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EXHIBIT 10.5
FIRST FEDERAL OF THE SOUTH
EMPLOYMENT AGREEMENT
JANUARY 1, 1998
(XXXXX X. XXXX)
THIS AGREEMENT is entered into as of the 1st day of January, 1998 (the
"Effective Date"), by and between First Federal of the South (the "Association")
and Xxxxx X. Xxxx (the "Employee").
WHEREAS, the Employee has heretofore been employed by First Federal
Savings and Loan Association of Xxxxxxx County as President and Chief Executive
Officer and is experienced in all phases of the business of banking; and
WHEREAS, the parties desire by this writing to establish and to set
forth the employment relationship between the Association and the Employee.
NOW, THEREFORE, it is AGREED as follows:
1. Employment. The Employee is hereby employed as President of the
Western Division of the Association. In such capacity, the Employee shall
operate and manage the Association's branch locations situated in and
surrounding Xxxxxxx County, Alabama, within the framework of the approved annual
budgets, and with a sound system of internal controls, and in compliance with
the policies of the Board of Directors of the Association (the "Board"), and all
applicable laws and regulations. The Employee shall also serve on the Loan
Committee of the Board, and such other committees as the Board designates, and
shall regularly attend such meetings of the committee(s) held at the
Association's principal executive offices in Sylacauga, Alabama. Further, the
Employee shall promote, by entertainment or otherwise, and to the extent
permitted by law, the business of the Association. The Employee's other duties
shall be such as the Chief Executive Officer of the Association may from time to
time reasonably direct, including the rendering of such administrative and
management services for the Association as are customarily performed by persons
situated in a similar executive capacity or with similar managerial experience.
2. Base Compensation. The Association agrees to pay the Employee during
the term of this Agreement a salary at the rate of $90,000 per annum, payable in
cash not less frequently than monthly. The Board shall review, not less often
than annually, the rate of the Employee's salary, and in its sole discretion may
decide to increase his salary.
3. Discretionary Bonuses. The Employee shall participate in an
equitable manner with all other senior management employees of the Association
in discretionary bonuses that the Board may award from time to time to the
Association's senior management employees. No other compensation provided for in
this Agreement shall be deemed a substitute for the Employee's right to
participate in such discretionary bonuses.
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4. (a) Participation in Retirement, Medical and Other Plans. The
Employee shall participate in any plan that the Association maintains for the
benefit of its employees if the plan relates to (i) pension, profit-sharing, or
other retirement benefits, (ii) medical insurance or the reimbursement of
medical or dependent care expenses, or (iii) other group benefits, including
disability and life insurance plans.
(b) Employee Benefits; Expenses. The Employee shall participate in
any fringe benefits which are or may become available to the Association's
senior management employees, including for example: any stock option or
incentive compensation plans, club memberships, and any other benefits which are
commen surate with the responsibilities and functions to be performed by the
Employee under this Agreement. The Employee shall be reimbursed for all
reasonable out-of-pocket business expenses which he shall incur in connection
with his services under this Agreement upon substantiation of such expenses in
accordance with the policies of the Association.
5. Term. The Association hereby employs the Employee, and the Employee
hereby accepts such employment under this Agreement, for the period commencing
on the Effective Date and ending 36 months thereafter (or such earlier date as
is determined in accordance with Section 9 of this Agreement). Additionally, on
each annual anniversary date from the Effective Date, this Agreement and the
Employee's term of employment shall be extended for an additional one-year
period beyond the then effective expiration date, provided the Board determines
in a duly adopted resolution that the performance of the Employee has met the
Board's requirements and standards, and that this Agreement shall be extended.
6. Loyalty; Full Time and Attention.
(a) During the period of his employment hereunder and except for
illnesses, reasonable vacation periods, and reasonable leaves of absence, the
Employee shall devote all his full business time, attention, skill, and efforts
to the faithful performance of his duties hereunder; provided, however, from
time to time, Employee may serve on the boards of directors of, and hold any
other offices or positions in, companies or organizations, which will not
present any conflict of interest with the Association or any of its subsidiaries
or affiliates, or unfavorably affect the performance of Employee's duties
pursuant to this Agreement, or will not violate any applicable statute or
regulation. "Full business time" is hereby defined as that amount of time
usually devoted to like companies by similarly situated executive officers.
