Exhibit 10-2
THIS CONTRACT IS SUBJECT TO ARBITRATION PURSUANT
TO THE SOUTH CAROLINA UNIFORM ARBITRATION ACT
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and
Restated Agreement
(as amended and
restated, this
"Agreement") is entered into as of the 7th day of December, 2007,
by and between
COMMUNITY BANKSHARES,
INC. together with its subsidiaries (the "Company"), and
William W. Traynham (the "Employee").
RECITALS:
A. The Company and the Employee entered into an Employment
Agreement as
of February 15, 2005 (the "Original Agreement").
B. The Company wishes
to continue to employ
Employee as an
executive
officer and to assure the Employee's continued employment with the
Company, and
the Employee has agreed to continue to accept such employment.
C. The Company and the Employee continue to mutually desire that
their
employment
relationship be set
forth under the terms
of a written
employment
agreement.
D. The Company and the Employee desire to amend the Original
Agreement
in compliance with
Internal Revenue Code
Section 409A and
associated federal
regulations.
In consideration
of the foregoing and of the promises and mutual
agreements set forth
below, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged,
the parties hereto
do
hereby agree to amend and restate the Original Agreement as
follows:
1. Employment.
The Company agrees to employ the Employee, and the
Employee agrees to accept employment and to serve the Company,
on the terms and
conditions set forth herein.
2. Term of Employment.
The employment of the
Employee by the Company,
as provided under Section 1 hereof, commenced on February 15, 2005
and shall end
on February
15, 2008 (the "Term of
Employment")
unless further extended in
writing with
express reference to this Agreement or sooner terminated as
hereinafter provided.
Commencing
on February 15, 2008, and on each annual
anniversary
thereafter, the Term
of Employment shall automatically be extended
for an additional year unless 90 days prior to the anniversary the
Company gives
notice to the Employee that the Term of Employment will not be
extended. Except
as otherwise provided expressly herein, the provisions of this
Agreement related
to Employee's employment will not apply after the Term of
Employment has expired
and any continuing employment of the Employee thereafter will be
at-will and not
subject to the terms and conditions of this Agreement.
<PAGE>
3.
Position and Duties.
The Employee shall serve on a full-time basis
as President
and Chief Financial Officer of the Company and shall have the
authority and
be responsible for general oversight of the financial and
operational
matters of
the Company and shall assume such additional
responsibilities and
authority as may from time to time be
assigned to him by
the Chief Executive
Officer of the
Company. The Employee shall perform his
responsibilities and duties in the best interests of the
Company.
4. Place of Performance. In connection with the Employee's
employment
hereunder, the
Employee shall be
based initially at the
Company's corporate
headquarters located in Orangeburg, South Carolina, subject to
reasonable travel
or relocation as
necessary to the carry out the business of the Company and his
duties hereunder.
5. Compensation
and Benefits. In consideration of the Employee's
performance of his duties hereunder, the Company shall provide the
Employee with
the following compensation and benefits during the Term of
Employment hereunder.
a. Base Salary. The Company shall pay Employee at a minimum, a
per annum base salary of $160,125. During the Term of Employment
under
this Agreement, the Chief Executive Officer of the Company
periodically
will review and may increase (but not decrease) the Employee's base
salary rate, all in accordance with the Company's salary
administration
policies and procedures in effect from time to time, and each
change in
the base salary amount listed in this Section shall become the new
base
salary amount. Base
salary shall be payable in equal installments in
arrears on the last
day of the month or on such other payroll schedule
as is used by the Company for other employees. The Company shall have
no obligation
to increase the Employee's base salary rate at any
particular time or in
any particular
amount, and any such increase
shall be in the sole and absolute discretion of the Chief Executive
Officer of the Company.
b. Bonus and Incentive Compensation. The Company shall pay to
the Employee
with respect to each
subsequent
fiscal year during
the
Term of Employment
hereunder,
such cash bonus, if any, as shall be
determined pursuant to
a bonus plan adopted
by the Board of Directors
of the Company for key employees. Any such bonuses shall be paid on
the
15th day of the third month following the end of the calendar year
in
which such bonus is earned. In addition, and without diminution of any
other compensation
or benefit
provided for in this Agreement, the
Employee may be given the opportunity to participate in other
incentive
compensation
plans that
may be adopted by the Company, which
participation
opportunity may be
offered to the
Employee in the sole
discretion of the Board of Directors of the Company.
