SUPERIOR BANCORP
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
Filed by the Registrant þ
Filed by a Party other than the Registrant o
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
(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):
þ No fee required
o Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
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Check box if any part of the fee is offset as provided by Exchange Act Rule
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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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SUPERIOR
BANCORP
17 North 20th Street
Birmingham, Alabama 35203
March 20,
2009
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 22, 2009, 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 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 22, 2009
To the Stockholders of Superior Bancorp:
You are hereby notified that the 2009 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 22, 2009, at
10:00 a.m. Central Time, for the following purposes:
1. To elect 13 directors to serve for a term expiring
at the 2010 Annual Meeting or until their respective successors
are duly elected and qualified, or until their earlier death,
resignation or removal.
2. To amend Superior Bancorps Certificate of
Incorporation to increase the number of shares of authorized
common stock from 15 million to 20 million.
3. To ratify the appointment of Grant Thornton LLP as
Superior Bancorps registered independent 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 2, 2009, 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 Annual Meeting to be held on April 22,
2009. The Proxy Statement and the accompanying proxy materials
for the year ended December 31, 2008 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, 2009
through April 22, 2009, 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 20, 2009
SUPERIOR
BANCORP
17 North 20th Street
Birmingham, Alabama 35203
PROXY
STATEMENT
For 2009 Annual Meeting of
Stockholders
to be Held on April 22,
2009
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
2009 Annual Meeting of Stockholders to be held on Wednesday,
April 22, 2009, 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 20, 2009.
On May 18, 2006, Superior Bancorp changed its name from The
Banc Corporation. Superior Bancorps subsidiary, Superior
Bank, had changed its name from The Bank on January 1,
2006. All references in this Proxy Statement to Superior Bancorp
and Superior Bank for periods prior to those dates shall be
deemed to refer to their respective predecessor organizations.
Stockholders
Entitled to Vote
Only stockholders of record at the close of business on
March 2, 2009, 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 2, 2009, the number of
shares of common stock outstanding and entitled to vote at the
Annual Meeting was 10,099,893. 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
13 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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The proposed amendment to our Restated Certificate of
Incorporation (Proposal Number Two) requires approval by
the holders of a majority of our issued and outstanding shares
of common stock. 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. Your failure to attend
the Annual Meeting or to be represented at the meeting by proxy
will also have the same effect as a vote against
Proposal Number Two.
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Ratification of the appointment of Grant Thornton LLP as
Superior Bancorps independent auditors
(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 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 nonvotes will
not be counted as votes cast and therefore will not affect the
determination as to whether the executive compensation is
approved. Because this shareholder 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 vote by telephone or the
Internet as well as by mail following the instructions on your
voting instruction form.
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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2
Solicitation
We will bear the costs of soliciting proxies. We have engaged
Georgeson, Inc. to aid in the solicitation of proxies, for which
we will pay a fee of approximately $7,500 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.
3
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth, to the best of our knowledge,
certain information regarding our beneficial stock ownership as
of March 2, 2009, 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 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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239,207
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(3)
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2.33
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%
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Roger D. Barker
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20,996
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(4)
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*
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William H. Caughran
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7,094
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(5)
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*
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Rick D. Gardner
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104,676
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(6)
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1.03
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%
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Thomas E. Jernigan, Jr.
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71,569
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(7)
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*
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James Mailon Kent, Jr.
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110,992
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(8)
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1.10
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%
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Mark A. Lee
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385,467
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(9)
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3.82
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%
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James M. Link
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7,019
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(10)
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*
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Peter L. Lowe
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25,807
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*
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John C. Metz
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91,355
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(11)
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*
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D. Dewey Mitchell
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67,535
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(12)
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*
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Barry Morton
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83,290
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(13)
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*
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Robert R. Parrish, Jr.
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21,395
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(14)
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*
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Charles W. Roberts, III
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17,957
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*
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C. Marvin Scott
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129,464
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(15)
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1.27
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%
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James A. White
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0
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*
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James C. White, Sr.
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7,390
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(16)
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*
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All executive officers and directors as a group (18 persons)
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1,391,213
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(17)
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13.27
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%
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Stockholders:
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K. Earl Durden (18)
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1,115,556
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(19)
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10.04
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%
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(1) |
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Except as otherwise noted herein, percentage is determined on
the basis of 10,099,893 shares of Superior Bancorp common
stock outstanding 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 or warrants.
Unless otherwise indicated, the address of each person is
c/o Superior
Bancorp, 17 North 20th Street, Birmingham, Alabama 35203. |
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(2) |
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Ownership percentage for each named individual is calculated by
treating any shares subject to options or warrants that are held
by the named individual and that are exercisable within the next
60 days as if outstanding, but treating such option or
warrant shares held by others and treating shares subject to
options or warrants 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 2,619 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, 1,062 shares of
restricted stock over which he has voting power but not
investment power, and 3,686 shares held for his benefit by
employee benefit plans. |
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Includes 88,996 shares subject to options that are
exercisable within 60 days and 380 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 54,298 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 1,250 shares subject to options that are
exercisable within 60 days. |
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Includes 1,447 shares held in his spouses IRA. |
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Includes 36,578 shares held by a corporation of which he is
a controlling shareholder and 3,645 shares held for his
benefit by an employee benefit plan. |
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Includes 5,000 shares subject to options that are
exercisable within 60 days. |
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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 2,219 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 384,734 shares subject to options that are
exercisable within 60 days. |
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Mr. Durdens address is 2605 Thomas Drive, Panama
City, Florida 32408. |
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Includes 1,000,000 shares subject to warrants that are
exercisable within 60 days and 8,125 shares subject to
options that are exercisable within 60 days. |
5
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 2010 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 13 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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59
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Chairman & Chief Executive Officer; Director
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Roger D. Barker
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61
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Director
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Rick D. Gardner
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49
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Chief Operating Officer; Director
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Thomas E. Jernigan, Jr.
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43
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Director
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James Mailon Kent, Jr.
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68
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Director
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Mark A. Lee
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50
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Director
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Peter L. Lowe
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70
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Director
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John C. Metz
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69
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Director
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D. Dewey Mitchell
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52
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Director
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Robert R. Parrish, Jr.
