AGREEMENT
Exhibit 10.8
AGREEMENT
This Agreement (“Agreement”), dated as of September 8, 2008 (the “Effective Date”), is between
Superior Bancorp, its successors, assigns and affiliated companies (the “Company”) and Xxxxx X.
Xxxxx (the “Executive”).
1. Term. The term of this Agreement shall begin on the Effective Date and end on the third
anniversary of the Effective Date.
2. Employment of Executive. On the Effective Date Executive shall be employed as the Chief
Administrative Officer of the Company and Superior Bank. Executive shall perform those duties as
are customarily associated with his position and such other reasonable duties as may be assigned to
him by the Company’s Chief Executive Officer.
3. Compensation and Benefits. In consideration for Executive’s services, Executive shall
receive the following compensation, in each case subject to any required withholdings:
(a) Executive shall be paid in accordance with the Company’s normal payroll procedures an
annual base salary of $275,000. Executive’s base salary will be reviewed on December 31, 2009 and
annually thereafter.
(b) Executive shall be eligible for all welfare benefit, pension benefit, and bonus and
incentive compensation plans maintained by the Company on the same basis as other employees at
Executive’s level within the Company.
(c) Subject to approval by the Compensation Committee of the Company’s Board of Directors,
Executive will receive options to purchase 25,000 shares of Company’s common stock upon such terms
as are determined by the Compensation Committee.
(d) Executive shall receive an automobile allowance of $500 per month.
(c) Executive’s expenses of relocating his residence to Birmingham, Alabama shall be paid by
the Company. Specifically, the Company will provide the Executive and his family with the use of a
condominium residence in The Xxxx X. Hand Building at no cost to the Executive for up to 12 months,
during which time Executive will seek local housing. The Company will reimburse the Executive for
reasonable closing costs associated with the purchase of a new residence in the Birmingham, Alabama
area. If the purchase of Executive’s new residence is financed by Superior Bank, Executive will
receive the customary employee discount of one-half the origination fee. The Company will also
reimburse the Executive for the reasonable and direct moving expenses associated with the moving of
personal household goods both into the Company-provided condominium and into a new residence
selected by the Executive. The Company shall pay Executive a relocation bonus equal to (i) $12,500
in the first payroll following the
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Effective Date and (ii) $12,500 in the first regular payroll following the Executive’s
purchase of a residence in the Birmingham, Alabama area.
4. Termination of Executive’s Employment. (a) If, during the term of this Agreement,
Executive voluntarily resigns his employment with the Company, or his employment is terminated by
the Company for Cause (as defined below), then Executive shall receive unpaid salary and benefits
which have accrued through the date of his termination of employment, and the Company shall have no
further liability under this Agreement.
(b) If, during the term of this Agreement, Executive’s employment is terminated by the Company
for any reason other than for Cause (as defined below) or the Executive resigns his employment with
the Company for Good Reason (as defined below), then Executive shall, within thirty (30) days from
the date of termination of his employment, receive a lump sum payment, unreduced for early receipt,
equal to his base salary as of the date his employment terminates for the period from the date of
termination of his employment to the last day of the term of this Agreement. Provided, however,
that in the event the termination of Executive’s employment with the Company triggers payments to
Executive under the provisions of a Change in Control Agreement with the Company, any payments due
to Executive under this Agreement shall be reduced by the amount of the payments made to Executive
under the Change in Control Agreement.
5. Cause Defined. The termination of the Executive’s employment shall be for “Cause” if it
is a result of:
(a) any act (including any omission or failure to act) that constitutes, on the part of the
Executive, fraud, dishonesty, gross negligence, willful misconduct, incompetence, breach of
fiduciary duty involving direct or indirect gain to or personal enrichment of the Executive,
intentional failure to perform stated duties or to follow lawful direction of the Company’s Board
of Directors or the corporate officer to whom he reports, 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 this Agreement, or
(b) the conviction (from which no appeal may be or is timely taken) of the Executive of (i) a
felony, or (ii) a misdemeanor involving fraud or dishonesty, or
(c) the suspension or removal of the Executive by federal or state banking regulatory
authorities acting under lawful authority pursuant to provisions of federal or state law or
regulation which may be in effect from time to time,
provided, however, that in the case of clauses (a) and (b) above, such conduct shall not
constitute Cause unless (i) there shall have been delivered to the Executive a written notice
setting forth with specificity the reasons that the Company’s Board of Directors believes the
Executive’s conduct constitutes the criteria set forth in clause (a) or (b), as the case may be,
(ii) the Executive shall have been provided the opportunity to be heard
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in person by the Company’s Board of Directors (with the assistance of the Executive’s counsel if
the Executive so desires), and (iii) after such hearing, the termination is evidenced by a
resolution adopted in good faith by a majority of the members of the Company’s Board of Directors.
