EX-10.23






Exhibit (10)-23




AMENDED AND RESTATED EMPLOYMENT AGREEMENT




          THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “Agreement”), dated this 29th
day of December, 2008, between Superior Bancorp, a Delaware corporation (“Parent”) and C. Stanley
Bailey (the “Executive”).




          WHEREAS, the parties and Superior Bank (“Bank”) entered into an Employment Agreement (the
“Prior Agreement”) dated January 24, 2005 for the purpose of securing the services of the Executive
as an employee of, and executive to, Parent and Bank on the terms and conditions set forth
therein;




          WHEREAS, the parties desire to amend and restate the Prior Agreement for the purpose of
complying with the provisions of Section 409A of the Internal Revenue Code of 1986, as amended (the
“Code”) and the regulations promulgated thereunder and for the purpose of removing Bank as a party
to the Agreement; and




          WHEREAS, the parties hereto believe the Prior Agreement should be amended and restated in its
entirety and have heretofore agreed to enter into this Agreement, which shall supersede and replace
the Prior Agreement.




          NOW, THEREFORE, in consideration of the mutual covenants set forth herein, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parent and the Executive agree as follows:




          1. Employment. The Parent hereby employs the Executive, and the Executive hereby
accepts such employment by the Parent, upon the terms and conditions set forth in this Agreement.




          2 Term. The term of the Executive’s employment by the Parent began on January 24, 2005
and shall terminate at midnight, Central Standard Time on January 31, 2008; provided, however, that
such term shall be automatically extended annually, beginning one (1) year from the date of the
commencement of the term and on each anniversary date thereafter, for an additional one-year
period, so that the remaining term of this Agreement shall be three (3) years from each such
anniversary date unless, with respect to any such one-year extension, either party shall notify the
other party in writing, not less than thirty (30) days prior to such anniversary date, that he or
it, as the case may be, desires to terminate this Agreement as of the end of the term then in
effect. The term during which the Executive serves as an employee of the Parent pursuant to this
Agreement is hereinafter referred to as the “Employment Period.”




          3. Positions and Duties. The Executive shall serve as the Chairman of the
Board and Chief Executive Officer of the Parent and the Bank and as a member of the board of
directors of the Parent and the Bank. At the request of the Board of Directors of the Bank (the
“Bank Board”) or the Board of Directors of the Parent (the “Parent Board”), the Executive shall
also serve as an officer or director, or both, of each subsidiary of the Bank or the Parent,
whether direct or indirect. The Executive, in his capacity as an officer of the Bank and the Parent
and as an officer




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or director of any subsidiary of the Bank or the Parent, shall perform such duties and
services as may be assigned to him by the Boards of either the Bank or the Parent, subject to the
supervision and control of the Bank Board or the Parent Board, as the case may be. The Parent, the
Bank and any subsidiary of either for which the Executive shall perform duties and services shall
be responsible for their respective proportionate shares of the Executive’s compensation. The
Executive shall not be entitled to receive any director fees or other separate compensation for his
service as a director (including without limitation service as chairman, as a member of any
committees of the Bank Board or the Parent Board, or otherwise) of the Parent, the Bank or any
subsidiary of either the Parent or the Bank.




          4. Salary. The Parent shall pay the Executive a salary during the Employment Period of
$33,333.33 per calendar month (the “Base Salary”). All salary shall be paid to the Executive no
less frequently than twice each month. Any salary paid with respect to less than a full one-month
period shall be pro-rated, with such proration being based on the number of days in such month and
the number of days during such month that are within the Employment Period. Such salary will be
reviewed during January of each year and may be increased annually, as determined by the Board of
Directors, on the recommendation of its compensation committee. The Parent shall not have the right
to reduce such salary at any time during the Employment Period without the written consent of the
Executive.




          If the Executive requests, Parent will create or cause to be created a plan of deferred
compensation that complies with Section 409A of the Code to allow the Executive to defer any salary
specified in this Section 4 to any subsequent period. Moreover, if the Executive and the Parent (by
action of the Parent Board on the recommendation of its compensation committee) mutually agree, any
salary specified in this Section 4 may be paid in kind, including common stock, stock options, life
insurance policies, annuities, or other property.




          5. Extent of Service. During the Employment Period, the Executive shall devote
substantially his entire working time, attention and energy to the business and affairs of the Bank
and the Parent and in the advancement of the best interests of the Bank and the Parent. The
foregoing sentence shall not, however, preclude the Executive from devoting reasonable periods of
time in connection with the following activities, provided that such activities do not materially
interfere with the performance of his duties and services hereunder: (a) serving as a director or a
member of a committee of any other company or organization, if serving in such capacity does not
involve any conflict with the business of the Bank or the Parent and such company or organization
is not in competition, in any manner whatsoever, with the business of the Bank or the Parent; (b)
fulfilling speaking engagements; (c) engaging in charitable and community activities; and (d)
managing his personal investments. If the Executive serves on any board at the request of or for
the benefit of the Parent or the Bank, the Executive will be indemnified for any personal
liability, including costs of defense and attorneys’ fees, that he may incur as a result of such
service. The Executive shall be authorized to receive and retain fees for serving on such boards,
except as may be otherwise specifically agreed between the Executive and the Parent or the Bank in
respect to any particular such board or boards, provided, however, that nothing herein shall
authorize or entitle the Executive to receive and retain fees for serving on the boards of the
Parent, the Bank or any of their subsidiaries.


