Exhibit 10.2


 


EXECUTION COPY


 


EMPLOYMENT AGREEMENT


 


THIS EMPLOYMENT AGREEMENT (this “Agreement”) dated as
of December 31, 2008, is made by and between CommunitySouth Financial
Corporation, a South Carolina corporation (the “Company”), CommunitySouth Bank
and Trust (the “Bank”), a South Carolina state bank and wholly owned subsidiary
of the Company (the Company and the Bank collectively referred to herein as the
“Employer”), and David A. Miller, an individual resident of South Carolina (the
“Executive”).


 


The Employer presently employs the Executive as its
President and Chief Operations Officer of the Bank and the Company.  The Employer recognizes that the Executive’s
contribution to the growth and success of the Bank and the Company is
substantial.  The Employer desires to
provide for the continued employment of the Executive and to make certain
changes in the Executive’s employment arrangements which the Employer has
determined will reinforce and encourage the continued dedication of the
Executive to the Employer and will promote the best interests of the Employer
and the Company’s shareholders.  The
Executive is willing to terminate his interests and rights under the existing
employment agreement with the Employer and to continue to serve the Employer on
the terms and conditions herein provided. 
Certain terms used in this Agreement are defined in Section 17
hereof.


 


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


 


1.             Employment.  The Employer shall continue to employ the
Executive, and the Executive shall continue to serve the Employer, as President
and Chief Operations Officer of the Company and the Bank upon the terms and
conditions set forth herein.  The
Executive shall have such authority and responsibilities consistent with his
position as are set forth in the Company’s or the Bank’s Bylaws or assigned by
the Company’s or the Bank’s Board of Directors (collectively, the “Board”) from
time to time.  The Executive shall devote
his full business time, attention, skill and efforts to the performance of his
duties hereunder, except during periods of illness or periods of vacation and
leaves of absence consistent with Bank policy. 
The Executive may devote reasonable periods to service as a director or
advisor to other organizations, to charitable and community activities, and to
managing his personal investments; provided that, such activities do not
materially interfere with the performance of his duties hereunder and are not
in conflict or competitive with, or adverse to, the interests of the Company or
the Bank.


 


The Executive is currently serving as a director of
each of the Company and the Bank.  The
Company shall nominate the Executive for election as a director at such times
as necessary so that the Executive will, if elected by shareholders, remain a
director of the Company throughout the term of this Agreement.  The Executive hereby consents to serving as a
director and to being named as a director of the Company in documents filed
with the Securities and Exchange Commission. 
The Board shall undertake every lawful effort to ensure that the
Executive continues throughout the term of employment to be elected or
reelected as a director of the Bank.


 


2.             Term.  Unless earlier terminated as provided herein,
the Executive’s employment under this Agreement shall commence on the date
hereof and be for a term (the “Term”) of three years.  At the end of each day of the Term, the Term
shall be extended for an additional day so that the remaining term shall
continue to be three years; provided that, the Executive or the Employer
may at any time, by written notice, fix the Term to a finite term of three
years commencing with the date of the notice. 
Notwithstanding the foregoing, the Term of employment hereunder will end
on the date that the Executive attains the retirement age, if any, specified in
the Bylaws of the Bank for directors of the Bank.


 


3.               Compensation and
Benefits.


 


(a)   The
Employer shall pay the Executive an initial annual base salary of $190,000,
which shall be paid in accordance with the Employer’s standard payroll
procedures.  The Board or the Compensation
Committee


 

















 


shall review the Executive’s performance and salary at
least annually and the Board may increase the Executive’s base salary if it
determines in its sole discretion that an increase is appropriate.


 


(b)   The
Executive shall participate in the Employer’s long-term equity incentive
program and be eligible for the grant of stock options, restricted stock, and
other awards thereunder or under any similar plan adopted by the Company.  Any options or similar awards shall be issued
to Executive at an exercise price of not less than the stock’s current fair
market value as of the date of grant, and the number of shares subject to such
grant shall be fixed on the date of grant.


 


(c)   The
Executive shall participate in all retirement, medical, welfare and other
benefit plans or programs of the Employer now or hereafter applicable generally
to employees of the Employer or to a class of employees that includes senior
executives of the Employer.  Employer
will cover the cost of premium payments for medical, dental, vision and
disability insurance for the Executive and medical, dental, and vision
insurance for his dependents.  The
Executive shall also be eligible to receive directors’ fees in the same amount
as outside directors as determined by the Board in its sole discretion from
time to time.  The Employer shall pay
such fees in accordance with the Employer’s standard payroll procedures.


 


(d)   The
Employer shall provide the Executive with a term life insurance policy
providing for death benefits totaling $500,000 payable to the Executive’s
spouse and heirs and $500,000 payable to the Employer, and the Executive shall
cooperate with the Employer in the securing and maintenance of such
policy.  If Executive is taxed by state
or federal authorities with respect to Employer’s payment of the key man life
insurance policy, Executive’s compensation payable hereunder shall be
increased, on a tax gross-up basis, so as to reimburse the Executive for the
additional tax payable by the Executive as a result of Employer’s payment of
the key man life insurance premiums taking into account all taxes payable by
the Executive with respect to such tax gross-up payments hereunder, so that the
Executive shall be, after payment of all taxes, in the same financial position
as if no taxes with respect to the key man life insurance policy had been
imposed upon him.  The Employer shall
require and pay the cost of an annual physical for the Executive.


 


(e)   The
Employer shall provide the Executive with an automobile either owned or leased
by the Company or the Bank of a make and model appropriate to the Executive’s
status.  The monthly payment of this
automobile shall not exceed $750 per month. 
Insurance, taxes and other related automobile expenses shall also be
paid by the Bank.


 


(f)    The
Employer shall pay the dues pertaining to area country, social, and civic clubs
and shall designate the Executive as the authorized user of such membership for
so long as the Executive remains the President or the Chief Operations Officer
of the Employer and this Agreement remains in force.


 


(g)   The
Employer shall reimburse the Executive for reasonable travel and other
expenses, including cell phone expenses related to the Executive’s duties,
which are incurred and accounted for in accordance with the normal practices of
the Employer.  The Employer shall
reimburse the Executive for such expenses within 60 days of Executive’s
incurring such expense.


 


(h)   The
Employer shall provide the Executive with four weeks’ annual paid time off,
which includes sick leave, in accordance with any banking rules or
regulations governing paid time off leave. 
Any payments made by the Employer to the Executive as compensation for
paid time off days shall be paid in accordance with the Employer’s standard
payroll procedures.