During the term of his employment under this Agreement, the Employee shall not
engage in any business or activity contrary to the business affairs or interests
of the Association, or be gainfully employed in any other position or job other
than as provided above.
(b) Nothing contained in this Section 6 shall be deemed to prevent
or limit the Employee's right to invest in the capital stock or other securities
of any business dissimilar from that of the Association, or, solely as a passive
or minority investor, in any business.
7. Standards. The Employee shall perform his duties under this
Agreement in accordance with such reasonable standards as the Board may
establish from time to time. The Association will provide Employee with the
working facilities and staff customary for similar executives and necessary for
him to perform his duties.
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8. Vacation, Sick Leave and Annual Physical Examination.
(a) The Employee shall be entitled, without loss of pay, to absent
himself voluntarily from the performance of his duties under this Agreement in
accordance with the terms set forth below, all such voluntary absences to count
as vacation time; provided that:
(i) The Employee shall be entitled to an annual vacation in
accordance with the policies that the Board periodically establishes for senior
management employees of the Association.
(ii) The Employee shall not receive any additional
compensation from the Association on account of his failure to take a vacation,
and the Employee shall not accumulate unused vacation from one fiscal year to
the next, except in either case to the extent authorized by the Board.
(iii) In addition to the aforesaid paid vacations, the
Employee shall be entitled without loss of pay, to absent himself voluntarily
from the performance of his employment obligations with the Association for such
additional periods of time and for such valid and legitimate reasons as the
Board may in its discretion approve. Further, the Board may grant to the
Employee a leave or leaves of absence, with or without pay, at such time or
times and upon such terms and conditions as the Board in its discretion may
determine.
(iv) In addition, the Employee shall be entitled to an annual
sick leave benefit as established by the Board.
(b) The Employee, at least once during each 12-month period,
beginning on the Effective Date and each anniversary thereof, shall schedule and
submit to a full physical examination by a licensed medical physician and, if
requested, shall submit the findings of such examination to the Board of
Directors.
9. Termination and Termination Pay. Subject to the provisions of
Section 11 of this Agreement, the Employee's employment hereunder may be
terminated under the following circumstances:
(a) Death. The Employee's employment under this Agreement shall
terminate upon his death during the term of this Agreement, in which event the
Employee's estate shall be entitled to receive the compensation due the Employee
through the last day of the calendar month in which his death occurred.
(b) Disability. The Association may terminate the Employee's
employment after having established, through a determination by the Board, the
Employee's Disability. For purposes of this Agreement, "Disability" means a
physical or mental infirmity which impairs the Employee's ability to
substantially perform his duties under this Agreement and which results in the
Employee becoming eligible for long-term disability benefits under the
Association's long-term disability plan (or, if the Association has no such plan
in effect, which impairs the Employee's ability to substantially perform his
duties under this Agreement for a period of one hundred eighty (180) consecutive
days). The Employee shall be entitled to the compensation and benefits provided
for under this Agreement for (i) any period during the term of this Agreement
and prior to the establishment of the Employee's Disability during which the
Employee is unable to work due to the physical or mental infirmity, or (ii) any
period of Disability which is prior to the Executive's termination of employment
pursuant to this Section 9(b).
