefits are actually based on the Executive’s Accrual Balance existing at the end of the month immediately before early termination occurs or immediately before the month in which termination because of disability occurs, compounding this Accrual Balance forward to the Executive’s Normal Retirement Age taking into account interest at the discount rate or rates established by the Plan Administrator, and amortizing this resulting amount over the Executive’s lifetime for a fifteen (15) – year term certain period beginning with the Executive’s Normal Retirement Age.  For clarity, Schedule A shows early termination and disability benefits based on the Executive’s end-of-year Accrual Balances.  For example, Executive's $________ early termination and disability benefit at age ____ is based on his December 31, 2011 Accrual Balance, as compounded and amortized as discussed above.  Accordingly,

 

 

 

 

 

 

 

 

First Amended Schedule A

Southern First Bank, N.A.

Salary Continuation Agreement

 

  _____________________

 

SCHEDULE A ASSUMPTIONS (continued):

 

the $_________ early termination and disability benefit assumes his termination occurs in January 20___.

 

1. The Schedule A calculations assume that the Executive is not entitled to an early termination benefit unless the Executive remains in the active employment of _______________ until at least _______ 20___.

 

 

 

 

 

 

 

 

First Amended Schedule A

 

__________________________________

 

 

 

 

 

 

 

Exhibit 10.3

EMPLOYMENT AGREEMENT

THIS EMPLOYMENT AGREEMENT (this “Agreement”) is made as of and effective on the   17 ^th  day of   November  , 2008 (the “Effective Date”) by and between Southern First Bancshares, Inc. and Southern First Bank, National Association (hereinafter collectively called “Employer” or the “Company”), having its principal office at 100 Verdae Boulevard, Suite 100, Greenville, South Carolina 29607, and R. Arthur Seaver, Jr. (hereinafter called “Employee”), whose residence address is 226 Northbrook Way, Greenville, South Carolina 29615.

Employer presently employs Employee as its Chief Executive Officer.  Employer desires to provide for the continued employment of Employee and to make certain changes in Employee’s employment arrangements which Employer has determined will reinforce and encourage the continued dedication of Employee to Employer.  Employee is willing to terminate Employee’s interests and rights under the existing Employment Agreement with Employer and to continue to serve Employer on the terms and conditions herein provided.

 

In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

            1.         Employment .  Employer shall continue to employ Employee, and Employee shall continue to serve Employer, as Chief Executive Officer and in such capacity shall perform such duties as are consistent with that position, and as Employer from time to time may direct.   Employee shall also serve on the Boards of Directors of the Employer.  Employee shall have such authority and responsibilities consistent with Employee’s position as are set forth in Employer’s Bylaws or assigned by Employer’s Board of Directors (the “Board”) from time to time.  Employee shall devote Employee’s full business time, attention, skill and efforts to the performance of Employee’s duties hereunder, except during periods of illness or periods of vacation and leaves of absence consistent with Employer’s policy.  Such duties shall be performed at Employer’s principal corporate offices or subsidiary offices as agreed upon by Employer and Employee.  Employer reserves the right from time to time to extend, curtail or change the title and duties of Employee.  Employee may devote reasonable periods to service as a director or advisor to other organizations, to charitable and community activities, and to managing Employee’s personal investments; provided that such activities do not materially interfere with the performance of Employee’s duties hereunder and are not in conflict or competitive with, or adverse to, the interests of Employer.

2.            Term .  Unless earlier terminated as provided in section 13 below, Employee’s employment under this Agreement shall commence on the Effective Date and be for a term ending January 31, 2012 (the “Term”).  At the end of January 2010 and on the last day of January each year thereafter, the Term shall be extended for an additional one (1) year so that the remaining Term shall continue to be three (3) years; provided that Employer or Employee may at any time, by written notice, fix the Term to a finite term of three (3) years commencing with the year of the notice.  Notwithstanding the foregoing, the Term of employment hereunder will end on the date that Employee attains the retirement age, if any, specified in the Bylaws of the Employer for directors of the Employer.

 

 

 

3.            Base Salary .  For all services rendered by Employee under this Agreement, Employer shall pay Employee a base salary of $240,000.00 per year (the “Base Salary”).  Employee shall receive a minimum annual increase in Employee’s Base Salary equal to the previous year’s Base Salary times the increase in the Consumer Price Index during the previous year as stated in a nationally recognized financial news source, such as the Wall Street Journal (the “Mandatory Annual Increase”).  The Base Salary shall be reviewed annually by the Board, and may be increased above the Mandatory Annual Increase, beginning February 1 of each year, by the Board or a duly appointed committee thereof, in its sole discretion.  The Base Salary shall be paid in accordance with Employer’s standard payroll procedures, but in any case, no less frequently than monthly.

            Notwithstanding anything in this Agreement to the contrary, any payments to the Employee shall be limited to the extent required under the United States Treasury Capital Purchase Program (the "Program") and related regulations in the event that the Employer participates in the Program.  The Employee agrees to such amendments, agreements, or waivers that may be required by the United States Treasury or requested by the Employer to comply with the terms of the Program.

 

4.            Benefits .

(a)        Employee shall be entitled, to the extent that Employee’s position, title, tenure, salary, age, health and other qualifications make Employee eligible, to participate in such pension, profit sharing, bonus, life insurance, hospitalization, major medical, and other employee benefit plans or programs of Employer currently in existence on the date hereof or later established that generally are provided to executive employees of Employer.  Employee’s participation in any such plan or program shall be subject to the provisions, rules and regulations applicable thereto.  Employer shall reimburse Employee, or pay directly, for Employee’s annual medical insurance premium, to be paid by Employer to Employee, or paid directly, within sixty (60) days of Employee’s written notice to Employer of such expenses.  Any Company stock options or similar awards shall be issued to Employee at an exercise price per share of not less than the fair market value per share of the corresponding shares as of the date of grant and the number of shares subject to such grant shall be fixed on such date.  Southern First Bank, National Association, opened for business as Greenville First Bank, N.A. in January 2000 (the “Opening Date”).  On each anniversary of the Opening Date, Employee shall be eligible to receive a cash bonus equaling up to five percent (5%) of the net pre-tax income of the Employer if the Employer achieves certain performance levels as established from time to time by the Board.  Any and all bonus payments made to Employee shall be paid by the earlier of: (i) seventy (70) days after the previous year end for which the bonus was earned by Employee and became a payable of Employer or (ii) with the first payroll cycle following the Company’s press release announcing its previous year’s financial performance.

 

(b)        Employer shall reimburse Employee, or pay directly, for a term life insurance policy providing for death benefits totaling $300,000 payable to the Employee’s spouse and heirs (and may provide for additional death benefits of up to $700,000 payable to the Employer), and the Employee shall cooperate with the Employer in the securing and maintenance of such policy.  Employer shall reimburse Employee, or pay directly, for such term life insurance policy within sixty (60) days of Employee’s written notice to Employer of such expenses.  Employer shall also pay for an accident liability policy on the Employee totaling $1,000,000 to protect the Employer from damages or lawsuits resulting from injuries to third parties caused by the Employee.

 

 

 

 

(c)        At Employer’s election, Employer shall provide Employee with either an automobile owned or leased by Employer of a make and model appropriate to Employee’s status, or a $750 monthly automobile allowance, paid in accordance with Employer’s standard payroll procedures, but in any case, no less frequently than monthly.  If Employer provides Employee with an automobile instead of a monthly automobile allowance, Employer shall reimburse Employee for reasonable expenses associated with the automobile, including, but not limited to, insurance, taxes, mileage, maintenance, etc., to be paid within sixty (60) days of Employee’s written notice to Employer of such expenses. 

 

(d)        Employer shall reimburse Employee, or pay directly, for Employee’s annual membership dues at the Thornblade Country Club, in a reasonable amount per year, for so long as the Employee remains an Employee of Employer and this Agreement remains in force.  Employer shall reimburse Employee, or pay directly, for such annual membership dues within sixty (60) days of Employee’s written notice to Employer of such expenses.

 

5.        Working Facilities .  Employee shall be furnished with an office and such other facilities and services as may be necessary or suitable to Employee’s position and adequate for the performance of Employee’s duties.

 

6.        Expenses .  Employee is authorized to incur reasonable expenses for promoting the business of Employer, including expenses for entertainment, travel and similar items, but only to the extent that such expenses are allowable deductions to Employer on its Federal income tax return.  Expenses for which there is a fifty percent (50%) tax deduction limitation for entertainment, travel and similar items shall be considered reimbursable expenses.  Employer shall reimburse Employee for all such expenses within sixty (60) days of Employee’s written notice to Employer of such expenses.  Employee shall repay to Employer the amounts of any expenses claimed which, for lack of proper documentation or otherwise, are not allowed to Employer as deductions for Federal income tax purposes.

 

7.        Vacations .  Employee shall be entitled each fiscal year to twenty (20) paid days off, which shall be granted on a noncumulative basis from year-to-year, as granted by Employer to employees of similar tenure and compensation rank, pursuant to Employer’s paid days off policy.  Employer reserves the right to modify this and any other personnel policy from time to time.

 

8.        Ownership of Work Product .

 

(a)           Employee shall diligently disclose to Employer as soon as it is created or conceived by Employee, and Employer shall own, all Work Product (as defined below).  To the extent permitted by law, all Work Product shall be considered work made for hire by Employee and owned by Employer.

 

(b)            If any of the Work Product may not, by operation of law, be considered work made for hire by Employee for Employer (or if ownership of all right, title and interest of the intellectual property rights therein shall not otherwise vest exclusively in Employer), Employee agrees to assign, and upon creation thereof automatically assigns, without further consideration, the ownership of all Work Product to Employer, its successors and assigns.

 

(c)            Employer, its successors and assigns, shall have the right to obtain and hold in its or their own name copyrights, registrations, and any other protection available in the foregoing.

 

(d)            Employee agrees to perform upon the reasonable request of Employer, during or after Employee’s employment, such further acts as may be necessary or desirable to transfer, perfect and defend Employer’s ownership of the Work Product.  When requested, Employee will:

 

 

 

 

(i)            Execute, acknowledge and deliver any requested affidavits and documents of assignment and conveyance;

 

(ii)          Obtain and aid in the enforcement of copyrights (and, if applicable, patents) with respect to the Work Product in any countries;

 

(iii)         Provide testimony in connection with any proceeding affecting the right, title or interest of Employer in any Work Product; and

 

(iv)         Perform any other acts deemed necessary or desirable to carry out the purposes of this Agreement.

 

(e)            Employer shall reimburse all reasonable out-of-pocket expenses incurred by Employee at Employer’s request in connection with subsection 8(d) within sixty (60) days of Employee’s written notice to Employer of such expenses.

 

(f)             For purposes hereof, “Work Product” shall mean all intellectual property rights, including all Trade Secrets (as defined below), U.S. and international copyrights, patentable inventions, discoveries and improvements, and other intellectual property rights, in any programming, documentation, technology or other work product that relates to the business and interests of Employer and that Employee conceives, develops, or delivers to Employer at any time during the Term of Employee’s employment.  “Work Product” shall also include all intellectual property rights in any programming, documentation, technology or other work product that is now contained in any of the products or systems (including development and support systems) of Employer to the extent Employee conceived, developed or delivered such Work Product to Employer prior to the date of this Agreement while Employee was engaged as an independent contractor or employee of Employer.  Employee hereby irrevocably relinquishes for the benefit of Employer and its assigns any moral rights in the Work Product recognized by applicable law.

 

9.         Protection of Trade Secrets and Confidential Information . 

 

 

 

 

(a)        Through exercise of Employee’s rights and performance of Employee’s obligations under this Agreement, Employee will be exposed to “Trade Secrets” and “Confidential Information” (as those terms are defined below).  “Trade Secrets” shall mean information or data of or about Employer or any Affiliates (as defined in subsection 26(a)), including, but not limited to, technical or non-technical data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data, financial plans, product plans, or lists of actual or potential customers, clients, distributors, or licensees, that: (i) derive economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from their disclosure or use; and (ii) are the subject of efforts that are reasonable under the circumstances to maintain their secrecy.  To the extent that the foregoing definition is inconsistent with the definition of “trade secret” mandated under applicable law, the latter definition shall govern for purposes of interpreting Employee’s obligations under this Agreement.  Except as required to perform Employee’s obligations under this Agreement, or except with Employer’s prior written permission, Employee shall not use, redistribute, market, publish, disclose or divulge to any other person or entity any Trade Secrets of Employer.  Employee’s obligations under this provision shall remain in force (during and after the Term) for so long as such information or data shall continue to constitute a Trade Secret under applicable law.  Employee agrees to cooperate with any and all confidentiality requirements of Employer, and Employee shall immediately notify Employer of any unauthorized disclosure or use of any Trade Secrets of which Employee becomes aware.

 

(b)        Employee agrees to maintain in strict confidence and, except as necessary to perform Employee’s duties for Employer, not to use or disclose any Confidential Information at any time, either during the Term of Employee’s employment or for a period of two (2) years after Employee’s last date of employment, so long as the pertinent data or information remains Confidential Information.  “Confidential Information” shall mean any non-public information of a competitively sensitive or personal nature, other than Trade Secrets, acquired by Employee during Employee’s employment, relating to Employer or Employer’s business, operations, customers, suppliers, products, employees, financial affairs or industrial practices.  Notwithstanding anything herein to the contrary, no obligation or liability shall accrue hereunder with respect to any information that is or becomes publicly available without the fault of Employee.

 

(c)        Employee will abide by Employer’s policies and regulations, as established from time to time, for the protection of its Confidential Information.  Employee acknowledges that all records, files, data, documents, and the like relating to suppliers, customers, costs, prices, systems, methods, personnel, technology and other materials relating to Employer or its Affiliated entities shall be and remain the sole property of Employer and/or such Affiliated entity.  Employee agrees, upon the request of Employer, and in any event upon termination of Employee’s employment, to turn over all copies of all media, records, documentation, etc., pertaining to Employer (together with a written statement certifying as to Employee’s compliance with the foregoing).

 

10.       Non-Solicitation of Customers .  During the Employee’s employment with the Employer and for a period of one (1) year following termination or expiration of this Agreement, Employee shall not (except on behalf of or with the prior written consent of the Employer) directly or indirectly solicit any individual or entity which was a customer or client of Employer or any of its Affiliates for the purpose of providing a service or product to such customer or client which is the same type of service or product offered or provided by Employer or any of its Affiliates; provided , however , that this restriction shall apply only to those customers or clients with whom Employee had contact in connection with services or products provided by Employer or any of its Affiliates within two (2) years prior to the date of termination of such employment.

 

11.       Non-Solicitation of Employees .  During the Employee’s employment with the Employer and for a period of one (1) year following termination or expiration of this Agreement, Employee shall not, directly or indirectly, on the Employee’s own behalf or in the service of or on behalf of others, induce or solicit, or attempt to induce or solicit, for employment purposes or for any type of consulting purposes any employee of or consultant to the Employer or any of its Affiliates for the purpose of providing services that are the same or similar to the types of services offered or engaged in by any employee of or consultant to the Employer or any of its Affiliates at the time of termination of Employee’s employment with Employer. 

 

 

 

 

 

12.       Non-Competition Agreement .  During Employee’s employment with the Employer and for a period of one (1) year following termination or expiration of this Agreement, Employee shall not (without the prior written consent of Employer) compete with Employer or any of its Affiliates, directly or indirectly, engage in forming, serving as an organizer, director, officer of, employee or agent, or consultant to, or acquiring or maintaining more than a one percent (1%) passive investment in, a depository financial institution or holding company thereof if such depository institution or holding company has, or upon formation will have, one or more offices or branches located within thirty (30) miles of any office or branch of Employer or any of its Affiliates in existence at the time Employee’s employment with Employer is terminated (the “Territory”).  Notwithstanding the foregoing, Employee may serve as an officer of or consultant to a depository institution or holding company thereof even though such institution operates one or more offices or branches in the Territory, if Employee’s employment does not directly involve, in whole or in part, the depository financial institution’s or holding company’s operations in the Territory. 

 

13.       Termination .

 

(a)            Employee’s employment under this Agreement may be terminated prior to the end of the Term only as follows:

 

(i)            upon the death of Employee;

 

(ii)          by Employer upon the Disability (as defined in subsection 26(d)) of Employee for a period of one hundred and eighty (180) days;

 

(iii)         by Employer for Cause (as defined in subsection 26(b)) upon delivery of a Notice of Termination (as defined in subsection 26(g)) to Employee;

 

(iv)         by Employer without Cause upon delivery of a Notice of Termination to Employee;

 

(v)          by Employee for Good Reason (as defined in subsection 26(e)) upon delivery of a Notice of Termination to the Employer within a ninety (90) day period beginning on the thirtieth (30 ^th ) day after the occurrence of a Change in Control (as defined in subsection 26(c)) or within a ninety (90) day period beginning on the one (1) year anniversary of the occurrence of a Change in Control; or

 

(vi)         by Employee upon delivery of a Notice of Termination to Employer.

 

(b)            If Employee’s employment is terminated because of the Employee’s death, Employer shall pay Employee’s estate:

                       

(i)         any sums due Employee as Base Salary and/or reimbursement of expenses through the end of the month during which death occurred, paid in accordance with Employer’s standard payroll procedures, but in any case, no less frequently than monthly; and

 

(ii)        any bonus earned or accrued through the date of death.  Any bonus for previous years which was not yet paid will be paid pursuant to the terms as set forth in section 4(a).  Any bonus that is earned in the year of death will be paid on the earlier of: (i) seventy (70) days after the year end in which the Employee died or (ii) with the first payroll cycle following the Company’s press release announcing its financial performance for the year in which the Employee died.  To the extent that the bonus is performance-based, the amount of the bonus will be calculated by taking into account the performance of the Employer for the entire year and prorating this through the date of Employee’s death. 

 

 

 

           

(c)   During the period of any Disability leading up to the termination of Employee’s employment as a result of the Disability, Employer shall:

 

(i)         continue to pay the Employee’s full Base Salary at the rate then in effect and all perquisites and other benefits (other than any bonus) in accordance with Employer’s standard payroll procedures, but in any case, no less frequently than monthly, until Employee becomes eligible for benefits under any long-term disability plan or insurance program maintained by Employer; provided that the amount of any such payments to Employee shall be reduced by the sum of the amounts, if any, payable to Employee for the same period under any disability benefit or pension plan covering the Employee; and

 

(ii)        pay Employee any bonus earned or accrued through the date of Disability.  Any bonus for previous years which was not yet paid will be paid pursuant to the terms as set forth in section 4(a).  Any bonus that is earned in the year of Disability will be paid on the earlier of: (i) seventy (70) days after the year end in which Employee became Disabled or (ii) with the first payroll cycle following the Company’s press release announcing its financial performance for the year in which the Employee became Disabled. 

 

(d)        If Employee’s employment is terminated for Cause, Employee shall receive only any sums due Employee as Base Salary and/or reimbursement of expenses through the date of termination, paid in accordance with Employer’s standard payroll procedures, but in any case, no less frequently than monthly.

 

(e)        If Employee’s employment is terminated by Employer without Cause, beginning on the date that is six (6) months and one (1) day following the date of the Employee’s termination, and continuing on the first day of the month for the next twelve (12) months, the Employer shall pay to the Employee severance compensation in cash in an amount equal to one hundred percent (100%) of the Employee’s Base Salary at the date of termination.  Employer shall also pay Employee any bonus earned or accrued through the date of termination.  Any bonus for previous years which was not yet paid will be paid in a lump sum on the date that is six (6) months and one (1) day following the date of the Employee’s termination.  Any bonus that is earned in the year of the Employee’s termination will be paid on the later of: (i) the date that is six (6) months and one (1) day following the date of the Employee’s termination or (ii) with the first payroll cycle following the Company’s press release announcing its financial performance for the year of the Employee’s termination.  The restrictive covenants contained in sections 10, 11 and 12 shall not apply to Employee.

 

(f)        If Employee’s employment is terminated by Employee for Good Reason, in addition to other rights and remedies available in law or equity, Employee shall be entitled to the following:

 

 

 

 

(i)         Employer shall pay Employee, beginning on the date that is six (6) months and one (1) day following the date of the Employee’s termination, and continuing on the first day of the month for the next twelve (12) months, severance compensation in cash in an amount equal to one hundred percent (100%) of the Employee’s Base Salary at the date of termination.  Employer shall also pay Employee any bonus earned or accrued through the date of termination.  Any bonus for previous years which was not yet paid will be paid in a lump sum on the date that is six (6) months and one (1) day following the date of the Employee’s termination.  Any bonus that is earned in the year of the Employee’s termination will be paid on the later of: (i) the date that is six (6) months and one (1) day following the date of the Employee’s termination or (ii) with the first payroll cycle following the Company’s press release announcing its financial performance for the year of the Employee’s termination;

 

(ii)        for the period from the date of termination through the date that Employee attains the age of sixty-five (65) years (the “Continuation Period”), Employer shall at its expense continue on behalf of Employee and Employee’s spouse, dependents and beneficiaries the life insurance, disability, medical, dental, and hospitalization benefits provided (x) to Employee at any time during the ninety (90) day period prior to the Change in Control or at any time thereafter or (y) to other similarly situated executives who continue in the employ of Employer during the Continuation Period.  Such coverage and benefits (including deductibles and costs) shall be no less favorable to Employee, Employee’s spouse, dependents and beneficiaries than the most favorable of such coverages and benefits during any of the periods referred to above.  Employer’s obligation hereunder with respect to the foregoing benefits shall be limited to the extent that Employee obtains any such benefits pursuant to a subsequent employer’s benefit plans, in which case Employer may reduce the coverage of any benefits it is required to provide Employee hereunder as long as the aggregate coverages and benefits of the combined benefit plans is no less favorable to Employee than the coverages and benefits required to be provided hereunder.  This subsection (ii) shall not be interpreted so as to limit any benefits to which Employee, Employee’s spouse, dependents or beneficiaries may be entitled under any of Employer’s employee benefit plans, programs, or practices following Employee’s termination of employment, including, without limitation, retiree medical and life insurance benefits;

 

(iii)       the restrictions on any outstanding incentive awards (including restricted stock) granted to Employee under the Company’s or the Employer’s long-term equity incentive program or any other incentive plan or arrangement shall lapse and become one hundred percent (100%) vested and any Employee election rights thereto must be exercised contemporaneously with the Change in Control;

 

(iv)       all stock options and stock appreciation rights granted to Employee shall become immediately exercisable and shall become one hundred percent (100%) vested and must be exercised, if exercised, contemporaneously with the Change in Control;

 

(v)        all performance units granted to Employee shall become one hundred percent (100%) vested and any compensation associated with such units must be paid contemporaneously with the Change in Control; and

 

(vi)       the restrictive covenants contained in sections 10, 11 and 12 shall not apply to Employee.

