AMENDED AND RESTATED EMPLOYMENT
AGREEMENT
THIS
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the
“Agreement”), dated this 29th day of December, 2008,
between Superior Bancorp, a Delaware corporation
(“Parent”) and Rick D. Gardner (the
“Executive”).
WHEREAS,
the parties and Superior Bank (“Bank”) entered into an
Employment Agreement (the “Prior Agreement”) dated
January 24, 2005 for the purpose of securing the services of
the Executive as an employee of, and executive to, Parent and the
Bank on the terms and conditions set forth therein;
WHEREAS,
the parties desire to amend and restate the Prior Agreement for the
purpose of complying with the provisions of Section 409A of
the Internal Revenue Code, as amended (the “Code”) and
the regulations promulgated thereunder and for the purpose of
removing Bank as a party to the Agreement; and
WHEREAS,
the parties hereto believe the Prior Agreement should be amended
and restated in its entirety and have heretofore agreed to enter
into this Agreement, which shall supersede and replace the Prior
Agreement..
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 and
the Executive agree as follows:
1.
Employment. The Parent hereby employs the Executive, and the
Executive hereby accepts such employment by the Parent, upon the
terms and conditions set forth in this Agreement.
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Term . The term of the Executive’s employment by the
Parent began on January 24, 2005 and shall terminate at
midnight, Central Standard Time on January 31, 2008; provided,
however, that such term shall be automatically extended annually,
beginning one (1) year from the date of the commencement of
the term and on each anniversary date thereafter, for an additional
one-year period, so that the remaining term of this Agreement shall
be three (3) years from each such anniversary date unless,
with respect to any such one-year extension, either party shall
notify the other party in writing, not less than thirty
(30) days prior to such anniversary date, that he or it, as
the case may be, desires to terminate this Agreement as of the end
of the term then in effect. The term during which the Executive
serves as an employee of the Parent pursuant to this Agreement is
hereinafter referred to as the “Employment
Period.”
3.
Positions and Duties . The Executive shall serve as the
Chief Operating Officer of the Parent and the Bank and as a member
of the board of directors of the Parent and the Bank. At the
request of the Board of Directors of the Bank (the “Bank
Board”) or the Board of Directors of the Parent (the
“Parent Board”), the Executive shall also serve as an
officer or director, or both, of each subsidiary of the Bank or the
Parent, whether direct or indirect. The Executive, in his capacity
as an officer of the Bank and the Parent and as an officer or
director of any subsidiary of the Bank or the Parent, shall perform
such duties and services as may be assigned
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to him by the
Boards of either the Bank or the Parent, subject to the supervision
and control of the Bank Board or the Parent Board, as the case may
be. The Parent, the Bank and any subsidiary of either for which the
Executive shall perform duties and services shall be responsible
for their respective proportionate shares of the Executive’s
compensation The Executive shall not be entitled to receive any
director fees or other separate compensation for his service as a
director (including without limitation service as chairman, as a
member of any committees of the Bank Board or the Parent Board, or
otherwise) of the Parent, the Bank or any subsidiary of either the
Parent or the Bank
4.
Salary . The Parent shall pay the Executive a salary during
the Employment Period of $20,833.33 per calendar month (the
“Base Salary”). All salary shall be paid to the
Executive no less frequently than twice each month. Any salary paid
with respect to less than a full one-month period shall be
pro-rated, with such proration being based on the number of days in
such month and the number of days during such month that are within
the Employment Period. Such salary will be reviewed during January
of each year and may be increased annually, as determined by the
Board of Directors, on the recommendation of its compensation
committee. The Parent shall not have the right to reduce such
salary at any time during the Employment Period without the written
consent of the Executive.
If
the Executive requests, Parent will create or cause to be created a
plan of deferred compensation that complies with Section 409A
of the Code to allow the Executive to defer any salary specified in
this Section 4 to any subsequent period. Moreover, if the
Executive and the Parent (by action of the Parent Board on the
recommendation of its compensation committee) mutually agree, any
salary specified in this Section 4 may be paid in kind,
including common stock, stock Options, life insurance policies,
annuities, or other property.
