Exhibit 10.1


 


THIS
EMPLOYMENT AGREEMENT IS SUBJECT TO ARBITRATION PURSUANT TO THE SOUTH CAROLINA
UNIFORM ARBITRATION ACT, SECTION 15-48-10 ET SEQ., AS AMENDED.


 


EMPLOYMENT
AGREEMENT


 


THIS EMPLOYMENT AGREEMENT (this “Agreement”)
is made as of the 28th day of May, 2008 (the “Effective Date”) by
and between Coastal Carolina Bancshares, Inc., a South Carolina corporation
(the “Company”), and Michael D. Owens (“Executive”). Upon the
formation of the Company’s proposed national bank association subsidiary (the “Bank”),
the Bank shall become party hereto pursuant to the provisions set forth herein.
 The Company and the Bank are
collectively referred to herein as “Employer.”


 


W  I  T  N  E  S  S  E  T
H


 


WHEREAS, the Company as successor by merger
to Coastal Carolina Dream Team, LLC, and the Executive are parties to a
Consulting and Employment Agreement dated November 1, 2007 (the “Current
Agreement”); and


 


WHEREAS, the Company and the Executive desire
to terminate the Current Agreement and replace it with this Agreement which
shall amend and restate in its entirety the Current Agreement.


 


NOW THEREFORE, in consideration of the mutual
covenants and agreements set forth herein and intending to be legally bound
hereby, the parties agree as follows:


 


1.             Position and Duties.  Employer
agrees to employ Executive, and Executive agrees to serve, as President and
Chief Executive Officer (“CEO”) of the Company and, upon its formation, of the
Bank.


 


Executive acknowledges that the business of
the Bank shall be the operation of a depository financial institution,
including, without limitation, the solicitation and acceptance of deposits of
money and commercial paper, the solicitation and funding of loans, and the
provision of other banking services, and any other related business engaged in
by the Bank or any business entity controlled by, controlling or under common
control with the Bank.


 


Executive acknowledges that the business of
the Company shall be to own the Bank and to provide resources therefor, and to
own such other subsidiaries as the Company properly forms or acquires from time
to time, if any.


 


Executive will have such executive or
managerial duties for the Company and the Bank as are specified in the
then-current by-laws, or by the Board of Directors, of the respective organization.
Further, Executive agrees to serve, without additional compensation, if
elected, in any other senior executive position of the Company or the 


 

















 


Bank that may
be reasonably required of him, including as a Director of the Company and the
Bank, and as an Officer or Director or both of any subsidiary or affiliate of
the Company or the Bank in accordance with Section 7 below.


 


Executive, shall at all times, comply with
all laws, rules and regulations which maybe applicable to the Bank and/or
the Company.


 


Executive shall devote his full-time and best
efforts to his employment with the Employer and shall apply substantially that
degree of skill and diligence in rendering services to the Company, its
subsidiaries and the Bank as would be applied by a person of ordinary prudence
and comparable experience under similar circumstances. In connection therewith,
Executive shall report to and be subject to the direction of the Company’s, and
after its formation the Bank’s, Board of Directors.  Notwithstanding the foregoing, Executive may
devote a reasonable amount of his time to his personal investments and business
affairs (including service as a director of unaffiliated companies) and to
civic and charitable activities; provided, however, Executive shall not accept
any position as a director of any unaffiliated for-profit business organization
without the prior approval of the Company’s Board of Directors, which approval
shall not be unreasonably withheld.


 


2.             Compensation.


 


(a)  Annual Salary.  Executive shall be entitled to receive an
annual base salary of $130,000 per year until the date on which the organizers
receive preliminary approval from the OCC for a charter for the Bank at which
time Executive’s salary shall be increased to $180,000 a year (the “Annual
Salary”).  Executive’s Annual Salary
shall be payable in accordance with the Employer’s instituted payroll practice,
prorated for any partial employment period. Such amount shall be allocated
between the Company and the Bank based on the mutual consent of the Board of
Directors of the Company (the “Company Board”) and the Board of Directors of
the Bank (the “Bank Board”). The Annual Salary may be increased from time to
time by either or both Boards, in their sole discretion, but shall not be
decreased without the written consent of Executive. The Company Board, in
exercising its discretion, shall consider Executive’s annual performance in
light of the specific goals and objectives for Executive which the Company and
Bank Boards shall establish annually in writing, after consultation with
Executive.


