Exhibit 10.1
NBC CAPITAL CORPORATION
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into by and between
Xxxxx X. Xxxxxxx, Xx. ("Executive"), and NBC Capital Corporation, a corporation
organized and existing under the laws of the State of Mississippi (the
"Company"), and is intended to amend and restate, in its entirety, that certain
Employment Agreement between National Bank of Commerce and Executive, initially
effective as of January 3, 1991.
1. EMPLOYMENT AND TERM
1.1 Position. The Company shall employ and retain Executive as its
Chief Executive Officer or in such other capacity or capacities as shall be
mutually agreed upon, from time to time, by Executive and the Company, and
Executive agrees to be so employed, subject to the terms and conditions set
forth herein. Executive's duties and responsibilities shall be those assigned
to him hereunder, from time to time, by the Board of Directors of the Company
(the "Board of Directors") and shall include such duties as are the type and
nature normally assigned to similar executive officers of a corporation of the
size, type and stature of the Company. Executive shall report to the Board of
Directors.
1.2 Concurrent Employment. During the term of this Agreement,
Executive and the Company acknowledge that Executive may be concurrently
employed by the Company and one or more subsidiaries or other entities with
respect to which the Company owns (within the meaning of Section 425(f) of the
Internal Revenue Code of 1986, as amended (the "Code")) 50% or more of the
total combined voting power of all classes of stock or other equity interests
(an "Affiliate"), and that all of the terms and conditions of this Agreement
shall apply to such concurrent employment. Reference to the Company hereunder
shall be deemed to include any such concurrent employers.
1.3 Full Time and Attention. During the term of this Agreement and any
extensions or renewals thereof, Executive shall devote his full time, attention
and energies to the business of the Company and will not, without the prior
written consent of the Board of Directors, be engaged (whether or not during
normal business hours) in any other business or professional activity, whether
or not such activities are pursued for gain, profit or other pecuniary
advantage.
Notwithstanding the foregoing, Executive shall not be prevented from
(a) engaging in any civic or charitable activity for which Executive
receives no compensation or other pecuniary advantage, (b) investing
his personal assets in businesses which do not compete with the
Company, provided that such investment will not require any services
on the part of Executive in the operation of the affairs of the
businesses in which investments are made and provided that
Executive's participation in such businesses is solely that of an
investor, or (c) purchasing securities in any corporation whose
securities are regularly traded, provided that such purchases will
not result in Executive owning beneficially at any time 5% or more
of the equity securities of any corporation engaged in a business
competitive with that of the Company.
1.4 Term. Executive's employment under this Agreement shall
commence as of June 1, 2003 (the "Effective Date"), and shall terminate on May
31, 2006 (such date or the last day of employment specified in any renewal or
amendment hereof referred to herein as the "Termination Date") (the period
commencing as of the Effective Date and ending as of the Termination Date
referred to herein as the "Employment Term").
Commencing on the second anniversary of the Effective Date and each
anniversary thereafter, Executive's Employment Term shall automatically be
extended for an additional one-year period; provided, however, that either
party may provide written notice to the other that the Employment Term will not
be further extended, such notice to be provided not later than 30 days prior to
the end of the then-current Employment Term.
2. COMPENSATION AND BENEFITS
2.1 Base Compensation. The Company shall pay Executive an annual
salary equal to his annual base salary in effect as of the Effective Date, such
amount shall be prorated and paid in equal installments in accordance with the
Company's regular payroll practices and policies and shall be subject to
applicable withholding for employment and income taxes (Executive's "Base
Compensation"). Executive's Base Compensation shall be reviewed no less often
than annually and may be increased or reduced by the Board of Directors, in its
sole discretion; provided, however, that Executive's Base Compensation may not
be reduced during or as the result of a Change in Control unless agreed to by
Executive and the Company or due to lack of performance by Executive.
