def14a
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934
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Filed by the Registrant
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Filed by a Party other than the Registrant
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Check the appropriate box:
o Preliminary Proxy Statement
o Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
þ Definitive Proxy Statement
o Definitive Additional Materials
o Soliciting Material Under Rule 14a-12
SUPERIOR BANCORP
(Name of Registrant as Specified in Its Charter)
(Name of Person(s) Filing Proxy Statement, if Other Than the Registrant
Payment of Filing Fee (Check the appropriate box):
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No fee required |
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Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the
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Fee paid previously with preliminary materials. |
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Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid previously.
Identify the previous filing by registration statement number, or the Form or Schedule and
the date of its filing. |
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Form, Schedule or Registration Statement No.: |
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Date Filed: |
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SUPERIOR
BANCORP
17 North 20th Street
Birmingham, Alabama 35203
March 19,
2010
Dear Stockholder:
On behalf of the Board of Directors and management of Superior
Bancorp, we cordially invite you to attend the Annual Meeting of
Stockholders to be held at our principal executive offices at 17
North 20th Street, Birmingham, Alabama 35203, on April 20,
2010, at 10:00 a.m. Central Time. The attached Notice
of Annual Meeting and Proxy Statement describe the formal
business to be transacted at the Annual Meeting.
It is important that your shares be represented at the Annual
Meeting. Regardless of whether you plan to attend, please mark,
sign, date and return the enclosed proxy as soon as possible in
the envelope provided or vote over the Internet or by telephone.
If you attend the Annual Meeting, which we hope you will, you
may vote in person even if you have previously mailed a proxy
card or voted over the Internet or by telephone.
Sincerely,
C. Stanley Bailey
Chairman, President and Chief
Executive Officer
TABLE OF CONTENTS
SUPERIOR
BANCORP
17 North 20th Street
Birmingham, Alabama 35203
NOTICE OF
ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD ON APRIL 20, 2010
To the Stockholders of Superior Bancorp:
You are hereby notified that the 2010 Annual Meeting of
Stockholders (the Annual Meeting) of Superior
Bancorp, a Delaware corporation, will be held at our principal
executive offices at 17 North 20th Street, Birmingham, Alabama
35203, on April 20, 2010, at 10:00 a.m. Central
Time, for the following purposes:
1. To elect 14 directors to serve for a term expiring
at the 2011 Annual Meeting or until their respective successors
are duly elected and qualified, or until their earlier death,
resignation or removal.
2. To adopt the Superior Bancorp 2010 Incentive
Compensation Plan.
3. To ratify the appointment of Grant Thornton LLP as
Superior Bancorps independent registered public accounting
firm.
4. To approve a non-binding, advisory proposal on the
compensation of Superior Bancorps executive officers.
5. To transact such other business as may properly come
before the Annual Meeting or any adjournment thereof.
All stockholders are cordially invited to attend the Annual
Meeting; however, only stockholders of record at the close of
business on March 1, 2010, are entitled to notice of and to
vote at the Annual Meeting, or any adjournments thereof.
Regardless of whether you plan to attend the meeting, please
mark, sign, date and return the enclosed proxy in the enclosed
prepaid envelope as soon as possible or vote in advance over the
Internet or by telephone as instructed in the proxy statement.
If you attend the annual meeting in person, you may revoke your
proxy and vote in person. Attendance at the meeting does not of
itself revoke your proxy.
Important notice regarding the availability of proxy
materials for the stockholder Annual Meeting to be held on
April 20, 2010. The Proxy Statement and the accompanying
proxy materials for the year ended December 31, 2009 are
also available at
http://www.superiorbank.com/proxymaterials.
In accordance with Delaware law, a list of stockholders entitled
to vote at the Annual Meeting shall be open to the examination
of any stockholder, for any purpose relating to the Annual
Meeting, during ordinary business hours at Superior
Bancorps principal executive offices at 17 North
20th Street, Birmingham, Alabama, from April 10, 2010
through April 20, 2010, and the list shall be available for
inspection at the Annual Meeting by any stockholder who is
present.
By Order of the Board of Directors
William H. Caughran
Secretary
DATED: March 19, 2010
SUPERIOR
BANCORP
17 North 20th Street
Birmingham, Alabama 35203
PROXY
STATEMENT
For 2010
Annual Meeting of Stockholders
to be Held on April 20, 2010
INTRODUCTION
We are furnishing this Proxy Statement to the holders of
Superior Bancorp common stock, par value $.001 per share, in
connection with our solicitation of proxies to be used at the
2010 Annual Meeting of Stockholders to be held on Tuesday,
April 20, 2010, at 10:00 a.m., Central Time, at our
principal executive offices at 17 North 20th Street, Birmingham,
Alabama 35203 (the Annual Meeting) and any
adjournment thereof. The enclosed proxy is solicited on behalf
of our Board of Directors. This Proxy Statement and the
accompanying proxy card are being mailed to stockholders on or
about March 19, 2010.
Stockholders
Entitled to Vote
Only stockholders of record at the close of business on
March 1, 2010, are entitled to receive notice of and to
vote at the Annual Meeting. Our only class of stock entitled to
vote on the matters that we anticipate will be acted upon at the
Annual Meeting is our common stock, par value $.001 per share.
As of the close of business on March 1, 2010, the number of
shares of common stock outstanding and entitled to vote at the
Annual Meeting was 11,687,406. Each share of common stock is
entitled to one vote on all matters. There are no cumulative
voting rights.
Vote
Required
Before any business may be transacted at the Annual Meeting, a
quorum must be present. A majority of our outstanding shares of
common stock which are entitled to vote at the Annual Meeting,
represented in person or by proxy, shall constitute a quorum for
the transaction of business. Assuming a quorum is present,
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The election of directors (Proposal Number One) requires a
plurality of the votes cast. This means that the
14 director nominees receiving the most votes will be
elected. Shares not voted, and properly voted proxies to
withhold authority, will result in a nominee
receiving fewer votes, but will not be treated as votes against
a nominee.
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Adoption of the 2010 Incentive Compensation Plan
(Proposal Number Two) requires the affirmative vote of a
majority of shares present in person or that are represented by
proxy at the Annual Meeting. If you are present in person or
represented by proxy at the meeting and you abstain from voting
on Proposal Number Two, your abstention will have the same
effect as a vote against the proposal.
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Ratification of the appointment of Grant Thornton LLP as
Superior Bancorps independent registered public accounting
firm (Proposal Number Three) requires the affirmative vote
of a majority of shares present in person or that are
represented by proxy at the Annual Meeting. If you are present
in person or represented by proxy at the meeting and you abstain
from voting on Proposal Number Three, your abstention will
have the same effect as a vote against the proposal.
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Advisory approval (i.e. nonbinding) of the compensation of
executive officers (Proposal Number Four) requires that the
number of votes cast in favor of the proposal exceed the number
of votes cast against it. Abstentions and broker non-votes will
not be counted as votes cast and therefore will not affect the
determination as to whether the executive compensation is
approved. Because this stockholder vote is advisory, it will not
be binding on the Board of Directors. However, the Compensation
Committee will take into account the outcome of the vote when
considering future executive compensation arrangements.
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Abstentions and broker non-votes will be counted for purposes of
determining the presence or absence of a quorum for the
transaction of business, but will not be counted as votes cast
on any matter. However, with respect to Proposal Numbers
Two and Three, abstentions and broker non-votes will have the
same effect as a vote against the proposals.
How to
Vote Your Shares
To vote at the Annual Meeting, you may attend the Annual Meeting
and vote your shares in person or you may vote in advance of the
Annual Meeting by Internet, telephone or mail as explained
below. Even if you plan to attend the Annual Meeting, we urge
you to vote in advance. If you own shares in record name, you
may cast your advance vote in one of three ways:
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Vote by Internet: You can choose to vote your
shares over the Internet website listed on the enclosed proxy
card. This website will give you the opportunity to make your
selections and confirm that your instructions have been
followed. To take advantage of the convenience of voting on the
Internet, you must subscribe to one of the various commercial
services that offers access to the Internet. If you vote via
the Internet, you do not need to return the proxy card.
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Vote by Telephone: You can also vote by phone
at any time by calling the toll-free number (for residents of
the United States) listed on the enclosed proxy card. To vote by
telephone, dial the toll-free number and follow the simple
recorded instructions. If you vote by telephone, you do not
need to return the proxy card.
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Vote by Mail: If you choose to vote by mail,
simply mark the proxy card, and then date, sign, and return it
in the postage pre-paid envelope provided.
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Stockholders who hold shares beneficially in street name through
a nominee (such as a broker) may be able to vote by telephone or
the Internet as well as by mail. You should follow the
instructions you receive from your nominee to vote these shares.
If instructions are given in any of the three ways listed above
and are received by Superior Bancorp before or at the Annual
Meeting, and are not revoked, then the shares of common stock
represented thereby will be voted as specified. If no
specification is made, then shares of common stock represented
by the proxy will be voted in accordance with the
recommendations of the Board of Directors.
How to
Revoke Your Proxy
Sending in a signed proxy card will not affect your right to
attend the Annual Meeting and vote in person. You may revoke
your proxy at any time before it is voted at the Annual Meeting
by:
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giving written notice to the Secretary of Superior Bancorp that
you wish to revoke your proxy,
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executing and delivering to the Secretary of Superior Bancorp a
later-dated proxy (including by Internet or telephone
vote), or
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attending, giving notice that you wish to revoke your proxy and
voting in person at the Annual Meeting.
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Solicitation
We will bear the costs of soliciting proxies. We have engaged
Georgeson Shareholder Communications, Inc. to aid in the
solicitation of proxies, for which we will pay a fee of
approximately $10,000 plus reimbursement of expenses. Some of
our officers and employees (or those of our subsidiaries) may
use their personal efforts to make additional requests for the
return of proxies by telephone, mail or otherwise and may
receive proxies on our behalf. They will receive no additional
compensation for making any solicitations. We expect to
reimburse brokers, banks, custodians and other nominees for
their reasonable
out-of-pocket
expenses in handling proxy materials for beneficial owners of
our common stock.
Other
Matters
As of the date of this Proxy Statement, the Board of Directors
does not know of any matters, other than those set forth in the
foregoing Notice of Annual Meeting of Stockholders, that may be
brought before the Annual Meeting. If other matters requiring a
vote of the stockholders arise, the persons designated as
proxies will vote the shares of common stock represented by the
proxies in accordance with their judgment on such matters.
2
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth, to the best of our knowledge,
certain information regarding the beneficial stock ownership as
of March 1, 2010 by: (a) each of our current
directors, our Chief Executive Officer and our other current
executive officers, (b) all current directors and executive
officers as a group, and (c) each stockholder known by us,
based solely upon a review of filings made with the Securities
and Exchange Commission (the SEC), to be the
beneficial owner of more than 5% of our outstanding common
stock. Except as otherwise indicated, each person listed below
has sole voting and investment power with respect to all shares
shown to be beneficially owned by him. None of the shares are
pledged as security for indebtedness unless otherwise indicated.
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Percentage (1)(2)
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Number of Shares of
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Of Common
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Name
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Common Stock
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Stock Owned
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Directors and Executive Officers:
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C. Stanley Bailey
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240,243
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(3)
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2.03
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%
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Roger D. Barker
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30,175
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(4)
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*
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William H. Caughran
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7,713
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(5)
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*
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Thomas E. Dobbs, Jr.
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19,649
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(6)
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*
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K. Earl Durden
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1,253,101
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(7)
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9.88
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%
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Rick D. Gardner
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105,710
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(8)
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*
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Thomas E. Jernigan, Jr.
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228,822
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(9)
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1.96
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%
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James Mailon Kent, Jr.
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123,180
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(10)
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1.10
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%
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Mark A. Lee
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390,482
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(11)
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3.34
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%
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Peter L. Lowe
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133,642
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1.14
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%
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John C. Metz
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154,709
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(12)
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1.32
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%
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D. Dewey Mitchell
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160,502
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(13)
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1.37
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%
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Robert R. Parrish, Jr.
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30,301
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(14)
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Charles W. Roberts, III
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134,538
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1.15
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C. Marvin Scott
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142,472
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(15)
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1.21
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James A. White
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1,000
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James C. White, Sr.
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25,948
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(16)
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*
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All executive officers and directors as a group (17 persons)
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3,182,007
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(17)
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24.35
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%
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Less than 1% |
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Except as otherwise noted herein, percentage is determined on
the basis of 11,687,406 shares of Superior Bancorp common
stock outstanding as of March 1, 2010 plus securities
deemed outstanding pursuant to
Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as
amended (the Exchange Act). Under
Rule 13d-3,
a person is deemed to be a beneficial owner of any security
owned by certain family members and any security of which that
person has the right to acquire beneficial ownership within
60 days, including, without limitation, shares of common
stock subject to currently exercisable options. Unless otherwise
indicated, the address of each person is
c/o Superior
Bancorp, 17 North 20th Street, Birmingham, Alabama 35203. |
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Ownership percentage for each named individual is calculated by
treating any shares subject to options that are held by the
named individual and that are exercisable within the next
60 days as if outstanding, but treating such option shares
held by others and treating shares subject to options held by
the named individual but not exercisable within 60 days as
not outstanding. If ownership of restricted stock is shown, the
individual has sole voting power, but no power of disposition. |
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Includes 177,992 shares subject to options that are
exercisable within 60 days and 2,655 shares held for
his benefit by employee benefit plans. |
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Includes 5,000 shares subject to options that are
exercisable within 60 days. |
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Includes 22 shares held as co-trustee of a trust,
215 shares held by his spouse, and 3,712 shares held
for his benefit by employee benefit plans. |
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Includes 1,234 shares held by a corporation of which he is
a controlling stockholder. |
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Includes 126,296 shares held by corporations of which he is
a controlling stockholder and 1,000,000 shares subject to
warrants that are exercisable within 60 days. |
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Includes 88,996 shares subject to options that are
exercisable within 60 days and 415 shares held for his
benefit by employee benefit plans. |
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Includes 7,500 shares subject to options that are
exercisable within 60 days and 203,595 shares held by
a trust of which he is the beneficiary. |
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Includes 7,500 shares subject to options that are excisable
within 60 days. |
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Includes 381,265 shares held by a limited liability company. |
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Includes 1,447 shares held in his spouses IRA. |
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Includes 81,826 shares held by corporations of which he is
a controlling stockholder, 6,145 shares held for his
benefit by an employee benefit plan, and 30,833 shares held
by his parents of which Mr. Mitchell disclaims beneficial
ownership. Mr. Mitchell has pledged 32,875 shares in
connection with a loan. |
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Includes 1,250 shares subject to options that are excisable
within 60 days and 13,921 shares held for his benefit
by an employee benefit plan. |
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Includes 88,996 shares subject to options that are
exercisable within 60 days and 15,227 shares held for
his benefit by employee benefit plans. |
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Includes 1,250 shares subject to options that are
exercisable within 60 days. |
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Includes 1,378,484 shares subject to options and warrants
that are exercisable within 60 days. |
4
PROPOSAL NUMBER
ONE
ELECTION OF DIRECTORS
Under our Restated Certificate of Incorporation and Bylaws, each
member of our Board of Directors stands for election annually.
The Board of Directors has recommended the election of the
nominees for director identified below, to serve for a term
expiring at the 2011 Annual Meeting or until their successors
are duly elected and qualified, or until their earlier death,
resignation or removal.
The Board of Directors has no reason to believe that any of the
persons named will be unable to serve if elected. If any nominee
is unable to serve as a director, the enclosed Proxy will be
voted for a substitute nominee selected by the Board of
Directors. The election of directors requires a plurality of the
votes cast by the holders of our common stock. A
plurality means that the individuals who receive the
largest number of votes cast are elected as directors up to the
maximum number of directors to be chosen at the meeting. In
other words, the 14 director nominees receiving the most
votes will be elected. Consequently, any shares not voted
(whether by abstention, broker non-vote or otherwise) will have
no impact on the election of directors.
Nominees
for Director
For each nominees beneficial ownership of common stock,
see Security Ownership of Certain Beneficial Owners and
Management above. Set forth below is certain additional
information regarding each nominee:
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Name(1)
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Age
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Position with Superior Bancorp
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C. Stanley Bailey
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60
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Chairman, President & Chief Executive Officer; Director
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Roger D. Barker
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62
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Director
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Thomas E. Dobbs, Jr.
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65
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Director
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Rick D. Gardner
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50
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Vice Chairman; Director
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Thomas E. Jernigan, Jr.
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44
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Director
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James Mailon Kent, Jr.
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69
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Director
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Mark A. Lee
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51
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Director
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Peter L. Lowe
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71
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Director
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John C. Metz
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70
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Director
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D. Dewey Mitchell
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53
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Director
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Robert R. Parrish, Jr.
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55
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Director
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Charles W. Roberts, III
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56
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Director
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C. Marvin Scott
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60
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Vice Chairman; Director
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James C. White, Sr.
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62
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Director
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Directors Dobbs, Jernigan and White are members of the Audit and
Enterprise Risk Management Committee; Directors Lee, Metz and
Roberts are members of the Compensation Committee; Directors
Barker, Metz and Parrish are members of the Nominating and
Corporate Governance Committee. |
C. Stanley Bailey assumed the office of President of
Superior Bancorp in October 2009 in addition to serving as
Chairman and Chief Executive Officer of Superior Bancorp and
Chairman of Superior Bank since January 2005. During 2004, he
was Chairman and Chief Executive Officer of Silver Acquisition
Corp., Overland Park, Kansas. Mr. Bailey was founder,
Chairman and Chief Executive Officer of Superior Financial
Corp., Little Rock, Arkansas, a financial services company, from
late 1997 until the sale of the company in late 2003. From 1971
through 1997, he served in various executive management
positions with AmSouth Bancorporation, Birmingham, Alabama and
Hancock Holding Company, Gulfport, Mississippi, a bank holding
company. During his 39 years in banking Mr. Bailey has
gained experience in managing all facets of bank operations and
has successfully acquired and integrated numerous commercial
banks since 1990. Mr. Bailey, who has also served as a bank
director for 15 years, has a proven track record of
increasing stockholder value as a chief executive officer.
Roger D. Barker has been Senior Vice President and Chief
Financial Officer of the Buffalo Rock Company, a distributor and
bottler of soft drink products, for over five years. He has been
a director of Superior Bancorp since
5
December 2003 and began serving as a director of Superior Bank
in 1998. Mr. Barker brings the perspective of an
independent chief financial officer to the Board of Directors
and has in prior years served as an audit committee
financial expert, as defined in rules promulgated by the
SEC, for the Audit and Enterprise Risk Management Committee.
Mr. Barker is a resident of the Birmingham, Alabama area
and represents the Central Alabama market on the Board of
Directors.
Thomas E. Dobbs, Jr. has served as President and
Chief Operating Officer of Decatur Transit, Inc., offering
transportation and warehouse services, since 1983.
Mr. Dobbs, a resident of Decatur, Alabama, represents the
North Alabama market on the Board of Directors. Mr. Dobbs,
who holds a Masters of Business Administration and served in the
United States Naval Reserve, provides the Board of Directors
with the perspective of the manager of a business which is
dependent on customer sales and service.
Rick D. Gardner assumed the office of Vice Chairman of
Superior Bancorp in October 2009 and previously served as Chief
Operating Officer since 2005. Mr. Gardner also serves as
President of Superior Bank. During 2004, he was Chief Operating
Officer of Silver Acquisition Corp., Overland Park, Kansas.
Mr. Gardner was an officer of Superior Financial Corp.,
Little Rock, Arkansas, from 1998 through late 2003, serving as
Chief Administrative Officer and, previously, as Chief Financial
Officer. From 1981 through 1998, he served first as an
accountant with Grant Thornton and then in various executive
management positions with Metmor Financial, Overland Park,
Kansas, and First Commercial Mortgage Company, Little Rock,
Arkansas. Mr. Gardner brings to the Board of Directors
experience in public accounting and a variety of banking
management experience, including management of mortgage lending
operations.
Thomas E. Jernigan, Jr. has been the President of
Marathon Corporation, a privately held investment management
company based in Birmingham, Alabama, for over five years. He
has been a director of Superior Bancorp since September 1998.
Mr. Jernigan provides the Board of Directors insights
related to his investment management experience and represents
the Central Alabama market on the Board of Directors.
James Mailon Kent, Jr. has been the owner of Mailon
Kent Insurance Agency in Birmingham, Alabama for over
20 years. He has been a director of Superior Bancorp since
September 1998. Mr. Kent brings an insurance and risk
management perspective to the Board of Directors, as well as
entrepreneurial experience in founding and operating a business
dependent on customer sales and service. Mr. Kent
represents the Central Alabama market on the Board of Directors.
Mark A. Lee has served as President of Forest Hill
Capital, LLC, a private investment advisory firm in Little Rock,
Arkansas, for the past nine years. Prior to that time,
Mr. Lee spent 16 years with Morgan Keegan and Company,
Memphis, Tennessee, in various positions. Mr. Lee has been
a director of Superior Bancorp since January 2008.
Mr. Lees investment advisory firm has extensive
experience in the financial services sector. Mr. Lee
provides the Board of Directors with insights on the financial
markets.
Peter L. Lowe is the President of G.W. Jones &
Sons Real Estate Investment Company, Inc., Huntsville, Alabama.
Mr. Lowe has been a director of Superior Bancorp since July
2007. Mr. Lowe represents the North Alabama market on the
Board of Directors. Mr. Lowe received the M.A.I.
designation of the American Institute of Real Estate Appraisers,
is a member of the National Association of Realtors, and is an
Accredited Rural Appraiser. He provides the Board of Directors
with insight and experience with respect to the commercial real
estate market.
John C. Metz is the Chairman of Metz &
Associates, a food service management company located in Dallas,
Pennsylvania, which he founded in 1994. Mr. Metz has been a
director of Superior Bancorp since July 2007. Mr. Metz
maintains a residence in Sarasota, Florida, and represents the
Central Florida market on the Board of Directors. Mr. Metz
provides the Board of Directors with the perspective of managing
a business which is dependent on customer sales and service.
D. Dewey Mitchell is a co-owner of Capstone Tropical
Holdings, Inc., Land O Lakes, Florida, a holding company
for a number of real-estate related businesses in the Tampa Bay
area. Mr. Mitchell served as a director of Kensington
Bankshares, Inc., Tampa, Florida, from its founding until its
merger with Superior Bancorp in 2006, at which time he became a
director of Superior Bancorp. Mr. Mitchell represents the
Central Florida market on the Board of Directors.
Mr. Mitchell received the designation of Certified
Commercial Investment Member and provides insight and experience
with respect to the commercial real estate market.
6
Robert R. Parrish, Jr. is President and owner of
Parrish Group, Inc. of Tallahassee, Florida, a holding company
for companies involved in real estate development, construction
and sales in the Capitol Region of Florida. Mr. Parrish has
served in such capacities for Parrish Group and its predecessors
since 1983. Mr. Parrish has been a director of Superior
Bancorp since November 2005. Mr. Parrish represents the
North Florida market on the Board of Directors and provides
insight and experience with respect to the real estate market.
Charles W. Roberts, III has been the President of
C.W. Roberts Contracting, Inc., a road construction company in
Tallahassee, Florida, since 1976. Mr. Roberts has been a
director of Superior Bancorp since January 2008.
Mr. Roberts represents the North Florida market on the
Board of Directors and provides the Board of Directors with the
entrepreneurial experience of founding and operating a business.
C. Marvin Scott assumed the office of Vice Chairman
of Superior Bancorp in October 2009 and previously served as
President since 2005. Mr. Scott also serves as Chief
Executive Officer of Superior Bank. During 2004, he was
President of Silver Acquisition Corp., Overland Park, Kansas.
Mr. Scott served as President and Chief Operating Officer
of Superior Financial Corp., Little Rock, Arkansas, from April
1998 through late 2003. From 1971 through 1997, he served in
various executive management positions with Crestar, a Richmond,
Virginia-based bank holding corporation, AmSouth Bank and
Hancock Holding Company. From February 1996 until January 1998,
he was Chief Retail Officer and Senior Vice President of Hancock
Holding Company, and he was previously Executive Vice
President Consumer Banking at AmSouth Bank.
Mr. Scott brings to the Board of Directors approximately
39 years of banking experience focusing primarily on retail
and consumer banking and commercial lending.
James C. White, Sr. has served as Managing Partner
of Banks, Finley, White & Co., Certified Public
Accountants, Birmingham, Alabama, one of the nations
largest and oldest minority-owned certified public accounting
firms, since the firms inception in 1973. He has been a
director of Superior Bancorp since June 2005, and previously
served as a director of Superior Bank. Mr. White, who
served as the State Finance Director for Alabama from 1993 to
1997 and a member of the Alabama State Board of Public
Accountancy for 16 years, provides the Board of Directors
with the perspective of an independent public accountant with
experience conducting bank audits. Mr. White also serves as
an audit committee financial expert, as defined in
rules promulgated by the SEC, for the Audit and Enterprise Risk
Management Committee. Mr. White represents the Central
Alabama market on the Board of Directors.