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. Extent of Service . During the Employment Period,
the Executive shall devote substantially his entire working time,
attention and energy to the business and affairs of the Bank and
the Parent and in the advancement of the best interests of the Bank
and the Parent. The foregoing sentence shall not, however, preclude
the Executive from devoting reasonable periods of time in
connection with the following activities, provided that such
activities do not materially interfere with the performance of his
duties and services hereunder: (a) serving as a director or a
member of a committee of any other company or organization, if
serving in such capacity does not involve any conflict with the
business of the Bank or the Parent and such company or organization
is not in competition, in any manner whatsoever, with the business
of the Bank or the Parent; (b) fulfilling speaking engagements;
(c) engaging in charitable and community activities; and (d)
managing his personal investments. If the Executive serves on any
board at the request of or for the benefit of the Parent or the
Bank, the Executive will be indemnified for any personal liability,
including costs of defense and attorneys’ fees, that he may
incur as a result of such service. The Executive shall be
authorized to receive and retain fees for serving on such boards,
except as may be otherwise specifically agreed between the
Executive and the Parent or the Bank in respect to any particular
such board or boards, provided, however, that nothing herein shall
authorize or entitle the Executive to receive and retain fees for
serving on the boards of the Parent, the Bank or any of their
subsidiaries.
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6.
Expenses . Subject to compliance by the Executive with such
policies regarding expenses and expense reimbursement as may be
adopted from time to time by the Bank and the Parent, the Executive
will be reimbursed by the Bank or the Parent, as the case may be,
for reasonable expenses incurred in the performance of his duties
and services hereunder for the Bank and the Parent, and in the
furtherance of the business of the Bank and the Parent, upon the
presentation by the Executive of an itemized account, accompanied
by the appropriate receipts, satisfactory to the Bank and the
Parent, in substantiation of such expenses.
7.
Vacations . The Executive shall be entitled to take such
vacations, with pay, as the other executive officers of the Bank
and Parent are generally entitled to take, but not less than four
(4) calendar weeks in each year. Executive shall take into
consideration the needs of Parent and the Bank in scheduling such
vacations.
8.
Employee Benefits . The Executive shall, during the
Employment Period, be eligible to participate in such insurance,
medical and other employee-benefit plans of the Parent (or Bank, if
providing Executive with more generous benefits) which may be in
effect, from time to time, to the extent such plans and benefits,
respectively are generally available to the other executive
officers of the Bank or Parent, or to the extent that such benefits
have been approved by the Board for the sole benefit of the
Executive; provided, however, that in addition to all other life
insurance that may be available to Executive pursuant any benefit
plans of the Parent or the Bank, the Executive shall be provided
term life insurance coverage paying at least $600,000 (the
“Stated Amount”) in death benefits to the beneficiary
of his choice. If such coverage is not available at unrated premium
costs, then either (i) Executive will pay the portion of the
premiums that exceed an amount equal to the unrated premium costs
of such coverage if it had been available, or (ii) if
Executive is unwilling to pay the difference in premium, the amount
of death benefit provided shall be the death benefit that could be
provided if a policy was acquired for the unrated premium costs of
a policy in the Stated Amount. Parent shall provide to the
Executive an automobile owned or leased by Parent of a make and
model appropriate to Executive’s status and similar
automobiles historically provided to other senior executives of
Parent (such as a Lexus) and customary automobile-related benefits.
Upon the Executive’s ceasing to be employed hereunder, he
shall be entitled, at his sole cost, to maintain in effect the
aforesaid insurance, medical, and other benefits, except in those
circumstances where, under this Agreement, such post-employment
benefits are to be provided to Executive by the Parent and/or the
Bank, or its or their successor(s).
9.
Location of Employment . The Executive’s
principal office will be located in Birmingham, Alabama. The
Executive shall be required to engage in such travel as may be
necessary in the performance of his duties and services hereunder.
Executive shall, within a reasonable time following the
commencement of the Employment Period establish his permanent
residence in the Birmingham, Alabama metropolitan area.
10.
Club Memberships . It is contemplated that, after the
Executive commences performance hereunder, he may request that the
Parent purchase, or provide funds (net of taxes) to the Executive
for the purchase of membership in any club (or clubs), having
facilities suitable for the Executive to use for business
entertainment on behalf of the Bank or the Parent, as the Parent
Board shall deem appropriate and in the interest of the Parent and
the Bank. Upon
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authorization
by the Parent Board, the Parent shall pay any required initiation
fees and shall pay, either directly or as an ongoing payroll
expense to reimburse the Executive (net of taxes), for monthly
dues, periodic assessments, and other such costs of any such
membership. The Executive shall be responsible for any personal
charges that he may incur in utilizing the facilities of any such
club. If the Executive ceases his membership in any such clubs and
any bonds or other capital payments made by Parent are repaid to
the Executive, the Executive shall pay over such payments to
Parent.
