Ex-10.1 Bill Marsh Form of Employment Agreement



 




Exhibit
10.1



EMPLOYMENT AND NON-COMPETITION AGREEMENT




          THIS EMPLOYMENT AND NON-COMPETITION AGREEMENT (this “Agreement”), made and entered
into this ___day of                     , 2007, between CapitalSouth Bank, an Alabama banking corporation
(“Employer”), and Mr. Bill Marsh (the “Executive”).




W I T N E S S E T H:




          WHEREAS, CapitalSouth Bancorp, a Delaware corporation and a registered bank holding company
(“CapitalSouth”), and Monticello Bancshares, Inc., a Florida corporation
(“Monticello”), have executed an Agreement and Plan of Merger (the “Merger
Agreement”), joined in by Mr. Jake Bowen, a resident of Duval County, Florida, pursuant to
which Monticello will be merged into CapitalSouth (the “Merger”), and it is contemplated,
but not required, that, in the sole discretion of CapitalSouth and in connection with the
consummation of the Merger Agreement and pursuant to the terms of a certain Bank Merger Agreement
(the “Bank Merger Agreement”), Monticello Bank, a federal savings bank (“Monticello
Bank”), will be merged with and into CapitalSouth Bank, an Alabama banking corporation
(“CapitalSouth Bank”);




          WHEREAS, the Executive is currently employed by Monticello and Monticello Bank as President;




          WHEREAS, pursuant to Section 5.15 of the Merger Agreement, following the Effective Time of the
Merger as that term is defined in the Merger Agreement (the “Effective Time”), Employer
desires to retain the services of the Executive and the Executive desires to be employed by
Employer for the term of this Agreement and upon the terms and conditions hereinafter described;




          WHEREAS, it is a condition precedent to the Merger that the Executive execute this Agreement;
and




          WHEREAS, the parties intend and desire that this Agreement supersede and replace in all
respects the Existing Agreement and any and all other employment and change of control agreements
or arrangements between the Executive and Monticello and Monticello Bank.




          NOW, THEREFORE, in consideration of the promises, mutual covenants set forth in this
Agreement, and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, do hereby agree as follows:




SECTION 1: EMPLOYMENT OF EXECUTIVE; DUTIES AND RESPONSIBILITIES




     1.1 Employment of Executive. Employer shall employ the Executive, and the Executive
shall provide services to Employer subject to the terms and conditions of this Agreement.



     1.2 Term of Agreement. The term of this Agreement and the commencement of employment
of the Executive by Employer shall begin on the Closing Date, as that term is



 









 




defined in the Merger Agreement (the “Closing Date”), and this Agreement and the
obligations of Employer hereunder (but not in derogation of the continuing obligations of Executive
hereunder) shall terminate on the last day of the 18th calendar month following the
Closing Date (the “Original Agreement Term”) unless employment of the Executive is sooner
terminated pursuant to the provisions of Section 3 hereof (the “Agreement Term”).




     1.3 Offices and Positions of Executive. During the Agreement Term, except as
otherwise mutually agreed by Employer and the Executive and subject to Section 3 hereof, the
Executive shall serve as a senior regional executive in the Jacksonville, Florida Market of
Employer, or in such other executive capacity in the Jacksonville, Florida Market of Employer for
which Executive is suited by background and training, as Employer, in Employer’s sole discretion,
deems appropriate.



     1.4 Duties and Responsibilities. During the Agreement Term, the Executive shall
perform such duties and responsibilities as the management of Employer shall assign to the
Executive from time to time and which can reasonably be expected to be performed by a person
serving in a similar position. The Executive agrees to devote such of his full business time and
energy to the business of Employer as is needed and shall perform his duties in a trustworthy and
business-like manner, all for the purposes of advancing the interests of Employer. The Executive
shall report to the Chief Executive Officer of Employer or his designee.



