EXHIBIT 10-4
AGREEMENT
THIS AGREEMENT (this "Agreement") is entered into as of the 30th day of
June, 2005, by and among X. XXXXXXX XXXXXXXX, JR. ("Executive") and THE BANC
CORPORATION, a Delaware corporation (the "Parent"), and its wholly-owned
subsidiary, THE BANK, an Alabama banking corporation (the "Bank").
W I T N E S S E T H:
WHEREAS, Executive is employed by the Parent and the Bank, pursuant to
that Employment Agreement dated January 16, 2001, attached hereto as Exhibit A
(the "Employment Contract"), and each of the parties hereto is also a party to
that certain Employment Standstill Agreement made as of January 24, 2005
attached hereto as Exhibit B (the "Standstill Contract") (the Employment
Contract and the Standstill Contract being hereinafter referred to collectively
as the " Contracts");
WHEREAS, the Parties hereto agree that the Executive is entitled to
certain rights and benefits under the Contracts;
WHEREAS, the parties hereto have had discussions and have reached
agreement about the term of Executive's continuing employment and the
quantification and satisfaction of rights and obligations of the Bank and Parent
and Executive pursuant to the Contracts;
WHEREAS, the Parties hereto agree that any cash payments to be made to
Executive hereunder shall be obligations of the Bank; and
WHEREAS, Executive, the Parent and the Bank desire to fully settle,
compromise and resolve forever any claims, disputes, and potential claims
related to the Contracts.
NOW, THEREFORE, in consideration of the premises, the mutual promises and
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto do
hereby agree as follows:
1. RESIGNATION OF EMPLOYMENT. The Executive shall resign, effective
September 30, 2005, all positions that he currently holds with the Parent, the
Bank, and any companies, plans or trusts affiliated with or sponsored by either.
Notwithstanding the immediately preceding sentence, Executive shall serve as an
outside legal advisor to the Parent and the Bank through January 24, 2006,
receiving the same salary and benefits that he is currently receiving under the
Contracts; provided, however, that Executive shall continue to receive such
salary and benefits only so long as he is meeting his obligations hereunder as
an employee or advisor, as the case may be; provided, further, that such salary
and benefits would continue through January 24, 2006, if Executive were not
meeting his obligations hereunder solely due to his death or disability or his
having been terminated without cause.
2. EMPLOYMENT. The Parent agrees that it will maintain the Executive in
its employ to the extent, but only to the extent, necessary for Executive to be
able to exercise any stock options to purchase stock of the Parent for the full
term of such option.
3. PAYMENT AND OTHER BENEFITS.
In lieu of any payments that Executive would be entitled pursuant to
subsections 4(c)(i) and (ii) of the Employment Contract and in lieu of the
insurance benefits to which Executive would be entitled pursuant to subsection
4(c)(iii) of the Employment Contract, the Executive will receive $1,138,811
(less any required withholding) payable by the Bank on July 21, 2005, or
promptly thereafter. Promptly upon payment of said amount, Executive will
purchase for its then current book value the vehicle that is currently being
provided for Executive's use.
The restrictions on the Executive's outstanding incentive awards shall
lapse and shall become vested and exercisable during the full term of such
award, and his benefits under deferred compensation arrangements shall become
100% vested as provided in Subsection 4(c)(iv) of the Employment Contract
including the stock in his ESOP account, as reflected in the agreements attached
hereto as Exhibit C.
The payments and benefits for which provision is made in subparagraphs (a)
and (b) above are absolute, subject to no contingencies and will survive the
Executive's death, disability or termination.
4. COVENANTS OF EXECUTIVE.
(a) General. Executive agrees that for so long as he has any rights or
obligations under this Agreement, he shall continue to conduct himself in a
professional manner that is supportive of the business of the Parent and the
Bank.
(b) Confidential Information. Without limiting the foregoing, Executive
shall not, at any time use or disclose any Confidential Information of the
Parent or the Bank, except in fulfillment of obligations hereunder, for so long
as the pertinent information or data remain Confidential Information, whether or
not the Confidential Information is in written or tangible form. "Confidential
Information" shall mean any information, including but not limited to technical
or non-technical data, a formula, a pattern, a compilation, a program, a device,
a method, a technique, a drawing, a process, financial data, financial plans,
product plans, information on customers, or a list of actual or potential
customers or suppliers, which: (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.
