Exhibit 10(f)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") made and entered into
effective as of the 1st day of July, 2002, by and among XXXXXXXX XXXXX
XXXXXXXXX, a resident of the State of Alabama (the "Executive"), FIRST SOUTHERN
BANCSHARES, INC., a corporation organized and existing under the laws of the
State of Delaware (the "Company"), and FIRST SOUTHERN BANK, a banking
corporation organized under the laws of the State of Alabama (the "Bank");
(First Southern Bancshares, Inc. and First Southern Bank are collectively
referred to as "First Southern").
WITNESSETH:
WHEREAS, First Southern and the Executive desire to terminate the oral
consulting agreement, effective April 15, 2002, by and between First Southern
and the Executive;
WHEREAS, First Southern and the Executive desire to enter into an
employment Agreement;
WHEREAS, First Southern and the Executive have received from the
primary banking regulators of the Bank and the Company the written consent for
Executive to serve as an executive officer of the Bank and the Company; and
WHEREAS, First Southern 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
First Southern, 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. First Southern hereby employs Executive's full-time
services as Executive Vice President and Chief Financial Officer of the Bank and
the Company, commencing on July 1, 2002 (the "Commencement Date"). This
Agreement shall be for a term of three years, beginning on the Commencement Date
and shall be automatically renewed annually unless either party provides written
notice of his or her desire not to renew at least ninety (90) days prior to the
end of the applicable annual anniversary 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 First Southern. 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 First Southern,
First Southern agrees to pay Executive a salary of Ninety-Two Thousand Five
Hundred Dollars ($92,500.00) on an annual basis beginning on July 1, 2002 until
October 15, 2002. Beginning October 15, 2002, First Southern agrees to pay
Executive a salary of Ninety-Seven Thousand Five Hundred Dollars
($97,500.00) on an annual basis. The salary shall be paid in equal bi-weekly
installments. Payment will be in accordance with First Southern's payroll
policies in effect from time to time.
3. Benefits. First Southern agrees to provide Executive with the
following benefits commencing on July 1, 2002, or as soon thereafter as
practicable, and continuing for so long as Executive is employed under this
Agreement or any extension thereof
(a) First Southern shall 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.
First Southern shall have the right to obtain a term life insurance policy
on the Executive for the benefit of First Southern up to an amount equal to
twice his annual salary.
(b) An annual paid vacation of three weeks.
(c) A car allowance of $550 per month, or an equivalent lease
arrangement, and all related operating and maintenance expenses.
(d) Reimbursement of monthly dues and Bank related expenses of
Executive at a country club of his choice in either Lauderdale or Colbert
Counties.
(e) Reimbursement of expenses of Executive's use of a cellular
telephone.
(f) Other benefits as the Board may approve from time to time.
4. Expenses. Executive is authorized to incur necessary and customary
expenses in connection with the business of First Southern, including expenses
for entertainment, trade association meetings, travel, promotion and similar
matters. First Southern will pay or reimburse Executive, pursuant to First
Southern's policy, for such expenses upon presentation by Executive of the
appropriate records which verify such expenses.
5. Bonus. Executive shall receive a signing bonus in an amount equal to
$5,000 payable on July 1, 2002. First Southern recognizes it is important that
Executive have a 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. Executive will be
eligible for a bonus during calendar year 2002, in the event that First Southern
for fiscal year 2002 achieves an operating profit (excluding Extraordinary
Items), in an amount equal to 25% of his base salary, payable in the first
calendar quarter of 2003. The term "Extraordinary Items" includes bond claim
recoveries, tax benefit recoveries accrued on First Southern's financial
statements and gains from the pending sale of Bank branches, but does not
include provisions to First Southern's allowance for loan and lease losses
account. Executive will be eligible for a bonus of up to 25% of his base salary
in subsequent fiscal years, based on criteria to be mutually agreed upon by the
Board and the Executive.
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6. Stock Options and Stock Incentive Award.
(a) The Executive shall be eligible to participate in the Stock Option
Plan, and Executive will, within thirty days, be issued stock options,
subject to the terms of the Stock Option Agreement between the Executive and
the Company as provided in Exhibit A, which is attached hereto and
incorporated herein by reference.
(b) The Company hereby grants to Executive an incentive stock bonus of
twenty five thousand (25,000) shares of common stock of the Company (the
"Stock Bonus"), which Stock Bonus is contingent and shall only be earned as
set out below. In the event that the per share price of the Company's common
stock, as quoted on the OTC Bulletin Board or on another public market if
the Company's stock is not quoted on the OTC Bulletin Board, closes at or
above $6.00 per share for ten consecutive trading days at any time from
three years from the date hereof to and including July 1, 2007, then the
Stock Bonus shall be deemed to be earned by the Executive. The $6.00 per
share target price shall be adjusted for stock dividends, stock splits,
stock combinations, recapitalization and other similar changes as referenced
in Paragraph 5 of the Stock Option Agreement. The ten consecutive trading
days requirement noted above will not be met if Executive has, directly or
indirectly, purchased any of the Company's common stock during such ten
consecutive trading days or during the ten trading days prior to such
period.