 


(b)  Performance Bonus.
Commencing with the 2008 calendar year and provided the Bank has received all
necessary regulatory approvals to commence operations as a banking institution,
Executive shall be eligible to receive such annual (January 1 – December 31
and prorated for any partial calendar year) performance bonuses as the Company
and Bank Boards determine is warranted by Executive’s performance in light of
Employer’s performance goals and objectives under a to-be-established bonus
plan (the “Bonus Plan”) which may include, for illustrative purposes only,
measures of such items as internal controls, loan documentation, credit
underwriting, interest rate exposure, asset growth, asset quality, earnings, examination
and audit results and employee and customer retention.  Such goals and objectives (the “Performance
Goals”) are to be established by Executive and the Company and Bank Boards annually
prior to the first day of the applicable annual period. If such Performance Goals
for the year are met at the threshold level, Executive will be entitled to a
bonus equal to 20% of his Annual Salary; if the Performance Goals for the year
are met at the target level, Executive will be 


 


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entitled to a
bonus equal to 30% of his Annual Salary; and if the Performance Goals are met at
the maximum level, Executive will be entitled to a bonus equal to 50% of his
Annual Salary. Performance Goals and the threshold, target and maximum levels
will be established each year, in accordance with the provisions of the Bonus
Plan. All performance bonuses shall be payable in accordance with the terms of the
Bonus Plan. The payment of any bonus to Executive pursuant to a Bonus Plan will
be contingent upon the following:


 


(i) 
prior to the award of any bonus to Executive, the Bank Board shall consider,
and document its findings in the minutes of the meeting wherein the issue was
considered, Executive’s performance in light of the Performance Goals as
established by Executive and the Company and Bank Boards as set forth above;


 


(ii)  the
most recent Uniform Financial Institution Rating of the Bank, known as the CAMEL
Rating, shall be not less favorable than a “2” except in the event a less
favorable rating was outside of the Executive’s control and supervision; and


 


(iii) the
Bank (if it has been capitalized) shall be “well capitalized” as defined under
regulations promulgated by the FDIC pursuant to the Federal Deposit Insurance
Corporation Improvement Act of 1991.


 


(c)  Stock Options; Warrants.


 


(i)  The
Company shall grant to Executive on the date the Bank opens for business stock
options (“Options”) in an amount equal to 3.3% of the number of shares of the
Company’s common stock sold in the Company’s initial stock offering. The
Options shall vest in five (5) equal annual installments commencing on the
first anniversary of the date of grant.


 


(ii)  If
Executive purchases shares of the Company’s common stock in the Company’s
initial stock offering, and if the Company grants to its founders and organizers
warrants to purchase additional shares of the Company’s common stock, the
Company shall also grant to Executive warrants to acquire additional shares of
the Company’s stock on the same basis as other similarly situated organizers.


 


(d)  Equity Based Compensation.  In
each year of employment, Executive shall be eligible to receive appropriate
awards of stock options, restricted stock and/or other equity based
compensation under such terms and conditions as determined by the Company
Board, in its sole discretion.


 


3.             Fringe Benefits,
Vacation Time, Expenses and Perquisites.


 


(a)  Benefit Plan Participation. Employer
anticipates it will establish and implement benefit plans and programs that are
warranted by the Employer’s performance, and that will contain such terms and
conditions as are selected by the Bank Board, in its discretion. Subject
thereto, Executive shall be eligible to participate in or receive benefits
under all corporate employment benefit plans made available by Employer to its
executives and key management employees including, but not limited to, any salary
continuation, life insurance, supplemental executive retirement, profit sharing,



 


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savings, disability
insurance, medical or health-and-accident plan or arrangement, subject to and
on a basis consistent with the terms, conditions and overall administration of
such plans and arrangements.


 


(b)  Vacation Time Allowances.
Executive shall be entitled each calendar year to twenty (20) business days of
vacation, prorated for any partial year, during which time Executive’s
compensation will continue to be paid.  Each
year, Executive shall take ten (10) of the twenty (20) vacation days
consecutively. Unused vacation days shall not accumulate from year to year.


 


(c)  Business Expense Reimbursement.
Commencing on the Employment Date, Executive shall be entitled to receive
prompt reimbursement for all reasonable expenses incurred by him (in accordance
with the policies and procedures established by Employer) in performing
services hereunder, provided that Executive properly accounts therefor in
accordance with corporate policy.


 


(d)  Automobile Allowance.
Employer shall provide to Executive a vehicle for Executive’s use during his
employment and will pay, or reimburse the Executive, for all taxes, gasoline, insurance
and maintenance related to said vehicle. 
Executive shall use said vehicle for Employer business purposes and
activities.


 


(e)  Club Dues. Employer will pay
all fees and dues for Executive’s use of an Employer owned membership in the
Dunes Club.


 


(f)  Cell Phone. Employer will
provide Executive with a cell phone and pay the monthly fees in connection
therewith.