 

 

 

 

(g)        If Employee’s employment is terminated by Employee without Good Reason, Employee shall receive only any sums due Employee as Base Salary and/or reimbursement of expenses through the date of termination, paid in accordance with Employer’s standard payroll procedures, but in any case, no less frequently than monthly.

 

(h)        With the exceptions of the provisions of this section 13, and the express terms of any benefit plan under which Employee is a participant, it is agreed that, upon Employee’s Termination of Employment, Employer shall have no obligation to Employee for, and Employee waives and relinquishes, any further compensation or benefits (exclusive of COBRA benefits).  Unless otherwise stated in this section 13, the effect of termination on any outstanding incentive awards, stock options, stock appreciation rights, performance units, or other incentives shall be governed by the terms of the applicable benefit or incentive plan and/or the agreements governing such incentives.  At the time of Termination of Employment, Employer and Employee shall enter into a mutually satisfactory form of release acknowledging such remaining obligations and discharging both parties, as well as Employer’s officers, directors and employees with respect to their actions for or on behalf of Employer, from any other claims or obligations arising out of or in connection with Employee’s employment by Employer, including the circumstances of such termination.

 

(i)         The parties intend that the severance payments and other compensation provided for herein are reasonable compensation for Employee’s services to Employer and shall not constitute “excess parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “I.R.C.”), and any regulations thereunder.  In the event that Employer’s independent accountants acting as auditors for Employer on the date of a Change in Control determine that the payments provided for herein constitute “excess parachute payments,” then the compensation payable hereunder shall be increased, on a tax gross-up basis, so as to reimburse Employee for the tax payable by Employee, pursuant to Section 4999 of the I.R.C., on such “excess parachute payments,” taking into account all taxes payable by Employee with respect to such tax gross-up payments hereunder, so that Employee shall be, after payment of all taxes, in the same financial position as if no taxes under Section 4999 of I.R.C. had been imposed upon Employee.

 

14.      Oral Modification Not Binding .  This Agreement supersedes all prior agreements and understandings between the parties and may not be changed or terminated orally, and no change or attempted waiver of the provisions hereof shall be binding unless in writing and signed by the party against whom the same is sought to be enforced; provided , however , that Employee’s compensation may be increased at any time by Employer without in any way affecting any of the other terms and conditions of this Agreement, which in all other respects shall remain in full force and effect. 

 

15.      Governing Law .  This Agreement has been entered into in the State of South Carolina and shall be governed by the laws of such State without giving effect to the conflict of laws principles thereof.  Any action brought by any party to this Agreement shall be brought and maintained in a court of competent jurisdiction in the State of South Carolina.

 

 

 

 

16.       Remedies for Breach; Non-Waiver .  Employee recognizes and agrees that a breach by Employee of any covenant contained in this Agreement would cause immeasurable and irreparable harm to Employer.  In the event of a breach or threatened breach of any covenant contained herein, Employer shall be entitled to temporary and permanent injunctive relief, restraining Employee from violating or threatening to violate any covenant contained herein, as well as all costs and fees incurred by Employer, including attorneys’ fees, as a result of Employee’s breach or threatened breach of the covenant.  Employer and Employee agree that the relief described herein is in addition to such other and further relief as may be available to Employer at equity or by law.  Nothing herein shall be construed as prohibiting Employer from pursuing any other remedies available to it for such breach of threatened breach, including the recovery of damages from Employee.  Failure of the Employer to enforce any of the provisions of this Agreement or any rights with respect thereto shall in no way be considered a waiver of such provisions or rights or in any way otherwise affect the validity of this Agreement.

 

17.       Consideration .  Employee acknowledges and agrees that valid consideration has been given to Employee by Employer in return for the promises of Employee set forth herein.

 

18.       Covenants are Independent .  The covenants on the part of Employee contained herein shall each be construed as agreements independent of each other and of any other provisions in this Agreement and the unenforceability of one shall not affect the enforceability of the remaining covenants.

 

19.       Severability and Substitution of Valid Provisions .  To the extent that any provision or language of this Agreement is deemed unenforceable, by virtue of the scope of the business activity prohibited or the length of time the activity is prohibited, Employer and Employee agree that this Agreement shall be enforced to the fullest extent permissible under the laws and public policies of the State of South Carolina.

 

20.       Extension of Periods .  Each of the time periods described in this Agreement shall be automatically extended by any length of time during which Employee is in breach of the corresponding covenant contained herein.  The provisions of this Agreement shall continue in full force and effect throughout the duration of the extended periods.

 

21.       Reasonable Restraint .  It is agreed by the parties that the foregoing covenants in this Agreement are necessary for the legitimate business interests of Employer and impose a reasonable restraint on Employee in light of the activities and business of Employer on the date of the execution of this Agreement.

 

22.       Withholding of Taxes .  Employer may withhold from any amounts payable to Employee under this Agreement all federal, state, city or other taxes and withholdings as shall be required pursuant to any applicable law, rule or regulation.

 

23.       Notices .  Any notice required or permitted to be given under this Agreement shall be sufficient if given in writing and either personally delivered or sent by registered or certified mail to Employee’s residence in the case of Employee or to its principal office in the case of Employer.

 

24.       Assignment .  The rights and obligations of the parties to this Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of Employer.  This Agreement shall not be terminated by any merger or consolidation whether or not the Employer or the Company is the consolidated or surviving corporation or by transfer of all or substantially all of the assets of the Employer or the Company to another corporation if there is a surviving or resulting corporation in such transfer.

 

25.       Severability . It is not the intent of any party hereto to violate any public policy of any jurisdiction in which this Agreement may be enforced.  If any provision of this Agreement or the application of any provision hereof to any person or circumstances is held invalid, unenforceable or otherwise unlawful, the remainder of this Agreement and the application of such provision to any other person or circumstances shall not be affected.  In addition, the applicable provision shall be reformed to the extent (and only to the extent) necessary to make it valid, enforceable and legal.

 

 

 

26.       Certain Definitions .

 

(a)        “ Affiliate ” shall mean any business entity controlled by the Employer or the Company, controlling or under common control with the Employer or the Company.

                       

(b)        “ Cause ” shall consist of any of:

 

(i)         the commission by Employee of a willful act (including, without limitation, a dishonest or fraudulent act) or a grossly negligent act, or the willful or grossly negligent omission to act by Employee, which is intended to cause, causes or is reasonably likely to cause material harm to Employer (including harm to its business reputation);

 

(ii)        the indictment of Employee for the commission or perpetration by Employee of any felony or any crime involving dishonesty, moral turpitude or fraud;

 

(iii)       the material breach by Employee of this Agreement that, if susceptible of cure, remains uncured thirty (30) days following written notice to Employee of such breach;

 

(iv)       the receipt of any form of notice, written or otherwise, that any regulatory agency having jurisdiction over Employer intends to institute any form of formal or informal ( e.g. , a memorandum of understanding which relates to Employee’s performance) regulatory action against Employee or Employer ( provided that the Board determines in good faith, with Employee abstaining from participating in the consideration of and vote on the matter, that the subject matter of such action involves acts or omissions by or under the supervision of Employee or that termination of Employee would materially advance Employer’s compliance with the purpose of the action or would materially assist Employer in avoiding or reducing the restrictions or adverse effects to Employer related to the regulatory action);

 

(v)        the exhibition by Employee of a standard of behavior within the scope of Employee’s employment that is materially disruptive to the orderly conduct of Employer’s business operations (including, without limitation, substance abuse or sexual misconduct) to a level which, in the Board’s good faith and reasonable judgment, with Employee abstaining from participating in the consideration of and vote on the matter, is materially detrimental to Employer’s best interest, that, if susceptible of cure remains uncured ten (10) days following written notice to Employee of such specific inappropriate behavior; or

 

(vi)       the failure of Employee to devote Employee’s full business time and attention to Employee’s employment as provided under this Agreement that, if susceptible of cure, remains uncured thirty (30) days following written notice to Employee of such failure.

 

(c)        “ Change in Control ” shall mean the occurrence during the Term of any of the following events, unless such event is a result of a Non-Control Transaction:

 

 

 

 (i)        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 fifty percent (50%) of the Board of Directors of the Company; provided , however , that if the election, or nomination for election by the Company’s shareholders, of any new director was approved in advance by a vote of at least fifty percent (50%) of the Incumbent Board, such new director shall, for purposes of this Agreement, be considered as a member of the Incumbent Board; provided , further , that no individual shall be considered a member of the Incumbent Board if such individual initially assumed office as a result of either an actual or threatened election contest, or other actual or threatened solicitation of proxies or consents by or on behalf of any person other than the Board of Directors of the Company, including by reason of any agreement intended to avoid or settle any election contest or proxy contest;

 

(ii)        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 “Exchange Act”)) immediately after which such Person has “Beneficial Ownership” (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of twenty percent (20%) or more of the combined voting power of the Company’s then outstanding Voting Securities; provided , however , that in determining whether a Change in Control has occurred, Voting Securities which are acquired in a Non-Control Transaction shall not constitute an acquisition which would cause a Change in Control; 

 

(iii)       consummation of: (a) a merger, consolidation, or reorganization involving the Company; (b) a complete liquidation or dissolution of the Company; or (c) 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

 

(iv)       a notice of an application is filed with the South Carolina Board of Financial Institutions, the Office of Comptroller of the Currency (the “OCC”) or the Federal Reserve Board or any other bank or thrift regulatory approval (or notice of no disapproval) is granted by the Federal Reserve, South Carolina Board of Financial Institutions, the OCC, the Federal Deposit Insurance Corporation, or any other regulatory authority for permission to acquire control of the Company or any of its banking subsidiaries; provided , however , that if the application is filed in connection with a transaction which has been approved by the Board of Directors of the Company, then the Change in Control shall not be deemed to occur until consummation of the transaction.

 

(d)          “ Disability ” or “ Disabled ” shall mean as defined by Treasury Regulation       § 1.409A-3(i)(4).            

 

(e)          “ Good Reason ” shall mean the occurrence after a Change in Control of any of the events or conditions described in subsections (i) through (vii) hereof:

 

 

 

(i)            a change in the Employee’s status, title, position or responsibilities (including reporting responsibilities) which, in the Employee’s reasonable judgment, represents an adverse change from Employee’s status, title, position or responsibilities as in effect at any time within ninety (90) days preceding the date of a Change in Control or at any time thereafter; the assignment to the Employee of any duties or responsibilities which, in the Employee’s reasonable judgment, are inconsistent with Employee’s status, title, position or responsibilities as in effect at any time within ninety (90) days preceding the date of a Change in Control or at any time thereafter; any removal of the Employee from or failure to reappoint or reelect Employee to any of such offices or positions, except in connection with the termination of Employee’s employment for Disability or Cause, as a result of Employee’s death, or by the Employee other than for Good Reason, or any other change in condition or circumstances that in the Employee’s reasonable judgment makes it materially more difficult for the Employee to carry out the duties and responsibilities of the Employee’s office than existed at any time within ninety (90) days preceding the date of Change in Control or at any time thereafter;

 

(ii)          a reduction in the Employee’s Base Salary or any failure to pay the Employee any compensation or benefits to which Employee is entitled within five (5) days of the date due;

 

(iii)          the Employer’s requiring the Employee to be based at any place outside a thirty (30) - mile radius from the executive offices occupied by the Employee immediately prior to the Change in Control, except for reasonably required travel on the Employer’s business which is not materially greater than such travel requirements prior to the Change in Control;

 

(iv)          the failure by the Employer to (A) continue in effect (without reduction in benefit level and/or reward opportunities) any material compensation or employee benefit plan in which the Employee was participating at any time within ninety (90) days preceding the date of a Change in Control or at any time thereafter, unless such plan is replaced with a plan that provides substantially equivalent compensation or benefits to the Employee, or (B) provide the Employee with compensation and benefits, in the aggregate, at least equal (in terms of benefit levels and/or reward opportunities) to those provided for under each other employee benefit plan, program and practice in which the Employee was participating at any time within ninety (90) days preceding the date of a Change in Control or at any time thereafter;

 

(v)          the insolvency or the filing (by any party, including the Company or the Employer) of a petition for bankruptcy of the Company or the Employer, which petition is not dismissed within sixty (60) days;

 

(vi)          any material breach by the Employer of any material provision of this Agreement; or

 

(vii)        any purported termination of the Employee’s employment for Cause by the Employer which does not comply with the terms of this Agreement.

 

 

 

 

Any event or condition described in clause (i) through (vii) above which occurs prior to a Change in Control but which the Employee reasonably demonstrates (A) was at the request of a third party, or (B) otherwise arose in connection with, or in anticipation of, a Change in Control which actually occurs, shall constitute Good Reason for purposes of this Agreement, notwithstanding that it occurred prior to the Change in Control.  Employee’s right to terminate Employee’s employment for Good Reason shall not be affected by Employee’s incapacity due to physical or mental illness.

 

(f)        “ Non-Control Transaction ” shall mean a transaction described below:

 

            (i)         the shareholders of the Company, immediately before such merger, consolidation or reorganization own, directly or indirectly, immediately following such merger, consolidation or reorganization, at least fifty percent (50%) of the combined voting power of the outstanding voting securities of the corporation resulting from such merger, 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)        immediately following such merger, consolidation or reorganization, the number of directors on the board of directors of the Surviving Corporation who were members of the Incumbent Board shall at least equal the number of directors who were affiliated with or appointed by the other party to the merger, consolidation or reorganization.

 

(g)        “ Notice of Termination ” shall mean a written notice of termination from one party to the other which specifies an effective date of termination, indicates the specific termination provision in this Agreement relied upon, and, in the case of a termination for Good Reason or for Cause, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Employee’s employment under the provision so indicated.

 

(h)        “ Terminate ”, “ terminated ”, “ termination ”, or “ Termination of Employment ” shall mean separation from service as defined by Treasury Regulation § 1.409A-1(h).

 

27.       Entire Agreement .  This Agreement supersedes any other agreements, oral or written, between the parties with respect to the subject matter hereof, and contains all of the agreements and understandings between the parties with respect to the employment of Employee by Employer.  Any waiver or modification of any term of this Agreement shall be effective only if it is set forth in writing signed by all parties hereto.

 

28.       Counterparts .  This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same agreement.

 

 

 

 

            IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.

 

                                                                        EMPLOYER:

 

                                                                        SOUTHERN FIRST BANK,

NATIONAL ASSOCIATION

 

 

 

[CORPORATE SEAL]                                     By:        /s/James B. Orders, III                       

                                                                             Name: James B. Orders, III

Attest:                                                                   Title:  Member of the Board

 

 

                                               

Secretary

 

                                                                        SOUTHERN FIRST BANCSHARES, INC.

 

 

 

[CORPORATE SEAL]                                     By:        /s/James B. Orders, III                                   

                                                                             Name: James B. Orders, III

Attest:                                                                   Title:  Chairman of the Board

 

 

                                               

Secretary

           

                                                                        EMPLOYEE:

 

 

 

                                                                        _/s/R. Arthur Seaver, Jr.       

                                                                        R. Arthur Seaver, Jr.

 

 

 

 

 

 

 

 

 

Exhibit 10.4

 

EMPLOYMENT AGREEMENT

 

 

            THIS EMPLOYMENT AGREEMENT (this “Agreement”) is made as of and effective on the 17 ^th   day of November , 2008 (the “Effective Date”) by and between Southern First Bancshares, Inc. and Southern First Bank, National Association (hereinafter collectively called “Employer” or the “Company”), having its principal office at 100 Verdae Boulevard, Suite 100, Greenville, South Carolina 29607, and F. Justin Strickland (hereinafter called “Employee”), whose residence address is 623 Brandon Ct., Lexington, South Carolina 29072. 

 

            Employer presently employs Employee as its President.  Employer desires to provide for the continued employment of Employee and to make certain changes in Employee’s employment arrangements which Employer has determined will reinforce and encourage the continued dedication of Employee to Employer.  Employee is willing to terminate Employee’s interests and rights under the existing Employment Agreement with Employer and to continue to serve Employer on the terms and conditions herein provided.

 

            In consideration of the mutual covenants and promises herein made, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1.    Employment .  Employer shall continue to employ Employee, and Employee shall continue to serve Employer, as President and in such capacity shall perform such duties as are consistent with that position, and as Employer from time to time may direct.   Employee shall have such authority and responsibilities consistent with Employee’s position as are set forth in Employer’s Bylaws or assigned by Employer’s Board of Directors (the “Board”) or Chief Executive Officer from time to time.  Employee shall devote Employee’s full business time, attention, skill and efforts to the performance of Employee’s duties hereunder, except during periods of illness or periods of vacation and leaves of absence consistent with Employer’s policy.  Such duties shall be performed at Employer’s principal corporate offices or subsidiary offices as agreed upon by Employer and Employee.  Employer reserves the right from time to time to extend, curtail or change the title and duties of Employee.  Employee may devote reasonable periods to service as a director or advisor to other organizations, to charitable and community activities, and to managing Employee’s personal investments; provided that such activities do not materially interfere with the performance of Employee’s duties hereunder and are not in conflict or competitive with, or adverse to, the interests of Employer.

 

2.    Term .  Unless earlier terminated as provided in section 13 below, Employee’s employment under this Agreement shall commence on the Effective Date and be for a term ending January 31, 2011 (the “Term”).  At the end of January 2010 and on the last day of January each year thereafter, the Term shall be extended for an additional one (1) year so that the remaining Term shall continue to be two (2) years; provided that Employer or Employee may at any time, by written notice, fix the Term to a finite term of two (2) years commencing with the year of the notice. 

 

 

 

3.    Base Salary .  For all services rendered by Employee under this Agreement, Employer shall pay Employee a base salary of $200,000.00 per year (the “Base Salary”).  The Base Salary shall be reviewed annually by the Board, and may be increased beginning February 1 of each year, by the Board or a duly appointed committee thereof, in its sole discretion.  The Base Salary shall be paid in accordance with Employer’s standard payroll procedures, but in any case, no less frequently than monthly. 

 

            Notwithstanding anything in this Agreement to the contrary, any payments to the Employee shall be limited to the extent required under the United States Treasury Capital Purchase Program (the "Program") and related regulations in the event that the Employer participates in the Program.  The Employee agrees to such amendments, agreements, or waivers that may be required by the United States Treasury or requested by the Employer to comply with the terms of the Program.

 

4.    Benefits . 

 

(a)        Employee shall be entitled, to the extent that Employee’s position, title, tenure, salary, age, health and other qualifications make Employee eligible, to participate in such pension, profit sharing, bonus, life insurance, hospitalization, major medical, and other employee benefit plans or programs of Employer currently in existence on the date hereof or later established that generally are provided to executive employees of Employer.  Employee’s participation in any such plan or program shall be subject to the provisions, rules and regulations applicable thereto.  Any Company stock options or similar awards shall be issued to Employee at an exercise price per share of not less than the fair market value per share of the corresponding shares as of the date of grant and the number of shares subject to such grant shall be fixed on such date.  Any and all bonus payments made to Employee shall be paid by the earlier of: (i) seventy (70) days after the previous year end for which the bonus was earned by Employee and became a payable of Employer or (ii) with the first payroll cycle following the Company’s press release announcing its previous year’s financial performance.

 

(b)        At Employer’s election, Employer shall provide Employee with either an automobile owned or leased by Employer of a make and model appropriate to Employee’s status, or a $750 monthly automobile allowance, paid in accordance with Employer’s standard payroll procedures, but in any case, no less frequently than monthly.  If Employer provides Employee with an automobile instead of a monthly automobile allowance, Employer shall reimburse Employee for reasonable expenses associated with the automobile, including, but not limited to, insurance, taxes, mileage, maintenance, etc., to be paid within sixty (60) days of Employee’s written notice to Employer of such expenses. 

 

5.    Working Facilities .  Employee shall be furnished with an office and such other facilities and services as may be necessary or suitable to Employee’s position and adequate for the performance of Employee’s duties.

 

6.    Expenses .  Employee is authorized to incur reasonable expenses for promoting the business of Employer, including expenses for entertainment, travel and similar items, but only to the extent that such expenses are allowable deductions to Employer on its Federal income tax return.  Expenses for which there is a fifty percent (50%) tax deduction limitation for entertainment, travel and similar items shall be considered reimbursable expenses.  Employer shall reimburse Employee for all such expenses within sixty (60) days of Employee’s written notice to Employer of such expenses.  Employee shall repay to Employer the amounts of any expenses claimed which, for lack of proper documentation or otherwise, are not allowed to Employer as deductions for Federal income tax purposes.

 

 

 

 

7.    Vacations .  Employee shall be entitled each fiscal year to twenty (20) paid days off, which shall be granted on a noncumulative basis from year-to-year, as granted by Employer to employees of similar tenure and compensation rank, pursuant to Employer’s paid days off policy.  Employer reserves the right to modify this and any other personnel policy from time to time.

 

8.    Ownership of Work Product .

 

(a)           Employee shall diligently disclose to Employer as soon as it is created or conceived by Employee, and Employer shall own, all Work Product (as defined below).  To the extent permitted by law, all Work Product shall be considered work made for hire by Employee and owned by Employer.

 

(b)            If any of the Work Product may not, by operation of law, be considered work made for hire by Employee for Employer (or if ownership of all right, title and interest of the intellectual property rights therein shall not otherwise vest exclusively in Employer), Employee agrees to assign, and upon creation thereof automatically assigns, without further consideration, the ownership of all Work Product to Employer, its successors and assigns.

