Exhibit 10.3
[Name]
[address]
Dear [Name]:
This
is your new CHANGE IN CONTROL AGREEMENT (the “Agreement”) with
Regions Financial Corporation (the “Company”).
| 1. |
Purpose, Effectiveness and Interpretation. |
| |
(a) Purpose. This Company desires to provide you with protection if there is
a future Change in Control of the Company. You should review this Agreement
carefully for the terms and conditions that will apply. |
| |
(b) Interpretation. Some of terms used in this Agreement are defined in the
attached Annex, which also includes some of the general provisions that govern
this Agreement. The Annex is a part of this Agreement, and you should refer to
the Annex as you review the rest of this Agreement. |
| |
(c) Effectiveness. If you agree to the terms and conditions of this
Agreement, please execute and return a copy of this Agreement to the Executive
Compensation Department of Regions. This Agreement will become effective on
execution by both you and the Company. |
| 2. |
Termination of AmSouth Agreement, Retention Grant and SERP Enhancement |
If this Agreement becomes effective, each of the following will occur:
| |
(a) Termination of AmSouth Agreement. Your existing employment agreement,
dated [date] between you and AmSouth Bancorporation will be terminated
(your “Prior Agreement”). Neither you nor the Company or any of
its affiliates (as constituted from time to time, the “Group”)
shall have any obligation or liability of any kind under the Prior Agreement. By
signing this Agreement, you are electing to forgo any payments and benefits you
may otherwise be eligible to receive under the Prior Agreement. |
| |
(b) Retention Grant. In consideration of your commitments as outlined above,
the Company will grant you an award of [number] restricted stock units of
the Company on a date as determined by the Compensation Committee of the
Board after your acceptance of this Agreement. These restricted stock units will
be substantially on the terms of the form of restricted stock unit award
agreement attached to this Agreement (the “Award Agreement”).
|
| |
(c)
SERP Enhancement. As additional consideration for your commitments as
outlined above, your minimum benefit under the AmSouth Bancorporation
Supplemental Retirement Plan shall equal the Enhanced Benefit you would have
been eligible to receive under Section 3.01 of the Plan if you had terminated
employment under the Prior Agreement on November 4, 2008. In addition, your
interest in the Enhanced Benefit will be fully vested regardless of the age at
which you retire.
|
| 3. |
|
Term of this Agreement |
The
term of this Agreement will begin on the date it becomes effective and will continue until
December 31, 2009. On December 31, 2009, and on each December 31 after that, the term of
this Agreement will be automatically extended for one additional year unless (1) a Change
in Control occurs or (2) the Company gives you 60 days prior written notice of the
intention to not extend this Agreement;
provided, however, that the Company
may not provide you with a notice of non-extension within one year following the
occurrence of a Potential Change in Control or while a Potential Change in Control is
pending.
| 4. |
Terms of Employment Following Change in Control |
If
a Change in Control occurs during the term of this Agreement, a “Protected
Employment Period” will begin and the following employment terms will be
effective. Your Protected Employment Period will end on the second anniversary of the
Change in Control or your separation of service from the Company if earlier.
| |
(a) Compensation and Benefits.
|
| |
(1)
Annual Base Salary. During the Protected Employment Period, you will be
entitled to receive annual base salary at a rate that is at least equal to the
rate of your annual base salary as in effect immediately before the Change in
Control. |
| |
(2)
Annual Bonus Opportunity. During the Protected Employment Period, you
will be entitled to have an annual bonus opportunity that is at least materially
equivalent to your annual bonus opportunity in effect for the year during which
the Change in Control occurred. |
| |
(3)
Long-Term Incentive Opportunity. During the Protected Employment Period,
you will be entitled to participate in long term incentive plans, practices,
policies and programs applicable generally to other peer executives of the
Company and be entitled to receive periodic grants under such plans, practices,
policies and programs that are no less than market-competitive for the position
you held with the Company immediately before the Change in Control as reasonably
determined by the Company (on the same basis as such determination is made for
other peer executives of the Company). |
| |
(4)
Employee Benefit Plans. During the Protected Employment Period, you will
be entitled to participate in employee benefit plans, programs and arrangements
(including tax-qualified and non-qualified
|
| |
pension, retirement savings, health
and other welfare benefit plans) that, in the aggregate, are at least
substantially similar to the Company employee benefit plans, programs and
arrangements that you were eligible to participate in immediately before the
Change in Control. However, nothing in this Section 4(a)(4) will entitle you to
any particular type of employee benefit or limit in any way the Company’s
or the Surviving Company’s ability to establish, amend or terminate any
employee benefit plan, program or arrangement. |
| |
(b) Employment at Will. Notwithstanding that a Protected Employment Period
may occur, you and the Company acknowledge that your employment with the Company
is “at will” and may be terminated by you or by the Company at any
time and for any reason, either before or after a Change in Control occurs.