 


(g)  Moving Expenses. Employer
will reimburse Executive for all reasonable insured moving expenses, based on
the lower of two quotes from national moving companies, related to Executive’s
move of his family to the Myrtle Beach area and any reasonably necessary expenses
of storage of home furnishings for a period not to exceed six months. Additionally,
Employer shall pay the real estate commission and the closing costs for the
sale of Executive’s existing home in Georgia.


 


(h)  Health Insurance. Executive,
upon being eligible, may participate in the Bank health care plan and other
related benefits. Until a health insurance group policy is available to Bank
employees, the Employer shall reimburse Executive for his monthly COBRA
payments that he submits to an insurance company for continuing health
insurance coverage.


 


4.             Confidential
Information and Restrictive Covenants. Executive acknowledges that he has
performed services or will perform services hereunder which directly affect the
Employer’s business. Accordingly, the parties deem it necessary to enter into
the protective provisions set forth below, the terms and conditions of which
have been negotiated by and between the parties hereto.


 


(a)  Non-Competition. Executive
expressly covenants and agrees that during the Term (as such term is defined in
Section 8 below) and for a period of eighteen (18) full months after
termination of his association with the Employer, for any reason other than 


 


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pursuant to
subsection (d), (e), (g), or (h) of Section 9 hereof, Executive
shall not directly or indirectly, either as a principal, agent, employee,
employer, stockholder, organizer, director, co-partner or in any other
individual or representative capacity whatsoever, engage in the banking and financial
services business, which includes, but it is not limited to, the commercial
banking, insurance agency, wealth management, trust, savings and loan, and
mortgage banking businesses, and any other business in which the Employer or
any of its subsidiaries is engaged, or efforts to organize a banking or other
financial services business anywhere within Horry, Georgetown, Florence, and
Williamsburg Counties in South Carolina and Brunswick and Pender Counties in
North Carolina; provided, however, that Executive shall not be prohibited
hereunder from passively investing in a business similar to the banking and
other financial business activities of the Employer or any of its subsidiaries,
if such investment is limited to less than one percent of the capital stock or
other securities of any such corporation or other entity, except this
restriction is not applicable to Employee’s current holdings in Coastal
Bankshares, Inc.


 


(b)  Non-Solicitation of Employees.
Executive agrees that during the Term and for a period of eighteen (18) full
months thereafter he will (i) not solicit, entice, persuade or induce any
other employee of the Employer or any of its subsidiaries to leave the employ or
association of such entity, and (ii) refrain from recruiting or hiring, or
attempting to recruit or hire, directly or by assisting others, any individual
who is employed by the Employer or any of its subsidiaries at the time of the
attempted recruiting or hiring.


 


(c)  Non-Solicitation of Customers.
Executive agrees that during the Term and for a period of eighteen (18) full months
thereafter, he will not, directly or indirectly, solicit any business from any
of the customers of the Employer or any of its subsidiaries, or actively seek
prospective customers of the Employer or any of its subsidiaries, with whom
Executive had material direct or indirect contact within the last twenty-four (24)
months of Executive’s association hereunder for purposes of providing products
or services that are similar to or competitive with those provided by the Employer
or any of its subsidiaries, if the Employer or any of its subsidiaries is also
then still engaged in such business.


 


5.             Unauthorized
Disclosure.  Executive shall not,
without the written consent of the Company Board or the Bank Board, as
applicable, or a person authorized thereby, knowingly disclose to any person,
other than an employee of Employer or a person to whom disclosure is reasonably
necessary or appropriate in connection with the performance by Executive of his
duties hereunder or as required by law, any material confidential information
obtained by him while in the employ of Employer with respect to any of Employer’s
services, products, improvements, formulas, designs or styles, processes,
customers, methods of distribution or any business practices the disclosure of
which he knows or reasonably should know will or is likely to be damaging to
Employer; provided, however, that confidential information shall not include
any information known generally to the public (other than as a result of
unauthorized disclosure by Executive) or any information of a type not
otherwise considered confidential by persons engaged in the same business or a
business similar to that conducted by Employer.


 


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The covenants contained in this Section 5
shall survive the termination of Executive’s employment hereunder for any
reason for a period of two years; provided, however, that with respect to those
items of confidential information which constitute a trade secret under
applicable law, Executive’s obligations of confidentiality and non-disclosure
as set forth in this Section 5 shall continue to survive after said
two-year period to the greatest extent permitted by applicable law. These
rights of Employer are in addition to those rights Employer has under the
common law or applicable statutes for the protection of trade secrets.