The Board of Directors unanimously recommends a vote FOR the
election of all nominees identified above. The enclosed Proxy
will be voted in favor of those nominees unless other
instructions are given.
Executive
Officers
The following table sets forth certain information about our
current executive officers:
|
|
|
|
|
|
|
Name
|
|
Age
|
|
Position
|
|
C. Stanley Bailey
|
|
|
60
|
|
|
Chairman, President and Chief Executive Officer; Director
|
William H. Caughran
|
|
|
53
|
|
|
General Counsel and Secretary
|
Rick D. Gardner
|
|
|
50
|
|
|
Vice Chairman; Director
|
C. Marvin Scott
|
|
|
60
|
|
|
Vice Chairman; Director
|
James A. White
|
|
|
66
|
|
|
Chief Financial Officer
|
Information concerning Mr. Bailey, Mr. Gardner and
Mr. Scott is set forth above under Nominees for
Director.
William H. Caughran was named General Counsel of Superior
Bancorp in November 2006 upon completion of Superior
Bancorps acquisition of Community Bancshares, Inc.,
Blountsville, Alabama. Mr. Caughran became General Counsel
of Community Bank in 1998 and Community Bancshares, Inc. in
2002. From 1986 to 1998 Mr. Caughran served as in-house
counsel to AmSouth Bank, Birmingham, Alabama.
James A. White became Chief Administrative Officer of
Superior Bancorp on September 8, 2008, and was named Chief
Financial Officer on October 23, 2008. Mr. White
served as the Chief Financial Officer of BankAtlantic Bancorp,
Fort Lauderdale, Florida, from 2000 to 2007. Prior to that
time he served as the Chief
7
Financial Officer of BOK Financial Corporation, Tulsa, Oklahoma,
from 1990 to 2000. From 1987 to 1990 Mr. White was the
President and Chief Executive Officer and from 1975 to 1987 he
was the Chief Financial Officer of First National Bank and Trust
of Tulsa, Oklahoma.
Executive officers are elected by the Board of Directors to
one-year terms. There are no family relationships among any of
our directors or executive officers.
Certain
Information Concerning the Board of Directors and its
Committees
Meetings
and Attendance
The Board of Directors held a total of six meetings and acted by
unanimous written consent twice during 2009. During 2009, each
of the directors attended at least 75% of the aggregate of
(i) the total number of Board of Directors meetings and
(ii) the total number of meetings held by all Board
committees of Superior Bancorp on which he served during the
period for which he or she was serving as a director or
committee member except for Mark A. Lee. In addition to
participation at Board and committee meetings, our directors
discharge their responsibilities throughout the year through
personal meetings and other communications, including
considerable telephone contact with the chairman and chief
executive officer and others regarding matters of interest and
concern to the company.
There is no policy requiring the directors to attend meetings of
stockholders. Nine of the 15 members of the Board of Directors
at that time attended the 2009 Annual Meeting.
Director
Independence
The Board of Directors has determined that the following
11 directors are independent directors under
Rule 4200 of the NASDAQ Stock Market Marketplace Rules
(NASDAQ Rule 4200) during 2009:
Messrs. Barker, Dobbs, Durden, Jernigan, Kent, Lee, Metz,
Mitchell, Parrish, Roberts and White. An independent director is
free of any relationship with Superior Bancorp or its management
that may impair the directors ability to make independent
judgments. Our non-employee directors periodically meet in
executive session without the management directors.
Board
Leadership Structure
The Board of Directors selects a chairman who presides over its
meetings. Currently Superior Bancorps chief executive
officer also serves as its chairman of the board. The Board of
Directors believes that the chief executive officer is best
situated to serve as chairman because he is the director most
familiar with Superior Bancorps business and industry, and
most capable of effectively identifying strategic priorities and
leading the discussion and executing strategy. Independent
directors and management have different perspectives and roles
in strategy development. Superior Bancorps independent
directors bring experience, oversight and expertise from outside
the company and industry, while the chief executive officer
brings company-specific experience and expertise. The Board
believes that the combined role of chairman and chief executive
officer promotes strategy development and execution, and
facilitates information flow between management and the Board,
which are essential to effective governance.
The Board has not identified a lead independent director. The
Board relies on the chairmen of its standing committees to
consult with the chairman of the board and chief executive
officer regarding matters within the area of responsibility of
their respective committees and to act as liaisons between
management and the independent directors with respect to those
matters.
Risk
Oversight
The Board of Directors has an active role, as a whole and also
at the committee level, in overseeing management of the Superior
Bancorps risks. The Audit and Enterprise Risk Management
Committee is responsible for overseeing implementation of
Superior Bancorps overall enterprise risk management
program and for addressing risks related to Superior
Bancorps financial condition. The Compensation Committee
is responsible for addressing risks associated with Superior
Bancorps compensation plans and arrangements. The
Nominating
8
and Corporate Governance Committee is responsible for addressing
governance risks. Superior Banks Board Loan and Investment
Committee is responsible for addressing risks relating to
lending and investments. The entire Board of Directors is
regularly informed about all such risks through committee
reports and by reports from Superior Bancorps chief risk
officer.
Board
Committees
The Board of Directors currently has three standing committees:
the Audit and Enterprise Risk Management Committee, the
Compensation Committee, and the Nominating and Corporate
Governance Committee.
Audit and Enterprise Risk Management
Committee. The Audit and Enterprise Risk
Management Committee is responsible for overseeing our
accounting and financial reporting processes and the audits of
our financial statements. Among other things, the Audit and
Enterprise Risk Management Committee is responsible for the
appointment, retention, compensation and oversight of our
independent registered public accounting firm, reviews
significant audit and accounting policies and practices, meets
with our independent registered public accounting firm
concerning, among other things, the scope of audits and reports,
approves the provision of services by our independent registered
public accounting firm, reviews the performance of overall
accounting and financial controls, and oversees the
implementation of an enterprise risk management function. The
Audit and Enterprise Risk Management Committee currently
comprises Messrs. White (Chair), Dobbs and Jernigan. During
2009, there were eight meetings of the Audit and Enterprise Risk
Management Committee. See Report of the Audit and
Enterprise Risk Management Committee.
Each of the members of the Audit and Enterprise Risk Management
Committee is an independent director, as defined under NASDAQ
Rule 4200, and meets the standards required by
Rule 10A-3(b)(1)
under the Exchange Act. The Board of Directors has determined
that Mr. White qualifies as an audit committee
financial expert under the rules promulgated by the SEC.
The Audit and Enterprise Risk Management Committee operates
under a written charter, a copy of which is available on our
website at www.superiorbank.com.
Compensation Committee. The Compensation
Committee is responsible for reviewing the performance of our
executive officers and recommending to the Board of Directors
annual salary and bonus amounts for them. The Compensation
Committee also administers the Superior Bancorp 2008 Incentive
Compensation Plan, the Third Amended and Restated 1998 Incentive
Stock Plan of The Banc Corporation, and the Commerce Bank of
Alabama Stock Option Plan.
The Compensation Committee currently comprises Messrs. Metz
(Chair), Lee and Roberts, all of whom are independent directors
as defined under NASDAQ Rule 4200. During 2009, the
Compensation Committee held four meetings. The Compensation
Committee operates under a written charter which is available on
our website at www.superiorbank.com. See Executive
Compensation and Other Information Compensation
Discussion and Analysis Compensation Committee
Report on Executive Compensation.
The role of management in determining executive compensation is
limited to gathering information for the Compensation Committee.
For example, compensation data regarding selected peer companies
is compiled by management. The Compensation Committee receives
the information from management and then determines how it will
utilize such information in the committees decision-making
process. The Compensation Committee does not delegate to any
other committee or individual its authority to determine the
compensation of the executive officers of Superior Bancorp. The
Compensation Committee has not engaged any compensation
consultants to assist it in recommending the amount or form of
executive compensation. However, management has utilized the
compensation consulting services of Mercer from time to time.
Mercers executive compensation services have consisted of
providing information with respect to (1) the restrictions
on executive compensation for institutions which participated in
the United States Treasury Departments Capital Purchase
Program (See Compensation Discussion and
Analysis Restrictions on Executive
Compensation), (2) Superior Bancorps long-term
incentive compensation plans, and (3) the compensation of
certain senior officers.
Nominating and Corporate Governance
Committee. The Nominating and Corporate
Governance Committee recommends to the Board of Directors and
evaluates potential candidates to serve as directors of Superior
Bancorp. The Nominating and Corporate Governance Committee
consists of Messrs. Barker (Chair), Metz and Parrish. Each
9
of the members of the Committee is an independent director, as
defined under NASDAQ Rule 4200. The Nominating and
Corporate Governance Committee met five times during 2009.
The Nominating and Corporate Governance Committee has a written
charter which is available on our website at
www.superiorbank.com. The Nominating and Corporate
Governance Committee is charged with developing and recommending
criteria to be considered in identifying and evaluating
potential candidates to serve as directors of Superior Bancorp
as well as establishing policies and procedures for identifying,
recruiting, interviewing and recommending to the Board qualified
candidates to serve as directors. The Nominating and Corporate
Governance Committee is also responsible for developing and
recommending to the Board criteria to be used in reviewing and
evaluating candidates for director recommended by stockholders
of Superior Bancorp and is responsible for reviewing and
evaluating such candidates and making recommendations to the
Board.
In evaluating and recommending director nominees, the Nominating
and Corporate Governance Committee does not rely on a fixed set
of qualifications, but instead attempts to identify nominees
with (i) a broad range of business experience consistent
with Superior Bancorps strategic focus and its stockholder
interest, (ii) the ability to dedicate the time and
resources necessary for service on the Board of Directors, and
(iii) familiarity with the primary geographic markets
served by Superior Bancorp. In addition, the Nominating and
Corporate Governance Committee is charged with ensuring that at
least a majority of our directors satisfy the director
independence requirements imposed by the NASDAQ Marketplace
Rules. In evaluating director nominees, including incumbent
directors and any nominees recommended by stockholders, the
Nominating and Corporate Governance Committee considers a
nominees business experience and skills, character,
judgment, leadership experience, familiarity with community
banking issues, knowledge of our geographic markets and relevant
issues therein, and such other criteria as the Nominating and
Corporate Governance Committee may deem relevant and appropriate
based on the composition of the Board of Directors and the
strategic goals of Superior Bancorp at the time in question. The
Nominating and Corporate Governance Committee considers
diversity in identifying nominees for director both with respect
to geographic markets served by Superior Bancorp and with
respect to the type of business experience of the nominee.
Although the Nominating and Corporate Governance Committee has
no formal policy on diversity, Superior Bancorps current
Board of Directors is representative of Superiors markets
in North and Central Alabama and North and Central Florida and
possesses a wide range of business experience.
The Nominating and Corporate Governance Committee will consider
recommendations for director nominees submitted by stockholders.
In order for the Nominating and Corporate Governance Committee
to evaluate the nominees properly, such nominations should be
received by the Nominating and Corporate Governance Committee no
later than 60 days prior to the meeting at which the
election is to be held and should set forth (a) as to each
person the stockholder proposes to nominate for election or
re-election as a director (i) the persons name, age,
business address, and residence address, (ii) the
persons principal occupation or employment, (iii) the
class and number of shares of Superior Bancorp capital stock
that the person beneficially owns and (iv) any other
information relating to the person that is required to be
disclosed in solicitations for proxies for election of directors
pursuant to Section 14 of the Exchange Act and the rules
and regulations promulgated thereunder; and (b) as to the
stockholder giving the notice, (i) the name and record
address of the stockholder, (ii) the class or series and
number of shares of capital stock of Superior Bancorp that are
owned beneficially or of record by the stockholder, (iii) a
description of all arrangements or understandings between the
stockholder and each proposed nominee and any other person or
persons (including their names) pursuant to which the
nomination(s) are to be made by the stockholder, (iv) a
representation that such stockholder intends to appear in person
or by proxy at the meeting to nominate the persons named in such
notice, and (v) any other information relating to the
stockholder that would be required to be disclosed in a proxy
statement or other filings required to be made in connection
with solicitations of proxies for the election of directors
pursuant to Section 14 of the Exchange Act and the rules
and regulations promulgated thereunder. The stockholder should
also send to the Nominating and Corporate Governance Committee a
written consent of each person proposed to be named as a nominee
and to serve as a director, if elected. We may require any
proposed nominee to furnish such other information as may
reasonably be required to determine the eligibility of such
proposed nominee to serve as a director. Stockholders wishing to
recommend potential director nominees should write to the
Nominating and Corporate Governance Committee in care of William
H. Caughran, Secretary, Superior Bancorp, 17 North
20th
Street, Birmingham, Alabama 35203.
10
Stockholder
Communications with the Board
The Board of Directors provides a process for stockholders to
send communications to the Board of Directors. Stockholders may
send written communications to the Board of Directors addressed
to the Board of Directors (or to an individual director),
Attention: Secretary, Superior Bancorp, 17 North
20th
Street, Birmingham, Alabama 35203. All communications will be
compiled by the Secretary and submitted to the Board of
Directors or the individual directors.
Director
Compensation
The following table presents information concerning the
compensation paid to non-employee directors of Superior Bancorp
during 2009:
Director
Compensation
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Change in
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pension
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Value and
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nonqualified
|
|
|
|
|
|
|
|
|
|
Fees
|
|
|
|
|
|
Option
|
|
|
Non-Equity
|
|
|
Deferred
|
|
|
|
|
|
|
|
|
|
Earned
|
|
|
Stock
|
|
|
Awards
|
|
|
Incentive Plan
|
|
|
Compensation
|
|
|
All Other
|
|
|
|
|
|
|
or Paid
|
|
|
Awards
|
|
|
($)
|
|
|
Compensation
|
|
|
Earnings
|
|
|
Compensation
|
|
|
|
|
Name
|
|
in Cash ($)
|
|
|
($)(1)
|
|
|
(2)
|
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
|
Total ($)
|
|
|
Roger D. Barker
|
|
|
|
|
|
$
|
29,500
|
|
|
$
|
3,646
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
33,146
|
|
Thomas E. Dobbs, Jr.
|
|
$
|
3,000
|
|
|
$
|
16,500
|
|
|
$
|
6,072
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
25,572
|
|
K. Earl Durden
|
|
|
|
|
|
$
|
7,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
7,000
|
|
Thomas E. Jernigan, Jr.
|
|
|
|
|
|
$
|
26,500
|
|
|
$
|
3,646
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
30,146
|
|
James Mailon Kent, Jr.
|
|
|
|
|
|
$
|
24,500
|
|
|
$
|
3,646
|
|
|
|
|
|
|
$
|
27,539
|
(3)
|
|
|
|
|
|
$
|
55,685
|
|
Mark A. Lee
|
|
|
|
|
|
$
|
21,000
|
|
|
$
|
3,646
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
24,646
|
|
James M. Link
|
|
|
|
|
|
$
|
6,500
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
6,500
|
|
Peter L. Lowe
|
|
|
|
|
|
$
|
24,500
|
|
|
$
|
3,646
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
28,146
|
|
John C. Metz
|
|
$
|
2,000
|
|
|
$
|
29,000
|
|
|
$
|
3,646
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
34,646
|
|
D. Dewey Mitchell
|
|
$
|
300
|
|
|
$
|
23,500
|
|
|
$
|
3,646
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
27,446
|
|
Barry Morton
|
|
|
|
|
|
$
|
5,500
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
5,500
|
|
Robert R. Parrish, Jr.
|
|
|
|
|
|
$
|
29,500
|
|
|
$
|
3,646
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
33,146
|
|
Charles W. Roberts III
|
|
|
|
|
|
$
|
23,000
|
|
|
$
|
3,646
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
26,646
|
|
James C. White, Sr.
|
|
|
|
|
|
$
|
28,000
|
|
|
$
|
3,646
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
31,646
|
|
|
|
|
(1) |
|
Amounts in this column represent the grant date fair value of
shares of Superior Bancorp common stock granted to the director
in payment for director fees. The key assumptions used in
determining the amounts in this column are disclosed in
Note 12 to the consolidated financial statements of
Superior Bancorp and its subsidiaries contained in Superior
Bancorps Annual Report on
Form 10-K
for the year ended December 31, 2009. |
|
(2) |
|
Amounts in this column represent the grant date fair value of
stock options granted to the director during 2009. The key
assumptions used in determining the amounts in this column are
disclosed in Note 12 to the consolidated financial
statements of Superior Bancorp and its subsidiaries contained in
Superior Bancorps Annual Report on Form 10-K for the
year ended December 31, 2009. |
|
(3) |
|
Represents the portion of the earnings on Mr. Kents
deferred compensation during 2009 paid at a rate in excess of
120% of the average federal long-term rate with monthly
compounding. |
Non-employee directors receive an annual retainer of $12,000,
payable in quarterly installments, meeting fees of $1,500 per
Board meeting, and committee meeting fees of $1,500 per meeting
for committee chairs and $1,000 per meeting for committee
members, and have the option of receiving such retainer and fees
in cash or common stock. All directors have elected to receive
all or part of their compensation in common stock.
Deferred Compensation Agreement. Effective
July 31, 2005, all director deferred compensation
arrangements, other than Mr. Kents, were terminated
and the directors accepted shares of our common stock having a
value equal to their deferral accounts in full satisfaction of
our liabilities under those arrangements. Mr. Kent, who was
11
fully vested in his benefits under his deferred compensation
arrangement, agreed to its termination effective January 1,
2006 in exchange for our agreement to fund a new deferred
compensation arrangement for him in the amount of $154,547,
representing the then-current present value of the amounts he
would have received. Under this new arrangement, such amount is
deemed to be invested in specified benchmark funds or indices,
and Mr. Kent is entitled to receive benefits based upon the
value of his deemed investment account after giving effect to
deemed investment gains and losses on the account. Mr. Kent
may elect to receive such benefits in five or ten annual
installments or in a lump sum beginning in 2011 or 2016, at his
election, subject to earlier termination of the arrangement.
Code of
Ethics
We have adopted a code of ethics that applies to all of our
employees, including our principal executive, financial and
accounting officers. The code of ethics requires, among other
things, that our employees exhibit and promote the highest
standards of honest and ethical conduct; avoid conflicts of
interest; comply with laws, rules and regulations; and otherwise
act in the best interests of Superior Bancorp. A copy of our
code of ethics is available on our website,
www.superiorbank.com. We intend to disclose information
about any amendments to, or waivers from, our code of ethics
that are required to be disclosed under applicable SEC
regulations by providing appropriate information on our website.
If at any time our code of ethics is not available on our
website, we will provide a copy of it free of charge upon
written request.
Section 16(a)
Beneficial Ownership Reporting Compliance
Section 16(a) of the Exchange Act requires our officers and
directors and persons who beneficially own more than 10% of a
registered class of our equity securities, to file reports of
ownership and changes in ownership with the SEC. Officers,
directors and beneficial owners of more than 10% of our common
stock are required by SEC regulations to furnish Superior
Bancorp with copies of all Section 16(a) forms that they
file. Based on a review of the copies of the forms furnished to
us, or written representations that no reports on Form 5
were required, we believe that during 2009, all of our officers,
directors and greater-than-10% beneficial owners complied with
all applicable filing requirements except as set forth in the
following paragraph.
Mr. Dobbs filed a Form 5 in February 2010, reporting
ownership of 75 shares of Superior Bancorp common stock
through an individual retirement account. These shares were
inadvertently omitted from Mr. Dobbs timely filed
Form 3.
EXECUTIVE
COMPENSATION AND OTHER INFORMATION
Compensation
Discussion and Analysis
This Compensation Discussion and Analysis describes our
compensation program for (a) our principal executive
officer, (b) our principal financial officer, and
(c) the three other most highly compensated executive
officers of Superior Bancorp during the year ended
December 31, 2009. These executive officers are referred to
collectively as the named executive officers. For a
summary of the amount of compensation paid to the named
executive officers in 2009, please see Summary of Cash and
Certain Other Compensation below.
Compensation
Philosophy and Policies for Executive Officers
Superior Bancorps Board of Directors has established a
Compensation Committee which is responsible for determining the
compensation of the named executive officers. See Certain
Information Concerning the Board of Directors and its
Committees. The Compensation Committees objective is
to compete effectively for the services of qualified officers
and key employees, to give those employees appropriate incentive
to pursue the maximization of long-term stockholder value, and
to recognize those employees success in achieving both
qualitative and quantitative goals for the benefit of Superior
Bancorp.
The Compensation Committee believes that executives of Superior
Bancorp should be rewarded based upon their success in meeting
certain operational goals, improving earnings and generating
returns for stockholders. The
12
Compensation Committee strives to establish levels of
compensation that take these factors into account and provide
appropriate recognition for past achievement and incentive for
future success. The Compensation Committee recognizes that the
market for executives with expertise and experience in the
banking industry is highly competitive. In order to attract and
retain qualified executives, the Compensation Committee believes
that Superior Bancorp must offer compensation at competitive
levels. In addition, the Compensation Committee believes that
Superior Bancorps stock incentive plans offer its
executives meaningful equity participation in Superior
Bancorps common stock. The Compensation Committee feels
that the combination of cash compensation and equity
participation will be effective in stimulating Superior
Bancorps executives to meet both long-term and short-term
goals.
Benchmarking
To assist the Compensation Committee in determining competitive
levels of compensation, the Committee reviews external
compensation studies as well as compensation data for selected
positions compiled internally from proxy statements for selected
peer companies. The most recent peer group was composed of the
following financial institutions: BancTrust Financial Group,
Inc. (Mobile, AL), Bank of the Ozarks, Inc. (Little Rock, AR),
Cadence Financial Corporation (Starkville, MS), Capital City
Bank Group (Tallahassee, FL), IberiaBank Corporation (Lafayette,
LA), Seacoast Banking Corporation of Florida (Stuart, FL),
Simmons First National Corporation (Pine Bluff, AR), Trustmark
Corporation (Jackson, MS), United Bankshares, Inc. (Charleston,
WV), United Community Banks, Inc. (Blairsville, GA), WesBanco,
Inc. (Wheeling, WV), and Whitney Holding Corporation (New
Orleans, LA). Although the Compensation Committee does not
maintain a formal record of, and has not established fixed
targets for, where its compensation stands with respect to the
peer companies, the Compensation Committees goal is for
the compensation package provided to a Superior Bancorp officer
to be comparable to, and consequently competitive with, the
compensation provided by the peer companies for a similarly
situated position.
Elements
of Compensation
There are three primary components of Superior Bancorps
executive compensation program: base salary, short-term
incentive compensation and long-term incentive compensation. The
Compensation Committee has not established a specific targeted
mix of compensation between base salary and short-term and
long-term incentives. Short-term incentives are based upon
percentages of base salary and long-term incentives are
determined based upon a targeted pool of equity. In addition to
these primary forms of compensation, Superior Bancorp provides
certain perquisites to its executive officers and maintains
qualified retirement plans in which its executive officers
participate.
Base Salary: The Compensation Committee
endeavors to establish base salary levels for executives that
are consistent and competitive with those provided for similarly
situated executives of other publicly held financial
institutions of similar size and in similar geographic markets,
taking into account each executives areas and level of
responsibility. As noted above, the Committee utilizes data for
peer companies in making its determination. Effective
January 1, 2009 the Committee determined that the salary of
Mr. Bailey would increase from $475,000 to $500,000, the
salary of Mr. Scott would increase from $370,000 to
$390,000, the salary of Mr. Gardner would increase from
$320,000 to $336,000, the salary of Mr. White would
increase from $275,000 to $290,000, and the salary of
Mr. Caughran would increase from $175,000 to $185,000. At
its October 2009 meeting the Committee again reviewed peer bank
and survey data and was concerned that Superior Bancorp was at
risk of losing a number of its senior officers without further
salary adjustments. Effective October 26, 2009, the
Committee increased salaries as follows: Mr. Scott to
$490,000; Mr. Gardner to $436,000; Mr. White to
$350,000; and Mr. Caughran to $235,000. The Committee
determined that these officers would receive no additional
salary increases in 2010 and no type of incentive compensation
for 2009.