(c) For Cause. The Board may, by written notice to the Employee,
immediately terminate his employment at any time, for Cause. The Employee shall
have no right to receive compensation or other
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benefits for any period after termination for Cause. Termination for "Cause"
shall mean termination because of, in the good faith determination of the Board,
the Employee's personal dishonesty, incompetence, willful misconduct, breach of
fiduciary duty involving personal profit, intentional failure to perform stated
duties, willful violation of any law, rule or regulation (other than traffic
violations or similar offenses) or final cease- and-desist order, or material
breach of any provision of this Agreement. Notwithstanding the foregoing, the
Employee shall not be deemed to have been terminated for Cause unless there
shall have been delivered to the Employee a copy of a resolution duly adopted by
the affirmative vote of not less than a majority of the entire membership of the
Board (excluding the Employee if a member of the Board) at a meeting of the
Board called and held for the purpose (after reasonable notice to the Employee
and an opportunity for the Employee to be heard before the Board), finding that
in the good faith opinion of the Board the Employee was guilty of conduct set
forth above in the second sentence of this Subsection (c) and specifying the
particulars thereof in detail.
(d) Without Cause. Subject to the provisions of Section 11 hereof,
the Board may, by written notice to the Employee, immediately terminate his
employment at any time for any reason; provided that if such termination is for
any reason other than pursuant to Sections 9 (a) (b) or (c) above, the Employee
shall be entitled to receive the following compensation and benefits: (i) the
salary provided pursuant to Section 2 hereof, up to the date of expiration of
the term (including any renewal term then in effect) of this Agreement (the
"Termination Date"), plus said salary for an additional 12-month period, and
(ii) the cost to the Employee of obtaining all health, life, disability and
other benefits (excluding any bonus, stock option or other compensation
benefits) which the Employee would have been eligible to participate in through
the Termination Date based upon the benefit levels substantially equal to those
that the Association provided for the Employee at the date of termination of
employment. Said sum shall be paid, at the option of the Employee, either (I) in
periodic payments over the remaining term of this Agreement, as if the
Employee's employment had not been terminated, or (II) in one lump sum within 10
days of such termination; provided, however, that the amount to be paid by the
Association to the Employee hereunder shall not exceed 3 times the Employee's
"average annual compensation". The Employee's "annual average compensation"
shall be the average of the total annual "compensation" acquired by the Employee
during each of the 5 fiscal years (or the number of full fiscal years of
employment, if the Employee's employment is less than 5 years at the termination
thereof) immediately preceding the date of termination. The term "compensation"
shall mean any payment of money or provision of any other thing of value in
consideration of employment, including, without limitation, base compensation,
bonuses, pension and profit sharing plans, directors fees or committees fees,
fringe benefits and deferred compensation accruals.
(e) Constructive Discharge. Notwithstanding Section 9(f) hereof,
if the Employee voluntarily terminates his employment with the Association
during the term of this Agreement, within 60 days following the occurrence of
any of the following events, which has not been consented to in advance by the
Employee in writing, the Employee shall be entitled to receive the compensation
and benefits set forth in Section 9(d) hereof: (i) the requirement that the
Employee move his personal residence, or perform his principal executive
functions, more than 35 miles from his primary office (except for any trips to
the principal executive offices of the Association in connection with the
performance of the Employee's duties pursuant to this Agreement); (ii) a
material reduction without reasonable cause in the Employee's Base Compensation;
(iii) the failure by the Association to continue to provide the Employee with
compensation and benefits provided for under this Agreement, as the same may be
increased from time to time, or with benefits substantially similar to those
provided to him under any of the employee benefit plans in which the Employee
now or hereafter becomes a participant, or the taking of any action by the
Association or the Company which would directly or indirectly reduce any of such
benefits or deprive the Employee of any material fringe benefit enjoyed by him;
(iv) the assignment to the Employee of duties and responsibilities materially
different from those normally
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associated with his position as referenced at Section 1; (v) a material
diminution of reduction in the Employee's responsibilities or authority
(including reporting responsibilities) in connection with his employment with
the Association; or (vi) a material reduction in the secretarial or other
administrative support of the Employee.
(f) Voluntary Termination by Employee. Subject to the provisions
of Section 11 hereof, the Employee may voluntarily terminate employment with the
Association during the term of this Agreement, upon at least 60 days' prior
written notice to the Board of Directors, in which case the Employee shall
receive only his compensation, vested rights and employee benefits accrued up to
the date of his termination.