 

(c)            Employer, its successors and assigns, shall have the right to obtain and hold in its or their own name copyrights, registrations, and any other protection available in the foregoing.

 

(d)            Employee agrees to perform upon the reasonable request of Employer, during or after Employee’s employment, such further acts as may be necessary or desirable to transfer, perfect and defend Employer’s ownership of the Work Product.  When requested, Employee will:

 

(i)            Execute, acknowledge and deliver any requested affidavits and documents of assignment and conveyance;

 

(ii)          Obtain and aid in the enforcement of copyrights (and, if applicable, patents) with respect to the Work Product in any countries;

 

(iii)         Provide testimony in connection with any proceeding affecting the right, title or interest of Employer in any Work Product; and

 

(iv)         Perform any other acts deemed necessary or desirable to carry out the purposes of this Agreement.

 

(e)            Employer shall reimburse all reasonable out-of-pocket expenses incurred by Employee at Employer’s request in connection with subsection 8(d) within sixty (60) days of Employee’s written notice to Employer of such expenses.

 

 

 

(f)             For purposes hereof, “Work Product” shall mean all intellectual property rights, including all Trade Secrets (as defined below), U.S. and international copyrights, patentable inventions, discoveries and improvements, and other intellectual property rights, in any programming, documentation, technology or other work product that relates to the business and interests of Employer and that Employee conceives, develops, or delivers to Employer at any time during the Term of Employee’s employment.  “Work Product” shall also include all intellectual property rights in any programming, documentation, technology or other work product that is now contained in any of the products or systems (including development and support systems) of Employer to the extent Employee conceived, developed or delivered such Work Product to Employer prior to the date of this Agreement while Employee was engaged as an independent contractor or employee of Employer.  Employee hereby irrevocably relinquishes for the benefit of Employer and its assigns any moral rights in the Work Product recognized by applicable law.

 

9.    Protection of Trade Secrets and Confidential Information . 

 

(a)            Through exercise of Employee’s rights and performance of Employee’s obligations under this Agreement, Employee will be exposed to “Trade Secrets” and “Confidential Information” (as those terms are defined below).  “Trade Secrets” shall mean information or data of or about Employer or any Affiliates (as defined in subsection 26(a)), including, but not limited to, technical or non-technical data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data, financial plans, product plans, or lists of actual or potential customers, clients, distributors, or licensees, that: (i) derive economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from their disclosure or use; and (ii) are the subject of efforts that are reasonable under the circumstances to maintain their secrecy.  To the extent that the foregoing definition is inconsistent with the definition of “trade secret” mandated under applicable law, the latter definition shall govern for purposes of interpreting Employee’s obligations under this Agreement.  Except as required to perform Employee’s obligations under this Agreement, or except with Employer’s prior written permission, Employee shall not use, redistribute, market, publish, disclose or divulge to any other person or entity any Trade Secrets of Employer.  Employee’s obligations under this provision shall remain in force (during and after the Term) for so long as such information or data shall continue to constitute a Trade Secret under applicable law.  Employee agrees to cooperate with any and all confidentiality requirements of Employer, and Employee shall immediately notify Employer of any unauthorized disclosure or use of any Trade Secrets of which Employee becomes aware.

 

(b)            Employee agrees to maintain in strict confidence and, except as necessary to perform Employee’s duties for Employer, not to use or disclose any Confidential Information at any time, either during the Term of Employee’s employment or for a period of one (1) year after Employee’s last date of employment, so long as the pertinent data or information remains Confidential Information.  “Confidential Information” shall mean any non-public information of a competitively sensitive or personal nature, other than Trade Secrets, acquired by Employee during Employee’s employment, relating to Employer or Employer’s business, operations, customers, suppliers, products, employees, financial affairs or industrial practices.  Notwithstanding anything herein to the contrary, no obligation or liability shall accrue hereunder with respect to any information that is or becomes publicly available without the fault of Employee.

 

(c)            Employee will abide by Employer’s policies and regulations, as established from time to time, for the protection of its Confidential Information.  Employee acknowledges that all records, files, data, documents, and the like relating to suppliers, customers, costs, prices, systems, methods, personnel, technology and other materials relating to Employer or its Affiliated entities shall be and remain the sole property of Employer and/or such Affiliated entity.  Employee agrees, upon the request of Employer, and in any event upon termination of Employee’s employment, to turn over all copies of all media, records, documentation, etc., pertaining to Employer (together with a written statement certifying as to Employee’s compliance with the foregoing).

 

 

 

10.    Non-Solicitation of Customers .  During the Employee’s employment with the Employer and for a period of one (1) year following termination or expiration of this Agreement, Employee shall not (except on behalf of or with the prior written consent of the Employer) directly or indirectly solicit any individual or entity which was a customer or client of Employer or any of its Affiliates for the purpose of providing a service or product to such customer or client which is the same type of service or product offered or provided by Employer or any of its Affiliates; provided , however , that this restriction shall apply only to those customers or clients with whom Employee had contact in connection with services or products provided by Employer or any of its Affiliates within two (2) years prior to the date of termination of such employment.

 

11.    Non-Solicitation of Employees .  During the Employee’s employment with the Employer and for a period of one (1) year following termination or expiration of this Agreement, Employee shall not, directly or indirectly, on the Employee’s own behalf or in the service of or on behalf of others, induce or solicit, or attempt to induce or solicit, for employment purposes or for any type of consulting purposes any employee of or consultant to the Employer or any of its Affiliates for the purpose of providing services that are the same or similar to the types of services offered or engaged in by any employee of or consultant to the Employer or any of its Affiliates at the time of termination of Employee’s employment with Employer. 

 

12.    Non-Competition Agreement .  During Employee’s employment with the Employer and for a period of one (1) year following termination or expiration of this Agreement, Employee shall not (without the prior written consent of Employer) compete with Employer or any of its Affiliates, directly or indirectly, engage in forming, serving as an organizer, director, officer of, employee or agent, or consultant to, or acquiring or maintaining more than a one percent (1%) passive investment in, a depository financial institution or holding company thereof if such depository institution or holding company has, or upon formation will have, one or more offices or branches located within thirty (30) miles of any office or branch of Employer or any of its Affiliates in existence at the time Employee’s employment with Employer is terminated (the “Territory”).  Notwithstanding the foregoing, Employee may serve as an officer of or consultant to a depository institution or holding company thereof even though such institution operates one or more offices or branches in the Territory, if Employee’s employment does not directly involve, in whole or in part, the depository financial institution’s or holding company’s operations in the Territory. 

 

13.    Termination .

 

(a)            Employee’s employment under this Agreement may be terminated prior to the end of the Term only as follows:

 

(i)            upon the death of Employee;

 

(ii)          by Employer upon the Disability (as defined in subsection 26(d)) of Employee for a period of one hundred and eighty (180) days;

 

(iii)         by Employer for Cause (as defined in subsection 26(b)) upon delivery of a Notice of Termination (as defined in subsection 26(g)) to Employee;

 

(iv)         by Employer without Cause upon delivery of a Notice of Termination to Employee;

 

 

 

(v)          by Employee for Good Reason (as defined in subsection 26(e)) upon delivery of a Notice of Termination to the Employer within a ninety (90) day period beginning on the thirtieth (30 ^th ) day after the occurrence of a Change in Control (as defined in subsection 26(c)) or within a ninety (90) day period beginning on the one (1) year anniversary of the occurrence of a Change in Control; or

 

(vi)         by Employee upon delivery of a Notice of Termination to Employer.

 

(b)            If Employee’s employment is terminated because of the Employee’s death, Employer shall pay Employee’s estate:

                       

(i)         any sums due Employee as Base Salary and/or reimbursement of expenses through the end of the month during which death occurred, paid in accordance with Employer’s standard payroll procedures, but in any case, no less frequently than monthly; and

 

(ii)        any bonus earned or accrued through the date of death.  Any bonus for previous years which was not yet paid will be paid pursuant to the terms as set forth in section 4(a).  Any bonus that is earned in the year of death will be paid on the earlier of: (i) seventy (70) days after the year end in which the Employee died or (ii) with the first payroll cycle following the Company’s press release announcing its financial performance for the year in which the Employee died.  To the extent that the bonus is performance-based, the amount of the bonus will be calculated by taking into account the performance of the Employer for the entire year and prorating this through the date of Employee’s death. 

           

(c)            During the period of any Disability leading up to the termination of Employee’s employment as a result of the Disability, Employer shall:

 

(i)         continue to pay the Employee’s full Base Salary at the rate then in effect and all perquisites and other benefits (other than any bonus) in accordance with Employer’s standard payroll procedures, but in any case, no less frequently than monthly, until Employee becomes eligible for benefits under any long-term disability plan or insurance program maintained by Employer; provided that the amount of any such payments to Employee shall be reduced by the sum of the amounts, if any, payable to Employee for the same period under any disability benefit or pension plan covering the Employee; and

 

(ii)        pay Employee any bonus earned or accrued through the date of Disability.  Any bonus for previous years which was not yet paid will be paid pursuant to the terms as set forth in section 4(a).  Any bonus that is earned in the year of Disability will be paid on the earlier of: (i) seventy (70) days after the year end in which Employee became Disabled or (ii) with the first payroll cycle following the Company’s press release announcing its financial performance for the year in which the Employee became Disabled. 

 

(d)        If Employee’s employment is terminated for Cause, Employee shall receive only any sums due Employee as Base Salary and/or reimbursement of expenses through the date of termination, paid in accordance with Employer’s standard payroll procedures, but in any case, no less frequently than monthly.

 

 

 

 

(e)        If Employee’s employment is terminated by Employer without Cause, beginning on the date that is six (6) months and one (1) day following the date of the Employee’s termination, and continuing on the first day of the month for the next twelve (12) months, the Employer shall pay to the Employee severance compensation in cash in an amount equal to one hundred percent (100%) of the Employee’s Base Salary at the date of termination.  Employer shall also pay Employee any bonus earned or accrued through the date of termination.  Any bonus for previous years which was not yet paid will be paid in a lump sum on the date that is six (6) months and one (1) day following the date of the Employee’s termination.  Any bonus that is earned in the year of the Employee’s termination will be paid on the later of: (i) the date that is six (6) months and one (1) day following the date of the Employee’s termination or (ii) with the first payroll cycle following the Company’s press release announcing its financial performance for the year of the Employee’s termination.  The restrictive covenants contained in sections 10, 11 and 12 shall not apply to Employee.

 

(f)        If Employee’s employment is terminated by Employee for Good Reason, in addition to other rights and remedies available in law or equity, Employee shall be entitled to the following:

 

(i)         Employer shall pay Employee, beginning on the date that is six (6) months and one (1) day following the date of the Employee’s termination, and continuing on the first day of the month for the next twelve (12) months, severance compensation in cash in an amount equal to one hundred percent (100%) of the Employee’s Base Salary at the date of termination.  Employer shall also pay Employee any bonus earned or accrued through the date of termination.  Any bonus for previous years which was not yet paid will be paid in a lump sum on the date that is six (6) months and one (1) day following the date of the Employee’s termination.  Any bonus that is earned in the year of the Employee’s termination will be paid on the later of: (i) the date that is six (6) months and one (1) day following the date of the Employee’s termination or (ii) with the first payroll cycle following the Company’s press release announcing its financial performance for the year of the Employee’s termination;

 

 

 

(ii)        for the period from the date of termination through the date that Employee attains the age of sixty-five (65) years (the “Continuation Period”), Employer shall at its expense continue on behalf of Employee and Employee’s spouse, dependents and beneficiaries the life insurance, disability, medical, dental, and hospitalization benefits provided (x) to Employee at any time during the ninety (90) day period prior to the Change in Control or at any time thereafter or (y) to other similarly situated executives who continue in the employ of Employer during the Continuation Period.  Such coverage and benefits (including deductibles and costs) shall be no less favorable to Employee, Employee’s spouse, dependents and beneficiaries than the most favorable of such coverages and benefits during any of the periods referred to above.  Employer’s obligation hereunder with respect to the foregoing benefits shall be limited to the extent that Employee obtains any such benefits pursuant to a subsequent employer’s benefit plans, in which case Employer may reduce the coverage of any benefits it is required to provide Employee hereunder as long as the aggregate coverages and benefits of the combined benefit plans is no less favorable to Employee than the coverages and benefits required to be provided hereunder.  This subsection (ii) shall not be interpreted so as to limit any benefits to which Employee, Employee’s spouse, dependents or beneficiaries may be entitled under any of Employer’s employee benefit plans, programs, or practices following Employee’s termination of employment, including, without limitation, retiree medical and life insurance benefits;

 

(iii)       the restrictions on any outstanding incentive awards (including restricted stock) granted to Employee under the Company’s or the Employer’s long-term equity incentive program or any other incentive plan or arrangement shall lapse and become one hundred percent (100%) vested and any Employee election rights thereto must be exercised contemporaneously with the Change in Control;

 

(iv)       all stock options and stock appreciation rights granted to Employee shall become immediately exercisable and shall become one hundred percent (100%) vested and must be exercised, if exercised, contemporaneously with the Change in Control;

 

(v)        all performance units granted to Employee shall become one hundred percent (100%) vested and any compensation associated with such units must be paid contemporaneously with the Change in Control; and

 

(vi)       the restrictive covenants contained in sections 10, 11 and 12 shall not apply to Employee.

 

(g)        If Employee’s employment is terminated by Employee without Good Reason, Employee shall receive only any sums due Employee as Base Salary and/or reimbursement of expenses through the date of termination, paid in accordance with Employer’s standard payroll procedures, but in any case, no less frequently than monthly.

 

(h)        With the exceptions of the provisions of this section 13, and the express terms of any benefit plan under which Employee is a participant, it is agreed that, upon Employee’s Termination of Employment, Employer shall have no obligation to Employee for, and Employee waives and relinquishes, any further compensation or benefits (exclusive of COBRA benefits).  Unless otherwise stated in this section 13, the effect of termination on any outstanding incentive awards, stock options, stock appreciation rights, performance units, or other incentives shall be governed by the terms of the applicable benefit or incentive plan and/or the agreements governing such incentives.  At the time of Termination of Employment, Employer and Employee shall enter into a mutually satisfactory form of release acknowledging such remaining obligations and discharging both parties, as well as Employer’s officers, directors and employees with respect to their actions for or on behalf of Employer, from any other claims or obligations arising out of or in connection with Employee’s employment by Employer, including the circumstances of such termination.

 

 

 

(i)         The parties intend that the severance payments and other compensation provided for herein are reasonable compensation for Employee’s services to Employer and shall not constitute “excess parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “I.R.C.”), and any regulations thereunder.  In the event that Employer’s independent accountants acting as auditors for Employer on the date of a Change in Control determine that the payments provided for herein constitute “excess parachute payments,” then the compensation payable hereunder shall be increased, on a tax gross-up basis, so as to reimburse Employee for the tax payable by Employee, pursuant to Section 4999 of the I.R.C., on such “excess parachute payments,” taking into account all taxes payable by Employee with respect to such tax gross-up payments hereunder, so that Employee shall be, after payment of all taxes, in the same financial position as if no taxes under Section 4999 of I.R.C. had been imposed upon Employee.

 

14.    Oral Modification Not Binding .  This Agreement supersedes all prior agreements and understandings between the parties and may not be changed or terminated orally, and no change or attempted waiver of the provisions hereof shall be binding unless in writing and signed by the party against whom the same is sought to be enforced; provided , however , that Employee’s compensation may be increased at any time by Employer without in any way affecting any of the other terms and conditions of this Agreement, which in all other respects shall remain in full force and effect. 

 

15.    Governing Law .  This Agreement has been entered into in the State of South Carolina and shall be governed by the laws of such State without giving effect to the conflict of laws principles thereof.  Any action brought by any party to this Agreement shall be brought and maintained in a court of competent jurisdiction in the State of South Carolina.

 

16.    Remedies for Breach; Non-Waiver .  Employee recognizes and agrees that a breach by Employee of any covenant contained in this Agreement would cause immeasurable and irreparable harm to Employer.  In the event of a breach or threatened breach of any covenant contained herein, Employer shall be entitled to temporary and permanent injunctive relief, restraining Employee from violating or threatening to violate any covenant contained herein, as well as all costs and fees incurred by Employer, including attorneys’ fees, as a result of Employee’s breach or threatened breach of the covenant.  Employer and Employee agree that the relief described herein is in addition to such other and further relief as may be available to Employer at equity or by law.  Nothing herein shall be construed as prohibiting Employer from pursuing any other remedies available to it for such breach of threatened breach, including the recovery of damages from Employee.  Failure of the Employer to enforce any of the provisions of this Agreement or any rights with respect thereto shall in no way be considered a waiver of such provisions or rights or in any way otherwise affect the validity of this Agreement.

 

17.    Consideration .  Employee acknowledges and agrees that valid consideration has been given to Employee by Employer in return for the promises of Employee set forth herein.

 

18.    Covenants are Independent .  The covenants on the part of Employee contained herein shall each be construed as agreements independent of each other and of any other provisions in this Agreement and the unenforceability of one shall not affect the enforceability of the remaining covenants.

 

19.    Severability and Substitution of Valid Provisions .  To the extent that any provision or language of this Agreement is deemed unenforceable, by virtue of the scope of the business activity prohibited or the length of time the activity is prohibited, Employer and Employee agree that this Agreement shall be enforced to the fullest extent permissible under the laws and public policies of the State of South Carolina.

 

20.    Extension of Periods .  Each of the time periods described in this Agreement shall be automatically extended by any length of time during which Employee is in breach of the corresponding covenant contained herein.  The provisions of this Agreement shall continue in full force and effect throughout the duration of the extended periods.

 

 

 

21.    Reasonable Restraint .  It is agreed by the parties that the foregoing covenants in this Agreement are necessary for the legitimate business interests of Employer and impose a reasonable restraint on Employee in light of the activities and business of Employer on the date of the execution of this Agreement.

 

22.    Withholding of Taxes .  Employer may withhold from any amounts payable to Employee under this Agreement all federal, state, city or other taxes and withholdings as shall be required pursuant to any applicable law, rule or regulation.

 

23.    Notices .  Any notice required or permitted to be given under this Agreement shall be sufficient if given in writing and either personally delivered or sent by registered or certified mail to Employee’s residence in the case of Employee or to its principal office in the case of Employer.

 

24.    Assignment .  The rights and obligations of the parties to this Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of Employer.  This Agreement shall not be terminated by any merger or consolidation whether or not the Employer or the Company is the consolidated or surviving corporation or by transfer of all or substantially all of the assets of the Employer or the Company to another corporation if there is a surviving or resulting corporation in such transfer.

 

25.    Severability . It is not the intent of any party hereto to violate any public policy of any jurisdiction in which this Agreement may be enforced.  If any provision of this Agreement or the application of any provision hereof to any person or circumstances is held invalid, unenforceable or otherwise unlawful, the remainder of this Agreement and the application of such provision to any other person or circumstances shall not be affected.  In addition, the applicable provision shall be reformed to the extent (and only to the extent) necessary to make it valid, enforceable and legal.

 

26.    Certain Definitions .

 

(a)        “ Affiliate ” shall mean any business entity controlled by the Employer or the Company, controlling or under common control with the Employer or the Company.

                       

(b)        “ Cause ” shall consist of any of:

 

(i)         the commission by Employee of a willful act (including, without limitation, a dishonest or fraudulent act) or a grossly negligent act, or the willful or grossly negligent omission to act by Employee, which is intended to cause, causes or is reasonably likely to cause material harm to Employer (including harm to its business reputation);

 

(ii)        the indictment of Employee for the commission or perpetration by Employee of any felony or any crime involving dishonesty, moral turpitude or fraud;

 

(iii)       the material breach by Employee of this Agreement that, if susceptible of cure, remains uncured thirty (30) days following written notice to Employee of such breach;

 

 

 

(iv)       the receipt of any form of notice, written or otherwise, that any regulatory agency having jurisdiction over Employer intends to institute any form of formal or informal ( e.g. , a memorandum of understanding which relates to Employee’s performance) regulatory action against Employee or Employer ( provided that the Board determines in good faith, with Employee abstaining from participating in the consideration of and vote on the matter, that the subject matter of such action involves acts or omissions by or under the supervision of Employee or that termination of Employee would materially advance Employer’s compliance with the purpose of the action or would materially assist Employer in avoiding or reducing the restrictions or adverse effects to Employer related to the regulatory action);

 

(v)        the exhibition by Employee of a standard of behavior within the scope of Employee’s employment that is materially disruptive to the orderly conduct of Employer’s business operations (including, without limitation, substance abuse or sexual misconduct) to a level which, in the Board’s good faith and reasonable judgment, with Employee abstaining from participating in the consideration of and vote on the matter, is materially detrimental to Employer’s best interest, that, if susceptible of cure remains uncured ten (10) days following written notice to Employee of such specific inappropriate behavior; or

 

(vi)       the failure of Employee to devote Employee’s full business time and attention to Employee’s employment as provided under this Agreement that, if susceptible of cure, remains uncured thirty (30) days following written notice to Employee of such failure.

