Exhibit 10.1
AMENDED AND
RESTATED
EMPLOYMENT
AGREEMENT
THIS AMENDED AND RESTATED
EMPLOYMENT AGREEMENT (this “Agreement”) is effective as
of
, 2005 (the “Effective Date”), by and between Vision
Bank, an Alabama banking corporation (the “Alabama
Bank”), Vision Bank, a Florida banking corporation (the
“Florida Bank”; together with the Alabama Bank
collectively referred to as the “Banks”), and Vision
Bancshares, Inc., an Alabama corporation
(“Corporation”); hereinafter together with the Banks
collectively referred to as “Employer”); and J. Daniel
Sizemore (“Executive”).
Recitals
WHEREAS , the Employer recognizes the Executive’s
expertise in connection with his employment with the Corporation
and the Banks; and
WHEREAS , the Executive currently serves as the
Chairman, Chief Executive Officer and President of the Corporation
and Chairman and Chief Executive Officer of the Banks and has
agreed to continue serving in such capacities; and
WHEREAS , the Corporation and the Executive have
heretofore entered into an Employment Agreement dated the
day of
,
containing similar terms and conditions as this Agreement (the
“Prior Agreement”); and
WHEREAS , this Corporation and the Executive 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.
Agreement
NOW THEREFORE
, in consideration of the mutual
recitals and covenants contained herein, the parties hereby agree
as follows:
1. Employment
. Employer agrees to employ
Executive, and Executive agrees to be employed by Employer, subject
to the terms and provisions of this Agreement.
2. Term
. The employment of Executive by
Employer as provided in Section 1 shall commence on the
Effective Date and shall terminate as provided in this
Section 2 or in accordance with the provisions of
Section 7 hereof (the “Employment Period”). This
Agreement shall automatically renew and the term shall be extended
for one additional day on each day after the Effective Date so that
the term of this Agreement shall always be three years, unless
(i) the Employer gives the Executive three (3) years
advance notice in writing that the Agreement is no longer to be
extended or (ii) the Agreement is terminated otherwise as
provided in Section 7 (the “Term”). Failure by the
Employer to extend this Agreement shall be deemed a termination by
Employer for reasons “Other than For Cause” under
Section 7(e).
3. Duties; Extent of
Services . Executive
shall perform for Employer all duties incident to the positions of
(i) Chairman, Chief Executive Officer and President of the
Corporation and (ii) Chairman and Chief Executive Officer of
the Banks. For the remaining
term of this Agreement, at each annual meeting
of the shareholders of the Corporation and the Banks, Executive
shall be nominated and elected to serve as a director of the
Corporation and the Banks. In addition, Executive shall engage in
such other services for Employer or its affiliates as Employer from
time to time shall direct. Executive shall use his best efforts in,
and devote his entire time, attention, and energy, to
Employer’s business; provided that nothing contained herein
is intended to prohibit Executive from spending a reasonable amount
of time managing his personal investments and discharging his civic
responsibilities as long as such activities do not interfere with
his duties and obligations under this Agreement.
4. Compensation
. During the Term of this
Agreement:
a. Executive’s base salary shall be an amount
not less than the salary received by the Executive as of the
Effective Date, plus incentive bonus and stock options.
Executive’s annual bonus may be up to 30% of his base salary,
depending upon performance of the Banks and his personal
performance goals, which shall be set from time to time by the
Banks’ board of directors. In addition, Executive’s
bonus may be increased based upon Executive’s performance and
the Employer’s incentive program.
b. Employer shall provide term life insurance equal
to three times base compensation, plus group term life insurance
policies on dependents in commercially reasonable amounts (subject
to insurability).
c. Employer shall provide fully paid health
insurance for the Executive and dependants in accordance with
Employer’s customary plan.
d. Employer shall provide a monthly car allowance
for Executive of $750.00, plus mileage at current IRS-allowed
reimbursed rates.
e. Executive shall be entitled to participate in
standard retirement and benefit plans offered by Employer,
including profit-sharing, 401(k), etc.
f. Employer shall pay all fees for any clubs which
Executive joins at Employer’s request.
g. Executive shall be entitled to vacation, sick
days, and holidays pursuant to Employer’s standard
policies.
h. Executive shall be entitled to full
participation in other executive level compensation plans offered
by the Corporation and affiliates until termination of this
Agreement.
i. In addition to any options held by the Executive
as of the Effective Date, the Executive shall be awarded stock
options in the amount and on the terms as determined from time to
time by the Compensation Committee of the board of directors of the
Corporation.
5. Disclosure of
Information .