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           6. Expenses. Subject to compliance by the Executive with such policies regarding
expenses and expense reimbursement as may be adopted from time to time by the Bank and the Parent,
the Executive will be reimbursed by the Bank or the Parent, as the case may be, for reasonable
expenses incurred in the performance of his duties and services hereunder for the Bank and the
Parent, and in the furtherance of the business of the Bank and the Parent, upon the presentation by
the Executive of an itemized account, accompanied by the appropriate receipts, satisfactory to the
Bank and the Parent, in substantiation of such expenses.




          7. Vacations. The Executive shall be entitled to take such vacations, with pay, as the
other executive officers of the Bank and Parent are generally entitled to take, but not less than
four (4) calendar weeks in each year. Executive shall take into consideration the needs of Parent
and the Bank in scheduling such vacations.




          8. Employee Benefits. The Executive shall, during the Employment Period, be eligible
to participate in such insurance, medical and other employee benefit plans of the Parent (or Bank,
if providing Executive with more generous benefits) which may be in effect, from time to time, to
the extent such plans and benefits, respectively are generally available to the other executive
officers of the Bank or Parent, or to the extent that such benefits have been approved by the Board
for the sole benefit of the Executive; provided, however, that in addition to all other life
insurance that may be available to Executive pursuant any benefit plans of the Parent or the Bank,
the Executive shall be provided term life insurance coverage paying at least $1.0 million (the
“Stated Amount”) in death benefits to the beneficiary of his choice. If such coverage is not
available at unrated premium costs, then either (i) Executive will pay the portion of the premiums
that exceed an amount equal to the unrated premium costs of such coverage if it had been available,
or (ii) if Executive is unwilling to pay the difference in premium, the amount of death benefit
provided shall be the death benefit that could be provided if a policy was acquired for the unrated
premium costs of a policy in the Stated Amount. Parent shall provide to the Executive an automobile
owned or leased by Parent of a make and model appropriate to Executive’s status and similar
automobiles historically provided to other senior executives of Parent (such as a Lexus) and
customary automobile-related benefits. Upon the Executive’s ceasing to be employed hereunder, he
shall be entitled, at his sole cost, to maintain in effect the aforesaid insurance, medical, and
other benefits, except in those circumstances where, under this Agreement, such post-employment
benefits are to be provided to Executive by the Parent and/or the Bank, or its or their
successor(s).




          9. Location of Employment. The Executive’s principal office will be located in
Birmingham, Alabama. The Executive shall be required to engage in such travel as may be necessary
in the performance of his duties and services hereunder. Executive shall, within a reasonable time
following the commencement of the Employment Period establish his permanent residence in the
Birmingham, Alabama metropolitan area.




          10. Club Memberships. It is contemplated that, after the Executive commences
performance hereunder, he may request that the Parent purchase, or provide funds (net of taxes) to
the Executive for the purchase of membership in any club (or clubs), having facilities suitable for
the Executive to use for business entertainment on behalf of the Bank or the Parent, as the Parent
Board shall deem appropriate and in the interest of the Parent and the Bank. Upon




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authorization by the Parent Board, the Parent shall pay any required initiation fees and shall
pay, either directly or as an ongoing payroll expense to reimburse the Executive (net of taxes),
for monthly dues, periodic assessments, and other such costs of any such membership. The Executive
shall be responsible for any personal charges that he may incur in utilizing the facilities of any
such club. If the Executive ceases his membership in any such clubs and any bonds or other capital
payments made by Parent are repaid to the Executive, the Executive shall pay over such payments to
Parent.




          11. Bonuses. The Executive shall be entitled to receive, within two and one-half
months of the close of each calendar year, based upon the achievement of agreed-upon performance
goals for the Parent and/or the Bank (as approved by the Parent Board upon the recommendation of
its compensation committee), a targeted annual bonus (the “Target Bonus”) equal to fifty percent
(50%) of his Base Salary for such calendar year. Notwithstanding the foregoing, Executive shall be
eligible to participate in any bonus or long-term incentive plan of the Bank and/or the Parent, or
as established by the Board of Directors of the Bank or the Parent as the case may be, for
similarly situated executive officers, and may be awarded such grants thereunder as are approved by
the Parent Board or the Bank Board or their respective compensation committees.




          12. Termination.





     (a) Automatic. This Agreement, and the Executive’s rights hereunder (except as
to salary, bonuses and other rights accrued prior thereto), shall terminate automatically as
provided in Section 2 above, unless terminated earlier pursuant to subsection (b), (c), (d)
or (e) of this Section 12.




     (b) By Executive. The Executive may terminate this Agreement in the event of
(i) a material diminution in the Executive’s base compensation, (ii) a material diminution
in the Executive’s authority, duties or responsibilities, (iii) a material change in the
geographic location at which the Executive must perform services, or (iv) any other action
or inaction that constitutes a material breach by the Parent or the Bank of this Agreement.
Provided, however, that the Executive must provide written notice to the Parent of the
Executive’s intent to terminate this Agreement, specifying the event relied upon for such
termination, within thirty (30) days after the initial occurrence of such event. The Parent
shall have thirty (30) days following the receipt of such written notice to remedy the
condition and prevent termination of the Agreement. If the event shall not have been
remedied within such thirty-day period, this Agreement shall terminate on the
31st day following the receipt of such written notice. Such termination shall
have the same effect as a termination without cause by the Parent or the Bank as set forth
in Section 12(e) hereof.




     (c) Death of Executive. If the Executive dies during the Employment
Period, this Agreement and the Executive’s rights hereunder shall automatically terminate as
of his death, except as to accrued but not paid salary, bonus and other vested rights in
compensation or benefit programs.



