AMENDED AND RESTATED AGREEMENT
Exhibit
10-i
This
Amended and Restated Agreement ("Agreement") is entered into as
of October 23, 2007, by Trustmark Corporation, a Mississippi corporation
(the "Company"), and
Xxxxxx X. Host (the "Executive"). The
Company and Executive have entered into this Agreement with reference to the
following facts:
A. The
Company and Executive entered into that certain Agreement dated as of December
22, 1997, which the Company and the Executive amended and restated in its
entirety as of March 12, 2002 ("Original Agreement");
and
B. The
Company and Executive now desire to amend and restate in its entirety the
Original Agreement as set forth in this Agreement to reflect the provisions of
Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), and the final
regulations issued thereunder.
NOW,
THEREFORE, in consideration of the mutual premises and agreements herein
contained, and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties, intending to be legally
bound,
hereby agree as follows:
1. Definition
of Terms. As used in this Agreement, the following terms shall
have the respective meanings indicated below:
A. "Base
Salary" means the Executive's annual base salary as in effect at any particular
time.
B. "Cause"
means that the Executive has (i) committed an act of personal dishonesty,
embezzlement or fraud; (ii) has misused alcohol or drugs; (iii) failed to pay
any obligation owed to the Company or any affiliate; (iv) breached a fiduciary
duty or deliberately disregarded any rule of the Company or any affiliate; (v)
has committed an act of willful misconduct, or the intentional failure to
perform stated duties; (vi) has willfully violated any law, rule or regulation
(other than misdemeanors, traffic violations or similar offenses) or any final
cease-and-desist order; (vii) has disclosed without authorization any
Confidential Information of the Company or any affiliate, or has engaged in any
conduct constituting unfair competition, or has induced any customer of the
Company or any affiliate to breach a contract with the Company or any
affiliate.
C. "Change
in Control" means any one of the following events: (1) the acquisition by any
person of ownership of, holding or power to vote more than 20% of the Company's
voting stock, (2) the acquisition by any person of the ability to control the
election of a majority of the Company's board of directors, (3) the acquisition
of a controlling influence over the management or policies of the Company by any
person or by persons acting as a "group" (within the meaning of Section 13(d) of
the Securities Exchange Act of 1934 (Exchange Act), or (4) during any period of
two consecutive years, individuals (the "Continuing Directors") who at the
beginning of such period constitute the board of directors (the "Existing
Board") cease for any reason to constitute at least two-thirds thereof, provided
that any individual whose election or nomination for election as a member of the
Existing Board was approved by a vote of at least two-thirds of the Continuing
Directors then in office shall be considered a Continuing
Director. Notwithstanding the foregoing, in the case of (1), (2) and
(3) hereof, ownership or control of the Company's voting stock by the only
subsidiary of the Company or any employee benefit plan sponsored by the Company
or any subsidiary shall not constitute a Change in Control. For
purposes of this subparagraph, the term "person" refers to an individual or a
corporation, partnership, trust, association, joint venture, pool, syndicate,
sole proprietorship, unincorporated organization of any other form of entity not
specifically listed herein;
D.
"Confidential Information" means all trade secrets, confidential information
(including but not limited to confidential information with respect to
marketing, product offerings or expansion plans) and financial matters of the
Company and its subsidiaries.
E. "Disability"
means that the Executive becomes physically or mentally disabled during the
Executive's employment with the Company so that he is unable to perform the
services required of him for a period of 90 days.
F.
"Employee Benefits" means all group life, hospitalization and disability
insurance plans, health programs, pension plans, similar benefit plans or other
so called "fringe benefit programs" of the Company as are now existing or as may
hereafter be revised or adopted and offered to senior executives of the Company
or its affiliates generally.
G.
"Good Reason" means (1) a demotion in the Executive's status, title or
position, or the assignment to the Executive of duties or responsibilities which
are materially inconsistent with such status, title or position; (2) a material
breach of this Agreement by the Company, provided the Company has not remedied
such breach within thirty (30) days of receipt of written notice of such breach;
or (3) a relocation of the executive offices of the Company to a location more
than 50 miles outside of Jackson, Mississippi without the Executive's written
consent given to the Company within thirty (30) days of the Executive's receipt
of notification of such relocation by the Company.
H. "Retirement"
means the last business day of the calendar year in which the Executive reaches
age 65.
