Exhibit 10.5





 


 


 


Exhibit 10.5


AMENDED
AND RESTATED EMPLOYMENT AGREEMENT


THIS
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”), dated as of the
30th day of September, 2013 (the “Effective Date”), is made by and
between Southern First Bank
(the “Bank“) and Southern First Bancshares, Inc. (the “Company” and together
with the Bank the “Employer”), having its principal office at 100 Verdae
Boulevard, Suite 100, Greenville, South Carolina 29607, and R. Arthur
Seaver, Jr. (hereinafter called “Employee”), a resident of the State of
South Carolina.  This Agreement amends and restates that certain
existing employment agreement between the parties dated December 17, 2008.


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. Unless otherwise specified hereafter, any services
performed by the Employee shall be for the benefit of the Bank and, therefore,
any payments or benefits paid to the Employee pursuant to this Agreement shall
be the sole responsibility of the Bank; provided, however, the
Bank’s obligation to make any payments owed to the Employee under this
Agreement shall be discharged to the extent compensation payments are made by
the Company.


 


 










 


 


 


 


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, 2016 (the
“Term”).  At the end of January 2014 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.  


3.                  
Base Salary.  For all services rendered
by Employee under this Agreement, Employer shall pay Employee a rate of base
salary of $410,000 per year (the “Base Salary”).  The Base Salary shall be
reviewed annually by the Board, and may be increased 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.


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 end of the year in which the bonus was
earned by Employee 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 $400,000 payable to the Employee’s spouse and heirs (and may provide for
additional death benefits of up to $600,000 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 an automobile owned
or leased by Employer of a make and model appropriate to Employee’s status,
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, 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. 


 





	
		
			
				
					
						
							
								
									
										
											
												
													
														
																
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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.  Any payments made by the Employer to the
Employee as compensation for paid vacation leave shall be paid in accordance
with the Employer’s standard payroll procedures.


 


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





	
		
			
				
					
						
							
								
									
										
											
												
													
														
															 

																
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(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.


 





	
		
			
				
					
						
							
								
									
										
											
												
													
														
															
																	
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(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.  


 





	
		
			
				
					
						
							
								
									
										
											
												
													
														
																
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13.          Termination
and Severance Payments.


 


(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 (30th) 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 end of the year 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:


 





	
		
			
				
					
						
							
								
									
										
											
												
													
														
															
																	
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(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 end of the year
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, conditioned upon
the effectiveness of the release described in Section 13(i) below and subject
to the possibility of a six-month delay described below in Section 29(a),
beginning on the first day of the month following the date of the Employee’s
termination, and continuing on the first day of the month for the next eleven
(11) months, the Employer shall pay to the Employee monthly severance
compensation in cash in an amount equal to one-twelfth (1/12th) of the
Employee’s annual rate of 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 as stated in
Section 4(a) of this Agreement.  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)            Subject
to the possibility of a six-month delay described below in Section 29(a),
beginning on the date following the date of the Employee’s termination, the
Employer shall provide Employee with the same severance compensation and
accrued bonus set forth in Section 13(e).  


 





	
		
			
				
					
						
							
								
									
										
											
												
													
														
																
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(ii)           Employee
may continue participation, in accordance with the terms of the applicable
benefits plans, in the Company’s group health plan pursuant to plan
continuation rules under the Consolidated Omnibus Budget Reconciliation Act
(“COBRA”).  In accordance with COBRA, assuming Employee is covered under the
Company’s group health plan as of his date of termination, Employee will be
entitled to elect COBRA continuation coverage for the legally required COBRA
period (the “Continuation Period”).  If Employee elects COBRA coverage for
group health coverage, he will be obligated to pay the portion of the full
COBRA cost of the coverage equal to an active employee’s share of premiums for
coverage for the respective plan year and the Company’s share of such premiums
shall be treated as taxable income to Employee.  Notwithstanding the above, the
Employer’s obligations hereunder with respect to the foregoing benefits
provided in this subsection (ii) shall be limited to the extent that if
Employee obtains any coverage pursuant to a subsequent employer’s benefit plans
which duplicates the Employer’s coverage, the duplicative coverage may be
terminated by Employer.  This subsection (ii) shall not be interpreted so as to
limit any benefits to which Employee or his dependents or beneficiaries may be
entitled under any of Employer’s employee benefit plans, programs, or practices
following the Employee’s Termination of Employment, including, without
limitation, retiree medical and life insurance benefits; 


 


(iii)          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
termination of Employee’s 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. Within sixty
(60) days of termination of Employee’s employment, and as a condition to the
Employer’s obligation to pay any severance hereunder, the Employee shall
execute, and not timely revoke during any revocation period provided pursuant
to such release, 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.  In most instances,
payment will be made, or in the case of installment payments, will begin as
soon as practicable after such release is effective. However, if the 60-day
period spans two calendar years, such severance payment will be made as soon as
possible in the subsequent taxable year.