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     (d) Disability of Executive. If the Executive is disabled, as defined
hereinafter, during the Employment Period, this Agreement and the Executive rights hereunder
shall automatically terminate as of the occurrence of such disability. For purposes of this
Agreement, the Executive shall be deemed to be “disabled” if for medical (including
psychological) reasons he has been unable to fully perform his duties and services hereunder
for one hundred twenty (120) consecutive days, or an aggregate of one hundred eighty (180)
days in any period of twelve (12) consecutive months. Notwithstanding the foregoing, the
Executive’s rights to salary and other benefits under this Agreement shall continue for one
(1) year after the occurrence of such disability; provided, however, that salary payments
during such one-year period shall be reduced by the amount of any payments with respect to
such one-year period that the Executive shall receive from disability programs provided by
the Bank or the Parent. After the expiration of such one-year period, the Executive shall
be covered by a disability program or insurance similar to that generally available to the
other executive officers of the Bank (or Parent, if providing Executive with more generous
benefits).




     (e) By Parent. The Parent Board may terminate the Executive’s employment at any
time by giving written notice of such termination to the Executive in the manner provided
below for the giving of notices, such termination to be effective on a date specified
therein which is not less than sixty (60) days from the date of such notice (except in the
case of termination for Cause (as defined in (g) below), in which case the effective date
shall be not less than (10) days from the date of such notice); provided, however, that any
termination other than for Cause (as defined in (g) below) shall not prejudice the
Executive’s right to compensation or other benefits under this Agreement during the balance
of the Employment Period (as provided in Section 2 hereof, and without regard to such
termination). The monthly salary component of such compensation for the balance of the
Employment Period shall equal the Base Salary in effect on the effective date of termination
and shall be prorated for any partial-month period(s) included in the balance of the
Employment Period. The bonus component of such compensation for the balance of the
Employment Period shall be based on an annual bonus amount equal to the most recent annual
bonus paid or payable to the Executive and shall be prorated for any partial-year period(s)
included in the balance of the Employment Period. To the extent not previously paid, such
compensation shall be paid to the Executive in a lump sum cash payment within thirty (30)
days of Executive’s termination of employment. Such lump-sum payment is to be calculated by
discounting the payment amount using a discount rate equal to six percent (6%). The
Executive’s participation in all benefit programs and stock option agreements shall continue
throughout the Employment Period (as provided in Section 2 hereof, and without regard to
such termination) as if the Executive was still an employee and all non vested benefits
shall immediately vest, in each case as to the extent provided in the applicable benefit
plan; provided, however, that the stock options to be awarded pursuant to Section 15 hereof
shall vest as provided in said Section 15. Ownership of the automobile provided to the
Executive shall be transferred immediately to the Executive, and no further reimbursement
shall be provided with respect to such automobile. Unless terminated for Cause, the
Executive shall have the right (but shall not be obligated), at any time following receipt
of notice of termination under this Section 12(e) until the effective date



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thereof to resign as an officer and/or a director of the Bank and the Parent while
continuing to serve as an employee at the same compensation, but with such reduction in
duties as may be appropriate in order that the Executive shall no longer be an officer of
the Bank and the Parent within the meaning of Section 16(b) of the Securities and Exchange
Act of 1934. If the Executive is terminated by Parent for Cause (as defined in (g) below)
Executive’s right to compensation or other benefits under this Agreement shall terminate as
of the effective date of such termination except as to accrued but not paid salary, bonus
and other vested rights in compensation or benefit programs.




     Notwithstanding anything contained in this Agreement, the Executive understands that
certain post-termination benefits may be taxable. The Executive agrees that neither the
Bank nor the Parent will be liable to Executive for any tax assessed to Executive in
connection with the post-termination benefits. Parent will cooperate with Executive to
minimize or eliminate the tax effects to the Executive, provided that Parent shall not be
required to take any action that would significantly increase the cost to Parent of
providing such benefits. The welfare benefits that are not non-taxable medical benefits,
“disability pay” or “death benefit” plans within the meaning of Treasury Regulation Section
1.409A-1(a)(5) shall be provided and administered in a manner that complies with regulations
promulgated under Section 409A of the Internal Revenue Code of 1986, as amended (the
“Code”).




     (f) Dispute. The parties have agreed that in the case of any termination that
the Bank or the Parent contends is for Cause, but the Executive claims is not for Cause, if
the Parent continues to pay compensation to the Executive during the pendency of such
dispute, the Parent shall be entitled to the return of all compensation so paid, with
interest at the discount rate payable by the Bank on borrowings from its Federal Home Loan
Bank, and reasonable legal fees as provided in Section 29 hereof, if it is ultimately
determined that such termination was for Cause; and if the Parent shall cease such payments
and it shall be determined that such termination was not for Cause, the parties further
agree that the Executive shall be entitled to recovery of the amount due to the Executive
for payments not made, together with interest at the discount rate payable by the Bank on
borrowings from its Federal Home Loan Bank, and reasonable legal fees as provided in Section
29 hereof and, in addition, shall thereafter make any further payments due under Section
12(d), if such section is applicable, as due thereunder for the remainder of the period
specified therein. This provision is made by the parties hereto for the purpose of
compensating the Executive for the loss that he would suffer in the event of an unfounded
discontinuation of compensation payments, and to encourage fairness and equitable dealing
between the parties in the event of dispute.




