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EXHIBIT 10.2.1
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SOUTHFIRST BANCSHARES, INC.
EMPLOYMENT AGREEMENT
October 1, 1996
(Xxxxxx X. Xxxxxx)
THIS AGREEMENT is entered into as of the first day of October,
1996 (the "Effective Date"), by and between SouthFirst Bancshares, Inc., the
parent and holding (the "Holding Company") of First Federal of the South (the
"Association") and Xxxxxx X. Xxxxxx (the "Employee").
WHEREAS, the Employee has heretofore been employed by the
Holding Company as President and Chief Executive Officer and is experienced in
all phases of the business of the Holding Company; and
WHEREAS, the parties desire by this writing to establish and
to set forth the employment relationship between the Holding Company and the
Employee.
NOW, THEREFORE, it is AGREED as follows:
1. Employment. The Employee is hereby employed as the
President and Chief Executive Officer of the Holding Company. The Employee
shall render such administrative and management services for the Holding
Company as are currently rendered and as are customarily performed by persons
situated in a similar executive capacity. The Employee shall also promote, by
entertainment or otherwise, as and to the extent permitted by law, the business
of the Holding Company. The Employee's other duties shall be such as the Board
of Directors of the Holding Company ("Board") may from time to time reasonably
direct, including normal duties as an officer of the Holding Company.
2. Consideration from Holding Company: Joint and
Several Liability. In lieu of paying the Employee a base salary during the
term of this Agreement, the Holding Company hereby agrees that, to the extent
permitted by law, it shall be jointly and severally liable with the Association
for the payment of all amounts due under the employment agreement of even date
herewith between the Association and the Employee. Nevertheless, the Board may
in its discretion, at any time during the term of this Agreement, agree to pay
the Employee a base salary for the remaining term of this Agreement. If the
Board agrees to pay such salary, the Board shall thereafter 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 Holding Company in discretionary bonuses that the Board may award from
time to time to the Holding Company'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.
4. (a) Participation in Retirement, Medical and
Other Plans. The Employee shall participate in any plan that the Holding
Company 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.
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(b) Employee Benefits; Expenses. The Employee
shall participate in any fringe benefits which are or may become available to
the Holding Company's senior management employees, including for example: any
stock option or incentive compensation plans, club memberships, and any other
benefits which are commensurate 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 Holding Company.
5. Term. The Holding Company 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).
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 Holding
Company 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 Holding Company, or be gainfully
employed in any other position or job other than as provided above.
(b) Nothing contained in this Paragraph 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 Holding
Company, 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 Holding Company will provide Employee
with the working facilities and staff customary for similar executives and
necessary for him to perform his duties.
8. Vacation and Sick Leave. 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:
(a) 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 Holding Company.
(b) The Employee shall not receive any additional
compensation from the Holding Company 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.
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(c) 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 Holding
Company 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.
(d) In addition, the Employee shall be entitled
to an annual sick leave benefit as established by the Board.
9. Termination and Termination Pay. Subject to the
provisions of Section 11 hereof, 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 Holding Company 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 Holding Company's long-term disability plan (or, if the
Holding Company 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 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
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(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 Holding Company 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
ten (10) days of such termination; provided however, that the amount to be paid
by the Association to the Employee hereunder shall not exceed three (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 five (5) fiscal years (or the number of full
fiscal years of employment, if the Employee's employment is less than five (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) Voluntary Termination by Employee. Subject
to the provisions of Section 11 hereof, the Employee may voluntarily terminate
employment with the Holding Company 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 Holding Company, without the Employee's prior written consent and for a
reason other than for Cause, death or disability in connection with or within
twenty-four (24) months after any change in control of the Holding Company 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 ten (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 Holding Company'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 Holding Company'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 Holding Company 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 Holding Company 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 Holding Company (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,
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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 twelve (12) months following a change in
control of the Holding Company or the Corporation, and the Employee shall
thereupon be entitled to receive the payment described in Section 11(a) of this
Agreement.
(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 Holding Company 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 Holding Company, 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 ten (10) days of Employee's furnishing to
the Holding Company written evidence, which may be in the form, among other
things, of a cancelled check or receipt, of any costs or expenses incurred by
the Employee.
12. Successors and Assigns.
(a) This Agreement shall inure to the benefit of
and be binding upon any corporate or other successor of the Holding Company
which shall acquire, directly or indirectly, by merger, consolidation, purchase
or otherwise, all or substantially all of the assets or stock of the Holding
Company.
(b) since the Holding Company 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 Holding Company.
13. 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.
14. Applicable Law. Except to the extent preempted by
Federal law, the laws of the State of Delaware shall govern this Agreement in
all respects, whether as to its validity, construction, capacity, performance
or otherwise.
15. 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 hereof.
16. 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. Further,
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.
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IN WITNESS WHEREOF, the parties have executed this Agreement
on the day and year first hereinabove written.
ATTEST: SOUTHFIRST BANCSHARES, INC.
/s/ Xxx X. XxXxxxxx BY: /s/ Xxx X. XxXxxxxx
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Secretary Executive Vice-President and Chief
Operating Officer
WITNESS:
/s/ Xxxx X. Xxxxx /s/ Xxxxxx X. Xxxxxx
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Outside Director Xxxxxx X. Xxxxxx ("Employee")
