Exhibit 10(d)
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") made
and entered in to as of this 1st day of April, 2002, by and among XXXXX XXXX
XXXXXXX, JR, a resident of the State of Alabama (the "Executive"), FIRST
SOUTHERN BANCSHARES, INC., a corporation organized and existing under the laws
of the State of Delaware (the "Company"), and FIRST SOUTHERN BANK, a banking
corporation organized under the laws of the State of Alabama (the "Bank");
(First Southern Bancshares, Inc. and First Southern Bank are collectively
referred to as "First Southern").
W I T N E S S E T H:
WHEREAS, the Bank and Executive entered into an employment agreement
dated April 23, 2001 (the "Original Agreement");
WHEREAS, subject to regulatory approval, the Company and the Bank each
desire to appoint the Executive as President, Chief Executive Officer, and a
Director, and executive desires to accept such positions with First Southern;
WHEREAS, the parties to this Agreement desire to amend and restate the
Original Agreement, setting forth the terms and conditions of Executive's
employment relationship with First Southern.
NOW, THEREFORE, in consideration of the appointment of the Executive by
First Southern as President, Chief Executive Officer, and a Director of First
Southern, of the mutual covenants, promises and agreements herein made, and of
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Employment. First Southern hereby employs Executive's full-time
services as President, Chief, Executive Officer and Director of both the Company
and the Bank, commencing on the first day that First Southern receives all
requisite regulatory approvals (the "Commencement Date"). This Agreement shall
be for a term of three years, beginning on the Commencement Date. Executive
hereby accepts such employment. Executive shall diligently perform the duties
customarily performed by such officer, subject to the authority of the Board,
and shall hold and perform all of the responsibilities and duties prescribed by
the Board and by the Bylaws of First Southern. During the term of this
Agreement, Executive will devote his full time and effort to his duties
hereunder, to the exclusion of all other employment or business interests other
than passive personal investments, charitable, religious or civic activities.
2. Base Salary. As compensation for his services to First Southern,
First Southern agrees to pay Executive an annual salary of One Hundred Thousand
Dollars ($100,000.00) beginning on April 1, 2002. The annual salary shall be
paid in equal bi-weekly installments. Payment will be in accordance with First
Southern's payroll policies in effect from time to time. Executive's base salary
may be adjusted, based on the annual performance reviews provided for in
Paragraph 5.
3. Benefits. First Southern agrees to provide Executive with the
following benefits commencing April 1, 2002, or as soon thereafter as
practicable, and continuing for so long as Executive is employed under this
Agreement or any extension thereof:
(a) A $350.00 per month cafeteria plan benefit, which may be used by
Executive to fund benefits selected by him, including major medical and
hospitalization insurance. First Southern shall have the right to obtain a
term life insurance policy on the Executive for the benefit of First
Southern up to an amount equal to twice his annual salary.
(b) An annual paid vacation of three weeks.
(c) Use of a late model automobile to include all operating and
maintenance expenses.
(d) Reimbursement of monthly dues and First Southern related expenses of
Executive at Turtle Point Country Club.
(e) Other benefits as the Board may approve from time to time.
4 Expenses. Executive is authorized to incur necessary and customary
expenses in connection with the business of First Southern, including expenses
for entertainment, trade association meetings, travel, promotion and similar
matters. First Southern will pay or reimburse Executive, pursuant to First
Southern policy, for such expenses upon presentation by Executive of the
appropriate records which verify such expenses.
5. Bonus. First Southern recognizes it is important that Executive have
a bonus incentive to encourage accomplishment of specified corporate goals, as
identified from time to time by the Board or a duly authorized committee of the
Board. The Board shall review Executive's performance against the specified
goals at least annually. Executive will be eligible for a bonus of up to 50% of
his base salary, based on criteria to be mutually agreed upon by the Board and
the Executive.