 


(i)    The
Executive shall be eligible to receive cash bonuses based on the Executive’s
achievement of specified goals and criteria. 
These goals and criteria may include both annual and long-term goals,
may provide for vesting over a specified time period, and shall be established
annually by the Board (or an appropriate committee of the Board).  Any bonus payment made pursuant to this Section 3(i) shall
be determined by the Board and made by the earlier of (i) 70 days after
the previous year end for which the bonus was earned by the Executive or (ii) the
first pay period following the Employer’s press release announcing its previous
year’s financial performance.


 


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4.               Termination.


 


(a)   The
Executive’s employment under this Agreement may be terminated prior to the end
of the Term only as provided in this Section 4.


 


(b)   The
Agreement will be terminated upon the death of the Executive.  In this event, the Employer shall pay
Executive’s estate any sums due him as base salary and/or reimbursement of
expenses through the end of the month during which death occurred in accordance
with the Employer’s standard payroll procedures.  The Employer shall also pay the Executive’s
estate any bonus earned 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 3(i) above.  Any bonus that is earned in the year of death
will be paid on the earlier of (i) 70 days after the year end in which the
Executive died or (ii) the first pay period following the Employer’s press
release announcing its financial performance for the year in which the
Executive 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 Company and the Bank for the entire
year and prorated through the date of Executive’s death.


 


(c)   The
Employer may terminate the Executive’s employment upon the Disability of the
Executive for a period of 180 days. 
During the period of any Disability leading up to the termination
Executive’s Employment under this provision, the Employer shall continue to pay
the Executive his full base salary at the rate then in effect and all
perquisites and other benefits (other than any bonus) in accordance with the
Employer’s standard payroll procedures until the Executive becomes eligible for
benefits under any long-term disability plan or insurance program maintained by
the Employer; provided that, the amount of any such payments to the Executive
shall be reduced by the sum of the amounts, if any, payable to the Executive
for the same period under any other disability benefit or pension plan covering
the Executive.  Furthermore, the Employer
shall pay the Executive any bonus earned 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 3(i) above.  Any bonus that is earned in the year of
Disability will be paid on the earlier of (i) 70 days after the year end
in which Executive became Disabled or (ii) the first pay period following
the Employer’s press release announcing its financial performance for the year
in which the Executive became Disabled. 
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 Company
and the Bank for the entire year and prorated based on the number of days the
Executive worked during the year of Executive’s Disability.  Nothing herein shall prohibit the Employer
from hiring an acting President prior to the expiration of this 180-day period.


 


(d)   The
Employer may terminate the Executive’s employment for Cause upon delivery of a
Notice of Termination to the Executive. 
If the Executive’s employment is terminated for Cause under this
provision, the Executive shall receive only any sums due him as base salary
and/or reimbursement of expenses through the date of termination, which shall
be paid in accordance with the Employer’s standard payroll procedures.


 


(e)   The
Employer may terminate the Executive’s employment without Cause upon delivery
of a Notice of Termination to the Executive. 
If the Executive’s employment is terminated without Cause under this
provision, subject to the possibility of a six-month delay described below in
this Section 4(e), beginning on the first day of the month following date
of the Executive’s termination, and continuing on the first day of the month
for the next 24 months, the Employer shall pay to the Executive severance
compensation in an amount equal to 100% of his then current monthly base
salary.  Employer shall also pay the
Executive any bonus earned through the date of termination (including any
amounts awarded for previous years but which were not yet paid).  Any bonus for previous years which was not
yet paid will be paid pursuant to the terms as set forth in Section 3(i) above.  Any bonus that is earned in the year of the
Executive’s termination will be paid on the earlier of (i) 70 days after
the year end in which the Executive was terminated or (ii) the first pay
period following the Employer’s press release announcing its previous year’s
financial performance.  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 Company and the Bank for the
entire year and prorated through the date of Executive’s termination of
employment.


 


If when Executive’s employment terminates he is a
specified employee within the meaning of Section 409A of the Code, and if
the benefits under this Section 4(e) would be considered deferred
compensation under Section 


 


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409A, and finally if an exemption from the six-month delay requirement
of Section 409A(a)(2)(B)(i) is not available, the following benefits
under this Section 4(e) shall be paid to the Executive as follows:
severance compensation in an amount equal to 7 times his then current monthly
base salary, any bonus for previous years which was not yet paid will be paid
in a single lump sum on the date that is six months and one day following date
of Executive’s termination; thereafter on the first day of the month for the
next 17 months, the Employer shall pay to the Executive severance compensation
in an amount equal to 100% of his then current monthly base salary.  Any bonus that is earned in the year of the
Executive’s termination will be paid pursuant to the terms as set forth in Section 3(i) above.


 


In addition, for the next 24 months following date of
the Executive’s termination, the Employer shall continue to provided the
Executive with an automobile either owned or leased by the Company or the Bank
as well as insurance, taxes and other related automobile expenses as stated
above in Section 3(e); provided that such total monthly expenses shall not
exceed the monthly cost of such benefits during the Executive’s employment.


 


In addition, for the next 24 months following date of
the Executive’s termination, the Employer shall reimburse the Executive for the
cost of COBRA medical, dental, vision and disability insurance coverage for
himself and his dependents for the duration of the Executive’s COBRA period,
provided the Executive timely elects COBRA coverage; provided, however, (A) if
the Executive’s COBRA period ends within 24 months of Executive’s termination,
the Employer shall reimburse the Executive for the monthly cost of medical,
dental, vision and disability insurance coverage obtained for himself and his
dependents, provided such reimbursements shall not exceed the monthly cost of
coverage under COBRA during the Executive’s COBRA period; (B) if the
Executive becomes eligible for coverage under another group health or dental
insurance plan at any time within 24 months of Executive’s termination, the
Employer shall only be required to reimburse the Executive for any
out-of-pocket and deductible expenses the Executive incurs with respect to such
coverages for himself and his dependents; and, in the case of both clause (A) and
(B) above, such reimbursements shall be paid as soon as administratively
practicable, but in no event shall any reimbursement be paid after the last day
of the calendar year following the calendar year in which the expense was
incurred.


 


At the time of Termination of Employment, and as a
condition to the Employer’s obligation to provide any severance benefits as
stated in this Section 4(e), the Employer and the Executive shall enter
into the release attached hereto as Exhibit A acknowledging such remaining
obligations and discharging both parties, as well as the Employer’s officers,
directors and employees with respect to their actions for or on behalf of the
Employer, from any other claims or obligations arising out of or in connection
with the Executive’s employment by the Employer, including the circumstances of
such termination.


