AGREEMENT
Exhibit (10)-4
This Agreement (“Agreement”), dated as of August 31, 2006, is between Superior Bank, its
successors, assigns and affiliated companies (the “Company”) and Xxxxxxx X. Xxxxxxxx, Xx. (the
“Executive”).
1. Replacement of Change in Control Agreement. This Agreement replaces and supersedes any
prior agreement between the Company and the Executive regarding a change in control of Community
Bancshares, Inc. or Community Bank or any other predecessor to the Company, including without
limitation the Change in Control Agreement dated December 4, 1999, as the same may have been
amended (the “Change in Control Agreement”). The Executive acknowledges and agrees that in the
instant immediately prior to the consummation of the merger of Community Bancshares, Inc. with and
into Superior Bancorp (the “Merger”), the Change in Control Agreement shall no longer be in effect
and the Executive shall have no remaining rights under the Change in Control Agreement.
2. Continued Employment of Executive. Following the date of the consummation of the Merger
(the “Effective Date of the Merger”), Executive shall be employed on an at-will basis as the
General Counsel and Corporate Secretary of the Company and Superior Bancorp at a base salary which
shall be no less than Executive’s current base salary, and Executive shall be eligible for all
welfare benefit, pension benefit, and bonus and incentive compensation plans maintained by the
Company on the same basis as other employees at Executive’s level within the Company. Executive
shall perform those duties as are customarily associated with his positions and such other
reasonable duties as may be assigned to him. The Company may terminate Executive’s employment at
any time for any reason; provided however, if the Company terminates Executive’s employment, other
than For Cause (as defined in Section 4 below) or on account of the Executive’s death or total
disability (as defined in Section 4 below), prior to the first anniversary of the Effective Date of
the Merger, Executive shall, within thirty (30) days following the termination of his employment,
receive a lump sum payment, unreduced for early receipt, equal to his base salary for the period
from the date of termination of his employment to the first anniversary of the Effective Date of
the Merger.
3. Bonus. The Executive shall receive a bonus payment in the amount of $215,099 in the first
payroll next following the first anniversary of the Effective Date of the Merger. The Company
shall make deductions from the bonus payment hereunder in accordance with its customary payroll
practices. The compensation payable to Executive under this Section 3 shall be absolute, subject
to no contingencies and shall survive the Executive’s death or disability.
4. For Cause Defined. “For Cause” shall mean (i) abuse of or addiction to intoxicating drugs
(including alcohol), which has adversely affected or may adversely affect the business or
reputation of the Company; (ii) any act or omission on the part of the Executive which constitutes
fraud, misrepresentation, embezzlement,
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misappropriation of corporate assets or theft; (iii) a felony indictment of the Executive; (iv) a
request by federal or state banking regulatory authorities to terminate the Executive’s services
hereunder; or (v) a material breach by the Executive of any of the terms of this Agreement. For
purposes of this Agreement, the term “total disability” shall mean the Executive’s inability, as a
result of illness or injury, to perform the normal duties of his employment for a period of ninety
(90) consecutive days.
5. Non-Disclosure of Information. The Executive acknowledges that any documents and
information, whether written or not, that came or come into the Executive’s possession or knowledge
during the Executive’s employment by the Company, including without limitation the financial and
business conditions, business methods, goals, operations, sales techniques or services of the
Company and its affiliates or subsidiaries as the same may exist from time to time (collectively,
“Confidential Information”), are valuable, special and unique assets of the Company’s business. The
Executive will not, during or after the term of this Agreement: (a) disclose any written
Confidential Information to any person, firm, corporation, association, or other entity not
employed by or affiliated with the Company for any reason or purpose whatsoever, or (b) use any
written Confidential Information for any reason other than to further the business of the Company.
The Executive agrees to return immediately any written Confidential Information, and all copies
thereof, upon the termination of the Executive’s employment. In the event of a breach or threatened
breach by the Executive of the provisions of this Section 5, in addition to all other remedies
available to the Company, the Company shall be entitled to an injunction restraining the Executive
from disclosing any written Confidential Information or from rendering any services to any person,
firm, corporation, association or other entity to whom any written Confidential Information has
been disclosed or is threatened to be disclosed, without the need to post bond or other security.
In the event of any suit or arbitration with respect to the Executive’s obligations in this Section
5, the Executive shall pay all costs incurred by the Company in securing an injunction (or other
equitable remedy) and/or damages, including reasonable attorneys’ fees and expenses; provided,
however, in the event the Company is unsuccessful in obtaining any such remedy, the Executive shall
have no liability for the Company’s costs in connection with such suit or arbitration.