 


6.             Injunctive Relief.  It is understood and agreed by the
parties hereto that the services to be rendered by Executive hereunder are of a
special, unique, extraordinary and intellectual character, which gives them a
peculiar value, the loss of which may not be reasonably or adequately
compensated in damages, and additionally that a breach by Executive of the
covenants set out in Section 4 and 5 of this Agreement will cause Employer
great and irreparable injury and damage. Executive hereby expressly agrees that
Employer shall be entitled to the remedies of injunction, specific performance
and other equitable relief to prevent a breach of Section 4 or 5 of this
Agreement by Executive. This provision shall not, however, be construed as a
waiver of any of the remedies which Employer may have for damages or otherwise.


 


7.             Subsidiaries. It is understood and agreed by the parties hereto that, at
the election and direction of Employer and without modification of the terms
and provisions hereof, Executive shall also serve as an executive officer or
director or both of any one or more subsidiaries of the Company or the Bank,
when and as so determined by Employer.


 


8.             Term of Employment. Executive’s employment under this Agreement shall be for a
term commencing on the Effective Date and ending on the date 36 months after
the date the Bank first opens for business (the “Opening Date”), unless sooner
terminated in accordance with the provisions of this Agreement.  On the second anniversary of the Opening Date
and on each subsequent anniversary date of the Opening Date, this Agreement and
Executive’s term of employment hereunder shall be extended for an additional
one-year period beyond the then effective expiration date, provided that the Company
Board and the Bank Board each determines, in duly adopted resolutions, that the
performance of Executive has met with the such Board’s requirements and standards,
and that this Agreement shall be extended. Such period of employment, including,
as extended, if applicable, is hereinafter referred to as the “Term.”


 


9.             Termination of
Employment.


 


(a)  General; Termination Upon Death.  Upon termination of Executive’s employment
for any reason, Executive or, in the event of Executive’s death, Executive’s
estate, shall be entitled to Executive’s Annual Salary prorated through the
date of termination. Any other payments or benefits earned by or owed to
Executive hereunder at the time of termination of employment, but not yet paid
to Executive, shall be paid to Executive or his estate at such time as is
provided by the terms of the applicable Employer plan or policy. Executive’s
right to any additional payments and benefits for periods after the date of
termination of employment shall be determined in accordance with the following
provisions of this Section 9.  In
the event of Executive’s death during 


 


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the Term,
Executive’s estate shall be entitled to receive monthly compensation equivalent
to the monthly base salary received by Executive during his last year of
employment for the 12 months immediately following the month in which the
Executive’s death occurred.


 


(b)  Termination Upon Disability of
Executive.  Employer or Executive may
terminate Executive’s employment hereunder upon written notice to the other
party if by reason of Executive’s physical or mental impairment (a “disability”),
Executive is incapable of performing substantially all of his duties hereunder
for a period of 90 consecutive days or a total of 150 days in any 12-month
period. Upon termination for permanent and total disability (as defined in Section 22(e)(3) of
the Internal Revenue Code of 1986, as amended, or any successor thereto (the “Code”),
all unvested options shall vest. If any disagreement concerning whether
Executive has suffered a “disability” (as used in this subsection (b)) occurs
between Executive and Employer, Executive (or his spouse or personal
representative if Executive is unable to communicate with reason) shall select
a physician, and Employer shall select a physician. Such physicians shall
select a third physician, and the three physicians shall then determine by
majority vote whether Executive is disabled (as used in this Section). The
decision of a majority of such physicians shall be binding on Employer and
Executive.


 


(c)  Termination of Executive for
Cause. The occurrence of any of the following events or circumstances shall
constitute “Cause” for the termination, at the election of Employer, of the
employment of Executive under this Agreement:


 


(i) 
conduct by Executive, or as a result of Executive’s direction, 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 the
Executive, which is intended to cause, causes or is reasonably likely to cause harm
to the Employer (including harm to its business reputation);


 


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


 


(iii) 
the receipt of any form of notice, written or otherwise, that any regulatory
agency having jurisdiction over the Employer intends to institute any form of
formal or informal regulatory action against the Executive or the Employer or
the Bank (provided, that the respective Board of Directors determines in good
faith, with the Executive 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 the Executive or that termination of
the Executive would materially advance the Employer’s compliance with a concern
prompting such regulatory action or would materially assist the Employer in
avoiding or reducing the restrictions or adverse affects to the Employer
related to the regulatory action);


 


(iv) 
knowing violation by Executive of any federal or state banking or securities
law or regulation which is material to the Employer or its operations, or
Executive’s act or omission which he reasonably should have known violated any
such law or regulation;


 


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(v)  Executive’s
refusal to perform a duly authorized directive of the Bank or Company, which
was directed by a majority vote of the applicable Board;


 


(vi)  Any
other material breach by the Executive of this Agreement that, if susceptible
of cure, remains uncured ten (10) days following notice to the Executive
of such breach; or


 


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


 


Provided, however, that with respect to the conditions described in
items (i), (iii), (iv), (v), (vi) or (vii) of the foregoing, no
termination shall be made by the Employer’s Board of Directors on such basis
unless such Board of Directors has provided written or electronic notice to
Executive of the existence of such condition and Executive has been granted a
reasonable opportunity to appear before the Bank’s Board of Directors in order
to respond to such determination.