 


(f)    The
Executive may terminate his employment at any time by delivering a Notice of
Termination at least 14 days prior to such termination, and such termination
shall not in and of itself be, nor shall it be deemed to be, a breach of this
Agreement.  If the Executive terminates
his employment under this provision, the Executive shall receive any sums due
him as base salary and/or reimbursement of expenses through the date of such
termination, which shall be paid in accordance with the Employer’s standard
payroll procedures.


 


(g)   Upon
the occurrence of a Change in Control, and regardless of whether the Executive
remains employed by the Employer or its successor following a Change in
Control, the Executive shall be entitled to the following:


 


(i)            within
15 days, the Employer shall pay the Executive cash compensation in an amount
equal to 2.99 times his base amount (as defined under Section 280G of the
Code) as well as any bonus earned through the date of the Change in Control
(equal to a pro rata portion of the Executive’s previous year’s bonus based on
the number of days the Executive was employed during the year of the Change in
Control) and any bonus awarded for a previous year but which was not yet paid,
subject to the provisions of Section 4(k) and (l) below;


 


(ii)           for
a period of three years, the Employer shall at its expense continue on behalf
of the Executive and his dependents and beneficiaries the life insurance,
disability, medical, dental, and hospitalization benefits provided (x) to
the Executive at any time during the 90-day period prior to


 


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the Change in Control or at any time thereafter or (y) to
other similarly situated executives who continue in the employ of the
Employer.  Such coverage and benefits
(including deductibles and costs) shall be no less favorable to the Executive
and his dependents and beneficiaries than the most favorable of such coverages
and benefits referred to above.  The
Employer’s obligation hereunder with respect to the foregoing benefits shall be
limited to the extent that the Executive obtains any such benefits pursuant to
a subsequent employer’s benefit plans, in which case the Employer may reduce
the coverage of any benefits it is required to provide the Executive hereunder
as long as the aggregate coverages and benefits of the combined benefit plans
are no less favorable to the Executive than the coverages and benefits required
to be provided hereunder.  This
subsection (ii) shall not be interpreted so as to limit any benefits to
which the Executive or his dependents or beneficiaries may be entitled under
any of the Employer’s employee benefit plans, programs, or practices following
the Executive’s Termination of Employment, including, without limitation,
retiree medical and life insurance benefits; and


 


(iii)          the restrictions on any outstanding incentive
awards (including restricted stock) granted to the Executive under the Company’s
or the Bank’s long-term equity incentive program or any other incentive plan or
arrangement shall lapse and such awards shall become 100% vested, all stock
options and stock appreciation rights granted to the Executive shall become
immediately exercisable and shall become 100% vested, all performance units
granted to the Executive shall become 100% vested (except to the extent such
acceleration of vesting of any such award would make compensation payable to
the Executive non-deductible under Section 162(m) of the Code), and
the restrictive covenants contained in Section 9 shall not apply to the
Executive.


 


(h)   With
the exceptions of the provisions of this Section 4, and the express terms
of any benefit plan under which the Executive is a participant, it is agreed
that, upon Executive’s Termination of Employment, the Employer shall have no
obligation to the Executive for, and the Executive waives and relinquishes, any
further compensation or benefits (exclusive of COBRA benefits).  Unless otherwise stated in this Section 4,
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.


 


(i)    In
the event that the Executive’s employment is terminated for any reason, as a
condition to the Employer’s obligation to pay any severance hereunder, the
Executive shall resign as a director of the Company and the Bank effective upon
his termination of employment.


 


(j)    The
Company is aware that upon the occurrence of a Change in Control, the Board or
a shareholder of the Company may then cause or attempt to cause the Company to
refuse to comply with its obligations under this Agreement, or may cause or
attempt to cause the Company to institute, or may institute, litigation seeking
to have this Agreement declared unenforceable, or may take, or attempt to take,
other action to deny the Executive the benefits intended under this Agreement.
In these circumstances, the purpose of this Agreement could be frustrated. It
is the intent of the parties that the Executive not be required to incur the
legal fees and expenses associated with the protection or enforcement of the
Executive’s rights under this Agreement by litigation or other legal action
because such costs would substantially detract from the benefits intended to be
extended to the Executive hereunder, nor be bound to negotiate any settlement
of the Executive’s rights hereunder under threat of incurring such costs.
Accordingly, if at any time after a Change in Control, it should appear to the
Executive that the Company is acting or has acted contrary to or is failing or
has failed to comply with any of its obligations under this Agreement for the
reason that it regards this Agreement to be void or unenforceable or for any
other reason, or that the Company has purported to terminate the Executive’s
employment for Cause or is in the course of doing so in either case contrary to
this Agreement, or in the event that the Company or any other person takes any
action to declare this Agreement void or unenforceable, or institutes any
litigation or other legal action designed to deny, diminish or recover (other
than as required by law) from the Executive the benefits provided or intended
to be provided to the Executive hereunder, and the Executive has acted in good
faith to perform the Executive’s obligations under this Agreement, the Company
irrevocably authorizes the Executive from time to time to retain counsel of the
Executive’s choice at the expense of the Company to represent the Executive in
connection with the protection and enforcement of


 


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the Executive’s rights hereunder, including without
limitation representation in connection with termination of the Executive’s
employment contrary to this Agreement or with the initiation or defense of any
litigation or other legal action, whether by or against the Executive or the
Company or any director, officer, shareholder or other person affiliated with
the Company, in any jurisdiction. The reasonable fees and expenses of counsel
selected from time to time by the Executive as hereinabove provided shall be
paid or reimbursed to the Executive by the Company on a regular, periodic basis
upon presentation by the Executive of a statement or statements prepared by
such counsel.  If other officers or key
executives of the Company have retained counsel in connection with the
protection and enforcement of their rights under similar agreements between
them and the Company, and, unless in the Executive’s sole judgment use of
common counsel could be prejudicial to the Executive or would not be likely to
reduce the fees and expenses chargeable hereunder to the Company, the Executive
agrees to use the Executive’s best efforts to agree with such other officers or
executives to retain common counsel.