11.
Bonuses . The Executive shall be entitled to receive, within
two and one-half months of the close of each calendar year, based
upon the achievement of agreed-upon performance goals for the
Parent and/or the Bank (as approved by the Parent Board upon the
recommendation of its compensation committee), a targeted annual
bonus (the “Target Bonus”) equal to fifty percent (50%)
of his Base Salary for such calendar year. Notwithstanding the
foregoing, Executive shall be eligible to participate in any bonus
or long-term incentive plan of the Bank and/or the Parent, or as
established by the Board of Directors of the Bank or the Parent as
the case may be, for similarly situated executive officers, and may
be awarded such grants thereunder as are approved by the Parent
Board or the Bank Board or their respective compensation
committees.
(a)
Automatic . This Agreement, and the Executive’s rights
hereunder (except as to salary, bonuses and other rights accrued
prior thereto), shall terminate automatically as provided in
Section 2 above, unless terminated earlier pursuant to
subsection (b), (c), (d) or (e) of this
Section 12.
(b) By
Executive . The Executive may terminate this Agreement in the
event of (i) a material diminution in the Executive’s
base compensation, (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 of the Executive’s
intent to terminate this Agreement, specifying the event relied
upon for such termination, within thirty (30) days after the
initial occurrence of such event. The Parent shall have thirty
(30) days following the receipt of such written notice to
remedy the condition and prevent termination of the Agreement. If
the event shall not have been remedied within such thirty-day
period, this Agreement shall terminate on the 31
st day following the receipt of such written
notice. Such termination will have the same effect as a termination
without cause by the Parent or the Bank as set forth in Section
12(e) hereof.
(c) Death
of Executive . If the Executive dies during the
Employment Period, this Agreement and the Executive’s rights
hereunder shall automatically terminate as of his death, except as
to accrued but not paid salary, bonus and other vested rights in
compensation or benefit programs.
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(d) Disability
of Executive . If the Executive is disabled, as defined
hereinafter, during the Employment Period, this Agreement and the
Executive rights hereunder shall automatically terminate as of the
occurrence of such disability. For purposes of this Agreement, the
Executive shall be deemed to be “disabled” if for
medical (including psychological) reasons he has been unable to
fully perform his duties and services hereunder for one hundred
twenty (120) consecutive days, or an aggregate of one hundred
eighty (180) days in any period of twelve (12) consecutive
months. Notwithstanding the foregoing, the Executive’s rights
to salary and other benefits under this Agreement shall continue
for one (1) year after the occurrence of such disability;
provided, however, that salary payments during such one-year period
shall be reduced by the amount of any payments with respect to such
one-year period that the Executive shall receive from disability
programs provided by the Bank or the Parent. After the expiration
of such one-year period, the Executive shall be covered by a
disability program or insurance similar to that generally available
to the other executive officers of the Bank (or Parent, if
providing Executive with more generous benefits).
(e) By
Parent . The Parent Board may terminate the Executive’s
employment at any time by giving written notice of such termination
to the Executive in the manner provided below for the giving of
notices, such termination to be effective on a date specified
therein which is not less than sixty (60) days from the date
of such notice (except in the case of termination for Cause (as
defined in (g) below), in which case the effective date shall
be not less than (10) days from the date of such notice);
provided, however, that any termination other than for Cause (as
defined in (g) below) shall not prejudice the
Executive’s right to compensation or other benefits under
this Agreement during the balance of the Employment Period (as
provided in Section 2 hereof, and without regard to such
termination). The monthly salary component of such compensation for
the balance of the Employment Period shall equal the Base Salary in
effect on the effective date of termination and shall be prorated
for any partial-month period(s) included in the balance of the
Employment Period. The bonus component of such compensation for the
balance of the Employment Period shall be based on an annual bonus
amount equal to the most recent annual bonus paid or payable to the
Executive and shall be prorated for any partial-year period(s)
included in the balance of the Employment Period. To the extent not
previously paid, such compensation shall be paid to the Executive
in a lump sum cash payment within thirty (30) days of
Executive’s termination of employment. Such lump-sum payment
is to be calculated by discounting the payment amount using a
discount rate equal to six percent (6%). The Executive’s
participation in all benefit programs and stock option agreements
shall continue throughout the Employment Period (as provided in
Section 2 hereof, and without regard to such termination) as
if the Executive was still an employee and all non vested benefits
shall immediately vest, in each case as to the extent provided in
the applicable benefit plan; provided, however, that the stock
options to be awarded pursuant to Section 15 hereof shall vest
as provided in said Section 15. Ownership of the automobile
provided to the Executive shall be transferred immediately to the
Executive, and no further reimbursement shall be provided with
respect to such automobile. Unless terminated for Cause, the
Executive shall have the right (but shall not be obligated), at any
time following receipt of notice of termination under this Section
12(e) until the effective date
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thereof to
resign as an officer and/or a director of the Bank and the Parent
while continuing to serve as an employee at the same compensation,
but with such reduction in duties as may be appropriate in order
that the Executive shall no longer be an officer of the Bank and
the Parent within the meaning of Section 16(b) of the Securities
and Exchange Act of 1934. If the Executive is terminated by Parent
for Cause (as defined in (g) below) Executive’s right to
compensation or other benefits under this Agreement shall terminate
as of the effective date of such termination except as to accrued
but not paid salary, bonus and other vested rights in compensation
or benefit programs.