SECTION 2: COMPENSATION; REIMBURSEMENT; AND BENEFITS




     2.1 Base Salary. During the Agreement Term, Employer shall pay to the Executive an
aggregate annual base salary (the “Base Salary”) at a rate of $140,300 per annum, which
shall not be reduced at any time during the term of the Agreement Term. The Executive’s Base
Salary shall be subject to annual review in accordance with the
existing procedures of Employer.



     2.2 Payment of Base Salary. Employer shall pay the Base Salary due the Executive in
accordance with the policy of Employer as in effect from time to time for the payment of salaries.



     2.3 Other Benefits. The Executive shall be entitled to participate on the same basis
as other similarly situated personnel of CapitalSouth and its affiliates and subsidiaries in all
incentive and benefit programs or arrangements, including cash bonus and stock programs, made
available by CapitalSouth and its affiliates and subsidiaries to such employees; provided that it
is understood that the foregoing does not include any automobile or club dues allowance. For
purposes of such benefit programs or arrangements, the Executive shall be credited for the
Executive’s prior service with Monticello and Monticello Bank in accordance with Section 6.3 of the
Merger Agreement, and for purposes of such incentive programs or arrangements (including stock
programs), the Executive shall be credited for all of the Executive’s prior service with Monticello
and Monticello Bank. The Executive shall be subject to the appropriate performance bonus programs
in which other similarly situated personnel of CapitalSouth and its affiliates and subsidiaries
participate. As of the date of this Agreement, such appropriate performance bonus program is the
Executive Incentive Plan.



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     2.4 Business Expenses. Employer shall reimburse the Executive for all reasonable
expenses incurred by him in accordance with the standard policies and procedures of Employer in the
course of rendering his services pursuant to this Agreement; provided, however,
that the Executive shall promptly submit such reasonable documentation as may be requested by
Employer to verify such expenditures.



     2.5 Vacation. The Executive shall be afforded vacation in accordance with and under
the same terms and conditions as are applicable to similarly situated personnel of Employer and its
affiliates. The Executive shall take into consideration the needs of Employer in setting his
vacation schedule.



SECTION 3: TERMINATION OF EMPLOYMENT




     3.1 Termination of Agreement Term. The Agreement Term may be terminated in the
following manner:



          (a) Termination on Death or Disability. The Agreement Term shall automatically
terminate upon the death or Disability of the Executive. The term “Disability” shall mean
the Executive’s physical or mental incapacity, as certified by a physician, that renders him
incapable of performing the essential functions of the duties required of him by this Agreement for
six (6) months, even with reasonable accommodation.




          (b) Termination upon Notice. The Agreement may be terminated by the Executive upon
thirty (30) days’ written notice to Employer. The Agreement may be terminated by Employer for any
other reason other than for “Cause” (as defined in Section 3.1(d) hereof), upon notice and
continued payment of salary to the Executive.




          (c) Resignation for Good Reason. The Executive may resign from employment with
Employer and terminate the Agreement Term for good reason, other than after the occurrence of
circumstances constituting Cause (as defined in Section 3.1(d) below), upon the occurrence of any
of the following conditions (“Good Reason”): (i) Employer reduces the Executive’s then
present Base Salary during the Agreement Term; (ii) Employer requires the Executive’s relocation to
an office outside Duval, Clay, Nassau or St. Johns counties, Florida; or (iii) the assignment to
the Executive of any duties inconsistent with Executive’s position as a senior regional executive
of the Employer. In any such case, the Executive’s resignation for Good Reason shall be effective
by delivering to Employer, within thirty (30) days after the occurrence of one of the conditions
described above is known to the Executive, a written notice specifying a date for termination of
the Executive’s employment which is not less than thirty (30) days after the date of the notice,
provided, that the Executive cannot cure such “Good Reason,” to the satisfaction of the Executive,
during the thirty (30) day period, stating that the Executive is resigning for Good Reason as
contemplated by this Section 3.1(c), and setting forth in reasonable detail the facts and
circumstances claimed to provide a basis for the Executive’s resignation for Good Reason hereunder.