Executive will not, during or after the Term of this Agreement,
(i) disclose any written confidential information of Employer
to any person, firm,
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corporation, association, or other entity not
employed by or affiliated with Employer for any reason or purpose
whatsoever except as in response to legal process, or (ii) use
any written confidential information for any reason other than to
further the business of Employer. Executive agrees to return any
written confidential information, and all copies thereof, upon the
termination of Executive’s employment (whether hereunder or
otherwise). Without regard to whether the foregoing matters will be
deemed confidential, material, or important, the Employer and
Executive stipulate that as between them, such matters are
important, material, and confidential and affect the effective and
successful conduct of the business of Employer and Employer’s
goodwill, and that any breach of the terms of this paragraph shall
be a material a breach of this Agreement, entitling Employer to
injunctive relief, suit for monetary damages or any other relief
available to Employer.
6. Non-Competition and
Non-Solicitation .
a. In the event the Executive’s employment is
terminated for any reason, the Executive, for the period
immediately following the date of termination to the third
anniversary of the date of termination, will not, without the prior
written approval of the Corporation’s board of directors,
directly or indirectly (i) own greater than 5% equity interest
in any class of stock of, or manage, operate, participate in, be
employed by, perform consulting services for, or otherwise be
connected in any manner with, any bank holding company or any
depository institution located within a 50-mile radius of Gulf
Shores, Alabama or Panama City, Florida which is competitive with
the business of Corporation or the Banks; (ii) solicit or
induce any employee of the Banks, Corporation or the holding
company owning the Banks to terminate such employment or to become
employees of any other person or entity; (iii) solicit any
customer, supplier, contractual party of Corporation, the Banks or
the holding company owning the Banks or any other person with whom
each of them has business relations to cease doing business with
Corporation, the Banks or holding company owning the Banks; or
(iv) in any way interfere with the relationship of the Banks,
Corporation or holding company owning the Banks and any of their
respective employees, customers, suppliers, contractual parties or
any other person with whom each of them has business
relations.
b. The Executive agrees that each of the covenants
set forth above in Section 6(a) are reasonable with respect to
its duration, geographical area and scope. In the event of a breach
by the Executive of any covenant set forth in Section 6(a) of
this Agreement, the term of such covenant shall be extended by the
period of the duration of such breach. In the event that,
notwithstanding the foregoing, any of the provisions of
Section 6(a) shall be declared by a court of competent
jurisdiction to be invalid or unenforceable, the remaining
provisions thereof shall nevertheless continue to be valid and
enforceable as though said invalid or unenforceable provisions had
not been included therein. In the event that any provision of
Section 6(a) shall be declared by a court of competent
jurisdiction to exceed the maximum restrictiveness such court deems
reasonable and enforceable, the term, condition or aspect deemed
reasonable and enforceable by the court shall be incorporated into
the applicable section of this Agreement, shall replace the term,
condition or aspect deemed by the court to be unreasonable and
unenforceable, and shall remain enforceable to the fullest extent
permitted by law.
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c. The Executive and the Employer recognize and
agree that the violation of the provisions of Sections 5 and 6(a)
cannot be adequately or reasonably compensated in damages and that,
in addition to any other relief to which the Employer may be
entitled by reason of such violation, it shall also be entitled to
permanent and temporary injunctive and equitable relief.
d. Sections 5 and 6(a) shall survive the
termination of the Executive’s employment with the Employer
for any reason.
e. In consideration for the Non-Competition and
Non-Solicitation provisions bargained for in this Agreement, the
Corporation will pay $900,000 to Executive in the event of a Change
in Control (as hereinafter defined) if Executive is employed by the
Employer on such date.
7. Termination
. The Employment Period may be
terminated in the following manner:
a. Termination on Death or
Disability . The
Employment Period shall automatically terminate upon the death or
Disability of the Executive. The term “Disability”
shall mean the Executive’s becoming physically or mentally
disabled such that he is unable to perform his duties to the
Employer for a period of 180 consecutive days.
b. Termination upon
Notice . The
Employment Period may be terminated by the Executive at any time
upon thirty (30) days written notice to Corporation. The
Employment Period may be terminated by Corporation at any time
“Other than For Cause” upon thirty (30) days
written notice to Executive.
c. Termination for
Cause . The
Employment Period may be terminated immediately by Corporation for
“Cause” at any time during the Employment Period upon
written notice to the Executive, which notice shall state the facts
constituting such “Cause.” For the purpose of this
Section 7(c), the term “Cause” shall mean
(i) willful misconduct or gross malfeasance, or an act or acts
of gross negligence in the course of employment or any material
breach of the Executive’s obligations contained herein;
(ii) any intentional material misstatement or material
omission to the Corporation’s board of directors, the boards
of directors of the Banks, the board of directors of the holding
company owning the Banks, or any member or committee thereof,
respectively, with respect to the business, financial condition, or
results of operations of Corporation; (iii) the intentional
failure of the Executive to follow the reasonable instructions or
the policies of the Board of the Corporation, the Boards of the
Banks, or any member or committee thereof; (iv)&