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54
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Director
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Charles W. Roberts, III
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55
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Director
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C. Marvin Scott
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59
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President; Director
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James C. White, Sr.
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61
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Director
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(1) |
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Directors Barker, Jernigan and White are members of the Audit
Committee; Directors Lee and Metz are members of the
Compensation Committee; Director Roberts is a member of the
Nominating and Corporate Governance Committee. Current director
James M. Link, who is not standing for re-election at the Annual
Meeting, is also a member of the Compensation and Nominating and
Corporate Governance Committees. Current director Barry Morton,
who is not standing for re-election at the Annual Meeting, is
also a member of the Nominating and Corporate Governance
Committee. |
C. Stanley Bailey joined Superior Bancorp as Chief
Executive Officer and a Director in 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.
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 December 2003 and began
serving as a director of Superior Bank in 1998.
6
Rick D. Gardner joined Superior Bancorp as Chief
Operating Officer in January 2005 and was elected as a director
in June 2005. 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.
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.
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.
Mark A. Lee has served as President of Forest Hill
Capital, LLC, a private investment advisory firm in Little Rock,
Arkansas, for the past eight 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.
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.
John C. Metz is the Chairman, and Chief Executive Officer
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.
D. Dewey Mitchell is a co-owner of Capstone Tropical
Holdings, Inc., New Port Richey, 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 became a
director of Superior Bancorp.
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
for more than 20 years. Mr. Parrish has been a
director of Superior Bancorp since November 2005.
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.
C. Marvin Scott joined Superior Bancorp as President
in January 2005 and was elected as a director in June 2005.
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.
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.
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.
7
Executive
Officers
The following table sets forth certain information about our
current executive officers:
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Name
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Age
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Position
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C. Stanley Bailey
|
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59
|
|
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Chief Executive Officer; Director
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William H. Caughran
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52
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General Counsel and Secretary
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Rick D. Gardner
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49
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Chief Operating Officer; Director
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C. Marvin Scott
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59
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President; Director
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James A. White
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65
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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 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
The Board of Directors held a total of six meetings and acted by
unanimous written consent one time during 2008. During 2008,
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. The Board of Directors has determined that the
following 11 directors are independent
directors under Rule 4200 of the NASDAQ Stock Market
Marketplace Rules during 2008: Messrs. Barker, Jernigan,
Kent, Lee, Link, Metz, Mitchell, Morton, 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. There is no policy requiring
the directors to attend meetings of stockholders. Seven of the
15 members of the Board of Directors at that time attended the
2008 Annual Meeting.
The Board of Directors currently has three standing committees:
the Audit Committee, the Compensation Committee and the
Nominating and Corporate Governance Committee.
Audit Committee. The Audit Committee is
responsible for overseeing our accounting and financial
reporting processes and the audits of our financial statements.
Among other things, the Audit 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 and reviews the performance of overall
accounting and financial controls. The Audit Committee currently
comprises Messrs. Barker (Chair), Jernigan and White.
During 2008, there were eight meetings of the Audit Committee.
See Report of the Audit Committee.
Each of the members of the Audit Committee is an independent
director, as defined under NASDAQ Rule 4200, and meets the
standards required by
Rule 10A-3(b)(1)
under the Securities Exchange Act of 1934. The
8
Board of Directors has determined that each of Mr. Barker
and Mr. White qualifies as an audit committee
financial expert, under the Rules of the Securities and
Exchange Commission. The Audit 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 all of
our 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. Link (Chair), Lee and Metz, all of whom
are independent directors as defined under NASDAQ
Rule 4200. During 2008, the Compensation Committee held
five 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.
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. Morton (Chair), Link and Roberts. Each
of the voting members of the Committee is an independent
director, as defined under NASDAQ Rule 4200. The Nominating
and Corporate Governance Committee met one time during 2008.
The Nominating and Corporate Governance Committee has a written
charter which is available on our website at
www.superiorbank.com. The 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
Committee is also responsible for developing and recommending to
the Board criteria to be used in reviewing and evaluating
candidates recommended by shareholders 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 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 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 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
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 Committee will consider recommendations for director
nominees submitted by stockholders. In order for the Committee
to evaluate the nominees properly, such nominations should be
received by the 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
Securities Exchange Act of 1934, as amended (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
9
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 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
Committee in care of William H. Caughran, Secretary, Superior
Bancorp., 17 North 20th Street, Birmingham, Alabama 35203.
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 2008:
Director
Compensation
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Change in
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Pension
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Value and
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Fees
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Nonqualified
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Earned
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Non-Equity
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Deferred
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or Paid
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Stock
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Option
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Incentive Plan
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Compensation
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All Other
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in Cash
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Awards
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Awards
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Compensation
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Earnings
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Compensation
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Total
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Name
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($)
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($)(1)
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($)(2)
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($)
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($)
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($)
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($)
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Roger D. Barker
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$
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31,000
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$
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655
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$
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31,655
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K. Earl Durden
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$
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8,500
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$
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8,500
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Thomas E. Jernigan, Jr.
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$
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24,000
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$
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655
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$
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24,655
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James Mailon Kent, Jr.
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$
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26,500
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$
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655
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$
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27,155
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Mark A. Lee
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$
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22,000
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$
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3,031
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$
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25,031
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James M. Link
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$
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20,000
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$
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655
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$
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20,655
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Peter L. Lowe
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$
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24,000
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$
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6,871
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$
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30,871
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John C. Metz
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$
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24,500
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$
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6,871
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$
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31,371
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D. Dewey Mitchell
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$
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24,000
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$
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9,423
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$
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33,423
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Barry Morton
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$
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18,500
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$
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655
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$
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19,155
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Robert R. Parrish, Jr.
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$
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23,500
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$
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655
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$
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24,155
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Charles W. Roberts III
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$
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19,000
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$
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3,031
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$
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22,031
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James C. White, Sr.
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$
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27,000
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$
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655
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$
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27,655
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|
(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. |
|
(2) |
|
Amounts in this column are the amounts recognized by Superior
Bancorp in its financial statements as expenses for 2008 in
connection with stock options granted in 2008 or prior years.