          (d) Termination For Cause. The Agreement Term may be terminated by Employer for
“Cause” at any time during the Agreement Term upon fifteen (15) days’ written notice to the
Executive, which notice shall state the facts constituting such “Cause,” provided,





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that the Executive cannot cure such “Cause,” to the satisfaction of CapitalSouth, during the
fifteen (15) day period. For the purpose of this Section 3.1(d), the term “Cause” shall mean (i)
willful misconduct or gross malfeasance, or an act or acts of gross negligence in the course of
employment; (ii) the Executive’s commission, conviction, admission or confession of any felony or
crime of moral turpitude; (iii) willful violation of any law, rule, regulation (other than traffic
violations or similar offenses) or final cease-and-desist order, (iv) if the Executive is removed
and/or permanently prohibited from participating in the conduct of the Employer’s affairs by an
order issued under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act (12 U.S.C.
Section 1818(e)(4) or (g)(1)); or (v) the existence of a substantial and objective act of
misfeasance or nonfeasance by the Executive which is plainly sufficient, under sound banking
principles (as recognized by the Alabama State Banking Department, the Federal Deposit Insurance
Corporation, or any other appropriate bank regulatory authority to the extent said agencies would
no longer approve the Executive to hold a comparable executive position), to conclude that the
Executive is unfit to continue in the capacities stated in this Agreement. Employer shall have the
power to temporarily suspend Executive, with pay, from duty if there is reasonable evidence of the
possibility of Cause until Cause is either proved or disproved; if disproved, full reinstatement
will immediately be effected.




     3.2 Consequences of Termination.



          (a) For Cause; Death or Disability; Without Good Reason. In the event Executive’s
employment is terminated (i) by Employer for Cause under Section 3.1(d) hereof, (ii) as a result of
the Executive’s death or Disability under Section 3.1(a) hereof, or (iii) by the Executive under
Section 3.1(b) hereof, Employer shall be under no further obligation to make payments or provide
benefits to the Executive, except for Base Salary earned but unpaid at the time of such
termination, payment for accrued vacation, reimbursable expenses incurred by but not yet reimbursed
to the Executive at the time of such termination, any earned but unpaid incentive awards due to the
Executive, vested accrued retirement benefits, group health and any other benefits coverage that is
required to be continued by applicable law.




          (b) Other than for Cause; Resignation for Good Reason. In the event the Executive’s
employment is terminated by Employer other than for Cause under Section 3.1(d) hereof or the
Executive resigns for Good Reason under Section 3.1(c) hereof, Employer shall pay to the Executive
an amount equal to the product of $140,300 (or Executive’s then present salary, if it is different)
multiplied by a fraction, the denominator of which is 365 and the numerator of which is the number
of days remaining in the Original Agreement Term, and shall be paid semi-monthly during the
remainder of what would have been the Original Agreement Term, beginning on the next normal
semi-monthly payroll of Employer following separation from service.




          (c) Obligation of Employer to Make the Payments Under Section 3.2(b) Hereof.
Compliance by the Executive with Section 4 hereof is a condition precedent to Employer’s obligation
to make, or to continue to make, the payments referred to in Section 3.2(b) hereof.




          (d) Employee Benefits. Following termination or expiration of this Agreement, whether
terminated pursuant to the terms of this Agreement or due to the expiration of the term of this
Agreement, the Executive shall not be entitled to receive, and Employer shall





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not be required to provide, any employee benefits other than (i) payments made pursuant to
Section 3.2(b) hereof, if applicable, (ii) group health and any other benefits coverage that is
required to be continued by applicable law; (iii) vested accrued retirement benefits; and (iv) any
other employee benefits described in Section 3.2(a) hereof.