6. Stock Options and Stock Incentive Award.
(a) The Executive shall be eligible to participate in the Stock Option
Plan, and Executive during the next thirty days will be issued stock
options, subject to the terms of the Stock Option Agreement between the
Executive and the Company as provided in Exhibit A, which is attached
hereto and incorporated herein by reference.
(b) The Company hereby grants to Executive an incentive stock bonus of
twenty five thousand (25,000) shares of common stock of the Company (the
"Stock Bonus"), which Stock Bonus is contingent and shall only be earned as
set out below. In the event that the per share price of the Company's
common stock, as quoted on the OTC Bulletin Board or on another public
market if the Company's stock is not quoted on the OTC Bulletin Board,
closes
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at or above $6.00 per share for ten consecutive trading days at any time from
three years from the date hereof to and including April 1, 2007, then the Stock
Bonus shall be deemed to be earned by the Executive. The $6.00 per share target
price shall be adjusted for stock dividends, stock splits, stock combinations,
recapitalization and other similar changes as referenced in Paragraph 5 of the
Stock Option Agreement. The ten consecutive trading days requirement noted above
will not be met if Executive has, directly or indirectly, purchased any of the
Company's common stock during such ten consecutive trading days or during the
ten trading days prior to such period.
7. Severance.
(a) If Executive becomes disabled or dies, he if his survivors will
receive a severance payment in an amount equal to the Executive's annual
salary at the time of termination payable in a lump sum upon termination,
plus the other benefits described in paragraph 3 for a period of one year.
(b) If Executive is terminated "for cause" as defined in paragraph 10,
Executive will receive no severance payment, and any other benefits
described hereunder shall also terminate as of the termination date of
employment.
(c) If Executive is terminated "without cause", Executive will receive a
severance payment in an amount equal to the Executive's annual salary at the
time of termination payable in a lump sum upon termination, plus the other
benefits described in paragraph 3 for a one-year period.
(d) If Executive terminates his employment as a result of a Change of
Control or is terminated as a result of a Change of Control, he will receive
a severance payment in an amount equal to two times the Executive's annual
salary at the time of termination payable in a lump sum upon termination,
plus the other benefits described in paragraph 3 for a two-year period.
8. Termination. Except for the provisions of paragraphs 11 and 12, which
shall continue in full force and effect, this Agreement shall terminate upon the
first to occur of the following:
(a) The death of Executive;
(b) The permanent disability of Executive, as defined in paragraph 9;
(c) Termination by First Southern "for cause" as defined in paragraph
10;
(d) Termination by First Southern "without cause" or pursuant to a
"Change in Control" as defined below. First Southern reserves the right to
terminate the Executive at any time.
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(e) Termination by Executive; provided that Executive shall give not
less than thirty (30) days' written notice of termination. Upon receipt of
notice of intended termination given by Executive, First Southern reserves
the right to terminate the Executive's employment effective immediately,
provided that in such instance, except in the event of a Change in Control,
First Southern shall pay an amount equal to Executive's Base Salary due for
the remainder of the thirty (30) day notice period to the termination date,
or thirty (30) days, whichever is less.
(f) The end of the three year term provided for in paragraph 1 hereof.
Subject to approval from the appropriate bank regulatory authorities, a
"Change in Control" shall be deemed to occur upon the happening of any of
the following events:
(i) A sale or other disposition of substantially all of the assets
of the Company or the Bank or a sale or disposition of the issued and
outstanding common stock of the Company or the Bank in a single
transaction or in a series of transactions to a single person or entity
or group of affiliated persons or entities; or
(ii) A merger or consolidation of the Company or the Bank with or
into any other entity, if immediately after giving effect to such
transaction more than fifty percent (50%) of the issued and outstanding
common stock of the surviving entity of such transaction is held by a
single person or entity or group of affiliated persons or entities who
were not in control of the Company or the Bank prior to such
transaction.