Mr. Lowe and Mr. Metz were each granted options in
2007, and Mr. Mitchell was granted options in 2006, to
purchase 1,250 shares of Superior Bancorp common stock in
connection with each individuals election to the board of
directors. The grant date fair value of the option awards to
Mr. Lowe, Mr. Metz, and Mr. Mitchell were
$17,084, $17,084 and $19,575, respectively. In April, 2008,
Mr. Lee and Mr. Roberts were each granted options to
purchase 1,250 shares of Superior Bancorp common stock in
connection with their election to the board of directors. The
grant date fair market value of the option awards to each of
Mr. Lee and Mr. Roberts was $8,722. In July, 2008,
each of Mr. Barker, Mr. Jernigan, Mr. Kent,
Mr. Lee, Mr. Link, Mr. Lowe, Mr. Metz,
Mr. Mitchell, Mr. Morton, Mr. Parrish,
Mr. Roberts, and Mr. White was granted options to
purchase 1,250 shares of Superior Bancorp |
10
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common stock. The grant date fair market value of the July 2008
option awards to each of those directors was $4,718. |
Non-employee directors receive an annual retainer of $10,000,
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
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
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, amongst 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 Securities and Exchange Commission
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 Securities Exchange Act of 1934
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 Securities and Exchange Commission. 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 2008, 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. Roberts filed an amended Form 4 in February, 2008,
reporting an open market purchase of 1,250 shares (adjusted
for the
1-for-4
reverse split in April 2008) of Superior Bancorp common
stock which was inadvertently omitted from a timely filed
Form 4.
11
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, 2008. 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 2008, 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 all officers, including 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 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.
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. See Benchmarking. 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 American Recovery and Reinvestment Act of 2009
(ARRA) has directed the United States Treasury
Department to implement compensation standards for
Capital Purchase Program participants. It is not clear at this
time what those standards will be. The Compensation Committee
will consider any compensation standards which are adopted and
will determine how and if they impact Superior Bancorps
executive compensation program. For an in-depth explanation of
the recently enacted rules and the effect of those rules on
Superior Bancorp, please see Effects of Recent Legislation
on Executive Compensation.
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: Bank of the Ozarks, Inc.
(Little Rock, AR), Capital City Bank Group (Tallahassee, FL),
Fidelity Southern Corporation (Atlanta, GA), First Bancorp, Inc.
(Troy, NC), Hancock Holding Company (Gulfport, MS), 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) and WesBanco, Inc. (Wheeling,
WV). 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
12
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. For 2008 the
Committee determined that the salary of Mr. Bailey would
increase from $450,000 to $475,000, the salary of Mr. Scott
would increase from $350,000 to $370,000, the salary of
Mr. Gardner would increase from $300,000 to $320,000, the
salary of Mr. Tarnakow would increase from $200,000 to
$210,000, and the salary of Mr. Caughran would increase
from $165,000 to $175,000 due to their contributions to Superior
Bancorp. Mr. White joined Superior Bancorp in September of
2008 at an annual base salary of $275,000.
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 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 2008. The
Compensation Committee makes a determination of awards based on
the information available to it at the time. The Compensation
Committee has no policy 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
Committee believes that the decision of whether a recovery is
appropriate depends upon the facts and circumstances surrounding
the restatement or adjustment. See Effects of Recent
Legislation on Executive Compensation.
For 2008 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 that each of the named executive officers
was entitled to a payout for 2008; however, Mr. Bailey
declined to accept any award. Mr. Scott, Mr. Gardner,
Mr. White and Mr. Caughran received awards for 2008 of
$77,700, $67,200, $15,104 and $38,500, respectively,
representing approximately 21%-22% of their respective base
salaries paid during 2008.
13
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, 2008 the Compensation
Committee granted options to purchase 2,750 shares of
Superior Bancorp stock to each of Mr. Caughran and
Mr. Tarnakow. No grants were made to Mr. Bailey,
Mr. Scott or Mr. Gardner in 2008 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. In October, 2008 the
Compensation Committee granted options to purchase
25,000 shares of Superior Bancorp common stock to
Mr. White in connection with his employment. See
Employment Agreements.
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
2008 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 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 so that no additional benefits are
accruing under the plan. Superior Bancorp is required to make
contributions in 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.
14
Effects
of Recent Legislation on Executive Compensation
Emergency
Economic Stabilization Act of 2008
On December 5, 2008, Superior Bancorp sold preferred stock
and warrants to purchase common stock to the United States
Treasury Department (Treasury Department) pursuant
to the Treasury Departments Troubled Asset Relief Program
(TARP) Capital Purchase Program (CPP)
which was authorized by the Emergency Economic Stabilization Act
of 2008 (EESA). Superior Bancorps
participation in the CPP has the following effects on its
compensation arrangements for its named executive officers for
as long as the Treasury Department holds the preferred stock:
(1) Superior Bancorps Compensation Committee must
meet at least 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; (2) Superior Bancorp must
recover from named executive officers any bonus or other
incentive compensation which was paid on the basis of materially
inaccurate financial statements or other materially inaccurate
performance metric criteria; (3) Superior Bancorp may not
make any golden parachute payment to a named
executive officer; and (4) Superior Bancorp may not claim a
federal income tax deduction for compensation paid to a named
executive officer in excess of $500,000. A golden parachute
payment, as defined by EESA, is a payment that is made on
account of severance of the named executives employment by
reason of either involuntary termination by Superior Bancorp or
in connection with bankruptcy, insolvency or receivership of
Superior Bancorp if the amount of the payment exceeds three
times the named executives average annual compensation
includible in the named executives income for the five
taxable years preceding the named executives termination
of employment.
On December 5, 2008, each of the named executive officers
executed a letter agreement with Superior Bancorp in which the
named executive officer agreed that, for as long as the Treasury
Department holds Superior Bancorp preferred stock, all
contracts, plans and arrangements providing compensation to the
named executive officer are amended to comply with the CPP
requirements outlined above.