SECTION 4: NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY




     4.1 Non-Competition and Non-Solicitation.



          (a) For purposes of this Agreement, the phrase “Non-Competition Period” shall mean the period
commencing on the Closing Date and continuing for eighteen (18) months after the Closing Date,
except as such period may be extended by Section 4.1(c) hereof. In the event the Executive’s
employment is terminated pursuant to Section 3.1 hereof (other than termination by Death), the
Executive, for the Non-Competition Period, will not, without the prior written approval of the
Board of Directors of CapitalSouth, directly or indirectly (i) whether through his own account or
as a partner, member, manager, employee, advisor, consultant, owner, trustee, shareholder, officer,
director or agent of or to any person, corporation, proprietorship, partnership, limited liability
company, joint venture, trust or other entity or association (any of the foregoing being referred
to as a “Person”), within Duval County, Florida or any county contiguous thereto (the
“Non-Competition Territory”), perform services, own, advise, participate in, support, have
an interest in, give financial assistance to, permit Executive’s name to be used in connection with
or serve as a member of management, supervisor, consultant or employee of any financial service
institution, including without limitation any “insured depository institution” (as such term is
defined in 12 U.S.C. § 1813(c)(2)) or any “regulated lending institution” (as such term is defined
in 42 U.S.C. § 4003(a)(10)) or any other business, or any affiliate, parent, or subsidiary thereof,
which would be competitive with the business of CapitalSouth or any affiliate or subsidiary
thereof; (ii) solicit or induce, or attempt to solicit or induce, any employee of CapitalSouth or
any affiliate or subsidiary thereof to terminate such employment or to become employees of any
other person or entity; (iii) solicit or induce, or attempt to solicit or induce, any Person who
during the term of this Agreement was or is a customer, supplier, contractual party of CapitalSouth
or any affiliate or subsidiary thereof or any other Person with whom any of them has or had
business relations to refrain from or cease doing business with, seek advice and/or services and
products from, or otherwise discontinue all or any portion of their relationship with CapitalSouth
or any affiliate or subsidiary thereof; or (iv) disparage or cast in a poor light CapitalSouth or
any affiliate or subsidiary thereof or any of their respective shareholders, directors, officers,
or employees. The preceding provisions of this Section 4.1(a)(i) shall not preclude the Executive
from holding any publicly-traded stock, provided that the Executive does not at any time hold any
stock interest in any one company in excess of one percent (1%) of the outstanding voting stock of
that company.




          (b) The Executive agrees that each of the covenants set forth above in Section 4.1(a) hereof
are reasonable with respect to its duration, geographical area and scope.




          (c) In the event of a breach by the Executive of any covenant set forth in Section 4.1(a)
hereof, the Non-Competition Period shall be extended by the period of the duration of such breach.




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          (d) If Employer terminates the Executive’s employment without Cause or if Executive resigns
for Good Reason, as additional consideration for the covenants contained in Section 4.1(a) hereof,
Executive shall be paid in accordance with Section 3.2(b) hereof.




     4.2 Confidentiality.



          (a) The Executive hereby acknowledges that during his employment by Employer he will have
contacts with and develop and serve the customers of Employer and that in all of his activities,
and through the nature of complying with his obligations pursuant to this Agreement, he will have
access to and will acquire confidential information relating to the business, assets, operations,
customers, suppliers, contractual parties and other persons with whom Employer, CapitalSouth and
their respective affiliates and subsidiaries do business. The Executive hereby acknowledges and
confirms that such information constitutes the exclusive property of Employer, CapitalSouth or
their respective affiliates and subsidiaries, as the case may be, and that such information is
proprietary in nature. Such information does not include information already in the public realm
or information received by Executive from third parties.




          (b) The Executive agrees in perpetuity that he shall not disclose to others (except as
permitted and as directed by Employer or only as to the extent required pursuant to a subpoena or
order of a court of competent jurisdiction) any such information referred to in Section 4.2(a)
hereof.