2. Change in
Control. If at any time during the Executive's employment the
Company experiences a Change in Control and within two (2) years after the date
the Change in Control occurs (i) the Executive's employment is terminated other
than for Cause, death, Disability or Retirement or (ii) the Executive resigns
for Good Reason, subject to Section 14 hereof, the Company shall pay to the
Executive the following amounts:
A. The
sum of (1) the Executive's Base Salary and accrued vacation benefits through the
date of termination to the extent not theretofore paid in a lump sum as soon as
administratively practicable after the effective date of termination in
accordance with the Company’s usual payroll practices (not less frequently than
monthly) and (2) the additional sum of (i) Executive's Base Salary immediately
prior to the Change in Control and (ii) the highest annual bonus amount earned
in either of the two (2) years preceding the year of the Change in Control in a
lump sum on the 60th day
after the effective date of termination.
B. The
Company shall continue to provide to the Executive the Employee Benefits for one
year following the effective date of termination, reduced by any employment
benefits received from later employment, as the same may be changed from time to
time for employees of the Company generally, as if the Executive had continued
employment during such period; or, as an alternative, the Company may elect to
pay Executive cash in lieu of such participation in an amount equal to the
Executive’s reasonable after-tax cost of obtaining
comparable coverage or benefits, where such participation may not be continued
by the Company (or where such participation would adversely affect the tax
status of the applicable plan pursuant to which the benefits are provided), with
any such cash payments to be made in accordance with the ordinary payroll
practices of the Company (not less frequently than monthly) for employees
generally for the period during which such cash payments are to be provided;
and
C. Any
stock options granted Executive by the Company which have not vested shall vest
in the Executive in full as of the Change in Control. Any such stock
options which were intended by the parties to be incentive stock options but
which exceed the "$100,000 first exercisable rule" shall be converted into
non-qualified stock options.
3. Confidentiality,
Nonsolicitation and Noncompete.
3.1 Confidentiality. The
Executive covenants and agrees that all trade secrets, confidential information
(including but not limited to confidential information with respect to
marketing, product offerings or expansion plans), and financial matters of the
Company and its subsidiaries (collectively "Confidential Information") which are
learned by him in the course of his employment by the Company shall be held in a
fiduciary capacity and treated as confidential by him and shall not be
disclosed, communicated or divulged by him or used by him for the benefit of any
person or entity (other than the Company, its subsidiaries or affiliates) unless
expressly authorized in writing by the Board, or unless the Confidential
Information becomes generally available to the public otherwise than through
disclosure by the Executive.
3.2 Nonsolicitation. The
Executive agrees that (1) during the period he is employed with the Company and
for a period of twelve (12) months after termination of employment, he will not,
without the prior written consent of the Board, directly or indirectly solicit,
entice, persuade, or induce any employee, director, officer, associate,
consultant, agent or independent contractor of the Company or its subsidiaries
(i) to terminate such person's employment or engagement by the Company or its
subsidiaries or (ii) to become employed by any person, firm, partnership,
corporation, or other such enterprise other than the Company, its subsidiaries
or affiliates, and (2) he shall not following the termination of his employment
hereunder represent that he is any way connected with the business of the
Company or its subsidiaries (except to the extent agreed to in writing by the
Company).
3.3 Noncompete. The
Executive agrees that during the period he is employed with the Company and, for
a period of twelve (12) months following the date of termination of his
employment for any reason except Retirement, he will not (except as a
representative of the Company or with the prior written consent of the Board),
directly or indirectly, engage, participate or make any financial investment, as
an employee, director, officer, associate, consultant, agent, independent
contractor, lender or investor, in the business of any person, firm,
partnership, corporation or other enterprise that is engaged in direct
competition with the business of the Company in any geographic area in which the
Company is then conducting such business. Nothing in this Section 3.3
shall be construed to preclude the Executive from making any investments in the
securities of any business enterprise whether or not engaged in competition with
the Company, to the extent that such securities are actively traded on a
national securities exchange or in the over-the-counter market in the United
States or on any foreign securities exchange and represent less than one-percent
(1%) of any class of securities of such business
enterprise. Executive acknowledges that if his employment with the
Company terminates for any reason, he can earn a livelihood without violating
the foregoing restrictions and that the time period and scope of the foregoing
restrictions are reasonably required for the protection of the Company's valid
business interests.