Treasury
Department Guidelines Announced February 4, 2009
On February 4, 2009, the Treasury Department announced
executive compensation guidelines (the Treasury
Guidelines). The Treasury Guidelines contain expansive new
restrictions on executive compensation for financial
institutions and other companies participating in the CPP. The
Treasury Guidelines generally continue the existing restrictions
under EESA and add substantially to them in several areas. Among
other things, the Treasury Guidelines contemplate an absolute
$500,000 annual compensation limit for senior executives. The
Treasury Guidelines do not define which executives would be
subject to this limit but do clarify that such limit would not
apply to CPP participants unless they further participated in an
exceptional assistance program or further participated in a
generally available capital access program. As such, the
compensation limit currently does not apply to Superior Bancorp.
However, the Treasury Guidelines are general in nature and
appear to contemplate new rulemaking by the Treasury Department
before they become effective. Further, many, but not all, of the
elements were incorporated into ARRA, discussed below.
American
Reinvestment and Recovery Act of 2009
On February 17, 2009, President Obama signed into law the
America Reinvestment and Recovery Act of 2009 (as previously
defined ARRA). ARRA contains expansive new
restrictions on executive compensation for financial
institutions and other companies participating in the CPP. These
restrictions apply to us. ARRA amends the executive compensation
and corporate governance provisions of EESA. In doing so it
continues all the same compensation and governance restrictions
and includes additional restrictions in several areas. Pursuant
to ARRA, (1) the named executive officers, as well as the
next five most highly compensated employees, may not receive a
golden parachute payment (defined by ARRA to be any payment for
departure from a company for any reason except for payments for
services performed or benefits accrued), and (2) the 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 the Treasury Department no
longer holds preferred stock of Superior Bancorp (except for
incentive compensation paid pursuant to a contract in effect
before February 11, 2009). The Treasury Department is also
required to review bonuses paid prior to the enactment of
15
ARRA and negotiate their repayment to the Treasury Department if
they are deemed to be inconsistent with the purposes of ARRA or
TARP or otherwise contrary to the public interest. Additionally,
ARRA prohibits CPP participants from implementing any
compensation plan that would encourage manipulation of the
reported earnings of the company in order to enhance the
compensation of any of its employees. ARRA requires CPP
participants to establish a board compensation committee and
requires the committee to meet at least semiannually to discuss
and evaluate employee compensation plans in light of an
assessment of any risk to the company posed by such plans. ARRA
also requires that companies who participate in the CPP adopt a
policy on luxury expenditures and submit their compensation of
named executive officers to an annual non-binding stockholder
vote; please see Proposal Number Four Advisory Vote
on Compensation of Executive Officers.
The Compensation Committee has, and will continue to, consider
all new limits on executive compensation and determine how they
impact the 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 Effects of Recent Legislation 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
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 on Executive Compensation (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 certifies that it has reviewed with
Superior Bancorps senior risk officer the compensation
arrangements of Superior Bancorps named executive officers
and has made reasonable efforts to ensure that such arrangements
do not encourage the named executive officers to take
unnecessary and excessive risks that threaten the value of
Superior Bancorp.
(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
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, 2008.
James M. Link, Chairman
Mark A. Lee
John C. Metz
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, 2008, 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
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Nonqualified
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Stock
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Option
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Plan
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Deferred
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All Other
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Name and Principal
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Salary
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Bonus
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Awards
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Awards
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Compensation
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Compensation
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Compensation
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Total
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Position Held
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Year
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($)
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($)
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($)(1)
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($)(1)
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($)
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($)
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($)(2)
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($)
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C. Stanley Bailey
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2008
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$
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475,000
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$
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43,377
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$
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518,377
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Chairman and CEO
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2007
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$
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450,000
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$
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108,000
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$
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39,350
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|
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$
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597,350
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2006
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$
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400,000
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|
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|
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$
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190,000
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$
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38,185
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$
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628,185
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C. Marvin Scott
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2008
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$
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370,000
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$
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77,700
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$
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33,234
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$
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480,934
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President
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2007
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$
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350,000
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$
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84,000
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$
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35,058
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$
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469,058
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2006
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$
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300,000
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$
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144,000
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$
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57,977
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$
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501,977
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Rick D. Gardner
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2008
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$
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320,000
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$
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67,200
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$
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20,245
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$
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407,445
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Chief Operating Officer
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2007
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$
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300,000
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$
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72,000
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$
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22,068
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$
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394,068
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2006
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$
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250,000
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$
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120,000
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$
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25,762
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$
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395,762
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James A. White Chief
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2008
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$
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71,923
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$
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2,790
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$
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15,104
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$
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14,069
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$
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103,886
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Financial Officer
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2007
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2006
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William Caughran
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2008
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$
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175,000
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$
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19,720
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$
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13,872
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$
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38,500
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$6,707
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(3)
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$
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6,785
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$
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260,584
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General Counsel
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2007
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$
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165,000
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$
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215,099
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$
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5,180
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$3,480
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(3)
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$
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5,656
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$
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394,415
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2006
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$
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165,000
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$681
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(3)
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$
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13,678
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$
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179,359
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Mark Tarnakow Former
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2008
|
|
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$
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175,692
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$
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31,552
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$
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63,588
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$
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262,260
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$
|
533,092
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Chief Financial Officer(4)
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2007
|
|
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$
|
131,539
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$
|
25,895
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|
|
|
|
|
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$
|
8,043
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|
|
$
|
165,477
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2006
|
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(1) |
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Amounts in these columns are the amounts recognized by Superior
Bancorp in its financial statements as expense for the year
shown in connection with outstanding stock options or restricted
stock granted during that year or prior years. Mr. White,
Mr. Caughran, and Mr. Tarnakow were granted options to
purchase 25,000, 2,750, and 2,750 shares, respectively, of
Superior Bancorp common stock in 2008. Mr. Caughran and
Mr. Tarnakow were granted options to purchase 2,500 and
12,500 shares, respectively, of Superior Bancorp common
stock in 2007. Mr. Caughran and Mr. Tarnakow were also
granted 2,125 and 1,700 shares, respectively, of restricted
stock in 2008 in lieu of a payment for 2007 under the Management
Incentive Compensation Plan. The restricted stock vests over a
two-year period, except that Mr. Tarnakows restricted
stock was fully vested upon the termination of his employment
with Superior Bancorp. See Grant of Plan-Based
Awards. 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, 2008. |
|
(2) |
|
Represents the following expenses paid or reimbursed by Superior
Bancorp for executive officers in 2008:
Mr. Bailey country club expenses of $7,766,
automobile expenses of $19,500, life insurance premiums of
$1,508, reimbursement of $161 related to the payment of taxes,
company contributions of approximately $9,292 to the
companys defined contribution retirement plans, and
reimbursement of $5,150 of expenses in connection with the
companys use of an airplane owned by an entity controlled
by Mr. Bailey; Mr. Scott |
17
|
|
|
|
|
country club expenses of $5,745, automobile expenses of
$14,750, life insurance premiums of $2,773; reimbursement of
$674 related to the payment of taxes, and company contributions
of approximately $9,292 to the companys defined
contribution retirement plans; Mr. Gardner
automobile expenses of $9,750, life insurance premiums of
$1,025, reimbursement of $178 related to the payment of taxes,
and company contributions of approximately $9,292 to the
companys defined contribution retirement plans;
Mr. White automobile expenses of $1,569, and a
relocation payment of $12,500; Mr. Caughran
company contributions of approximately $6,785 to the
companys defined contribution retirement plans; and
Mr. Tarnakow automobile expenses of 5,031,
company contributions of approximately $7,229 to the
companys defined contribution retirement plans, and a
severance payment of $250,000. |
|
|
|
(3) |
|
Represents the net change in the actuarial value of
Mr. Caughrans accumulated benefit under the Community
Bancshares, Inc. Revised Pension Plan for the years indicated. |
|
(4) |
|
Mr. Tarnakow served as the principal financial officer of
Superior Bancorp through October 22, 2008. |
Grants of
Plan-Based Awards
The following table contains information concerning compensation
granted to the named executive officers during 2008 pursuant to
incentive compensation plans of Superior Bancorp.