Short-Term Incentive Compensation: The
Compensation Committee has approved a Management Incentive Plan,
which is intended to recognize and reward senior officers of
Superior Bancorp and its subsidiaries and affiliates who have
contributed to the enhancement of stockholder value through the
achievement of corporate and personal performance goals during
each plan year. Under the terms of the Management Incentive
Plan, the Compensation Committee approves those officers
selected to participate in the plan based upon the
recommendation of the Chief Executive Officer. Participants are
notified by February 15 of each plan year of their eligibility
to
13
participate in the plan for such year. For each year, the
Compensation Committee will establish corporate financial and
operational performance goals, and participants will jointly
establish with their respective supervisors individual
performance goals. Participants will be assigned to specific
potential award levels ranging from 15% to 50% of their
respective base salaries, and will be eligible to earn up to
125% of their potential award levels depending upon corporate
performance. Awards will be made in a lump sum distribution by
March 15 of the year following the plan year. The Compensation
Committee has discretion to increase the earned award payment or
award a discretionary payment in lieu of the award payment. The
Compensation Committee did not exercise this discretion with
respect to any of the named executive officers for 2009. The
Compensation Committee makes a determination of awards based on
the information available to it at the time. The Compensation
Committee included a provision in each of the companys
incentive compensation plans allowing the company to adjust or
recover awards or payments if the relevant company performance
measures upon which they are based are restated or otherwise
adjusted in a manner that would reduce the size of an award or
payment. The Compensation Committees intention is to
evaluate the facts and circumstances surrounding the restatement
or adjustment in exercising its discretion to recover awards.
For 2009 the corporate performance goals consisted of five
components: (1) net operating earnings for the year,
weighted at 30%;
(2) year-over-year
growth in core deposits, weighted at 20%;
(3) year-over-year
loan growth, weighted at 20%; (4) the level of
non-performing assets and net charge-offs at year end, weighted
at 20%; and (5) the regulatory ratings assigned to Superior
Bank, weighted at 10%. The potential award level for each of
Mr. Bailey, Mr. Scott, Mr. Gardner and
Mr. White was 50% of their respective base salaries as
provided in their respective employment agreements with Superior
Bancorp. See Employment Agreements. The potential
award level for Mr. Caughran was 40% of his base salary.
The Compensation Committee determined not to make awards to the
named executive officers under the Management Incentive Plan for
2009.
Long-Term Incentive Compensation: In addition
to cash incentive compensation, Superior Bancorp utilizes
equity-based compensation in the form of stock options to
encourage its executives to meet operational goals and maximize
long-term stockholder value. Because the value of stock options
granted to an executive is directly related to Superior
Bancorps success in enhancing its market value over time,
the Compensation Committee believes that its stock option
programs are effective in aligning the interests of management
and stockholders.
Except for stock options granted to new employees as a condition
of their employment, the Compensation Committee generally
considers grants annually at its July meeting. The Compensation
Committee establishes a target for its annual stock option
grants. The amount of options for each individual is determined
taking into account an executives current responsibilities
and historical performance, as well as the executives
contribution to Superior Bancorps results of operations.
In evaluating award grants, the Compensation Committee considers
prior grants and shares currently held, as well as the
recipients success in meeting operational goals and the
recipients level of responsibility. However, no fixed
formula is utilized to determine particular grants. The
Compensation Committee believes that the opportunity to acquire
a significant equity interest in Superior Bancorp will be a
strong motivation for the executives to pursue the long-term
interests of Superior Bancorp and will promote longevity and
retention of key executives. In July 2009, the Compensation
Committee granted options to purchase 6,000 shares and
4,000 shares of Superior Bancorp stock to Mr. White
and Mr. Caughran, respectively. No grants were made to
Mr. Bailey, Mr. Scott or Mr. Gardner in 2009 in
light of the grants which were made to each individual during
2005 as part of the inducement of each of these individuals to
join the management team of Superior Bancorp.
Superior Bancorp encourages its executives to participate in the
equity ownership of the company and seeks to facilitate this
ownership through its long-term incentive program. However,
Superior Bancorp has not established any security ownership
requirements or guidelines for its executives.
Retirement
Plans:
The retirement plans maintained by Superior Bancorp are
tax-qualified plans in which named executive officers
participate on the same terms as other full-time employees of
Superior Bancorp. The company maintains a 401(k) plan pursuant
to which it matches 100% of the first 3% and 50% of the next 2%
of compensation contributed to the plan by the employee. During
2009, Superior Bancorp maintained an employee stock ownership
plan (ESOP), which it acquired as a result of its
merger with Community Bancshares, Inc. in 2006. Contributions to
the
14
ESOP are determined by the board of directors, but must be in an
amount sufficient to enable the ESOP to service its debt.
Superior Bancorps contributions to the 401(k) plan and
ESOP for the benefit of the named executive officers are
included in the All Other Compensation column of the
Summary Compensation Table below.
Superior Bancorp also maintains a defined benefit pension plan
which it acquired as a result of the merger with Community
Bancshares, Inc. The pension plan has been frozen since
December 31, 2003, and no additional benefits are accruing
under the plan. Superior Bancorp is required to make
contributions to the plan in an amount sufficient to satisfy the
minimum funding requirements of the Employee Retirement Income
Security Act of 1974, as amended. Mr. Caughran is the only
named executive officer with an accrued benefit under the
pension plan. See Pension Benefits.
Perquisites
and Other Benefits:
Pursuant to the terms of their employment agreements,
Mr. Bailey, Mr. Scott, Mr. Gardner and
Mr. White each receive certain perquisites or other
benefits. The Compensation Committee believes that all of these
benefits are appropriate considering the level of responsibility
of these officers. See Summary Compensation
Table All Other Compensation.
Restrictions
on Executive Compensation
Due to its participation in the United States Treasury
Departments Troubled Assets Relief Program Capital
Purchase Program (CPP), Superior Bancorp is subject
to an interim final rule promulgated by the United States
Treasury Department (Treasury Department) on
June 15, 2009 establishing certain standards for CPP
participants with respect to executive compensation. Superior
Bancorps participation in the CPP has the following
effects on its compensation arrangements for its named executive
officers for as long as it participates in the CPP:
(1) Superior Bancorps Compensation Committee must
meet at least semi-annually with Superior Bancorps senior
risk officer and make reasonable efforts to ensure that its
incentive compensation arrangements do not encourage the named
executive officers to take unnecessary and excessive risks that
threaten the value of Superior Bancorp or encourage the
manipulation of reported earnings to increase the compensation
of any employee; (2) the named executive officers, as well
as the next five most highly compensated employees, may not
receive a golden parachute payment which is defined to be any
payment for departure from the company for any reason except for
payments for services performed or benefits accrued;
(3) the five most highly compensated employees (without
regard to whether they are named executive officers) may receive
incentive compensation only in the form of restricted stock in
an amount which does not exceed one-third of the
individuals total annual compensation and does not fully
vest until after Superior Bancorp no longer participates in the
CPP except for incentive compensation paid pursuant to a
contract in effect before February 11, 2009;
(4) Superior Bancorp must recover from any of its named
executive officers and next 20 most highly compensated employees
any bonus or other incentive compensation which was paid on the
basis of materially inaccurate financial statements or other
materially inaccurate performance metric criteria;
(5) Superior Bancorp may not make any tax
gross-ups to
a named executive officer or any of the next 20 most highly
compensated employees; and (6) Superior Bancorp may not
claim a federal income tax deduction for compensation paid to a
named executive officer in excess of $500,000.
The Compensation Committee has, and will continue to, consider
all limits on executive compensation and determine how they
impact our executive compensation program.
Tax and
Accounting Considerations
The Omnibus Budget Reconciliation Act of 1993 contains a
provision under which a publicly traded corporation is sometimes
precluded from taking a federal income tax deduction for
compensation in excess of $1,000,000 that is paid to the chief
executive officer and the four other most highly compensated
executives of a corporation during its tax year. Compensation in
excess of $1,000,000 continues to be deductible if that
compensation is performance based within the meaning
of that term under Section 162(m) of the Internal Revenue
Code of 1986, as amended (the Code). As outlined
above (see Restrictions on Executive
Compensation), Superior Bancorp may not claim a
federal income tax deduction for compensation in excess of
$500,000 paid to a named executive officer as a result of
Superior Bancorps participation in the CPP. The
Compensation Committee is aware of the potential effects of this
restriction. The Committee has chosen not to distort its
methodology and
15
application of the factors it believes pertinent so as to ensure
that all executive compensation is deductible. The Compensation
Committee expects that Superior Bancorp will honor its
obligations to the named executive officers under compensation
arrangements approved by the Compensation Committee without
regard to limitations on deductibility.
We account for all compensation paid in accordance with
generally accepted accounting principles. The accounting
treatment has generally not affected the form of compensation
paid to the named executive officers.
Use of
Contractual Arrangements
The Compensation Committee considers contractual arrangements to
be an effective method of attracting and retaining the services
of executives in critical positions. The terms of the
companys agreements are summarized under Employment
Agreements and Potential Payouts Upon Termination of
Employment or Change in Control of Superior Bancorp.
Compensation
Committee Report (1)(
The Compensation Committee has reviewed and discussed with
management the Compensation Discussion and Analysis contained in
this Proxy Statement. Based upon this review and discussion, the
Compensation Committee has recommended to the Board of Directors
that the Compensation Discussion and Analysis be included in
this Proxy Statement.
The Compensation Committee meets semi-annually with the chief
risk officer of Superior Bancorp to discuss the risks associated
with the compensation plans of Superior Bancorp and its
subsidiaries. Superior Bancorp or its subsidiaries maintains
incentive compensation plans for its senior officers, including
the named executive officers, and also maintains plans or
arrangements for employees in various lines of business.
Named executive officers participate in the Management Incentive
Compensation Plan. Awards under this plan are contingent on
achieving a threshold level of financial and operational
performance. If the performance criteria are met, individual
awards are based upon a combination of corporate and individual
goals. The Compensation Committee believes that the inclusion in
the goals of targets for credit quality measures and regulatory
assessments of Superior Bank provide a sufficient balance to the
growth and earnings goals so that the plan does not encourage
the named executive officers to take unnecessary or excessive
risks that threaten the value of Superior Bancorp. The plan has
also been amended to provide that Superior Bank may recover any
payment made under the plan to any participant if the payment
was made on the basis of materially inaccurate financial
statements or other performance metric criteria (a
clawback provision).
Named executive officers also may participate in the 2008
Incentive Compensation Plan which provides for awards of stock
options, restricted stock, stock appreciation rights, dividend
equivalents, restricted stock units, and other stock-based
awards subject to certain limitations. The Compensation
Committee has the discretion to determine the types and terms of
awards, and the Compensation Committee will assess the risks
associated with such awards at the time of grant. The plan
provides for a forfeiture of awards for cause, as
defined by the Compensation Committee, or if the participant
engages in activity harmful to the interests of Superior
Bancorp. The Board of Directors has proposed that the
stockholders approve a 2010 Incentive Compensation Plan (see
Proposal Number Two) which contains the same provisions for
forfeiture and also includes a clawback provision.
The retail banking line of business has three incentive plans.
Business banking relationship managers receive awards based on
actual performance measured against established goals for loan
production, deposit growth, non-interest revenue, and referral
activity. Incentive awards are subject to reduction based on
substandard performance under the credit quality criteria.
Eligibility of a participant may be limited or eliminated based
on poor credit judgment, poor portfolio management or for other
reasons. Significant audit exceptions or significant delays in
implementing proper corrective action can reduce payouts by up
to 50%. The
Sell-A-Brate
program provides
((1) The information under this caption is not
soliciting material or material filed
with the SEC, except (a) as otherwise required by the rules
of the SEC or (b) as we may specifically so request or
specifically incorporate it by reference in a filing with the
SEC.
16
incentive payments based on achievement of quarterly branch
goals with respect to deposit and loan growth and sales of
investment products. The Loan Center
Sell-A-Brate
plan bases awards on the percentage of goals achieved with
respect to closed loans, processing efficiency, service quality,
and credit protection penetration. If credit quality for loans
underwritten by The Loan Center deteriorates, the program is
suspended. Each of these plans provides that any participant who
violates the letter or spirit of the plan to create the
appearance of achieving goals is subject to exclusion from
eligibility under the plan
and/or
termination of employment. Each of these plans was also amended
to add a clawback provision.
There are nine incentive plans for various positions in the
mortgage lending division. Payouts are based on formulas related
to the volume of closed loans. The plans contain provisions to
deduct from the payout any uncollected fees and fines resulting
from regulatory violations. Additionally, incentive payouts
could be reduced if minimum quality standards are not met. Each
of these plans was amended to add a clawback provision.
The Commercial Real Estate Lenders Incentive Compensation Plan
and Residential Construction Incentive Plan require achievement
of target portfolio growth and credit quality criteria. These
plans were amended to add a clawback provision.
The Florida Treasury Management Incentive Plan bases awards on
actual performance versus established annual goals for treasury
and analysis fee income. Significant audit exceptions
and/or
significant delays in implementing proper corrective action can
reduce payouts by up to 50%. Individual participants are subject
to having their eligibility to participate in the plan either
limited or eliminated based on poor performance or other reasons
considered to be detrimental to Superior. This plan was amended
to add a clawback provision.
Superior Financial Management, Inc., a subsidiary of Superior
Bank, maintains three plans. Non-licensed employees receive a
payment for referrals which result in appointments with
prospective customers. The plan details specific rules and does
not have any inherent risks to encourage employees to engage in
behavior that results in unintended negative consequences.
Licensed employees may receive an award based on the amount of
personal production and business referred to a financial
consultant. The incentive pay for a financial consultant is
based on revenue generated. Payouts under these plans may be
decreased for errors and compliance issues. A failure to
complete all continuing education may result in forfeiture of
incentives
and/or
termination. Each of these plans was amended to add a clawback
provision.
1st Community
Credit Corporation, a consumer finance company subsidiary of
Superior Bank, requires that each branch office make a profit
before the employees at that office may participate in its
incentive plan. An employee will automatically be disqualified
from receiving an incentive payment for each quarter in which it
is determined that the employee failed to follow company
policies, including, but not limited to, policies concerning
credit underwriting and documentation, delinquency and
charge-offs, sales of insurance products, and compliance with
consumer protection laws and regulations. Any attempt by an
employee to increase the amount of incentive payments at the
expense of the safety and soundness of the subsidiary will
subject the employee to disciplinary action, up to and including
termination of employment. Employees are also eligible to
receive a bonus related to origination of certain real estate
loans. Each of these plans was amended to add a clawback
provision.
Employees of Superior Bank are eligible to receive a bonus
payment for referring qualified job applicants who are hired and
remain employed by Superior Bank or its subsidiaries for at
least 60 days. This plan was amended to add a clawback
provision.
The Compensation Committee certifies that:
(1) It has reviewed with Superior Bancorps senior
risk officer the named executive officer compensation plans and
has made all reasonable efforts ensure that these plans do not
encourage the named executive officers to take unnecessary and
excessive risks that threaten the value of Superior Bancorp;
(2) It has reviewed with Superior Bancorps senior
risk officer the named executive officer compensation plans and
has made all reasonable efforts to limit any unnecessary risks
these plans pose to Superior Bancorp; and
17
(3) It has reviewed the employee compensation plans of
Superior Bancorp to eliminate any features of these plans that
would encourage the manipulation of reported earnings of
Superior Bancorp to enhance the compensation of any employee.
The foregoing report is submitted by the following directors of
Superior Bancorp, comprising all of the members of the
Compensation Committee of the Board of Directors as of
December 31, 2009.
John C. Metz, Chairman
Mark A. Lee
Charles W. Roberts, III
Summary
of Cash and Certain Other Compensation
The following table presents certain information concerning
compensation paid or accrued for services rendered to Superior
Bancorp in all capacities during the year ended
December 31, 2009, for the named executive officers.
Summary
Compensation Table
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Change in
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Pension
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Non-Equity
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Value and
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Incentive
|
|
Nonqualified
|
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|
|
|
|
|
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Stock
|
|
Option
|
|
Plan
|
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Deferred
|
|
All Other
|
|
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Name and Principal
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|
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Salary
|
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Bonus
|
|
Awards
|
|
Awards
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Compensation
|
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Compensation
|
|
Compensation
|
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Total
|
Position Held
|
|
Year
|
|
($)
|
|
($)
|
|
($)(1)
|
|
($)(1)
|
|
($)
|
|
($)
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|
($)(2)
|
|
($)
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|
C. Stanley Bailey
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2009
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|
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$
|
504,039
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
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$
|
53,489
|
|
|
$
|
557,528
|
|
Chairman,
|
|
|
2008
|
|
|
$
|
475,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
43,377
|
|
|
$
|
518,377
|
|
President and CEO
|
|
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2007
|
|
|
$
|
450,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
108,000
|
|
|
|
|
|
|
$
|
39,350
|
|
|
$
|
597,350
|
|
C. Marvin Scott
|
|
|
2009
|
|
|
$
|
409,615
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
39,966
|
|
|
$
|
449,581
|
|
Vice Chairman
|
|
|
2008
|
|
|
$
|
370,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
77,700
|
|
|
|
|
|
|
$
|
33,234
|
|
|
$
|
480,934
|
|
|
|
|
2007
|
|
|
$
|
350,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
84,000
|
|
|
|
|
|
|
$
|
35,058
|
|
|
$
|
469,058
|
|
Rick D. Gardner
|
|
|
2009
|
|
|
$
|
350,769
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
17,034
|
|
|
$
|
367,803
|
|
Vice Chairman
|
|
|
2008
|
|
|
$
|
320,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
67,200
|
|
|
|
|
|
|
$
|
20,245
|
|
|
$
|
407,445
|
|
|
|
|
2007
|
|
|
$
|
300,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
72,000
|
|
|
|
|
|
|
$
|
22,068
|
|
|
$
|
394,068
|
|
James A. White
|
|
|
2009
|
|
|
$
|
309,904
|
|
|
|
|
|
|
|
|
|
|
$
|
8,750
|
|
|
|
|
|
|
|
|
|
|
$
|
15,896
|
|
|
$
|
334,550
|
|
Chief
|
|
|
2008
|
|
|
$
|
71,923
|
|
|
|
|
|
|
|
|
|
|
$
|
50,347
|
|
|
$
|
15,104
|
|
|
|
|
|
|
$
|
14,069
|
|
|
$
|
151,443
|
|
Financial Officer
|
|
|
2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
William Caughran
|
|
|
2009
|
|
|
$
|
192,308
|
|
|
|
|
|
|
|
|
|
|
$
|
5,833
|
|
|
|
|
|
|
|
$5,080
|
(3)
|
|
$
|
7,135
|
|
|
$
|
210,356
|
|
General
|
|
|
2008
|
|
|
$
|
175,000
|
|
|
|
|
|
|
$
|
39,440
|
|
|
$
|
10,380
|
|
|
$
|
38,500
|
|
|
|
$6,707
|
(3)
|
|
$
|
6,785
|
|
|
$
|
276,812
|
|
Counsel
|
|
|
2007
|
|
|
$
|
165,000
|
|
|
$
|
215,099
|
|
|
|
|
|
|
$
|
34,169
|
|
|
|
|
|
|
|
$3,480
|
(3)
|
|
$
|
5,656
|
|
|
$
|
423,404
|
|
|
|
|
(1) |
|
Amounts in these columns are the aggregate grant date fair value
of stock and options awarded to the named executive officer
during the years indicated. The key assumptions used in
determining the amounts in this column are disclosed in
Note 12 to the consolidated financial statements of
Superior Bancorp and its subsidiaries contained in Superior
Bancorps Annual Report on Form
10-K for the
year ended December 31, 2009. |
|
(2) |
|
Represents the following expenses paid or reimbursed by Superior
Bancorp for executive officers in 2009:
Mr. Bailey country club expenses of $11,661,
automobile expenses of $19,294, life insurance premiums of
$7,011, reimbursement of $3,193 related to the payment of taxes,
company contributions of approximately $9,896 to Superior
Bancorps defined contribution retirement plans, and
reimbursement of $2,434 of expenses in connection with the
companys use of an airplane owned by an entity controlled
by Mr. Bailey; Mr. Scott country club
expenses of $5,745, automobile expenses of $19,222, life
insurance premiums of $2,773; reimbursement of $2,330 related to
the payment of taxes, and company contributions of approximately
$9,896 to Superior Bancorps defined contribution
retirement plans; Mr. Gardner automobile
expenses of $5,973, life insurance premiums of $1,025,
reimbursement of $140 related to the payment of taxes, and
company contributions of approximately $9,896 to Superior
Bancorps defined contribution retirement plans; |
18
|
|
|
|
|
Mr. White automobile expenses of $6,000, and
company contributions of approximately $9,896 to Superior
Bancorps defined contribution retirement plans; and
Mr. Caughran company contributions of
approximately $7,135 to Superior Bancorps defined
contribution retirement plans. |
|
(3) |
|
Represents the net change in the actuarial value of
Mr. Caughrans accumulated benefit under the Community
Bancshares, Inc. Revised Pension Plan for the years indicated. |
Grants of
Plan-Based Awards
The following table contains information concerning compensation
granted to the named executive officers during 2009 pursuant to
incentive compensation plans of Superior Bancorp.
Grants of
Plan-Based Awards
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All Other
|
|
|
All Other
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock Awards:
|
|
|
Option Awards:
|
|
|
|
|
|
|
|
|
|
|
|
|
Estimated Future Payouts
|
|
|
Estimated Future Payouts
|
|
|
Number of
|
|
|
Number of
|
|
|
Exercise or
|
|
|
Grant Date
|
|
|
|
|
|
|
Under Non-Equity Incentive Plan
|
|
|
Under Equity Incentive
|
|
|
Shares of
|
|
|
Securities
|
|
|
Base Price
|
|
|
Fair Value
|
|
|
|
|
|
|
Awards
|
|
|
Plan Awards
|
|
|
Stock or
|
|
|
Underlying
|
|
|
of Option
|
|
|
of Stock
|
|
|
|
Grant
|
|
|
Threshold
|
|
|
Target
|
|
|
Maximum
|
|
|
Threshold
|
|
|
Target
|
|
|
Maximum
|
|
|
Units
|
|
|
Options
|
|
|
Awards
|
|
|
and Option
|
|
Name
|
|
Date
|
|
|
($)
|
|
|
($)(1)
|
|
|
($)
|
|
|
(#)
|
|
|
(#)
|
|
|
(#)
|
|
|
(#)
|
|
|
(#)
|
|
|
($/Sh)
|
|
|
Awards
|
|
|
C. Stanley Bailey
|
|
|
1/28/09
|
|
|
|
N/A
|
|
|
$
|
250,000
|
|
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
C. Marvin Scott
|
|
|
1/28/09
|
|
|
|
N/A
|
|
|
$
|
195,000
|
|
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rick D. Gardner
|
|
|
1/28/09
|
|
|
|
N/A
|
|
|
$
|
168,000
|
|
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
James A. White
|
|
|
1/28/09
|
|
|
|
N/A
|
|
|
$
|
145,000
|
|
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7/22/09
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
N/A
|
|
|
|
6,000
|
(2)
|
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
$
|
2.91
|
|
|
$
|
8,750
|
|
William Caughran
|
|
|
1/28/09
|
|
|
|
N/A
|
|
|
$
|
74,000
|
|
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7/22/09
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
N/A
|
|
|
|
4,000
|
(2)
|
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
$
|
2.91
|
|
|
$
|
5,833
|
|
|
|
|
(1) |
|
Amounts represent target awards under the 2009 Management
Incentive Compensation Plan, which equal a specified percentage
of base salary. The plan does not have threshold or maximum
amounts. Plan awards of up to 125% of target could be paid for
extraordinary performance and amounts significantly below target
could be awarded for less than adequate performance. No payments
were made in 2010 to the named executive officers under the 2009
Management Incentive Plan as shown in the summary compensation
table. |
|
(2) |
|
The number of shares of Superior Bancorp common stock which may
be acquired pursuant to the exercise of stock options granted
during 2009. |
Employment
Agreements
Employment agreements with the named executive officers are
described below. However, each of the named executive officers
has agreed that the provisions of his employment agreement will
be modified to the extent necessary in order to comply with the
limitations on executive compensation resulting from Superior
Bancorps participation in the CPP. See Restrictions
on Executive Compensation.
C. Stanley Bailey. Mr. Bailey and
Superior Bancorp entered into an Employment Agreement dated
January 24, 2005, which was replaced by an Amended and
Restated Employment Agreement dated December 29, 2008. The
amended agreement retained all of the provisions of the original
agreement except for changes which Superior Bancorp was advised
were required in order to comply with Section 409A of the
Code. Superior Bancorp agreed to employ Mr. Bailey as
Chairman and Chief Executive Officer of Superior Bancorp and
Superior Bank for a three-year term which automatically renews
for successive one-year extensions on January 31 of each year
unless either party gives the other 30 days prior
written notice of nonrenewal. Mr. Bailey is entitled to an
annual base salary of no less than $400,000 and an annual target
bonus of 50% of his base salary, subject to the achievement of
agreed-upon
performance goals. Mr. Bailey is also entitled to
participate in other bonus or long-term incentive plans
applicable to similarly situated executive officers, and to
participate in such insurance, medical and other employee
benefit plans as may be provided to such executive officers.