9. Disability. Executive shall be considered to be permanently disabled
in the event that (a) Executive shall suffer permanent total disability as that
term is defined under the Alabama Workers' Compensation Law as in effect at the
time of such disability, and (b) either Executive or First Southern shall have
given the other party thirty (30) days' written notice of his or its intention
to terminate Executive's employment because of such disability. In the event
that Executive and First Southern are in material disagreement regarding
Executive's physical or mental condition, First Southern shall authorize a panel
of three (3) physicians selected by First Southern to examine Executive to
conclusively determine by a majority whether Executive is physically or mentally
incapable hereunder.
10. Termination for Cause. As used in paragraph 8(c), termination "for
cause" shall include, termination for Executive's use of illegal
non-prescription drugs or drug or alcohol addiction; acts of dishonesty or
infidelity; conviction of a felony; habitual neglect of duty; objectionable acts
or conduct as determined by First Southern's banking regulators; willful or
gross negligence in carrying out the activities for which employed; or in the
event that the Executive's performance of his duties does not meet the standards
required by the Bank's regulators under the Consent Order or under any
replacement order or agreement.
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11. Disclosure of Confidential Information. Executive acknowledges that
First Southern possesses certain methods of operation and information concerning
its business affairs, including customer lists and other customer information,
which are valuable, special and unique assets of its business. Without prior
Board approval, Executive agrees not to disclose, during or after the term of
his employment, any such information, or any part thereof to any bank, person,
firm, corporation, association or other entity for any reason or purpose
whatsoever.
12. Non-Compete/Non-Solicitation.
(a) It is understood and agreed by parties to this Agreement that under
the following conditions, Executive hereby agrees not to directly or
indirectly compete with First Southern:
(i) If Executive voluntarily resigns his position;
(ii) If there is a Change of Control in the ownership of First
Southern; or
(iii) If Executive is terminated "without cause."
(b) Executive hereby agrees that in the event of termination pursuant to
paragraph 12(a)(i) or (ii), he will not compete with the Bank within the
areas of Lauderdale and Colbert counties in Alabama (the "Non-Compete Area")
for a period of two years from the date of termination. If the Executive is
terminated under paragraph 12(a)(iii), then Executive hereby agrees not to
compete within the Non-Compete Area for a period of one year from the date
of termination.
(c) Executive agrees that he will not solicit any of the Bank's
employees to leave the services of the Bank for a period of two years from
the date of termination. The nonsolicitation provision shall apply to any
Bank employee during the period of such employee's employment with the Bank
and for a period of 30 days after an employee's termination of employment
with the Bank.
(d) Executive can and may invest or purchase stock in any financial
institution. However, Executive may not serve on the Board of Directors of
any financial institution other than the Bank or act as a consultant or
otherwise influence employees to join said institution during the term of
this Agreement and for a period of two (2) years from the date of
termination as provided in paragraph 12(a)(i) or (ii) above or for a period
of one (1) year from the date of termination as provided in paragraph
12(a)(iii) above.
13. Assignment. The rights and obligations of First Southern and
Executive (except the Executive's obligations to perform services) under this
Agreement shall inure to the benefit of and shall be binding upon their
respective successors, if any. The rights and obligations of Executive under
this Agreement shall inure only to the benefit of Executive and are not
assignable by Executive to any other person or entity by virtue of the unique
and personal nature of Executive's services. It is agreed among the parties that
there shall be no third-party beneficiaries with standing to enforce this
Agreement.
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14. Execution of Agreement. The execution of this Agreement by First
Southern is subject to authorization and ratification by its Board of Directors
at the next scheduled meeting.
15. Entire Agreement. This Agreement contains the entire agreement
between the parties and supersedes all prior discussion, understanding and
commitments, whether oral or written. This Agreement cannot be amended or
modified except by subsequent written agreement signed by all parties hereto.
16. Attorney's Fees and Costs.If an action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees, costs and necessary
disbursements in addition to any other relief to which he may be entitled.
