FORM OF LETTER AGREEMENT WITH SENIOR EXECUTIVE OFFICERS
EXHIBIT
10.3
FORM
OF LETTER AGREEMENT WITH SENIOR EXECUTIVE OFFICERS
December
5, 2008
Dear
Superior Bancorp Senior Executive Officer:
Superior
Bancorp (the “Company”)
anticipates entering into a Securities Purchase Agreement (the “Participation
Agreement”),
with
the United States Department of Treasury (“Treasury”)
that
provides for the Company’s participation in the Treasury’s TARP Capital Purchase
Program (the “CPP”).
If
the Company does not participate or ceases at any time to participate in the
CPP, this letter shall be of no further force and effect.
For
the
Company to participate in the CPP and as a condition to the closing of the
investment contemplated by the Participation Agreement, the Company is required
to establish specified standards for incentive compensation to its senior
executive officers and to make changes to its compensation arrangements. To
comply with these requirements, and in consideration of the benefits that you
will receive as a result of the Company’s participation in the CPP, you agree as
follows:
(1)
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No
Golden Parachute Payments.
The Company is prohibiting any golden parachute payment to you during
any
“CPP Covered Period”. A “CPP
Covered Period”
is any period during which (A) you are a senior executive officer and
(B) Treasury holds an equity or debt position acquired
from the Company in the CPP.
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(2)
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Recovery
of Bonus and Incentive Compensation. Any
bonus and incentive compensation paid to you during a CPP Covered
Period
is subject to recovery or “clawback” by the Company if the payments were
based on materially inaccurate
financial statements or any other materially inaccurate performance
metric
criteria.
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(3)
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Compensation
Program Amendments. Each
of the Company’s compensation, bonus, incentive and other benefit plans,
arrangements and agreements (including golden parachute, severance
and
employment agreements) (collectively, “Benefit Plans”)
with respect to you is hereby amended to the extent necessary to
give
effect to provisions (1) and (2).
In
addition, the Company is required to review its Benefit Plans to
ensure
that they do not encourage senior executive officers to take unnecessary
and excessive risks that threaten the value of the Company. To the
extent
any such review requires revisions to any Benefit Plan with respect
to
you, you and the Company agree to negotiate such changes promptly
and in
good faith.
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(4)
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Definitions
and Interpretation.
This letter shall be interpreted as follows:
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•
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“Senior
executive officer” means the Company’s “senior executive officers” as
defined in subsection 111(b)(3) of
EESA.
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•
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“Golden
parachute payment” is used with same meaning as in
Section 111(b)(2)(C) of EESA.
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•
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“EESA”
means the Emergency Economic Stabilization Act of 2008 as implemented
by
guidance or regulation issued by the Department of the Treasury and
as
published in the Federal Register on October 20,
2008.
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•
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The
term “Company” includes any entities treated as a single employer with the
Company under 31 C.F.R. § 30.1(b) (as in effect on the Closing Date). You
are also delivering a waiver pursuant to the Participation Agreement,
and,
as between the Company and you, the term “employer” in that waiver will be
deemed to mean the Company as used in this
letter.
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•
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The
term “CPP Covered Period” shall be limited by, and interpreted in a manner
consistent with, 31 C.F.R. § 30.11 (as in effect on the Closing
Date).
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•
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Provisions
(1) and (2) of this letter are intended to, and will be
interpreted, administered and construed to, comply with Section 111
of EESA (and, to the maximum extent consistent with the preceding,
to
permit operation of the Benefit Plans in accordance with their terms
before giving effect to this
letter).
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(5)
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Miscellaneous.
To the extent not subject to federal law, this letter will be governed
by
and construed in accordance with the laws of the State of Delaware.
This
letter may be executed in two or more counterparts, each of which
will be
deemed to be an original. A signature transmitted by facsimile will
be
deemed an original signature.
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The
Board
appreciates the concessions you are making and looks forward to your continued
leadership during these financially turbulent times.
Very
truly yours,
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Xxxxx
X. Xxxxx
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Director
of Human Resources
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Intending
to be legally bound, I agree with and accept the foregoing terms on the date
set
forth below.
Date:
December 5, 2008
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_____________________________
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[Insert
Name]
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[Insert
Title]
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