3.4. Covenant
Payments. In consideration for the covenants contained in
Section 3, which are considered material to the Company, the Company agrees to
pay Executive all amounts owed pursuant to this Agreement, and upon Executive's
termination without Cause or Executive’s resignation for Good Reason, to pay
Executive an amount (the "Covenant Payments") equal to
the sum of (i) the Executive's Base Salary and (ii) the highest annual bonus
earned in any one of the three years preceding the termination. The
Covenant Payments shall be paid in twelve (12) equal monthly installments with
the first installment commencing on the 60th day
after the effective date of termination and continuing thereafter on the same
day of each following month until all twelve (12) monthly installments are
paid. In the event of the Executive's death following such date of
termination, any unpaid installments shall be paid to the Executive's estate in
a single undiscounted cash lump sum. Such lump sum shall be paid on
the 60th day
after the Executive's death. Notwithstanding anything herein to the
contrary, if the Executive is terminated for Cause or the Executive voluntarily
resigns other than for Good Reason or has a Disability, the Executive will
remain subject to the covenants contained in Section 3 but will not be entitled
to the Covenant Payments.
3.5 Remedies. The
Company would be damaged irreparably if any provision of Section 3 was not
performed by the Executive in accordance with its terms or was otherwise
breached and that money damages would be an inadequate remedy for any such
nonperformance or breach. Therefore, the Company or its successors or
assigns shall be entitled, in addition to any other rights and remedies existing
in their favor, including the right to retain the Covenant Payments, to an
injunction or injunctions to prevent any breach or threatened breach of any such
provisions and to enforce such provisions specifically (without posting a bond
or other security). Executive agrees that Company or its successors
or assigns may retain the Covenant Payments as partially liquidated damages for
such breach and not as a penalty. The Executive would be damaged
irreparably if any provision of Section 3 was not performed by the Company in
accordance with its terms or was otherwise breached and that money damages would
be an inadequate remedy for any such nonperformance or
breach. Therefore, the Executive shall be entitled, in addition to
any other rights and remedies existing in his favor, to an injunction or
injunctions to prevent any breach or threatened breach of any such provisions
and to enforce such provisions specifically (without posting a bond or other
security).
4. Release. The
payments and benefits to which the Executive is entitled pursuant to Sections
2A.(2), B. and C. and 3.4 are contingent upon the Executive executing a release
agreement in a form reasonably acceptable to the Company, and the applicable
revocation period having expired, before the 60th day
after the effective date of termination.
5. Excise
Tax Limitation.
A. Notwithstanding
anything contained in this Agreement (or in any other agreement between the
Executive and the Company) to the contrary, to the extent that any payments and
benefits provided under this Agreement or payments or benefits provided to, or
for the benefit of, the Executive under any plan or agreement of the Company
(such payments or benefits are collectively referred to as the "Payments") would
be subject to the excise tax (the "Excise Tax") imposed under Section 4999 of
the Internal Revenue Code of 1986, as amended (the "Code"), the Payments shall
be reduced if and to the extent that a reduction in the Payments would result in
the Executive retaining a larger amount, on an after-tax basis (taking into
account federal, state and local income taxes and the Excise Tax), than he would
have retained had he been entitled to receive all of the Payments (such reduced
amount is hereinafter referred to as the "Limited Payment
Amount"). The Company shall reduce the Payments by first reducing or
eliminating those payments or benefits which are not payable in cash and then by
reducing or eliminating cash payments, in each case in reverse order beginning
with payments or benefits which are to be paid the farthest in time from the
date the "Determination" (as hereinafter defined) is delivered to the Company
and the Executive.
B. The
determination as to whether the Payments shall be reduced to the Limited Payment
Amount and the amount of such Limited Payment Amount (the "Determination") shall
be made at the Company's expense by an accounting firm selected by the Company
and reasonably acceptable to the Executive which is designated as one of the
five (5) largest accounting firms in the United States (the "Accounting
Firm"). The Accounting Firm shall provide the Determination in
writing, together with detailed supporting calculations and documentation, to
the Company and the Executive on or prior to the date of termination of the
Executive's employment if applicable, or at such other time as requested by the
Company or by the Executive. Within ten (10) days of the delivery of
the Determination to the Executive, the Executive shall have the right to
dispute the Determination (the "Dispute") in writing setting forth the precise
basis of the dispute. If there is no Dispute, the Determination shall
be binding, final and conclusive upon the Company and the
Executive.
C. Any
Excise Tax payable hereunder shall be paid by the Executive.
6. Non-Assignment. This
Agreement and all of the Executive's rights and obligations hereunder are
personal to the Executive and shall not be assignable; provided, however, that
upon his death all of the Executive's rights to cash payments under this
Agreement shall inure to the benefit of his widow, personal representative,
designees or other legal representatives, as the case may be. Any
person, firm or corporation succeeding to the business of the Company by merger,
purchase, consolidation or otherwise shall assume by contract or operation of
law the obligations of the Company hereunder, provided, however, that the
Company shall, notwithstanding such assumption, remain liable and responsible
for the fulfillment of its obligations under this Agreement.