Grants of
Plan-Based Awards
|
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All Other
|
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All Other
|
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Stock Awards:
|
|
Option Awards:
|
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|
|
|
|
|
Estimated Future Payouts Under
|
|
Estimated Future Payouts
|
|
Number of
|
|
Number of
|
|
Exercise or
|
|
Grant Date
|
|
|
|
|
Non-Equity Incentive
|
|
Under Equity Incentive Plan
|
|
Shares of
|
|
Securities
|
|
Base Price
|
|
Fair Value
|
|
|
|
|
Plan Awards
|
|
Awards
|
|
Stock or
|
|
Underlying
|
|
of Option
|
|
of Stock
|
|
|
Grant
|
|
Threshold
|
|
Target
|
|
Maximum
|
|
Threshold
|
|
Target
|
|
Maximum
|
|
Units
|
|
Options
|
|
Awards
|
|
and Option
|
Name
|
|
Date
|
|
($)
|
|
($)(1)
|
|
($)
|
|
(#)
|
|
(#)
|
|
(#)
|
|
(#)
|
|
(#)
|
|
($/Sh)
|
|
Awards
|
|
C. Stanley Bailey
|
|
|
1/22/08
|
|
|
|
N/A
|
|
|
$
|
237,500
|
|
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
C. Marvin Scott
|
|
|
1/22/08
|
|
|
|
N/A
|
|
|
$
|
185,000
|
|
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rick D. Gardner
|
|
|
1/22/08
|
|
|
|
N/A
|
|
|
$
|
160,000
|
|
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
James A. White
|
|
|
10/22/08
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
N/A
|
|
|
|
25,000
|
(2)
|
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
$
|
5.41
|
|
|
$
|
50,347
|
|
William Caughran
|
|
|
1/22/08
|
|
|
|
N/A
|
|
|
$
|
70,000
|
|
|
|
N/A
|
|
|
|
|
|
|
|
2,125
|
(3)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
39,440
|
|
|
|
|
7/23/08
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
N/A
|
|
|
|
2,750
|
(2)
|
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
$
|
10.14
|
|
|
$
|
10,380
|
|
Mark A. Tarnakow
|
|
|
1/22/08
|
|
|
|
N/A
|
|
|
$
|
84,000
|
|
|
|
N/A
|
|
|
|
|
|
|
|
1,700
|
(3)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
31,552
|
|
|
|
|
7/23/08
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
N/A
|
|
|
|
2,750
|
(2)
|
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
$
|
10.14
|
|
|
$
|
10,380
|
|
|
|
|
(1) |
|
Amounts represent target awards under the 2008 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. Actual cash
payments made in 2009 for 2008 are shown in the summary
compensation table and are below the targets. |
|
(2) |
|
The number of shares of Superior Bancorp common stock which may
be acquired pursuant to the exercise of stock options granted
during 2008. |
|
(3) |
|
The number of shares of restricted stock awarded in 2008 in lieu
of payments under the Management Incentive Compensation Plan for
2007. The restricted stock vests over a two-year period except
that Mr. Tarnakows restricted stock was fully vested
upon his termination of employment with Superior Bancorp. |
Employment
Agreements
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
18
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 also 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.
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.
Such 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.
19
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,
2008.