 

(c)        “ Change in Control ” shall mean the occurrence during the Term of any of the following events, unless such event is a result of a Non-Control Transaction:

 

 (i)        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 fifty percent (50%) of the Board of Directors of the Company; provided , however , that if the election, or nomination for election by the Company’s shareholders, of any new director was approved in advance by a vote of at least fifty percent (50%) of the Incumbent Board, such new director shall, for purposes of this Agreement, be considered as a member of the Incumbent Board; provided , further , that no individual shall be considered a member of the Incumbent Board if such individual initially assumed office as a result of either an actual or threatened election contest, or other actual or threatened solicitation of proxies or consents by or on behalf of any person other than the Board of Directors of the Company, including by reason of any agreement intended to avoid or settle any election contest or proxy contest;

 

(ii)        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 “Exchange Act”)) immediately after which such Person has “Beneficial Ownership” (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of twenty percent (20%) or more of the combined voting power of the Company’s then outstanding Voting Securities; provided , however , that in determining whether a Change in Control has occurred, Voting Securities which are acquired in a Non-Control Transaction shall not constitute an acquisition which would cause a Change in Control; 

 

 

 

 

(iii)       consummation of: (a) a merger, consolidation, or reorganization involving the Company; (b) a complete liquidation or dissolution of the Company; or (c) 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

 

(iv)       a notice of an application is filed with the South Carolina Board of Financial Institutions, the Office of Comptroller of the Currency (the “OCC”) or the Federal Reserve Board or any other bank or thrift regulatory approval (or notice of no disapproval) is granted by the Federal Reserve, South Carolina Board of Financial Institutions, the OCC, the Federal Deposit Insurance Corporation, or any other regulatory authority for permission to acquire control of the Company or any of its banking subsidiaries; provided , however , that if the application is filed in connection with a transaction which has been approved by the Board of Directors of the Company, then the Change in Control shall not be deemed to occur until consummation of the transaction.

 

(d)          “ Disability ” or “ Disabled ” shall mean as defined by Treasury Regulation       § 1.409A-3(i)(4).            

 

(e)          “ Good Reason ” shall mean the occurrence after a Change in Control of any of the events or conditions described in subsections (i) through (vii) hereof:

 

(i)            a change in the Employee’s status, title, position or responsibilities (including reporting responsibilities) which, in the Employee’s reasonable judgment, represents an adverse change from Employee’s status, title, position or responsibilities as in effect at any time within ninety (90) days preceding the date of a Change in Control or at any time thereafter; the assignment to the Employee of any duties or responsibilities which, in the Employee’s reasonable judgment, are inconsistent with Employee’s status, title, position or responsibilities as in effect at any time within ninety (90) days preceding the date of a Change in Control or at any time thereafter; any removal of the Employee from or failure to reappoint or reelect Employee to any of such offices or positions, except in connection with the termination of Employee’s employment for Disability or Cause, as a result of Employee’s death, or by the Employee other than for Good Reason, or any other change in condition or circumstances that in the Employee’s reasonable judgment makes it materially more difficult for the Employee to carry out the duties and responsibilities of the Employee’s office than existed at any time within ninety (90) days preceding the date of Change in Control or at any time thereafter;

 

(ii)          a reduction in the Employee’s Base Salary or any failure to pay the Employee any compensation or benefits to which Employee is entitled within five (5) days of the date due;

 

(iii)          the Employer’s requiring the Employee to be based at any place outside a thirty (30) - mile radius from the executive offices occupied by the Employee immediately prior to the Change in Control, except for reasonably required travel on the Employer’s business which is not materially greater than such travel requirements prior to the Change in Control;

 

 

 

(iv)          the failure by the Employer to (A) continue in effect (without reduction in benefit level and/or reward opportunities) any material compensation or employee benefit plan in which the Employee was participating at any time within ninety (90) days preceding the date of a Change in Control or at any time thereafter, unless such plan is replaced with a plan that provides substantially equivalent compensation or benefits to the Employee, or (B) provide the Employee with compensation and benefits, in the aggregate, at least equal (in terms of benefit levels and/or reward opportunities) to those provided for under each other employee benefit plan, program and practice in which the Employee was participating at any time within ninety (90) days preceding the date of a Change in Control or at any time thereafter;

 

(v)          the insolvency or the filing (by any party, including the Company or the Employer) of a petition for bankruptcy of the Company or the Employer, which petition is not dismissed within sixty (60) days;

 

(vi)          any material breach by the Employer of any material provision of this Agreement; or

 

(vii)        any purported termination of the Employee’s employment for Cause by the Employer which does not comply with the terms of this Agreement.

 

Any event or condition described in clause (i) through (vii) above which occurs prior to a Change in Control but which the Employee reasonably demonstrates (A) was at the request of a third party, or (B) otherwise arose in connection with, or in anticipation of, a Change in Control which actually occurs, shall constitute Good Reason for purposes of this Agreement, notwithstanding that it occurred prior to the Change in Control.  Employee’s right to terminate Employee’s employment for Good Reason shall not be affected by Employee’s incapacity due to physical or mental illness.

 

(f)        “ Non-Control Transaction ” shall mean a transaction described below:

 

            (i)         the shareholders of the Company, immediately before such merger, consolidation or reorganization own, directly or indirectly, immediately following such merger, consolidation or reorganization, at least fifty percent (50%) of the combined voting power of the outstanding voting securities of the corporation resulting from such merger, 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)        immediately following such merger, consolidation or reorganization, the number of directors on the board of directors of the Surviving Corporation who were members of the Incumbent Board shall at least equal the number of directors who were affiliated with or appointed by the other party to the merger, consolidation or reorganization.

 

(g)        “ Notice of Termination ” shall mean a written notice of termination from one party to the other which specifies an effective date of termination, indicates the specific termination provision in this Agreement relied upon, and, in the case of a termination for Good Reason or for Cause, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Employee’s employment under the provision so indicated.

 

 

 

 

(h)        “ Terminate ”, “ terminated ”, “ termination ”, or “ Termination of Employment ” shall mean separation from service as defined by Treasury Regulation § 1.409A-1(h).

 

27.    Entire Agreement .  This Agreement supersedes any other agreements, oral or written, between the parties with respect to the subject matter hereof, and contains all of the agreements and understandings between the parties with respect to the employment of Employee by Employer.  Any waiver or modification of any term of this Agreement shall be effective only if it is set forth in writing signed by all parties hereto.

 

28.    Counterparts .  This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same agreement.

 

 

 

 

            IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.

 

                                                                        EMPLOYER:

 

                                                                        SOUTHERN FIRST BANK,

NATIONAL ASSOCIATION

 

 

 

[CORPORATE SEAL]                                     By:       /s/James B. Orders, III                       

                                                                             Name: James B. Orders, III

Attest:                                                                   Title: Member of the Board

 

 

                                               

Secretary

 

                                                                        SOUTHERN FIRST BANCSHARES, INC.

 

 

 

[CORPORATE SEAL]                                     By:       /s/James B. Orders, III                       

                                                                             Name: James B. Orders, III

Attest:                                                                   Title: Chairman of the Board

 

 

                                               

Secretary

           

                                                                        EMPLOYEE:

 

 

 

                                                                          /s/F. Justin Strickland                                   

                                                                        F. Justin Strickland

 

 

 

 

 

 

 

 

Exhibit 10.5

 

EMPLOYMENT AGREEMENT

 

 

            THIS EMPLOYMENT AGREEMENT (this “Agreement”) is made as of and effective on the 17 ^th  day of November , 2008 (the “Effective Date”) by and between Southern First Bancshares, Inc. and Southern First Bank, National Association (hereinafter collectively called “Employer” or the “Company”), having its principal office at 100 Verdae Boulevard, Suite 100, Greenville, South Carolina 29607, and James M. Austin, III (hereinafter called “Employee”), whose residence address is 103 W. Shallowstone Road, Greer, South Carolina 29650. 

 

            Employer presently employs Employee as its Executive Vice President and Chief Financial Officer.  Employer desires to provide for the continued employment of Employee and to make certain changes in Employee’s employment arrangements which Employer has determined will reinforce and encourage the continued dedication of Employee to Employer.  Employee is willing to terminate Employee’s interests and rights under the existing Employment Agreement with Employer and to continue to serve Employer on the terms and conditions herein provided.

 

            In consideration of the mutual covenants and promises herein made, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1.    Employment .  Employer shall continue to employ Employee, and Employee shall continue to serve Employer, as Executive Vice President and Chief Financial Officer and in such capacity shall perform such duties as are consistent with that position, and as Employer from time to time may direct.   Employee shall have such authority and responsibilities consistent with Employee’s position as are set forth in Employer’s Bylaws or assigned by Employer’s Board of Directors (the “Board”), Employer’s Chief Executive Officer, or Employer’s President from time to time.  Employee shall devote Employee’s full business time, attention, skill and efforts to the performance of Employee’s duties hereunder, except during periods of illness or periods of vacation and leaves of absence consistent with Employer’s policy.  Such duties shall be performed at Employer’s principal corporate offices or subsidiary offices as agreed upon by Employer and Employee.  Employer reserves the right from time to time to extend, curtail or change the title and duties of Employee.  Employee may devote reasonable periods to service as a director or advisor to other organizations, to charitable and community activities, and to managing Employee’s personal investments; provided that such activities do not materially interfere with the performance of Employee’s duties hereunder and are not in conflict or competitive with, or adverse to, the interests of Employer.

 

2.    Term .  Unless earlier terminated as provided in section 13 below, Employee’s employment under this Agreement shall commence on the Effective Date and be for a term ending January 31, 2011 (the “Term”).  At the end of January 2010 and on the last day of January each year thereafter, the Term shall be extended for an additional one (1) year so that the remaining Term shall continue to be two (2) years; provided that Employer or Employee may at any time, by written notice, fix the Term to a finite term of two (2) years commencing with the year of the notice. 

 

 

 

 

3.    Base Salary .  For all services rendered by Employee under this Agreement, Employer shall pay Employee a base salary of $166,000.00 per year (the “Base Salary”).  The Base Salary shall be reviewed annually by the Board, and may be increased beginning February 1 of each year, by the Board or a duly appointed committee thereof, in its sole discretion.  The Base Salary shall be paid in accordance with Employer’s standard payroll procedures, but in any case, no less frequently than monthly.

            Notwithstanding anything in this Agreement to the contrary, any payments to the Employee shall be limited to the extent required under the United States Treasury Capital Purchase Program (the "Program") and related regulations in the event that the Employer participates in the Program.  The Employee agrees to such amendments, agreements, or waivers that may be required by the United States Treasury or requested by the Employer to comply with the terms of the Program.

 

4.    Benefits . 

 

(a)        Employee shall be entitled, to the extent that Employee’s position, title, tenure, salary, age, health and other qualifications make Employee eligible, to participate in such pension, profit sharing, bonus, life insurance, hospitalization, major medical, and other employee benefit plans or programs of Employer currently in existence on the date hereof or later established that generally are provided to executive employees of Employer.  Employee’s participation in any such plan or program shall be subject to the provisions, rules and regulations applicable thereto.  Any Company stock options or similar awards shall be issued to Employee at an exercise price per share of not less than the fair market value per share of the corresponding shares as of the date of grant and the number of shares subject to such grant shall be fixed on such date.  Any and all bonus payments made to Employee shall be paid by the earlier of: (i) seventy (70) days after the previous year end for which the bonus was earned by Employee and became a payable of Employer or (ii) with the first payroll cycle following the Company’s press release announcing its previous year’s financial performance.

 

(b)        At Employer’s election, Employer shall provide Employee with either an automobile owned or leased by Employer of a make and model appropriate to Employee’s status, or a $700 monthly automobile allowance, paid in accordance with Employer’s standard payroll procedures, but in any case, no less frequently than monthly.  If Employer provides Employee with an automobile instead of a monthly automobile allowance, Employer shall reimburse Employee for reasonable expenses associated with the automobile, including, but not limited to, insurance, taxes, mileage, maintenance, etc., to be paid within sixty (60) days of Employee’s written notice to Employer of such expenses. 

 

5.    Working Facilities .  Employee shall be furnished with an office and such other facilities and services as may be necessary or suitable to Employee’s position and adequate for the performance of Employee’s duties.

 

6.    Expenses .  Employee is authorized to incur reasonable expenses for promoting the business of Employer, including expenses for entertainment, travel and similar items, but only to the extent that such expenses are allowable deductions to Employer on its Federal income tax return.  Expenses for which there is a fifty percent (50%) tax deduction limitation for entertainment, travel and similar items shall be considered reimbursable expenses.  Employer shall reimburse Employee for all such expenses within sixty (60) days of Employee’s written notice to Employer of such expenses.  Employee shall repay to Employer the amounts of any expenses claimed which, for lack of proper documentation or otherwise, are not allowed to Employer as deductions for Federal income tax purposes.

 

 

 

 

7.    Vacations .  Employee shall be entitled each fiscal year to twenty (20) paid days off, which shall be granted on a noncumulative basis from year-to-year, as granted by Employer to employees of similar tenure and compensation rank, pursuant to Employer’s paid days off policy.  Employer reserves the right to modify this and any other personnel policy from time to time.

 

8.    Ownership of Work Product .

 

(a)           Employee shall diligently disclose to Employer as soon as it is created or conceived by Employee, and Employer shall own, all Work Product (as defined below).  To the extent permitted by law, all Work Product shall be considered work made for hire by Employee and owned by Employer.

 

(b)            If any of the Work Product may not, by operation of law, be considered work made for hire by Employee for Employer (or if ownership of all right, title and interest of the intellectual property rights therein shall not otherwise vest exclusively in Employer), Employee agrees to assign, and upon creation thereof automatically assigns, without further consideration, the ownership of all Work Product to Employer, its successors and assigns.

 

(c)            Employer, its successors and assigns, shall have the right to obtain and hold in its or their own name copyrights, registrations, and any other protection available in the foregoing.

 

(d)            Employee agrees to perform upon the reasonable request of Employer, during or after Employee’s employment, such further acts as may be necessary or desirable to transfer, perfect and defend Employer’s ownership of the Work Product.  When requested, Employee will:

 

(i)            Execute, acknowledge and deliver any requested affidavits and documents of assignment and conveyance;

 

(ii)          Obtain and aid in the enforcement of copyrights (and, if applicable, patents) with respect to the Work Product in any countries;

 

(iii)         Provide testimony in connection with any proceeding affecting the right, title or interest of Employer in any Work Product; and

 

(iv)         Perform any other acts deemed necessary or desirable to carry out the purposes of this Agreement.

 

(e)            Employer shall reimburse all reasonable out-of-pocket expenses incurred by Employee at Employer’s request in connection with subsection 8(d) within sixty (60) days of Employee’s written notice to Employer of such expenses.

 

 

 

(f)             For purposes hereof, “Work Product” shall mean all intellectual property rights, including all Trade Secrets (as defined below), U.S. and international copyrights, patentable inventions, discoveries and improvements, and other intellectual property rights, in any programming, documentation, technology or other work product that relates to the business and interests of Employer and that Employee conceives, develops, or delivers to Employer at any time during the Term of Employee’s employment.  “Work Product” shall also include all intellectual property rights in any programming, documentation, technology or other work product that is now contained in any of the products or systems (including development and support systems) of Employer to the extent Employee conceived, developed or delivered such Work Product to Employer prior to the date of this Agreement while Employee was engaged as an independent contractor or employee of Employer.  Employee hereby irrevocably relinquishes for the benefit of Employer and its assigns any moral rights in the Work Product recognized by applicable law.

 

9.    Protection of Trade Secrets and Confidential Information . 

 

(a)            Through exercise of Employee’s rights and performance of Employee’s obligations under this Agreement, Employee will be exposed to “Trade Secrets” and “Confidential Information” (as those terms are defined below).  “Trade Secrets” shall mean information or data of or about Employer or any Affiliates (as defined in subsection 26(a)), including, but not limited to, technical or non-technical data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data, financial plans, product plans, or lists of actual or potential customers, clients, distributors, or licensees, that: (i) derive economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from their disclosure or use; and (ii) are the subject of efforts that are reasonable under the circumstances to maintain their secrecy.  To the extent that the foregoing definition is inconsistent with the definition of “trade secret” mandated under applicable law, the latter definition shall govern for purposes of interpreting Employee’s obligations under this Agreement.  Except as required to perform Employee’s obligations under this Agreement, or except with Employer’s prior written permission, Employee shall not use, redistribute, market, publish, disclose or divulge to any other person or entity any Trade Secrets of Employer.  Employee’s obligations under this provision shall remain in force (during and after the Term) for so long as such information or data shall continue to constitute a Trade Secret under applicable law.  Employee agrees to cooperate with any and all confidentiality requirements of Employer, and Employee shall immediately notify Employer of any unauthorized disclosure or use of any Trade Secrets of which Employee becomes aware.

 

(b)            Employee agrees to maintain in strict confidence and, except as necessary to perform Employee’s duties for Employer, not to use or disclose any Confidential Information at any time, either during the Term of Employee’s employment or for a period of one (1) year after Employee’s last date of employment, so long as the pertinent data or information remains Confidential Information.  “Confidential Information” shall mean any non-public information of a competitively sensitive or personal nature, other than Trade Secrets, acquired by Employee during Employee’s employment, relating to Employer or Employer’s business, operations, customers, suppliers, products, employees, financial affairs or industrial practices.  Notwithstanding anything herein to the contrary, no obligation or liability shall accrue hereunder with respect to any information that is or becomes publicly available without the fault of Employee.

 

(c)            Employee will abide by Employer’s policies and regulations, as established from time to time, for the protection of its Confidential Information.  Employee acknowledges that all records, files, data, documents, and the like relating to suppliers, customers, costs, prices, systems, methods, personnel, technology and other materials relating to Employer or its Affiliated entities shall be and remain the sole property of Employer and/or such Affiliated entity.  Employee agrees, upon the request of Employer, and in any event upon termination of Employee’s employment, to turn over all copies of all media, records, documentation, etc., pertaining to Employer (together with a written statement certifying as to Employee’s compliance with the foregoing).

 

 

 

 

10.    Non-Solicitation of Customers .  During the Employee’s employment with the Employer and for a period of one (1) year following termination or expiration of this Agreement, Employee shall not (except on behalf of or with the prior written consent of the Employer) directly or indirectly solicit any individual or entity which was a customer or client of Employer or any of its Affiliates for the purpose of providing a service or product to such customer or client which is the same type of service or product offered or provided by Employer or any of its Affiliates; provided , however , that this restriction shall apply only to those customers or clients with whom Employee had contact in connection with services or products provided by Employer or any of its Affiliates within two (2) years prior to the date of termination of such employment.

 

11.    Non-Solicitation of Employees .  During the Employee’s employment with the Employer and for a period of one (1) year following termination or expiration of this Agreement, Employee shall not, directly or indirectly, on the Employee’s own behalf or in the service of or on behalf of others, induce or solicit, or attempt to induce or solicit, for employment purposes or for any type of consulting purposes any employee of or consultant to the Employer or any of its Affiliates for the purpose of providing services that are the same or similar to the types of services offered or engaged in by any employee of or consultant to the Employer or any of its Affiliates at the time of termination of Employee’s employment with Employer. 

 

12.    Non-Competition Agreement .  During Employee’s employment with the Employer and for a period of one (1) year following termination or expiration of this Agreement, Employee shall not (without the prior written consent of Employer) compete with Employer or any of its Affiliates, directly or indirectly, engage in forming, serving as an organizer, director, officer of, employee or agent, or consultant to, or acquiring or maintaining more than a one percent (1%) passive investment in, a depository financial institution or holding company thereof if such depository institution or holding company has, or upon formation will have, one or more offices or branches located within thirty (30) miles of any office or branch of Employer or any of its Affiliates in existence at the time Employee’s employment with Employer is terminated (the “Territory”).  Notwithstanding the foregoing, Employee may serve as an officer of or consultant to a depository institution or holding company thereof even though such institution operates one or more offices or branches in the Territory, if Employee’s employment does not directly involve, in whole or in part, the depository financial institution’s or holding company’s operations in the Territory. 

 

13.    Termination .

 

(a)            Employee’s employment under this Agreement may be terminated prior to the end of the Term only as follows:

 

(i)            upon the death of Employee;

 

(ii)          by Employer upon the Disability (as defined in subsection 26(d)) of Employee for a period of one hundred and eighty (180) days;

 

(iii)         by Employer for Cause (as defined in subsection 26(b)) upon delivery of a Notice of Termination (as defined in subsection 26(g)) to Employee;

 

(iv)         by Employer without Cause upon delivery of a Notice of Termination to Employee;

 

 

 

(v)          by Employee for Good Reason (as defined in subsection 26(e)) upon delivery of a Notice of Termination to the Employer within a ninety (90) day period beginning on the thirtieth (30 ^th ) day after the occurrence of a Change in Control (as defined in subsection 26(c)) or within a ninety (90) day period beginning on the one (1) year anniversary of the occurrence of a Change in Control; or

 

(vi)         by Employee upon delivery of a Notice of Termination to Employer.

 

(b)            If Employee’s employment is terminated because of the Employee’s death, Employer shall pay Employee’s estate:

                       

(i)         any sums due Employee as Base Salary and/or reimbursement of expenses through the end of the month during which death occurred, paid in accordance with Employer’s standard payroll procedures, but in any case, no less frequently than monthly; and

 

(ii)        any bonus earned or accrued through the date of death.  Any bonus for previous years which was not yet paid will be paid pursuant to the terms as set forth in section 4(a).  Any bonus that is earned in the year of death will be paid on the earlier of: (i) seventy (70) days after the year end in which the Employee died or (ii) with the first payroll cycle following the Company’s press release announcing its financial performance for the year in which the Employee died.  To the extent that the bonus is performance-based, the amount of the bonus will be calculated by taking into account the performance of the Employer for the entire year and prorating this through the date of Employee’s death. 

           

(c)            During the period of any Disability leading up to the termination of Employee’s employment as a result of the Disability, Employer shall:

 

(i)         continue to pay the Employee’s full Base Salary at the rate then in effect and all perquisites and other benefits (other than any bonus) in accordance with Employer’s standard payroll procedures, but in any case, no less frequently than monthly, until Employee becomes eligible for benefits under any long-term disability plan or insurance program maintained by Employer; provided that the amount of any such payments to Employee shall be reduced by the sum of the amounts, if any, payable to Employee for the same period under any disability benefit or pension plan covering the Employee; and

 

(ii)        pay Employee any bonus earned or accrued through the date of Disability.  Any bonus for previous years which was not yet paid will be paid pursuant to the terms as set forth in section 4(a).  Any bonus that is earned in the year of Disability will be paid on the earlier of: (i) seventy (70) days after the year end in which Employee became Disabled or (ii) with the first payroll cycle following the Company’s press release announcing its financial performance for the year in which the Employee became Disabled. 