7. Severability. Whenever
possible, each provision of this Agreement will be interpreted in such manner as
to be effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect under
any applicable law or rule in any jurisdiction such invalidity, legality or
unenforceability will not affect any other provision or any other jurisdiction,
but this Agreement will be reformed, construed and enforced in such jurisdiction
as if such invalid, illegal or unenforceable provision had never been contained
herein.
8. Notices. Any
notice or other communication required or permitted hereunder shall be in
writing and shall be delivered personally, telegraphed, telexed, sent by
facsimile transmission or sent by certified, registered or express mail, postage
prepaid. Any such notice shall be deemed given when so delivered
personally, telegraphed, telexed or sent by facsimile transmission, or if
mailed, five days after the date of deposit in the United States mail, as
follows:
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(i)
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if
to the Company, to:
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Trustmark
Corporation
000 Xxxx
Xxxxxxx Xxxxxx
Post
Xxxxxx Xxx 000
Xxxxxxx,
XX 00000
Attention:
Chief Executive Officer
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(ii)
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if
to the Executive, to:
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Xxxxxx X.
Host
000
Xxxxxx Xxx
Xxxxxxx,
XX 00000
Any party
may change its address for notice hereunder by notice to the parties
hereto.
9. Entire
Agreement. This Agreement amends and restates the Original
Agreement. This Agreement contains the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior
representations, warranties and agreements, written or oral with respect thereto
between the Company and the Executive.
10. Waivers
and Agreements. This Agreement may be amended, modified,
superseded, canceled, renewed or extended, and the terms and conditions hereof
may be waived, only by written instrument signed by the parties or, in the case
of a waiver, by the party waiving compliance. No delay on the part of
any party in exercising any right, power or privilege hereunder shall operate as
a waiver thereof, nor shall any waiver on the part of any party of any right,
power or privilege hereunder, nor any single or partial exercise of any right,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, power or privilege hereunder.
11. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Mississippi, without regard to its
principle of conflicts of law.
12. Headings. The
headings in this Agreement are for reference purposes only and shall not in any
way affect the meaning or interpretation of this Agreement.
13. Board
Approval. This Agreement has been authorized by action of the
Board of Directors of the Company on October 23, 2007, as is referenced in the
minutes of their meeting on that day.
14. Omnibus
409A Provision. Notwithstanding any other provision of this
Agreement, it is intended that any payment or benefit which is provided pursuant
to or in connection with this Agreement which is considered to be deferred
compensation subject to Section 409A of the Code shall be provided and paid in a
manner, and at such time and in such form, as complies with the requirements of
Section 409A of the Code to avoid any unfavorable tax
consequences. For purposes of this Agreement, all rights to payments
and benefits hereunder shall be treated as rights to receive a series of
separate payments and benefits to the fullest extent allowed by Section 409A of
the Code. Notwithstanding any other provision of this Agreement,
payments or provision of benefits in connection with a separation from service
will be delayed, to the extent applicable, until six months after the separation
from service or, if earlier, Executive’s death, if Executive is a “specified
employee” under Section 409A of the Code (the “409A Deferral
Period”). In the event such payments are otherwise due to be made in
installments or periodically during the 409A Deferral Period, the payments which
would otherwise have been made in the 409A Deferral Period shall be accumulated
and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance
of the benefits shall be made as otherwise scheduled. In the event
benefits are required to be deferred, any such benefit may be provided during
the 409A Deferral Period at Executive’s expense, with Executive having a right
to reimbursement from the Company once the 409A Deferral Period ends, and the
balance of the benefits shall be provided as otherwise scheduled. For
purposes of this Agreement, termination of employment will be read to mean a
“separation from service” within the meaning of Section 409A of the Code where
it is reasonably anticipated that no further services would be performed after
that date or that the level of services Executive would perform after that date
(whether as an employee or independent contractor) would permanently decrease to
less than 50% of the average level of bona fide services performed over the
immediately preceding thirty-six (36)- month period.
IN
WITNESS WHEREOF, the parties have executed this agreement as of the date above
written.
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TRUSTMARK
CORPORATION
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EXECUTIVE
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By:
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/s/ Xxxxxxx X. Xxxxxxx | /s/ Xxxxxx X. Host | ||
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Xxxxxxx
X. Xxxxxxx
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Xxxxxx X. Host
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Chairman
and Chief Executive Officer
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