(c) SEC Reporting/Xxxxxxx Xxxxxxx Compliance. Executive will cooperate
with the Parent by providing information with respect to all reports required to
be filed by the Parent with the Securities and Exchange Commission as they
relate to required information with respect to Executive. Further, Executive
will remain in compliance with the terms of the Parent's xxxxxxx xxxxxxx
program, as such program is applicable to him following the date hereof, with
respect to purchases and sales of the Parent's stock.
(d) Noncompetition. Executive agrees that until January 24, 2007, he shall
not, individually or as an employee, consultant, partner, officer, director or
shareholder or in any other capacity whatsoever of or for any person, firm,
partnership, or corporation other than the
Parent, the Bank or affiliates of either, work as an employee or consultant, or
own, manage, operate, control or participate in the ownership (other than
passive ownership of five percent or less of the equity interest of a publicly
traded entity), management, operation or control of, any business in counties in
Alabama or Florida where the Bank currently has branches or currently has
planned branches that is in competition with or may compete with the
then-current business of the Parent, the Bank or affiliates of either; provided,
however, that the foregoing restrictions shall not be applicable to the
Executive's provision of legal services as a lawyer.
(e) Nonsolicitation. Executive agrees that until January 24, 2007, he
shall not either directly or indirectly solicit, induce, recruit or encourage
any of the Parent's or the Bank's employees or consultants to terminate their
relationship with the Parent or the Bank, or attempt to solicit, induce,
recruit, encourage or take away employees or consultants of the Parent or the
Bank, either for himself or for any other person or entity. Further, Executive
agrees that he shall not at any time use any Confidential Information of the
Parent or the Bank to negatively influence any of the Parent's or the Bank's
clients or customers from purchasing Parent or Bank products or services or to
solicit or influence or attempt to influence any client, customer or other
person either directly or indirectly, to direct his or its purchase of products
and/or services away from the Parent or the Bank to any person, firm,
corporation, institution or other entity in competition with the business of the
Parent or the Bank.
(f) Nondefamation. Executive agrees that he will not slander, or libel, or
speak disparagingly of, the Parent, the Bank or the affiliates of either, or any
of their directors, officers or employees concerning either their conduct
regarding his separation or their conduct at any time during his period of
employment with the Parent, the Bank or the affiliates of either.
5. BREACH OF THIS AGREEMENT. Executive acknowledges that in the event of
his material breach of any provision of this Agreement, the Parent and the Bank
may sustain irreparable harm from such breach, and, therefore, Executive agrees
that in addition to any other remedies which the Parent or the Bank may have for
any breach of this Agreement or otherwise, the Parent or the Bank may be
entitled to obtain equitable relief including specific performance, injunctions
and restraining Executive from committing or continuing any such violation of
this Agreement.
6. APPLICABLE LAW. This Agreement and the rights and obligations of the
parties hereunder shall be construed, interpreted and enforced in accordance
with, and governed by the laws of, the State of Alabama, applied without giving
effect to any conflict-of-laws principles.
7. BINDING EFFECT. This Agreement shall inure to the benefit and be
binding upon the Parties and their respective heirs, representatives, successors
and assigns.
8. SEVERABILITY AND SAVINGS PROVISION. In the event that any one or more
of the provisions contained herein shall for any reason be held to be
unenforceable in any respect under the law or any state or of the United States
of America, such unenforceability shall not affect any other provision of this
Agreement, but, with respect only to that jurisdiction holding the provision to
be unenforceable, this Agreement shall then be construed as if such
unenforceable provision or provisions had never been contained herein.
9. ENTIRE AGREEMENT. This Agreement constitutes the complete understanding
between Executive, the Parent and the Bank and supersedes any and all prior or
contemporaneous agreements, promises, or inducements, whether oral or written,
concerning these subject matters (including without limitation any existing
employment agreement), and that certain Memorandum Contract of even date
herewith entered into by the parties hereto is merged herein and of no further
force and effect.
IN WITNESS WHEREOF, each of the Parent and the Bank have caused this
Agreement to be executed in its corporate name by its duly authorized officer,
and Executive has hereunto set his hand, and the parties hereto have caused this
Agreement to be dated as of the date first above written.
THE BANC CORPORATION
By: /s/ C. Xxxxxxx Xxxxxx
------------------------------------
Its: CEO
-------------------------------
THE BANK
By: /s/ C. Xxxxxxx Xxxxxx
------------------------------------
Its: Chairman & CEO
-------------------------------
/s/ X. Xxxxxxx XxXxxxxx, Jr. (L.S.)
----------------------------------
X. XXXXXXX XXXXXXXX, JR.
Executed by Executive on the 21st day of July, 2005.
/s/ Xxxx X. Xxxxxx
----------------------------------------
WITNESS