c. Country
Club and Civic Club
Dues. The Company
shall pay
reasonable dues on behalf of the Employee for one country club
approved
by the Board of the
entity of which the
Employee is an
officer and
shall pay reasonable dues for civic organizations to which the
Employee
belongs for the
benefit of the entity of which the Employee is an
officer and which have been approved by the Board of such
entity.
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<PAGE>
d. Deferred
Compensation. The
Employee shall be
entitled to
participate in the
Company's 401(k) Plan and the Company shall
match
100% of the first 3% of salary that the Employee defers each
year.
e. Health and Dental
Insurance. The Company
will provide the
Employee with health and dental insurance coverage on the same
basis as
such coverage is provided for other executive officers of the
Company.
f. Expenses. The
Company shall reimburse the Employee for all
proper and reasonable
out-of-pocket expenses
incurred by the Employee
in his performance of services hereunder, including all such expenses
of travel and living
expense while away
from home on business
of the
Company and mileage for out-of-town business use of his automobile,
provided that
such expenses are incurred and accounted for in
accordance with the regular policies and procedures established by the
Company from time to time.
g. Vacations.
The Employee shall be
entitled to a minimum of
15 vacation days in each calendar year, as well as to all paid
holidays
provided by the
Company to its
employees. The
Employee will not be
entitled to any additional pay for unused vacation.
h. Other Benefits. The
Employee shall be entitled to share in
any other employee
benefits generally
provided by the
Company to its
most highly ranking executives for so long as the Company provides
such
benefits. The Employee
shall also be entitled
to participate
in all
other benefits accorded generally to Company employees.
6. Compensation and Benefits in the Event of Termination.
In the event
of the termination
of the Employee's employment by the Company or by the
Employee during the term of this Agreement, compensation and benefits shall be
paid as set forth below.
a. Definitions. For
purposes of this Agreement, the following
terms shall have the meanings indicated:
(i) "Cause" shall mean:
(A) the breach by Employee of any material
provision of this
Agreement, provided
that Company
gives the Employee
written notice of such breach and
such breach is not
cured within thirty (30) days
thereafter;
(B) the willful and continued failure by the
Employee to
substantially perform
his duties under
this Agreement (other
than the Employee's
inability
to perform, with or without reasonable accommodation,
resulting from his
incapacity
due to physical or
mental illness
or impairment), after a demand for
substantial
performance is
delivered to him by
the
Company, which demand
specifically
identifies
the
manner in which the
Employee is alleged to
have not
substantially performed his duties;
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<PAGE>
(C) the willful
engaging by the Employee in
misconduct (criminal,
immoral or otherwise) which is
materially injurious to the Company, its subsidiaries
or their
respective
officers,
directors,
shareholders,
employees, or customers, monetarily or
otherwise;
(D) the Employee's conviction of a felony;
(E) the commission in the course of the
Employee's
employment of
an act of fraud,
embezzlement, theft
or proven dishonesty, or any
other
illegal act or practice, which would constitute
a felony, (whether or not resulting in criminal
prosecution or conviction), or the commission of any
act or practice
which resulted in the Employee's
becoming unbondable
under the Company's "banker's
blanket bond;" or
(F) the suspension or removal of the
Employee, or the issuance of an order prohibiting the
Employee from
associating with the Company or any of
its
subsidiaries, by
federal or state banking
regulatory authorities
acting under lawful authority
pursuant to
provisions
of federal or state law or
regulation which may be in effect from time to time.
(ii) A "Change of Control" of the Company shall be
deemed to have been effected for purposes of this Agreement on
the date:
(A) any one person, or
more than one person
acting as a group, acquires ownership of stock of the
Company that, together with stock held by such person
or group, constitutes more than 50% of the total
voting power of
the Company's stock; or
(B) any one person, or
more than one person
acting as a group,
acquires within a 12-month period
ownership of the Company's stock possessing more than
50% of the total voting power of the Company's stock;
or
(C) the Company is
merged with or into
any
other entity and the persons who were shareholders of
the Company
immediately
prior to the merger do
not
continue to own stock having voting control over more
than 50% of the voting
securities of the
surviving
entity immediately after the merger.