 


Upon the termination of Executive’s
employment under this Section 9(c), no additional benefits or monies shall
be due Executive other than those accrued or vested hereunder or under any
benefit plans of Employer as of the date of termination. In addition, in the
event that Employer terminates Executive’s employment under this Section 9(c) and
any act or omission of Executive constituting Cause results in material
economic harm to the Employer or in reputational harm causing material injury
to the Employer, then, notwithstanding anything to the contrary herein, but
only to the extent permitted by law and the provisions of the Employer’s plan
or program, as of the date of termination (i) Employer shall have no
further obligations to make any payments or provide any benefits to Executive, his
estate, or his dependents hereunder or under any compensatory or benefit plan
or arrangement of Employer, and (ii) all outstanding non-vested options
and non-vested warrants to purchase shares of the Company’s common stock
granted by the Company to Executive shall immediately expire to the extent not
previously exercised.


 


In the event that Employer discharges
Executive under this Section 9(c) and it is subsequently determined,
pursuant to Section 13, that the termination was without cause, then such
discharge shall be deemed a discharge without Cause subject to the provisions
of Section 9(d) hereof.


 


(d)  Termination by Employer Without
Cause. Employer may terminate Executive’s employment hereunder at any time
without Cause by written notice to Executive, in which event Employer shall
continue to pay Executive his Annual Salary in effect immediately prior to such
termination. Such Annual Salary shall be paid in equal 


 


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monthly
installments until the earliest of the termination of the remaining Term, or of
the date that Executive accepts employment, or such other date as Employer and
Executive agree.  Upon Executive becoming
employed, the Employer shall pay the differential between the salary to Executive
for his new employment and the Annual Salary during the remaining Term.


 


(e)  Termination by Executive For
Good Reason. In the event Executive terminates his employment for Good
Reason, Employer shall continue to pay Executive his Annual Salary, as in effect
immediately prior to such termination. Such Annual Salary shall be paid in equal
monthly installments until the earliest of the termination of the remaining
Term, or of the date that Executive accepts employment, or such other date as
Employer and Executive agree.  Upon
Executive becoming employed, the Employer shall pay the differential between
the salary to Executive for his new employment and the Annual Salary during the
remaining Term.  For purposes of this
Agreement, “Good Reason” shall mean:


 


(i)  a
substantial alteration in the nature or status of Executive’s responsibilities
which renders Executive’s position to be of materially less dignity,
responsibility or scope, other than any such alteration implemented with
Executive’s consent;


 


(ii)  Employer
requiring Executive to be based anywhere other than the Company’s or the Bank’s
principal executive offices; or


 


(iii)  any
material breach by Employer of its obligations contained in this Agreement.


 


(f)  Termination by Executive Without
Good Reason. In the event Executive terminates his employment with Employer
for any reason (including retirement) other than Good Reason, Executive shall
give Employer at least 90 days notice of Executive’s intention to terminate his
employment without Good Reason, and Employer may elect at its option and at any
time to accept such termination at a date sooner than such ninetieth day.
Executive shall be entitled to all compensation and benefits due under this
Agreement through such termination date. Thereafter no additional benefits or
monies shall be due Executive, his estate or his dependents, other than those
accrued hereunder or under any benefit plans of Employer as of the date of
termination.


 


(g)  Termination Related to
Noncommencement of Banking Operations. Executive’s employment hereunder, and
Executive’s right to salary, and/or benefits, shall cease at the earliest of (i) June 30,
2009 in the event that on such date the Company does not have a subsidiary
actively engaged in the commercial banking business; (ii) receipt of
notice from the OCC that the application to form a national bank has been
denied, or that the OCC has declined to approve any portion of this Agreement
for which the OCC’s approval is required; (iii) receipt of notice from the
FDIC that the application for deposit insurance for the Bank has been denied,
or that the FDIC has declined to approve any portion of this Agreement for
which the FDIC’s approval is required; (iv) the Company’s receipt of
notice from the Federal Reserve that its application to acquire the Bank and
become a bank holding company has been denied; or (v) receipt of notice
from the OCC or the FDIC that Executive’s employment as President and Chief
Executive Officer of the Company and/or the Bank is not approved.


 


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(h)  Termination Related to
Securities Offering.  Executive’s employment
hereunder, and Executive’s right to salary and/or benefits shall cease, at the
Company’s option, at the end of the thirtieth (30th) day after the
date that the Company receives information, from its advisors regarding its
securities offering, that the Company is not reasonably expected to raise the
needed equity, as determined necessary by the Company Board, by June 30,
2009, on terms acceptable to the Company.