     (g) For Cause. The termination of the Executive’s employment shall be for
“Cause” if it is a result of:




(i) any act (including any omission or failure to act) that constitutes, on
the part of the Executive, fraud, dishonesty, gross negligence, willful
misconduct, incompetence, breach of fiduciary duty involving direct or
indirect gain to or personal enrichment of the Executive, intentional failure



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to perform stated duties or to follow lawful direction of the Parent Board or
Bank Board, willful violation of any law, rule or regulation (other than
traffic violations or similar offenses) or final cease-and-desist order, or
material breach of this Agreement; or




(ii) the conviction (from which no appeal may be or is timely taken) of the
Executive of (A) a felony or (B) a misdemeanor involving fraud or dishonesty;
or




(iii) the suspension or removal of the Executive by federal or state banking
regulatory authorities acting under lawful authority pursuant to provisions of
federal or state law or regulation which may be in effect from time to time;
provided, however, that in the case of clauses (i) and (ii)(B) above,
such conduct shall not constitute Cause unless (A) there shall have been
delivered to the Executive a written notice setting forth with specificity the
reasons that the Parent Board believes the Executive’s conduct constitutes the
criteria set forth in clause (i) or clause (ii)(B), as the case may be, (B)
the Executive shall have been provided the opportunity to be heard in person
by the Parent Board (with the assistance of the Executive’s counsel if the
Executive so desires), and (C) after such hearing, the termination is
evidenced by a resolution adopted in good faith by a majority of the members
of the Parent Board (other than the Executive).



          13. Federal Rules and Regulations. This Agreement is subject to all applicable laws,
rules and regulations governing thrift holding companies. To the extent that any provision of this
Agreement is inconsistent with applicable federal laws, rules or regulations, such laws, rules or
regulations shall control. In such case, such provision of the Agreement shall be invalid, but only
to the extent necessary for this Agreement to comply with applicable federal laws, rules and
regulations. To the extent that any provision of any other Section of this Agreement is
inconsistent with any provision of this Section 13, such provision of this Section 13 shall govern.




          14. [Intentionally Omitted]




          15. Options. On January 24, 2005, the Executive received options, for a term
of ten (10) years, to acquire shares of Common Stock of Parent, which options were fully vested on
November 15, 2005 Should the Executive cease to be employed hereunder as a result of the
expiration of the term hereof in accordance with Section 2, the Executive shall be entitled, at any
time within three (3) months after the date on which the Executive ceases to be so employed, to
exercise any and all options vested hereunder; provided, however, if cessation of employment
results from the disability of the Executive, the post termination exercise period is extended to
one (1) year. If this Agreement should terminate by reason of the death of the Executive, the
personal representative of the estate of the Executive shall be entitled, at any time within one
(1) year after the date of death, to exercise any and all options vested hereunder. Upon the
consent of the Parent Board, which shall not be unreasonably withheld, the Parent Board shall
permit (on such terms and conditions as it shall reasonably establish) such options to be
transferred to a trust, partnership, corporation, limited liability company, or similar vehicle



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for the benefit of Executive’s immediate family members (collectively, the “Permitted
Transferees”), but otherwise, (i) no option shall be assignable or transferable except by will, or
by the laws of descent and distribution, and (ii) during the lifetime of Executive, the option
shall be exercisable only by such Executive or such Executive’s guardian, legal representative or,
if applicable, the Permitted Transferees.




          16. Compliance with Section 409A. The parties hereto intend for all
payments and benefits under this Agreement to be either outside the scope of Section 409A of the
Code or to comply with its requirements as to timing of payments. Accordingly, to the extent
applicable, this Agreement shall at all times be operated in accordance with the requirements of
Section 409A of the Code and the regulations and rulings thereunder, including any applicable
transition rules. The parties hereto shall take action, or refrain from taking any action, with
respect to the payments and benefits under this Agreement that is reasonably necessary to comply
with Section 409A of the Code. Notwithstanding any provision in this Agreement to the contrary, if
the payment of any compensation or benefit hereunder would be subject to additional taxes and
interest under Section 409A of the Code because the timing of such payment is not delayed as
provided in Section 409A(a)(2)(B) of the Code, then any such payment or benefit that Executive
would otherwise be entitled to during the first six (6) months following the date of Executive’s
termination of employment shall be accumulated and paid or provided, as applicable, on the date
that is six (6) months and one day after the date of Executive’s termination of employment, or such
earlier date upon which such amount can be paid or provided under Section 409A of the Code without
being subject to such additional taxes and interest. The preceding sentence shall apply only to
the extent required to avoid Executive’s incurrence of any additional tax or interest under Section
409A of the Code or the regulations or Treasury guidance promulgated thereunder.




          17. Non-Disclosure Covenant. The Executive shall not, at any time, both during and
after the Employment Period, except in the course of the performance of his duties and services
hereunder, communicate or disclose to any person, or use for his own account, without the prior
written consent of the Bank or the Parent, any confidential or proprietary information or trade
secrets of the Bank or the Parent, or of any person or entity that directly or indirectly through
one or more intermediaries, controls, or is controlled by, or is under common control with, the
Bank or the Parent, or of any person or entity which is directly, or indirectly through one or more
intermediaries, controlled by such person or entity (all such persons and entities being
collectively referred to herein as the “Affiliates”). The Executive shall retain all such
information and trade secrets in trust for the sole benefit of the Bank and the Parent and each of
the Affiliates and their respective successors and assigns. The Executive shall also execute and
deliver to the Bank or the Parent any and all such confidentiality agreements as the Bank or the
Parent may reasonably require, from time to time, the Bank’s or the Parent’s other executive
officers to provide.




          18. Covenant of Non-Interference. During the Employment Period and for a period of one
(1) year thereafter, with respect to any person or entity which is a then current employee,
consultant, customer, or vender of the Bank, the Parent or any of the Affiliates, the Executive
shall not, whether for his own account or for the account of any third party, interfere with the
relationship of the Bank, the Parent or such Affiliate with such person or entity, or



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endeavor to entice such person or entity to cease being an employee, consultant, customer or
vendor of the Bank, the Parent or such Affiliate.