 

(d)        If Employee’s employment is terminated for Cause, Employee shall receive only any sums due Employee as Base Salary and/or reimbursement of expenses through the date of termination, paid in accordance with Employer’s standard payroll procedures, but in any case, no less frequently than monthly.

 

 

 

 

(e)        If Employee’s employment is terminated by Employer without Cause, beginning on the date that is six (6) months and one (1) day following the date of the Employee’s termination, and continuing on the first day of the month for the next twelve (12) months, the Employer shall pay to the Employee severance compensation in cash in an amount equal to one hundred percent (100%) of the Employee’s Base Salary at the date of termination.  Employer shall also pay Employee any bonus earned or accrued through the date of termination.  Any bonus for previous years which was not yet paid will be paid in a lump sum on the date that is six (6) months and one (1) day following the date of the Employee’s termination.  Any bonus that is earned in the year of the Employee’s termination will be paid on the later of: (i) the date that is six (6) months and one (1) day following the date of the Employee’s termination or (ii) with the first payroll cycle following the Company’s press release announcing its financial performance for the year of the Employee’s termination.  The restrictive covenants contained in sections 10, 11 and 12 shall not apply to Employee.

 

(f)        If Employee’s employment is terminated by Employee for Good Reason, in addition to other rights and remedies available in law or equity, Employee shall be entitled to the following:

 

(i)         Employer shall pay Employee, beginning on the date that is six (6) months and one (1) day following the date of the Employee’s termination, and continuing on the first day of the month for the next twelve (12) months, severance compensation in cash in an amount equal to one hundred percent (100%) of the Employee’s Base Salary at the date of termination.  Employer shall also pay Employee any bonus earned or accrued through the date of termination.  Any bonus for previous years which was not yet paid will be paid in a lump sum on the date that is six (6) months and one (1) day following the date of the Employee’s termination.  Any bonus that is earned in the year of the Employee’s termination will be paid on the later of: (i) the date that is six (6) months and one (1) day following the date of the Employee’s termination or (ii) with the first payroll cycle following the Company’s press release announcing its financial performance for the year of the Employee’s termination;

 

 

 

 

(ii)        for the period from the date of termination through the date that Employee attains the age of sixty-five (65) years (the “Continuation Period”), Employer shall at its expense continue on behalf of Employee and Employee’s spouse, dependents and beneficiaries the life insurance, disability, medical, dental, and hospitalization benefits provided (x) to Employee at any time during the ninety (90) day period prior to the Change in Control or at any time thereafter or (y) to other similarly situated executives who continue in the employ of Employer during the Continuation Period.  Such coverage and benefits (including deductibles and costs) shall be no less favorable to Employee, Employee’s spouse, dependents and beneficiaries than the most favorable of such coverages and benefits during any of the periods referred to above.  Employer’s obligation hereunder with respect to the foregoing benefits shall be limited to the extent that Employee obtains any such benefits pursuant to a subsequent employer’s benefit plans, in which case Employer may reduce the coverage of any benefits it is required to provide Employee hereunder as long as the aggregate coverages and benefits of the combined benefit plans is no less favorable to Employee than the coverages and benefits required to be provided hereunder.  This subsection (ii) shall not be interpreted so as to limit any benefits to which Employee, Employee’s spouse, dependents or beneficiaries may be entitled under any of Employer’s employee benefit plans, programs, or practices following Employee’s termination of employment, including, without limitation, retiree medical and life insurance benefits;

 

(iii)       the restrictions on any outstanding incentive awards (including restricted stock) granted to Employee under the Company’s or the Employer’s long-term equity incentive program or any other incentive plan or arrangement shall lapse and become one hundred percent (100%) vested and any Employee election rights thereto must be exercised contemporaneously with the Change in Control;

 

(iv)       all stock options and stock appreciation rights granted to Employee shall become immediately exercisable and shall become one hundred percent (100%) vested and must be exercised, if exercised, contemporaneously with the Change in Control;

 

(v)        all performance units granted to Employee shall become one hundred percent (100%) vested and any compensation associated with such units must be paid contemporaneously with the Change in Control; and

 

(vi)       the restrictive covenants contained in sections 10, 11 and 12 shall not apply to Employee.

 

(g)        If Employee’s employment is terminated by Employee without Good Reason, Employee shall receive only any sums due Employee as Base Salary and/or reimbursement of expenses through the date of termination, paid in accordance with Employer’s standard payroll procedures, but in any case, no less frequently than monthly.

 

(h)        With the exceptions of the provisions of this section 13, and the express terms of any benefit plan under which Employee is a participant, it is agreed that, upon Employee’s Termination of Employment, Employer shall have no obligation to Employee for, and Employee waives and relinquishes, any further compensation or benefits (exclusive of COBRA benefits).  Unless otherwise stated in this section 13, the effect of termination on any outstanding incentive awards, stock options, stock appreciation rights, performance units, or other incentives shall be governed by the terms of the applicable benefit or incentive plan and/or the agreements governing such incentives.  At the time of Termination of Employment, Employer and Employee shall enter into a mutually satisfactory form of release acknowledging such remaining obligations and discharging both parties, as well as Employer’s officers, directors and employees with respect to their actions for or on behalf of Employer, from any other claims or obligations arising out of or in connection with Employee’s employment by Employer, including the circumstances of such termination.

 

 

 

(i)         The parties intend that the severance payments and other compensation provided for herein are reasonable compensation for Employee’s services to Employer and shall not constitute “excess parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “I.R.C.”), and any regulations thereunder.  In the event that Employer’s independent accountants acting as auditors for Employer on the date of a Change in Control determine that the payments provided for herein constitute “excess parachute payments,” then the compensation payable hereunder shall be increased, on a tax gross-up basis, so as to reimburse Employee for the tax payable by Employee, pursuant to Section 4999 of the I.R.C., on such “excess parachute payments,” taking into account all taxes payable by Employee with respect to such tax gross-up payments hereunder, so that Employee shall be, after payment of all taxes, in the same financial position as if no taxes under Section 4999 of I.R.C. had been imposed upon Employee.

 

14.    Oral Modification Not Binding .  This Agreement supersedes all prior agreements and understandings between the parties and may not be changed or terminated orally, and no change or attempted waiver of the provisions hereof shall be binding unless in writing and signed by the party against whom the same is sought to be enforced; provided , however , that Employee’s compensation may be increased at any time by Employer without in any way affecting any of the other terms and conditions of this Agreement, which in all other respects shall remain in full force and effect. 

 

15.    Governing Law .  This Agreement has been entered into in the State of South Carolina and shall be governed by the laws of such State without giving effect to the conflict of laws principles thereof.  Any action brought by any party to this Agreement shall be brought and maintained in a court of competent jurisdiction in the State of South Carolina.

 

16.    Remedies for Breach; Non-Waiver .  Employee recognizes and agrees that a breach by Employee of any covenant contained in this Agreement would cause immeasurable and irreparable harm to Employer.  In the event of a breach or threatened breach of any covenant contained herein, Employer shall be entitled to temporary and permanent injunctive relief, restraining Employee from violating or threatening to violate any covenant contained herein, as well as all costs and fees incurred by Employer, including attorneys’ fees, as a result of Employee’s breach or threatened breach of the covenant.  Employer and Employee agree that the relief described herein is in addition to such other and further relief as may be available to Employer at equity or by law.  Nothing herein shall be construed as prohibiting Employer from pursuing any other remedies available to it for such breach of threatened breach, including the recovery of damages from Employee.  Failure of the Employer to enforce any of the provisions of this Agreement or any rights with respect thereto shall in no way be considered a waiver of such provisions or rights or in any way otherwise affect the validity of this Agreement.

 

17.    Consideration .  Employee acknowledges and agrees that valid consideration has been given to Employee by Employer in return for the promises of Employee set forth herein.

 

18.    Covenants are Independent .  The covenants on the part of Employee contained herein shall each be construed as agreements independent of each other and of any other provisions in this Agreement and the unenforceability of one shall not affect the enforceability of the remaining covenants.

 

19.    Severability and Substitution of Valid Provisions .  To the extent that any provision or language of this Agreement is deemed unenforceable, by virtue of the scope of the business activity prohibited or the length of time the activity is prohibited, Employer and Employee agree that this Agreement shall be enforced to the fullest extent permissible under the laws and public policies of the State of South Carolina.

 

20.    Extension of Periods .  Each of the time periods described in this Agreement shall be automatically extended by any length of time during which Employee is in breach of the corresponding covenant contained herein.  The provisions of this Agreement shall continue in full force and effect throughout the duration of the extended periods.

 

 

 

21.    Reasonable Restraint .  It is agreed by the parties that the foregoing covenants in this Agreement are necessary for the legitimate business interests of Employer and impose a reasonable restraint on Employee in light of the activities and business of Employer on the date of the execution of this Agreement.

 

22.    Withholding of Taxes .  Employer may withhold from any amounts payable to Employee under this Agreement all federal, state, city or other taxes and withholdings as shall be required pursuant to any applicable law, rule or regulation.

 

23.    Notices .  Any notice required or permitted to be given under this Agreement shall be sufficient if given in writing and either personally delivered or sent by registered or certified mail to Employee’s residence in the case of Employee or to its principal office in the case of Employer.

 

24.    Assignment .  The rights and obligations of the parties to this Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of Employer.  This Agreement shall not be terminated by any merger or consolidation whether or not the Employer or the Company is the consolidated or surviving corporation or by transfer of all or substantially all of the assets of the Employer or the Company to another corporation if there is a surviving or resulting corporation in such transfer.

 

25.    Severability . It is not the intent of any party hereto to violate any public policy of any jurisdiction in which this Agreement may be enforced.  If any provision of this Agreement or the application of any provision hereof to any person or circumstances is held invalid, unenforceable or otherwise unlawful, the remainder of this Agreement and the application of such provision to any other person or circumstances shall not be affected.  In addition, the applicable provision shall be reformed to the extent (and only to the extent) necessary to make it valid, enforceable and legal.

 

26.    Certain Definitions .

 

(a)        “ Affiliate ” shall mean any business entity controlled by the Employer or the Company, controlling or under common control with the Employer or the Company.

                       

(b)        “ Cause ” shall consist of any of:

 

(i)         the commission by Employee of a willful act (including, without limitation, a dishonest or fraudulent act) or a grossly negligent act, or the willful or grossly negligent omission to act by Employee, which is intended to cause, causes or is reasonably likely to cause material harm to Employer (including harm to its business reputation);

 

(ii)        the indictment of Employee for the commission or perpetration by Employee of any felony or any crime involving dishonesty, moral turpitude or fraud;

 

(iii)       the material breach by Employee of this Agreement that, if susceptible of cure, remains uncured thirty (30) days following written notice to Employee of such breach;

 

 

 

(iv)       the receipt of any form of notice, written or otherwise, that any regulatory agency having jurisdiction over Employer intends to institute any form of formal or informal ( e.g. , a memorandum of understanding which relates to Employee’s performance) regulatory action against Employee or Employer ( provided that the Board determines in good faith, with Employee abstaining from participating in the consideration of and vote on the matter, that the subject matter of such action involves acts or omissions by or under the supervision of Employee or that termination of Employee would materially advance Employer’s compliance with the purpose of the action or would materially assist Employer in avoiding or reducing the restrictions or adverse effects to Employer related to the regulatory action);

 

(v)        the exhibition by Employee of a standard of behavior within the scope of Employee’s employment that is materially disruptive to the orderly conduct of Employer’s business operations (including, without limitation, substance abuse or sexual misconduct) to a level which, in the Board’s good faith and reasonable judgment, with Employee abstaining from participating in the consideration of and vote on the matter, is materially detrimental to Employer’s best interest, that, if susceptible of cure remains uncured ten (10) days following written notice to Employee of such specific inappropriate behavior; or

 

(vi)       the failure of Employee to devote Employee’s full business time and attention to Employee’s employment as provided under this Agreement that, if susceptible of cure, remains uncured thirty (30) days following written notice to Employee of such failure.

 

(c)        “ Change in Control ” shall mean the occurrence during the Term of any of the following events, unless such event is a result of a Non-Control Transaction:

 

 (i)        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 fifty percent (50%) of the Board of Directors of the Company; provided , however , that if the election, or nomination for election by the Company’s shareholders, of any new director was approved in advance by a vote of at least fifty percent (50%) of the Incumbent Board, such new director shall, for purposes of this Agreement, be considered as a member of the Incumbent Board; provided , further , that no individual shall be considered a member of the Incumbent Board if such individual initially assumed office as a result of either an actual or threatened election contest, or other actual or threatened solicitation of proxies or consents by or on behalf of any person other than the Board of Directors of the Company, including by reason of any agreement intended to avoid or settle any election contest or proxy contest;

 

(ii)        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 “Exchange Act”)) immediately after which such Person has “Beneficial Ownership” (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of twenty percent (20%) or more of the combined voting power of the Company’s then outstanding Voting Securities; provided , however , that in determining whether a Change in Control has occurred, Voting Securities which are acquired in a Non-Control Transaction shall not constitute an acquisition which would cause a Change in Control; 

 

 

 

 

(iii)       consummation of: (a) a merger, consolidation, or reorganization involving the Company; (b) a complete liquidation or dissolution of the Company; or (c) 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

 

(iv)       a notice of an application is filed with the South Carolina Board of Financial Institutions, the Office of Comptroller of the Currency (the “OCC”) or the Federal Reserve Board or any other bank or thrift regulatory approval (or notice of no disapproval) is granted by the Federal Reserve, South Carolina Board of Financial Institutions, the OCC, the Federal Deposit Insurance Corporation, or any other regulatory authority for permission to acquire control of the Company or any of its banking subsidiaries; provided , however , that if the application is filed in connection with a transaction which has been approved by the Board of Directors of the Company, then the Change in Control shall not be deemed to occur until consummation of the transaction.

 

(d)          “ Disability ” or “ Disabled ” shall mean as defined by Treasury Regulation       § 1.409A-3(i)(4).            

 

(e)          “ Good Reason ” shall mean the occurrence after a Change in Control of any of the events or conditions described in subsections (i) through (vii) hereof:

 

(i)            a change in the Employee’s status, title, position or responsibilities (including reporting responsibilities) which, in the Employee’s reasonable judgment, represents an adverse change from Employee’s status, title, position or responsibilities as in effect at any time within ninety (90) days preceding the date of a Change in Control or at any time thereafter; the assignment to the Employee of any duties or responsibilities which, in the Employee’s reasonable judgment, are inconsistent with Employee’s status, title, position or responsibilities as in effect at any time within ninety (90) days preceding the date of a Change in Control or at any time thereafter; any removal of the Employee from or failure to reappoint or reelect Employee to any of such offices or positions, except in connection with the termination of Employee’s employment for Disability or Cause, as a result of Employee’s death, or by the Employee other than for Good Reason, or any other change in condition or circumstances that in the Employee’s reasonable judgment makes it materially more difficult for the Employee to carry out the duties and responsibilities of the Employee’s office than existed at any time within ninety (90) days preceding the date of Change in Control or at any time thereafter;

 

(ii)          a reduction in the Employee’s Base Salary or any failure to pay the Employee any compensation or benefits to which Employee is entitled within five (5) days of the date due;

 

(iii)          the Employer’s requiring the Employee to be based at any place outside a thirty (30) - mile radius from the executive offices occupied by the Employee immediately prior to the Change in Control, except for reasonably required travel on the Employer’s business which is not materially greater than such travel requirements prior to the Change in Control;

 

 

 

(iv)          the failure by the Employer to (A) continue in effect (without reduction in benefit level and/or reward opportunities) any material compensation or employee benefit plan in which the Employee was participating at any time within ninety (90) days preceding the date of a Change in Control or at any time thereafter, unless such plan is replaced with a plan that provides substantially equivalent compensation or benefits to the Employee, or (B) provide the Employee with compensation and benefits, in the aggregate, at least equal (in terms of benefit levels and/or reward opportunities) to those provided for under each other employee benefit plan, program and practice in which the Employee was participating at any time within ninety (90) days preceding the date of a Change in Control or at any time thereafter;

 

(v)          the insolvency or the filing (by any party, including the Company or the Employer) of a petition for bankruptcy of the Company or the Employer, which petition is not dismissed within sixty (60) days;

 

(vi)          any material breach by the Employer of any material provision of this Agreement; or

 

(vii)        any purported termination of the Employee’s employment for Cause by the Employer which does not comply with the terms of this Agreement.

 

Any event or condition described in clause (i) through (vii) above which occurs prior to a Change in Control but which the Employee reasonably demonstrates (A) was at the request of a third party, or (B) otherwise arose in connection with, or in anticipation of, a Change in Control which actually occurs, shall constitute Good Reason for purposes of this Agreement, notwithstanding that it occurred prior to the Change in Control.  Employee’s right to terminate Employee’s employment for Good Reason shall not be affected by Employee’s incapacity due to physical or mental illness.

 

(f)        “ Non-Control Transaction ” shall mean a transaction described below:

 

            (i)         the shareholders of the Company, immediately before such merger, consolidation or reorganization own, directly or indirectly, immediately following such merger, consolidation or reorganization, at least fifty percent (50%) of the combined voting power of the outstanding voting securities of the corporation resulting from such merger, 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)        immediately following such merger, consolidation or reorganization, the number of directors on the board of directors of the Surviving Corporation who were members of the Incumbent Board shall at least equal the number of directors who were affiliated with or appointed by the other party to the merger, consolidation or reorganization.

 

(g)        “ Notice of Termination ” shall mean a written notice of termination from one party to the other which specifies an effective date of termination, indicates the specific termination provision in this Agreement relied upon, and, in the case of a termination for Good Reason or for Cause, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Employee’s employment under the provision so indicated.

 

 

 

 

(h)        “ Terminate ”, “ terminated ”, “ termination ”, or “ Termination of Employment ” shall mean separation from service as defined by Treasury Regulation § 1.409A-1(h).

 

27.    Entire Agreement .  This Agreement supersedes any other agreements, oral or written, between the parties with respect to the subject matter hereof, and contains all of the agreements and understandings between the parties with respect to the employment of Employee by Employer.  Any waiver or modification of any term of this Agreement shall be effective only if it is set forth in writing signed by all parties hereto.

 

28.    Counterparts .  This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same agreement.

 

 

 

            IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.

 

                                                                        EMPLOYER:

 

                                                                        SOUTHERN FIRST BANK,

NATIONAL ASSOCIATION

 

 

 

[CORPORATE SEAL]                                     By:        /s/James B. Orders, III                       

                                                                             Name: James B. Orders, III

Attest:                                                                   Title: Member of the Board

 

 

                                               

Secretary

 

                                                                        SOUTHERN FIRST BANCSHARES, INC.

 

 

 

[CORPORATE SEAL]                                     By:       /s/James B. Orders, III                       

                                                                             Name: James B. Orders, III

Attest:                                                                   Title: Chairman of the Board

 

 

                                               

Secretary

           

                                                                        EMPLOYEE:

 

 

 

                                                                          /s/James M. Austin, III                     

                                                                        James M. Austin, III

 

 

 

 

 

 

 

 

 

Exhibit 10.6

 

EMPLOYMENT AGREEMENT

 

 

            THIS EMPLOYMENT AGREEMENT (this “Agreement”) is made as of and effective on the 17 ^th  day of November , 2008 (the “ Effective Date”) by and between Southern First Bank, National Association (the “Employer”), having its principal office at 100 Verdae Boulevard, Suite 100, Greenville, South Carolina 29607 and Frederick Gilmer, III (hereinafter called “Employee”), whose residence address is 8 Ruffian Way, Greenville, South Carolina 29615.  References herein to the “Company” refer to Southern First Bancshares, Inc., the parent company of the Employer.

 

            Employer presently employs Employee as an Executive Vice President.  Employer desires to provide for the continued employment of Employee and to make certain changes in Employee’s employment arrangements which Employer has determined will reinforce and encourage the continued dedication of Employee to Employer.  Employee is willing to terminate Employee’s interests and rights under the existing Employment Agreement with Employer and to continue to serve Employer on the terms and conditions herein provided.

 

            In consideration of the mutual covenants and promises herein made, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1.    Employment .  Employer shall continue to employ Employee, and Employee shall continue to serve Employer, as an Executive Vice President and in such capacity shall perform such duties as are consistent with that position, and as Employer from time to time may direct.   Employee shall have such authority and responsibilities consistent with Employee’s position as are set forth in Employer’s Bylaws or assigned by Employer’s Board of Directors (the “Board”), Employer’s Chief Executive Officer, or Employer’s President from time to time.  Employee shall devote Employee’s full business time, attention, skill and efforts to the performance of Employee’s duties hereunder, except during periods of illness or periods of vacation and leaves of absence consistent with Employer’s policy.  Such duties shall be performed at Employer’s principal corporate offices or subsidiary offices as agreed upon by Employer and Employee.  Employer reserves the right from time to time to extend, curtail or change the title and duties of Employee.  Employee may devote reasonable periods to service as a director or advisor to other organizations, to charitable and community activities, and to managing Employee’s personal investments; provided that such activities do not materially interfere with the performance of Employee’s duties hereunder and are not in conflict or competitive with, or adverse to, the interests of Employer.

 

2.    Term .  Unless earlier terminated as provided in section 13 below, Employee’s employment under this Agreement shall commence on the Effective Date and be for a term ending January 31, 2011 (the “Term”).  At the end of January 2010 and on the last day of January each year thereafter, the Term shall be extended for an additional one (1) year so that the remaining Term shall continue to be two (2) years; provided that Employer or Employee may at any time, by written notice, fix the Term to a finite term of two (2) years commencing with the year of the notice. 

 

 

 

 

 

3.    Base Salary .  For all services rendered by Employee under this Agreement, Employer shall pay Employee a base salary of $152,500.00 per year (the “Base Salary”).  The Base Salary shall be reviewed annually by the Board, and may be increased beginning February 1 of each year, by the Board or a duly appointed committee thereof, in its sole discretion.  The Base Salary shall be paid in accordance with Employer’s standard payroll procedures, but in any case, no less frequently than monthly.

