Exhibit 10.2
FIRST FEDERAL OF THE SOUTH
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
(Effective as of October 1, 2002)
(XXX X. XXXXXXXX)
THIS AGREEMENT is entered into as of the 1st day of October,
2003 (the "Effective Date"), by and between First Federal of the South (the
"Association") and Xxx X. XxXxxxxx (the "Employee").
WHEREAS, the Employee has heretofore been employed by the
Association as President and Chief Executive Officer and is experienced in all
phases of the business of the Association; and
WHEREAS, the parties desire by this writing to establish and
to set forth the new employment relationship between the Association and the
Employee.
NOW, THEREFORE, it is AGREED as follows:
1. Employment. The Employee is hereby employed as the
Chief Executive Officer and President of the Association. The Employee shall
render such administrative and management services for the Association 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
Association. The Employee's other duties shall be such as the Board of Directors
of the Association ("Board") may from time to time reasonably direct, including
normal duties as an officer of the Association.
2. Base Compensation. The Association agrees to pay the
Employee during the term of this Agreement a salary at the rate of $150,000 per
annum, payable in cash not less frequently than monthly. The Board shall 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. Performance Bonus. Beginning on the Effective Date,
and in addition to Employee's base salary, Employee shall be eligible to receive
such performance bonuses as may be determined in the sole discretion of the
Board.
4. (a) Participation in Retirement, Medical and Other
Plans. The Employee shall participate in any plan that the Association maintains
for the benefit of its employees if the plan relates to (i) pension,
profit-sharing, or other retirement benefits, (ii)
[Execution Copy]
-1-
medical insurance or the reimbursement of medical or dependent care expenses, or
(iii) other group benefits, including disability and life insurance plans.
(b) Employee Benefits; Expenses. The Employee shall
participate in any fringe benefits which are or may become available to the
Association'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 Association.
5. Term. The Association hereby employs the Employee,
and the Employee hereby accepts such employment under this Agreement, for the
period commencing on the Effective Date and ending 24 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 Association 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 Association, 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 Association, 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 Association will provide Employee with the
working facilities and staff customary for similar executives and necessary for
him to perform his duties.
[Execution Copy]
-2-
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 Association.
(b) The Employee shall not receive any additional
compensation from the Association 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.
(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 Association 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 Association 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
Association's long-term disability plan (or, if the Association 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).
[Execution Copy]
-3-
(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 (ii) the cost to the Employee of obtaining all health, life and
disability 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 Association 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 two (2) times the Employee's "average annual compensation". The
Employee's "average annual 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 plan, director fees or committee 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 Association 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.
[Execution Copy]
-4-
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
Association, 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 Association 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) an increase in the ownership of, or the
holding of, or the power to vote, by any person, or by any persons acting as a
"group" (within the meaning of Section 13(d) of the Securities Exchange Act of
1934), the Association's or Corporation's voting stock, to an amount which is
more than 25% of the issued and outstanding shares thereof, (2) a change in the
ownership of, or possession of, the ability to control the election of a
majority of the Association's or Corporation's directors, (3) a change in the
ownership of, or possession of, the ability to exercise a controlling influence
over the management or policies of the Association or the Corporation, by any
person, or by any 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 Association, or its board of 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
Association (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), individuals acting in concert or as a
"group", or a corporation, partnership, 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 Association or the Corporation, and the Employee shall thereupon be entitled
to receive the payment described in Section 11(a) of this Agreement, upon the
occurrence of any of the following events, or within ninety (90) days
thereafter, which have not been consented to in advance by the Employee in
writing: (i) the requirement that the Employee move his personal residence, or
perform his principal executive
[Execution Copy]
-5-
functions, more than thirty-five (35) miles from his primary office as of the
date of the change in control; (ii) a material reduction in the Employee's base
compensation as in effect on the date of the change in control, as the same may
be increased from time to time; (iii) the failure by the Association to continue
to provide the Employee with compensation and benefits provided for under this
Agreement, as the same may be increased from time to time, or with benefits
substantially similar to those provided to him under any of the employee benefit
plans in which the Employee now or hereafter becomes a participant, or the
taking of any action by the Association which would directly or indirectly
reduce any of such benefits or deprive the Employee of any material fringe
benefit enjoyed by him at the time of the change in control; (iv) the assignment
to the Employee of duties and responsibilities materially different from those
normally associated with his position as referenced at Section 1; (v) a failure
to elect or reelect the Employee to the Board of Directors of the Association if
the Employee is serving on such Board on the date of the change in control; or
(vi) a material diminution or reduction in the Employee's responsibilities or
authority (including reporting responsibilities) in connection with his
employment with the Association.