     4.3 Remedies.



          (a) If the Executive breaches, or threatens to commit a breach, of any of the provisions of
Section 4 hereof, Employer shall have the following rights and remedies, each of which rights and
remedies shall be independent of the others and severally enforceable, and each of which is in
addition to, and not in lieu of, any other rights and remedies available to Employer at law or in
equity (including the right to recover damages):




               (i) the right and remedy to have Section 4 hereof specifically enforced by any court of
competent jurisdiction, it being agreed that any breach or threatened breach of Section 4 would
cause irreparable harm to Employer and that money damages would not provide an adequate remedy to
Employer;



               (ii) the right and remedy to require the Executive to account for and pay over to Employer all
compensation, profits or other benefits derived or received by the Executive as the result of any
actions constituting a breach of Section 4 hereof; and



               (iii) the right to recover all costs, fees and expenses incurred in connection with enforcing
the terms of this Agreement, including, but not limited to, all court arbitration fees, costs,
attorneys’ fees, court reporter fees and expert witness costs.



     4.4 Blue Penciling. If for any reason any court of competent jurisdiction shall find
that the provisions of Sections 4.1 or 4.2 hereof are unreasonable in duration or in geographic
scope, the prohibitions contained herein shall be restricted to such time and/or geographic areas
as such court determines to be reasonable.



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SECTION 5: GENERAL PROVISIONS




     5.1 Defined Terms. Unless defined herein, capitalized terms used herein shall have
the meanings ascribed to them in the Merger Agreement unless the context clearly requires
otherwise.



     5.2 Intention of the Parties. The parties acknowledge and agree that the terms and
provisions of this Agreement, including, but not limited to, Section 4 hereof, have been agreed to
by the parties in contemplation of the consummation of the Merger and that the execution of this
Agreement is a condition precedent to the consummation of the Merger.



     5.3 Nonassignability; Persons Bound. Neither this Agreement nor any of the rights,
obligations or interests arising hereunder may be assigned by the Executive without the prior
written consent of Employer; provided, however, that nothing in this Section 5.3
shall preclude the Executive from designating, in writing, a beneficiary to receive any
compensation payable to him or any other benefit receivable by him under this Agreement upon the
death or incapacity of the Executive, nor shall it preclude the executors, administrators or any
other legal representatives of the Executive or his estate from assigning any rights hereunder to
the person or persons entitled thereto. Neither this Agreement nor any of the rights, obligations
or interests arising hereunder may be assigned by Employer without the prior written consent of the
Executive to a person other than (i) an affiliate or subsidiary of Employer, or (ii) any party with
whom Employer merges or consolidates, or to whomever Employer may sell all or substantially all of
its assets; provided, however that any such affiliate, subsidiary or successor
shall expressly assume all of Employer’s obligations and liabilities to the Executive under this
Agreement. This Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns. Notwithstanding anything to contrary
herein, there shall be no third-party beneficiaries of this Agreement except as provided in Section
5.7 hereof.



     5.4 Severability. This Agreement shall be deemed severable and any part hereof which
may be held invalid by a court or other entity of competent jurisdiction shall be deemed
automatically excluded from this Agreement and the remaining parts shall remain in full force and
effect.



     5.5 Entire Understanding. This Agreement contains the entire understanding of the
parties hereto and constitutes the only agreement between Employer and the Executive regarding the
employment of the Executive by Employer. This Agreement supersedes all prior agreements, either
express or implied, between the parties hereto regarding the employment of the Executive by
Employer.



     5.6 Amendment. None of the terms and conditions of this Agreement shall be amended or
modified unless expressly consented to in writing and signed by each of the parties hereto. The
parties hereto agree to amend this Agreement from time to time in such a manner that: (a) is
agreeable to CapitalSouth; and (b) prevents the payment of any excise tax resulting from Section
409A of the Code.