          19. Covenant with Respect to Records and Documents. All written materials, records and
document, made by the Executive or coming into his possession prior to, during or subsequent to the
Employment Period and concerning the business or affairs of the Bank, the Parent or any of the
Affiliates shall be the sole property of the Bank, the Parent or the Affiliates, as the case may
be, and upon the termination of the Employment Period or upon the request of the Bank, the Parent
or the Affiliates, the Executive shall promptly deliver all copies of the same which are then in
his possession to the Bank, the Parent or the Affiliates, as the case may be.




          20. Covenant Not To Compete.





(a) During the Employment Period and for a period of one (1) year thereafter, the
Executive shall not, directly or indirectly,




     (i) form, or acquire a five percent (5%) or greater equity ownership, voting or
profit participation interest in, or actively participate in, control, manage,
finance a five percent (5%) or greater interest of, or invest a five percent (5%) or
greater interest in, any Competitor (as defined below); or




     (ii) except as set forth in Section 20(c), associate (which, as used in this
Section 20, shall include association as an officer, employee, partner, director,
consultant, agent, representative or advisor) with any Competitor.




(b) For purposes of this Agreement, a “Competitor” is any bank, savings
and loan or other financial institution, that operates or has a physical location
within (i) the State of Alabama or (ii) any county outside the State of Alabama in
which the Parent or the Bank, during the Employment Period, operates or has a
physical location or (the “Restricted Area”), or could reasonably be
construed to be in competition with Parent and the Bank within the Restricted Area.




(c) Notwithstanding the foregoing provisions of this Section 20, the Executive shall
be deemed not to violate the provisions of Section 20(a) with respect to a
Competitor that is headquartered outside of the Restricted Area if the Executive is
associated with such Competitor in an executive or operational capacity outside the
Restricted Area so long as the operations of such Competitor in the Restricted Area
do not constitute such Competitor’s principal business and any responsibility that
the Executive has for the local operations of such Competitor in the Restricted Area
are not directly included within the Executive’s personal responsibilities for such
Competitor (it being understood, however, that it would be a violation of Section
20(a) for such Executive to associate with a Competitor and either (i) direct or
have more than an indirect and secondary responsibility for the introduction or
strategic expansion of a Competitor’s business in the Restricted Area or (ii)
solicit or cause others to solicit customers or employees of Parent or the Bank in
connection with such introduction or strategic expansion).



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          21. [Intentionally Omitted]




          22. Change In Control. In the event a third person begins a tender or exchange offer,
circulates a proxy to stockholders, or takes other steps to effect a Change in Control (as herein
defined), Executive agrees that he will not voluntarily leave the employ of Parent, the Bank or any
subsidiary then employing him on less than six (6) months written notice to the Chairman of the
Board of the Parent, and notwithstanding such period, the Executive will continue to render the
services expected of his position, and will act in all things related to the possible Change in
Control in the manner he believes in good faith to be in the best interests of the shareholders of
the Parent, until the third person has abandoned or terminated its efforts to effect a Change in
Control or until a Change in Control has occurred.




     For purposes of this Agreement, a “Change in Control” is hereby defined to be:




(a) a merger, consolidation or other corporate reorganization of Parent in which the
Parent does not survive, or if it survives, the shareholders of Parent before such
transaction do not own more than fifty percent (50%) of, respectively, the Common Stock
of the surviving entity, and 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 Parent, by any individual, entity or group
(within the meaning of Section 13 (d)(3) or 14 (d)(2) of the Exchange Act) of beneficial
ownership of 25% or more of either the then outstanding shares of Common Stock of the
Parent or the combined voting power of the then outstanding voting securities of the
Parent entitled to vote generally in the election of directors; provided, however, that
neither of the following shall constitute a Change in Control:




	 	(i)	 	any acquisition by the Parent, any of its subsidiaries,
or any employee benefit plan (or related trust) of the Parent or its
subsidiaries, or;
	 
	 	(ii)	 	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 Parent immediately prior to such acquisition;






(c) individuals who, as of the effective date of this Agreement, constitute the Parent
Board (the “Incumbent Parent Board”) cease for any reason to constitute at least a
majority of the Parent Board, provided that any individual becoming a director
subsequent to such date, whose election, or nomination for election by the Parent’s
shareholders, was approved by a vote of at least a majority of the directors then
comprising the Incumbent Parent Board, shall be considered as though such individual
were a member of the Incumbent Parent Board, but excluding, for this purpose, any
individual whose initial assumption of office is in connection with an



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actual or threatened election contest relating to the election of the directors of the
Parent (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 Parent of a:





	 	(i)	 	complete liquidation or dissolution of the Parent, or
	 
	 	(ii)	 	the sale or other disposition of all or
substantially all the assets of the Parent, other than to a
corporation, with respect to which immediately following such sale or
other disposition more than 50% of, respectively, 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 Parent, and the
outstanding voting securities of the Parent 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 Parent and outstanding securities of
the Parent, as the case may be.






(e) Notwithstanding the foregoing, if Section 409A of the Code would apply to any
payment or right arising hereunder as a result of a Change in Control as hereinabove
described, then with respect to such right or payment the only events that would
constitute a Change in Control for purposes hereof shall be those events that would
constitute a change in the ownership or effective control of the corporation, or in the
ownership of a substantial portion of the assets of the corporation in accordance with
said section 409A.