(c) Notwithstanding any other provision of this
Agreement or the employment agreement between the Employee and the Corporation
(the "SouthFirst Contract") to the contrary, the Employee may voluntarily
terminate his employment under this Agreement within twelve (12) months
following a change in control of the Corporation or the Association, and the
Employee shall thereupon be entitled to receive the payment described in Section
11(a) of this Agreement.
(d) 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.
(e) In the event that any dispute arises between the
Employee and the Association as to the terms or interpretation of this
Agreement, including this Section 11, whether instituted by formal legal
proceedings or otherwise, including any action that the Employee takes to
enforce the terms of this Section 11 or to defend against any action taken by
the Association, 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 Association
written evidence, which may be in the form, among other things, of a canceled
check or receipt, of any costs or expenses incurred by the Employee.
(f) Any and all amounts paid to Employee under
Section 9 and/or Section 11 of the SouthFirst Contract shall be deemed to be
paid in satisfaction of, and shall therefore offset, any amounts to be paid to
Employee pursuant to Section 9 hereunder or pursuant to this Section 11, to the
extent that any amounts paid under Section 9 and/or 11 of the SouthFirst
Contract are attributable to, or related to, the base salary, or other
compensation and amounts, paid to Employee under this Agreement.
12. Requirements of Applicable Regulations of OTS
[Execution Copy]
-6-
(a) The Association's board of directors may terminate the
Employee's employment at any time, but any termination by the Association's
board of directors, other than termination for cause, shall not prejudice the
Employee's right to compensation or other benefits under this Agreement. The
Employee shall have no right to receive compensation or other benefits for any
period after termination for cause (as defined in Section 9(c) hereof).
(b) If the Employee is suspended and/or temporarily prohibited
from participating in the conduct of the Association's affairs by a notice
served under section 8(e)(3) or (g)(1) of Federal Deposit Insurance Act (12
U.S.C. 1818 (e)(3) and (g)(1)), the Association's obligations under this
Agreement shall be suspended as of the date of service unless stayed by
appropriate proceedings. If the charges in the notice are dismissed, the
Association may in its discretion (i) pay the Employee all or part of the
compensation withheld while its obligations were suspended, and (ii) reinstate
(in whole or in part) any of its obligations which were suspended.
(c) If the Employee is removed and/or permanently prohibited
from participating in the conduct of the Association's affairs by an order
issued under section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act (12
U.S.C. 1818 (e)(4) or (g)(1)), all obligations of the Association under this
Agreement shall terminate as of the effective date of the order, but vested
rights of the contracting parties shall not be affected.
(d) If the Association is in default (as defined in section
3(x)(1) of the Federal Deposit Insurance Act), all obligations under this
Agreement shall terminate as of the date of default, but this Section 12(d)
shall not affect any vested rights of the parties.
(e) All obligations under this Agreement shall be terminated,
except to the extent determined that the continuation of this Agreement is
necessary of the continued operation of the Association:
(i) By the Director of the Office of Thrift
Supervision (the "Director") or his or her designee, at the time the Federal
Deposit Insurance Corporation or Resolution Trust Corporation enters into an
agreement to provide assistance to or on behalf of the Association under the
authority contained in 13(c) of the Federal Deposit Insurance Act; or
(ii) By the Director or his or her designee, at the
time the Director or his or her designee approves a supervisory merger to
resolve problems related to operation of the association or when the association
is determined by the Director to be in an unsafe or unsound condition.
Any rights of the Employee that have already vested, however,
shall not be affected by such action.
(f) 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.
[Execution Copy]
-7-
13. Successors and Assigns.
(a) This Agreement shall inure to the benefit of and
be binding upon any corporate or other successor of the Association which shall
acquire, directly or indirectly, by merger, consolidation, purchase or
otherwise, all or substantially all of the assets or stock of the Association.
(b) since the Association 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 Association.
14. 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.
15. 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.
16. 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.
17. 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.
[Remainder of Page Intentionally Left Blank.]
[Signatures Begin on the Following Page.]
[Execution Copy]
-8-
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first hereinabove written.
ATTEST: FIRST FEDERAL OF THE SOUTH
______________________________ BY: _____________________________________
Secretary Xxxxx X. XxXxxxxx III
Chairman of the Board of Directors
ATTEST: FIRST FEDERAL OF THE SOUTH
______________________________ BY: _____________________________________
Secretary Xxxxxx X. Xxxxxxxx
Executive Vice President
WITNESS:
______________________________ _____________________________________
Xxx X. XxXxxxxx ("Employee")
[Execution Copy]
-9-
