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EXHIBIT (10)-3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement) is effective November 6,
1998 (the "Effective Date"), by and between The BANK, an Alabama banking
corporation ("The Bank"), and The BANC CORPORATION, a Delaware corporation (the
"Corporation"; hereinafter together with the Bank collectively referred to as
"Employer"); and XXXXXX X. XXXXXXXX ("Executive").
Recitals
WHEREAS, The Bank is a wholly-owned subsidiary of the Corporation;
WHEREAS, Pursuant to that certain Third Amended and Restated
Reorganization Agreement and Plan of Merger dated as of April 6, 1998 among the
Corporation, Warrior Capital Corporation, The Bank and Commerce Bank of Alabama
("Commerce") (the "Merger Agreement"), the parties have agreed that Commerce
shall be acquired by the Corporation, including that Commerce may merge with and
into the Bank; and
WHEREAS, Executive has been and continues to serve as the Chief
Executive Officer and President of Commerce and, as a condition to the
consummation of the transactions provided for in the Merger Agreement, Executive
and Employer have agreed to enter into this 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 will be for a period of three (3) years commencing on the Effective Time (as
defined in the Merger Agreement), renewable daily for a three year term and
terminable by Employer only upon three (3) years notice or otherwise as provided
in Section 7.
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3. DUTIES; EXTENT OF SERVICES. Executive shall perform for Employer all
duties incident to the positions of President and Chief Operating Officer of the
Corporation, President and Chief Executive Officer of The Bank (which shall be
the lead bank of the Corporation), and Chief Executive Officer of Commerce (if
Commerce is not merged into The Bank) or the Branch President of The Bank's
Albertville branch (if Commerce is merged into The Bank). At the next meeting of
the board of directors of the Corporation and each of its subsidiary banks,
which shall take place prior to or as of the Effective Date, Executive shall be
elected to serve as a director of WCC and each of its subsidiary banks, and
thereafter for the remaining term of this Agreement, at each annual meeting of
the board of directors of the Corporation and each of its subsidiary banks,
Executive shall be nominated to serve as a director of the Corporation and each
of its subsidiary 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 total annual cash compensation shall be an
amount not less than $270,000.00 (includes salary, director's fees, and
bonus).
b. Life Insurance: Term life insurance equal to three times
base compensation, plus life insurance policies on dependents in
amounts and as currently provided by Commerce.
c. Health Insurance: Fully paid (employee and dependents,
customary plan).
d. Automobile: $1,000 per month car allowance, plus mileage at
current IRS-allowed reimbursed rates.
e. Country Club Dues: Payment of dues and assessments at
Gadsden Country Club and initiation fee and dues and assessments at a
country club in Birmingham to be determined jointly by Executive and
WCC; provided that Employer shall pay no more than $15,000 of the
initiation fee to the Birmingham country club.
f. Retirement: Standard plans offered by Employer, including
profit-sharing, 401K, etc.
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g. Civic clubs: Employer pays fees for any clubs which
Executive joins at Employer's request.
h. Vacation, sick days, holidays: pursuant to Employer's
standard policies.
i. Other executive compensation plans: Full participation in
other executive level compensation plans offered by the Corporation and
affiliates until termination of agreement. Executive (as with other
employees of Commerce) shall receive service credit for employment at
Commerce prior to the Effective Time for purposes of meeting all the
eligibility requirements and all vesting requirements for all of
Employer's benefit programs which such employees shall become eligible
to participate in on or after the Effective Time, including but not
limited to compensation, health, retirement, vacation and disability
plans.
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, corporation, association, or other entity not
employed by or affiliated with Employer for any reason on purpose whatsoever, 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).
6. COMPETITION. Except as specifically provided otherwise in this
Agreement, during the period of his employment by Employer and for such time as
Employer is paying to Executive all of the compensation provided in Section 4,
Executive will not, directly or indirectly, carry on or engage in a similar
business or solicit or do similar business with any customer of The Bank or the
Corporation's bank subsidiaries in any counties where The Bank or the
Corporation's bank subsidiaries have places of business on the date of
termination.
7. TERMINATION.
a. Employer shall be obligated to comply with all provisions
of this Agreement and may terminate Executive only For Cause. "For
Cause" shall mean (i) any act on the part of Executive which
constitutes fraud or willful malfeasance of duty or an act of moral
turpitude and is demonstrably likely to lead to material injury to The
Bank or the Corporation, (ii) a felony conviction of Executive; or
(iii) the suspension or removal of Executive by federal or state
banking regulatory authorities; provided, that "For Cause" shall not
include Executive's medical disability.
b. If Employer terminates Executive's employment hereunder
"For Cause" or if Executive terminates his employment hereunder
Executive shall not be entitled to any further compensation from
Employer and the provisions of Section 6 shall survive for one year
following the date of such termination.
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c. If Employer terminates Executive other than "For Cause",
(i) all rights and obligations specified in Section 6 shall survive any
such termination for three years following the date of such termination
and, (ii) Executive shall continue to receive the compensation provided
for in Section 4 for three years following the date of such
termination.
d. The provisions of Section 5 shall survive regardless of any
termination of Executive's employment hereunder, whether voluntary or
involuntary.
8. NOTICE. For the purposes of this Agreement, notices and demands
shall be deemed given when mailed by United States mail, addressed in the case
of The Bank to The Bank, P. O. Xxx 000, Xxxxxxx, Xxxxxxx 00000-0000, Attention:
Chairman of the Board of Directors, with a copy to the Corporation at The Banc
Corporation; 00 Xxxxx 00xx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, Attention: Chief
Executive Officer; or in the case of Executive, to ______________________.
9. MISCELLANEOUS. No provision of this Agreement may be modified,
waived or discharged unless such modification, waiver or discharge is agreed to
in writing. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Alabama. This Agreement
supersedes and cancels any prior employment agreement or understanding entered
into between Executive and Bank or Executive and Commerce.
10. VALIDITY. The invalidity of any provision or provisions of this
Agreement shall not affect any other provision of this Agreement, which shall
remain in full force and effect, nor shall the invalidity of a portion of any
provision of this Agreement affect the balance of such provision.
11. PARTIES. This Agreement shall be binding upon and shall inure to
the benefit of any successors or assigns to The Bank or the Corporation.
Executive may not assign any of his rights or delegate any of his duties or
obligations under this Agreement or any portion hereof.
12. DEFINITIONS. Any capitalized terms not otherwise defined herein
shall have the meanings ascribed to them in the Merger Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by Executive and by a duly authorized officer of each of The Bank and the
Corporation as of the date first above written.
Witnesses: "EXECUTIVE":
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/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
"BANK":
Attest: THE BANK
By: Xxxxx Xxxxx By: /s/ Xxxxx X. Xxxxxx, Xx.
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Its: Secretary Its: Executive Vice President
[Corporate Seal]
"CORPORATION"
Attest: THE BANC CORPORATION
By: Xxxxx Xxxxx By: /s/ Xxxxx X. Xxxxxx, Xx.
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Its: Secretary Its: Executive President
[Corporate Seal]
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