6. Competition.
(a) During the period that the Executive is employed by the Company and ending on the first
anniversary of the termination of the Executive’s employment, the Executive shall not, directly or
indirectly: (i) solicit banking or similar business with any existing customer of the Company or
any of its subsidiaries or affiliates in the Territory (as defined below); or (ii) solicit any
employee of the Company or any of its subsidiaries or affiliates to leave his or her employment
with the Company or any of its subsidiaries or affiliates for any reason, or hire any such employee
of the Company or any of its subsidiaries or affiliates, without the prior written consent of the
Company. As used herein, “Territory” shall mean the counties in which the Company does business at
any time during the period that the Executive is employed by the Company.
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(b) In the event of any suit or arbitration with respect to the Executive’s obligations set
forth in Section 6(a), the Executive shall pay all costs incurred by the Company in securing an
injunction (or other equitable remedy) and/or damages, including reasonable attorneys’ fees and
expenses; provided, however, in the event the Company is unsuccessful in obtaining any such remedy,
the Executive shall have no liability for the Company’s costs in connection with such suit or
arbitration.
(c) The Executive and the Company recognize that any subsidiaries or affiliates of the Company
are third-party beneficiaries to this Agreement that are intended to be protected by the covenants
in this Agreement and that any successor or assign of the Company or one of the third-party
beneficiaries to this Agreement may enforce the covenants in this Agreement as if it were a party
to these covenants. Moreover, the Executive and the Company acknowledge and agree that the Company
has legitimate business interests to protect relative to Executive, including trade secrets, other
valuable confidential and proprietary business information, substantial relationships with specific
prospective and existing customers, substantial relationships with other employees of the Company,
the Company and customer goodwill associated with the Company’s trade name, and the Company’s
servicing of specific markets provided to the Executive. The Executive agrees that the restrictions
contained in this Section 6 are necessary and reasonable for the protection of the legitimate
business interests and goodwill of the Company described above, and the Executive agrees to waive
any objection to the enforcement of this covenant and that any breach of this Section 6 will cause
the Company substantial and irrevocable damage and, therefore, the Company shall have the right, in
addition to any other remedies it may have, to seek specific performance and injunctive relief,
without the need to post a bond or other security. The Executive agrees that the period during
which the covenant contained in this Section 6 shall be effective shall be computed by excluding
from such computation any time during which the Employee is in violation of any provision of
Section 6. The Executive agrees that if any covenant contained in Section 6 of this Agreement is
found by a court of competent jurisdiction to contain limitations as to time, geographical area, or
scope of activity that are not reasonable and impose a greater restraint than is necessary to
protect the goodwill or other business interest of the Company, then the court shall reform the
covenant to the extent necessary to cause the limitations contained in the covenant as to time,
geographical area, and scope of activity to be restrained to be reasonable and to impose a
restraint that is not greater than necessary to protect the goodwill and other business interests
of the Company and to enforce the covenant as reformed.
(d) The Executive specifically recognizes and affirms that each of the covenants contained in
Sections 5 and 6 of this Agreement is a material and important term of this Agreement which has
induced the Company to provide for the award of the compensation and benefits provided hereunder
and the other promises made by Company herein.
7. Enforcement of the Company’s obligations. In the event of any suit or arbitration with
respect to the Company’s obligations under this Agreement, the Company shall pay all costs incurred
by the Executive in securing an injunction (or other
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equitable remedy) and/or damages, including reasonable attorneys’ fees and expenses; provided,
however, in the event the Executive is unsuccessful in obtaining any such remedy, the Company shall
have no liability for the Executive’s costs in connection with such suit or arbitration.
8. Choice of Law. This Agreement shall be governed by, and interpreted in accordance with,
the laws of the State of Alabama.
9. Amendments. This Agreement may not be modified, amended or terminated except by a written
document executed by the Executive and a duly authorized representative of the Company.
10. Entire Agreement. This Agreement sets forth the entire agreement between the Company and
the Executive with respect to the payments provided for herein.
11. Binding Effect. This Agreement shall be binding upon, and inure to the benefit of, the
Company and the Executive, their respective heirs, successors, assigns, personal representatives
and affiliates; provided, however, that the Executive may not assign his right to any payment
hereunder.
12. Severability. If any one or more of the provisions of this Agreement is held to be
invalid, illegal or unenforceable for any reason, then the invalidity, illegality or
unenforceability of that provision shall not affect any other provision of this Agreement. The
Company and the Executive intend that this Agreement shall be interpreted as if any invalid,
illegal or unenforceable provision were never included herein.
XXXXXXX X. XXXXXXXX, XX.
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SUPERIOR BANK | |
/s/ Xxxxxxx X. Xxxxxxxx, Xx.
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By: /s/ C. Xxxxxx Xxxxx | |
Executive |
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| President | ||
| Title | ||
August 31, 2006
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August 23, 2006 | |
Date
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Date |
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