Notwithstanding
anything contained in this Agreement, the Executive understands
that certain post-termination benefits may be taxable. The
Executive agrees that neither the Bank nor the Parent will be
liable to Executive for any tax assessed to Executive in connection
with the post-termination benefits. Parent will cooperate with
Executive to minimize or eliminate the tax effects to the
Executive, provided that Parent shall not be required to take any
action that would significantly increase the cost to Parent of
providing such benefits. The welfare benefits that are not
non-taxable medical benefits, “disability pay” or
“death benefit” plans within the meaning of Treasury
Regulation Section 1.409A-1(a)(5) shall be provided and
administered in a manner that complies with regulations promulgated
under Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”).
(f) Dispute
. The parties have agreed that in the case of any termination that
the Bank or the Parent contends is for Cause, but the Executive
claims is not for Cause, if the Parent continues to pay
compensation to the Executive during the pendency of such dispute,
the Parent shall be entitled to the return of all compensation so
paid, with interest at the discount rate payable by the Bank on
borrowings from its Federal Home Loan Bank, and reasonable legal
fees as provided in Section 29 hereof, if it is ultimately
determined that such termination was for Cause; and if the Parent
shall cease such payments and it shall be determined that such
termination was not for Cause, the parties further agree that the
Executive shall be entitled to recovery of the amount due to the
Executive for payments not made, together with interest at the
discount rate payable by the Bank on borrowings from its Federal
Home Loan Bank, and reasonable legal fees as provided in Section 29
hereof and, in addition, shall thereafter make any further payments
due under Section 12(d), if such section is applicable, as due
thereunder for the remainder of the period specified therein. This
provision is made by the parties hereto for the purpose of
compensating the Executive for the loss that he would suffer in the
event of an unfounded discontinuation of compensation payments, and
to encourage fairness and equitable dealing between the parties in
the event of dispute.
(g) For
Cause . 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 Parent Board or Bank Board, willful
violation of any law, rule or regulation (other than traffic
violations or similar offenses) or
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fmal
cease-and-desist order, or material breach of this Agreement;
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 (i) and (ii)(B) above, such conduct shall not
constitute Cause unless (A) 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 (i) or clause
(ii)(B), as the case may be, (B) the Executive shall have been
provided the opportunity to be heard in person by the Parent Board
(with the assistance of the Executive’s counsel if the
Executive so desires), and (C) after such hearing, the
termination is evidenced by a resolution adopted in good faith by a
majority of the members of the Parent Board (other than the
Executive).
13.
Federal Rules and Regulations . This Agreement is subject to
all the laws, rules and regulations governing thrift holding
companies. To the extent that any provision of this Agreement is
inconsistent with applicable federal laws, rules or regulations,
such laws, rules or regulations shall control. In such case, such
provision of the Agreement shall be invalid, but only to the extent
necessary for this Agreement to comply with applicable federal
laws, rules and regulations. To the extent that any provision of
any other Section of this Agreement is inconsistent with any
provision of this Section 13, such provision of this
Section 13 shall govern.
14.
[Intentionally Omitted]
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. Options . On January 24, 2005, the Executive
received options, for a term of ten (10) years, to acquire
shares of Common Stock of Parent, which options were fully vested
on November 15, 2005. Should the Executive ceas
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