 





	
		
			
				
					
						
							
								
									
										
											
												
													
														
																
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(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 “Code”), and any
regulations thereunder.  If the Employer’s independent accountants acting as
auditors for the Employer determine that any or the aggregate value (as
determined pursuant to Section 280G of the Code) of all payments,
distributions, accelerations of vesting, awards and provisions of benefits by
the Employer to or for the benefit of Employee (whether paid or payable,
distributed or distributable, accelerated, awarded or provided pursuant to the
terms of this Agreement or otherwise), (a “Payment”) would constitute an excess
parachute payment and be subject to the excise tax imposed by Section 4999 of
the Code (the “Excise Tax”), such Payment shall be reduced to the least extent
necessary so that no portion of the Payment shall be subject to the Excise Tax,
but only if, by reason of such reduction, the net after-tax benefit received by
the Employee as a result of such reduction will exceed the net after-tax
benefit that would have been received by the Employee if no such reduction were
made.  The Payment shall be reduced, if applicable, by the Employer in the
following order of priority: (A) reduction of any cash payments otherwise
payable to the Employee pursuant to a supplemental executive retirement plan
including, without limitation, any salary continuation agreement between the
Employee and the Employer; (B) reduction of any cash severance payments
otherwise payable to the Employee that are exempt from Section 409A of the
Code; (C) reduction of any other cash payments or benefits otherwise payable to
the Employee that are exempt from Section 409A of the Code, but excluding any
payments attributable to any acceleration of vesting or payments with respect
to any equity award that are exempt from Section 409A of the Code; (D)
reduction of any payments attributable to any acceleration of vesting or
payments with respect to any equity award that are exempt from Section 409A of
the Code, in each case beginning with payments that would otherwise be made
last in time; and (E) reduction of any other payments or benefits otherwise
payable to the Employee on a pro-rata basis or such other manner that complies
with Section 409A of the Code, but excluding any payments attributable to any
acceleration of vesting and payments with respect to any equity award that are
exempt from Section 409A of the Code.  If, however, such Payment is not reduced
as described above, then such Payment shall be paid in full to the Employee and
the Employee shall be responsible for payment of any Excise Taxes relating to
the Payment.


 


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 and all rights hereunder shall be governed by the laws of the State
of South Carolina, except to the extent governed by the laws of the United
States of America in which case federal laws shall govern. 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.





	
		
			
				
					
						
							
								
									
										
											
												
													
														
															
																 

																	
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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 Sections 9-12 of this Agreement
shall be automatically extended by any length of time during which Employee is
in breach of the corresponding covenant contained herein.  Such 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.





	
		
			
				
					
						
							
								
									
										
											
												
													
														
															 

																
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(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:




	
		
			
				
					
						
							
								
									
										
											
												
													
														
															 

																
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 (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:

 





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


 


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


 


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:


 





	
		
			
				
					
						
							
								
									
										
											
												
													
														
																
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                (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 (i) a termination 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, or (ii) in the case of a
termination for Good Reason, sets forth the Good Reason event which occurred no
more than ninety (90) days prior to the date of the notice and provides the
Employer not less than thirty (30) days to remedy this condition;


 


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


 


27.          Compliance
with Regulatory Restrictions.  Notwithstanding anything to the contrary
herein, and in addition to any restrictions stated in Section 13 hereof, any
compensation or other benefits paid to the Employee shall be limited to the
extent required by any federal or state regulatory agency having authority over
the Company or the Employer.  The Employee agrees that compliance by the
Company or the Employer with such regulatory restrictions, even to the extent
that compensation or other benefits paid to the Employee are limited, shall not
be a breach of this Agreement by the Company or the Employer.