Outstanding
Equity Awards at Fiscal Year-End
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Option Awards
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Stock Awards
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Equity
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Incentive
|
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Plan
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|
|
Awards:
|
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|
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|
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|
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|
|
|
|
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|
Equity
|
|
|
Market or
|
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|
Incentive
|
|
|
Payout
|
|
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|
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|
Equity
|
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Plan
|
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|
Value
|
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|
|
|
|
|
|
Incentive
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Awards:
|
|
|
of
|
|
|
|
|
|
|
|
|
|
Plan
|
|
|
|
|
|
|
|
|
|
|
|
Market
|
|
|
Number of
|
|
|
Unearned
|
|
|
|
|
|
|
|
|
|
Awards:
|
|
|
|
|
|
|
|
|
Number
|
|
|
Value of
|
|
|
Unearned
|
|
|
Shares,
|
|
|
|
Number of
|
|
|
Number of
|
|
|
Number of
|
|
|
|
|
|
|
|
|
of Shares
|
|
|
Shares or
|
|
|
Shares,
|
|
|
Units or
|
|
|
|
Securities
|
|
|
Securities
|
|
|
Securities
|
|
|
|
|
|
|
|
|
or Units
|
|
|
Units of
|
|
|
Units or
|
|
|
Other
|
|
|
|
Underlying
|
|
|
Underlying
|
|
|
Underlying
|
|
|
|
|
|
|
|
|
of Stock
|
|
|
Stock
|
|
|
Other
|
|
|
Rights
|
|
|
|
Unexercised
|
|
|
Unexercised
|
|
|
Unexercised
|
|
|
Option
|
|
|
|
|
|
That
|
|
|
That
|
|
|
Rights
|
|
|
That Have
|
|
|
|
Options (#)
|
|
|
Options (#)
|
|
|
Unearned
|
|
|
Exercise
|
|
|
Option
|
|
|
Have Not
|
|
|
Have Not
|
|
|
That Have
|
|
|
Not
|
|
|
|
Exercisable
|
|
|
Unexercisable
|
|
|
Options
|
|
|
Price
|
|
|
Expiration
|
|
|
Vested
|
|
|
Vested
|
|
|
Not Vested
|
|
|
Vested
|
|
Name
|
|
(#)
|
|
|
(#)
|
|
|
(#)
|
|
|
($)
|
|
|
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
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
William Caughran
|
|
|
|
|
|
|
2,500
|
(2)
|
|
|
|
|
|
$
|
39.96
|
|
|
|
2017
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,750
|
(1)
|
|
|
|
|
|
$
|
10.14
|
|
|
|
2018
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,125
|
(3)
|
|
$
|
6,736
|
|
Mark A. Tarnakow
|
|
|
|
|
|
|
12,500
|
(4)
|
|
|
|
|
|
$
|
39.96
|
|
|
|
2017
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,750
|
(4)
|
|
|
|
|
|
$
|
10.14
|
|
|
|
2018
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(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) |
|
One-half of the number of shares of restricted stock vested on
January 22, 2009 and the remainder will vest on
January 22, 2010. The market value shown for the restricted
stock is based on a closing price of $3.17 per share on
December 31, 2008. |
|
(4) |
|
Pursuant to the terms of the option agreements, these options
expired on January 22, 2009 as a result of
Mr. Tarnakows termination of employment with Superior
Bancorp. |
20
Options
Exercises and Vesting of Stock.
The following table provides information with respect to options
exercised by the named executive officers or restricted stock
vested for the named executive officers during 2008:
Option
Exercises and Stock Vested
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option Awards
|
|
|
Stock Awards
|
|
|
|
Number of Shares
|
|
|
|
|
|
Number of Shares
|
|
|
|
|
|
|
Acquired on
|
|
|
Value Realized on
|
|
|
Acquired on Vesting
|
|
|
Value Realized on
|
|
Name
|
|
Exercise (#)
|
|
|
Exercise ($)
|
|
|
(#)
|
|
|
Vesting ($)
|
|
|
C. Stanley Bailey
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
C. Marvin Scott
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rick D. Gardner
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
James A. White
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
William Caughran
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mark A. Tarnakow
|
|
|
|
|
|
|
|
|
|
|
1,700
|
|
|
$
|
9,197
|
|
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)
|
|
$
|
55,425
|
(2)
|
|
|
|
|
Mark Tarnakow
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(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, 2008. |
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 Internal Revenue Code. The amount of
21
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, 2008. However, the following
discussion does not take into account recent restrictions on
certain payments to departing executives. See Effects of
Recent Legislation 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 if any such
executive terminates the agreement as a result of certain
adverse changes in his functions, duties or 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, 2008,
other than for Cause, death or disability or following a Change
in Control, Superior Bancorp would have been obligated to make
payments of approximately $1,113,480 to Mr. Bailey;
$867,348 to Mr. Scott; and $750,120 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, 2010 at an approximate
cost of $17,003 for Mr. Bailey, $17,093 for Mr. Scott,
and $14,822 for Mr. Gardner and to transfer to each
executive title to the company automobile assigned to the
executive at an approximate cost of $25,333 for Mr. Bailey,
$11,214 for Mr. Scott, and $9,881 for Mr. Gardner. The
costs for continued benefits assume that there are no premium
increases under the companys insurance programs prior to
January 24, 2011.
If the employment of Messrs. Bailey, Scott and Gardner had
terminated as of December 31, 2008, following a Change in
Control, Superior Bancorp or its successor would have been
obligated to make payments of the following amounts: $2,343,750
to Mr. Bailey; $1,825,417 to Mr. Scott; and $1,577,500
to Mr. Gardner. Additional
gross-up
payments would also be made under the terms of the agreements.
Superior Bancorp or its successor would also be obligated until
December 31, 2011 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 $25,505 for Mr. Bailey, $25,639 for
Mr. Scott and $22,232 for Mr. Gardner and to transfer
to each executive title to the company automobile assigned to
the executive at an approximate cost of $25,333 for
Mr. Bailey, $11,214 for Mr. Scott, and $9,881 for
Mr. Gardner. The costs for continued benefits assume that
there are no premium increases under the companys
insurance programs prior to December 31, 2011.
22
Mr. White. Pursuant to the terms of his
employment agreement, if Superior Bancorp had terminated
Mr. Whites employment on December 31, 2008 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 $739,110, 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, 2008 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 $929,775. In addition,
Mr. White would have become vested in options to purchase
25,000 shares of Superior Bancorp common stock at a cost to
Superior Bancorp of $46,047. Superior Bancorp would also incur
expenses of $17,321 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, 2008 following a Change in Control, Superior
Bancorp or its successor would have been obligated to pay
Mr. Caughran $428,000. In addition, Mr. Caughran would
have become vested in options to purchase 5,250 shares of
Superior Bancorp common stock at a cost to Superior Bancorp of
$24,161. Superior Bancorp would also incur expenses of $855 in
connection with continuing certain welfare insurance benefits
for Mr. White 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, 2008, 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)
|
|
|
457,897
|
|
|
$
|
27.00
|
|
|
|
217,302
|
|
Equity Compensation Plans not Approved by Security Holders(2)
|
|
|
391,025
|
|
|
$
|
33.39
|
|
|
|
53,011
|
|
Total
|
|
|
848,922
|
|
|
$
|
29.94
|
|
|
|
270,313
|
|
|
|
|
(1) |
|
Excludes 78,507 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 |
23
|
|
|
|
|
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 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.