Superior Bancorp is required to provide Mr. Bailey with
certain other benefits, including a term life insurance policy
in the amount of at least $1 million, an automobile and
customary automobile-related benefits, and initiation fees, dues
and assessments for approved club memberships.
19
Mr. Bailey may not engage in various activities competitive
with Superior Bancorps business during the term of his
employment and for one year after Mr. Bailey ceases to be
employed by Superior Bancorp.
C. Marvin Scott and Rick D.
Gardner. Mr. Scott and Mr. Gardner have
entered into employment agreements with Superior Bancorp, which
were amended on December 29, 2008 to comply with Code
Section 409A, providing for terms substantially identical
to those described above with respect to Mr. Bailey, except
that (a) Mr. Scotts base salary is to be no less
than $300,000 and Mr. Gardners base salary is to be
no less than $250,000; and (b) Superior Bancorp is
obligated to provide term life insurance policies to
Mr. Scott in the amount of $750,000 and to Mr. Gardner
in the amount of $600,000. Mr. Scott and Mr. Gardner
are to serve as President and Chief Operating Officer,
respectively, and as members of the boards of directors of
Superior Bancorp and Superior Bank.
Stock Option Grants to Messrs. Bailey, Scott and
Gardner. As required by their respective
employment agreements, Superior Bancorp granted as of
January 24, 2005, options to acquire 177,992 shares of
common stock to Mr. Bailey, 88,996 shares to
Mr. Scott, and 88,996 shares to Mr. Gardner, each
at an exercise price of $32.68 per share, the market price on
the date of grant (share numbers and exercise price have been
adjusted to reflect the effects of a
1-for-4
reverse stock split in 2008). The options have a ten-year term.
These options were subject to a vesting schedule, but are
currently fully vested.
James A. White. Superior Bancorp and
Mr. White are parties to an Agreement dated
September 8, 2008 which provides that Mr. White will
be employed by Superior Bancorp until September 8, 2011.
Mr. White is entitled to (i) receive a base salary of
$275,000, subject to review, (ii) participate in bonus and
incentive compensation plans on the same basis as other
executive officers of Superior Bancorp, and (iii) receive
an automobile allowance. The agreement also provides that
Mr. White will be provided with temporary housing for up to
12 months, will be reimbursed for reasonable moving
expenses, and will be paid a relocation bonus of $25,000, with
one-half of such bonus to be paid upon initial employment and
the remainder to be paid once Mr. White has purchased a
residence in the Birmingham, Alabama, area. The agreement
provides that management would recommend that Mr. White be
granted options to purchase 25,000 shares of Superior
Bancorp common stock. The Compensation Committee granted these
options on October 22, 2008.
William H. Caughran. In connection with the
acquisition of Community Bancshares, Inc., Superior Bank entered
into an agreement with Mr. Caughran dated August 31,
2006 which provides that Mr. Caughran will serve as the
General Counsel of Superior Bancorp and Superior Bank. In
accordance with the terms of the agreement, Mr. Caughran
was paid a bonus of $215,099 in November 2007. No other benefits
are due to Mr. Caughran pursuant to that agreement.
The provisions of each of these agreements relating to
termination of the individuals employment are discussed
below under the caption Potential Payouts Upon Termination
of Employment or Change in Control of Superior Bancorp.
20
Outstanding
Equity Awards at Year End 2008.
The following table provides information with respect to equity
awards held by the named executive officers at December 31,
2009.
Outstanding
Equity Awards at Fiscal Year-End
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option Awards
|
|
|
|
|
|
Stock Awards
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Incentive
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Plan
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Awards:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity
|
|
|
Market or
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Incentive
|
|
|
Payout
|
|
|
|
|
|
|
|
|
|
Equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Plan
|
|
|
Value
|
|
|
|
|
|
|
|
|
|
Incentive
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Awards:
|
|
|
of
|
|
|
|
|
|
|
|
|
|
Plan
|
|
|
|
|
|
|
|
|
|
|
|
Market
|
|
|
Number of
|
|
|
Unearned
|
|
|
|
|
|
|
|
|
|
Awards:
|
|
|
|
|
|
|
|
|
Number
|
|
|
Value of
|
|
|
Unearned
|
|
|
Shares,
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
|
|
|
|
|
|
of Shares
|
|
|
Shares or
|
|
|
Shares,
|
|
|
Units or
|
|
|
|
Number of
|
|
|
Number of
|
|
|
Securities
|
|
|
|
|
|
|
|
|
or Units
|
|
|
Units of
|
|
|
Units or
|
|
|
Other
|
|
|
|
Securities
|
|
|
Securities
|
|
|
Underlying
|
|
|
|
|
|
|
|
|
of Stock
|
|
|
Stock
|
|
|
Other
|
|
|
Rights
|
|
|
|
Underlying
|
|
|
Underlying
|
|
|
Unexercised
|
|
|
Option
|
|
|
|
|
|
That
|
|
|
That
|
|
|
Rights
|
|
|
That Have
|
|
|
|
Unexercised
|
|
|
Unexercised
|
|
|
Unearned
|
|
|
Exercise
|
|
|
Option
|
|
|
Have Not
|
|
|
Have Not
|
|
|
That Have
|
|
|
Not
|
|
|
|
Options (#)
|
|
|
Options (#)
|
|
|
Options
|
|
|
Price
|
|
|
Expiration
|
|
|
Vested
|
|
|
Vested
|
|
|
Not Vested
|
|
|
Vested
|
|
Name
|
|
Exercisable
|
|
|
Unexercisable
|
|
|
(#)
|
|
|
($)
|
|
|
Date
|
|
|
(#)
|
|
|
(#)
|
|
|
(#)
|
|
|
($)
|
|
|
C. Stanley Bailey
|
|
|
177,992
|
|
|
|
|
|
|
|
|
|
|
$
|
32.68
|
|
|
|
2015
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
C. Marvin Scott
|
|
|
88,996
|
|
|
|
|
|
|
|
|
|
|
$
|
32.68
|
|
|
|
2015
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rick D. Gardner
|
|
|
88,996
|
|
|
|
|
|
|
|
|
|
|
$
|
32.68
|
|
|
|
2015
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
James A. White
|
|
|
|
|
|
|
25,000
|
(1)
|
|
|
|
|
|
$
|
5.41
|
|
|
|
2018
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6,000
|
(1)
|
|
|
|
|
|
$
|
2.91
|
|
|
|
2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
William Caughran
|
|
|
|
|
|
|
2,500
|
(2)
|
|
|
|
|
|
$
|
39.96
|
|
|
|
2017
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,750
|
(1)
|
|
|
|
|
|
$
|
10.14
|
|
|
|
2018
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,000
|
(1)
|
|
|
|
|
|
$
|
2.91
|
|
|
|
2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,062
|
(3)
|
|
$
|
3,494
|
|
|
|
|
(1) |
|
These options will vest upon the earlier of five years from the
date of grant or (a) 50% vesting upon Superior Bancorp
common stock reaching a per share market value price of $13.25
and (b) 50% vesting upon Superior Bancorp common stock
reaching a per share market value price of $16.25. |
|
(2) |
|
These options will vest upon the earlier of five years from the
date of grant or (a) 50% vesting upon Superior Bancorp
common stock reaching a per share market value price of $48.00
and (b) 50% vesting upon Superior Bancorp common stock
reaching a per share market value price of $56.00. |
|
(3) |
|
These shares of restricted stock vested on January 22,
2010. The market value shown for the restricted stock is based
on a closing price of $3.29 per share on December 31, 2009. |
Option
Exercises and Stock Vested
The following table provides information with respect to options
exercised by the named executive officers or restricted stock
vested for the named executive officers during 2009:
Option
Exercises and Stock Vested
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option Awards
|
|
|
Stock Awards
|
|
|
|
Number of Shares
|
|
|
|
|
|
Number of Shares
|
|
|
|
|
|
|
Acquired on
|
|
|
Value Realized on
|
|
|
Acquired on Vesting
|
|
|
Value Realized on
|
|
Name
|
|
Exercise (#)
|
|
|
Exercise ($)
|
|
|
(#)
|
|
|
Vesting ($)
|
|
|
C. Stanley Bailey
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
C. Marvin Scott
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rick D. Gardner
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
James A. White
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
William Caughran
|
|
|
|
|
|
|
|
|
|
|
1,063
|
|
|
$
|
3,891
|
|
21
Pension
Benefits
The following table provides information with respect to
retirement benefits of the named executive officers pursuant to
defined benefit plans and related supplemental executive
retirement plans maintained by Superior Bancorp.
Pension
Benefits
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
Present Value
|
|
|
|
|
|
|
|
|
Years of Credited
|
|
|
of Accumulated
|
|
|
Payments During
|
|
|
|
|
|
Service
|
|
|
Benefit
|
|
|
Last Fiscal Year
|
|
Name
|
|
Plan Name
|
|
(#)
|
|
|
($)
|
|
|
($)
|
|
|
C. Stanley Bailey
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
C. Marvin Scott
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rick D. Gardner
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
James A. White
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
William Caughran
|
|
Community
Bancshares, Inc.
Revised Pension Plan
|
|
|
5
|
(1)
|
|
$
|
60,505
|
(2)
|
|
|
|
|
|
|
|
(1) |
|
Mr. Caughrans years of credited service are less than
his actual years of service because the Community Bancshares,
Inc. Revised Pension Plan was frozen as of December 31,
2003 and accrual of credited service ceased at that time. |
|
(2) |
|
The key assumptions used in determining the present value of
Mr. Caughrans benefit are the same assumptions used
to calculate the plans liabilities as disclosed in
Note 20 to the consolidated financial statements of
Superior Bancorp and its subsidiaries contained in Superior
Bancorps Annual Report on
Form 10-K
for the year ended December 31, 2009. |
Superior Bancorp became the sponsor of the Community Bancshares,
Inc. Revised Pension Plan upon its merger with Community
Bancshares in November 2006. The plan was frozen as of
December 31, 2003 such that no new participants may enter
the plan and no current participants may accrue any additional
benefits under the plan. The amount of the retirement benefit
for a participant is determined by the length of the
participants credited service under the plan and his
average monthly earnings for the five highest compensated,
consecutive calendar years of the participants final ten
consecutive calendar years of employment. Compensation covered
by the plan is total compensation, including bonuses, overtime
or other forms of extraordinary compensation, subject to the
limitation on compensation imposed by Section 401(a)(17) of
the Code. The amount of compensation taken into account in
determining a participants retirement benefits was also
frozen as of December 31, 2003.
Nonqualified
Deferred Compensation
None of the named executive officers participate in any deferred
compensation plans.
Potential
Payouts Upon Termination of Employment or Change in Control of
Superior Bancorp
As discussed above under the caption Employment
Agreements, each of Mr. Bailey, Mr. Scott,
Mr. Gardner and Mr. White are parties to an employment
agreement with Superior Bancorp. In addition, each of
Mr. White and Mr. Caughran is a party to a change in
control agreement with Superior Bancorp. The following
paragraphs summarize the payments and benefits which would have
been due to the named executive officers pursuant to the terms
of their agreements if the employment of such officers had
terminated on December 31, 2009. However, Superior
Bancorps ability to make payments to certain departing
executives is restricted as a result of its participation in the
CPP. The named executive officers have agreed that their
employment contracts are modified to the extent necessary to
comply with these restrictions. See Restrictions on
Executive Compensation.
Messrs. Bailey, Scott and Gardner. If the
employment of any of Mr. Bailey, Mr. Scott or
Mr. Gardner is terminated other than for Cause (as defined)
or as a result of his death or disability or following a change
in control, or if any such executive terminates the agreement as
a result of certain adverse changes in his functions, duties or
22
responsibilities or of another material breach by Superior
Bancorp of its obligations, the executive is entitled to
continued compensation at the then-current rate (including bonus
compensation) for the then-remaining term of the agreement,
provided that the executive may elect to receive such payment in
a lump sum discounted to present value using a 6% discount rate,
and to the continuation of other benefits during such remaining
term. If the executives employment is terminated as a
result of his disability, he is entitled to continued
compensation at his then-current rate (including bonus
compensation) and the continuation of other benefits for one
year. If the executives employment by Superior Bancorp is
terminated within two years following a Change in Control (as
defined), other than for Cause or as a result of his death,
disability or retirement, or if the executive terminates such
employment following the occurrence of specified events within
two years after a Change in Control, the executive will be
entitled to receive a lump sum payment equal to three times the
sum of (i) his then-current base salary plus (ii) the
target bonus he would have been entitled to receive, and he will
be entitled to receive other benefits specified in the
agreement. In addition, he will be entitled to a
gross-up
payment equal to the amount of any excise taxes imposed upon him
as a result of such payments upon termination following a Change
in Control.
If the employment of Mr. Bailey, Mr. Scott and
Mr. Gardner had terminated as of December 31, 2009,
other than for Cause, death or disability or following a Change
in Control, Superior Bancorp would have been obligated to make
payments of approximately $968,657 to Mr. Bailey; $949,290
to Mr. Scott; and $844,676 to Mr. Gardner, assuming
each individual elected to be paid in a lump sum discounted to
present value. Superior Bancorp would also be obligated to
continue the executives participation in all benefit
programs through January 24, 2012 at an approximate cost of
$26,037 for Mr. Bailey, $18,172 for Mr. Scott, and
$16,009 for Mr. Gardner and to transfer to each executive
title to the company automobile assigned to the executive at an
approximate cost of $62,908 for Mr. Bailey, $63,809 for
Mr. Scott, and $2,470 for Mr. Gardner. The costs for
continued benefits assume that there are no premium increases
under the companys insurance programs prior to
January 24, 2012.
If the employment of Messrs. Bailey, Scott and Gardner had
terminated as of December 31, 2009, following a Change in
Control, Superior Bancorp or its successor would have been
obligated to make payments of the following amounts: $2,467,708
to Mr. Bailey; $2,374,583 to Mr. Scott; and $2,108,667
to Mr. Gardner. Additional
gross-up
payments would also be made under the terms of the agreements of
$390,093 to Mr. Bailey, $391,361 to Mr. Scott, and
$355,161 to Mr. Gardner. Superior Bancorp or its successor
would also be obligated until December 31, 2012 to provide
each executive with life insurance, medical insurance, dental
insurance and accident and disability insurance substantially
equivalent to what executive received prior to the termination
of his employment at an approximate cost of $39,056 for
Mr. Bailey, $27,259 for Mr. Scott and $24,014 for
Mr. Gardner and to transfer to each executive title to the
company automobile assigned to the executive at an approximate
cost of $62,908 for Mr. Bailey, $63,809 for Mr. Scott,
and $2,470 for Mr. Gardner. The costs for continued
benefits assume that there are no premium increases under the
companys insurance programs prior to December 31,
2012.
Mr. White. Pursuant to the terms of his
employment agreement, if Superior Bancorp had terminated
Mr. Whites employment on December 31, 2009 for
any reason other than Cause (as defined in the agreement) or if
Mr. White had terminated his employment as a result of
certain adverse changes in his functions, duties or
responsibilities, Superior Bancorp would have been obligated to
pay Mr. White $590,685, the amount of his base salary from
the date of his termination of employment through
September 8, 2011.
Pursuant to the terms of his change in control agreement,
Mr. White would be entitled to certain benefits in the
event that, following a Change in Control (as defined) of
Superior Bancorp, his employment is terminated involuntarily
without Cause (as defined) or voluntarily by Mr. White
after a material diminution in his compensation, authority or
duties or a material change in the geographic location at which
he must perform services. The benefits to Mr. White would
be entitled include a lump sum payment of 2.99 times his base
salary and target bonus, immediate vesting of all unvested
amounts under benefit plans, and continued participation in
Superior Bancorps welfare benefit plans for three years.
However, the change in control agreement provides for a
reduction of payments and benefits necessary to avoid imposition
of the excise tax under Section 4999 of the Code.
If the employment of Mr. White had terminated as of
December 31, 2009 following a Change in Control, Superior
Bancorp or its successor would have been obligated to make
payments and provide benefits to Mr. White, the present
value of which would be approximately $843,780. In addition,
Mr. White would have become vested in options to purchase
31,000 shares of Superior Bancorp common stock at a cost to
Superior Bancorp of $37,089.
23
Superior Bancorp would also incur expenses of $18,941 in
connection with continuing certain welfare insurance benefits
for Mr. White for three years. The cost for continued
welfare insurance benefits assumes that there are no premium
increases under the companys insurance programs.
Mr. Caughran. Mr. Caughrans
change in control agreement provides for benefits similar to
those described above for Mr. White, except that
Mr. Caughrans lump sum payment is equal to 1.5 times
his base salary and target bonus, and his participation in the
companys insurance programs is for eighteen months. If the
employment of Mr. Caughran had terminated as of
December 31, 2009 following a Change in Control, Superior
Bancorp or its successor would have been obligated to pay
Mr. Caughran $557,667. In addition, Mr. Caughran would
have become vested in options to purchase 9,750 shares of
Superior Bancorp common stock at a cost to Superior Bancorp of
$13,460. Superior Bancorp would also incur expenses of $1,044 in
connection with continuing certain welfare insurance benefits
for Mr. Caughran for eighteen months. The cost for
continued welfare insurance benefits assumes that there are no
premium increases under the companys insurance programs.
Equity
Compensation Plan Information
The following table summarizes information as of
December 31, 2009, relating to our equity compensation
plans pursuant to which grants of options, restricted stock
units or other rights to acquire shares may be granted in the
future.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of Shares
|
|
|
|
|
|
|
|
|
|
Remaining Available for
|
|
|
|
Number of Securities
|
|
|
|
|
|
Future Issuance Under
|
|
|
|
to be Issued Upon
|
|
|
Weighted-Average
|
|
|
Equity Compensation
|
|
|
|
Exercise of
|
|
|
Exercise Price of
|
|
|
Plans (Excluding
|
|
|
|
Outstanding Options,
|
|
|
Outstanding Options,
|
|
|
Securities Reflected
|
|
Plan Category
|
|
Warrants and Rights
|
|
|
Warrants and Rights
|
|
|
in Column (a))
|
|
|
|
(a)
|
|
|
(b)
|
|
|
(c)
|
|
|
Equity Compensation Plans Approved by Security Holders(1)
|
|
|
535,538
|
|
|
$
|
22.07
|
|
|
|
132,459
|
|
Equity Compensation Plans not Approved by Security Holders(2)
|
|
|
391,025
|
|
|
$
|
33.39
|
|
|
|
53,011
|
|
Total
|
|
|
926,563
|
|
|
$
|
26.85
|
|
|
|
185,470
|
|
|
|
|
(1) |
|
Excludes 74,301 shares of restricted stock granted under
the Third Amended and Restated 1998 Stock Incentive Plan of The
Banc Corporation. |
|
(2) |
|
Includes options covering (a) 390,735 shares issued to
Messrs. Bailey, Scott and Gardner and three other
management employees in connection with their employment
agreements, (b) 53,011 shares reserved for issuance to
other new management hires, and (c) 290 shares
authorized and issued under the Commerce Bank of Alabama Stock
Option Plan, which we assumed in the merger with Commerce Bank
of Alabama in November 1998. We do not intend to grant any
additional options under this plan. |
2008 Incentive Compensation Plan. The purpose
of the Superior Bancorp 2008 Incentive Compensation Plan is to
promote the success and enhance the value of Superior Bancorp by
linking the personal interests of its directors, officers and
employees to those of Superior Bancorps stockholders and
by providing such individuals with an incentive for outstanding
performance to generate superior returns to Superior
Bancorps stockholders. The plan is further intended to
provide flexibility to Superior Bancorp in its ability to
motivate, attract, and retain the services of directors,
officers and employees upon whose judgment, interest, and
special effort the successful conduct of Superior Bancorps
operation is largely dependent. The plan authorizes the grant of
incentive stock options, nonqualified stock options and other
awards, including stock appreciation rights, restricted stock
and performance shares. The plan covers 300,000 shares of
our common stock. As of December 31, 2009, the Compensation
Committee has granted options to purchase 205,850 shares of
our common stock which remain outstanding and restricted stock
awards covering 9,000 shares of our common stock which
remain outstanding. Those shares may be, in whole or in part,
authorized but unissued shares or issued shares that we have
reacquired.
Our Compensation Committee, which administers the Superior
Bancorp 2008 Incentive Compensation Plan, may grant options or
other awards to employees, officers and directors of Superior
Bancorp and its affiliates. The
24
Compensation Committee, subject to the approval of the Board of
Directors and the provisions of the plan, has full power to
determine the types of awards to be granted, to select the
individuals to whom awards will be granted, to fix the number of
shares that each grantee may purchase, to set the terms and
conditions of each award, and to determine all other matters
relating to the plan.
Third Amended and Restated 1998 Stock Incentive
Plan. Superior Bancorp maintains the Third
Amended and Restated 1998 Stock Incentive Plan of The Banc
Corporation, but does not intend to make any additional awards
under this plan. The plan authorizes the grant of incentive
stock options, nonqualified stock options and other awards,
including stock appreciation rights, restricted stock and
performance shares. As of December 31, 2009, the
Compensation Committee has granted options to purchase
327,528 shares of our common stock which remain outstanding
and restricted stock awards covering 65,301 shares of our
common stock which remain outstanding.
The Commerce Bank of Alabama Stock Incentive Compensation
Plan. We assumed the Commerce Bank of Alabama
Incentive Compensation Plan in our acquisition of Commerce Bank
of Alabama on November 6, 1998. This plan authorized the
grant of incentive and nonqualified options to purchase common
stock of Superior Bancorp. As of December 31, 2009, there
were options outstanding under this plan to purchase
290 shares of common stock. We have not granted and do not
intend to grant any additional options under this plan.
Management
Matters
There are no arrangements or understandings known to us between
any of our directors, nominees for director or executive
officers and any other person pursuant to which any such person
was or is to be nominated or elected as a director or an
executive officer except as otherwise disclosed herein. The
employment agreements for Mr. Bailey, Mr. Scott and
Mr. Gardner provide that they will be nominated to serve as
directors of Superior Bancorp.
Compensation
Committee Interlocks and Insider Participation
The Compensation Committee comprises Messrs. Metz, Lee and
Roberts. None of the members of the Compensation Committee is a
former or current officer or employee of Superior Bancorp or any
of its subsidiaries.
Certain
Transactions and Relationships
Superior Bancorp has a written policy concerning transactions
with its directors and their family members. The policy provides
that neither Superior Bancorp nor its subsidiaries will make
payments to, or for the benefit of, any non-employee director or
his family members totaling more than $60,000 per year in direct
compensation, other than board or committee fees and payments to
family members who are non-executive employees of Superior
Bancorp or its subsidiaries. The policy also provides that
Superior Bancorp will meet or exceed the requirements of the
NASDAQ Stock Market with respect to director independence. The
NASDAQ Stock Market requirements provide that a director will
not be considered independent if such director (or an immediate
family member of such director) has received more than $120,000
in direct compensation during any twelve-month period within the
last three years. The policy does not prohibit business
relationships between Superior Bancorp or its subsidiaries and
business entities affiliated with its directors except to the
extent that such relationships would cause less than a majority
of Superior Bancorps directors to be independent under
NASDAQ rules.
Superior Bancorp and Superior Bank have entered into
transactions with certain directors or officers of Superior
Bancorp or their affiliates. Such transactions were made in the
ordinary course of business on substantially the same terms and
conditions, including interest rates and collateral, as those
prevailing at the same time for comparable transactions with
other customers, and did not, in the opinion of management
involve more than normal credit risk or present other
unfavorable features.
Superior Bancorp regularly monitors its business dealings and
those of its directors and executive officers to determine
whether any existing or proposed transactions would require
proxy disclosure under Exchange Act guidelines. Pursuant to such
reviews, Superior Bancorp is disclosing the following
transactions.
25
The Mailon Kent Insurance Agency received commissions of
approximately $187,000 from the sale of insurance to Superior
Bancorp during 2009. James Mailon Kent, Jr., a director of
Superior Bancorp, is the owner of the Mailon Kent Insurance
Agency.
On July 24, 2007, Superior Bank sold a branch office
building in Huntsville, Alabama to a limited liability company
of which Peter Lowe, a director of Superior Bancorp, is a
member, for $3,000,000. The limited liability company then
leased the building back to Superior Bank. The initial term of
the lease is 14 years and may be renewed, at Superior
Banks option, for three additional terms of five years
each. The amount of the monthly lease payments to be made by
Superior Bank is $19,500 for the first year of the lease and
increases annually until it reaches $26,881 per month in year
14. Rent for the renewal terms is to be determined based on
appraisals of the property.