17. Controlling Law. This Agreement is being executed in and will be
performed in the State of Alabama and shall be construed, controlled and
interpreted according to the laws of Alabama.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
THE BANK:
FIRST SOUTHERN BANK
By: /s/ X. Xxxxx Xxxxxx
-----------------------------
Title: Chairman of the Board
--------------------------
THE COMPANY:
FIRST SOUTHERN BANCSHARES, INC.
By: /s/ X. Xxxxx Xxxxxx
-----------------------------
Title: Chairman of the Board
--------------------------
EXECUTIVE:
/s/ Xxxxx Xxxx Xxxxxxx, Jr.
---------------------------------
Xxxxx Xxxx Xxxxxxx, Jr.
AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement (the "First Amendment") made and
entered into as of this 14th day of June, 2002 by and among XXXXX XXXX XXXXXXX,
JR., a resident of the State of Alabama (the "Executive), FIRST SOUTHERN
BANCSHARES, INC., a corporation organized and existing under the laws of the
State of Delaware (the "Company"), and FIRST SOUTHERN BANK, a banking
corporation organized under the laws of the State of Alabama (the "Bank");
(First Southern Bancshares, Inc. and First Southern Bank are collectively
referred to as "First Southern").
W I T N E S S E T H:
WHEREAS, First Southern And the Executive entered into an Employment
Agreement dated April 23, 2001, and amended and restated such Employment
Agreement as of April 1, 2002 (the "Employment Agreement"); and
WHEREAS, the parties desire to amend the Employment Agreement as set
forth below.
NOW THEREFORE, in consideration of the Employment Agreement and of the
mutual covenants, promises and agreements made therein and herein, and of other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. The following paragraph 18 is hereby appended to the end of the
Employment Agreement.
Notwithstanding any other provision of this Agreement, all payments to
Executive pursuant to this Agreement shall be subject to the Bank's
compliance with 12 CFR 359 regarding Golden Parachute and Indemnification
Payments.
2. Except as provided by this Agreement, the parties hereby ratify and
confirm the terms of the Employment Agreement.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
THE BANK:
FIRST SOUTHERN BANK
By: /s/ X. Xxxxx Xxxxxx
-----------------------------
X. Xxxxx Xxxxxx, Chairman
THE COMPANY
FIRST SOUTHERN BANCSHARES, INC
By: /s/ X. Xxxxx Xxxxxx
-------------------------------
X. Xxxxx Xxxxxx, Chairman
EXECUTIVE:
/s/ Xxxxx Xxxx Xxxxxxx, Jr.
-----------------------------------
XXXXX XXXX XXXXXXX, JR.
SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
This Second Amendment to Employment Agreement (the "Second Amendment")
made and entered into as of this 30th day of July, 2002 by and between XXXXX
XXXX XXXXXXX, JR., a resident of the State of Alabama (the "Executive") and
FIRST SOUTHERN BANK, a banking corporation organized under the laws of the State
of Alabama ("First Southern").
W I T N E S S E T H:
WHEREAS, First Southern and the Executive entered into an Employment
Agreement dated April 23, 2001 (the "Employment Agreement"); and
WHEREAS, the parties desire to amend the Employment Agreement as set
forth below.
NOW THEREFORE, in consideration of the Employment Agreement and of the
mutual covenants, promises and agreements made therein and herein, and of other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Paragraph 7 is hereby amended to delete paragraphs (c) and (d).
2. Except as provided by this Amendment, the parties hereby ratify and
confirm the terms of the Employment Agreement.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
THE BANK
FIRST SOUTHERN BANK
By: /s/ X. Xxxxx Xxxxxx
--------------------------------
Name: X. Xxxxx Xxxxxx
------------------------------
Title: Chairman of the Board
-----------------------------
EXECUTIVE:
/s/ Xxxxx Xxxx Xxxxxxx, Jr.
------------------------------------
XXXXX XXXX XXXXXXX, JR.