 


(k)   The
parties intend that the severance payments and other compensation provided for
herein are reasonable compensation for the Executive’s services to the Employer
and shall not constitute “excess parachute payments” within the meaning of Section 280G
of the Code.  In the event that the
Employer’s independent accountants acting as auditors for the Employer on the
date of a Change in Control determine that the payments provided for herein
constitute “excess parachute payments,” then the compensation payable hereunder
shall be reduced to an amount the value of which is $1.00 less than the maximum
amount that could be paid to the Executive without the compensation being
treated as “excess parachute payments” under Section 280G.  The allocations of the reduction required
hereby among the termination benefits payable to the Executive shall be
determined by the Executive.


 


(l)    Notwithstanding
any other provision in this Agreement, if the Executive is determined by the
Board, as of the date of termination of employment with the Bank, to be a “specified
employee,” as such term is defined in Treasury Regulation §1.409A-1(i), and if
any benefits paid to the Executive hereunder would be considered deferred
compensation under Section 409A, and finally if an exemption from the six
month delay requirement of Section 409A(a)(2)(B)(i) is not available,
then all severance payments and other payment, except for other payments of
base salary at the normal payroll schedule, reimbursement of expenses, and
other than as a result of death, that would normally be paid within six months
and one day from the date of termination of employment shall be paid on the first
day of the seventh month following termination of employment.


 


(m)  If
the Executive is suspended or temporarily prohibited from participating, in any
way or to any degree, in the conduct of the Employer’s affairs by (1) a
notice served under section 8(e) or (g) of Federal Deposit Insurance
Act (12 U.S.C. 1818 (e) or (g)) or (2) as a result of any other
regulatory or legal action directed at the Executive by any regulatory or law
enforcement agency having jurisdiction over the Executive (each of the foregoing
referred to herein as a “Suspension Action”), and if this Agreement is not
terminated, the Employer’s obligations under this Agreement shall be suspended
as of the earlier of the effective date of such Suspension Action or the date
on which the Executive was provided notice of the Suspension Action, unless
stayed by appropriate proceedings.  If
the charges underlying the Suspension Action are dismissed, the Bank shall:


 


(i)            pay
on the first day of the first month following such dismissal of charges (or as provided
elsewhere in this Agreement) the Executive all of the compensation withheld while
the obligations under this Agreement were suspended; and


 


(ii)           reinstate
any such obligations which were suspended.


 


Notwithstanding anything to the contrary herein, if
the Executive is removed or permanently prohibited from participating, in any
way or to any degree, in the conduct of the Employer’s affairs by (1) an
order issued under section 8(e)(4) or (g)(1) of the Federal Deposit
Insurance Act (12 U.S.C. Section 1818 (e)(4) or (g)(1)) or (2) any
other legal or law enforcement action (each of the foregoing referred to herein
as a “Removal Action”), all obligations of the Executive under this Agreement
shall terminate as of the effective date of the Removal Action, but any vested
rights of the parties hereto shall not be affected.


 


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Notwithstanding anything to the contrary herein, if
the Employer is in default (as defined in section 3(x)(1) of the Federal
Deposit Insurance Act, 12 U.S.C. Section 1813(x)(1)), all obligations
under this Agreement shall terminate as of the date of default, but this
paragraph (4)(m) shall not affect any vested rights of the parties hereto.


 


Any payments made to the Executive pursuant to this
Agreement, or otherwise, are subject to and conditioned upon their compliance
with 12 U.S.C. Section 1828(k) and any regulations promulgated
thereunder.


 


5.             Ownership
of Work Product.  The Employer shall
own all Work Product arising during the course of the Executive’s employment
(prior, present or future).  For purposes
hereof, “Work Product” shall mean all intellectual property rights, including
all Trade Secrets, U.S. and international copyrights, patentable inventions,
and other intellectual property rights in any programming, documentation,
technology or other work product that relates to the Employer, its business or
its customers and that the Executive conceives, develops, or delivers to the
Employer at any time during his employment, during or outside normal working
hours, in or away from the facilities of the Employer, and whether or not
requested by the Employer.  If the Work
Product contains any materials, programming or intellectual property rights that
the Executive conceived or developed prior to, and independent of, the
Executive’s work for the Employer, the Executive agrees to point out the
pre-existing items to the Employer and the Executive grants the Employer a
worldwide, unrestricted, royalty-free right, including the right to sublicense
such items.  The Executive agrees to take
such actions and execute such further acknowledgments and assignments as the
Employer may reasonably request to give effect to this provision.


 


6.             Protection
of Trade Secrets.  The Executive
agrees to maintain in strict confidence and, except as necessary to perform his
duties for the Employer, the Executive agrees not to use or disclose any Trade
Secrets of the Employer during or after his employment.  “Trade Secret” means information, including a
formula, pattern, compilation, program, device, method, technique, process,
drawing, cost data or customer list, that: (i) derives 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 its disclosure or use; and (ii) is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy.


 


7.             Protection
of Other Confidential Information. 
In addition, the Executive agrees to maintain in strict confidence and,
except as necessary to perform his duties for the Employer, not to use or
disclose any Confidential Business Information of the Employer during his
employment and for a period of 24 months following termination of the Executive’s
employment.  “Confidential Business
Information” shall mean any internal, non-public information (other than Trade
Secrets already addressed above) concerning the Employer’s financial position
and results of operations (including revenues, assets, net income, etc.);
annual and long-range business plans; product or service plans; marketing plans
and methods; training, educational and administrative manuals; customer and
supplier information and purchase histories; and employee lists.  The provisions of Sections 6 and 7 shall also
apply to protect Trade Secrets and Confidential Business Information of third
parties provided to the Employer under an obligation of secrecy.


 


8.             Return
of Materials.  The Executive shall
surrender to the Employer, promptly upon its request and in any event upon
termination of the Executive’s employment, all media, documents, notebooks,
computer programs, handbooks, data files, models, samples, price lists,
drawings, customer lists, prospect data, or other material of any nature
whatsoever (in tangible or electronic form) in the Executive’s possession or
control, including all copies thereof, relating to the Employer, its business,
or its customers.  Upon the request of
the Employer, the Executive shall certify in writing compliance with the
foregoing requirement.


 


9.             Restrictive
Covenants.


 


(a)           No
Solicitation of Customers.  During
the Executive’s employment with the Employer and for a period of 24 months
thereafter, the Executive shall not (except on behalf of or with the prior
written consent of the Chairman of the Board), either directly or indirectly,
on the Executive’s own behalf or in the service or on behalf of others, (A) solicit,
divert, or appropriate to or for a Competing Business, or (B) attempt to
solicit, divert, or appropriate to or for a Competing Business, any person or
entity that is or was a customer of the Employer or any


 


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of its Affiliates at any time during the 12 months prior to the date of
termination and with whom the Executive has had material contact.