            Notwithstanding anything in this Agreement to the contrary, any payments to the Employee shall be limited to the extent required under the United States Treasury Capital Purchase Program (the "Program") and related regulations in the event that the Employer or its holding company participates in the Program.  The Employee agrees to such amendments, agreements, or waivers that may be required by the United States Treasury or requested by the Employer or its holding company to comply with the terms of the Program.

 

4.    Benefits . 

 

(a)        Employee shall be entitled, to the extent that Employee’s position, title, tenure, salary, age, health and other qualifications make Employee eligible, to participate in such pension, profit sharing, bonus, life insurance, hospitalization, major medical, and other employee benefit plans or programs of Employer currently in existence on the date hereof or later established that generally are provided to executive employees of Employer.  Employee’s participation in any such plan or program shall be subject to the provisions, rules and regulations applicable thereto.  Any Company stock options or similar awards shall be issued to Employee at an exercise price per share of not less than the fair market value per share of the corresponding shares as of the date of grant and the number of shares subject to such grant shall be fixed on such date.  Any and all bonus payments made to Employee shall be paid by the earlier of: (i) seventy (70) days after the previous year end for which the bonus was earned by Employee and became a payable of Employer or (ii) with the first payroll cycle following the Company’s press release announcing its previous year’s financial performance.

 

(b)        At Employer’s election, Employer shall provide Employee with either an automobile owned or leased by Employer of a make and model appropriate to Employee’s status, or a $700 monthly automobile allowance, paid in accordance with Employer’s standard payroll procedures, but in any case, no less frequently than monthly.  If Employer provides Employee with an automobile instead of a monthly automobile allowance, Employer shall reimburse Employee for reasonable expenses associated with the automobile, including, but not limited to, insurance, taxes, mileage, maintenance, etc., to be paid within sixty (60) days of Employee’s written notice to Employer of such expenses. 

 

5.    Working Facilities .  Employee shall be furnished with an office and such other facilities and services as may be necessary or suitable to Employee’s position and adequate for the performance of Employee’s duties.

 

6.    Expenses .  Employee is authorized to incur reasonable expenses for promoting the business of Employer, including expenses for entertainment, travel and similar items, but only to the extent that such expenses are allowable deductions to Employer on its Federal income tax return.  Expenses for which there is a fifty percent (50%) tax deduction limitation for entertainment, travel and similar items shall be considered reimbursable expenses.  Employer shall reimburse Employee for all such expenses within sixty (60) days of Employee’s written notice to Employer of such expenses.  Employee shall repay to Employer the amounts of any expenses claimed which, for lack of proper documentation or otherwise, are not allowed to Employer as deductions for Federal income tax purposes.

 

 

 

 

7.    Vacations .  Employee shall be entitled each fiscal year to twenty (20) paid days off, which shall be granted on a noncumulative basis from year-to-year, as granted by Employer to employees of similar tenure and compensation rank, pursuant to Employer’s paid days off policy.  Employer reserves the right to modify this and any other personnel policy from time to time.

 

8.    Ownership of Work Product .

 

(a)           Employee shall diligently disclose to Employer as soon as it is created or conceived by Employee, and Employer shall own, all Work Product (as defined below).  To the extent permitted by law, all Work Product shall be considered work made for hire by Employee and owned by Employer.

 

(b)            If any of the Work Product may not, by operation of law, be considered work made for hire by Employee for Employer (or if ownership of all right, title and interest of the intellectual property rights therein shall not otherwise vest exclusively in Employer), Employee agrees to assign, and upon creation thereof automatically assigns, without further consideration, the ownership of all Work Product to Employer, its successors and assigns.

 

(c)            Employer, its successors and assigns, shall have the right to obtain and hold in its or their own name copyrights, registrations, and any other protection available in the foregoing.

 

(d)            Employee agrees to perform upon the reasonable request of Employer, during or after Employee’s employment, such further acts as may be necessary or desirable to transfer, perfect and defend Employer’s ownership of the Work Product.  When requested, Employee will:

 

(i)            Execute, acknowledge and deliver any requested affidavits and documents of assignment and conveyance;

 

(ii)          Obtain and aid in the enforcement of copyrights (and, if applicable, patents) with respect to the Work Product in any countries;

 

(iii)         Provide testimony in connection with any proceeding affecting the right, title or interest of Employer in any Work Product; and

 

(iv)         Perform any other acts deemed necessary or desirable to carry out the purposes of this Agreement.

 

(e)            Employer shall reimburse all reasonable out-of-pocket expenses incurred by Employee at Employer’s request in connection with subsection 8(d) within sixty (60) days of Employee’s written notice to Employer of such expenses.

 

 

 

(f)             For purposes hereof, “Work Product” shall mean all intellectual property rights, including all Trade Secrets (as defined below), U.S. and international copyrights, patentable inventions, discoveries and improvements, and other intellectual property rights, in any programming, documentation, technology or other work product that relates to the business and interests of Employer and that Employee conceives, develops, or delivers to Employer at any time during the Term of Employee’s employment.  “Work Product” shall also include all intellectual property rights in any programming, documentation, technology or other work product that is now contained in any of the products or systems (including development and support systems) of Employer to the extent Employee conceived, developed or delivered such Work Product to Employer prior to the date of this Agreement while Employee was engaged as an independent contractor or employee of Employer.  Employee hereby irrevocably relinquishes for the benefit of Employer and its assigns any moral rights in the Work Product recognized by applicable law.

 

9.    Protection of Trade Secrets and Confidential Information . 

 

(a)            Through exercise of Employee’s rights and performance of Employee’s obligations under this Agreement, Employee will be exposed to “Trade Secrets” and “Confidential Information” (as those terms are defined below).  “Trade Secrets” shall mean information or data of or about Employer or any Affiliates (as defined in subsection 26(a)), including, but not limited to, technical or non-technical data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data, financial plans, product plans, or lists of actual or potential customers, clients, distributors, or licensees, that: (i) derive economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from their disclosure or use; and (ii) are the subject of efforts that are reasonable under the circumstances to maintain their secrecy.  To the extent that the foregoing definition is inconsistent with the definition of “trade secret” mandated under applicable law, the latter definition shall govern for purposes of interpreting Employee’s obligations under this Agreement.  Except as required to perform Employee’s obligations under this Agreement, or except with Employer’s prior written permission, Employee shall not use, redistribute, market, publish, disclose or divulge to any other person or entity any Trade Secrets of Employer.  Employee’s obligations under this provision shall remain in force (during and after the Term) for so long as such information or data shall continue to constitute a Trade Secret under applicable law.  Employee agrees to cooperate with any and all confidentiality requirements of Employer, and Employee shall immediately notify Employer of any unauthorized disclosure or use of any Trade Secrets of which Employee becomes aware.

 

(b)            Employee agrees to maintain in strict confidence and, except as necessary to perform Employee’s duties for Employer, not to use or disclose any Confidential Information at any time, either during the Term of Employee’s employment or for a period of one (1) year after Employee’s last date of employment, so long as the pertinent data or information remains Confidential Information.  “Confidential Information” shall mean any non-public information of a competitively sensitive or personal nature, other than Trade Secrets, acquired by Employee during Employee’s employment, relating to Employer or Employer’s business, operations, customers, suppliers, products, employees, financial affairs or industrial practices.  Notwithstanding anything herein to the contrary, no obligation or liability shall accrue hereunder with respect to any information that is or becomes publicly available without the fault of Employee.

 

(c)            Employee will abide by Employer’s policies and regulations, as established from time to time, for the protection of its Confidential Information.  Employee acknowledges that all records, files, data, documents, and the like relating to suppliers, customers, costs, prices, systems, methods, personnel, technology and other materials relating to Employer or its Affiliated entities shall be and remain the sole property of Employer and/or such Affiliated entity.  Employee agrees, upon the request of Employer, and in any event upon termination of Employee’s employment, to turn over all copies of all media, records, documentation, etc., pertaining to Employer (together with a written statement certifying as to Employee’s compliance with the foregoing).

 

 

 

 

10.    Non-Solicitation of Customers .  During the Employee’s employment with the Employer and for a period of one (1) year following termination or expiration of this Agreement, Employee shall not (except on behalf of or with the prior written consent of the Employer) directly or indirectly solicit any individual or entity which was a customer or client of Employer or any of its Affiliates for the purpose of providing a service or product to such customer or client which is the same type of service or product offered or provided by Employer or any of its Affiliates; provided , however , that this restriction shall apply only to those customers or clients with whom Employee had contact in connection with services or products provided by Employer or any of its Affiliates within two (2) years prior to the date of termination of such employment.

 

11.    Non-Solicitation of Employees .  During the Employee’s employment with the Employer and for a period of one (1) year following termination or expiration of this Agreement, Employee shall not, directly or indirectly, on the Employee’s own behalf or in the service of or on behalf of others, induce or solicit, or attempt to induce or solicit, for employment purposes or for any type of consulting purposes any employee of or consultant to the Employer or any of its Affiliates for the purpose of providing services that are the same or similar to the types of services offered or engaged in by any employee of or consultant to the Employer or any of its Affiliates at the time of termination of Employee’s employment with Employer. 

 

12.    Non-Competition Agreement .  During Employee’s employment with the Employer and for a period of one (1) year following termination or expiration of this Agreement, Employee shall not (without the prior written consent of Employer) compete with Employer or any of its Affiliates, directly or indirectly, engage in forming, serving as an organizer, director, officer of, employee or agent, or consultant to, or acquiring or maintaining more than a one percent (1%) passive investment in, a depository financial institution or holding company thereof if such depository institution or holding company has, or upon formation will have, one or more offices or branches located within thirty (30) miles of any office or branch of Employer or any of its Affiliates in existence at the time Employee’s employment with Employer is terminated (the “Territory”).  Notwithstanding the foregoing, Employee may serve as an officer of or consultant to a depository institution or holding company thereof even though such institution operates one or more offices or branches in the Territory, if Employee’s employment does not directly involve, in whole or in part, the depository financial institution’s or holding company’s operations in the Territory. 

 

13.    Termination .

 

(a)            Employee’s employment under this Agreement may be terminated prior to the end of the Term only as follows:

 

(i)            upon the death of Employee;

 

(ii)          by Employer upon the Disability (as defined in subsection 26(d)) of Employee for a period of one hundred and eighty (180) days;

 

(iii)         by Employer for Cause (as defined in subsection 26(b)) upon delivery of a Notice of Termination (as defined in subsection 26(g)) to Employee;

 

(iv)         by Employer without Cause upon delivery of a Notice of Termination to Employee;

 

 

 

 

(v)          by Employee for Good Reason (as defined in subsection 26(e)) upon delivery of a Notice of Termination to the Employer within a ninety (90) day period beginning on the thirtieth (30 ^th ) day after the occurrence of a Change in Control (as defined in subsection 26(c)) or within a ninety (90) day period beginning on the one (1) year anniversary of the occurrence of a Change in Control; or

 

(vi)         by Employee upon delivery of a Notice of Termination to Employer.

 

(b)            If Employee’s employment is terminated because of the Employee’s death, Employer shall pay Employee’s estate:

                       

(i)         any sums due Employee as Base Salary and/or reimbursement of expenses through the end of the month during which death occurred, paid in accordance with Employer’s standard payroll procedures, but in any case, no less frequently than monthly; and

 

(ii)        any bonus earned or accrued through the date of death.  Any bonus for previous years which was not yet paid will be paid pursuant to the terms as set forth in section 4(a).  Any bonus that is earned in the year of death will be paid on the earlier of: (i) seventy (70) days after the year end in which the Employee died or (ii) with the first payroll cycle following the Company’s press release announcing its financial performance for the year in which the Employee died.  To the extent that the bonus is performance-based, the amount of the bonus will be calculated by taking into account the performance of the Employer for the entire year and prorating this through the date of Employee’s death. 

           

(c)            During the period of any Disability leading up to the termination of Employee’s employment as a result of the Disability, Employer shall:

 

(i)         continue to pay the Employee’s full Base Salary at the rate then in effect and all perquisites and other benefits (other than any bonus) in accordance with Employer’s standard payroll procedures, but in any case, no less frequently than monthly, until Employee becomes eligible for benefits under any long-term disability plan or insurance program maintained by Employer; provided that the amount of any such payments to Employee shall be reduced by the sum of the amounts, if any, payable to Employee for the same period under any disability benefit or pension plan covering the Employee; and

 

(ii)        pay Employee any bonus earned or accrued through the date of Disability.  Any bonus for previous years which was not yet paid will be paid pursuant to the terms as set forth in section 4(a).  Any bonus that is earned in the year of Disability will be paid on the earlier of: (i) seventy (70) days after the year end in which Employee became Disabled or (ii) with the first payroll cycle following the Company’s press release announcing its financial performance for the year in which the Employee became Disabled. 

 

(d)        If Employee’s employment is terminated for Cause, Employee shall receive only any sums due Employee as Base Salary and/or reimbursement of expenses through the date of termination, paid in accordance with Employer’s standard payroll procedures, but in any case, no less frequently than monthly.

 

 

 

 

(e)        If Employee’s employment is terminated by Employer without Cause, beginning on the date that is six (6) months and one (1) day following the date of the Employee’s termination, and continuing on the first day of the month for the next twelve (12) months, the Employer shall pay to the Employee severance compensation in cash in an amount equal to one hundred percent (100%) of the Employee’s Base Salary at the date of termination.  Employer shall also pay Employee any bonus earned or accrued through the date of termination.  Any bonus for previous years which was not yet paid will be paid in a lump sum on the date that is six (6) months and one (1) day following the date of the Employee’s termination.  Any bonus that is earned in the year of the Employee’s termination will be paid on the later of: (i) the date that is six (6) months and one (1) day following the date of the Employee’s termination or (ii) with the first payroll cycle following the Company’s press release announcing its financial performance for the year of the Employee’s termination.  The restrictive covenants contained in sections 10, 11 and 12 shall not apply to Employee.

 

(f)        If Employee’s employment is terminated by Employee for Good Reason, in addition to other rights and remedies available in law or equity, Employee shall be entitled to the following:

 

(i)         Employer shall pay Employee, beginning on the date that is six (6) months and one (1) day following the date of the Employee’s termination, and continuing on the first day of the month for the next twelve (12) months, severance compensation in cash in an amount equal to one hundred percent (100%) of the Employee’s Base Salary at the date of termination.  Employer shall also pay Employee any bonus earned or accrued through the date of termination.  Any bonus for previous years which was not yet paid will be paid in a lump sum on the date that is six (6) months and one (1) day following the date of the Employee’s termination.  Any bonus that is earned in the year of the Employee’s termination will be paid on the later of: (i) the date that is six (6) months and one (1) day following the date of the Employee’s termination or (ii) with the first payroll cycle following the Company’s press release announcing its financial performance for the year of the Employee’s termination;

 

 

 

 

(ii)        for the period from the date of termination through the date that Employee attains the age of sixty-five (65) years (the “Continuation Period”), Employer shall at its expense continue on behalf of Employee and Employee’s spouse, dependents and beneficiaries the life insurance, disability, medical, dental, and hospitalization benefits provided (x) to Employee at any time during the ninety (90) day period prior to the Change in Control or at any time thereafter or (y) to other similarly situated executives who continue in the employ of Employer during the Continuation Period.  Such coverage and benefits (including deductibles and costs) shall be no less favorable to Employee, Employee’s spouse, dependents and beneficiaries than the most favorable of such coverages and benefits during any of the periods referred to above.  Employer’s obligation hereunder with respect to the foregoing benefits shall be limited to the extent that Employee obtains any such benefits pursuant to a subsequent employer’s benefit plans, in which case Employer may reduce the coverage of any benefits it is required to provide Employee hereunder as long as the aggregate coverages and benefits of the combined benefit plans is no less favorable to Employee than the coverages and benefits required to be provided hereunder.  This subsection (ii) shall not be interpreted so as to limit any benefits to which Employee, Employee’s spouse, dependents or beneficiaries may be entitled under any of Employer’s employee benefit plans, programs, or practices following Employee’s termination of employment, including, without limitation, retiree medical and life insurance benefits;

 

(iii)       the restrictions on any outstanding incentive awards (including restricted stock) granted to Employee under the Company’s or the Employer’s long-term equity incentive program or any other incentive plan or arrangement shall lapse and become one hundred percent (100%) vested and any Employee election rights thereto must be exercised contemporaneously with the Change in Control;

 

(iv)       all stock options and stock appreciation rights granted to Employee shall become immediately exercisable and shall become one hundred percent (100%) vested and must be exercised, if exercised, contemporaneously with the Change in Control;

 

(v)        all performance units granted to Employee shall become one hundred percent (100%) vested and any compensation associated with such units must be paid contemporaneously with the Change in Control; and

 

(vi)       the restrictive covenants contained in sections 10, 11 and 12 shall not apply to Employee.

 

(g)        If Employee’s employment is terminated by Employee without Good Reason, Employee shall receive only any sums due Employee as Base Salary and/or reimbursement of expenses through the date of termination, paid in accordance with Employer’s standard payroll procedures, but in any case, no less frequently than monthly.

 

(h)        With the exceptions of the provisions of this section 13, and the express terms of any benefit plan under which Employee is a participant, it is agreed that, upon Employee’s Termination of Employment, Employer shall have no obligation to Employee for, and Employee waives and relinquishes, any further compensation or benefits (exclusive of COBRA benefits).  Unless otherwise stated in this section 13, the effect of termination on any outstanding incentive awards, stock options, stock appreciation rights, performance units, or other incentives shall be governed by the terms of the applicable benefit or incentive plan and/or the agreements governing such incentives.  At the time of Termination of Employment, Employer and Employee shall enter into a mutually satisfactory form of release acknowledging such remaining obligations and discharging both parties, as well as Employer’s officers, directors and employees with respect to their actions for or on behalf of Employer, from any other claims or obligations arising out of or in connection with Employee’s employment by Employer, including the circumstances of such termination.

 

 

 

 

(i)         The parties intend that the severance payments and other compensation provided for herein are reasonable compensation for Employee’s services to Employer and shall not constitute “excess parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “I.R.C.”), and any regulations thereunder.  In the event that Employer’s independent accountants acting as auditors for Employer on the date of a Change in Control determine that the payments provided for herein constitute “excess parachute payments,” then the compensation payable hereunder shall be increased, on a tax gross-up basis, so as to reimburse Employee for the tax payable by Employee, pursuant to Section 4999 of the I.R.C., on such “excess parachute payments,” taking into account all taxes payable by Employee with respect to such tax gross-up payments hereunder, so that Employee shall be, after payment of all taxes, in the same financial position as if no taxes under Section 4999 of I.R.C. had been imposed upon Employee.

 

14.    Oral Modification Not Binding .  This Agreement supersedes all prior agreements and understandings between the parties and may not be changed or terminated orally, and no change or attempted waiver of the provisions hereof shall be binding unless in writing and signed by the party against whom the same is sought to be enforced; provided , however , that Employee’s compensation may be increased at any time by Employer without in any way affecting any of the other terms and conditions of this Agreement, which in all other respects shall remain in full force and effect. 

 

15.    Governing Law .  This Agreement has been entered into in the State of South Carolina and shall be governed by the laws of such State without giving effect to the conflict of laws principles thereof.  Any action brought by any party to this Agreement shall be brought and maintained in a court of competent jurisdiction in the State of South Carolina.

 

16.    Remedies for Breach; Non-Waiver .  Employee recognizes and agrees that a breach by Employee of any covenant contained in this Agreement would cause immeasurable and irreparable harm to Employer.  In the event of a breach or threatened breach of any covenant contained herein, Employer shall be entitled to temporary and permanent injunctive relief, restraining Employee from violating or threatening to violate any covenant contained herein, as well as all costs and fees incurred by Employer, including attorneys’ fees, as a result of Employee’s breach or threatened breach of the covenant.  Employer and Employee agree that the relief described herein is in addition to such other and further relief as may be available to Employer at equity or by law.  Nothing herein shall be construed as prohibiting Employer from pursuing any other remedies available to it for such breach of threatened breach, including the recovery of damages from Employee.  Failure of the Employer to enforce any of the provisions of this Agreement or any rights with respect thereto shall in no way be considered a waiver of such provisions or rights or in any way otherwise affect the validity of this Agreement.

 

17.    Consideration .  Employee acknowledges and agrees that valid consideration has been given to Employee by Employer in return for the promises of Employee set forth herein.

 

18.    Covenants are Independent .  The covenants on the part of Employee contained herein shall each be construed as agreements independent of each other and of any other provisions in this Agreement and the unenforceability of one shall not affect the enforceability of the remaining covenants.

 

19.    Severability and Substitution of Valid Provisions .  To the extent that any provision or language of this Agreement is deemed unenforceable, by virtue of the scope of the business activity prohibited or the length of time the activity is prohibited, Employer and Employee agree that this Agreement shall be enforced to the fullest extent permissible under the laws and public policies of the State of South Carolina.

 

20.    Extension of Periods .  Each of the time periods described in this Agreement shall be automatically extended by any length of time during which Employee is in breach of the corresponding covenant contained herein.  The provisions of this Agreement shall continue in full force and effect throughout the duration of the extended periods.

 

 

 

 

21.    Reasonable Restraint .  It is agreed by the parties that the foregoing covenants in this Agreement are necessary for the legitimate business interests of Employer and impose a reasonable restraint on Employee in light of the activities and business of Employer on the date of the execution of this Agreement.

 

22.    Withholding of Taxes .  Employer may withhold from any amounts payable to Employee under this Agreement all federal, state, city or other taxes and withholdings as shall be required pursuant to any applicable law, rule or regulation.

 

23.    Notices .  Any notice required or permitted to be given under this Agreement shall be sufficient if given in writing and either personally delivered or sent by registered or certified mail to Employee’s residence in the case of Employee or to its principal office in the case of Employer.

 

24.    Assignment .  The rights and obligations of the parties to this Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of Employer.  This Agreement shall not be terminated by any merger or consolidation whether or not the Employer or the Company is the consolidated or surviving corporation or by transfer of all or substantially all of the assets of the Employer or the Company to another corporation if there is a surviving or resulting corporation in such transfer.