On January 30, 2008, Superior Bank entered into agreements
with a limited liability company of which Mr. Lowe is a
member, pursuant to which the limited liability company
purchased office buildings located in Albertville and Athens,
Alabama for a total of $4,250,000. The limited liability company
then leased the building back to Superior Bank. The initial term
of each lease is 13 years and each lease may be renewed, at
Superior Banks option, for two additional terms of five
years each. The amount of the monthly lease payments to be made
by Superior Bank in the first year is $13,240 for the
Albertville office and $14,208 for the Athens office. These
amounts increase annually until the monthly lease payments reach
$17,393 for the Albertville office and $18,666 for the Athens
office in year 13. Rent for the renewal terms is to be
determined based on appraisals of the properties.
During 2009, the total amount of rent paid by Superior Bank
pursuant to the leases described above was $591,165.
On June 27, 2008, Superior Bank entered into a lease with a
limited liability company of which Robert R. Parrish, Jr,, a
director of Superior Bancorp, is a member. The initial term of
the lease is 10 years and commenced on September 1,
2009. The lease may be renewed, at the Banks option, for
two additional terms of five years each. The amount of the
monthly lease payments to be made by the Bank is $21,221 for the
first year of the lease and increases annually until it reaches
$27,688 per month in year 10. During 2009 the total amount of
rent paid by Superior Bank pursuant to this lease was $100,080.
Superior Bancorp believes that the foregoing transactions were
made on terms and conditions reflective of arms length
transactions.
PROPOSAL NUMBER
TWO
ADOPTION OF THE SUPERIOR BANCORP 2010
INCENTIVE COMPENSATION PLAN
At the Annual Meeting, our stockholders are being asked to
approve the Superior Bancorp 2010 Incentive Compensation Plan
(the 2010 Plan). Our Board has approved and adopted
the 2010 Plan, subject to approval by our stockholders.
The 2010 Plan is intended to succeed the Superior Bancorp 2008
Incentive Compensation Plan (the 2008 Plan).
Approval of the 2010 Plan by our stockholders will be considered
approval of the 2010 Plan for purposes of Sections 162(m)
and 422 of the Code.
The principal features of the 2010 Plan are summarized below,
but the summary is qualified in its entirety by reference to the
2010 Plan itself. The full text of the 2010 Plan is attached to
this Proxy Statement as Annex A.
Purpose
of the 2010 Plan
The purpose of the 2010 Plan is to provide additional incentive
for our directors and key employees to further the growth,
development and financial success of Superior Bancorp and its
subsidiaries by personally benefiting through the ownership of
Superior Bancorp common stock, or other rights which recognize
such growth, development and financial success. Our Board also
believes the 2010 Plan will enable us to obtain and retain the
services of directors and employees who are considered essential
to our long-range success by offering them an opportunity to own
stock and other rights that reflect our financial success. The
2010 Plan is also designed to permit
26
us to make cash- and equity-based awards intended to be
qualified performance-based compensation under
Section 162(m) of the Code and, accordingly, to be eligible
for deductibility by Superior Bancorp.
The 2010 Plan will become effective immediately upon stockholder
approval at the Annual Meeting.
Securities
Subject to the 2010 Plan
The maximum aggregate number of shares of common stock that may
be issued or transferred pursuant to awards under the 2010 Plan
is 1,500,000 shares plus an annual addition of shares on
January 1 of each year equal to two percent of the number of
shares of common stock of Superior Bancorp outstanding at that
time.
In the event of any termination, expiration, lapse or forfeiture
of an award granted under the 2010 Plan, the 2008 Plan, or the
Third Amended and Restated 1998 Stock Incentive Plan of The Banc
Corporation, any shares subject to the award at such time will
again be made available for future grants under the 2010 Plan.
In addition, the following shares of common stock shall become
available for purposes of the plan: (1) shares of common
stock previously owned or acquired by the employee or director
that are delivered to Superior Bancorp, or withheld from an
award, to pay the exercise price, (2) shares of common
stock that are delivered or withheld on options or stock
appreciation rights for purposes of satisfying a tax withholding
obligation, or (3) shares of common stock reserved for
issuance upon the grant of a stock appreciation right that
exceed the number of shares actually issued upon exercise.
To the extent permitted by applicable law or any applicable
exchange rule, shares issued in assumption of, or in
substitution for, any outstanding awards of any entity acquired
in any form of combination by the company or any of its
subsidiaries will not be counted against the shares available
for issuance under the 2010 Plan.
The shares of common stock covered by the 2010 Plan may be
treasury shares, authorized but unissued shares or shares
purchased in the open market. For purposes of the 2010 Plan, the
fair market value of a share of common stock as of any given
date will be the closing sales price for a share of common stock
on the stock exchange or national market system on which the
common stock is listed on such date or, if there is no closing
sales price for the common stock on the date in question, the
closing sales price for a share of common stock on the last
preceding date for which such quotation exists, as reported in
The Wall Street Journal. The closing sales price for a
share of common stock on the NASDAQ Global Market on
March 1, 2010 was $3.09, as reported in The Wall Street
Journal.
Eligibility
Our employees and our directors are eligible to receive awards
under the 2010 Plan. As of March 1, 2010, we had
approximately 839 employees, and we currently have
15 directors, 12 of whom are non-employee directors. No
employee or director is entitled to participate in the 2010 Plan
as a matter of right, nor does any such participation constitute
assurance of continued employment or service. Only those
employees and directors who are selected to receive grants by
the administrator of the 2010 Plan may participate in the 2010
Plan.
Awards
under the 2010 Plan
The 2010 Plan provides that the administrator may grant or issue
stock options, stock appreciation rights, restricted stock,
restricted stock units, dividend equivalents, performance awards
and other stock-based awards, or any combination thereof. Each
award will be set forth in a separate agreement with the person
receiving the award and will indicate the type, terms and
conditions of the award.
Non-Qualified Stock Options
(NQSOs). NQSOs will provide for the
right to purchase shares of common stock at a specified price,
and usually will become exercisable (as determined by the
administrator) in one or more installments after the grant date,
subject to the completion of the applicable vesting service
period or the attainment of pre-established performance goals.
NQSOs may be granted for any term specified by the
administrator, but the term may not exceed ten years.
Incentive Stock Options
(ISOs). ISOs will be designed to
comply with the applicable provisions of Section 422 of the
Code, and will be subject to certain restrictions contained in
the Code. Among such restrictions, ISOs must have an exercise
price per share that is not less than the fair market value of a
share of common stock on
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the date of grant, may only be granted to our employees and must
not be exercisable after a period of ten years measured from the
date of grant. However, if subsequently modified, ISOs may cease
to qualify for treatment as ISOs and be treated as NQSOs. The
total fair market value of shares (determined as of the
respective date or dates of grant) for which one or more options
granted to any employee (including all options granted under the
2010 Plan and all other option plans of Superior Bancorp or any
parent or subsidiary corporation) may for the first time become
exercisable as ISOs during any one calendar year may not exceed
the sum of $100,000. To the extent this limit is exceeded, the
options granted will be NQSOs. In the case of an ISO granted to
an individual who owns (or is deemed to own) more than 10% of
the total combined voting power of all classes of stock of
Superior Bancorp or any parent or subsidiary corporation, the
2010 Plan provides that the exercise price of an ISO must be at
least 110% of the fair market value of a share of common stock
on the date of grant, and the ISO must not be exercisable after
a period of five years measured from the date of grant. Like
NQSOs, ISOs usually will become exercisable (as determined by
the administrator) in one or more installments after the grant
date, subject to the completion of the applicable vesting
service period or the attainment of pre-established performance
goals.
Stock Appreciation Rights
(SARs). Stock appreciation rights
provide for the payment of an amount to the holder based upon
the excess (if any) of the fair market value of our common stock
over the exercise price of the SAR. The exercise price per share
of a SAR must be at least 100% of the fair market value of a
share of common stock on the date of grant. SARs under the 2010
Plan will be settled in cash or shares of common stock, or in a
combination of both, at the election of the administrator. SARs
may be granted in connection with stock options or other awards,
or separately. SARs may be granted for any term specified by the
administrator, but the term may not exceed ten years.
Restricted Stock. Restricted stock may be
issued at such price, if any, as may be determined by the
administrator and may be made subject to such restrictions
(including service vesting or vesting based on the satisfaction
of pre-established performance goals), as may be determined by
the administrator. In general, restricted stock may not be sold,
or otherwise hypothecated or transferred, until the vesting
restrictions and other restrictions applicable to such shares
lapse. A holder of restricted stock, unlike a holder of options
or restricted stock units, generally will have voting rights and
may receive dividends prior to the time when the restrictions
lapse.
Restricted Stock Units. Restricted stock units
provide for the issuance to the holder of shares of common
stock, subject to vesting conditions (including vesting based on
continued service or the satisfaction of pre-established
performance goals). The issuance of shares of common stock
pursuant to restricted stock units may be delayed beyond the
time at which the restricted stock units vest. Restricted stock
units may not be sold, or otherwise hypothecated or transferred,
and a holder of restricted stock units will not have voting
rights or dividend rights prior to the time when the vesting
conditions are satisfied and the shares are issued. Restricted
stock units generally will be forfeited, and the underlying
shares of stock will not be issued, if the applicable vesting
conditions are not met.
Dividend Equivalents. Dividend equivalents
represent the right to receive the value of the dividends per
share paid by us, if any, calculated with reference to a
specified number of shares of common stock. Dividend equivalent
rights may be granted in connection with full-value awards
granted under the 2010 Plan. Dividend equivalents may be paid in
cash or shares of common stock, or in a combination of both, at
the election of the administrator. No dividend equivalents will
be granted with respect to stock options or SARs.
Performance Awards. Performance awards may be
granted by the administrator to employees or directors based
upon, among other things, the contributions, responsibilities
and other compensation of the particular recipient. Generally,
the amount paid or distributed under performance awards will be
based on specific performance goals and may be paid in cash or
in shares of common stock, or in a combination of both, at the
election of the administrator. Performance awards may include
phantom stock awards that provide for payments based
upon the value of our common stock. Performance awards may also
include bonuses granted by the administrator, which may be
payable in cash or in shares of common stock, or in a
combination of both.
Other Stock-Based Awards. The administrator
may grant to employees or directors other stock-based awards. An
other stock-based awards means any type of equity-based or
equity-related award not otherwise described by the terms of the
2010 Plan. Payment of other stock-based awards may be made in
cash, in shares of common stock, or a combination of cash and
common stock.
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Section 162(m) Performance-Based
Awards. The administrator may designate employees
whose compensation for a given fiscal year may be subject to the
limit on deductible compensation imposed by Section 162(m)
of the Code. The administrator may grant to such employees and
other eligible employees awards under the 2010 Plan that are
paid, vest or become exercisable upon the achievement of
specified performance goals which are related to one or more
performance criteria, as applicable to Superior Bancorp or any
subsidiary, division, operating unit or individual. These
performance criteria include: net earnings (either before or
after interest, taxes, depreciation
and/or
amortization); gross or net sales or revenue; net income (either
before or after taxes); operating profit; cash flow (including,
but not limited to, operating cash flow and free cash flow);
return on assets; return on capital; return on
stockholders equity; return on sales; gross or net profit
or operating margin; costs; funds from operations; expense;
working capital; earnings per share; price per share of common
stock; regulatory ratings; market share; growth in loans
and/or other
assets; growth in deposits and various measures of credit
quality.
Performance goals established based on the performance criteria
may be measured either in absolute terms or as compared to any
incremental increase or decrease or as compared to the results
of a peer group. Except as provided by the administrator, the
achievement of each performance goal will be determined in
accordance with generally accepted accounting principles to the
extent applicable. At the time of grant, the administrator may
provide that objectively determinable adjustments will be made
for purposes of determining the achievement of one or more of
the performance goals established for an award. Any such
adjustments will be based on one or more of the following: items
related to a change in accounting principle; items relating to
financing activities; expenses for restructuring or productivity
initiatives; other non-operating items; items related to
acquisitions; items attributable to the business operations of
any entity we acquire during the performance period; items
related to the disposal of a business or segment of a business;
or items related to discontinued operations that do not qualify
as a segment of a business under GAAP.
Award Limits. The 2010 Plan provides that
awards covering not more than 500,000 shares or $1,000,000
may be granted to any individual in any calendar year, subject
to adjustment under certain circumstances in order to prevent
the dilution or enlargement of the potential benefits intended
to be made available under the 2010 Plan, as described below.
See Adjustments for Stock Splits, Recapitalizations and
Mergers below.
Vesting
and Exercise of Awards
The applicable award agreement will contain the period during
which the right to exercise the award in whole or in part vests,
including the events or conditions upon which the vesting of an
award may accelerate. No portion of an award which is not vested
at the holders termination of employment or termination of
directorship will subsequently become vested, except as may be
otherwise provided by the administrator either in the agreement
relating to the award or by action following the grant of the
award.
Generally, an option or SAR may only be exercised while such
person remains our employee or director or for a specified
period of time (up to the remainder of the award term) following
the holders termination of employment or directorship, as
applicable. An award may be exercised for any vested portion of
the shares subject to such award until the award expires.
Only whole shares of common stock may be purchased or issued
pursuant to an award. Any required payment for the shares
subject to an award will be paid in the form of cash or a check
payable to us in the amount of the aggregate purchase price.
However, the administrator may in its discretion and subject to
applicable laws allow payment through one or more of the
following:
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the delivery of certain shares of common stock owned by the
holder;
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the surrender of shares of common stock which would otherwise be
issuable upon exercise or vesting of the award;
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the delivery of property of any kind which constitutes good and
valuable consideration;
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with respect to options, a sale and remittance procedure
pursuant to which the holder will place a market sell order with
a broker with respect to the shares of common stock then
issuable upon exercise of the option, provided the broker timely
pays a sufficient portion of the net proceeds of the sale to us
in satisfaction of the
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option exercise price for the purchased shares plus all
applicable income and employment taxes we are required to
withhold by reason of such exercise; or
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any combination of the foregoing.
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Transferability
of Awards
Awards generally may not be sold, pledged, assigned or
transferred in any manner other than by will or by the laws of
descent and distribution or, subject to the consent of the
administrator, pursuant to a domestic relations order, unless
and until such award has been exercised, or the shares
underlying such award have been issued, and all restrictions
applicable to such shares have lapsed. Notwithstanding the
foregoing, awards other than ISOs may also be transferred to
certain family members and trusts or an entity owned by these
family members and trusts with the administrators consent.
Awards may be exercised, during the lifetime of the holder, only
by the holder or such permitted transferee.
2010 Plan
Benefits
No awards will be granted under the 2010 Plan until the 2010
Plan is approved by our stockholders. The future benefits that
will be received under the 2010 Plan by our current directors,
executive officers and all eligible employees are not currently
determinable. The benefits or amounts of awards which would have
been received had the 2010 Plan been in effect at
December 1, 2009 are not determinable at this time.
Adjustments
for Stock Splits, Recapitalizations and Mergers
In the event of any recapitalization, reclassification, stock
split, reverse stock split, reorganization, merger,
consolidation,
split-up,
spin-off or other transaction that affects our common stock, the
administrator of the 2010 Plan will equitably adjust any or all
of the following in order to prevent the dilution or enlargement
of the benefits or potential benefits intended to be made
available under the 2010 Plan or with respect to any award:
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the number and kind of shares of common stock (or other
securities or property) with respect to which awards may be
granted or awarded under the 2010 Plan;
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the limitation on the maximum number and kind of shares that may
be subject to one or more awards granted to any one individual
during any calendar year;
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the number and kind of shares of common stock (or other
securities or property) subject to outstanding awards under the
2010 Plan;
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the number and kind of shares of common stock (or other
securities or property) for which automatic grants are
subsequently to be made to non-employee directors; and
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the grant or exercise price with respect to any outstanding
award.
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Change in
Control
In the event of a Change in Control (as defined in the 2010
Plan), each outstanding award will be assumed, or substituted
for an equivalent award, by the successor corporation. If the
successor corporation does not provide for the assumption or
substitution of the awards, the administrator may cause all
awards to become fully exercisable prior to the consummation of
the transaction constituting a Change in Control, for a period
of 15 days following notice to the award recipient. The
administrator may also grant awards under the 2010 Plan which
provide for immediate accelerated vesting upon the consummation
of a Change in Control or the occurrence of a subsequent event,
such as the termination of the participants employment or
service.
Administration
of the 2010 Plan
The Compensation Committee will be the administrator of the 2010
Plan. The Committee is expected to consist solely of two or more
directors, each of whom is intended to be independent under
rules promulgated by a securities exchange on which our common
stock is listed, and to qualify as both a non-employee
director, as
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defined in
Rule 16b-3
and an outside director for purposes of
Section 162(m) of the Code. The Committee may delegate its
authority to grant certain awards to one or more of our
officers. Any such officer will not be delegated the authority
to grant awards to individuals who are subject to the reporting
requirements of Section 16 of the Exchange Act, as amended.
The administrator has the power to:
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select which directors and employees are to receive awards and
the terms of such awards, consistent with the 2010 Plan;
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determine whether options are to be NQSOs or ISOs, or whether
awards are to be qualified performance-based
compensation under Section 162(m) of the Code;
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construe and interpret the terms of the 2010 Plan and awards
granted pursuant to the 2010 Plan;
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adopt rules for the administration, interpretation and
application of the 2010 Plan;
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interpret, amend or revoke any of the rules adopted for the
administration, interpretation and application of the 2010
Plan; and
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amend one or more outstanding awards in a manner that does not
adversely affect the rights and obligations of the holder of
such award (except in certain limited circumstances).
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Amendment
and Termination of the 2010 Plan
The administrator may amend the 2010 Plan at any time, subject
to stockholder approval to the extent required by applicable law
or regulation or the listing standards of the NASDAQ Global
Market (or any other market or stock exchange on which the
common stock is at the time primarily traded). Additionally,
stockholder approval will be specifically required to increase
the maximum number of shares of common stock which may be issued
under the 2010 Plan, change the eligibility requirements or
decrease the exercise price of any outstanding option or stock
appreciation right granted under the 2010 Plan.
The administrator may suspend or terminate the 2010 Plan at any
time. However, no awards may be granted pursuant to the 2010
Plan on or after the tenth anniversary of the effective date of
the 2010 Plan.
Federal
Income Tax Consequences Associated with the 2010 Plan
The following is a general summary under current law of the
material federal income tax consequences to an employee or
director granted an award under the 2010 Plan. This summary
deals with the general federal income tax principles that apply
and is provided only for general information. Some kinds of
taxes, such as state, local and foreign income taxes and federal
employment taxes, are not discussed. Tax laws are complex and
subject to change and may vary depending on individual
circumstances and from locality to locality. The summary does
not discuss all aspects of federal income taxation that may be
relevant in light of a holders personal circumstances.
This summarized tax information is not tax advice, and a holder
of an award should rely on the advice of his or her legal and
tax advisors.
Non-Qualified Stock Options. If an optionee is
granted a NQSO under the 2010 Plan, the optionee should not have
taxable income on the grant of the option. Generally, the
optionee should recognize ordinary income at the time of
exercise in an amount equal to the fair market value of a share
of common stock at such time, less the exercise price paid. The
optionees basis in the stock for purposes of determining
gain or loss on a subsequent sale or disposition of such shares
generally will be the fair market value of the common stock on
the date the optionee exercises such option. Any subsequent gain
or loss generally will be taxable as a capital gain or loss.
Incentive Stock Options. No taxable income
should be recognized by the optionee at the time of the grant of
an ISO, and no taxable income should be recognized for regular
federal income tax purposes at the time the option is exercised;
however, the excess of the fair market value of the common stock
received over the option price is an item of
adjustment for alternative minimum tax purposes. The
optionee will recognize taxable income in the year in which the
purchased shares are sold or otherwise made the subject of a
taxable disposition. For federal income tax purposes,
dispositions are divided into two categories: qualifying and
disqualifying. A qualifying disposition occurs if the sale or
other disposition is made more than two years after the date the
option for the shares involved in such
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sale or disposition is granted and more than one year after the
date the shares are transferred upon exercise. If the sale or
disposition occurs before these two periods are satisfied, then
a disqualifying disposition will result.
Upon a qualifying disposition, the optionee should recognize
long-term capital gain in an amount equal to the excess of the
amount realized upon the sale or other disposition of the
purchased shares over the exercise price paid for the shares. If
there is a disqualifying disposition of the shares, then the
excess of the fair market value of those shares on the exercise
date over the exercise price paid for the shares should be
taxable as ordinary income to the optionee. Any additional gain
or loss recognized upon the disposition will be recognized as a
capital gain or loss by the optionee.
We should not be entitled to any federal income tax deduction if
the optionee makes a qualifying disposition of the shares. If
the optionee makes a disqualifying disposition of the purchased
shares, then generally we (or our subsidiary corporation) should
be entitled to a federal income tax deduction, for the taxable
year in which such disposition occurs, equal to the ordinary
income recognized by the optionee.
Stock Appreciation Rights. No taxable income
generally should be recognized upon the grant of a SAR, but,
upon exercise of the SAR, the cash or the fair market value of
the shares received should be taxable as ordinary income to the
recipient in the year of such exercise.
Restricted Stock. In general, a recipient of
restricted stock should not be taxed upon the grant or purchase
of restricted stock that is subject to a substantial risk
of forfeiture and non-transferable, within the meaning of
Section 83 of the Code. However, at the time the restricted
stock is no longer subject to the substantial risk of forfeiture
(e.g., when the restrictions lapse on a vesting date),
the participant should recognize ordinary income equal to the
fair market value of the common stock on the date the
restrictions lapse, less the amount the participant paid, if
any, for such restricted stock. A recipient of restricted stock
may, however, make an election under Section 83(b) of the
Code to be taxed at the time of the grant or purchase on an
amount equal to the fair market value of the common stock on the
date of transfer, less the amount paid, if any, for such
restricted stock. If a timely Section 83(b) election is
made, the recipient should not recognize any additional income
as and when the restrictions applicable to the restricted stock
lapses.
Restricted Stock Units. A recipient of
restricted stock units generally should not have ordinary income
upon grant of restricted stock units. When the shares of common
stock are delivered under the terms of the award, the recipient
should recognize ordinary income equal to the fair market value
of the shares delivered, less any amount paid by the participant
for such shares.
Dividend Equivalent Awards and Performance
Awards. A recipient of a dividend equivalent
award or a performance award generally will not recognize
taxable income at the time of grant. However, at the time such
an award is paid, whether in cash or in shares of common stock,
the participant will recognize ordinary income equal to the
value received.
Tax Deductions and Section 162(m) of the
Code. Except as otherwise described above with
respect to incentive stock options, we generally should be
entitled to a federal income tax deduction when and for the same
amount the recipient recognizes as ordinary income, subject to
the limitations of Section 162(m) of the Code with respect
to compensation paid to certain covered employees.
Under Section 162(m), income tax deductions of
publicly-held corporations may be limited to the extent total
compensation (including base salary, annual bonus, stock option
exercises and non-qualified benefits paid) for certain executive
officers exceeds $1 million in any one year. The
Section 162(m) deduction limit, however, does not apply to
certain performance-based compensation as provided
for by the Code and established by an independent compensation
committee. In particular, stock options and SARs will satisfy
the performance-based compensation exception if the
awards are made by a qualifying compensation committee, the
underlying plan sets the maximum number of shares that can be
granted to any person within a specified period and the
compensation is based solely on an increase in the stock price
after the grant date (i.e., the exercise price or base
price is not less than the fair market value of the stock
subject to the award on the grant date). Other awards granted
under the 2010 Plan may be qualified performance-based
compensation for purposes of Section 162(m), if such
awards are granted or vest based upon the achievement of one or
more pre-established objective performance goals using one of
the performance criteria described previously.
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The 2010 Plan is structured in a manner that is intended to
provide the administrator with the ability to provide awards
that satisfy the requirements for qualified
performance-based compensation under Section 162(m)
of the Code where appropriate. If the administrator determines
that it is in Superior Bancorps best interests to make use
of such awards, we believe that the remuneration attributable to
those awards will not be subject to the $1 million
limitation. We have not, however, requested a ruling from the
Internal Revenue Service or an opinion of counsel regarding this
issue. This discussion will neither bind the Internal Revenue
Service nor preclude the Internal Revenue Service from adopting
a contrary position.