 


(b)           No
Recruitment of Personnel.  During the
Executive’s employment with the Employer and for a period of 24 months
thereafter, the Executive shall not, either directly or indirectly, on the
Executive’s own behalf or in the service or on behalf of others, (A) solicit,
divert, or hire away, or (B) attempt to solicit, divert, or hire away, to
any Competing Business located in the Territory, any employee of or consultant
to the Employer or any of its Affiliates, regardless of whether the employee or
consultant is full-time or temporary, the employment or engagement is pursuant
to written agreement, or the employment is for a determined period or is at
will.


 


(c)           Non-Competition
Agreement.  During the Executive’s
employment with the Employer and for a period of 24 months following any
termination (as opposed to expiration) of this Agreement, the Executive shall
not (without the prior written consent of the Chairman of the Board) compete
with the Employer or any of its Affiliates by, directly or indirectly, forming,
serving as an organizer, director or officer of, or consultant to, or acquiring
or maintaining more than a 1% passive investment in, a depository financial
institution or holding company therefore if such depository institution or
holding company has, or upon formation will have, one or more offices or
branches located in the Territory.


 


(d)           Notwithstanding
the foregoing, the Executive may serve as an officer of or consultant to a
depository institution or holding company therefor even though such institution
operates one or more offices or branches in the Territory, if the Executive’s
employment does not directly involve, in whole or in part, the depository
financial institution’s or holding company’s operations in the Territory.


 


(e)           The
parties hereby agree that the provisions set forth in this Section 9 shall
not apply following a Change in Control.


 


10.           Independent
Provisions.  The provisions in each
of the above Sections 9(a), 9(b), and 9(c) are independent, and the
unenforceability of any one provision shall not affect the enforceability of
any other provision.


 


11.           Successors;
Binding Agreement. The rights and obligations of this Agreement shall bind
and inure to the benefit of the surviving corporation in any merger or
consolidation in which the Employer is a party, or any assignee of all or
substantially all of the Employer’s business and properties.  The Executive’s rights and obligations under
this Agreement may not be assigned by him, except that his right to receive
earned but unpaid compensation, unreimbursed expenses and other rights, if any,
provided under this Agreement which survive termination of this Agreement shall
pass after death to the personal representatives of his estate.


 


12.           Notice.  For the purposes of this Agreement, notices
and all other communications provided for in the Agreement shall be in writing
and shall be deemed to have been duly given when personally delivered or sent
by certified mail, return receipt requested, postage prepaid, addressed to the
respective addresses last given by each party to the other; provided, however,
that all notices to the Employer shall be directed to the attention of the
Chairman of the Board with a copy to the Secretary.  All notices and communications shall be
deemed to have been received on the date of delivery thereof.


 


13.           Governing
Law.  This Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of South Carolina without giving effect to the conflict of laws principles
thereof.  Any action brought by any party
to this Agreement shall be brought and maintained in a court of competent
jurisdiction in State of South Carolina.


 


14.           Non-Waiver.  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 to be a waiver of such provisions or rights, or in any way affect
the validity of this Agreement.


 


8
















 


15.                                 Enforcement.  The Executive agrees that in the event of any
breach or threatened breach by the Executive of any covenant contained in Section 9(a),
9(b), or 9(c) hereof, the resulting injuries to the Employer would be
difficult or impossible to estimate accurately, even though irreparable injury
or damages would certainly result. 
Accordingly, an award of legal damages, if without other relief, would
be inadequate to protect the Employer. 
The Executive, therefore, agrees that in the event of any such breach,
the Employer shall be entitled to obtain from a court of competent jurisdiction
an injunction to restrain the breach or anticipated breach of any such
covenant, and to obtain any other available legal, equitable, statutory, or
contractual relief.  Should the Employer
have cause to seek such relief, no bond shall be required from the Employer,
and the Executive shall pay all attorney’s fees and court costs which the
Employer may incur to the extent the Employer prevails in its enforcement
action.


 


16.                                 Saving
Clause.  The provisions of this
Agreement shall be deemed severable and the invalidity or unenforceability of
any provision shall not affect the validity or enforceability of the other
provisions hereof.  If any provision or
clause of this Agreement, or portion thereof, shall be held by any court or
other tribunal of competent jurisdiction to be illegal, void, or unenforceable
in such jurisdiction, the remainder of such provision shall not be thereby
affected and shall be given full effect, without regard to the invalid
portion.  It is the intention of the
parties that, if any court construes any provision or clause of this Agreement,
or any portion thereof, to be illegal, void, or unenforceable because of the
duration of such provision or the area or matter covered thereby, such court
shall reduce the duration, area, or matter of such provision, and, in its
reduced form, such provision shall then be enforceable and shall be enforced.
The Executive and the Employer hereby agree that they will negotiate in good
faith to amend this Agreement from time to time to modify the terms of Sections
9(a), 9(b), and 9(c), the definition of the term “Territory,” and the
definition of the term “Business,” to reflect changes in the Employer’s
business and affairs so that the scope of the limitations placed on the
Executive’s activities by Section 9 accomplishes the parties’ intent in
relation to the then current facts and circumstances.  Any such amendment shall be effective only
when completed in writing and signed by the Executive and the Employer.


 


17.                                 Certain
Definitions.


 


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


 


(b)                                 “Business”
shall mean 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
Employer or any of its Affiliates as of the date of termination.


 


(c)                                  “Cause”
shall consist of any of (A) the commission by the Executive 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
material harm to the Employer (including harm to its business reputation); (B) the
indictment of the Executive for the commission or perpetration by the Executive
of any felony or any crime involving dishonesty, moral turpitude or fraud; (C) the
material breach by the Executive of this Agreement that, if susceptible of
cure, remains uncured ten days following written notice to the Executive of such
breach; (D) 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 (e.g., a memorandum of
understanding which relates to the Executive’s performance) regulatory action
against the Executive or the Employer (provided, that the 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 the purpose of the action or would materially assist
the Employer in avoiding or reducing the restrictions or adverse effects to the
Employer related to the regulatory action); (E) the exhibition by the
Executive of 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 the Board of Directors’ good faith and
reasonable judgment, with the Executive abstaining from participating in the
consideration of and vote on the matter, is materially detrimental to the 


 


9

















 