 


(i)  Termination By Executive
Following Change in Control. In the event of a “change in control” of the
Company, as defined herein, Executive shall be entitled, for a period of thirty
(30) days from the date of closing of the transaction effecting such change in
control, and at his election, to give written notice to Employer of termination
of this Agreement and to receive an amount (the “Severance Amount”)
equal to 2.99 times the Executive’s average annual W-2 compensation reported
over the previous five (5) complete years. 
The said Severance Amount to be paid, in a lump sum, within thirty (30)
days after Executive’s written notice to terminate this Agreement.  The standard employment deductions shall be
withheld from the Severance Amount.  For
purposes of this Section 9(i), “change in control” of the Company shall
mean:


 


(i)  any
transaction, whether by merger, consolidation, asset sale, tender offer,
reverse stock split, or otherwise, which results in the acquisition of
beneficial ownership (as such term is defined under rules and regulations
promulgated under the Securities Exchange Act of 1934, as amended) by any
person or entity, or any group of persons or entities acting in concert, of 50%
or more of the outstanding shares of common stock of the Company;


 


(ii)  the
sale of all or substantially all of the assets of the Company; or


 


(iii) the
liquidation of the Company.


 


(j)  Effect of Termination on Other
Positions. If, on the date of his termination of employment with Employer,
Executive is a member of the Board of Directors of the Company or any of its
subsidiaries, or holds any other position with the Company or any of its
subsidiaries, Executive shall be deemed to have resigned from all such
positions as of the date of his termination of employment with Employer.
Executive agrees to execute such documents and take such other actions as
Employer may request to reflect such resignation.


 


(k)  Vested Rights.  Nothing herein shall be construed as
obviating any vested rights of Executive in his vested stock options, warrants,
restricted stock grants and other earned benefits obtained during his
employment.  Further, Executive shall
have no less than ninety (90) days to exercise his vested rights unless a different
time period is set forth in the applicable plan or agreement.  Further, subject to the terms of the
applicable plan or agreement, in the event of Executive’s death, his permanent
and total disability as defined in Section 22(e)(3) of the Code, his
termination with Good Reason or his termination without Cause, all unvested
options held by Executive shall vest and the restricted periods on all shares
of restricted stock held by Executive shall lapse.  In the event of his death Executive’s estate
shall have up to twelve (12) months to exercise Executive’s vested rights
unless a different time period is set forth in an applicable plan or agreement.


 


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(l)  Retainage of Company Materials.
Upon termination of employment hereunder, Executive shall leave with the
Employer all business records, contracts, calendars, telephone lists,
rolodexes, and other business materials and records, including any electronic
data and data in any other medium, relating to the Employer and its
subsidiaries, its business or customers, including all physical, electronic,
and computer copies thereof, whether or not the Executive prepared such
materials or records himself.  Upon such
termination, the Executive shall retain no copies of any such materials.


 


(m)  Limitation on Obligation to Make
Payments.  Notwithstanding anything
herein the Employer shall not have any obligation to make any payments to the
Executive if such payments would be prohibited under 12 CFR 359.


 


10.          Tax Reimbursement.


 


(a)  If any payment or benefit (within
the meaning of Section 280G(b)(2) of the Code), to the Executive or
for his benefit, which is paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise in connection with, or
arising out of, his employment with the Employer as result of a change of control
(a “Payment” or “Payments”), would be subject to the excise tax imposed by Section 4999
of the Code or any interest or penalties are incurred by the Executive with
respect to such excise tax (such excise tax, together with any such interest
and penalties, are collectively referred to as the “Excise Tax”), then, provided
the Executive complies fully with the non-compete provisions of Section 4
hereof, the Executive will be entitled to receive an additional payment (a “Gross-Up
Payment”).  The amount of the Gross-Up
Payment will be such that after payment by the Executive of all taxes
(including any interest or penalties, other than interest and penalties imposed
by reason of the Executive’s failure to timely file a tax return or pay taxes
shown due on his return, imposed with respect to such taxes and the Excise
Tax), including any Excise Tax imposed upon the Gross-Up Payment, the Executive
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Payments.