2.2 Annual Incentive Bonus. In addition to the foregoing, Executive
shall be eligible for participation in the Annual Incentive Compensation Plan
or similar bonus arrangement maintained by the Company or an Affiliate or such
other bonus or incentive plans which the Company or its Affiliates may adopt,
from time to time, for similarly situated executives (an "Incentive Bonus").
2.3 Long-Term Incentives. In addition to the foregoing, Executive
shall be eligible for participation in the 2001 Long-Term Incentive
Compensation Plan maintained by the Company and such other long-term incentive
plans which the Company or its Affiliates may adopt, from time to time, for
similarly situated executives (a "Long-Term Incentive").
2.4 Supplemental Retirement Benefit. In addition to the foregoing,
Executive shall be eligible to participate in the Revenue Neutral Supplemental
Retirement Plan maintained by the Company or such other supplemental retirement
benefit plans which the Company or its Affiliates may adopt, from time to time,
for similarly situated executives (the "Supplemental Plan").
2.5 Other Benefits. During the term of this Agreement and in addition
to the amounts otherwise provided herein, Executive shall participate in such
plans, policies, and programs as may be maintained, from time to time, by the
Company or its Affiliates for the benefit of senior executives or employees,
including, without limitation, profit sharing, life insurance, and group
medical and other welfare benefit plans. Any such benefits shall be determined
in accordance with the specific terms and conditions of the documents
evidencing any such plans, policies, and programs.
2.6 Reimbursement of Expenses. The Company shall reimburse Executive
for such reasonable and necessary expenses as are incurred in carrying out his
duties hereunder, consistent with the Company's standard policies and annual
budget. The Company's obligation to reimburse Executive hereunder shall be
contingent upon the presentment by Executive of an itemized accounting of such
expenditures.
3. TERMINATION
3.1 Termination Payments to Executive. As set forth more fully in this
Section 3 and except as provided in Section 3.3 hereof, Executive shall be
entitled to one or more of the payments described below:
a. Executive's Base Compensation accrued but not yet paid as of the
date of his termination.
b. Executive's Incentive Bonus payable (or that would be payable if
Executive continued employment) with respect to the year of his
termination, prorated to reflect Executive's actual period of
service during such year.
c. Executive's Base Compensation payable until the Termination Date
(determined without regard to the automatic renewal provisions of
Section 1.4 hereof), but not less than 100% of such annual Base
Compensation.
Except as expressly provided in this Section 3, Executive shall also be
entitled to such compensation and benefits as may be provided under the terms
of a separate plan or agreement maintained by the Company (or its Affiliates),
to the extent not duplicative of the benefits provided herein.
3.2 Termination for Death or Disability. If Executive dies or becomes
disabled during the Employment Term, this Agreement and Executive's employment
hereunder shall immediately terminate and the Company's obligations hereunder
shall automatically cease. In such event, the Company shall pay to Executive
(or his estate) the amounts described in Sections 3.1a and 3.1b hereof.
Payment shall be made in the form of one or more single-sums as soon as
practicable after Executive's death or disability or as and when such amounts
are ascertainable.
For purposes of this Section 3.2, Executive shall be deemed "disabled"
if he is actually receiving benefits under the Company's (or an Affiliate's)
separate long-term disability plan and his illness or injury is expected to be
of a permanent or indefinite duration. The Board shall determine whether
Executive is disabled hereunder.
3.3 Company's Termination for Cause. This Agreement and Executive's
employment hereunder may be terminated by the Company on account of Cause. In
such event, the Company shall pay to Executive the amount described in Section
3.1a hereof. Payment shall be made in the form of a single-sum not later than
ten days after such termination. Notwithstanding any provision of this
Agreement or any other plan, policy or agreement evidencing any other
compensation arrangement or benefit payable to Executive, no additional amount
shall be paid to Executive, except as may be required by law.