          23. Termination Following Change in Control. Except as otherwise provided in Section
24 hereof, Parent will provide or cause to be provided to Executive the rights and benefits
described in Section 24 hereof in the event that Executive’s employment is terminated at any time
within two years (or, if Section 409A is applicable, and a lesser period is required thereunder,
then such lesser period) following a Change in Control (as such term is defined in Section 22)
under the circumstances stated in (a) or (b) below:





(a) by Parent or the Bank for reasons other than for Cause (as is defined in
Section 12 (g) hereof) or other than as consequence of Executive’s death, permanent
disability or attainment of normal retirement date; or




(b) by Executive following the occurrence of any of the following events:




(i) a material diminution in the Executive’s base compensation;



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(ii) a material diminution in the Executive’s authority, duties or
responsibilities;




(iii) a material change in the geographic location at which the Executive
must perform services; or




(iv) any other action or inaction that constitutes a material breach by the
Parent or the Bank of this Agreement.




Provided, however, that the Executive must provide written notice to the
Parent or the Bank, as the case may be, of the initial occurrence of such
event, within thirty (30) days after the occurrence of such event. The
Parent and/or the Bank, as the case may be, shall have thirty (30) days
following the receipt of such written notice to remedy the condition. If
the event shall not have been remedied within such thirty-day period, the
Executive’s employment shall terminate on the 31st day following the receipt
of such written notice and Executive shall be entitled to the rights and
benefits set forth in Section 24 of this Agreement.



          24. Rights and Benefits Upon Termination upon Change in Control. In the event of the
termination of Executive’s employment under any circumstance set forth in Section 23 hereof
(“Termination”), Parent agrees to provide or cause to be provided to Executive the following rights
and benefits:





(a) Salary and Other Payments at Termination. Executive shall be entitled to
receive payment in cash in the amount of three (3) times Executive’s Earnings (at such
time as defined in this Section 24(a)). Payment shall be made in lump sum to the
Executive within 30 days of termination. For purposes of this Agreement, “Earnings” shall
mean the sum of (i) Executive’s annual Base Salary as approved by the Parent Board for
the year in which the Change in Control occurs, plus (ii) the Target Bonus Executive
would have been entitled to receive for the calendar year in which the Change in Control
occurs as if the performance targets had been achieved.




(b) Lapse of Restrictions on Benefits. Except to the extent expressly
prohibited by any applicable law or regulation or the terms of any applicable benefit
plans, any and all restrictions, vesting schedules or schedule of exercise provided in
any agreement with the Executive shall immediately lapse and Executive shall be entitled
immediately to receive all benefits and exercise all rights previously granted him
thereunder. Notwithstanding any provision of this Agreement to the contrary, the options
granted under Section 15 hereof shall immediately vest upon a Termination.




(c) [Intentionally Omitted]




(d) Target Bonus. Notwithstanding any provision of any plan or arrangement, any
Target Bonus under Section 11 for a year prior to the year of the Termination with



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respect to a Change in Control, which has not been paid, shall be paid within 30 days of
the Termination, and a Target Bonus for the year of the Termination with respect to a
Change in Control shall be paid in an amount equal to 1/12th of the Target Bonus for the
prior year times each full month in the current year prior to the month of the
Executive’s Termination.




(e) Insurance and Other Special Benefits. For three (3) years following an
Executive’s Termination, Executive shall continue to be covered by the life insurance,
medical insurance, dental insurance and accident and disability insurance plans of Parent
and its subsidiaries or any successor plan or program in effect at or after Termination
for employees in the same class or category as was Executive prior to his Termination. In
the event, Executive is ineligible to continue to be so covered under the terms of any
such benefit program, or, in the event the Executive is eligible but the benefits
applicable to Executive under any such plan or program after Termination are not
substantially equivalent to the benefits applicable to Executive immediately prior to
Termination, then, Parent shall for a period of three years following his Termination
date, pay, provide or cause to be provided, benefits, or such additional benefits as may
be necessary to make the benefits applicable to the Executive substantially equivalent to
those in effect before termination, through other sources; provided however, that
if during such period Executive should enter into the employ of another company or firm
which provides substantially similar benefit coverage, Executive’s participation in the
comparable benefit provided by Parent either directly or through such other sources shall
cease. Nothing contained in this paragraph shall be deemed to require or permit
termination or restriction of any Executive’s coverage under any plan or program to
Parent or any of its subsidiaries or any successor plan or program thereto which
Executive is entitled under the terms of such plan or program.




       Notwithstanding anything contained in this Agreement, the Executive understands that
certain post-termination benefits may be taxable. The Executive agrees that neither the
Bank nor the Parent will be liable to Executive for any tax assessed to Executive in
connection with the post-termination benefits. Parent will cooperate with Executive to
minimize or eliminate the tax effects to the Executive, provided that the Parent shall
not be required to take any action that would significantly increase the cost to the
Parent of providing such benefits. The welfare benefits that are not non-taxable medical
benefits, “disability pay” or “death benefit” plans within the meaning of Treasury
Regulation Section 1.409A-1(a)(5) shall be provided and administered in a manner that
complies with regulations promulgated under Section 409A of the Internal Revenue Code of
1986, as amended (the “Code”).




(f) Ownership of Perquisites. The ownership of all club memberships, automobiles,
and other perquisites approved by the Parent Board for the Executive prior to his
Termination shall be transferred, fully paid and free of charge, to him within 30 days of
his Termination, provided that Executive pays to the Parent an amount equal to any
capital, bond or other equity amount paid by Parent related to such membership.



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(g) Other Benefit Plans. The specific arrangements referred to in this Section 24
are not intended to exclude Executive’s participation in other benefit plans in which
Executive currently participates or which are or may become available to Executive, or to
preclude other compensation or benefits as may be authorized by the Parent Board from
time to time.




(h) No Duty to Mitigate. Executive’s entitlement to benefits hereunder shall not
be governed by any duty to mitigate his damages by seeking further employment nor offset
by any compensation that he may receive from future employment.