 


(b)  An initial determination as to
whether a Gross-Up Payment is required pursuant to this Agreement and the
amount of such Gross-Up Payment shall be made by an accounting firm selected by
the Employer and reasonably acceptable to the Executive (the “Accounting Firm”).  The Accounting Firm shall provide its
determination (the “Determination”), together with detailed supporting
calculations and documentation, to the Employer and the Executive within five (5) days
of the termination date if applicable, or such other time as requested by the Employer
or by the Executive (provided the Executive reasonably believes that any of the
Payments may be subject to the Excise Tax) and if the Accounting Firm
determines that no Excise Tax is payable by the Executive with respect to a
Payment or Payments, it shall furnish the Executive with an opinion reasonably
acceptable to the Executive that no Excise Tax will be imposed with respect to
any such Payment or Payments.  For
purposes of determining the amount of the Gross-Up Payment, the Executive shall
be deemed to pay federal income taxes at the highest marginal rate of federal
income taxation in the calendar year in which the Gross-Up Payment is to be
made and state and local income taxes at the highest marginal rates of taxation
in the state and locality of the Executive’s residence on the date of 


 


11

















 


Determination,
net of the maximum reduction in the federal income taxes which could be
obtained from deduction of such state and local taxes.  Within ten (10) days of the delivery of
the Determination to the Executive, the Executive shall have the right to
dispute the Determination (the “Dispute”). 
The Gross-Up Payment, if any, as determined pursuant to this Section 10
shall be paid by the Employer to the Executive within five (5) days of the
receipt of the Determination.  The
existence of the Dispute shall not in any way affect the Executive’s right to
receive the Gross-Up Payments in accordance with the Determination.  Upon the final resolution of a Dispute, the Employer
shall promptly pay to the Executive any additional amount required by such
resolution.  If there is no Dispute, the
Determination shall be binding, final and conclusive upon the Employer and the
Executive subject to the application of the next following paragraph of this
Section.


 


(c)  Notwithstanding anything contained
in this Agreement to the contrary, if according to the Determination, an Excise
Tax will be imposed on any Payment or Payments, the Employer shall pay to the
applicable government taxing authorities as Excise Tax withholding, the amount
of the Excise Tax that the Employer has actually withheld from the Payment or
Payments.  In the event that the Excise
Tax is subsequently determined to be less than the amount taken into account
hereunder on the date of Determination, the Executive shall repay to the Employer,
at the time that the amount of such reduction in Excise Tax is finally
determined, the portion of the Gross-Up Payment attributable to such reduction
plus interest on the amount of such reduction at the rate provided in Section 1274(b)(2)(B) of
the Code.  In the event that the Excise
Tax is determined to exceed the amount taken into account hereunder at the date
of Determination (including by reason of any payment the existence or amount of
which cannot be determined at the time of the Gross-Up Payment), the Employer
shall make an additional Gross-Up Payment in respect of such excess (plus any
interest payable with respect to such excess) at the time that the amount of
such excess is finally determined.


 


11.          Return of Materials.  Upon
termination of Executive’s employment hereunder, Executive shall promptly
deliver to Employer all correspondence, manuals, letters, notes, notebooks,
reports and any other documents or tangible items containing or constituting
confidential information about the business of Employer, as well as all means
of access to Employer’s facility and/or computer system and regardless of the
medium in which Executive maintains or stores the same. In connection
therewith, Executive shall, at the request of the Company and/or the Bank,
execute and deliver his personal Certificate, under oath, confirming that no
computer at Executive’s home or at any other site (exclusive of Bank or Company
offices) accessed or controlled by Executive contains any such business
materials.


 


12.          Regulatory Contingency.   All sections of this Agreement that are
applicable to Executive’s employment after the Bank opens for business are
subject to approval by the OCC and the FDIC and, subject to those approvals,
shall be effective to such employment as of the tenth (10th) day
after the date that the Bank receives the last regulatory approval necessary to
commence operations as a national bank association with an initial working
capital as determined needed by the Company Board.


 