 


28.          Compliance
with Dodd–Frank Wall Street Reform and Consumer Protection Act.  Notwithstanding
anything to the contrary herein, any incentive payments to the Employee shall
be limited to the extent required under the Dodd–Frank Wall Street Reform and
Consumer Protection Act (the “Act”), including, but not limited to, clawbacks
for such incentive payments as required by the Act.  The Employee agrees to
such amendments, agreements, or waivers that are required by the Act or
requested by the Company to comply with the terms of the Act.  


 





	
		
			
				
					
						
							
								
									
										
											
												
													
														
																
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29.          Compliance
with Internal Revenue Code Section 409A.  All payments that may be made and
benefits that may be provided pursuant to this Agreement are intended to
qualify for an exclusion from Section 409A of the Code and any related
regulations or other pronouncements thereunder and, to the extent not excluded,
to meet the requirements of Section 409A of the Code.  Any payments made under
Section 13 of this Agreement which are paid on or before the last day of the
applicable period for the short-term deferral exclusion under Treasury
Regulation § 1.409A-1(b)(4) are intended to be excluded under such short-term
deferral exclusion.  Any remaining payments under Section 13 are intended to
qualify for the exclusion for separation pay plans under Treasury Regulation §
1.409A-1(b)(9). Each payment made under Section 13 shall be treated as a
“separate payment”, as defined in Treasury Regulation § 1.409A-2(b)(2), for
purposes of Code Section 409A.  Further, notwithstanding anything to the
contrary, all severance payments payable under the provisions of Section 13 shall
be paid to the Employee no later than the last day of the second calendar year
following the calendar year in which occurs the date of Employee’s termination
of employment. None of the payments under this Agreement are intended to result
in the inclusion in Employee’s federal gross income on account of a failure
under Section 409A(a)(1) of the Code.  The parties intend to administer and
interpret this Agreement to carry out such intentions.  However, Company does
not represent, warrant or guarantee that any payments that may be made pursuant
to this Agreement will not result in inclusion in Employee’s gross income, or
any penalty, pursuant to Section 409A(a)(1) of the Code or any similar state
statute or regulation.  Notwithstanding any other provision of this Agreement,
to the extent that the right to any payment (including the provision of
benefits) hereunder provides for the “deferral of compensation” within the
meaning of Section 409A(d)(1) of the Code, the payment shall be paid (or
provided) in accordance with the following:


 


            (a)          If
the Employee is a “Specified Employee” within the meaning of Section
409A(a)(2)(B)(i) of the Code on the date of the Employee’s termination (the
“Separation Date”), and if an exemption from the six month delay requirement of
Code Section 409A(a)(2)(B)(i) is not available, then no such payment shall be
made or commence during the period beginning on the Separation Date and ending
on the date that is six months following the Separation Date or, if earlier, on
the date of the Employee’s death.  The amount of any payment that would
otherwise be paid to the Employee during this period shall instead be paid to
the Employee on the first day of the first calendar month following the end of
the period.  


 


            (b)     
Payments with respect to reimbursements of expenses or benefits or provision of
fringe or other in-kind benefits shall be made on or before the last day of the
calendar year following the calendar year in which the relevant expense or
benefit is incurred.  The amount of expenses or benefits eligible for
reimbursement, payment or provision during a calendar year shall not affect the
expenses or benefits eligible for reimbursement, payment or provision in any
other calendar year.


 


30.          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.


 


31.          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.


 


[Signatures appear on the following page.]




 

 

 

 


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


 


                                                                                                                                               EMPLOYER:


 


                                                                                                                                                SOUTHERN
FIRST BANK


 


 


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


                                                                                                                                                     Name: James B. Orders, III


Attest:                                                                                                                                           Title:  Member of the Board


 


 


/s/Julie
A. Fairchild                             


Secretary


 


                                                                                                                                                SOUTHERN
FIRST BANCSHARES, INC.


 


 


 


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


                                                                                                                                                     Name: James B. Orders, III


Attest:                                                                                                                                          
Title:  Chairman of the Board


 


 


/s/Julie
A. Fairchild                             


Secretary


                


                                                                                                                                                EMPLOYEE:


 


 


 


                                                                                                                                              
  /s/R. Arthur Seaver, Jr.                     



                                                                                                                                                    
R. Arthur Seaver, Jr.


 


 


 


 


 





	
		
			
				
					
						
							
								
									
										
											
												
													
														
																
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