(i) Payment Obligation Absolute. Unless Section 25 is applicable, Parent’s
obligation to pay or cause to be paid to Executive the benefits and to make arrangements
provided in this Section 24 shall be absolute and unconditional and shall not be affected
by any circumstances, including, without limitation, any offset, counterclaim,
recoupment, defense or other right, which Parent or Bank may have against him or anyone
else. All amounts payable by or on behalf of Parent under this Section 24 shall, unless
specifically stated to the contrary herein, be paid without notice or demand. Each and
every payment made under this Section 24 by or on behalf of Parent shall be final and
Parent or Bank and their subsidiaries shall not, for any reason whatsoever, seek to
recover all or any part of such payment from Executive or from whoever shall be entitled
thereto.




(j) [Intentionally Omitted]




(k) Gross-Up Payment.




(i) In the event it shall be finally determined, in a proceeding that is
non-appealable, that any payment, award, benefit or distribution by the Parent (or
any of its affiliated entities) to or for the benefit of the Executive (whether
pursuant to the terms of this Agreement or otherwise, but determined without regard
to any additional payments required under this Section 24(k) (a “Payment”) is
subject to the excise tax imposed by Section 4999 of the Code or any corresponding
provisions of state or local tax laws, or any interest or penalties are incurred by
the Executive with respect to such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter collectively referred to as the
“Excise Tax”), then the Executive shall be entitled to receive an additional
payment (a “Gross-Up Payment”) in an amount such that after payment by the
Executive of all taxes (including any interest or penalties imposed with respect to
such taxes), including, without limitation, any income taxes or employment taxes (and
any interest and penalties imposed with respect thereto) and Excise Tax imposed upon
the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal
to the Excise Tax imposed upon the Payments. As a result of the uncertainty in the
application of Section 4999 of the Code, it is possible that Gross-Up Payments which
will not have been made by the Parent should have been made (“Underpayment”),
consistent with the calculations required to be made hereunder. In the event that the
Parent exhausts its remedies pursuant to Section 24(k)(ii) and



14









 







the Executive thereafter is required to make a payment of any Excise Tax, any such
Underpayment shall be promptly paid by the Parent to or for the benefit of the
Executive.




(ii) The Executive shall notify the Parent in writing of any claim by the Internal
Revenue Service that, if successful, would require the payment by the Parent of the
Gross-Up Payment. Such notification shall be given as soon as practicable but no
later than ten (10) business days after the Executive is informed in writing of such
claim and shall apprise the Parent of the nature of such claim and the date on which
such claim is requested to be paid. The Executive shall not pay such claim prior to
the expiration of the 30-day period following the date on which it gives such notice
to the Parent (or such shorter period ending on the date that any payment of taxes
with respect to such claim is due). If the Parent notifies the Executive in writing
prior to the expiration of such period that it desires to contest such claim, the
Executive shall:




(A) give the Parent any information reasonably requested by the Parent relating
to such claim;




(B) take such action in connection with contesting such claim as the Parent shall
reasonably request in writing from time to time, including, without limitation,
accepting legal representation with respect to such claim by an attorney
reasonably selected by the Parent;




(C) cooperate with the Parent in good faith in order effectively to contest
such claim; and




(D) permit the Parent to participate in any proceedings relating to such
claim; provided, however, that the Parent shall bear and pay directly all
costs and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Executive harmless,
on an after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions of
this paragraph, the Parent shall control all proceedings taken in connection with
such contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct the
Executive to pay the tax claimed and sue for a refund or contest the claim in any
permissible manner and the Executive agrees to prosecute such contest to a
determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Parent shall determine.




provided, however, that if the Parent directs the Executive to pay such
claim and sue for a refund, the Parent shall advance the amount of such payment to the
Executive,



15









 







on an interest-free basis and shall indemnify and hold the Executive harmless, on an
after-tax basis, from any Excise Tax or income tax (including interest or penalties
with respect thereto) imposed with respect to such advance or with respect to any
imputed income with respect to such advance; provided, further, that
any extension of the statute of limitations relating to payment of taxes for the
taxable year of the Executive with respect to which such contested amount is claimed to
be due is limited solely to such contested amount. Furthermore, the Parent’s control of
the contest shall be limited to issues with respect to which a Gross-Up Payment would
be payable hereunder and the Executive shall be entitled to settle or contest, as the
case may be, any other issue raised by the Internal Revenue Service or any other taxing
authority.




(iii) If, after the receipt by the Executive of an amount advanced by the Parent
pursuant to Section 24(k)(ii), the Executive becomes entitled to receive any refund
with respect to such claim, the Executive shall (subject to the Parent’s complying with
the requirements of Section 24(k)(ii)) promptly pay to the Parent the amount of such
refund (together with any interest paid or credited thereon after taxes applicable
thereto). If, after the receipt by the Executive of an amount advanced by the Parent
pursuant to Section 24(k)(ii), a determination is made that the Executive shall not be
entitled to any refund with respect to such claim and the Parent does not notify the
Executive in writing of its intent to contest such denial of refund prior to the
expiration of 30 days after such determination, then such advance shall be forgiven and
shall not be required to be repaid and the amount of such advance shall offset, to the
extent thereof, the amount of Gross-Up Payment required to be paid.




(l) Parent shall pay or reimburse Executive for all costs and expenses, including,
without limitation, court costs and attorneys’ fees, incurred by Executive as a result of
any claim by the Internal Revenue Service that, if successful, would require the payment by
the Parent of the Gross-Up Payment, if Parent contests such claim as herein above provided
or otherwise fails to timely pay the Gross-Up Payment.




(m) If the Executive is terminated for Cause as defined in Section 12(g) hereof, Parent
shall have no obligation to provide or cause to be provided to Executive the rights and
benefits described in this Section 24.