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13.          Arbitration.
 Except as otherwise provided herein, in the event of any controversy,
dispute or claim arising out of, or relating to this Agreement, or the breach
thereof, or arising out of any other matter relating to Executive’s employment,
the parties agree that such controversy, dispute or claim shall be settled by
arbitration, conducted in Horry County, South Carolina, in accordance with this
Section 13 and the Commercial Arbitration Rules of the American
Arbitration Association (“AAA”). The matter shall be heard and
decided, and awards rendered by a panel of three arbitrators (the “Arbitration
Panel”). The Employer and Executive shall each select one arbitrator
from the AAA National Panel of Commercial Arbitrators (the “Commercial Panel”)
and those two arbitrators shall select a third arbitrator; provided, however,
that in the event the two arbitrators cannot agree on a third arbitrator, the
AAA shall select a third arbitrator from the Commercial Panel. The award
rendered by the Arbitration Panel shall be in writing, signed by at least two
of the members of the Arbitration Panel, and shall be based on the
preponderance of the credible evidence submitted to the Arbitration Panel and
described or summarized in such award. The award rendered by the
Arbitration Panel shall be final and binding as between the parties hereto and
their heirs, executors, administrators, successors and assigns, and judgment on
the award may be entered by any court having jurisdiction thereof. The Employer
and Executive will each bear their own costs for legal representation in any
arbitration, except that the Arbitration Panel will have the authority to award
all remedies provided by applicable law, including recovery of attorney fees
when so provided by applicable law. All arbitrators’ fees and other
administrative fees in connection with any arbitration hereunder will be allocated
equally to and paid by the Employer and Executive; provided, however, that the
Arbitration Panel may require all or a portion of such fees and expenses to be
paid by Executive if the Arbitration Panel determines that Executive’s position
in the arbitration proceeding was without merit.  Upon
request of either party, (i) the arbitrator may require that the subject
arbitration proceedings be kept confidential, and (ii) no party shall
disclose or permit the disclosure of any information produced or disclosed in
the arbitration proceedings until the award is final.  A party shall not be prevented from seeking
temporary injunctive relief before a court of competent jurisdiction in an
emergency or other urgent or exigent situation, but responsibility for resolution
of any disputes shall be appropriately transferred to the arbitrator upon
appointment in accordance with the provisions hereof.


 


14.          Miscellaneous.


 


(a)  Notices. Any notices
required or permitted to be given under this Agreement shall be sufficient if
in writing, and if personally delivered, sent by confirmed electronic
transmission, or sent by first class certified or registered mail, postage
prepaid, return receipt requested — in the case of Executive, to his residence
address as set forth in the books and records of Employer, and in the case of
Employer, to the address of the Company’s principal place of business, in care
of the Chairman of the Board of Directors of the Company — or to such other
person or at such other address with respect to each party as such party shall
notify the other in writing. Unless such notice provides for a later effective
date, such notices shall be deemed to be effective as of the earliest of (i) actual
receipt by the addressee, (ii) the first business day after the date of
electronic transmission thereof, or (iii) the second business day after
deposit of the same into a United States postal authority receptacle.


 


13

















 


(b)  Assignment. This Agreement is personal and shall in no way be
subject to assignment by Executive.  It
shall be binding upon and shall inure to the benefit of Employer and Employer’s
successors and assigns, and its economic rights and benefits shall inure to the
benefit of Executive or his heirs or duly constituted legal representatives.


 


(c)  Severability. Except as
noted below, should any provision of this Agreement be declared or determined
by any court of competent jurisdiction or arbitrator to be unenforceable or
invalid for any reason, the validity of the remaining parts, terms, or
provisions of this Agreement shall not be affected thereby and the invalid or
unenforceable part, term or provision shall be deemed not to be a part of this
Agreement.


 


(d)  Reformation. If any of the
covenants or promises of this Agreement are determined by any court of law or
equity or arbitrator, with jurisdiction over this matter, to be unreasonable or
unenforceable, in whole or in part, as written, Executive hereby consents to
and affirmatively requests that said court or arbitrator, to the extent legally
permissible, reform the covenant or promise so as to be reasonable and
enforceable and that said court or arbitrator enforce the covenant or promise
as so reformed.


 


(e)  Waiver; Amendment.  No waiver in any instance by any party of any
provision of this Agreement shall be deemed a waiver by such party of such
provision in any other instance or a waiver of any other provision hereunder in
any instance.  This Agreement cannot be
amended except in writing signed by the party to be charged.


 


(f)  Governing Law. This
Agreement shall be governed by and construed in accordance with the laws of the
State of South Carolina.


 


(g)  Entire Agreement. This
Agreement contains the entire agreement of the parties concerning the matters set
forth herein, and all promises, representations, understandings, arrangements
and prior agreements regarding the subject matter hereof, other than those set
forth herein, are superseded hereby.


 


(h)  Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which
shall constitute a single instrument.


 


(i)  Third Party
Beneficiary.  The Bank is intended to
be a third party beneficiary hereunder and shall become a party hereto upon ratification
by its Board of Directors after the date that the Bank receives the last
regulatory approval necessary to commence operations as a national bank
association


 


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IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as of the date first above written.


 


 


Coastal
Carolina Bancshares, Inc.


 


	
  By:

  	
  /s/ Egerton Burroughs

  	
   

  
	
   

  	
     J. Egerton Burroughs

  	
   

  
	
  Its:

  	
     Vice Chairman

  	
   

  
	
   

  
	
   

  	
   

  
	
  “EXECUTIVE”

  	
   

  
	
   

  	
   

  
	
  /s/ Michael D. Owens

  	
   

  
	
  Michael D. Owens

  	
   

  
					



 


 


Ratified by the Bank, effective this     
day of                     ,
200    .


 


 


	
  “BANK”

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Coastal Carolina National Bank

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 


15