Section 409A of the Code. Certain awards
under the 2010 Plan may be considered non-qualified
deferred compensation for purposes of Section 409A of
the Code, which imposes certain additional requirements
regarding the payment of deferred compensation. Generally, if at
any time during a taxable year a non-qualified deferred
compensation plan fails to meet the requirements of
Section 409A, or is not operated in accordance with those
requirements, all amounts deferred under the non-qualified
deferred compensation plan for the taxable year and all
preceding taxable years, by or for any participant with respect
to whom the failure relates, are includible in the gross income
of the participant for the taxable year to the extent not
subject to a substantial risk of forfeiture and not previously
included in gross income. If a deferred amount is required to be
included in income under Section 409A, the amount also is
subject to interest and an additional income tax. The interest
imposed is equal to the interest at the underpayment rate plus
one percentage point, imposed on the underpayments that would
have occurred had the compensation been includible in income for
the taxable year when first deferred, or if later, when not
subject to a substantial risk of forfeiture. The additional
income tax is equal to 20% of the compensation required to be
included in gross income.
Vote
Required
Adoption of the 2010 Plan requires an affirmative vote of the
holders of a majority of the shares of common stock cast on such
proposal, in person or by proxy, provided that there is a quorum
of stockholders represented at the Annual Meeting.
Recommendation
of the Board of Directors
The Board of Directors unanimously recommends that
stockholders vote FOR the adoption of the Superior Bancorp 2010
Incentive Compensation Plan.
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PROPOSAL NUMBER
THREE
RATIFICATION OF SELECTION OF
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
General
Grant Thornton LLP (Grant Thornton) has served as
Superior Bancorps independent registered public accounting
firm for the fiscal years ended December 31, 2009, 2008 and
2007. The Board of Directors recommends that the stockholders
ratify the selection of Grant Thornton as Superior
Bancorps independent accounting firm. In the event the
selection is not ratified by a majority of votes represented at
the Annual Meeting in person or by proxy, it is anticipated that
no change in auditors would be made for the current year because
of the difficulty and expense of making any change in the middle
of the current year, but the vote would be considered in
connection with the engagement of independent auditors for 2011.
Management expects representatives from Grant Thornton to attend
the Annual Meeting. They will have an opportunity to make a
statement if they desire to do so, and they are expected to be
available to respond to appropriate questions.
Grant Thornton has advised Superior Bancorp that neither the
firm nor any of its members has any relationship with Superior
Bancorp or its subsidiary, Superior Bank, other than the usual
relationship that exists between independent registered public
accountants and clients.
Audit
Fees
The aggregate fees (including reimbursable expenses) of Grant
Thornton for professional services rendered for the audit of
Superior Bancorps financial statements for the fiscal year
ended December 31, 2009 and for the review of the financial
statements for Superior Bancorps Quarterly Reports on
Form 10-Q
for 2009 were $361,506. The aggregate fees (including
reimbursable expenses) of Grant Thornton for professional
services rendered for the audit of Superior Bancorps
financial statements for the fiscal year ended December 31,
2008 and for the reviews of the financial statements for
Superior Bancorps Quarterly Reports on
Form 10-Q
for 2008 were $355,740.
Audit
Related Fees
The aggregate audit related fees (including
reimbursable expenses) of Grant Thornton for the fiscal years
ended December 31, 2009 and 2008 were $66,432 and $68,297,
respectively. Audit related fees primarily consist of fees
relating to benefit plan audits.
Tax
Fees
The aggregate tax fees paid to Grant Thornton for the fiscal
years ended December 31, 2009 and 2008 were $66,310 and
$67,992, respectively. Tax fees consist of services for tax
compliance, tax advice and tax planning.
All Other
Fees
The aggregate fees billed by Grant Thornton for all other
services rendered to Superior Bancorp, other than services
described above, were $0 and $6,300, respectively, for the
fiscal years ended December 31, 2009 and 2008. The fees
shown in this category relate solely to Superior Bancorps
subscription during 2008 to a database of accounting and banking
information provided by Grant Thornton.
Pre-Approval
Policies
The Audit and Enterprise Risk Management Committee pre-approves
all audit and non-audit services provided by the independent
auditors. These services may include audit services, audit
related services, tax services and other services. The Audit and
Enterprise Risk Management Committee pre-approved all of the
services for the audit fees described above. The Audit and
Enterprise Risk Management Committee regularly monitors the
services provided by the independent auditors for both audit and
non-audit services. None of the services described
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above were approved by the Audit and Enterprise Risk Management
Committee pursuant to paragraph (c)(7)(i)(C) of
Rule 2-01
of
Regulation S-X.
The Audit and Enterprise Risk Management Committee has
considered whether the provision of the services covered above
is compatible with maintaining our external auditors
independence and has concluded that it is.
Recommendation
of the Board of Directors
The Board of Directors unanimously recommends that
stockholders vote FOR the ratification of the selection of Grant
Thornton, LLP as the independent registered public accounting
firm of Superior Bancorp. The affirmative vote of the
holders of a majority of shares present in person or that are
represented by proxy at the Annual Meeting will be necessary for
the approval of this proposal.
REPORT OF
THE AUDIT AND ENTERPRISE RISK MANAGEMENT COMMITTEE (1)
The members of the Audit and Enterprise Risk Management
Committee are independent directors, as defined
under NASDAQ Rule 4200, and meet the standards required by
Rule 10A-3(b)(1)
promulgated under the Exchange Act. One member of the Audit and
Enterprise Risk Management Committee is an audit committee
financial expert under the Rules of the SEC. The
Audit and Enterprise Risk Management Committee oversees Superior
Bancorps financial reporting process and internal controls
on behalf of the Board of Directors and is responsible for the
appointment, retention, oversight and compensation of the
companys independent auditors and the approval of services
they perform. Management has the primary responsibility for
establishing and maintaining systems of internal controls and
for the preparation of the financial statements and other
financial information included in Superior Bancorps Annual
Report. In fulfilling its oversight responsibilities, the Audit
and Enterprise Risk Management Committee reviewed the
consolidated financial statements with management, including a
discussion of the quality, not just the acceptability, of the
accounting principles, the reasonableness of significant
judgments, and the clarity of disclosures in the financial
statements.
The Audit and Enterprise Risk Management Committee reviewed with
the independent auditors, who are responsible for expressing an
opinion on the conformity of those audited financial statements
with generally accepted accounting principles, their judgments
as to the quality, not just the acceptability, of Superior
Bancorps accounting principles and such other matters as
are required to be discussed with the Audit and Enterprise Risk
Management Committee under auditing standards generally accepted
in the United States. The Audit and Enterprise Risk Management
Committee has received the written disclosures and the letter
from Grant Thornton required by applicable requirements of the
Public Company Accounting Oversight Board regarding the
independent accountants communications with the Audit and
Enterprise Risk Management Committee concerning independence.
The Audit and Enterprise Risk Management Committee discussed the
independence of Grant Thornton with Grant Thornton.
The Audit and Enterprise Risk Management Committee discussed
with Superior Bancorps internal and independent auditors
the overall scope and plans for their respective audits. The
Audit and Enterprise Risk Management Committee meets with the
internal and independent auditors, with and without management
present, to discuss the results of their examinations, their
evaluations of Superior Bancorps internal controls, and
the overall quality of Superior Bancorps financial
reporting.
Based on the Audit and Enterprise Risk Management
Committees discussions with management and the independent
auditors, as described above, and upon its review of the
representations of management and the report of the independent
auditors, the Audit and Enterprise Risk Management Committee
recommended to the Board of Directors that Superior
Bancorps audited consolidated financial statements be
included in the annual report on
Form 10-K
for the fiscal year ended December 31, 2009, as filed with
the SEC.
(1 ) The information under this caption is not
soliciting material or material filed
with the SEC, except (a) as otherwise required by the rules
of the SEC or (b) as we may specifically so request or
specifically incorporate it by reference in a filing with the
SEC.
35
The foregoing report is submitted by the following directors of
Superior Bancorp, comprising all of the members of the Audit and
Enterprise Risk Management Committee of the Board of Directors
as of December 31, 2009.
James C. White, Sr., Chairman
Thomas E. Dobbs, Jr.
Thomas E. Jernigan, Jr.
PROPOSAL NUMBER
FOUR
ADVISORY VOTE ON COMPENSATION OF EXECUTIVE OFFICERS
In order to comply with the provisions of the American Recovery
and Reinvestment Act of 2009, Superior Bancorp is submitting to
its stockholders the compensation of its named executive
officers as described above under the heading Executive
Compensation and Other Information for an advisory vote.
Although the vote of the stockholders will not be binding on the
Board of Directors, the Compensation Committee will consider the
results of this vote in determining future compensation levels
of the named executive officers.
Superior Bancorp believes that its compensation policies and
procedures, which are reviewed and approved by the Compensation
Committee, are strongly aligned with the long-term interests of
its stockholders and are important in preserving Superior
Bancorps ability to attract and retain highly qualified
executives. In the current challenging economic conditions, the
experience of Superior Bancorps management team is vital
to its success.
We encourage stockholders to carefully review the
Executive Compensation and Other Information section
of this Proxy Statement for detailed information about the
compensation of our named executive officers.
Superior Bancorps Board of Directors has authorized that
the following resolution be presented to the stockholders:
Resolved, that the holders of Superior Bancorp common
stock approve the overall compensation of Superior
Bancorps executives named in the Summary of Cash and
Certain Other Compensation Table of Superior Bancorps
Proxy Statement for the 2010 Annual Meeting of Stockholders,
including the Compensation Discussion and Analysis, the
Executive Compensation Tables and the related disclosure, as
described in its Proxy Statement.
Recommendation
of the Board of Directors
The Board of Directors unanimously recommends that
stockholders vote FOR the resolution regarding compensation of
the named executive officers. Approval of this proposal
requires that the number of votes cast in favor of the proposal
exceed the number of votes cast against it.
36
STOCKHOLDER
PROPOSALS FOR
NEXT ANNUAL MEETING OF STOCKHOLDERS
Any proposals that our stockholders wish to have included in our
proxy statement and form of proxy for the 2011 annual meeting of
stockholders must be received by us no later than the close of
business on November 19, 2010. The submission should
include the proposal and a brief statement of the reasons for
it, the name and address of the stockholder, the number of
Superior Bancorp shares beneficially owned by the stockholder
and a description of any material direct or indirect financial
or other interest that the stockholder (or any affiliate or
associate) may have in the proposal. You may also submit a
proposal for presentation at the annual meeting of stockholders
to be held in 2011, but not to have the proposal included in our
proxy statement and form of proxy relating to that meeting. If
notice of any such proposal is not received by us by the close
of business on February 2, 2011, then we will not address
the proposal in our proxy statement relating to that meeting,
and all proxies solicited and received by the Board of Directors
will be deemed to have confirmed discretionary authority to vote
on any such proposal. Any proposals should be sent to:
Superior Bancorp.
17 North 20th Street
Birmingham, Alabama 35203
Attention: Corporate Secretary
ANNUAL
REPORTS
Upon receipt of a written request, Superior Bancorp will furnish
to any stockholder without charge a copy of its Annual Report on
Form 10-K
filed with the SEC under the Exchange Act for the year ended
December 31, 2009. Such written requests should be directed
to William H. Caughran, Secretary, Superior Bancorp, 17 North
20th Street, Birmingham, Alabama 35203. The Annual Report on
Form 10-K
is not a part of this Proxy Statement. The Annual Report on
Form 10-K,
together with this Proxy Statement and all SEC filings are
available through www.superiorbank.com.
OTHER
BUSINESS
As of the date of this Proxy Statement, the Board of Directors
does not know of any business which will be presented for
consideration at the Annual Meeting other than that specified
herein and in the Notice of Annual Meeting of Stockholders, but
if other matters are presented, it is the intention of the
persons designated as proxies to vote in accordance with their
judgments on such matters.
Please SIGN, DATE and RETURN the enclosed Proxy promptly.
By Order of the Board of Directors,
William H. Caughran
Secretary
Birmingham, Alabama
March 19, 2010
37
ANNEX A
SUPERIOR BANCORP 2010 INCENTIVE COMPENSATION PLAN
Superior Bancorp, a Delaware corporation (the
Company), by resolution of its Board of
Directors, hereby adopts the Superior Bancorp 2010 Incentive
Compensation Plan (the Plan). The Plan
will become effective upon the approval of the Companys
stockholders (the Effective Date).
The purpose of the Plan is to promote the success and enhance
the value of the Company by linking the personal interests of
its directors, officers and employees to those of the
Companys stockholders and by providing such individuals
with an incentive for outstanding performance to generate
superior returns to the Companys stockholders. The Plan is
further intended to provide flexibility to the Company in its
ability to motivate, attract, and retain the services of
directors, officers and employees upon whose judgment, interest,
and special effort the successful conduct of the Companys
operation is largely dependent.
ARTICLE I
DEFINITIONS
Wherever the following terms are used in the Plan they shall
have the meanings specified below, unless the context clearly
indicates otherwise. The singular pronoun shall include the
plural where the context so indicates.
1.1. Administrator shall
mean the entity that conducts the general administration of the
Plan as provided in Article X.
1.2. Award shall mean an
Option, a Restricted Stock Award, a Restricted Stock Unit Award,
a Performance Award, a Dividend Equivalents Award, a Stock
Appreciation Right or an Other Stock-Based Award, which may be
awarded or granted under the Plan (collectively,
Awards).
1.3. Award Agreement shall
mean a written agreement executed by an authorized officer of
the Company and the Holder which shall contain such terms and
conditions with respect to an Award as the Administrator shall
determine, consistent with the Plan.
1.4. Award Limit shall mean
500,000 shares of Common Stock for Awards denominated in
Common Stock and $1,000,000 for Performance Awards denominated
in cash for grants to any individual in any calendar year as
adjusted pursuant to Section 11.3.
1.5. Board shall mean the
Board of Directors of the Company.
1.6. Change in Control shall mean
the occurrence of any of the following transactions or events
occurring on or after the Effective Date:
(a) a merger, consolidation or other corporate
reorganization of the Company in which the Company does not
survive, or, if it survives, the shareholders of the Company
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 Company, by any
individual, entity or group (within the meaning of Section
l3(d)(3) or l4(d)(2) of the Exchange Act of beneficial ownership
of 25% or more of either: (i) the then outstanding shares
of Common Stock of the Company, or (ii) the combined voting
power of the then outstanding voting securities of the Company
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 Company, any of its
subsidiaries, or any employee benefit plan (or related trust) of
the Company 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 substantially all
of the persons who were the owners of the Common Stock of the
Company immediately prior to such acquisition;
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(c) individuals who, as of the effective date of the Plan,
constitute the Board of the Company (the Incumbent
Board) cease for any reason to constitute at least a
majority of the Board, provided that any individual becoming a
director subsequent to such date, whose election, or nomination
for election by the Companys shareholders, was approved by
a vote of at least a majority of the directors then comprising
the Board, shall be considered as though such individual were a
member of the Incumbent 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 Company (as
such terms are used in
Rule 14a-l
1 of Regulation l4A promulgated under the Exchange Act) or
(d) approval by the shareholders of the Company of:
(i) a complete liquidation or dissolution of the
Company, or
(ii) the sale or other disposition of all or substantially
all the assets of the Company, 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 Company, and the outstanding
voting securities of the Company 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 Company and outstanding
securities of the Company, as the case may be.
1.7. Code shall mean the
Internal Revenue Code of 1986, as amended from time to time.
1.8. Committee shall mean
the Compensation Committee of the Board, or another committee or
subcommittee of the Board, appointed as provided in
Section 10.1.
1.9. Common Stock shall
mean the common stock of the Company, par value $0.001 per share.
1.10. Company shall mean
Superior Bancorp, a Delaware corporation.
1.11. Covered Employee
shall mean any Employee who is, or the Committee determines
could be, a covered employee within the meaning of
Section 162(m) of the Code.
1.12. Director shall mean a
member of the Board.
1.13. Dividend Equivalent
shall mean a right to receive the equivalent value (in cash
or Common Stock) of dividends paid on Common Stock, awarded
under Section 8.3 of the Plan.
1.14. DRO shall mean a
domestic relations order as defined by the Code or Title I
of the Employee Retirement Income Security Act of 1974, as
amended from time to time, or the rules thereunder.
1.15. Effective Date shall
mean the date the Plan is approved by the Companys
stockholders.
1.16. Employee shall mean
any officer or other employee (as defined in accordance with
Section 3401(c) of the Code) of the Company, or of any
Subsidiary.
1.17. Exchange Act shall
mean the Securities Exchange Act of 1934, as amended from time
to time.
1.18. Fair Market Value
means, as of any date, the value of a share of Common Stock
determined as follows:
(a) If the Common Stock is listed on any established stock
exchange (such as the New York Stock Exchange, the NASDAQ Global
Market and the NASDAQ Global Select Market) or any national
market system, including without limitation any market system of
The NASDAQ Stock Market, the value of a share of Common Stock
shall be the closing sales price for a share of Common Stock as
quoted on such exchange or system for such date, or if there is
no closing sales price for a share of Common Stock on the date
in question, the closing sales price for a share of Common Stock
on the last preceding date for which such quotation exists, as
reported in The Wall Street Journal or such other source
as the Administrator deems reliable;
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(b) If the Common Stock is regularly quoted by a recognized
securities dealer but closing sales prices are not reported, the
value of a share of Common Stock shall be the mean of the high
bid and low asked prices for such date or, if there are no high
bid and low asked prices for a share of Common Stock on the date
in question, the high bid and low asked prices for a share of
Common Stock on the last preceding date for which such
information exists, as reported in The Wall Street Journal
or such other source as the Administrator deems
reliable; or
(c) If the Common Stock is neither listed on an established
stock exchange or a national market system nor regularly quoted
by a recognized securities dealer, the value of a share of
Common Stock shall be established by the Administrator in good
faith.
1.19. Fiscal Year means the
fiscal year of the Company.
1.20. Full Value Award
means any Award other than an Option or a Stock Appreciation
Right.
1.21. Holder shall mean a
person who has been granted an Award.
1.22. Incentive Stock Option
shall mean an option which conforms to the applicable
provisions of Section 422 of the Code and which is
designated as an Incentive Stock Option by the Administrator.
1.23. Non-Employee Director
shall mean a member of the Board who is not an Employee.
1.24. Non-Qualified Stock
Option shall mean an Option which is not
designated as an Incentive Stock Option by the Administrator.
1.25. Option shall mean a
stock option granted under Article IV of the Plan. An
Option granted under the Plan shall, as determined by the
Administrator, be either a Non-Qualified Stock Option or an
Incentive Stock Option; provided, however, that Options
granted to Non-Employee Directors shall be Non-Qualified Stock
Options.
1.26. Other Stock-Based Award
shall have the meaning set forth in Section 8.5 of the
Plan.
1.27. Performance Award
shall mean a performance or incentive award that is
denominated in cash or stock and is paid in cash, Common Stock
or a combination of both, awarded under Section 8.2 of the
Plan.
1.28. Performance Criteria
means the criteria (and adjustments) that the Committee
selects for an Award for purposes of establishing the
Performance Goal or Performance Goals for a Performance Period,
determined as follows:
(a) With respect to awards intended to qualify for the
performance-based exemption requirements of Section 162(m),
the Performance Criteria that shall be used to establish
Performance Goals are limited to the following: (i) net
earnings (either before or after (A) interest,
(B) taxes, (C) depreciation and
(D) amortization), (ii) gross or net sales or revenue,
(iii) net income (either before or after taxes),
(iv) operating profit, (v) cash flow (including, but
not limited to, operating cash flow and free cash flow),
(vi) return on assets, (vii) return on capital,
(viii) return on stockholders equity,
(ix) return on sales, (x) gross or net profit or
operating margin, (xi) costs, (xii) funds from
operations, (xiii) expense, (xiv) working capital,
(xv) earnings per share, (xvi) price per share of
Common Stock, (xvii) regulatory ratings,
(xviii) market share, (xix) growth in loans
and/or other
assets, (xx) growth in deposits and (xxi) various
measures of credit quality, any of which may be measured either
in absolute terms or as compared to any incremental increase or
decrease or as compared to results of a peer group.
(b) The Committee may, in its discretion, at the time of
grant, specify in the Award that one or more objectively
determinable adjustments shall be made to one or more of the
Performance Goals. Such adjustments may include one or more of
the following: (i) items related to a change in accounting
principle; (ii) items relating to financing activities;
(iii) expenses for restructuring or productivity
initiatives; (iv) other non-operating items; (v) items
related to acquisitions; (vi) items attributable to the
business operations of any entity acquired by the Company during
the Performance Period; (vii) items related to the disposal
of a business
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or segment of a business; or (viii) items related to
discontinued operations that do not qualify as a segment of a
business under United States generally accepted accounting
principles (GAAP).
1.29. Performance Goals
means, for a Performance Period, one or more goals
established in writing by the Committee for the Performance
Period based upon one or more Performance Criteria. Depending on
the Performance Criteria used to establish such Performance
Goals, the Performance Goals may be expressed in terms of
overall Company performance or the performance of a division,
business unit, or an individual. Unless otherwise determined by
the Committee at the time of grant, the achievement of each
Performance Goal shall be determined in accordance with GAAP to
the extent applicable.
1.30. Performance Period
means one or more periods of time, which may be of varying
and overlapping durations, as the Committee may select, over
which the attainment of one or more Performance Goals will be
measured for the purpose of determining a Holders right
to, and the payment of, a Performance Award.
1.31. Plan shall mean the
Superior Bancorp 2010 Incentive Compensation Plan, as amended
from time to time.
1.32. Prior Award shall
mean a stock option, restricted stock or other stock award
granted under any Prior Plan.
1.33. Prior Plan shall mean
the Third Amended and Restated 1998 Stock Incentive Plan of The
Banc Corporation
and/or the
Superior Bancorp 2008 Incentive Compensation Plan, as amended
from time to time.
1.34. Restricted Stock
shall mean Common Stock awarded under Article VII of
the Plan that is subject to repurchase or forfeiture.
1.35. Restricted Stock Units
shall mean rights to receive Common Stock or its cash
equivalent awarded under Section 8.4.
1.36. Rule 16b-3
shall mean
Rule 16b-3
promulgated under the Exchange Act, as such Rule may be amended
from time to time.
1.37. Securities Act shall
mean the Securities Act of 1933, as amended from time to time.
1.38. Stock Appreciation Right
shall mean a stock appreciation right granted under
Article IX of the Plan.
1.39. Subsidiary means any
entity (other than the Company), whether domestic or foreign, in
an unbroken chain of entities beginning with the Company if each
of the entities other than the last entity in the unbroken chain
beneficially owns, at the time of the determination, securities
or interests representing more than fifty percent (50%) of the
total combined voting power of all classes of securities or
interests in one of the other entities in such chain.
1.40. Subsidiary Corporation
shall mean any corporation in an unbroken chain of
corporations beginning with the Company if each of the
corporations other than the last corporation in the unbroken
chain then owns stock possessing fifty percent (50%) or more of
the total combined voting power of all classes of stock in one
of the other corporations in such chain.
1.41. Substitute Award
shall mean an Award granted under this Plan upon the
assumption of, or in substitution for, outstanding equity awards
previously granted by a company or other entity in connection
with a corporate transaction, such as a merger, combination,
consolidation or acquisition of property or stock; provided,
however, that in no event shall the term Substitute
Award be construed to refer to an award made in connection
with the cancellation and repricing of an Option or Stock
Appreciation Right.
1.42. Termination of
Directorship shall mean the time when a Holder who
is a Non-Employee Director ceases to be a Director for any
reason, including, without limitation, a termination by
resignation, failure to be elected, death or retirement. The
Administrator, in its discretion, shall determine the effect of
all matters and questions relating to Termination of
Directorship with respect to Non-Employee Directors.
1.43. Termination of Employment
shall mean the time when the employee-employer relationship
between a Holder and the Company or any Subsidiary is terminated
for any reason, with or without cause, including, without
limitation, a termination by resignation, discharge, death,
disability or retirement; but excluding terminations where
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there is a simultaneous reemployment or continuing employment of
a Holder by the Company or any Subsidiary. The Administrator, in
its discretion, shall determine the effect of all matters and
questions relating to Termination of Employment, including,
without limitation, the question of whether a Termination of
Employment resulted from a discharge for cause; provided,
however, that, with respect to Incentive Stock Options,
unless the Administrator otherwise provides in the terms of the
Award Agreement or otherwise, a leave of absence, change in
status from an employee to an independent contractor or other
change in the employee-employer relationship shall constitute a
Termination of Employment if, and to the extent that, such leave
of absence, change in status or other change interrupts
employment for the purposes of Section 422(a)(2) of the
Code and the then applicable regulations and revenue rulings
under said Section. For purposes of the Plan, a Holders
employee-employer relationship shall be deemed to be terminated
in the event that the Subsidiary employing such Holder ceases to
remain a Subsidiary following any merger, sale of stock or other
corporate transaction or event (including, without limitation, a
spin-off).