For purposes of this Agreement, "Cause" means that Executive has:
a. Committed an intentional act of fraud, embezzlement or theft in
the course of his employment or otherwise engaged in any
intentional misconduct that is materially injurious to the
Company's (or an Affiliate's) financial condition or business
reputation;
b. Committed intentional damage to the property of the Company (or
an Affiliate) or committed intentional wrongful disclosure of
Confidential Information (as defined in Section 5.2) that is
materially injurious to the Company's (or an Affiliate's)
financial condition or business reputation;
c. Performed his duties in an unsatisfactory manner as determined by
the Board of Directors; or
d. A material breach of this Agreement by Executive.
No act or failure to act on the part of Executive will be deemed
"intentional" if it was due primarily to an error in judgment or negligence,
but will be deemed "intentional" only if done or omitted to be done by
Executive not in good faith and without reasonable belief that his action or
omission was in the best interest of the Company (or an Affiliate).
The Board, acting in good faith, may terminate Executive's
employment hereunder on account of Cause (or may determine that
any termination by the Company is on account of Cause). The Board
shall provide written notice to Executive, including a description
of the specific reasons for the determination of Cause. Executive
shall have the opportunity to appear before the Board, with or
without legal representation, to present arguments and evidence on
his behalf. Following such presentation (or upon Executive's
failure to appear), the Board, by an affirmative vote of not less
than 66% of the nonemployee members of the Board, shall confirm
that the actions or inactions of Executive constitute Cause
hereunder.
3.4 Termination by the Company, without Cause. The Company may
terminate this Agreement and Executive's employment hereunder, without Cause,
upon 30 days prior written notice to Executive (or such shorter period as may
be agreed upon by Executive and the Board). In such event, the Company shall
provide to Executive (a) the amount described in Section 3.1a hereof, payable
not later than ten days after such termination, and (b) the amounts
determined under Sections 3.1b and 3.1c hereof, payable in not more than two
equal installments, one-half not later than 30 days after termination and the
other one-half not later than six months after such termination.
3.5 Termination by Executive. If Executive voluntarily terminates his
employment with the Company for any reason (other than under Section 4.2
hereof), the Company shall pay to Executive the amount described in Section
3.1a hereof. Payment shall be made in the form of a single-sum not later than
ten days after such termination. No additional payments or benefits shall be
due hereunder, except as may be provided under a separate plan, policy or
program evidencing a separate compensatory arrangement or benefit or as may be
required by law.
3.6 Return of Property. Upon termination of this Agreement for any
reason, Executive shall promptly return to the Company all of the property of
the Company (and its Affiliates), including, without limitation, automobiles,
equipment, computers, fax machines, portable telephones, printers, software,
credit cards, manuals, customer lists, financial data, letters, notes,
notebooks, reports and copies of any of the above and any Confidential
Information (as defined in Section 5.2 hereof) that is in the possession or
under the control of Executive.
4. CHANGE IN CONTROL
4.1 Definitions. The term "Change in Control" shall have the meaning
ascribed to it in the NBC Capital Corporation 2001 Long-Term Incentive
Compensation Plan, as the same may be amended from time to time.
The term "Good Reason," when used herein, shall mean that in connection
with a Change in Control:
a. Executive's Base Compensation in effect immediately before such
Change in Control is reduced or there is a significant reduction
or termination of Executive's rights to any employee benefit in\
effect immediately prior to the Change in Control;
b. Executive's authority, duties or responsibilities are
significantly reduced from those contemplated in Section 1.1
hereof or Executive has reasonably determined that, as a result of
a change in
circumstances that significantly affects his employment with the
Company (or an Affiliate), he is unable to exercise the authority,
power, duties and responsibilities contemplated in Section 1.1
hereof;
c. Executive is required to be away from his office in the course of
discharging his duties and responsibilities under this Agreement
significantly more than was required prior to the Change in
Control; or
d. Executive is required to transfer to an office or business location
located more than 60 miles from the location he was assigned to
prior to the Change in Control.