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, 2008, the Compensation Committee has granted
options to purchase 108,250 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 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, 2008, the
Compensation Committee has granted options to purchase
349,647 shares of our common stock which remain outstanding
and restricted stock awards covering 66,183 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, 2008, 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. Link, Lee and
Metz. 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
24
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.
The Mailon Kent Insurance Agency received commissions of
approximately $197,184 from the sale of insurance to Superior
Bancorp during 2008. 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 2008 the total amount of rent paid by Superior Bank
pursuant to the leases described above was $539,511.
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 commencing after a certificate of
occupancy is received for the building. 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. Superior Bank did not make any payments pursuant to this
lease during 2008.
Superior Bancorp believes that the foregoing transactions were
made on terms and conditions reflective of arms length
transactions.
25
PROPOSAL NUMBER
TWO
AMENDMENT TO RESTATED CERTIFICATE OF INCORPORATION
TO INCREASE THE NUMBER OF AUTHORIZED SHARES OF
COMMON STOCK
On January 29, 2008, our Board of Directors approved an
amendment to Article IV, Section 4.1 of our Restated
Certificate of Incorporation to increase the number of
authorized shares of common stock of Superior Bancorp from
15 million to 20 million. Such approval by the Board
is subject to the approval of such amendment by the holders of a
majority of the outstanding shares of our common stock. A copy
of the proposed amendment is attached to this Proxy Statement as
Annex A.
Increase
in Authorized Common Stock
The Board of Directors recommends that the stockholders approve
the proposed amendment because it considers such amendment to be
in the best long-term and short-term interests of Superior
Bancorp, its stockholders and its other constituencies. The
proposed increase in the number of authorized shares of common
stock will ensure that a sufficient number of shares will be
available, if needed, for issuance in connection with any
possible future transactions approved by the Board of Directors,
including, among others, stock splits, stock dividends, stock
incentive plans, acquisitions and other corporate purposes. The
Board of Directors believes that the availability of the
additional shares for such purposes without delay or the
necessity for a special stockholders meeting (except as
may be required by applicable law or regulatory authorities or
by the rules of the Nasdaq Global Market) will be beneficial to
Superior Bancorp by providing it with the flexibility to
consider and respond to future business opportunities and needs
as they arise. The availability of such additional shares will
also enable us to act promptly when the Board of Directors
determines that the issuance of additional shares of common
stock is advisable. It is possible that shares of common stock
may be issued at a time and under circumstances that may
increase or decrease earnings per share and increase or decrease
the book value per share of shares currently outstanding.
We do not have any immediate plans, agreements, arrangements,
commitments or understandings with respect to the issuance of
any additional shares of our common stock that would be
authorized upon approval of the proposed amendment. However, as
described below, we have a relatively small number of authorized
but unissued shares that are not already reserved for issuance,
and if the proposed amendment is not approved, our flexibility
to pursue potential future transactions or compensation
arrangements involving our stock will be limited.
Under our Restated Certificate of Incorporation, we currently
have authority to issue 15 million shares of common stock,
par value $.001 per share, of which 10,074,999 shares were
issued and outstanding as of December 31, 2008. In
addition, as of such date, approximately
(a) 217,302 shares were reserved for issuance under
our incentive compensation plans, under which options to
purchase a total of 457,897 shares were outstanding, and
(b) approximately 2,923,792 shares were reserved for
issuance pursuant to outstanding warrants. After giving effect
to such reserved shares, approximately 1,326,010 shares
were available for issuance on such date.
There are no preemptive rights with respect to our common stock.
Recommendation
of the Board of Directors
The Board of Directors unanimously recommends that
stockholders vote FOR the adoption of the amendment to the
Restated Certificate of Incorporation to increase the number of
authorized shares of our common stock from 15 million to
20 million. The affirmative vote of the holders of a
majority of the outstanding shares of common stock entitled to
vote at the Annual Meeting will be necessary for the approval of
such amendment.
26
PROPOSAL NUMBER
THREE
RATIFICATION OF SELECTION OF
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
General
The Audit Committee has selected Grant Thornton LLP (Grant
Thornton) as Superior Bancorps independent
registered public accounting firm for the 2009 fiscal year. The
Board of Directors recommends that the stockholders ratify the
selection of Grant Thornton. 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 2010.
Grant Thornton also served as Superior Bancorps
independent public accounting firm for the fiscal years ended
December 31, 2008 and 2007. 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 was originally engaged by the Audit Committee on
August 10, 2007. During Superior Bancorps two most
recent fiscal years and the subsequent interim periods preceding
the engagement of Grant Thornton, Superior Bancorp did not
consult with Grant Thornton regarding either (i) the
application of accounting principles to a completed or proposed
specified transaction or the type of audit opinion that might be
rendered on Superior Bancorps financial statements, or
(ii) any matter that was the subject of a disagreement with
Superior Bancorps former accountants or a reportable event
as described in Item 304(a)(1)(v) of the Securities and
Exchange Commissions
Regulation S-K.
On August 10, 2007, the Audit Committee determined not to
reengage Superior Bancorps previous independent public
accounting firm, Carr, Riggs & Ingram, LLC (Carr
Riggs). Carr Riggs reports on the Superior
Bancorps financial statements for the preceding two years
did not contain any adverse opinion or disclaimer of opinion and
were not qualified or modified as to uncertainty, audit scope,
or accounting principles, except that Carr Riggs report
dated March 16, 2006, that was included in our Annual
Report on
Form 10-K
for the fiscal year ended December 31, 2005, which was
filed with the Securities and Exchange Commission on
March 16, 2006, expressed an opinion that Superior Bancorp
and its subsidiaries had not maintained effective internal
control over financial reporting as of December 31, 2005,
based on criteria established in Internal Control
Integrated Framework issued by the Committee of Sponsoring
Organizations of the Treadway Commission. During Superior
Bancorps two most recent fiscal years and the subsequent
interim periods preceding Carr Riggs dismissal, there have
been no disagreements with Carr Riggs on any matter of
accounting principles or practices, financial statement
disclosure, or auditing scope or procedure which disagreements,
if not resolved to the satisfaction of Carr Riggs, would have
caused Carr Riggs to make reference to the subject matter of the
disagreements in connection with its reports on Superior
Bancorps financial statements. Carr Riggs report
dated March 16, 2007, that was included in our Annual
Report on
Form 10-K
for the fiscal year ended December 31, 2006, which was
filed with the Securities and Exchange Commission on
March 16, 2007, expressed an unqualified opinion on the
effectiveness of the Companys and subsidiaries
internal control over financial reporting as of
December 31, 2006.