10. No Mitigation. The Employee shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other employment
or otherwise, and no such payment shall be offset or reduced by the amount of
any compensation or benefits provided to the Employee in any subsequent
employment.
11. Change in Control.
(a) Notwithstanding any provision herein to the contrary, if the
Employee's employment under this Agreement is terminated by the Association,
without the Employee's prior written consent and for a reason other than for
Cause, death or disability in connection with or within 24 months after any
change in control of the Association or SouthFirst Bancshares, Inc. (the
"Corporation"), the Employee shall be paid an amount equal to the difference
between (i) the product of 2.99 times his "base amount" as defined in Section
28OG(b)(3) of the Internal Revenue Code of 1986, as amended (the "Code") and
regulations promulgated thereunder, and (ii) the sum of any other "parachute
payments" (as defined under Section 28OG(b)(2) of the Code) that the Employee
receives on account of the change in control. Said sum shall be paid in one lump
sum within 10 days of such termination. The term "change in control" shall mean
(1) a change in the ownership, holding or power to vote more than 25% of the
Association's or corporation's voting stock, (2) a change in the ownership or
possession of the ability to control the election of a majority of the
Association's or Corporation's directors, (3) a change in the ownership or
possession of the ability to exercise a controlling influence over the
management or policies of the Association or the Corporation by any person or by
persons acting as a "group" (within the meaning of Section 13(d) of the
Securities Exchange Act of 1934) (except in the case of (1), (2) and (3) hereof,
ownership or control of the Association or its directors by the Corporation
itself shall not constitute a ("change in control"), or (4) during any period of
two consecutive years, individuals who at the beginning of such period
constitute the Board of Directors of the Corporation or the Association (the
"Company Board") (the "Continuing Directors") cease for any reason to constitute
at least two-thirds thereof, provided that any individual whose election or
nomination for election as a member of the Company Board was approved by a vote
of at least two-thirds of the Continuing Directors then in office shall be
considered a Continuing Director. The term "person" means an individual other
than the Employee, or a corporation, partnership, trust, association, joint
venture, pool, syndicate, sole proprietorship, unincorporated organization or
any other form of entity not specifically listed herein.
(b) Notwithstanding any other provision of this Agreement to the
contrary, the Employee may voluntarily terminate his employment under this
Agreement within 12 months following a change in control of the Association or
the Corporation, and the Employee shall thereupon be entitled to receive the
payment described in Section 11(a) of this Agreement, upon the occurrence of any
of the following events, or within 90 days thereafter, which have not been
consented to in advance by the Employee in writing: (i) the requirement that the
Employee move his personal residence, or perform his principal executive
functions, more than 35 miles from his primary office as of the date of the
change in control; (ii) a material reduction
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in the Employee's base compensation as in effect on the date of the change in
control, as the same may be increased from time to time; (iii) the failure by
the Association to continue to provide the Employee with compensation and
benefits provided for under this Agreement, as the same may be increased from
time to time, or with benefits substantially similar to those provided to him
under any of the employee benefit plans in which the Employee now or hereafter
becomes a participant, or the taking of any action by the Association which
would directly or indirectly reduce any of such benefits or deprive the Employee
of any material fringe benefit enjoyed by him at the time of the change in
control; (iv) the assignment to the Employee of duties and responsibilities
materially different from those normally associated with his position as
referenced at Section 1; (v) a failure to elect or reelect the Employee to the
Board of Directors of the Association if the Employee is serving on such Board
on the date of the change in control; or (vi) a material diminution or reduction
in the Employee's responsibilities or authority (including reporting
responsibilities) in connection with his employment with the Association.
(c) Any payments made to the Employee 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.
(d) In the event that any dispute arises between the Employee and the
Association as to the terms or interpretation of this Agreement, including this
Section 11, whether instituted by formal legal proceedings or otherwise,
including an, action that the Employee takes to enforce the terms of this
Section 11 or to defend against any action taken by the Association, the
Employee shall be reimbursed for all costs and expenses, including reasonable
attorneys' fees, arising from such dispute, proceedings or actions, provided
that the Employee shall have obtained a final judgement by a court of competent
jurisdiction in favor of the Employee. Such reimbursement shall be paid within
10 days of Employee's furnishing to the Association written evidence, which may
be in the form, among other things, of a canceled check or receipt, of any costs
or expenses incurred by the Employee.
