CHANGE IN CONTROL
AGREEMENT
CHANGE IN
CONTROL AGREEMENT (the “Agreement”), dated this 8th
day of September , 2008 among Superior Bancorp, a Delaware
corporation (the “Parent”), Superior Bank , a
federal savings bank, and James A. White (the
“Executive”).
WHEREAS, the
Parent’s subsidiary, Superior Bank, employs the Executive in
an executive position, and in consideration of such employment the
Parent, Superior Bank and the Executive wish to provide for certain
benefits and payments to the Executive in the event such employment
is terminated following a Change in Control (as defined herein);
and
WHEREAS, this
Agreement shall supersede and replace any prior change in control
agreement entered into between the parties hereto;
NOW, THEREFORE, in
consideration of the mutual covenants set forth herein, and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Parent, Superior Bank and the
Executive agree as follows:
1.
Employment Status . Superior Bank has employed the Executive
as an employee-at-will. Unless and until a Change in Control shall
have occurred, nothing in this Agreement shall modify, amend or
vary the terms or status of such employment or constitute any
independent obligation of Superior Bank to employ, or continue to
employ, the Executive.
2. Change
In Control . For purposes of this Agreement, a “Change in
Control” is hereby defined to be:
(a) a merger,
consolidation or other corporate reorganization of the Parent in
which the Parent does not survive, or, if it survives, the
shareholders of the Parent before such transaction do not own more
than 50% of, respectively: (i) the Common Stock of the
surviving entity, and (ii) the combined voting power of any
other outstanding securities entitled to vote on the election of
directors of the surviving entity;
(b) the
acquisition, other than from the Parent, by any individual, entity
or group (within the meaning of Section l3(d)(3) or l4(d)(2) of the
Securities Exchange Act of 1934, as amended from time to time (the
“Exchange Act”) or any successor provision) of
beneficial ownership of 25% or more of either: (i) the then
outstanding shares of Common Stock of the Parent, or (ii) the
combined voting power of the then outstanding voting securities of
the Parent entitled to vote generally in the election of directors;
provided, however, that neither of the following shall constitute a
Change in Control:
(A)
any acquisition by the Parent, any of its subsidiaries, or any
employee benefit plan (or related trust) of the Parent or its
subsidiaries, or
(B)
any acquisition by any corporation, entity, or group, if, following
such acquisition, more than 50% of the then outstanding voting
rights of such corporation, entity or group are owned, directly or
indirectly, by all or
1
substantially
all of the persons who were the owners of the Common Stock of the
Parent immediately prior to such acquisition;
(c) individuals
who, as of the effective date of this Agreement, constitute the
Board of Directors of the Parent (the “Incumbent Parent
Board”) cease for any reason to constitute at least a
majority of such Board of Directors (the “Parent
Board”), provided that any individual becoming a director
subsequent to such date, whose election, or nomination for election
by the Parent’s shareholders, was approved by a vote of at
least a majority of the directors then comprising the Incumbent
Parent Board, shall be considered as though such individual were a
member of the Incumbent Parent Board, but excluding, for this
purpose, any individual whose initial assumption of office is in
connection with an actual or threatened election contest relating
to the election of the directors of the Parent (as such terms are
used in Rule 14a-l 1 of Regulation l4A promulgated under the
Exchange Act or any successor provision); or
(d) approval by
the shareholders of the Parent of:
(i) a complete
liquidation or dissolution of the Parent, or
(ii) the sale or
other disposition of all or substantially all the assets of the
Parent, other than to a corporation, with respect to which
immediately following such sale or other disposition more than 50%
, respectively, of the then outstanding shares of common
stock of such corporation, and the combined voting power of the
then outstanding voting securities of such corporation entitled to
vote generally in the election of directors, is then beneficially
owned, directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners,
respectively, of the outstanding Common Stock of the Parent, and
the outstanding voting securities of the Parent immediately prior
to such sale or other disposition, in substantially the same
proportions as their ownership, immediately prior to such sale or
disposition, of the outstanding Common Stock of the Parent and
outstanding securities of the Parent, as the case may
be.