No event or condition described in this Section 4.1 shall constitute Good
Reason unless (a) Executive gives the Company notice of his objection to such
event or condition within a reasonable period after Executive learns of such
event, which notice may be delivered orally or in writing to the Board of
Directors, (b) such event or condition is not promptly corrected by the
Company, but in no event later than 30 days after receipt of such notice, and
(c) Executive resigns his employment with the Company (and its Affiliates) not
more than 60 days following the expiration of the 30-day period described in
subparagraph (b) hereof.
4.2 Termination of Employment In Connection With a Change in Control.
If Executive's employment is terminated by the Company, without Cause (as
defined in Section 3.3 hereof), or Executive terminates his employment
hereunder for Good Reason, either at any time within the 60-day period
preceding or 36-month period following the occurrence of a Change in Control,
then notwithstanding any provision of this Agreement to the contrary and in
lieu of any compensation or benefits otherwise payable hereunder:
a. The Company shall pay to Executive the amount described in Section
3.1a in the form of a single-sum not later than ten days after such
termination.
b. The Company shall pay to Executive the amount described in Section
3.1b in the form of a single-sum not later than 30 days after such
termination.
c. The Company shall pay an amount equal to three times Executive's
Base Compensation in effect immediately prior to the Change in
Control, payable in the form of a single-sum not later than 30 days
after such termination.
d. The Company shall provide, at the Company's sole expense, coverage
for the Executive and his dependants under the Company's (or an
Affiliate's) group medical plan at the same type and level of health
benefits received by Executive and his dependents immediately prior
to such termination for a period of three years or until Executive
and/or his dependents obtain coverage under a reasonably
satisfactory group health plan with no applicable preexisting
condition limitation, whichever comes first; such coverage to be in
addition to any coverage available to Executive and his dependants
under Code Section 4980B.
e. Vesting shall be accelerated, any restrictions shall lapse, and all
performance objectives shall be deemed satisfied as to any
outstanding grants or awards made to Executive under the 2001 Long-
Term Incentive Compensation Plan and such other long-term incentive
plans which the Company or its Affiliates may adopt, from time to
time. Executive shall be entitled to such additional benefits or
rights as may be provided in the documents evidencing such plans or
the terms of any agreement evidencing such grant or award.
4.3 Tax Payment. If any payment to Executive pursuant to this Agreement
or any other payment or benefit from the Company or an Affiliate in connection
with a Change in Control is subject to the excise tax imposed under Code
Section 4999 or any similar excise or penalty tax payable under any United
States federal, state, local or other law, the Company shall pay an amount to
Executive such that, after the payment by Executive of all taxes on such
amount, there remains a balance sufficient to pay such excise or penalty tax.
Executive shall submit to the Company the amount to be paid under this Section
4.3, together with supporting documentation. If Executive and the Company
disagree as to such amount, an independent public accounting firm agreed upon
by Executive and the Company shall make such determination.
5. LIMITATIONS ON ACTIVITIES
5.1 Consideration for Limitation on Activities. Executive acknowledges
that the execution of this Agreement and the payments and benefits described
herein constitute sufficient consideration for the restrictions and limitations
set forth in this Section 5.
5.2 Confidential Information. Executive recognizes and acknowledges
that during the term of his employment, he will have access to confidential,
proprietary, non-public information concerning the Company and its Affiliates,
which may include, without limitation, (a) books and records relating to
operations, finance, accounting, personnel and management, including policies
and procedures, (b) deposit, investment, customer and loan data, (c)
information related to product design and development, (d) computer software,
customer lists, information obtained on competitors, and sales tactics, and
(e) various other non-public trade or business information, including business
opportunities, marketing or business diversification plans, methods and
processes, and financial data and the like (collectively, the "Confidential
Information"). Executive agrees that he will not at any time, either while
employed by the Company or afterwards, make any independent use of, or disclose
to any other person or organization (except as authorized by the Company or
pursuant to court order) any of the Confidential Information.