ARTICLE II
SHARES SUBJECT
TO PLAN
2.1. Shares Subject to Plan.
(a) Subject to Section 11.3 and Section 2.1(b),
the aggregate number of shares of Common Stock that may be
issued or transferred pursuant to Awards under the Plan shall be
1,500,000 shares plus an annual increase to be added on the
first day of the Companys fiscal year equal to two percent
(2%) of the Companys outstanding Common Stock on such date.
(b) To the extent that an Award under the Plan or a Prior
Award under a Prior Plan terminates, expires, is settled in
cash, lapses or is forfeited for any reason, any shares of
Common Stock then subject to such Award shall again be available
for the grant of an Award pursuant to the Plan. To the extent
permitted by applicable law or any exchange rule, Substitute
Awards shall not be counted against shares of Common Stock
available for grant pursuant to this Plan. Awards that can only
be settled in cash, including payment of Dividend Equivalents in
cash in conjunction with any outstanding Awards, shall not be
counted against the shares available for issuance under the
Plan. In addition, the following shares of Common Stock shall
become available for purposes of the Plan: (1) shares of
Common Stock previously owned or acquired by the Holder that are
delivered to the Company, or withheld from an Award, to pay the
exercise price, (2) shares of Common Stock that are
delivered or withheld on Options or SARs for purposes of
satisfying a tax withholding obligation, or (3) shares of
Common Stock reserved for issuance upon the grant of a SAR that
exceed the number of shares actually issued upon exercise.
2.2. Stock Distributed. Any Common
Stock distributed pursuant to an Award shall consist, in whole
or in part, of authorized and unissued Common Stock, shares of
Common Stock held in treasury or shares of Common Stock
purchased on the open market.
2.3. Limitation on Number of
Shares Subject to Awards. Notwithstanding any
provision in the Plan to the contrary, and subject to
Article XI, the maximum number of shares of Common Stock
with respect to one or more Awards that may be granted to any
one Employee during any calendar year shall not exceed the Award
Limit. To the extent required by Section 162(m) of the
Code, shares subject to Awards which are canceled shall continue
to be counted against the Award Limit.
ARTICLE III
GRANTING OF
AWARDS
3.1. Award Agreement. Each
Award shall be evidenced by an Award Agreement. Award Agreements
evidencing Awards intended to qualify as performance-based
compensation (as described in Section 162(m)(4)(C) of the
Code) shall contain such terms and conditions as may be
necessary to meet the applicable provisions of
Section 162(m) of the Code. Award Agreements evidencing
Incentive Stock Options shall contain such terms and conditions
as may be necessary to meet the applicable provisions of
Section 422 of the Code.
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3.2. Provisions Applicable to
Section 162(m) Performance-Based Compensation.
(a) The Committee, in its discretion, may determine whether
an Award is to qualify as performance-based compensation (as
described in Section 162(m)(4)(C) of the Code).
(b) To the extent necessary to comply with the
performance-based compensation requirements of
Section 162(m)(4)(C) of the Code, with respect to any Award
granted under Articles VII and VIII which may be granted to
one or more Covered Employees, no later than ninety
(90) days following the commencement of any Performance
Period (or such earlier time as may be required under
Section 162(m) of the Code), the Committee shall, in
writing, (i) designate one or more Covered Employees and
(ii) select the Performance Criteria and Performance Goals
applicable to the Performance Period (including any applicable
adjustments). Following the completion of each Performance
Period, the Committee shall certify in writing whether the
applicable Performance Goals have been achieved for such
Performance Period. In determining the amount earned by a
Covered Employee, the Committee shall have the right to reduce
(but not to increase) the amount payable at a given level of
performance to take into account additional factors that the
Committee may deem relevant to the assessment of individual or
corporate performance for the Performance Period.
(c) Furthermore, notwithstanding any other provision of the
Plan, any Award which is granted to a Covered Employee and is
intended to qualify as performance-based compensation (as
described in Section 162(m)(4)(C) of the Code) shall be
subject to any additional limitations set forth in
Section 162(m) of the Code (including any amendment to
Section 162(m) of the Code) or any regulations or rulings
issued thereunder that are requirements for qualification as
performance-based compensation (as described in
Section 162(m)(4)(C) of the Code), and the Plan shall be
deemed amended to the extent necessary to conform to such
requirements.
3.3. Limitations Applicable to
Section 16 Persons. Notwithstanding
any other provision of the Plan, the Plan, and any Award granted
or awarded to any individual who is then subject to
Section 16 of the Exchange Act, shall be subject to any
additional limitations set forth in any applicable exemptive
rule under Section 16 of the Exchange Act (including any
amendment to
Rule 16b-3
of the Exchange Act) that are requirements for the application
of such exemptive rule. To the extent permitted by applicable
law, the Plan and Awards granted or awarded hereunder shall be
deemed amended to the extent necessary to conform to such
applicable exemptive rule.
3.4. At-Will
Employment. Nothing in the Plan or in any
Award Agreement hereunder shall confer upon any Holder any right
to continue in the employ of the Company or any Subsidiary, or
as a Director of the Company, or shall interfere with or
restrict in any way the rights of the Company and any
Subsidiary, which rights are hereby expressly reserved, to
discharge any Holder at any time for any reason whatsoever, with
or without cause, except to the extent expressly provided
otherwise in a written employment agreement between the Holder
and the Company or any Subsidiary.
ARTICLE IV
GRANTING OF
OPTIONS TO EMPLOYEES AND NON-EMPLOYEE DIRECTORS
4.1. Eligibility. Any
Employee or Non-Employee Director selected by the Administrator
pursuant to Section 4.4(a) shall be eligible to be granted
an Option.
4.2. Disqualification for Stock
Ownership. No person may be granted an
Incentive Stock Option under the Plan if such person, at the
time the Incentive Stock Option is granted, owns stock
possessing more than 10% of the total combined voting power of
all classes of stock of the Company or any then existing
Subsidiary Corporation or parent corporation (as defined in
Section 424(e) of the Code) unless such Incentive Stock
Option conforms to the applicable provisions of Section 422
of the Code.
4.3. Qualification of Incentive Stock
Options. No Incentive Stock Option shall be
granted to any person who is not an Employee of the Company or a
Subsidiary Corporation.
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4.4. Granting of Options.
(a) Options may be awarded to any Employee or Non-Employee
Director who the Administrator determines should receive such an
Award. The Administrator shall in its discretion, and, subject
to applicable limitations of the Plan:
(i) Subject to the Award Limit, determine the number of
shares to be subject to such Options granted;
(ii) Subject to Section 4.2 and Section 4.3,
determine whether such Options are to be Incentive Stock Options
or Non-Qualified Stock Options; and
(iii) Determine the terms and conditions of such Options,
consistent with the Plan.
(b) Upon the selection of an Employee or Non-Employee
Director to be granted an Option, the Administrator shall
instruct the Secretary of the Company to issue the Option and
may impose such conditions on the grant of the Option as it
deems appropriate.
(c) Any Incentive Stock Option granted under the Plan may
be modified by the Administrator, with the consent of the
Holder, to disqualify such Option from treatment as an
incentive stock option under Section 422 of the
Code.
ARTICLE V
TERMS OF
OPTIONS
5.1. Option Price. The price
per share of Common Stock subject to each Option granted to
Employees and Non-Employee Directors shall be set by the
Administrator; provided, however, that:
(a) Except in the case of an Option that is a Substitute
Award, such price shall not be less than 100% of the Fair Market
Value of a share of Common Stock on the date the Option is
granted (or, in the case of Incentive Stock Options, the date
the Option is modified, extended or renewed for purposes of
Section 424(h) of the Code); and
(b) In the case of Incentive Stock Options granted to an
individual then owning (within the meaning of
Section 424(d) of the Code) more than 10% of the total
combined voting power of all classes of stock of the Company or
any Subsidiary Corporation or parent corporation thereof (as
defined in Section 424(e) of the Code), such price shall
not be less than 110% of the Fair Market Value of a share of
Common Stock on the date the Option is granted (or the date the
Option is modified, extended or renewed for purposes of
Section 424(h) of the Code); and
5.2. Option Term. The term
of an Option granted to an Employee or Non-Employee Director
shall be set by the Administrator in its discretion;
provided, however, that the term shall not be more than
ten (10) years from the date the Option is granted, or five
(5) years from the date the Option is granted if the Option
is an Incentive Stock Option granted to an individual then
owning (within the meaning of Section 424(d) of the Code)
more than 10% of the total combined voting power of all classes
of stock of the Company or any Subsidiary Corporation or parent
corporation thereof (as defined in Section 424(e) of the
Code). Except as limited by requirements of Section 409A or
Section 422 of the Code and regulations and rulings
thereunder, the Administrator may extend the term of any
outstanding Option in connection with any Termination of
Employment or Termination of Directorship of the Holder, or
amend any other term or condition of such Option relating to
such a Termination of Employment or Termination of Directorship.
5.3. Option Vesting.
(a) The period during which the right to exercise, in whole
or in part, an Option vests in the Holder shall be set by the
Administrator and the Administrator may determine that an Option
may not be exercised in whole or in part for a specified period
after it is granted. At any time after grant of an Option, the
Administrator may, in its discretion and subject to whatever
terms and conditions it selects, accelerate the period during
which an Option vests.
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(b) A Option is exercisable only while the Holder is an
Employee or Non-Employee Director, as applicable; provided,
however, that the Administrator in its discretion may
provide that the Option may be exercised subsequent to a
Termination of Employment or Termination of Directorship, as
applicable, following a Change in Control or because of the
Holders retirement, death or disability or termination
without cause, or otherwise.
(c) To the extent that the aggregate fair market value of
stock with respect to which incentive stock options
(within the meaning of Section 422 of the Code, but without
regard to Section 422(d) of the Code) are exercisable for
the first time by a Holder during any calendar year under the
Plan, and all other plans of the Company and any Subsidiary
Corporation or parent corporation thereof (as defined in
Section 424(e) of the Code), exceeds $100,000, the Options
shall be treated as Non-Qualified Stock Options to the extent
required by Section 422 of the Code. The rule set forth in
the preceding sentence shall be applied by taking Options and
other incentive stock options into account in the
order in which they were granted. For purposes of this
Section 5.3(c), the fair market value of stock shall be
determined as of the time the Option or other incentive
stock options with respect to such stock is granted.
ARTICLE VI
EXERCISE OF
OPTIONS
6.1. Partial Exercise. An
exercisable Option may be exercised in whole or in part.
However, an Option shall not be exercisable with respect to
fractional shares and the Administrator may require that, by the
terms of the Option, a partial exercise be with respect to a
minimum number of shares.
6.2. Manner of Exercise. All
or a portion of an exercisable Option shall be deemed exercised
upon delivery of all of the following to the Secretary of the
Company, or such other person or entity designated by the
Administrator, or his, her or its office, as applicable:
(a) A written notice complying with the applicable rules
established by the Administrator stating that the Option, or a
portion thereof, is exercised. Such rules may provide that for
administrative convenience an Option may not be exercised during
such period (not exceeding 10 days) as is specified in
advance by the Administrator. The notice shall be signed by the
Holder or other person then entitled to exercise the Option or
such portion of the Option;
(b) Such representations and documents as the
Administrator, in its discretion, deems necessary or advisable
to effect compliance with all applicable provisions of the
Securities Act and any other federal, state or foreign
securities laws or regulations. The Administrator may, in its
discretion, also take whatever additional actions it deems
appropriate to effect such compliance including, without
limitation, placing legends on share certificates and issuing
stop-transfer notices to agents and registrars;
(c) In the event that the Option shall be exercised
pursuant to Section 11.1 by any person or persons other
than the Holder, appropriate proof of the right of such person
or persons to exercise the Option; and
(d) Full cash payment to the Secretary of the Company for
the shares with respect to which the Option, or portion thereof,
is exercised. However, the Administrator may, in its discretion,
(i) allow payment, in whole or in part, through the
delivery of shares of Common Stock duly endorsed for transfer to
the Company with a Fair Market Value on the date of delivery
equal to the aggregate exercise price of the Option or exercised
portion thereof; (ii) allow payment, in whole or in part,
through the surrender of shares of Common Stock then issuable
upon exercise of the Option having a Fair Market Value on the
date of Option exercise equal to the aggregate exercise price of
the Option or exercised portion thereof; (iii) allow
payment, in whole or in part, through the delivery of property
of any kind which constitutes good and valuable consideration;
(iv) allow payment, in whole or in part, through the
delivery of a notice that the Holder has placed a market sell
order with a broker with respect to shares of Common Stock then
issuable upon exercise of the Option, and the broker timely pays
a sufficient portion of the net proceeds of the sale to the
Company in satisfaction of the Option exercise price; or
(v) allow payment through any combination of the
consideration provided in the foregoing subparagraphs (i), (ii),
(iii) and (iv); provided, however, that the payment
in the manner prescribed in the preceding paragraphs shall not
be permitted to the extent that the Administrator determines
that payment in such manner shall result in an extension or
maintenance of credit, an arrangement for the extension of
credit, or a renewal or an
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extension of credit in the form of a personal loan to or for any
Director or executive officer of the Company that is prohibited
by Section 13(k) of the Exchange Act or other applicable
law.
6.3. Conditions to Issuance of Stock
Certificates. The Company shall not be
required to issue or deliver any certificate or certificates for
shares of stock purchased upon the exercise of any Option or
portion thereof prior to fulfillment of all of the following
conditions:
(a) The admission of such shares to listing on all stock
exchanges on which such class of stock is then listed;
(b) The completion of any registration or other
qualification of such shares under any federal, state or foreign
law, or under the rulings or regulations of the Securities and
Exchange Commission or any other governmental regulatory body
which the Administrator shall, in its discretion, deem necessary
or advisable;
(c) The obtaining of any approval or other clearance from
any federal, state or foreign governmental agency which the
Administrator shall, in its discretion, determine to be
necessary or advisable;
(d) The lapse of such reasonable period of time following
the exercise of the Option as the Administrator may establish
from time to time for reasons of administrative
convenience; and
(e) The receipt by the Company of full payment for such
shares, including payment of any applicable withholding tax,
which in the discretion of the Administrator may be in the form
of consideration used by the Holder to pay for such shares under
Section 6.2(d).
6.4. Rights as
Stockholders. Holders shall not be, nor have
any of the rights or privileges of, stockholders of the Company
in respect of any shares purchasable upon the exercise of any
part of an Option unless and until certificates representing
such shares have been issued by the Company to such Holders.
6.5. Ownership and Transfer
Restrictions. The Holder shall give the
Company prompt notice of any disposition of shares of Common
Stock acquired by exercise of an Incentive Stock Option within
(a) two years from the date of granting (including the date
the Option is modified, extended or renewed for purposes of
Section 424(h) of the Code) such Option to such Holder, or
(b) one year after the transfer of such shares to such
Holder.
6.6. Additional Limitations on Exercise of
Options. Holders may be required to comply
with any timing or other restrictions with respect to the
settlement or exercise of an Option, including a window-period
limitation, as may be imposed in the discretion of the
Administrator.
ARTICLE VII
AWARD OF
RESTRICTED STOCK
7.1. Eligibility. Subject to
the Award Limit, Restricted Stock may be awarded to any Employee
or Non-Employee Director who the Administrator determines should
receive such an Award.
7.2. Award of Restricted Stock.
(a) The Administrator may from time to time, in its
discretion:
(i) Select from among the Employees or Non-Employee
Directors (including Employees or Non-Employee Directors who
have previously received Awards under the Plan) such of them as
in its opinion should be awarded Restricted Stock; and
(ii) Determine the purchase price, if any, and other terms
and conditions applicable to such Restricted Stock, consistent
with the Plan.
(b) The Administrator shall establish the purchase price,
if any, and form of payment for Restricted Stock; provided,
however, that such purchase price shall be no less than the
minimum amount required by applicable state law.
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(c) Upon the selection of an Employee or Non-Employee
Director to be awarded Restricted Stock, the Administrator shall
instruct the Secretary of the Company to issue such Restricted
Stock and may impose such conditions on the issuance of such
Restricted Stock as it deems appropriate.
7.3. Rights as
Stockholders. Subject to Section 7.4,
upon delivery of the shares of Restricted Stock to the escrow
holder pursuant to Section 7.5, the Holder shall have,
unless otherwise provided by the Administrator, all the rights
of a stockholder with respect to said shares, subject to the
restrictions in his or her Award Agreement, including the right
to receive all dividends and other distributions paid or made
with respect to the shares; provided, however, that, in
the discretion of the Administrator, any extraordinary
distributions with respect to the Common Stock shall be subject
to the restrictions set forth in Section 7.4.
7.4. Restriction. All shares
of Restricted Stock issued under the Plan (including any shares
received by Holders thereof with respect to shares of Restricted
Stock as a result of stock dividends, extraordinary cash
dividends, stock splits or any other form of recapitalization)
shall, in the terms of each individual Award Agreement, be
subject to such restrictions as the Administrator shall provide,
which restrictions may include, without limitation, restrictions
concerning voting rights and transferability and restrictions
based on duration of employment or directorship with the
Company, Company performance and individual performance;
provided, however, by action taken after the Restricted
Stock is issued, the Administrator may, on such terms and
conditions as it may determine to be appropriate, remove any or
all of the restrictions imposed by the terms of the Award
Agreement. Restricted Stock may not be sold or encumbered until
all restrictions are terminated or expire. A Holders
rights in unvested Restricted Stock shall lapse, and such
Restricted Stock shall be surrendered to the Company without
consideration, upon Termination of Employment or Termination of
Directorship, as applicable; provided, however, that the
Administrator in its discretion may provide that such rights
shall not lapse in the event of a Termination of Employment or
Termination of Directorship, as applicable, following a Change
in Control or because of the Holders retirement, death or
disability or termination without cause, or otherwise.
7.5. Escrow. The Secretary
of the Company or such other escrow holder as the Administrator
may appoint shall retain physical custody of each certificate
representing Restricted Stock until all of the restrictions
imposed under the Award Agreement with respect to the shares
evidenced by such certificate expire or shall have been removed.
7.6. Legend. In order to
enforce the restrictions imposed upon shares of Restricted Stock
hereunder, the Administrator shall cause a legend or legends to
be placed on certificates representing all shares of Restricted
Stock that are still subject to restrictions under Award
Agreements, which legend or legends shall make appropriate
reference to the conditions imposed thereby.
7.7. Section 83(b)
Election. If a Holder makes an election under
Section 83(b) of the Code, or any successor section
thereto, to be taxed with respect to the Restricted Stock as of
the date of transfer of the Restricted Stock rather than as of
the date or dates upon which the Holder would otherwise be
taxable under Section 83(a) of the Code, the Holder shall
deliver a copy of such election to the Company immediately after
filing such election with the Internal Revenue Service.
ARTICLE VIII
PERFORMANCE
AWARDS, DIVIDEND EQUIVALENTS, , RESTRICTED STOCK UNITS, OTHER
STOCK-BASED AWARDS
8.1. Eligibility. Subject to
the Award Limit, one or more Performance Awards, Dividend
Equivalent Awards, Restricted Stock Unit Awards
and/or Other
Stock-Based Awards may be granted to any Employee or
Non-Employee Director who the Administrator determines should
receive such an Award.
8.2. Performance Awards. Any
Employee or Non-Employee Director selected by the Administrator
may be granted one or more Performance Awards. The value of such
Performance Awards may be linked to any one or more of the
Performance Criteria or other specific performance criteria
determined appropriate by the Administrator, in each case on a
specified date or dates or over any period or periods determined
by the Administrator. In making such determinations, the
Administrator shall consider (among such other factors as it
deems relevant in light
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of the specific type of award) the contributions,
responsibilities and other compensation of the particular
Employee or Non-Employee Director.
8.3. Dividend
Equivalents. Any Employee or Non-Employee
Director selected by the Administrator may be granted Dividend
Equivalents based on the dividends declared on Common Stock, to
be credited as of dividend payment dates, during the period
between the date a Full Value Award is granted and the date such
Full Value Award vests, is exercised, is distributed or expires,
as determined by the Administrator. Such Dividend Equivalents
shall be converted to cash or additional shares of Common Stock
by such formula and at such time and subject to such limitations
as may be determined by the Administrator. No Dividend
Equivalents shall be granted with respect to Options or Stock
Appreciation Rights.
8.4. Restricted Stock
Units. Any Employee or Non-Employee Director
selected by the Administrator may be granted an award of
Restricted Stock Units in the manner determined from time to
time by the Administrator. The Administrator is authorized to
make awards of Restricted Stock Units in such amounts and
subject to such terms and conditions as determined by the
Administrator. The Administrator shall specify the date or dates
on which the Restricted Stock Units shall become fully vested
and nonforfeitable, and may specify such conditions to vesting
as it deems appropriate, and may specify that such Restricted
Stock Units become fully vested and nonforfeitable pursuant to
the satisfaction of one or more Performance Goals or other
specific performance goals as the Administrator determines to be
appropriate at the time of the grant, in each case on a
specified date or dates or over any period or periods determined
by the Administrator. The Administrator shall specify the
distribution dates applicable to each award of Restricted Stock
Units which shall be no earlier than the vesting dates or events
of the award and may be determined at the election of the
Employee or Non-Employee Director, subject to compliance with
Section 409A of the Code. Payment of Restricted Stock Units
shall be in cash, in Common Stock or a combination of both, as
determined by the Administrator.
8.5. Other Stock-Based
Awards. Any Employee or Non-Employee Director
selected by the Administrator may be granted an Other
Stock-Based Award (as hereinafter defined) in the manner
determined from time to time by the Administrator. An Other
Stock-Based Award means any other type of equity-based or
equity-related Award not otherwise described by the terms of
this Plan (including the grant or offer for sale of unrestricted
shares of Common Stock) in such amount and subject to such terms
and conditions as the Administrator shall determine. Such Awards
may involve the transfer of actual shares of Common Stock, or
payment in cash or otherwise of amounts based on the value of
shares of Common Stock.
8.6. Termination of Employment or Termination
of Directorship. A Performance Award,
Dividend Equivalent Award, Restricted Stock Unit Award
and/or Other
Stock-Based Award is exercisable or distributable only while the
Holder is an Employee or Non-Employee Director, as applicable;
provided, however, that the Administrator in its
discretion may provide that the Award may be exercised or
distributed subsequent to a Termination of Employment or
Termination of Directorship, as applicable, following a Change
in Control or because of the Holders retirement, death or
disability or termination without cause, or otherwise.
ARTICLE IX
STOCK
APPRECIATION RIGHTS
9.1. Grant of Stock Appreciation
Rights. A Stock Appreciation Right may be
granted to any Employee or Non-Employee Director selected by the
Administrator. A Stock Appreciation Right may be granted:
(a) in connection and simultaneously with the grant of an
Option, or (b) independent of an Option. A Stock
Appreciation Right shall be subject to such terms and conditions
not inconsistent with the Plan as the Administrator shall impose
and shall be evidenced by an Award Agreement.
9.2. Coupled Stock Appreciation Rights.
(a) A Coupled Stock Appreciation Right
(CSAR) shall be related to a particular
Option and shall be exercisable only when and to the extent the
related Option is exercisable.
(b) A CSAR may be granted to the Holder for no more than
the number of shares subject to the simultaneously granted
Option to which it is coupled.
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(c) A CSAR shall entitle the Holder (or other person
entitled to exercise the Option pursuant to the Plan) to
surrender to the Company unexercised a portion of the Option to
which the CSAR relates (to the extent then exercisable pursuant
to its terms) and to receive from the Company in exchange
therefor an amount determined by multiplying (i) the
difference obtained by subtracting the exercise price per share
of the CSAR from (ii) the Fair Market Value of a share of
Common Stock on the date of exercise of the CSAR by the number
of shares of Common Stock with respect to which the CSAR shall
have been exercised, subject to any limitations the
Administrator may impose.
9.3. Independent Stock Appreciation
Rights.
(a) An Independent Stock Appreciation Right
(ISAR) shall be unrelated to any Option and
shall have a term set by the Administrator in its discretion;
provided, however, that the term shall not be more than
ten (10) years from the date the ISAR is granted. An ISAR
shall be exercisable in such installments as the Administrator
may determine. An ISAR shall cover such number of shares of
Common Stock as the Administrator may determine The exercise
price per share of Common Stock subject to each ISAR shall be
set by the Administrator; provided, that such exercise
price per share shall not be less than 100% of the Fair Market
Value of a share of Common Stock on the date the ISAR is
granted. An ISAR is exercisable only while the Holder is an
Employee or Non-Employee Director; provided, that the
Administrator may provide that ISARs may be exercised following
a Termination of Employment, or Termination of Directorship, as
applicable, or following a Change in Control, or because of the
Holders retirement, death or disability or termination
without cause, or otherwise.
