Exhibit 10D
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") made and entered into this
__ day of April, 2001, by and among 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 (the "Bank").
W I T N E S S E T H:
WHEREAS, the Bank and the Executive desire to enter into an employment
relationship with the other; and
WHEREAS, the Bank and the Executive each deem it necessary and
desirable to execute a written document setting forth the terms and conditions
of said relationship.
NOW, THEREFORE, in consideration of the employment of the Executive by
the Bank, 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. The Bank hereby employs Executive's full-time services
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as Executive Vice President and Senior Credit Officer of the Bank, commencing on
the first day of employment, which shall be May __, 2001 or at Executive's
option beginning on a date not later than June 1, 2001 (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 the
Bank. 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 the Bank, the Bank
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agrees to pay Executive an annual salary of Eighty-Five Thousand Dollars
($85,000.00) beginning on the Commencement Date. The annual salary shall be paid
in equal bi-weekly installments. Payment will be in accordance with the Bank's
payroll policies in effect from time to time.
3. Benefits. The Bank agrees to provide Executive with the following
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benefits commencing with the Commencement Date, or as soon thereafter as
practicable, and continuing for so long as Executive is employed under this
Agreement or any extension thereof:
(a) The Bank shall also provide for the Executive 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. The Bank shall have the right to obtain a
term life insurance policy on the Executive for the benefit of the Bank
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 Bank 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
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expenses in connection with the business of the Bank, including expenses for
entertainment, trade association meetings, travel, promotion and similar
matters. The Bank will pay or reimburse Executive, pursuant to the Bank's
policy, for such expenses upon presentation by Executive of the appropriate
records which verify such expenses.
5. Bonus. The Bank recognizes it is important that Executive have a
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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. Based on the Bank's regulatory situation and financial
condition, and the Executive's new employment, the Board shall by July 2001
discuss with Executive both short-term and long-term objectives. Executive will
not be eligible for a bonus during calendar year 2001. Executive's first annual
review shall be in May 2002, and Executive will be eligible for a bonus of up to
25% of his base salary, based on criteria to be mutually agreed upon by the
Board and the Executive by July 15, 2001.
6. Stock Options. The Bank shall provide for the Executive's
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eligibility to participate in the Stock Option Plan of First Southern
Bancshares, Inc., a Delaware corporation, the parent company of the Bank, and
the Executive is hereby issued options to purchase 10,000 shares of common
stock, subject to the terms of the Stock Option Agreement between the Executive
and First Southern Bancshares, Inc. as provided in Exhibit A, which is attached
hereto and incorporated herein by reference.
7. Severance.
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(a) If Executive becomes disabled or dies, he or 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 benefits described in paragraph 3(a) of this
Agreement 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 fifty percent (50%)
the Executive's annual salary at the time of termination payable in a
lump sum upon termination, plus the benefits described in paragraph
3(a) of this Agreement for a six month period.
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(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 benefits described in paragraph 3(a) of
this Agreement for a two-year period.
8. Termination. Except for the provisions of paragraphs 11 and 12,
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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 the Bank "for cause" as defined in
paragraph 10;
(d) Termination by the Bank "without cause" or pursuant to a
"Change in Control" as defined below. The Bank reserves the right to
terminate the Executive at any time.
(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, the
Bank 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, the Bank 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 Bank or First Southern Bancshares, Inc.,
a Delaware corporation, the Bank's parent company, (the
"Company"), or a sale or disposition of the issued and
outstanding common stock of the Bank or the Company 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 Bank or the
Company 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 Bank or the Company prior to
such transaction.
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9. Disability. Executive shall be considered to be permanently disabled
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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 the Bank 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 the Bank are in material disagreement regarding Executive's
physical or mental condition, the Bank shall authorize a panel of three (3)
physicians selected by the Bank 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
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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 the Bank's banking regulators; or willful or gross
negligence in carrying out the activities for which employed.
11. Disclosure of Confidential Information. Executive acknowledges that
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the Bank 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.
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(a) It is understood and agreed by parties to this Agreement
that under the following conditions, Executive hereby agrees not to
directly or indirectly (1) compete with the Bank nor (2) solicit its
employees:
(i) If Executive voluntarily resigns his position;
(ii) If there is a Change of Control in the ownership
of the Bank; 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 solicit the Bank's
employees to leave the services of the Bank, or 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 solicit the Bank's employees or
compete within the Non-Compete Area for a period of one year 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. 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
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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 provide in
paragraph 12(a)(iii) above.
13. Assignment. The rights and obligations of the Bank and Executive
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(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.
14. Bank's Conditions to Execution of Agreement. The execution of this
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Agreement by the Bank is subject to authorization and ratification by its Board
of Directors at the next scheduled meeting, and the employment of Executive as
provided for herein is subject to prior approval of the Bank's primary
regulators.
15. Entire Agreement. This Agreement contains the entire agreement
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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
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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
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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/ First Southern Bank
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EXECUTIVE:
/s/ Xxxxx Xxxx Xxxxxxx, Jr.
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XXXXX XXXX XXXXXXX, JR.
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