Employer’s best interest, that, if susceptible of cure
remains uncured ten days following written notice to the Executive of such
specific inappropriate behavior; or (F) the failure of the Executive to
devote his full business time and attention to his employment as provided under
this Agreement that, if susceptible of cure, remains uncured 30 days following
written notice to the Executive of such failure.  The Executive shall not be deemed to have
been terminated for Cause unless and until there is delivered to the Executive
a copy of a resolution duly adopted by the affirmative vote of 75% of the
non-management directors of the Employer then in office, excluding the
Executive, at a meeting of the Board of Directors, which resolution shall (x) contain
findings that, in the good faith opinion of the Board of Directors, the
Executive has committed an act constituting Cause, and (y) specify the particulars
thereof. Notice of the meeting of the Board of Directors and the proposed
termination for Cause shall be given to the Executive at least seven calendar
days before such meeting.  The Executive
and the Executive’s counsel (if the Executive chooses to have counsel present)
shall have a reasonable opportunity to be heard by the Board of Directors at
the meeting.  Nothing in this Agreement
limits the Executive’s or the Executive’s beneficiaries’ right to challenge the
validity or propriety of the board’s determination of Cause.


 


(d)                                 “Change
in Control” shall mean as defined by Treasury Regulation § 1.409A-3(i)(5).


 


(e)                                  “Code”
shall mean the Internal Revenue Code of 1986 and any regulations thereunder.


 


(f)                                    “Competing
Business” shall mean any business that, in whole or in part, is the same or
substantially the same as the Business.


 


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


 


(h)                                 “Notice
of Termination” shall mean a written notice of termination from the
Employer or the Executive which specifies an effective date of termination,
indicates the specific termination provision in this Agreement relied upon,
and, in the case of a termination for Cause, sets forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of the
Executive’s employment for Cause.


 


(i)                                     “Standard
Payroll Procedures” shall mean no less frequently than monthly.


 


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


 


(k)                                  “Territory”
shall mean a radius of 25 miles from (i) the main office of the Employer
or (ii) any branch office of the Employer.


 


18.                                 Entire
Agreement.  This Agreement
constitutes the entire agreement between the parties hereto and supersedes all
prior agreements, if any, understandings and arrangements, oral or written,
between the parties hereto with respect to the subject matter hereof.


 


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


 


20.                                 Compliance
with Capital Purchase Program. 
Notwithstanding anything to the contrary herein, any payments to the Executive
shall be limited to the extent required under the United States Treasury
Capital Purchase Program and related regulations in the event that the Company
participates in such Program.  The
Executive agrees to such amendments, agreements, or waivers that are required
by the United States Treasury or requested by the Company to comply with the
terms of such program.


 


10

















 


IN WITNESS WHEREOF, the Employer has caused this
Agreement to be executed and its seal to be affixed hereunto by its officers
thereunto duly authorized, and the Executive has signed and sealed this
Agreement, effective as of the date first above written.


 


 


	
   

  	
   

  	
   

  	
  COMMUNITYSOUTH FINANCIAL CORPORATION

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ATTEST:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Barbara J. Marcy

  	
   

  	
  By:

  	
    /s/ 
  C. Allan Ducker, III

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
    Barbara J. Marcy

  	
   

  	
  Name:

  	
  C. Allan Ducker, III

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
    Chief
  Executive Officer

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  COMMUNITYSOUTH
  BANK AND TRUST

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ATTEST:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Barbara J. Marcy

  	
   

  	
  By:

  	
  C. Allan Ducker, III

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
    Barbara J. Marcy

  	
   

  	
  Name:

  	
  C. Allan Ducker, III

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Chief Executive Officer

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  EXECUTIVE

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
    /s/
  David A. Miller

  
	
   

  	
   

  	
   

  	
  David A. Miller

  
														



 


11

















 


Exhibit A


 


Form of Release of Claims


 


SEVERANCE AGREEMENT AND RELEASE


 


This Severance Agreement
and Release (the “Agreement”) is made between David A. Miller, an
individual resident of South Carolina (“Employee”), and CommunitySouth Bank
and Trust (the “Bank”).


 


As used in this
Agreement, the term “Employee” shall include the employee’s heirs, executors,
administrators, and assigns, and the term “Bank” shall include the Bank, its
holding company, any other related or affiliated entities, and the current and
former officers, directors, shareholders, employees, and agents of them.


 


On
                              
2008, the Bank and Employee entered into an Employment Agreement governing the
relationship between the parties.  Section 4(e) provides
that the Bank may terminate the Employment Agreement without cause.  Section 4 of the Employment Agreement
also provides that Employee shall be entitled to severance benefits if the
Employment Agreement is terminated without cause, on the condition that
Employee enter into this release or a substantially similar release.


 


Employee desires to
receive severance benefits and the Bank is willing to provide severance
benefits on the condition the Employee enter into this Agreement.


 


Now, in consideration for
the mutual promises and covenants set forth herein, and in full and complete
settlement of all matters between Employee and the Bank, the parties agree as
follows:


 


1.                                      Termination
Date:  The Employee agrees that
his employment with the Bank terminates as of
                                
(the “Termination Date”).


 


2.                                      Severance
Payments:  Subsequent to his
Termination Date, the Bank shall pay Employee severance benefits as noted in
Paragraph 4(e) of the Employment Agreement, dated
                ,
20    , (the “Severance Payment”), less applicable
deductions and withholdings.


 


3.                                      Legal
Obligations


 


The parties acknowledge
that pursuant to Section 4(e) of the Employment Agreement, they
agreed that at the time of termination and as a condition of payment of
severance, they would enter into this release acknowledging any remaining
obligations and discharging each other from any other claims or obligations
arising out of or in connection with Employee’s employment by the Bank,
including the circumstances of such termination.


 


With the exceptions of
the provisions of Section 2, and the express terms of any benefit plan
under which the Employee is a participant, it is agreed that the Bank shall
have no obligation to the Employee for, and the Employee waives and
relinquishes, any further compensation or benefits (exclusive of COBRA
benefits).  Unless otherwise stated in
this Section 3, 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.


 


Employee acknowledges that the Bank has no prior legal obligations to
make the payments described in Section 2 above which are exchanged for the
promises of Employee set forth in this Agreement.  It is specifically agreed that the payments
described in Section 2 are valuable and sufficient consideration for each
of the promises of Employee set forth in this Agreement and are payments in
addition to anything of value to which Employee is otherwise entitled.