     5.7 Arbitration. Other than as set forth in Section 4.3 hereof, the parties hereto,
by executing this Agreement, WAIVE THEIR RIGHT TO TRIAL BY JURY of disputes, claims



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or controversies between themselves or any of their respective officers, directors, partners,
employees, shareholders, affiliates or agents (such non-signatories being the intended third party
beneficiaries of this Agreement with respect solely to this Section 5.7) and instead agree that ANY
AND ALL CONTROVERSIES AND CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE BREACH
THEREOF, SHALL BE SETTLED BY FINAL AND BINDING ARBITRATION IN ACCORDANCE WITH THE COMMERCIAL
ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION THEN IN EFFECT. Any such arbitration
proceedings shall be and remain confidential. The panel of arbitrators for any such arbitration
shall consist of three members of the American Arbitration Association, one of whom shall be
selected by CapitalSouth, one of whom shall be selected by the Executive, and the third who will be
selected by the other two. Judgment upon the decision rendered by the arbitrators may be entered
in any court having jurisdiction thereof. The parties specifically acknowledge that this Agreement
evidences a transaction involving, affecting, affected by, and a part of, interstate commerce and
that this Agreement to arbitrate is governed by and enforceable under 9 U.S.C. §§ 1 et seq.
The place of arbitration shall be Birmingham, Alabama.




     5.8 Notices. All notices or other communications to be given by the parties among
themselves pursuant to this Agreement shall be in writing and shall be deemed to have been duly
made to the party to whom it is directed at 4522 Summer Haven Blvd. South, Jacksonville, FL 32258
for the Executive and at 2340 Woodcrest Place, Suite 200, Birmingham, Alabama 35209, Attention:
Chairman, if to Employer, (a) upon the earlier of five (5) days after mailing or the date of actual
delivery, if mailed by first class or certified mail with postage prepaid; or (b) upon delivery, if
either by hand delivery or by reputable overnight courier. Any of the parties hereto may change
their respective addresses upon written notice to the other given in the manner provided in this
section.



     5.9 Waiver. No waiver by any of the parties to this Agreement of any condition, term
or provision of this Agreement shall be deemed to be a waiver of any preceding or subsequent breach
of the same or any other condition, term or provision hereof.



     5.10 Survival. Notwithstanding anything in this Agreement to the contrary, and
notwithstanding any termination of the Agreement Term, the provisions of this Agreement intended to
govern the obligations of the parties hereto upon the termination of the Executive’s employment
with Employer for any reason, including, but not limited to, Section 3 hereof (inclusive of each of
the subsections thereof) and Sections 4.1 and 4.2 hereof shall continue in full force and effect,
if so provided herein.



     5.11 Effective Date. This Agreement shall be effective as of the Effective Time. In
the event the Merger is not consummated by the parties, this Agreement shall be void and of no
further effect.



     5.12 Governing Law. This Agreement shall be governed by and construed under the laws
of the State of Alabama without regard to provisions thereof governing conflicts of law.



     5.13 Construction. This Agreement was prepared by the parties jointly. The language
used in this Agreement shall be deemed to be the language chosen by the parties to express their



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mutual intent, and no rule of strict construction shall be applied against either party.
Whenever used in this Agreement, the singular number shall include the plural and the plural the
singular. Pronouns of one gender shall include all genders. Accounting terms used and not
otherwise defined in this Agreement have the meanings determined by, and all calculations with
respect to accounting or financial matters unless otherwise provided for herein, shall be computed
in accordance with generally accepted accounting principles, consistently applied. References
herein to articles, sections, paragraphs, subparagraphs or the like shall refer to the
corresponding articles, sections, paragraphs, subparagraphs or the like of this Agreement. The
words “hereof”, “herein”, and terms of similar import shall refer to this entire Agreement. Unless
the context clearly requires otherwise, the use of the terms “including”, “included”, “such as”, or
terms of similar meaning, shall not be construed to imply the exclusion of any other particular
elements.