 

25.    Severability . It is not the intent of any party hereto to violate any public policy of any jurisdiction in which this Agreement may be enforced.  If any provision of this Agreement or the application of any provision hereof to any person or circumstances is held invalid, unenforceable or otherwise unlawful, the remainder of this Agreement and the application of such provision to any other person or circumstances shall not be affected.  In addition, the applicable provision shall be reformed to the extent (and only to the extent) necessary to make it valid, enforceable and legal.

 

26.    Certain Definitions .

 

(a)        “ Affiliate ” shall mean any business entity controlled by the Employer or the Company, controlling or under common control with the Employer or the Company.

                       

(b)        “ Cause ” shall consist of any of:

 

(i)         the commission by Employee of a willful act (including, without limitation, a dishonest or fraudulent act) or a grossly negligent act, or the willful or grossly negligent omission to act by Employee, which is intended to cause, causes or is reasonably likely to cause material harm to Employer (including harm to its business reputation);

 

(ii)        the indictment of Employee for the commission or perpetration by Employee of any felony or any crime involving dishonesty, moral turpitude or fraud;

 

(iii)       the material breach by Employee of this Agreement that, if susceptible of cure, remains uncured thirty (30) days following written notice to Employee of such breach;

 

 

 

 

(iv)       the receipt of any form of notice, written or otherwise, that any regulatory agency having jurisdiction over Employer intends to institute any form of formal or informal ( e.g. , a memorandum of understanding which relates to Employee’s performance) regulatory action against Employee or Employer ( provided that the Board determines in good faith, with Employee abstaining from participating in the consideration of and vote on the matter, that the subject matter of such action involves acts or omissions by or under the supervision of Employee or that termination of Employee would materially advance Employer’s compliance with the purpose of the action or would materially assist Employer in avoiding or reducing the restrictions or adverse effects to Employer related to the regulatory action);

 

(v)        the exhibition by Employee of a standard of behavior within the scope of Employee’s employment that is materially disruptive to the orderly conduct of Employer’s business operations (including, without limitation, substance abuse or sexual misconduct) to a level which, in the Board’s good faith and reasonable judgment, with Employee abstaining from participating in the consideration of and vote on the matter, is materially detrimental to Employer’s best interest, that, if susceptible of cure remains uncured ten (10) days following written notice to Employee of such specific inappropriate behavior; or

 

(vi)       the failure of Employee to devote Employee’s full business time and attention to Employee’s employment as provided under this Agreement that, if susceptible of cure, remains uncured thirty (30) days following written notice to Employee of such failure.

 

(c)        “ Change in Control ” shall mean the occurrence during the Term of any of the following events, unless such event is a result of a Non-Control Transaction:

 

 (i)        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 fifty percent (50%) of the Board of Directors of the Company; provided , however , that if the election, or nomination for election by the Company’s shareholders, of any new director was approved in advance by a vote of at least fifty percent (50%) of the Incumbent Board, such new director shall, for purposes of this Agreement, be considered as a member of the Incumbent Board; provided , further , that no individual shall be considered a member of the Incumbent Board if such individual initially assumed office as a result of either an actual or threatened election contest, or other actual or threatened solicitation of proxies or consents by or on behalf of any person other than the Board of Directors of the Company, including by reason of any agreement intended to avoid or settle any election contest or proxy contest;

 

(ii)        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 “Exchange Act”)) immediately after which such Person has “Beneficial Ownership” (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of twenty percent (20%) or more of the combined voting power of the Company’s then outstanding Voting Securities; provided , however , that in determining whether a Change in Control has occurred, Voting Securities which are acquired in a Non-Control Transaction shall not constitute an acquisition which would cause a Change in Control; 

 

 

 

(iii)       consummation of: (a) a merger, consolidation, or reorganization involving the Company; (b) a complete liquidation or dissolution of the Company; or (c) 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

 

(iv)       a notice of an application is filed with the South Carolina Board of Financial Institutions, the Office of Comptroller of the Currency (the “OCC”) or the Federal Reserve Board or any other bank or thrift regulatory approval (or notice of no disapproval) is granted by the Federal Reserve, South Carolina Board of Financial Institutions, the OCC, the Federal Deposit Insurance Corporation, or any other regulatory authority for permission to acquire control of the Company or any of its banking subsidiaries; provided , however , that if the application is filed in connection with a transaction which has been approved by the Board of Directors of the Company, then the Change in Control shall not be deemed to occur until consummation of the transaction.

 

(d)          “ Disability ” or “ Disabled ” shall mean as defined by Treasury Regulation       § 1.409A-3(i)(4).            

 

(e)          “ Good Reason ” shall mean the occurrence after a Change in Control of any of the events or conditions described in subsections (i) through (vii) hereof:

 

(i)            a change in the Employee’s status, title, position or responsibilities (including reporting responsibilities) which, in the Employee’s reasonable judgment, represents an adverse change from Employee’s status, title, position or responsibilities as in effect at any time within ninety (90) days preceding the date of a Change in Control or at any time thereafter; the assignment to the Employee of any duties or responsibilities which, in the Employee’s reasonable judgment, are inconsistent with Employee’s status, title, position or responsibilities as in effect at any time within ninety (90) days preceding the date of a Change in Control or at any time thereafter; any removal of the Employee from or failure to reappoint or reelect Employee to any of such offices or positions, except in connection with the termination of Employee’s employment for Disability or Cause, as a result of Employee’s death, or by the Employee other than for Good Reason, or any other change in condition or circumstances that in the Employee’s reasonable judgment makes it materially more difficult for the Employee to carry out the duties and responsibilities of the Employee’s office than existed at any time within ninety (90) days preceding the date of Change in Control or at any time thereafter;

 

(ii)          a reduction in the Employee’s Base Salary or any failure to pay the Employee any compensation or benefits to which Employee is entitled within five (5) days of the date due;

 

(iii)          the Employer’s requiring the Employee to be based at any place outside a thirty (30) - mile radius from the executive offices occupied by the Employee immediately prior to the Change in Control, except for reasonably required travel on the Employer’s business which is not materially greater than such travel requirements prior to the Change in Control;

 

 

 

(iv)          the failure by the Employer to (A) continue in effect (without reduction in benefit level and/or reward opportunities) any material compensation or employee benefit plan in which the Employee was participating at any time within ninety (90) days preceding the date of a Change in Control or at any time thereafter, unless such plan is replaced with a plan that provides substantially equivalent compensation or benefits to the Employee, or (B) provide the Employee with compensation and benefits, in the aggregate, at least equal (in terms of benefit levels and/or reward opportunities) to those provided for under each other employee benefit plan, program and practice in which the Employee was participating at any time within ninety (90) days preceding the date of a Change in Control or at any time thereafter;

 

(v)          the insolvency or the filing (by any party, including the Company or the Employer) of a petition for bankruptcy of the Company or the Employer, which petition is not dismissed within sixty (60) days;

 

(vi)          any material breach by the Employer of any material provision of this Agreement; or

 

(vii)        any purported termination of the Employee’s employment for Cause by the Employer which does not comply with the terms of this Agreement.

 

Any event or condition described in clause (i) through (vii) above which occurs prior to a Change in Control but which the Employee reasonably demonstrates (A) was at the request of a third party, or (B) otherwise arose in connection with, or in anticipation of, a Change in Control which actually occurs, shall constitute Good Reason for purposes of this Agreement, notwithstanding that it occurred prior to the Change in Control.  Employee’s right to terminate Employee’s employment for Good Reason shall not be affected by Employee’s incapacity due to physical or mental illness.

 

(f)        “ Non-Control Transaction ” shall mean a transaction described below:

 

            (i)         the shareholders of the Company, immediately before such merger, consolidation or reorganization own, directly or indirectly, immediately following such merger, consolidation or reorganization, at least fifty percent (50%) of the combined voting power of the outstanding voting securities of the corporation resulting from such merger, 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)        immediately following such merger, consolidation or reorganization, the number of directors on the board of directors of the Surviving Corporation who were members of the Incumbent Board shall at least equal the number of directors who were affiliated with or appointed by the other party to the merger, consolidation or reorganization.

 

(g)        “ Notice of Termination ” shall mean a written notice of termination from one party to the other which specifies an effective date of termination, indicates the specific termination provision in this Agreement relied upon, and, in the case of a termination for Good Reason or for Cause, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Employee’s employment under the provision so indicated.

 

 

 

 

(h)        “ Terminate ”, “ terminated ”, “ termination ”, or “ Termination of Employment ” shall mean separation from service as defined by Treasury Regulation § 1.409A-1(h).

 

27.    Entire Agreement .  This Agreement supersedes any other agreements, oral or written, between the parties with respect to the subject matter hereof, and contains all of the agreements and understandings between the parties with respect to the employment of Employee by Employer.  Any waiver or modification of any term of this Agreement shall be effective only if it is set forth in writing signed by all parties hereto.

 

28.    Counterparts .  This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same agreement.

 

 

 

            IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.

 

                                                                        EMPLOYER:

 

                                                                        SOUTHERN FIRST BANK,

NATIONAL ASSOCIATION

 

 

 

[CORPORATE SEAL]                                     By:       /s/James B. Orders, III                       

                                                                             Name: James B. Orders, III

Attest:                                                                   Title: Chairman of the Board

 

 

                                               

Secretary

 

                                                                       

           

                                                                        EMPLOYEE:

 

 

 

                                                                         /s/ Frederick Gilmer, III        

                                                                        Frederick Gilmer, III

 

 

 

 

 

 

 

 

Exhibit 10.7

 

EMPLOYMENT AGREEMENT

 

 

            THIS EMPLOYMENT AGREEMENT (this “Agreement”) is made as of and effective on the 17 ^th  day of November , 2008 (the “ Effective Date”) by and between Southern First Bank, National Association (the “Employer”), having its principal office at 100 Verdae Boulevard, Suite 100, Greenville, South Carolina 29607 and J. Edward Terrell (hereinafter called “Employee”), whose residence address is 510 Spaulding Farm Road, Greenville, South Carolina 29613.  References herein to the “Company” refer to Southern First Bancshares, Inc., the parent company of the Employer.

 

            Employer presently employs Employee as an Executive Vice President.  Employer desires to provide for the continued employment of Employee and to make certain changes in Employee’s employment arrangements which Employer has determined will reinforce and encourage the continued dedication of Employee to Employer.  Employee is willing to terminate Employee’s interests and rights under the existing Employment Agreement with Employer and to continue to serve Employer on the terms and conditions herein provided.

 

            In consideration of the mutual covenants and promises herein made, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1.    Employment .  Employer shall continue to employ Employee, and Employee shall continue to serve Employer, as an Executive Vice President and in such capacity shall perform such duties as are consistent with that position, and as Employer from time to time may direct.   Employee shall have such authority and responsibilities consistent with Employee’s position as are set forth in Employer’s Bylaws or assigned by Employer’s Board of Directors (the “Board”), Employer’s Chief Executive Officer, or Employer’s President from time to time.  Employee shall devote Employee’s full business time, attention, skill and efforts to the performance of Employee’s duties hereunder, except during periods of illness or periods of vacation and leaves of absence consistent with Employer’s policy.  Such duties shall be performed at Employer’s principal corporate offices or subsidiary offices as agreed upon by Employer and Employee.  Employer reserves the right from time to time to extend, curtail or change the title and duties of Employee.  Employee may devote reasonable periods to service as a director or advisor to other organizations, to charitable and community activities, and to managing Employee’s personal investments; provided that such activities do not materially interfere with the performance of Employee’s duties hereunder and are not in conflict or competitive with, or adverse to, the interests of Employer.

 

2.    Term .  Unless earlier terminated as provided in section 13 below, Employee’s employment under this Agreement shall commence on the Effective Date and be for a term ending January 31, 2011 (the “Term”).  At the end of January 2010 and on the last day of January each year thereafter, the Term shall be extended for an additional one (1) year so that the remaining Term shall continue to be two (2) years; provided that Employer or Employee may at any time, by written notice, fix the Term to a finite term of two (2) years commencing with the year of the notice. 

 

 

 

 

3.    Base Salary .  For all services rendered by Employee under this Agreement, Employer shall pay Employee a base salary of $148,000.00 per year (the “Base Salary”).  The Base Salary shall be reviewed annually by the Board, and may be increased beginning February 1 of each year, by the Board or a duly appointed committee thereof, in its sole discretion.  The Base Salary shall be paid in accordance with Employer’s standard payroll procedures, but in any case, no less frequently than monthly.

            Notwithstanding anything in this Agreement to the contrary, any payments to the Employee shall be limited to the extent required under the United States Treasury Capital Purchase Program (the "Program") and related regulations in the event that the Employer or its holding company participates in the Program.  The Employee agrees to such amendments, agreements, or waivers that may be required by the United States Treasury or requested by the Employer or its holding company to comply with the terms of the Program.

 

4.    Benefits . 

 

(a)        Employee shall be entitled, to the extent that Employee’s position, title, tenure, salary, age, health and other qualifications make Employee eligible, to participate in such pension, profit sharing, bonus, life insurance, hospitalization, major medical, and other employee benefit plans or programs of Employer currently in existence on the date hereof or later established that generally are provided to executive employees of Employer.  Employee’s participation in any such plan or program shall be subject to the provisions, rules and regulations applicable thereto.  Any Company stock options or similar awards shall be issued to Employee at an exercise price per share of not less than the fair market value per share of the corresponding shares as of the date of grant and the number of shares subject to such grant shall be fixed on such date.  Any and all bonus payments made to Employee shall be paid by the earlier of: (i) seventy (70) days after the previous year end for which the bonus was earned by Employee and became a payable of Employer or (ii) with the first payroll cycle following the Company’s press release announcing its previous year’s financial performance.

 

(b)        At Employer’s election, Employer shall provide Employee with either an automobile owned or leased by Employer of a make and model appropriate to Employee’s status, or a $700 monthly automobile allowance, paid in accordance with Employer’s standard payroll procedures, but in any case, no less frequently than monthly.  If Employer provides Employee with an automobile instead of a monthly automobile allowance, Employer shall reimburse Employee for reasonable expenses associated with the automobile, including, but not limited to, insurance, taxes, mileage, maintenance, etc., to be paid within sixty (60) days of Employee’s written notice to Employer of such expenses. 

 

(c)        Employer shall reimburse Employee, or pay directly, for Employee’s annual membership dues at the Greenville Country Club, in a reasonable amount per year, for so long as the Employee remains an Employee of Employer and this Agreement remains in force.  Employer shall reimburse Employee, or pay directly, for such annual membership dues within sixty (60) days of Employee’s written notice to Employer of such expenses.

 

5.    Working Facilities .  Employee shall be furnished with an office and such other facilities and services as may be necessary or suitable to Employee’s position and adequate for the performance of Employee’s duties.

 

 

 

6.    Expenses .  Employee is authorized to incur reasonable expenses for promoting the business of Employer, including expenses for entertainment, travel and similar items, but only to the extent that such expenses are allowable deductions to Employer on its Federal income tax return.  Expenses for which there is a fifty percent (50%) tax deduction limitation for entertainment, travel and similar items shall be considered reimbursable expenses.  Employer shall reimburse Employee for all such expenses within sixty (60) days of Employee’s written notice to Employer of such expenses.  Employee shall repay to Employer the amounts of any expenses claimed which, for lack of proper documentation or otherwise, are not allowed to Employer as deductions for Federal income tax purposes.

 

7.    Vacations .  Employee shall be entitled each fiscal year to twenty (20) paid days off, which shall be granted on a noncumulative basis from year-to-year, as granted by Employer to employees of similar tenure and compensation rank, pursuant to Employer’s paid days off policy.  Employer reserves the right to modify this and any other personnel policy from time to time.

 

8.    Ownership of Work Product .

 

(a)           Employee shall diligently disclose to Employer as soon as it is created or conceived by Employee, and Employer shall own, all Work Product (as defined below).  To the extent permitted by law, all Work Product shall be considered work made for hire by Employee and owned by Employer.

 

(b)            If any of the Work Product may not, by operation of law, be considered work made for hire by Employee for Employer (or if ownership of all right, title and interest of the intellectual property rights therein shall not otherwise vest exclusively in Employer), Employee agrees to assign, and upon creation thereof automatically assigns, without further consideration, the ownership of all Work Product to Employer, its successors and assigns.

 

(c)            Employer, its successors and assigns, shall have the right to obtain and hold in its or their own name copyrights, registrations, and any other protection available in the foregoing.

 

(d)            Employee agrees to perform upon the reasonable request of Employer, during or after Employee’s employment, such further acts as may be necessary or desirable to transfer, perfect and defend Employer’s ownership of the Work Product.  When requested, Employee will:

 

(i)            Execute, acknowledge and deliver any requested affidavits and documents of assignment and conveyance;

 

(ii)          Obtain and aid in the enforcement of copyrights (and, if applicable, patents) with respect to the Work Product in any countries;

 

(iii)         Provide testimony in connection with any proceeding affecting the right, title or interest of Employer in any Work Product; and

 

(iv)         Perform any other acts deemed necessary or desirable to carry out the purposes of this Agreement.

 

(e)            Employer shall reimburse all reasonable out-of-pocket expenses incurred by Employee at Employer’s request in connection with subsection 8(d) within sixty (60) days of Employee’s written notice to Employer of such expenses.

 

 

 

 

(f)             For purposes hereof, “Work Product” shall mean all intellectual property rights, including all Trade Secrets (as defined below), U.S. and international copyrights, patentable inventions, discoveries and improvements, and other intellectual property rights, in any programming, documentation, technology or other work product that relates to the business and interests of Employer and that Employee conceives, develops, or delivers to Employer at any time during the Term of Employee’s employment.  “Work Product” shall also include all intellectual property rights in any programming, documentation, technology or other work product that is now contained in any of the products or systems (including development and support systems) of Employer to the extent Employee conceived, developed or delivered such Work Product to Employer prior to the date of this Agreement while Employee was engaged as an independent contractor or employee of Employer.  Employee hereby irrevocably relinquishes for the benefit of Employer and its assigns any moral rights in the Work Product recognized by applicable law.

 

9.    Protection of Trade Secrets and Confidential Information . 

 

(a)            Through exercise of Employee’s rights and performance of Employee’s obligations under this Agreement, Employee will be exposed to “Trade Secrets” and “Confidential Information” (as those terms are defined below).  “Trade Secrets” shall mean information or data of or about Employer or any Affiliates (as defined in subsection 26(a)), including, but not limited to, technical or non-technical data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data, financial plans, product plans, or lists of actual or potential customers, clients, distributors, or licensees, that: (i) derive economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from their disclosure or use; and (ii) are the subject of efforts that are reasonable under the circumstances to maintain their secrecy.  To the extent that the foregoing definition is inconsistent with the definition of “trade secret” mandated under applicable law, the latter definition shall govern for purposes of interpreting Employee’s obligations under this Agreement.  Except as required to perform Employee’s obligations under this Agreement, or except with Employer’s prior written permission, Employee shall not use, redistribute, market, publish, disclose or divulge to any other person or entity any Trade Secrets of Employer.  Employee’s obligations under this provision shall remain in force (during and after the Term) for so long as such information or data shall continue to constitute a Trade Secret under applicable law.  Employee agrees to cooperate with any and all confidentiality requirements of Employer, and Employee shall immediately notify Employer of any unauthorized disclosure or use of any Trade Secrets of which Employee becomes aware.

 

(b)            Employee agrees to maintain in strict confidence and, except as necessary to perform Employee’s duties for Employer, not to use or disclose any Confidential Information at any time, either during the Term of Employee’s employment or for a period of one (1) year after Employee’s last date of employment, so long as the pertinent data or information remains Confidential Information.  “Confidential Information” shall mean any non-public information of a competitively sensitive or personal nature, other than Trade Secrets, acquired by Employee during Employee’s employment, relating to Employer or Employer’s business, operations, customers, suppliers, products, employees, financial affairs or industrial practices.  Notwithstanding anything herein to the contrary, no obligation or liability shall accrue hereunder with respect to any information that is or becomes publicly available without the fault of Employee.

 

 

 

(c)            Employee will abide by Employer’s policies and regulations, as established from time to time, for the protection of its Confidential Information.  Employee acknowledges that all records, files, data, documents, and the like relating to suppliers, customers, costs, prices, systems, methods, personnel, technology and other materials relating to Employer or its Affiliated entities shall be and remain the sole property of Employer and/or such Affiliated entity.  Employee agrees, upon the request of Employer, and in any event upon termination of Employee’s employment, to turn over all copies of all media, records, documentation, etc., pertaining to Employer (together with a written statement certifying as to Employee’s compliance with the foregoing).

 

10.    Non-Solicitation of Customers .  During the Employee’s employment with the Employer and for a period of one (1) year following termination or expiration of this Agreement, Employee shall not (except on behalf of or with the prior written consent of the Employer) directly or indirectly solicit any individual or entity which was a customer or client of Employer or any of its Affiliates for the purpose of providing a service or product to such customer or client which is the same type of service or product offered or provided by Employer or any of its Affiliates; provided , however , that this restriction shall apply only to those customers or clients with whom Employee had contact in connection with services or products provided by Employer or any of its Affiliates within two (2) years prior to the date of termination of such employment.

 

11.    Non-Solicitation of Employees .  During the Employee’s employment with the Employer and for a period of one (1) year following termination or expiration of this Agreement, Employee shall not, directly or indirectly, on the Employee’s own behalf or in the service of or on behalf of others, induce or solicit, or attempt to induce or solicit, for employment purposes or for any type of consulting purposes any employee of or consultant to the Employer or any of its Affiliates for the purpose of providing services that are the same or similar to the types of services offered or engaged in by any employee of or consultant to the Employer or any of its Affiliates at the time of termination of Employee’s employment with Employer. 