3. Termination
Following Change in Control . Superior Bank or the Parent will
provide or cause to be provided to the Executive the rights and
benefits provided in Section 4 hereof in the event that the
Executive’s employment is terminated at any time within three
(3) years following a Change in Control under the
circumstances stated in (a) or (b) below:
(a) by
Superior Bank or the Parent for reasons other than for Cause (as is
defined below) or other than as a consequence of the
Executive’s death or disability (as defined below);
or
(b) by the
Executive following the occurrence of any of the following
events:
(i) a material
diminution in the Executive’s base compensation;
2
(ii) a material
diminution in the Executive’s authority, duties or
responsibilities;
(iii) a material
change in the geographic location at which the Executive must
perform services; or
(iv) any other
action or inaction that constitutes a material breach by the Parent
or the Bank of this Agreement.
Provided,
however, that the Executive must provide written notice to the
Parent or Superior Bank, as the case may be, of the occurrence of
such event, within thirty (30) days after the initial
occurrence of such event. The Parent and/or Superior Bank, as the
case may be, 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 of
this Agreement.
(c)
The termination of the Executive’s employment shall be for
“Cause” if it is a result of:
(i) 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 Superior Bank Board or the Parent Board 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
any employment agreement with the Parent or any of its
subsidiaries, or
(ii) the
conviction (from which no appeal may be or is timely taken) of the
Executive of (A) a felony, or (B) a misdemeanor involving
fraud or dishonesty, or
(iii) 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 (c)(i) and (c)(ii)(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 Parent Board believes the Executive’s
conduct constitutes the criteria set forth in clause (c)(i) or
(c)(ii)(B), as the
3
case may be,
(II) the Executive shall have been provided the opportunity to
be heard in person by the Superior Bank Board (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 Superior Bank Board (other than the Executive, should he be a
member of that Board).
(d) For
purposes of this Agreement only, the Executive shall be deemed to
be “disabled” if for medical (including psychological)
reasons the Executive has been unable to fully perform his duties
and services hereunder for one hundred and twenty
(120) consecutive days, or an aggregate of one hundred and
eighty (180) days in any period of twelve
(12) consecutive months.
4.
Rights and Benefits Upon Termination upon Change in Control
. In the event of the termination of the Executive’s
employment within three (3) years following a Change in
Control as provided in Section 3(a) or Section 3(b) hereof,
(“Termination”), Superior Bank and the Parent agree to
provide or cause to be provided to the Executive the following
rights and benefits:
(a)
Salary and Other Payments at Termination . The Executive
shall be entitled to receive payment in cash in the amount of 2.99
times the Executive’s Earnings (as defined in this
Section 4(a)) in effect at the time of Termination. Payment
shall be made in a lump sum to the Executive within 30 days of
Termination, subject to applicable withholding requirements. For
purposes of this Agreement, “Earnings” shall mean the
sum of (i) the Executive’s annual base salary as
approved by the Parent Board, the Superior Bank Board or any
committee or designee of either immediately preceding the Change in
Control or at the time of Termination, whichever is higher, plus
(ii) if established, any target bonus the Executive would have
been entitled to receive for the calendar year in which the Change
in Control occurs or the year in which the Termination occurs,
whichever is higher, as if the performance targets had been
achieved.
(b)
Lapse of Restrictions on Benefits . Except to the extent
expressly prohibited by any applicable law or regulation or the
terms of any applicable benefit plans, any and all restrictions,
vesting schedules or schedule of exercise provided in any agreement
with the Executive shall immediately lapse, and the Executive shall
be entitled immediately to receive all benefits and exercise all
rights previously granted him thereunder.
(c)
[Intentionally Omitted]
(d)
Target Bonus. Notwithstanding any provision of any plan or
arrangement, any target bonus established and earned for a year
prior to the year of the Termination with respect to a Change in
Control which has not been paid, shall be paid within 30 days
of the Termination, and a target bonus for the year of the
Termination with respect to a Change in Control shall be paid in an
amount equal to 1/12th of the target bonus for the prior year times
each full month in the current year prior to the month of the
Executive’s Termination. Payments made under this paragraph
will be subject to
4
applicable
withholding requirements.
(e)
Insurance and Other Special Benefits . For three
(3) years following the Executive’s Termination, the
Executive shall continue to be covered by the life insurance,
medical insurance, dental insurance and accident and disability
insurance plans of Superior Bank and the Parent and its other
subsidiaries or any successor plan or program in effect at or after
Termination for employees in the same class or category as was the
Executive prior to his Termination. In the event, the Executive is
ineligible to continue to be so covered under the terms of any such
benefit program, or, in the event the Executive is eligible but the
benefits applicable to the Executive under any such plan or program
after Termination (the “Post-Termination Benefits”) are
not substantially equivalent to the benefits applicable to the
Executive immediately prior to Termination, then, Superior Bank,
the Parent, or its other s
|