12. Requirements of Applicable Regulations of OTS
(a) The Association's board of directors may terminate the Employee's
employment at any time, but any termination by the Association's board of
directors, other than termination for cause, shall not prejudice the Employee's
right to compensation or other benefits under this Agreement. The Employee shall
have no right to receive compensation or other benefits for any period after
termination for cause (as defined in Section 9(c) of this Agreement).
(b) If the Employee is suspended and/or temporarily prohibited from
participating in the conduct of the Association's affairs by a notice served
under section 8(e)(3) or (g)(1) of Federal Deposit Insurance Act (12 U.S.C. 1818
(e)(3) and (g)(1)), the Association's obligations under this Agreement shall be
suspended as of the date of service unless stayed by appropriate proceedings. If
the charges in the notice are dismissed, the Association may in its discretion
(i) pay the Employee all or part of the compensation withheld while its
obligations were suspended, and (ii) reinstate (in whole or in part) any of its
obligations which were suspended.
(c) If the Employee is removed and/or permanently prohibited from
participating in the conduct of the Association's affairs by an order issued
under section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act (12 U.S.C.
1818 (e)(4) or (g)(1)), all obligations of the Association under this Agreement
shall terminate as of the effective date of the order, but vested rights of the
contracting parties shall not be affected.
(d) If the Association is in default (as defined in section 3(x)(1) of
the Federal Deposit Insurance Act), all obligations under this Agreement shall
terminate as of the date of default, but this Section 12(d) shall not affect any
vested rights of the parties.
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(e) All obligations under this Agreement shall be terminated, except to
the extent determined that the continuation of this Agreement is necessary of
the continued operation of the Association:
(i) By the Director of the Office of Thrift Supervision (the
"Director") or his or her designee, at the time the Federal Deposit Insurance
Corporation or Resolution Trust Corporation enters into an agreement to provide
assistance to or on behalf of the Association under the authority contained in
13(c) of the Federal Deposit Insurance Act; or
(ii) By the Director or his or her designee, at the time the
Director or his or her designee approves a supervisory merger to resolve
problems related to operation of the Association or when the Association is
determined by the Director to be in an unsafe or unsound condition.
Any rights of the Employee that have already vested, however, shall not
be affected by such action.
(f) Should any provision of this Agreement give rise to a discrepancy
or conflict with respect to any applicable law or regulation, then the
applicable law or regulation shall control the relevant construction and
operation of this Agreement.
13. Successors and Assigns.
(a) This Agreement shall inure to the benefit of and be binding
upon any corporate or other successor of the Association which shall acquire,
directly or indirectly, by merger, consolidation, purchase or otherwise, all or
substantially all of the assets or stock of the Association.
(b) Since the Association is contracting for the unique and
personal skills of the Employee, the Employee shall be precluded from assigning
or delegating his rights or duties hereunder without first obtaining the written
consent of the Association.
14. Amendments. No amendments or additions to this Agreement shall be
binding unless made in writing and signed by all of the parties, except as
herein otherwise specifically provided.
15. Applicable Law. Except to the extent preempted by Federal law, the
laws of the State of Alabama shall govern this Agreement in all respects,
whether as to its validity, construction, capacity, performance or otherwise.
16. Severability. 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 of this Agreement.
17. Entire Agreement. This Agreement, together with any understanding
or modifications thereof as agreed to in writing by the parties, shall
constitute the entire agreement between the parties hereto.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first hereinabove written.
ATTEST: FIRST FEDERAL OF THE SOUTH
/s/ Xxx X. XxXxxxxx /s/ Xxxxxx X. Xxxxxx
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Secretary President and Chief Executive Officer
WITNESS:
/s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx ("Employee")
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