          25. Remedies. The Executive acknowledges that the Bank and the Parent will have no
adequate remedy at law if the Executive violates any of the terms hereof, and the Bank and the
Parent shall have the right, in addition to any other rights the Bank and the Parent may have, to
obtain, in any court of competent jurisdiction, injunctive relief to restrain any breach or
threatened breach hereof or otherwise to specifically enforce any of the provisions hereof.




          26. Compliance with Other Agreements. The Executive represents
and warrants to the Bank and the Parent that the execution and delivery by him of this Agreement,
and the performance by him of his obligations hereunder will not, with or without the giving of
notice or the passage of time, or both, (a) violate any judgment, writ, injunction or order of any
court, arbitrator or governmental agency applicable to him, or (b) to the knowledge of the
Executive,



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conflict with, result in the breach or termination of, constitute a default under, or require
a material modification of, any agreement to which the Executive is a party or by which the
Executive is or may be bound.




          27. Waiver. No waiver of any obligation of any party hereto under this Agreement shall
be effective unless in a writing specifying such waiver and executed by the other party. No waiver
of any right or remedy of any party hereto under this Agreement shall be effective unless in a
writing specifying such waiver and executed by such party. A waiver by any party hereto of any of
its rights or remedies under this Agreement on any occasion shall not be a bar to the exercise of
the same right or remedy on any subsequent occasion or of any other right or remedy at any time.




          28. Binding Effect; Benefits. This Agreement shall inure to the benefit of, and shall
be binding upon, the parties hereto and their respective successors, permitted assigns, heirs and
legal representatives, including, without limitation, any corporation with which the Parent may
merge or consolidate; provided, however, that this Agreement, because it relates to personal
services, cannot be assigned by the Executive.




          29. Attorneys’ Fees and Costs. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorneys’ fees, costs, and necessary disbursements in addition to any other relief to
which he or it may be entitled.




          30. Notices. Any notice or other written communication, with respect to the employment
of the Executive by the Bank and the Parent, or any matter related to the rights or obligations of
any party under this Agreement, and to be given to a party hereto, shall be given to such party at
the address for such party provided herein, or such other address as such party shall hereafter
provide, in writing, to the other party.




	 	 	 	 	 
	 

	 	To Executive:
	 	P.O. Box 465
	 

	 	 	 	Baileyton, AL 35019
	 
	 	 	 	 
	 

	 	To Parent:
	 	17 North 20th Street
	 

	 	 	 	Birmingham, AL 35203





All such notices or communications shall be given by being personally delivered, placed in the
United States mail, postage prepaid, certified or registered mail, or by being sent by prepaid air
freight, overnight delivery, which is guaranteed and acknowledgement of receipt of which is
required, to the party to which such notice or communication is to be given at the address for such
party specified above. Each such notice shall be deemed to be effective upon receipt, if personally
delivered, one business day after being so sent by air freight, or five business days after being
so mailed. For purposes of this Agreement, a business day shall mean a day other than a Saturday,
Sunday or federal or Alabama state holiday.




          31. Integration and Amendments. This Agreement constitutes the entire agreement and
understanding between the parties hereto with respect to the subject matter hereof and



17









 






supersedes any prior agreement or understanding, whether written or oral, relating to such
subject matter. No modification or amendment to this Agreement shall be effective or binding unless
in writing, specifying such modification or amendment, executed by all of the parties hereto.
Notwithstanding the foregoing, in the event the provisions of this Agreement should be amended,
modified or terminated in order to ensure compliance with Section 409A of the Code or in order to
avoid the application of any penalties that may be imposed upon the Executive pursuant to Section
409A of the Code, the parties hereby agree that they will use their best efforts and will negotiate
in good faith to cause this Agreement to be so amended, modified or terminated (and may do so
retroactively) and to the extent reasonably possible, such amendment, modification or termination
shall not have a material adverse economic effect on the Executive, the Parent or the Bank.




          32. Headings. The headings contained in this Agreement are for reference purposes only
and shall not affect the construction or interpretation of this Agreement.




          33. Severability. Should any section, provision, or portion of this Agreement be
declared invalid or unenforceable in any jurisdiction, then such section, provision or portion
shall be deemed to be (a) severable from this Agreement as to such jurisdiction (but not elsewhere)
and shall not affect the remainder hereof, and (b) amended to the extent, and only to the extant,
necessary to permit such section, provision or portion, as the case may be, to be valid and
enforceable in such jurisdiction (but not elsewhere).




          34. Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall, when executed, be deemed to be an original, but all of which together shall
constitute one and the same instrument.




          35. Governing Law. This Agreement is made and shall be construed under the internal
laws, but not the conflicts of law provisions, of the State of Alabama.




          36. Survival/Effectiveness of Certain Provisions. The rights and obligations of the
parties under Sections 17, 18, 19, 20, 22, 23, 24, 25 and 29 hereof shall survive the termination
of the Employment Period and this Agreement. The rights and obligation of the parties under Section
15 hereof shall be effective immediately, notwithstanding the termination of the Executive’s
employment for any reason other than as provided in said Section 15 hereof prior to the execution
of an award agreement with respect to the options under Section 15.




[Signatures Appear on Immediately Following Page]




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          IN WITNESS WHEREOF the parties have executed this Agreement as of the date
first written above.




	 	 	 	 	 
	 	EXECUTIVE:

 	 
	 	/s/ C. Stanley Bailey
 	 
	 	C. Stanley Bailey 	 
	 	 	 
	 



	 	 	 	 	 	 	 
	 	 	SUPERIOR BANCORP	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ C. Marvin Scott
 

	 	 
	 

	 	Its
	 	President	 	 
	 

	 	 	 	 	 	 






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