 


12

















 


4.                                      Waiver
and Release:


 


a)                                      Employee
unconditionally releases and discharges the Bank and its predecessors,
successors and assigns, its and their current and former parents, affiliates,
subsidiaries, divisions, and joint ventures (individually and collectively, for
purposes of this paragraph, “Bank”)  from
any and all causes of action, suits, damages, claims, proceedings,
controversies, promises, grievances, complaints, charges, liabilities, debts,
taxes, allowances, demands, and remedies of any type that the Employee has ever
had, or may now have, against the Bank, whether asserted or unasserted, whether
known or unknown, concerning any matter occurring up to and including the date
of the signing of this Agreement.


 


b)                                     Employee
acknowledges that he is waiving and releasing, to the full extent permitted by
law, all claims against the Bank, including (but not limited to) all claims
arising out of, or related in any way to, his employment with the Bank or the
termination of that employment, including (but not limited to) any and all
breach of contract claims, tort claims, claims of wrongful discharge, claims
for breach of an express or implied employment contract, defamation claims,
claims under the Civil Rights Act of 1866, which prohibits discrimination on
the basis of race or color, Title VII of the Civil Rights Act of 1964 as
amended, which prohibits discrimination in employment based on race, color, national
origin, religion or sex, the Civil Right Act of 1991, which modifies the 1964
Act by providing for the right to trial by jury on discrimination claims, the
Family and Medical Leave Act of 1993, which provides for unpaid leave for
family or medical reasons, the Equal Pay Act of 1963, which prohibits paying
men and women unequal pay for equal work, the Age Discrimination in Employment
Act of 1967, which prohibits age discrimination in employment, the Americans
with Disabilities Act of 1990, which prohibits discrimination based on
disability, the Rehabilitation Act of 1973, which prohibits discrimination on
the basis of disability, the Employee Retirement Income Security Act of 1974,
which regulates employee benefit plans, the Fair Labor Standards Act of 1938,
which establishes a national minimum wage, regulates overtime compensation, and
prohibits employment of a minor, the Older Workers Benefit Protection Act of
1990, which prohibits age discrimination
related to employee benefits, the Occupational Safety and Health Act of
1970, which governs occupational health and safety in the workplace, the
Sarbanes-Oxley Act of 2002, which establishes standards of conduct for all U.S.
public company boards, management, and public accounting firms, the
South Carolina Human Affairs Law, any and all other applicable local, state and
federal non-discrimination statutes, the South Carolina Payment of Wages Law
and all other statutes or regulations relating to employment, the common law of
the State of South Carolina, or any other state, and any and all claims for
attorneys’ fees.


 


This General Release
includes a release of all claims based on the treatment of any payments
hereunder under Section 409A of the Internal Revenue Code (the “Code”)
including specifically any penalties thereunder.


 


This General Release also
includes a release of all compensation and benefit claims, including, without
limitation, claims concerning salary, bonus, and any award(s), grant(s), or
purchase(s) under any equity and incentive compensation plan or program,
and separation pay under any Bank severance plan.


 


c)                                      This
Waiver and Release provision ((a) through (c) of this paragraph)
shall be construed to release all claims to the full extent allowed by
law.  If any term of this paragraph shall
be declared unenforceable by a court or other tribunal of competent
jurisdiction, it shall not adversely affect the enforceability of the remainder
of this paragraph.


 


d)                                     The
Bank unconditionally releases and discharges Employee from any and all causes
of action, suits, damages, claims, proceedings, and demands that the Bank has
ever had, or may now have, against Employee, whether asserted or unasserted,
whether known or unknown, concerning any matter occurring up to and including
the date of the signing of this Agreement with the exception of any claims for
breach of trust, or any act which constitutes a felony or crime involving
dishonesty, theft, or fraud.


 


5.                                      Restrictive
Covenants and Other Obligations


 


The parties agree that Section 5
– “Ownership of Work Product,” Section 6 – “Protection of Trade Secret,” Section 7
– “Protection of Confidential Information,” Section 8 – “Return of
Materials,” Section 9 –


 


13

















 


“Restrictive Covenants,” Section 10
– “Independent Provisions,” Section 15 – “Enforcement,” and Section 16
– “Savings Clause,” of the Employment Agreement shall remain in full force and
effect and that Employee will perform his obligations under those sections and
those sections of the Employment Agreement are incorporated by reference as if
set forth fully herein.  In the event
Employee breaches any obligation under this Section 5, the Bank’s
obligation to make severance payments to Employee shall terminate immediately
and the Bank shall have no further obligations to Employee.


 


6.                                      Duty
of Loyalty/Nondisparagement


 


The parties shall not
(except as required by law) communicate to anyone, whether by word or deed,
whether directly or through any intermediary, and whether expressly or by
suggestion or innuendo, any statement, whether characterized as one of fact or
of opinion, that is intended to cause or that reasonably would be expected to
cause any person to whom it is communicated to have a lowered opinion of the
other party.


 


7.                                      Confidentiality
Of The Terms Of This Agreement


 


Except to the extent that
this Agreement has been disclosed in the Bank’s SEC filings, Employee agrees
not to publicize or disclose the contents of this Agreement, including the
amount of the monetary payments, except (i) to his immediate family; (ii) to
his attorney(s), accountant(s), and/or tax preparer(s); (iii) as may be required
by law; or (iv) as necessary to enforce the terms of this Agreement.  Employee further agrees that he will inform
anyone to whom the terms of this Agreement are disclosed of the confidentiality
requirements contained herein. 
Notwithstanding the foregoing, the parties agree that where business
needs dictate, Employee may disclose to a third party that he has entered into
an agreement with the Bank, which agreement contains restrictive covenants
including noncompetition and nondisclosure provisions, one or more of which
prohibit him from performing the requested service.


 


Employee recognizes that
the disclosure of any information regarding this Agreement by him, his family,
his attorneys, his accountants or financial advisors, could cause the Bank
irreparable injury and damage, the amount of which would be difficult to
determine.  In the event the Bank
establishes a violation of this paragraph of the Agreement by Employee, his
attorneys, immediate family, accountants, or financial advisors, or others to
whom Employee disclosed information in violation of the terms of this
Agreement, the Bank shall be entitled to injunctive relief without the need for
posting a bond and shall also be entitled to recover from Employee the amount
of attorneys’ fees and costs incurred by the Bank in enforcing the provisions
of this paragraph.