(b) An ISAR shall entitle the Holder (or other person
entitled to exercise the ISAR pursuant to the Plan) to exercise
all or a specified portion of the ISAR (to the extent then
exercisable pursuant to its terms) and to receive from the
Company an amount determined by multiplying (i) the
difference obtained by subtracting the exercise price per share
of the ISAR from the Fair Market Value of a share of Common
Stock on the date of exercise of the ISAR by (ii) the
number of shares of Common Stock with respect to which the ISAR
shall have been exercised, subject to any limitations the
Administrator may impose.
9.4. Payment and Limitations on
Exercise.
(a) Payment of the amounts determined under
Section 9.2(c) and 9.3(b) above shall be in cash, shares of
Common Stock (based on its Fair Market Value as of the date the
Stock Appreciation Right is exercised), or a combination of
both, as determined by the Administrator. The Company shall not
be required to issue or deliver any certificate or certificates
for shares of stock issuable upon the exercise of any Stock
Appreciation Right prior to fulfillment of the conditions set
forth in Section 6.3 above.
(b) Holders of Stock Appreciation Rights may be required to
comply with any timing or other restrictions with respect to the
settlement or exercise of a Stock Appreciation Right, including
a window-period limitation, as may be imposed in the discretion
of the Administrator.
ARTICLE X.
ADMINISTRATION
10.1. Committee. The
Committee shall consist solely of two or more Non-Employee
Directors appointed by and holding office at the pleasure of the
Board, each of whom is intended to (a) be independent under
rules promulgated by a securities exchange on which the
Companys Common Stock is listed and (b) qualify as
both a non-employee director as defined by
Rule 16b-3
and an outside director for purposes of
Section 162(m) of the Code. Appointment of Committee
members shall be effective upon acceptance of appointment.
Committee members may resign at any time by delivering written
notice to the Board. Vacancies in the Committee may be filled by
the Board.
10.2. Duties and Powers of
Committee. It shall be the duty of the
Committee to conduct the general administration of the Plan in
accordance with its provisions. The Committee shall have the
power to interpret the Plan and the Award Agreements, and to
adopt such rules for the administration, interpretation and
application of the Plan as are consistent therewith, to
interpret, amend or revoke any such rules, and to amend any
Award Agreement provided that the rights or obligations of the
Holder of the Award that is the subject of any such Award
Agreement
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are not affected adversely. Any such grant or award under the
Plan need not be the same with respect to each Holder. Any such
interpretations and rules with respect to Incentive Stock
Options shall be consistent with the provisions of
Section 422 of the Code. In its discretion, the Board may
at any time and from time to time exercise any and all rights
and duties of the Committee under the Plan except with respect
to matters which under
Rule 16b-3
or Section 162(m) of the Code, or any regulations or rules
issued thereunder, are required to be determined in the
discretion of the Committee. The Board or the Committee may in
its discretion, and consistent with applicable law, delegate to
one or more officers of the Company all or part of the
Committees authority and duties with respect to Awards to
be granted to individuals who are (i) not subject to the
reporting requirements of Section 16 of the Exchange Act,
and (ii) not Covered Employees.
10.3. Majority Rule; Unanimous Written
Consent. The Committee shall act by a
majority of its members in attendance at a meeting at which a
quorum is present or by a memorandum or other written instrument
signed by all members of the Committee.
10.4. Compensation; Professional Assistance;
Good Faith Actions. Members of the Committee
shall receive such compensation, if any, for their services as
members as may be determined by the Board. All expenses and
liabilities which members of the Committee incur in connection
with the administration of the Plan shall be borne by the
Company. The Committee may, with the approval of the Board,
employ attorneys, consultants, accountants, appraisers, brokers
or other persons. The Committee, the Company and the
Companys officers and Directors shall be entitled to rely
upon the advice, opinions or valuations of any such persons. All
actions taken and all interpretations and determinations made by
the Committee or the Board in good faith shall be final and
binding upon all Holders, the Company and all other interested
persons. No members of the Committee or Board shall be
personally liable for any action, determination or
interpretation made in good faith with respect to the Plan or
Awards, and all members of the Committee and the Board shall be
fully protected by the Company in respect of any such action,
determination or interpretation.
ARTICLE XI
MISCELLANEOUS
PROVISIONS
11.1. Transferability of Awards.
(a) Except as otherwise provided in Section 11.1(b):
(i) No Award under the Plan may be sold, pledged, assigned
or transferred in any manner other than by will or the laws of
descent and distribution or, subject to the consent of the
Administrator, pursuant to a DRO, unless and until such Award
has been exercised, or the shares underlying such Award have
been issued, and all restrictions applicable to such shares have
lapsed;
(ii) No Award or interest or right therein shall be liable
for the debts, contracts or engagements of the Holder or his
successors in interest or shall be subject to disposition by
transfer, alienation, anticipation, pledge, hypothecation,
encumbrance, assignment or any other means whether such
disposition be voluntary or involuntary or by operation of law
by judgment, levy, attachment, garnishment or any other legal or
equitable proceedings (including bankruptcy), and any attempted
disposition thereof shall be null and void and of no effect,
except to the extent that such disposition is permitted by the
preceding sentence; and
(iii) During the lifetime of the Holder, only the Holder
may exercise an Option or other Award (or any portion thereof)
granted to him under the Plan, unless it has been disposed of
pursuant to a DRO; after the death of the Holder, any
exercisable portion of an Option or other Award may, prior to
the time when such portion becomes unexercisable under the Plan
or the applicable Award Agreement, be exercised by his personal
representative or by any person empowered to do so under the
deceased Holders will or under the then applicable laws of
descent and distribution.
(b) Notwithstanding Section 11.1(a), the
Administrator, in its discretion, may determine to permit a
Holder to transfer a Non-Qualified Stock Option to any one or
more Permitted Transferees (as defined below), subject to the
following terms and conditions: (i) a Non-Qualified Stock
Option transferred to a Permitted Transferee shall not be
assignable or transferable by the Permitted Transferee other
than by will or the laws of descent and distribution;
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(ii) any Non-Qualified Stock Option which is transferred to
a Permitted Transferee shall continue to be subject to all the
terms and conditions of the Non-Qualified Stock Option as
applicable to the original Holder (other than the ability to
further transfer the Non-Qualified Stock Option); and
(iii) the Holder and the Permitted Transferee shall execute
any and all documents requested by the Administrator, including,
without limitation documents to (A) confirm the status of
the transferee as a Permitted Transferee, (B) satisfy any
requirements for an exemption for the transfer under applicable
federal, state and foreign securities laws and (C) evidence
the transfer. For purposes of this Section 11.1(b),
Permitted Transferee shall mean, with
respect to a Holder, any child, stepchild, grandchild, parent,
stepparent, grandparent, spouse, former spouse, sibling, niece,
nephew,
mother-in-law,
father-in-law,
son-in-law,
daughter-in-law,
brother-in-law,
or
sister-in-law,
including adoptive relationships, any person sharing the
Holders household (other than a tenant or employee), a
trust in which these persons (or the Holder) control the
management of assets, and any other entity in which these
persons (or the Holder) own more than fifty percent of the
voting interests.
11.2. Amendment, Suspension or Termination of
the Plan. Except as otherwise provided in
this Section 11.2, the Plan may be wholly or partially
amended or otherwise modified, suspended or terminated at any
time or from time to time by the Board or the Compensation
Committee of the Board. However, without approval of the
Companys stockholders given within twelve (12) months
before or after the action by the Administrator, no action of
the Administrator may, except as provided in Section 11.3,
(i) increase the limits imposed in Section 2.1 on the
maximum number of shares which may be issued under the Plan,
(ii) decrease the exercise price of any outstanding Option
or Stock Appreciation Right granted under the Plan, or
(iii) result in a material change in eligibility
requirements. Except as provided in Section 11.12, no
amendment, suspension or termination of the Plan shall, without
the consent of the Holder, alter or impair any rights or
obligations under any Award theretofore granted or awarded,
unless the Award itself otherwise expressly so provides. No
Awards may be granted or awarded during any period of suspension
or after termination of the Plan, and in no event may any Award
be granted under the Plan after the first to occur of the
following events:
(a) The expiration of ten (10) years from the date the
Plan is adopted by the Board; or
(b) The expiration of ten (10) years from the date the
Plan is first approved by the Companys stockholders.
11.3. Changes in Common Stock or Assets of the
Company, Acquisition or Liquidation of the
Company and Other Corporate Events.
(a) Subject to Section 11.3(d), in the event of any
dividend or other distribution (whether in the form of
extraordinary cash, Common Stock, other securities or other
property), recapitalization, reclassification, stock split,
reverse stock split, reorganization, merger, consolidation,
split-up,
spin-off, combination, repurchase, liquidation, dissolution, or
sale, transfer, exchange or other disposition of all or
substantially all of the assets of the Company, or exchange of
Common Stock or other securities of the Company, issuance of
warrants or other rights to purchase Common Stock or other
securities of the Company, or other similar corporate
transaction or event that affects the Common Stock, then the
Administrator shall equitably adjust any or all of the following
in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the Plan
or with respect to an Award:
(i) The number and kind of shares of Common Stock (or other
securities or property) with respect to which Awards may be
granted or awarded (including, without limitation, adjustments
of the limitations in Section 2.1 on the maximum number and
kind of shares which may be issued under the Plan, adjustments
of the Award Limit, and adjustments of the manner in which
shares subject to Full Value Awards will be counted);
(ii) The number and kind of shares of Common Stock (or
other securities or property) subject to outstanding
Awards; and
(iii) The grant or exercise price with respect to any Award.
(b) Subject to Section 11.3(d), in the event of any
transaction or event described in Section 11.3(a) or any
unusual or nonrecurring transactions or events affecting the
Company, any affiliate of the Company, or the financial
statements of the Company or any affiliate, or of changes in
applicable laws, regulations or accounting principles,
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the Administrator, in its discretion, and on such terms and
conditions as it deems appropriate, either by the terms of the
Award or by action taken prior to the occurrence of such
transaction or event and either automatically or upon the
Holders request, is hereby authorized to take any one or
more of the following actions whenever the Administrator
determines that such action is appropriate in order to prevent
dilution or enlargement of the benefits or potential benefits
intended to be made available under the Plan or with respect to
any Award under the Plan, to facilitate such transactions or
events or to give effect to such changes in laws, regulations or
principles:
(i) To provide for the purchase of any such Award for an
amount of cash equal to the amount that could have been attained
upon the exercise of such Award or realization of the
Holders rights had such Award been currently exercisable
or payable or fully vested, to authorize a cash payment to the
Holder of an Option or SAR in an amount equal to the amount that
could have been attained upon the exercise of the Option or SAR,
or to cancel for no consideration an Option that upon exercise
would not yield a positive benefit for the Holder;
(ii) To provide for the replacement of such Award with
other rights or property selected by the Administrator in its
discretion having an aggregate value not exceeding the amount
that could have been attained upon the exercise of such Award or
realization of the Holders rights had such Award been
currently exercisable or payable or fully vested;
(iii) To provide that the Award cannot vest, be exercised
or become payable after such event;
(iv) To provide that such Award shall be exercisable as to
all shares covered thereby, notwithstanding anything to the
contrary in Section 5.3 or the provisions of such Award;
(v) To provide that such Award be assumed by the successor
or survivor corporation, or a parent or subsidiary thereof, or
shall be substituted for by similar options, rights or awards
covering the stock of the successor or survivor corporation, or
a parent or subsidiary thereof, with appropriate adjustments as
to the number and kind of shares and prices;
(vi) To make adjustments in the number and type of shares
of Common Stock (or other securities or property) subject to
outstanding Awards,
and/or in
the terms and conditions of (including the grant, exercise or
purchase price), and the criteria included in, outstanding
options, rights and awards and options, rights and awards which
may be granted in the future; and
(vii) To provide that, for a specified period of time prior
to such event, the restrictions imposed under an Award Agreement
upon some or all shares of Restricted Stock, Restricted Stock
Units or Other Stock-Based Awards may be terminated, and, in the
case of Restricted Stock, some or all shares of such Restricted
Stock may cease to be subject to forfeiture under
Section 7.4 after such event.
(c) Subject to Sections 11.3(d) and 3.2, the
Administrator may, in its discretion, include such further
provisions and limitations in any Award, agreement or
certificate, as it may deem equitable and in the best interests
of the Company.
(d) With respect to Awards which are granted to Covered
Employees and are intended to qualify as performance-based
compensation under Section 162(m)(4)(C), no adjustment or
action described in this Section 11.3 or in any other
provision of the Plan shall be authorized to the extent that
such adjustment or action would cause such Award to fail to so
qualify under Section 162(m)(4)(C), or any successor
provisions thereto. No adjustment or action described in this
Section 11.3 or in any other provision of the Plan shall be
authorized to the extent that such adjustment or action would
cause the Plan to violate Section 422(b)(1) of the Code.
Furthermore, no such adjustment or action shall be authorized to
the extent such adjustment or action would result in short-swing
profits liability under Section 16 or violate the exemptive
conditions of
Rule 16b-3
unless the Administrator determines that the Award is not to
comply with such exemptive conditions. The number of shares of
Common Stock subject to any Award shall always be rounded down
to the next whole number.
(e) The existence of the Plan, the Award Agreement and the
Awards granted hereunder shall not affect or restrict in any way
the right or power of the Company or the stockholders of the
Company to make or authorize any adjustment, recapitalization,
reorganization or other change in the Companys capital
structure or its business, any merger or consolidation of the
Company, any issue of stock or of options, warrants or rights to
purchase stock or of bonds, debentures, preferred or prior
preference stocks whose rights are superior to or affect the
Common Stock or
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the rights thereof or which are convertible into or exchangeable
for Common Stock, or the dissolution or liquidation of the
company, or any sale or transfer of all or any part of its
assets or business, or any other corporate act or proceeding,
whether of a similar character or otherwise.
(f) It is intended that no action taken under this
Section 11.3 shall cause an Award to fail to comply with
Section 409A of the Code or the Treasury Regulations
thereunder, to the extent applicable to such Award.
11.4. Approval of Plan by
Stockholders. The Plan will be submitted for
the approval of the Companys stockholders within twelve
(12) months after the date of the Boards initial
adoption of the Plan. No Awards may be granted or awarded prior
to such stockholder approval. In addition, if the Board
determines that Awards other than Options or Stock Appreciation
Rights which may be granted to Covered Employees should continue
to be eligible to qualify as performance-based compensation
under Section 162(m)(4)(C) of the Code, the Performance
Criteria must be disclosed to and approved by the Companys
stockholders no later than the first stockholder meeting that
occurs in the fifth year following the year in which the
Companys stockholders previously approved the Plan.
11.5. Tax Withholding. The
Company or any Subsidiary shall have the authority and the right
to deduct or withhold, or require a Holder to remit to the
Company, an amount sufficient to satisfy federal, state, local
and foreign taxes (including the Holders FICA obligation)
required by law to be withheld with respect to any taxable event
concerning a Holder arising as a result of this Plan. The
Administrator may in its discretion and in satisfaction of the
foregoing requirement allow a Holder to elect to have the
Company withhold shares of Common Stock otherwise issuable under
an Award (or allow the return of shares of Common Stock) having
a Fair Market Value equal to the sums required to be withheld.
Notwithstanding any other provision of the Plan, the number of
shares of Common Stock which may be withheld with respect to the
issuance, vesting, exercise or payment of any Award (or which
may be repurchased from the Holder of such Award within six
months (or such other period as may be determined by the
Administrator) after such shares of Common Stock were acquired
by the Holder from the Company) in order to satisfy the
Holders federal, state, local and foreign income and
payroll tax liabilities with respect to the issuance, vesting,
exercise or payment of the Award shall be limited to the number
of shares which have a Fair Market Value on the date of
withholding or repurchase equal to the aggregate amount of such
liabilities based on the minimum statutory withholding rates for
federal, state, local and foreign income tax and payroll tax
purposes that are applicable to such supplemental taxable income.
11.6. Prohibition on
Repricing. Subject to Section 11.3, the
Administrator shall not, without the approval of the
stockholders of the Company, authorize the amendment of any
outstanding Award to reduce its price per share. Furthermore, no
Award shall be canceled and replaced with the grant of an Award
having a lesser price per share without the further approval of
stockholders of the Company. Subject to Section 11.2, the
Administrator shall have the authority, without the approval of
the stockholders of the Company, to amend any outstanding award
to increase the price per share or to cancel and replace an
Award with the grant of an Award having a price per share that
is greater than or equal to the price per share of the original
Award.
11.7. Forfeiture
Provisions. Pursuant to its general authority
to determine the terms and conditions applicable to Awards under
the Plan, the Administrator shall have the right to provide, in
the terms of Awards made under the Plan, or to require a Holder
to agree by separate written instrument, that: (a)(i) any
proceeds, gains or other economic benefit actually or
constructively received by the Holder upon any receipt or
exercise of the Award, or upon the receipt or resale of any
Common Stock underlying the Award, must be paid to the Company,
and (ii) the Award shall terminate and any unexercised
portion of the Award (whether or not vested) shall be forfeited,
if (b)(i) a Termination of Employment or Termination of
Directorship occurs prior to a specified date, or within a
specified time period following receipt or exercise of the
Award, (ii) the Holder at any time, or during a specified
time period, engages in any activity in competition with the
Company, or which is inimical, contrary or harmful to the
interests of the Company, as further defined by the
Administrator, (iii) the Holder incurs a Termination of
Employment or Termination of Directorship for cause
(as such term is defined in the discretion of the Administrator,
or as set forth in a written agreement relating to such Award
between the Company and the Holder), or (iv) it is
determined that the Award was made based on materially
inaccurate financial statements of the Company or any other
materially inaccurate performance metric criteria.
11.8. Effect of Plan upon Other Compensation
Plans. The adoption of the Plan shall not
affect any other compensation or incentive plans in effect for
the Company or any Subsidiary. Nothing in the Plan shall be
construed
A-16
to limit the right of the Company or any Subsidiary:
(a) to establish any other forms of incentives or
compensation for Employees or Directors of the Company or any
Subsidiary, or (b) to grant or assume options or other
rights or awards otherwise than under the Plan in connection
with any proper corporate purpose including without limitation,
the grant or assumption of options in connection with the
acquisition by purchase, lease, merger, consolidation or
otherwise, of the business, stock or assets of any corporation,
partnership, limited liability company, firm or association.
11.9. Compliance with
Laws. The Plan, the granting and vesting of
Awards under the Plan and the issuance and delivery of shares of
Common Stock and the payment of money under the Plan or under
Awards granted or awarded hereunder are subject to compliance
with all applicable federal, state, local and foreign laws,
rules and regulations (including but not limited to federal,
state and foreign securities law and margin requirements) and to
such approvals by any listing, regulatory or governmental
authority as may, in the opinion of counsel for the Company, be
necessary or advisable in connection therewith. Any securities
delivered under the Plan shall be subject to such restrictions,
and the person acquiring such securities shall, if requested by
the Company, provide such assurances and representations to the
Company as the Company may deem necessary or desirable to assure
compliance with all applicable legal requirements. To the extent
permitted by applicable law, the Plan and Awards granted or
awarded hereunder shall be deemed amended to the extent
necessary to conform to such laws, rules and regulations.
11.10. Titles. Titles are
provided herein for convenience only and are not to serve as a
basis for interpretation or construction of the Plan.
11.11. Governing Law. The
Plan and any agreements hereunder shall be administered,
interpreted and enforced under the internal laws of the State of
Delaware without regard to conflicts of laws thereof.
11.12. Section 409A. To
the extent that the Administrator determines that any Award
granted under the Plan is subject to Section 409A of the
Code, the Award Agreement evidencing such Award shall
incorporate the terms and conditions required by
Section 409A of the Code. To the extent applicable, the
Plan and Award Agreements shall be interpreted in accordance
with Section 409A of the Code and Department of Treasury
regulations and other interpretive guidance issued thereunder,
including without limitation any such regulations or other
guidance that may be issued after the Effective Date.
Notwithstanding any provision of the Plan to the contrary, in
the event that following the Effective Date the Administrator
determines that any Award may be subject to Section 409A of
the Code and related Department of Treasury guidance (including
such Department of Treasury guidance as may be issued after the
Effective Date), the Administrator may adopt such amendments to
the Plan and the applicable Award Agreement or adopt other
policies and procedures (including amendments, policies and
procedures with retroactive effect), or take any other actions,
that the Administrator determines are necessary or appropriate
to (a) exempt the Award from Section 409A of the Code
and/or
preserve the intended tax treatment of the benefits provided
with respect to the Award, or (b) comply with the
requirements of Section 409A of the Code and related
Department of Treasury guidance.
A-17
SUPERIOR BANCORP
PROXY SOLICITED BY THE BOARD OF DIRECTORS FOR
THE ANNUAL MEETING OF STOCKHOLDERS TO BE HELD ON APRIL 20, 2010
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VOTE BY INTERNET
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VOTE BY TELEPHONE
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VOTE BY MAIL |
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https://www. proxyvotenow.com/supr
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1-866-388-1533 |
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Use the Internet to transmit your
voting instructions up until
11:59 p.m., Eastern Time, the day
before the Annual Meeting date.
Have your proxy card in hand when
you access the web site and
follow the instructions to create
an electronic voting form.
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Use any touch-tone
telephone to
transmit your
voting instructions
up until 11:59
p.m., Eastern Time,
the day before the
Annual Meeting
date. Have your
proxy card in hand
when you call and
then follow the
instructions.
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Mark, sign and date
this proxy card and
return it in the
postage-paid
envelope provided. |
The undersigned hereby appoints C. Stanley Bailey and C. Marvin Scott, either one of whom may act
without joinder of the other, with full power of substitution and ratification, attorneys-in-fact
and Proxies of the undersigned to vote all shares of common stock of Superior Bancorp which the
undersigned is entitled to vote at the 2010 Annual Meeting of Stockholders to be held at 10:00 a.m.
Central Daylight Time on Tuesday, April 20, 2010, at Superior Bancorps principal executive offices
at 17 North 20th Street, Birmingham, Alabama 35203, and at any and all adjournments thereof:
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ELECTION OF DIRECTORS. To elect as directors for a term expiring at
the 2011 Annual Meeting of Stockholders the following individuals: |
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C. Stanley Bailey
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Thomas E. Jernigan, Jr.
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John C. Metz
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Charles W. Roberts, III |
Roger D. Barker
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James Mailon Kent, Jr.
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D. Dewey Mitchell
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C. Marvin Scott |
Thomas E. Dobbs, Jr.
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Mark A. Lee
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Robert R. Parrish, Jr.
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James C. White, Sr. |
Rick D. Gardner
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Peter L. Lowe |
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o FOR all of the nominees except
as marked in the space below
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o WITHHOLD AUTHORITY as to all nominees |
INSTRUCTIONS: To withhold vote for any individual(s) nominated as Directors in Item 1
above write names below:
(Continued and to be signed on other side)
(Continued from other side)
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ADOPTION OF SUPERIOR BANCORP 2010 INCENTIVE COMPENSATION PLAN. To
adopt the Superior Bancorp 2010 Incentive Compensation Plan. |
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o FOR
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o AGAINST
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o ABSTAIN |
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RATIFICATION OF SELECTION OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM. To approve the selection of Grant Thornton LLP as Superior
Bancorps independent registered public accounting firm. |
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o FOR
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o AGAINST
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o ABSTAIN |
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APPROVAL OF AN ADVISORY PROPOSAL ON THE COMPENSATION OF EXECUTIVE
OFFICERS. To adopt a resolution approving the compensation of
executive officers as set forth in the Proxy Statement. |
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o FOR
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o AGAINST
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o ABSTAIN |
THIS PROXY, WHEN PROPERLY EXECUTED, WILL BE VOTED IN THE MANNER DIRECTED HEREIN. IF NO DIRECTION IS
INDICATED, THE SHARES WILL BE VOTED FOR ALL DIRECTOR NOMINEES AND FOR ALL PROPOSALS. THE BOARD OF
DIRECTORS RECOMMENDS A VOTE FOR ALL OF THE DIRECTOR NOMINEES AND FOR ALL PROPOSALS.
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Dated: , 2010 |
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(Print Name) |
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(Signature of Stockholder(s) |
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PLEASE DATE, SIGN AND RETURN THIS PROXY TO SUPERIOR BANCORP IN THE ENCLOSED
ENVELOPE. THANK YOU. |