5.3 Nonsolicitation. Executive agrees that he shall not, for a 24-
month period commencing as of the date of Executive's voluntary termination (as
described in Section 3.5 hereof) or Executive's involuntary termination by the
Company on account of Cause (as described in Section 3.3 hereof), directly or
indirectly, whether for himself or on behalf of or in conjunction with any
other person, persons, company, partnership, corporation or business of
whatever nature:
a. Solicit any customer or divert or attempt to divert any customer,
depositor or supplier of the Company or an Affiliate; or
b. Induce any employee or agent of the Company or an Affiliate to
terminate employment with the Company (or Affiliate) or to commence
work with any competitor of the Company or an Affiliate.
5.4 Noncompetition. Executive agrees that he shall not, for a 24-month
period commencing as of the date of Executive's voluntary termination (as
described in Section 3.5 hereof) or Executive's involuntary termination by the
Company on account of Cause (as described in Section 3.3 hereof), whether as an
officer, director, shareholder, owner, partner, joint venture, or in a
managerial capacity, whether as an employee, independent contractor, consultant
or advisor, engage in the Company's Business in any counties of any states in
which the Company presently maintains, or has maintained during the preceding
12-month period, a banking center.
For purposes of this Section 5.4, the term "Company's Business" means
the banking business.
5.5 Severability; Reformation. Executive agrees that the restrictions
in this Section 5 are reasonable both as to time and to geographic scope and
that each restriction is intended to be severable and separate, and that the
unenforceability of any specific restriction shall not affect the provisions of
any other restriction or limitation.
If any court of competent jurisdiction determines that any restrictions
set forth herein are unreasonable, then it is the intention of the parties that
such restrictions be enforced to the fullest extent that the court deems
reasonable and that this Agreement shall be reformed.
5.6 Remedies. Because of the difficulty of measuring economic losses
to the Company or its Affiliates as a result of a breach of any of the
foregoing covenants and restrictions and because of the immediate and
irreparable damage that could be caused to the Company and its Affiliates for
which they would have no other adequate remedy, Executive agrees that in
addition to any remedy that may otherwise available, the foregoing covenants
and restrictions may be enforced by the Company or an Affiliate, in the event
of breach by him, by injunctions and restraining orders without the necessity
of posting any bond or other security therefor.
6. MISCELLANEOUS
6.1 Mitigation Not Required. As a condition of any payment hereunder,
Executive shall not be required to mitigate the amount of such payment by
seeking other employment or otherwise, nor will any profits, income, earnings
or other benefits from any source whatsoever create any mitigation, offset,
reduction or any other obligation on the part of Executive under this
Agreement.
6.2 Enforcement of this Agreement. After a Change in Control has
occurred, Executive shall not be required to incur legal fees and expenses
associated with the interpretation, enforcement or defense of his rights under
this Agreement by litigation or otherwise. Accordingly, if, following a Change
in Control, the Company has failed to comply with any of its obligations under
this Agreement or the Company or any other person takes or threatens to take
action to declare this Agreement void or unenforceable or institutes any
litigation or proceeding designed to deny or to recover from Executive the
benefits provided under this Agreement, Executive shall be entitled to retain
counsel of Executive's choice, at the expense of the Company, to advise and
represent Executive in connection with such dispute. This provision is
intended to include any such interpretation, enforcement or defense, including
without limitation the initiation or defense of any litigation, arbitration or
other legal action, whether by or against the Company or any director, officer,
stockholder or other person affiliated with the Company, in any jurisdiction.
The Company shall pay and be solely financially responsible for any and all
attorneys' and related fees and expenses incurred by Executive in connection
with any of the foregoing, without regard to whether Executive prevails, in
whole or in part.
In no event shall Executive be required to reimburse the Company for any
of the costs and expenses incurred by the Company relating to arbitration,
litigation or other legal action in connection with this Agreement.
6.3 Arbitration. Any dispute, controversy or claim arising out of or
relating to this Agreement or Executive's employment or the termination
thereof, including, but not limited to, any claim of discrimination under state
or federal law, shall be resolved exclusively by binding arbitration in
Starkville, Mississippi (or such other location as may be agreed to by the
parties), in accordance with the rules of the American Arbitration Association
then in effect. Judgment may be entered on the arbitrator's award in any court
having competent jurisdiction.