7. Severance.
(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 the Executive's annual salary at
the time of termination payable in a lump sum upon termination, plus the
benefits described in paragraph 3 of this Agreement for a one year period.
(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 2 1/2 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 of this Agreement for a 2 1/2
year period.
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8. Termination. Except for the provisions of paragraphs 11 and 12, 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 First Southern "for cause" as defined in paragraph
10;
(d) Termination by First Southern "without cause" or pursuant to a
"Change in Control" as defined below. First Southern 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, First Southern 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,
First Southern 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 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 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.
9. Disability. Executive shall be considered to be permanently disabled
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 First Southern shall have
given the other party thirty (30) days' written notice of his or its intention
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to terminate Executive's employment because of such disability. In the event
that Executive and First Southern are in material disagreement regarding
Executive's physical or mental condition, First Southern shall authorize a panel
of three (3) physicians selected by First Southern 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
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 First Southern's banking regulators; willful or
gross negligence in carrying out the activities for which employed; or in the
event that the Executive's performance of his duties does not meet the standards
required by First Southern's regulators under the Consent Order or under any
replacement order or agreement.
11. Disclosure of Confidential Information. Executive acknowledges that
First Southern 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.
(a) It is understood and agreed by the parties to this Agreement that
under the following conditions, Executive hereby agrees not to directly or
indirectly compete with First Southern:
(i) If Executive voluntarily resigns his position;
(2) If there is a Change of Control in the ownership of First
Southern; or
(3) If Executive is terminated "without cause."
The non-competition and solicitation restrictions provided for in this
paragraph 12, however, shall not apply if Executive's termination is the
result of First Southern's 90-day notice of its intent not to renew the term
of this Agreement or any subsequent renewal extension of this Agreement.
(b) Executive hereby agrees that in the event of termination pursuant to
paragraph 12(a)(i) or (ii), he will not compete with First Southern within
the areas of Lauderdale and Colbert counties in Alabama (the "Non-Compete
Area") for a period of 2 1/2 years from the date of termination. If the
Executive is terminated under paragraph 12(a)(iii), then Executive hereby
agrees not to compete within the Non-Compete Area for a period of one year
from the date of termination.
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(c) Executive agrees that he will not solicit any of First Southern's
employees to leave the services of First Southern for a period of two years
from the date of termination. The nonsolicitation provision shall apply to
any Bank employee during the period of such employee's employment with First
Southern and for a period of 30 days after an employee's termination of
employment with First Southern.
(d) 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 First Southern or act as a consultant
or otherwise influence employees to join said institution during the term of
this Agreement and for a period of 2 1/2 years from the 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 provided in paragraph 12(a)(iii) above.
13. Assignment. The rights and obligations of First Southern and
Executive (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. Board of Director Approval. The execution of this Agreement by the
Bank and the Company has been authorized and approved by their respective Board
of Directors.
15. Entire Agreement. This Agreement contains the entire agreement
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
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
performed in the State of Alabama and shall be construed, controlled and
interpreted according to the laws of Alabama.
18. Bank's Compliance with Applicable Laws. Notwithstanding any other
provision of this Agreement, all payments to Executive pursuant to this
Agreement shall be subject to the Bank's compliance with 12 CFR 359 regarding
Golden Parachute and Indemnification Payments.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
THE COMPANY:
FIRST SOUTHERN BANCSHARES, INC.
By: /s/ X. Xxxxx Xxxxxx
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Title: Chairman of the Board
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THE BANK:
FIRST SOUTHERN BANK
By: /s/ Xxxxx Xxxx Xxxxxxx
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Title: President and CEO
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EXECUTIVE:
/s/ Xxxxxxxx Xxxxx Xxxxxxxxx
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XXXXXXXX XXXXX XXXXXXXXX
AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement (the "First Amendment") made and
entered into as of this 30th day of July, 2002 by and between XXXXXXXX XXXXX
XXXXXXXXX, 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 ("First Southern").
WITNESSETH:
WHEREAS, First Southern and the Executive entered into an Employment
Agreement dated July 1, 2002 (the "Employment Agreement"); and
WHEREAS, the parties desire to amend the Employment Agreement as set
forth below.
NOW THEREFORE, in consideration of the Employment Agreement and of the
mutual covenants, promises and agreements made therein and herein, and of other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Paragraph 7 is hereby amended to delete paragraphs (c) and (d).
2. Except as provided by this Amendment, the parties hereby ratify and
confirm the terms of the Employment Agreement.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
THE BANK:
FIRST SOUTHERN BANK
By: /s/ X. Xxxxx Xxxxxx
--------------------------------
Name: X. Xxxxx Xxxxxx
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Title: Chairman of the Board
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EXECUTIVE:
/s/ Xxxxxxxx Xxxxx Xxxxxxxxx
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XXXXXXXX XXXXX XXXXXXXXX