 


8.                                      Continued
Cooperation


 


Employee agrees that he
will cooperate fully with the Bank in the future regarding any matters in which
he was involved during the course of his employment, and in the defense or
prosecution of any claims or actions now in existence or which may be brought
or threatened in the future against or on behalf of the Bank.  Employee’s cooperation in connection with such
matters, actions and claims shall include, without limitation, being available
to meet with the Bank’s officials regarding personnel or commercial matters in
which he was involved; to prepare for any proceeding (including, without
limitation, depositions, consultation, discovery or trial); to provide
affidavits; to assist with any audit, inspection, proceeding or other inquiry;
and to act as a witness in connection with any litigation or other legal
proceeding affecting the Bank.  Employee
further agrees that should he be contacted (directly or indirectly) by any
person or entity adverse to the Bank, he shall within 48 hours notify the
then-current Chairman of the Board of the Bank. 
Employee shall be reimbursed for any reasonable costs and expenses
incurred in connection with providing such cooperation.


 


9.                                      Entire Agreement; Modification of Agreement


 


Except as otherwise
expressly noted herein, this Agreement constitutes the entire understanding of
the parties and supersedes all prior discussions, understandings, and
agreements of every nature between them


 


14

















 


relating to the matters
addressed herein.  Accordingly, no
representation, promise, or inducement not included or incorporated by
reference in this Agreement shall be binding upon the parties.  Employee affirms that the only consideration
for the signing of this Agreement are the terms set forth above and that no
other promises or assurances of any kind have been made to him by the Bank or
any other entity or person as an inducement for him to sign this
Agreement.  This Agreement may not be
changed orally, but only by an agreement in writing signed by the parties or
their respective heirs, legal representatives, successors, and assigns.


 


10.                               Partial
Invalidity


 


The parties agree that
the provisions of this Agreement and any paragraphs, subsections, sentences, or
provisions thereof shall be deemed severable and that the invalidity or
unenforceability of any paragraph, subsection, sentence, or provision shall not
affect the validity or enforceability of the remainder of the Agreement.


 


11.                               Waiver


 


The waiver of the breach
of any term or provision of this Agreement shall not operate as or be construed
to be a waiver of any other subsequent breach of this Agreement.


 


12.                               Successors
and Assigns


 


This Agreement shall
inure to and be binding upon the Bank and Employee, their respective heirs,
legal representatives, successors, and assigns.


 


13.                               Governing
Law


 


This Agreement shall be
construed in accordance with the laws of the state of South Carolina and any
applicable federal laws.


 


14.                               Headings


 


The headings or titles of
sections and subsections of this Agreement are for convenience and reference only
and do not constitute a part of this Agreement.


 


15.                               Notice


 


Any notice or
communication required or permitted under this Agreement shall be made in
writing and sent by overnight courier (confirmation of receipt required) or
certified mail (postage prepaid and return receipt requested) addressed as
follows:


 


If to Employee:


 


[INSERT]


 


If to the Bank:


 


[INSERT]


 


16.                               Tax
Matters


 


The payment of any amount
pursuant to this Agreement shall be subject to all applicable withholding and
payroll taxes and other applicable deductions. Notwithstanding any provision to
the contrary in this Agreement or in any of the Bank’s equity plans (each, a “Plan”),
any payment otherwise required to be made to Employee under any Bank plan on
account of Employee’s “separation from service,” within the meaning of the


 


15

















 


Section 409A Rules (as
defined below), to the extent such payment (after taking into account all
exclusions applicable to such payment under the Section 409A Rules) is
properly treated as deferred compensation subject to the Section 409A
Rules, shall not be made until the first business day after (i) the
expiration of six (6) months from the date of Employee’s separation from
service, or (ii) if earlier, the date of Employee’s death (the “Delayed
Payment Date”). On the Delayed Payment Date, there shall be paid to Employee
or, if Employee has died, Employee’s estate, in a single cash lump sum, an
amount equal to aggregate amount of the payments delayed pursuant to the
preceding sentence. In the case of each Plan under which Employee is entitled
to receive amounts treated as deferred compensation subject to the Section 409A
Rules and which provides for payment of such amounts in the form of “a
series of installment payments”, as defined in Treas. Reg. §1.409A-2(b)(iii), (A) Employee’s
right to receive such payments shall be treated as a right to receive a series
of separate payments under Treas. Reg. §1.409A-2(b)(iii), and (B) to the
extent such Plan does not already so provide, it is hereby amended to so
provide, with respect to amounts payable to Employee thereunder. For purposes
of this subparagraph, the “Section 409A Rules” shall mean Section 409A
of the Code, the regulations issued thereunder, and all notices, rulings, and
other guidance issued by the Internal Revenue Service interpreting same.
Notwithstanding the foregoing, Employee shall be solely responsible, and the
Bank shall have no liability, for any taxes, acceleration of taxes, interest,
or penalties arising under the Section 409A Rules.


 


17.                               Construction


 


Employee and the Bank
have participated jointly in the negotiation and drafting of this Agreement. In
the event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by Employee and the Bank,
and no presumption or burden of proof shall arise favoring or disfavoring
either of them by virtue of the authorship of any of the provisions of this
Agreement.


 


18.                               Representations:  Employee acknowledges that:


 


a)                                      He
has read this Agreement and understands its meaning and effect.


 


b)                                     He
has knowingly and voluntarily entered into this Agreement of his own free will.


 


c)                                      By
signing this Agreement, Employee has waived, to the full extent permitted by
law, all claims against the Bank based on any actions taken by the Bank up to
the date of the signing of this Agreement, and the Bank may plead this
Agreement as a complete defense to any claim the Employee may assert.


 


d)                                     He
would not otherwise be entitled to the consideration described in this
Agreement, and that the Bank is providing such consideration in return for
Employee’s agreement to be bound by the terms of this Agreement.


 


e)                                      He
has been given up to 21 days to consider the terms of this Agreement.


 


f)                                        He
has seven (7) days, after Employee has signed the Agreement and it has
been received by the Bank, to revoke it by notifying the Chairman of the Board
of his intent to revoke acceptance.  For
such revocation to be effective, the notice of revocation must be received no
later than 5:00 p.m. on the seventh day after the signed Agreement is
received by the Bank.  This Agreement
shall not become effective or enforceable until the revocation period has
expired.


 


g)                                     He
is not waiving or releasing any rights or claims that may arise after the date
the Employee signs this Agreement.


 


h)                                     HE
HAS BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE SIGNING THIS AGREEMENT.


 


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  As to Employee:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date

  	
   

  	
  David A. Miller

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  As to the Bank:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date

  	
   

  	
  Chairman of the Board

  



 


17