(iii) "Date of Termination" shall mean:
(A) if the Employee's employment is
terminated by reason of his death, his date of death;
(B) if the Employee's employment is
terminated for
Disability,
thirty (30) days after
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<PAGE>
Notice of Termination
is given (provided that the
Employee shall not
have returned to the
performance
of his duties as provided under sub-paragraph (iv) of
this paragraph 6.a); or
(C) if the Employee's employment is
terminated for Good
Reason, the 31st day
following
the
date of Employee's
notice to the Company
of the
existence of a condition constituting Good Reason, if
the Company shall have failed to remedy the condition
by the end of the 30th
day following the date of
Employee's notice; or
(D) if the Employee's employment is
terminated by action
of either party for any other
reason, the
date specified in the Notice of
Termination; provided, however, that if within thirty
(30) days after any Notice of Termination is given,
the party receiving such Notice of Termination
notifies the
other party that a dispute exists
concerning the
termination, the Date
of Termination
shall be the
date on which the
dispute is finally
resolved, either by
mutual written
agreement of the
parties, or by a final arbitration award or judgment,
order or decree of a court of competent jurisdiction
(the time for appeal
therefrom having expired and no
appeal having been perfected).
(iv) "Disability" or "Disabled" shall mean:
(A) the Employee is
unable to engage in any
substantial
gainful activity
by reason of any
medically determinable
physical or mental impairment
that can be expected
to result in death or can be
expected to last for a continuous period of not less
than 12 months; or
(B) the Employee is, by reason of any
medically determinable
physical or mental impairment
that can be expected
to result in death or can be
expected to last for a continuous period of not less
than 12 months, receiving income replacement benefits
for a period of not less than three months under an
accident and health
plan covering
employees of the
Company; or
(C) the Employee has been determined to be
totally
disabled
by the
Social
Security
Administration or Railroad Retirement Board; or
(D) the Employee has been determined to be
disabled in accordance
with a disability
insurance
program provided by the Company and in which Employee
participates,
provided that
the definition of
disability applied
under such disability
insurance
program complies with
the requirements of (A) or (B)
of this subparagraph (iv) listed above.
(v) "Good Reason" for termination of employment shall
mean, without Employee's consent:
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<PAGE>
(A) Failure by the
Company to comply
with
any material provision of this Agreement; or
(B) A material
diminution of the Employee's
authority and duties hereunder; or
(C) A material
diminution in the Employee's
base compensation;
provided, however, the Employee must give the Company
notice of the existence of one or more of the
conditions set forth in this subsection 6.a(v) within
90 days after the initial existence of the condition,
and the Company
shall have 30 days to remedy the
condition.
Any termination
of employment by Employee for
Good
Reason shall constitute an involuntary termination of
employment.
(vi) "Notice
of Termination" shall mean a written
notice which shall include the specific termination provision
under this
Agreement relied upon, and shall set forth in
reasonable detail
the facts and circumstances claimed to
provide a basis for termination of the Employee's employment.
Any purported
termination
of the Employee's employment
hereunder by action of either party shall be communicated by
delivery of a Notice of Termination to the other party, except
in the event of Employee's death or termination of
employment
by the Employee for Good Reason. Any purported termination of
the Employee's
employment
by action of the
Company which is
not effected
pursuant to a Notice of Termination shall
constitute a material breach of this Agreement.
(vii) "Retirement"
shall mean termination of the
Employee's
employment pursuant
to the Company's regular
retirement policy
applicable
to the position held by the
Employee at the time of such termination.
(viii) "Board of
Directors"
shall include any
duly
authorized committee of the Board of Directors.
b.
Termination Within Six Months After a Change of Control.
(i) If (i) within six months following the effective
date of Change of Control, Employee's employment is terminated
by the Company, or
(ii) Employee notifies
the Company within
six months follow