 

12.    Non-Competition Agreement .  During Employee’s employment with the Employer and for a period of one (1) year following termination or expiration of this Agreement, Employee shall not (without the prior written consent of Employer) compete with Employer or any of its Affiliates, directly or indirectly, engage in forming, serving as an organizer, director, officer of, employee or agent, or consultant to, or acquiring or maintaining more than a one percent (1%) passive investment in, a depository financial institution or holding company thereof if such depository institution or holding company has, or upon formation will have, one or more offices or branches located within thirty (30) miles of any office or branch of Employer or any of its Affiliates in existence at the time Employee’s employment with Employer is terminated (the “Territory”).  Notwithstanding the foregoing, Employee may serve as an officer of or consultant to a depository institution or holding company thereof even though such institution operates one or more offices or branches in the Territory, if Employee’s employment does not directly involve, in whole or in part, the depository financial institution’s or holding company’s operations in the Territory. 

 

13.    Termination .

 

(a)            Employee’s employment under this Agreement may be terminated prior to the end of the Term only as follows:

 

(i)            upon the death of Employee;

 

(ii)          by Employer upon the Disability (as defined in subsection 26(d)) of Employee for a period of one hundred and eighty (180) days;

 

(iii)         by Employer for Cause (as defined in subsection 26(b)) upon delivery of a Notice of Termination (as defined in subsection 26(g)) to Employee;

 

 

 

(iv)         by Employer without Cause upon delivery of a Notice of Termination to Employee;

 

(v)          by Employee for Good Reason (as defined in subsection 26(e)) upon delivery of a Notice of Termination to the Employer within a ninety (90) day period beginning on the thirtieth (30 ^th ) day after the occurrence of a Change in Control (as defined in subsection 26(c)) or within a ninety (90) day period beginning on the one (1) year anniversary of the occurrence of a Change in Control; or

 

(vi)         by Employee upon delivery of a Notice of Termination to Employer.

 

(b)            If Employee’s employment is terminated because of the Employee’s death, Employer shall pay Employee’s estate:

                       

(i)         any sums due Employee as Base Salary and/or reimbursement of expenses through the end of the month during which death occurred, paid in accordance with Employer’s standard payroll procedures, but in any case, no less frequently than monthly; and

 

(ii)        any bonus earned or accrued through the date of death.  Any bonus for previous years which was not yet paid will be paid pursuant to the terms as set forth in section 4(a).  Any bonus that is earned in the year of death will be paid on the earlier of: (i) seventy (70) days after the year end in which the Employee died or (ii) with the first payroll cycle following the Company’s press release announcing its financial performance for the year in which the Employee died.  To the extent that the bonus is performance-based, the amount of the bonus will be calculated by taking into account the performance of the Employer for the entire year and prorating this through the date of Employee’s death. 

           

(c)            During the period of any Disability leading up to the termination of Employee’s employment as a result of the Disability, Employer shall:

 

(i)         continue to pay the Employee’s full Base Salary at the rate then in effect and all perquisites and other benefits (other than any bonus) in accordance with Employer’s standard payroll procedures, but in any case, no less frequently than monthly, until Employee becomes eligible for benefits under any long-term disability plan or insurance program maintained by Employer; provided that the amount of any such payments to Employee shall be reduced by the sum of the amounts, if any, payable to Employee for the same period under any disability benefit or pension plan covering the Employee; and

 

(ii)        pay Employee any bonus earned or accrued through the date of Disability.  Any bonus for previous years which was not yet paid will be paid pursuant to the terms as set forth in section 4(a).  Any bonus that is earned in the year of Disability will be paid on the earlier of: (i) seventy (70) days after the year end in which Employee became Disabled or (ii) with the first payroll cycle following the Company’s press release announcing its financial performance for the year in which the Employee became Disabled. 

 

 

 

(d)        If Employee’s employment is terminated for Cause, Employee shall receive only any sums due Employee as Base Salary and/or reimbursement of expenses through the date of termination, paid in accordance with Employer’s standard payroll procedures, but in any case, no less frequently than monthly.

 

(e)        If Employee’s employment is terminated by Employer without Cause, beginning on the date that is six (6) months and one (1) day following the date of the Employee’s termination, and continuing on the first day of the month for the next twelve (12) months, the Employer shall pay to the Employee severance compensation in cash in an amount equal to one hundred percent (100%) of the Employee’s Base Salary at the date of termination.  Employer shall also pay Employee any bonus earned or accrued through the date of termination.  Any bonus for previous years which was not yet paid will be paid in a lump sum on the date that is six (6) months and one (1) day following the date of the Employee’s termination.  Any bonus that is earned in the year of the Employee’s termination will be paid on the later of: (i) the date that is six (6) months and one (1) day following the date of the Employee’s termination or (ii) with the first payroll cycle following the Company’s press release announcing its financial performance for the year of the Employee’s termination.  The restrictive covenants contained in sections 10, 11 and 12 shall not apply to Employee.

 

(f)        If Employee’s employment is terminated by Employee for Good Reason, in addition to other rights and remedies available in law or equity, Employee shall be entitled to the following:

 

(i)         Employer shall pay Employee, beginning on the date that is six (6) months and one (1) day following the date of the Employee’s termination, and continuing on the first day of the month for the next twelve (12) months, severance compensation in cash in an amount equal to one hundred percent (100%) of the Employee’s Base Salary at the date of termination.  Employer shall also pay Employee any bonus earned or accrued through the date of termination.  Any bonus for previous years which was not yet paid will be paid in a lump sum on the date that is six (6) months and one (1) day following the date of the Employee’s termination.  Any bonus that is earned in the year of the Employee’s termination will be paid on the later of: (i) the date that is six (6) months and one (1) day following the date of the Employee’s termination or (ii) with the first payroll cycle following the Company’s press release announcing its financial performance for the year of the Employee’s termination;

 

 

 

 

(ii)        for the period from the date of termination through the date that Employee attains the age of sixty-five (65) years (the “Continuation Period”), Employer shall at its expense continue on behalf of Employee and Employee’s spouse, dependents and beneficiaries the life insurance, disability, medical, dental, and hospitalization benefits provided (x) to Employee at any time during the ninety (90) day period prior to the Change in Control or at any time thereafter or (y) to other similarly situated executives who continue in the employ of Employer during the Continuation Period.  Such coverage and benefits (including deductibles and costs) shall be no less favorable to Employee, Employee’s spouse, dependents and beneficiaries than the most favorable of such coverages and benefits during any of the periods referred to above.  Employer’s obligation hereunder with respect to the foregoing benefits shall be limited to the extent that Employee obtains any such benefits pursuant to a subsequent employer’s benefit plans, in which case Employer may reduce the coverage of any benefits it is required to provide Employee hereunder as long as the aggregate coverages and benefits of the combined benefit plans is no less favorable to Employee than the coverages and benefits required to be provided hereunder.  This subsection (ii) shall not be interpreted so as to limit any benefits to which Employee, Employee’s spouse, dependents or beneficiaries may be entitled under any of Employer’s employee benefit plans, programs, or practices following Employee’s termination of employment, including, without limitation, retiree medical and life insurance benefits;

 

(iii)       the restrictions on any outstanding incentive awards (including restricted stock) granted to Employee under the Company’s or the Employer’s long-term equity incentive program or any other incentive plan or arrangement shall lapse and become one hundred percent (100%) vested and any Employee election rights thereto must be exercised contemporaneously with the Change in Control;

 

(iv)       all stock options and stock appreciation rights granted to Employee shall become immediately exercisable and shall become one hundred percent (100%) vested and must be exercised, if exercised, contemporaneously with the Change in Control;

 

(v)        all performance units granted to Employee shall become one hundred percent (100%) vested and any compensation associated with such units must be paid contemporaneously with the Change in Control; and

 

(vi)       the restrictive covenants contained in sections 10, 11 and 12 shall not apply to Employee.

 

(g)        If Employee’s employment is terminated by Employee without Good Reason, Employee shall receive only any sums due Employee as Base Salary and/or reimbursement of expenses through the date of termination, paid in accordance with Employer’s standard payroll procedures, but in any case, no less frequently than monthly.

 

(h)        With the exceptions of the provisions of this section 13, and the express terms of any benefit plan under which Employee is a participant, it is agreed that, upon Employee’s Termination of Employment, Employer shall have no obligation to Employee for, and Employee waives and relinquishes, any further compensation or benefits (exclusive of COBRA benefits).  Unless otherwise stated in this section 13, the effect of termination on any outstanding incentive awards, stock options, stock appreciation rights, performance units, or other incentives shall be governed by the terms of the applicable benefit or incentive plan and/or the agreements governing such incentives.  At the time of Termination of Employment, Employer and Employee shall enter into a mutually satisfactory form of release acknowledging such remaining obligations and discharging both parties, as well as Employer’s officers, directors and employees with respect to their actions for or on behalf of Employer, from any other claims or obligations arising out of or in connection with Employee’s employment by Employer, including the circumstances of such termination.

 

 

 

(i)         The parties intend that the severance payments and other compensation provided for herein are reasonable compensation for Employee’s services to Employer and shall not constitute “excess parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “I.R.C.”), and any regulations thereunder.  In the event that Employer’s independent accountants acting as auditors for Employer on the date of a Change in Control determine that the payments provided for herein constitute “excess parachute payments,” then the compensation payable hereunder shall be increased, on a tax gross-up basis, so as to reimburse Employee for the tax payable by Employee, pursuant to Section 4999 of the I.R.C., on such “excess parachute payments,” taking into account all taxes payable by Employee with respect to such tax gross-up payments hereunder, so that Employee shall be, after payment of all taxes, in the same financial position as if no taxes under Section 4999 of I.R.C. had been imposed upon Employee.

 

14.    Oral Modification Not Binding .  This Agreement supersedes all prior agreements and understandings between the parties and may not be changed or terminated orally, and no change or attempted waiver of the provisions hereof shall be binding unless in writing and signed by the party against whom the same is sought to be enforced; provided , however , that Employee’s compensation may be increased at any time by Employer without in any way affecting any of the other terms and conditions of this Agreement, which in all other respects shall remain in full force and effect. 

 

15.    Governing Law .  This Agreement has been entered into in the State of South Carolina and shall be governed by the laws of such State without giving effect to the conflict of laws principles thereof.  Any action brought by any party to this Agreement shall be brought and maintained in a court of competent jurisdiction in the State of South Carolina.

 

16.    Remedies for Breach; Non-Waiver .  Employee recognizes and agrees that a breach by Employee of any covenant contained in this Agreement would cause immeasurable and irreparable harm to Employer.  In the event of a breach or threatened breach of any covenant contained herein, Employer shall be entitled to temporary and permanent injunctive relief, restraining Employee from violating or threatening to violate any covenant contained herein, as well as all costs and fees incurred by Employer, including attorneys’ fees, as a result of Employee’s breach or threatened breach of the covenant.  Employer and Employee agree that the relief described herein is in addition to such other and further relief as may be available to Employer at equity or by law.  Nothing herein shall be construed as prohibiting Employer from pursuing any other remedies available to it for such breach of threatened breach, including the recovery of damages from Employee.  Failure of the Employer to enforce any of the provisions of this Agreement or any rights with respect thereto shall in no way be considered a waiver of such provisions or rights or in any way otherwise affect the validity of this Agreement.

 

17.    Consideration .  Employee acknowledges and agrees that valid consideration has been given to Employee by Employer in return for the promises of Employee set forth herein.

 

18.    Covenants are Independent .  The covenants on the part of Employee contained herein shall each be construed as agreements independent of each other and of any other provisions in this Agreement and the unenforceability of one shall not affect the enforceability of the remaining covenants.

 

19.    Severability and Substitution of Valid Provisions .  To the extent that any provision or language of this Agreement is deemed unenforceable, by virtue of the scope of the business activity prohibited or the length of time the activity is prohibited, Employer and Employee agree that this Agreement shall be enforced to the fullest extent permissible under the laws and public policies of the State of South Carolina.

 

 

 

 

20.    Extension of Periods .  Each of the time periods described in this Agreement shall be automatically extended by any length of time during which Employee is in breach of the corresponding covenant contained herein.  The provisions of this Agreement shall continue in full force and effect throughout the duration of the extended periods.

 

21.    Reasonable Restraint .  It is agreed by the parties that the foregoing covenants in this Agreement are necessary for the legitimate business interests of Employer and impose a reasonable restraint on Employee in light of the activities and business of Employer on the date of the execution of this Agreement.

 

22.    Withholding of Taxes .  Employer may withhold from any amounts payable to Employee under this Agreement all federal, state, city or other taxes and withholdings as shall be required pursuant to any applicable law, rule or regulation.

 

23.    Notices .  Any notice required or permitted to be given under this Agreement shall be sufficient if given in writing and either personally delivered or sent by registered or certified mail to Employee’s residence in the case of Employee or to its principal office in the case of Employer.

 

24.    Assignment .  The rights and obligations of the parties to this Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of Employer.  This Agreement shall not be terminated by any merger or consolidation whether or not the Employer or the Company is the consolidated or surviving corporation or by transfer of all or substantially all of the assets of the Employer or the Company to another corporation if there is a surviving or resulting corporation in such transfer.

 

25.    Severability . It is not the intent of any party hereto to violate any public policy of any jurisdiction in which this Agreement may be enforced.  If any provision of this Agreement or the application of any provision hereof to any person or circumstances is held invalid, unenforceable or otherwise unlawful, the remainder of this Agreement and the application of such provision to any other person or circumstances shall not be affected.  In addition, the applicable provision shall be reformed to the extent (and only to the extent) necessary to make it valid, enforceable and legal.

 

26.    Certain Definitions .

 

(a)        “ Affiliate ” shall mean any business entity controlled by the Employer or the Company, controlling or under common control with the Employer or the Company.

                       

(b)        “ Cause ” shall consist of any of:

 

(i)         the commission by Employee of a willful act (including, without limitation, a dishonest or fraudulent act) or a grossly negligent act, or the willful or grossly negligent omission to act by Employee, which is intended to cause, causes or is reasonably likely to cause material harm to Employer (including harm to its business reputation);

 

(ii)        the indictment of Employee for the commission or perpetration by Employee of any felony or any crime involving dishonesty, moral turpitude or fraud;

 

(iii)       the material breach by Employee of this Agreement that, if susceptible of cure, remains uncured thirty (30) days following written notice to Employee of such breach;

 

 

 

 

(iv)       the receipt of any form of notice, written or otherwise, that any regulatory agency having jurisdiction over Employer intends to institute any form of formal or informal ( e.g. , a memorandum of understanding which relates to Employee’s performance) regulatory action against Employee or Employer ( provided that the Board determines in good faith, with Employee abstaining from participating in the consideration of and vote on the matter, that the subject matter of such action involves acts or omissions by or under the supervision of Employee or that termination of Employee would materially advance Employer’s compliance with the purpose of the action or would materially assist Employer in avoiding or reducing the restrictions or adverse effects to Employer related to the regulatory action);

 

(v)        the exhibition by Employee of a standard of behavior within the scope of Employee’s employment that is materially disruptive to the orderly conduct of Employer’s business operations (including, without limitation, substance abuse or sexual misconduct) to a level which, in the Board’s good faith and reasonable judgment, with Employee abstaining from participating in the consideration of and vote on the matter, is materially detrimental to Employer’s best interest, that, if susceptible of cure remains uncured ten (10) days following written notice to Employee of such specific inappropriate behavior; or

 

(vi)       the failure of Employee to devote Employee’s full business time and attention to Employee’s employment as provided under this Agreement that, if susceptible of cure, remains uncured thirty (30) days following written notice to Employee of such failure.

 

(c)        “ Change in Control ” shall mean the occurrence during the Term of any of the following events, unless such event is a result of a Non-Control Transaction:

 

 (i)        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 fifty percent (50%) of the Board of Directors of the Company; provided , however , that if the election, or nomination for election by the Company’s shareholders, of any new director was approved in advance by a vote of at least fifty percent (50%) of the Incumbent Board, such new director shall, for purposes of this Agreement, be considered as a member of the Incumbent Board; provided , further , that no individual shall be considered a member of the Incumbent Board if such individual initially assumed office as a result of either an actual or threatened election contest, or other actual or threatened solicitation of proxies or consents by or on behalf of any person other than the Board of Directors of the Company, including by reason of any agreement intended to avoid or settle any election contest or proxy contest;

 

 

 

(ii)        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 “Exchange Act”)) immediately after which such Person has “Beneficial Ownership” (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of twenty percent (20%) or more of the combined voting power of the Company’s then outstanding Voting Securities; provided , however , that in determining whether a Change in Control has occurred, Voting Securities which are acquired in a Non-Control Transaction shall not constitute an acquisition which would cause a Change in Control; 

 

(iii)       consummation of: (a) a merger, consolidation, or reorganization involving the Company; (b) a complete liquidation or dissolution of the Company; or (c) 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

 

(iv)       a notice of an application is filed with the South Carolina Board of Financial Institutions, the Office of Comptroller of the Currency (the “OCC”) or the Federal Reserve Board or any other bank or thrift regulatory approval (or notice of no disapproval) is granted by the Federal Reserve, South Carolina Board of Financial Institutions, the OCC, the Federal Deposit Insurance Corporation, or any other regulatory authority for permission to acquire control of the Company or any of its banking subsidiaries; provided , however , that if the application is filed in connection with a transaction which has been approved by the Board of Directors of the Company, then the Change in Control shall not be deemed to occur until consummation of the transaction.

 

(d)          “ Disability ” or “ Disabled ” shall mean as defined by Treasury Regulation       § 1.409A-3(i)(4).            

 

(e)          “ Good Reason ” shall mean the occurrence after a Change in Control of any of the events or conditions described in subsections (i) through (vii) hereof:

 

(i)            a change in the Employee’s status, title, position or responsibilities (including reporting responsibilities) which, in the Employee’s reasonable judgment, represents an adverse change from Employee’s status, title, position or responsibilities as in effect at any time within ninety (90) days preceding the date of a Change in Control or at any time thereafter; the assignment to the Employee of any duties or responsibilities which, in the Employee’s reasonable judgment, are inconsistent with Employee’s status, title, position or responsibilities as in effect at any time within ninety (90) days preceding the date of a Change in Control or at any time thereafter; any removal of the Employee from or failure to reappoint or reelect Employee to any of such offices or positions, except in connection with the termination of Employee’s employment for Disability or Cause, as a result of Employee’s death, or by the Employee other than for Good Reason, or any other change in condition or circumstances that in the Employee’s reasonable judgment makes it materially more difficult for the Employee to carry out the duties and responsibilities of the Employee’s office than existed at any time within ninety (90) days preceding the date of Change in Control or at any time thereafter;

 

(ii)          a reduction in the Employee’s Base Salary or any failure to pay the Employee any compensation or benefits to which Employee is entitled within five (5) days of the date due;

 

 

 

 

(iii)          the Employer’s requiring the Employee to be based at any place outside a thirty (30) - mile radius from the executive offices occupied by the Employee immediately prior to the Change in Control, except for reasonably required travel on the Employer’s business which is not materially greater than such travel requirements prior to the Change in Control;

 

(iv)          the failure by the Employer to (A) continue in effect (without reduction in benefit level and/or reward opportunities) any material compensation or employee benefit plan in which the Employee was participating at any time within ninety (90) days preceding the date of a Change in Control or at any time thereafter, unless such plan is replaced with a plan that provides substantially equivalent compensation or benefits to the Employee, or (B) provide the Employee with compensation and benefits, in the aggregate, at least equal (in terms of benefit levels and/or reward opportunities) to those provided for under each other employee benefit plan, program and practice in which the Employee was participating at any time within ninety (90) days preceding the date of a Change in Control or at any time thereafter;

 

(v)          the insolvency or the filing (by any party, including the Company or the Employer) of a petition for bankruptcy of the Company or the Employer, which petition is not dismissed within sixty (60) days;

 

(vi)          any material breach by the Employer of any material provision of this Agreement; or

 

(vii)        any purported termination of the Employee’s employment for Cause by the Employer which does not comply with the terms of this Agreement.

 

Any event or condition described in clause (i) through (vii) above which occurs prior to a Change in Control but which the Employee reasonably demonstrates (A) was at the request of a third party, or (B) otherwise arose in connection with, or in anticipation of, a Change in Control which actually occurs, shall constitute Good Reason for purposes of this Agreement, notwithstanding that it occurred prior to the Change in Control.  Employee’s right to terminate Employee’s employment for Good Reason shall not be affected by Employee’s incapacity due to physical or mental illness.

 

(f)        “ Non-Control Transaction ” shall mean a transaction described below:

 

            (i)         the shareholders of the Company, immediately before such merger, consolidation or reorganization own, directly or indirectly, immediately following such merger, consolidation or reorganization, at least fifty percent (50%) of the combined voting power of the outstanding voting securities of the corporation resulting from such merger, 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)        immediately following such merger, consolidation or reorganization, the number of directors on the board of directors of the Surviving Corporation who were members of the Incumbent Board shall at least equal the number of directors who were affiliated with or appointed by the other party to the merger, consolidation or reorganization.

 

 

 

 

(g)        “ Notice of Termination ” shall mean a written notice of termination from one party to the other which specifies an effective date of termination, indicates the specific termination provision in this Agreement relied upon, and, in the case of a termination for Good Reason or for Cause, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Employee’s employment under the provision so indicated.

 

(h)        “ Terminate ”, “ terminated ”, “ termination ”, or “ Termination of Employment ” shall mean separation from service as defined by Treasury Regulation § 1.409A-1(h).

 

27.    Entire Agreement .  This Agreement supersedes any other agreements, oral or written, between the parties with respect to the subject matter hereof, and contains all of the agreements and understandings between the parties with respect to the employment of Employee by Employer.  Any waiver or modification of any term of this Agreement shall be effective only if it is set forth in writing signed by all parties hereto.

 

28.    Counterparts .  This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same agreement.

 

 

 

 

 

 

 

 

            IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.

 

                                                                        EMPLOYER:

 

                                                                        SOUTHERN FIRST BANK,

NATIONAL ASSOCIATION

 

 

 

[CORPORATE SEAL]                                     By:  /s/James B. Orders, III    

                                                                             Name: James B. Orders, III

Attest:                                                                   Title: Member of the Board

 

 

                                               

Secretary

 

                                                                       

           

                                                                        EMPLOYEE:

 

 

 

                                                                          /s/J. Edward Terrell             

                                                                        J. Edward Terrell