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, 2008 and for the reviews of the
financial statements for Superior Bancorps Quarterly
Reports on
Form 10-Q
for 2008 were $355,740. 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,
2007 and for the review of the
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financial statements for Superior Bancorps Quarterly
Report on
Form 10-Q
for the third quarter of 2007 were $288,013.
Audit
Related Fees
The aggregate audit related fees (including
reimbursable expenses) of Grant Thornton for the fiscal years
ended December 31, 2008 and 2007 were $68,297 and $60,000,
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, 2008 and 2007 were $67,992 and
58,000, 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 $6,300 and $0, respectively, for the
fiscal years ended December 31, 2008 and 2007. The fees
shown in this category relate solely to Superior Bancorps
subscription to a database of accounting and banking information
provided by Grant Thornton.
Pre-Approval
Policies
The Audit 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 Committee pre-approved all of the
services for the audit fees described above. The Audit Committee
regularly monitors the services provided by the independent
auditors for both audit and non-audit services. None of the
services described above were approved by the Audit Committee
pursuant to paragraph (c)(7)(i)(C) of
Rule 2-01
of
Regulation S-X.
The Audit 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 for the 2009 fiscal year. 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 COMMITTEE (1)
The members of the Audit Committee are independent
directors, as defined under NASDAQ Rule 4200, and
meet the standards required by
Rule 10A-3(b)(1)
under the Securities Exchange Act of 1934. Two members of the
Audit Committee are audit committee financial
experts under the Rules of the Securities and Exchange
Commission. The Audit 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 Committee reviewed the
consolidated financial statements with management, including a
(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.
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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 Committee reviewed with the independent auditors, who
are responsible for expressing an opinion on the conformity of
those audited financial statements with accounting principles,
generally accepted in the United States, 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 Committee under
auditing standards generally accepted in the United States. The
Audit 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
Committee concerning independence. The Audit Committee discussed
the independence of Grant Thornton with Grant Thornton.
The Audit Committee discussed with Superior Bancorps
internal and independent auditors the overall scope and plans
for their respective audits. The Audit 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 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 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, 2008, as filed with
the SEC.
The foregoing report is submitted by the following directors of
Superior Bancorp, comprising all of the members of the Audit
Committee of the Board of Directors as of December 31, 2008.
Roger Barker, Chairman
Thomas E. Jernigan, Jr.
James C. White, Sr.
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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 the
companys ability to attract and retain highly qualified
executives. In the current challenging economic conditions, the
experience of Superior Bancorps management team is vital
to the success of the company.
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 2009 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.
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 2010 annual meeting of
stockholders must be received by us no later than the close of
business on November 20, 2009. 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 2010, 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 3, 2010, 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
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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, 2008. 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.
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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 20, 2009
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ANNEX A
PROPOSED
AMENDMENT TO ARTICLE IV, SECTION 4.1 AND
SECTION 4.4 OF
THE RESTATED CERTIFICATE OF INCORPORATION OF SUPERIOR BANCORP,
AS
APPROVED BY THE BOARD OF DIRECTORS ON JANUARY 29, 2009
RESOLVED, that, subject to the approval by the affirmative vote
of the holders of a majority of the issued and outstanding
common stock of the Corporation at the 2009 Annual Meeting of
Stockholders of the Corporation, the first paragraph of
Article IV, Section 4.1 of the Restated Certificate of
Incorporation of the Corporation shall be amended to read as
follows:
Section 4.1 Authorization
of Capital. The total number of shares of all
classes of capital stock which the Corporation shall have
authority to issue shall be Twenty-Five Million (25,000,000)
shares, comprising Twenty Million (20,000,000) shares of Common
Stock, with a par value of $.001 per share, and Five Million
(5,000,000) shares of Preferred Stock, with a par value of $.001
per share, as the Board of Directors may decide to issue
pursuant to Section 4.3, which constitutes a total
authorized capital of all classes of capital stock of Twenty
Thousand Dollars ($25,000.00).
A-1
PROXY SOLICITED BY THE BOARD OF DIRECTORS FOR
THE ANNUAL MEETING OF STOCKHOLDERS TO BE HELD ON APRIL 22, 2009
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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. |
ELECTRONIC
DELIVERY OF FUTURE PROXY MATERIALS: If you would like to reduce the
cost incurred by our company in mailing proxy materials, you can
consent to receiving all future proxy statements, proxy cards and
annual reports electronically via the Internet. To sign up for
electronic delivery, please follow the preceding instructions to vote
using the Internet and, when prompted, indicate that you agree
to receive or access proxy materials electronically in future years.
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 2009 Annual Meeting of Stockholders to be held at 10:00 a.m.
Central Daylight Time on Wednesday, April 22, 2009, 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 2009 Annual Meeting of Stockholders the following individuals: |
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C. Stanley Bailey
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James Mailon Kent, Jr.
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John C. Metz
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Charles W. Roberts, III |
Roger D. Barker
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Mark A. Lee
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D. Dewey Mitchell
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C. Marvin Scott |
Rick D. Gardner
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Peter L. Lowe
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Robert R. Parrish, Jr.
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James C. White, Sr. |
Thomas E. Jernigan, Jr. |
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FOR all of the nominees except
as marked in the space below
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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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AMENDMENT TO INCREASE AUTHORIZED CAPITAL STOCK. To amend Superior
Bancorps Restated Certificate of Incorporation to increase the number
of authorized shares of common stock to from 15 million shares to 20
million shares. |
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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 auditors for the 2009 fiscal year. |
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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 non-binding 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: , 2009 |
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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. |