6. Good Reason Defined. Executive’s resignation of employment with the Company shall be
for Good Reason if such resignation follows the occurrence of any of the following events:
(a) a material diminution in the Executive’s base compensation;
(b) a material diminution in the Executive’s authority, duties or responsibilities;
(c) a material change in the geographic location at which the Executive must perform services;
or
(d) any other action or inaction that constitutes a material breach by the Company of this
Agreement.
Provided, however, that the Executive must provide written notice to the Company of the occurrence
of such event, within thirty (30) days after the initial occurrence of such event. The Company
shall have thirty (30) days following the receipt of such written notice to remedy the condition.
If the event shall not have been remedied within such thirty-day period, the Executive’s employment
shall terminate on the 31st day following the receipt of such written notice and Executive shall be
entitled to the rights and benefits set forth in Section 4(b) of this Agreement.
7. Non-Disclosure of Information. The Executive acknowledges that any documents and
information, whether written or not, that came or come into the Executive’s possession or knowledge
during the Executive’s employment by the Company, including without limitation the financial and
business conditions, business methods, goals, operations, sales techniques or services of the
Company and its affiliates or subsidiaries as the same may exist from time to time (collectively,
“Confidential Information”), are valuable, special and unique assets of the Company’s business. The
Executive will not, during or after the term of this Agreement: (a) disclose any written
Confidential Information to any person, firm, corporation, association, or other entity not
employed by or affiliated with the Company for any reason or purpose whatsoever, or (b) use any
written Confidential Information for any reason other than to further the business of the Company.
The Executive agrees to return immediately any written Confidential Information, and all copies
thereof, upon the termination of the Executive’s employment. In the event of a breach or threatened
breach by the Executive of the provisions of this Section 7, in addition to all other remedies
available to the Company, the Company shall be entitled to an injunction restraining the Executive
from disclosing any written Confidential Information or from rendering any services to any person,
firm, corporation, association or other entity to whom any written Confidential Information has
been
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disclosed or is threatened to be disclosed, without the need to post bond or other security. In the
event of any suit or arbitration with respect to the Executive’s obligations in this Section 7, the
Executive shall pay all costs incurred by the Company in securing an injunction (or other equitable
remedy) and/or damages, including reasonable attorneys’ fees and expenses; provided, however, in
the event the Company is unsuccessful in obtaining any such remedy, the Executive shall have no
liability for the Company’s costs in connection with such suit or arbitration.
8. Enforcement of the Company’s obligations. In the event of any suit or arbitration with
respect to the Company’s obligations under this Agreement, the Company shall pay all costs incurred
by the Executive in securing an injunction (or other equitable remedy) and/or damages, including
reasonable attorneys’ fees and expenses; provided, however, in the event the Executive is
unsuccessful in obtaining any such remedy, the Company shall have no liability for the Executive’s
costs in connection with such suit or arbitration.
9. Choice of Law. This Agreement shall be governed by, and interpreted in accordance with,
the laws of the State of Alabama.
10. Amendments. This Agreement may not be modified, amended or terminated except by a
written document executed by the Executive and a duly authorized representative of the Company.
11. Entire Agreement. This Agreement sets forth the entire agreement between the Company and
the Executive with respect to the payments provided for herein.
12. Binding Effect. This Agreement shall be binding upon, and inure to the benefit of, the
Company and the Executive, their respective heirs, successors, assigns, personal representatives
and affiliates; provided, however, that the Executive may not assign his right to any payment
hereunder.
13. Severability. If any one or more of the provisions of this Agreement is held to be
invalid, illegal or unenforceable for any reason, then the invalidity, illegality or
unenforceability of that provision shall not affect any other provision of this Agreement. The
Company and the Executive intend that this Agreement shall be interpreted as if any invalid,
illegal or unenforceable provision were never included herein.
| XXXXX X. XXXXX | SUPERIOR BANCORP | |||||||
/s/ Xxxxx X. Xxxxx
|
By: | /s/ C. Xxxxxxx Xxxxxx
|
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| Chairman and Chief Executive Officer | ||||||||
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