6.4 No Set-Off. There shall be no right of set-off or counterclaim in
respect of any claim, debt or obligation against any payment to Executive
provided for in this Agreement.
6.5 Assistance with Litigation. For a period of one year after the end
of the last period for which Executive will have received any compensation
under this Agreement, Executive will furnish such information and assistance as
may be reasonably necessary in connection with any litigation or other
proceedings in which the Company (or an Affiliate) is then or may become
involved.
6.6 Headings. Section and other headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
6.7 Entire Agreement. This Agreement constitutes the entire
understanding and agreement among the parties hereto with respect to the
subject matter hereof and supercedes any prior agreements or understandings,
whether written or oral, relating to such subject matter.
6.8 Amendments. This Agreement may be amended or modified at any time
in any or all respects, but only by an instrument in writing executed by the
parties hereto.
6.9 Choice of Law. The validity of this Agreement, the construction of
its terms, and the determination of the rights and duties of the parties hereto
shall be governed by and construed in accordance with the internal laws of the
State of Mississippi applicable to contracts made to be performed wholly within
such state.
6.10 Notices. All notices and other communications under this
Agreement must be in writing and will be deemed to have been duly given when
(a) delivered by hand, (b) sent by telecopier to a telecopier number given
below, provided that a copy is sent by a nationally recognized overnight
delivery service (receipt requested), or (c) when received by the addressee, if
sent by a nationally recognized overnight delivery service (receipt requested),
in each case as follows:
If to Executive: Xxxxx X. Xxxxxxx
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
If to the Company: NBC Capital Corporation
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Chairman of the Board
Telecopier: 000-000-0000
or to such other addresses as a party may designate by notice to the other
party.
6.11 Assignment. This Agreement will inure to the benefit of and be
binding upon the Company, its Affiliates, successors and assigns, including,
without limitation, any person, partnership, company, corporation or other
entity that may acquire substantially all of the Company's assets or business
or with or into which the Company may be liquidated, consolidated, merged or
otherwise combined, and will inure to the benefit of and be binding upon
Executive, his heirs, estate, legatees and legal representatives. If payments
become payable to Executive's surviving spouse or other assigns and such person
thereafter dies, such payment will revert to Executive's estate.
6.12 Severability. Each provision of this Agreement is intended to be
severable. In the event that any one or more of the provisions contained in
this Agreement shall for any reason be held to be invalid, illegal or
unenforceable, the same shall not affect the validity or enforceability of any
other provision of this Agreement, but this Agreement shall be construed as if
such invalid, illegal or unenforceable provisions was not contained herein.
Notwithstanding the foregoing, however, no provision shall be severed if it is
clearly apparent under the circumstances that the parties would not have
entered into this Agreement without such provision.
6.13 Withholding. The Company (or an Affiliate) may withhold from any
payment hereunder any federal, state or local taxes required to be withheld.
6.14 Survival. Notwithstanding anything herein to the contrary, to
the extent applicable, the obligations of the Company (and its Affiliates)
and the obligations of Executive under Sections 3, 4, 5 and 6 shall remain
operative and in full force and effect regardless of the expiration of this
Agreement.
6.15 Waiver. The failure of either party to insist in any one or more
instances upon performance of any terms or conditions of this Agreement will
not be construed as a waiver of future performance of any such term, covenant,
or condition and the obligations of either party with respect to such term,
covenant or condition will continue in full force and effect.
THIS AGREEMENT is executed in multiple counterparts as of the dates set
forth below, each of which shall be deemed an original, to be effective as of
the Effective Date designated above.
NBC CAPITAL CORPORATION XXXXX X. XXXXXXX
By: ____________________________ _________________________________
Its: _____________________________ Date: ____________________________
Date: ____________________________