     5.14 Captions. The captions as to contents of particular articles, sections or paragraphs
contained in this Agreement and the table of contents hereto are inserted only for convenience and
are in no way to be construed as part of this Agreement or as a limitation on the scope of the
particular articles, sections or paragraphs to which they refer.




     5.15 Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
document with the same force and effect as though all parties had executed the same document. This
Agreement may be executed and delivered by facsimile transmission.



     5.16 Regulatory Provisions. Notwithstanding anything to the contrary contained in
this Agreement, any payments to be made to the Executive pursuant to this Agreement or otherwise,
are subject to and conditioned upon their compliance with 12 U.S.C. Section 1828(k) and FDIC
Regulation 12 CFR Part 359, Golden Parachute and Indemnification Payments. Employer’s obligations
under this Agreement shall be suspended commencing on the date the Executive is suspended and/or
temporarily prohibited from participating in the conduct of Employer’s affairs by notice served
under Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act (12 U.S.C. Section 1818(e)(3)
and (g)(1)); provided that if the charges in the notice are dismissed, Employer
shall (i) pay the Executive all of the compensation withheld while Employer’s obligations under
this Agreement were suspended, and (ii) reinstate all of its obligations under this Agreement;
provided further that the foregoing provisions
shall not affect or impair
any other rights of Employer to terminate the Executive for “just cause”. All obligations of
Employer hereunder shall be terminated, except to the extent it is determined that the continuation
of this Agreement is necessary for the continued operation of Employer by the appropriate
regulatory authorities, (i) at the time the Federal Deposit Insurance Corporation enters into an
agreement to provide assistance to or on behalf of Employer under the authority contained in
Section 13(c) of the Federal Deposit Insurance Act; or (ii) at the time appropriate regulatory
authorities approve a supervisory merger to resolve problems related to the operation of Employer
or when Employer is determined by appropriate regulatory authorities to be in an unsafe or unsound
condition. If Employer reasonably determines that any provision of this Agreement fails to comply
with the rules, regulations or orders of any governmental authority
possessing regulatory authority over Employer and its operations, Employer and Executive, jointly
and severally, agree to amend, modify and/or appeal any such provision or provisions in order to
make such provision or provisions comply with such rules, regulations or orders.



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          IN WITNESS WHEREOF, the parties hereto have duly, or caused to be executed this Agreement as
at the date and year first above written.




	 	 	 	 	 	 	 
	 	 	CAPITALSOUTH BANK	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Its:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	EXECUTIVE:	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 





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	STATE OF ALABAMA

	 	 	)	 	 	 
	 

	 	 	:	 	 	 
	JEFFERSON COUNTY

	 	 	)	 	 	 






          I, the undersigned, a notary public in and for said county in said state, hereby certify that
                                        , whose name as                      of the CapitalSouth Bank, an
Alabama banking corporation, is signed to the foregoing instrument, and who is known to me,
acknowledged before me on this day that, being informed of the contents of said instrument, he, as
such officer and with full authority, executed the same voluntarily for and as the act of said
banking corporation.




          Given under my hand and official seal this ___day of                     , 2007.




	 	 	 	 	 
	 

	 	 	 	 
	 

	 	Notary Public	 	 
	 
	 	 	 	 
	[NOTARIAL SEAL]

	 	My commission expires:                                                            	 	 






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	STATE OF ALABAMA

	 	 	)	 	 	 
	 

	 	 	:	 	 	 
	JEFFERSON COUNTY

	 	 	)	 	 	 






          I, the undersigned, a notary public in and for said county in said state, hereby certify that
Bill Marsh whose name is signed to the foregoing instrument, and who is known to me, acknowledged
before me on this day that, being informed of the contents of said instrument, he executed the same
voluntarily on the day the same bears date.




          Given under my hand and official seal this ___day of                     , 2007.




	 	 	 	 	 
	 

	 	 	 	 
	 

	 	Notary Public	 	 
	 
	 	 	 	 
	[NOTARIAL SEAL]

	 	My commission expires:                                                            	 	 







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