|
| |
(a) Important Definitions. This Section 5 uses the following defined terms:
|
| |
(1) “Cause” means the occurrence of one or more of the following: |
| |
(A) your willful and continued failure to substantially perform your reasonably
assigned duties with the Company or any of its affiliates (other than any such
failure resulting from incapacity due to physical or mental illness), which
failure continues for a period of at least 30 days after a written demand for
substantial performance, signed by a duly authorized officer of the Company, has
been delivered to you specifying the manner in which you have failed
substantially to perform; |
| |
(B) your breach of fiduciary duty involving personal profit, your commission of a
felony or a crime involving fraud or moral turpitude, or your material breach of
any provision of this Agreement; |
| |
(C) your willfully engaging in illegal conduct or gross
|
| |
misconduct that is materially injurious to the Company; |
| |
(D) your willfully impeding, endeavoring to influence, obstruct or impede or failing
to materially cooperate with an investigation authorized by the Board, a
self-regulatory organization empowered with self-regulatory responsibilities
under federal securities or state laws or any substantially equivalent foreign
statute or regulation or a governmental department or agency; or |
| |
(E) your disqualification or bar by any governmental or self-regulatory authority
from carrying out the duties and responsibilities of your position with the
Group or your loss of any governmental or self-regulatory license that is
reasonably necessary for you to perform your responsibilities to the Group. |
| |
Notwithstanding
the foregoing, no termination of your employment shall be for Cause until (i) there shall
have been delivered to you a notice of termination, and (ii) within 15 days thereafter,
you shall have been provided an opportunity to be heard in person by a review panel
appointed by the Compensation Committee of the Board. For purposes of determining whether
an event constituting Cause has occurred, no act or failure to act, on your part, shall be
considered “willful” unless it is done, or omitted to be done, by you in bad
faith or without reasonable belief that your action or omission was legal, proper, and in
the best interests of the Company. Any act, or failure to act, based upon authority and
directives given pursuant to a resolution duly adopted by the Board or upon the
instructions of a senior officer of the Company or based upon the advice of counsel for
the Company shall be conclusively presumed to be done, or omitted to be done, by you in
good faith and in the best interests of the Company. Notwithstanding anything set forth in
the Agreement to the contrary, no failure to perform by you after a notice of termination
is given by you to the Company shall constitute Cause for the purposes of this Agreement. |
| |
(2) “Good Reason” means the occurrence of one or more of the
|
| |
(A) an adverse change in your responsibilities as in effect immediately before the
Change in Control other than any change that is immaterial. For the avoidance of
doubt, a change in your title, lines of reporting, or internal job
classification will not in and of itself, result in Good Reason; |
| |
(B) a material diminution in the budget over which you retain authority as compared
with the budget over which you had control immediately before the Change in
Control; |
| |
(C) a material breach of the compensation provisions of Section 4(a) of this
Agreement ; or |
| |
(D) the Company requiring you to be based at any location that is more than 50 miles
from your regular place of employment immediately before the Change in Control. |
| |
Notwithstanding
the foregoing, no termination of your employment shall be for Good Reason unless you give
the Company written notice within 90 days of your obtaining knowledge of circumstances
giving rise to Good Reason (describing in reasonable detail the circumstances and the Good
Reason event that has occurred) and the Company does not remedy these circumstances within
30 days of receipt of your notice. In addition, an event will not give rise to Good Reason
if it is made with your express written consent. |
| |
(b) Severance For Certain Terminations During the Protected Employment
Period. If (i) your employment with the Company is terminated during the
Protected Employment Period and (ii) the termination is either by the Company
without Cause or by you for Good Reason, then: |
| |
(1) The Company will pay you (A) your annual base salary as pro-rated through the
termination date, to the extent not already paid, (B) reimbursement (in
accordance with the Company’s expense
|
| |
reimbursement policy) for reasonable
and necessary business expenses incurred by you on behalf of the Company before
the termination date, (C) your accrued and unused vacation pay (in accordance
with the Company’s vacation policy) to the extent not already paid, and (D)
bonuses and incentive compensation to which you are entitled under the terms of
applicable bonus or incentive plans or awards maintained by the Company
(together, your “Accrued Compensation”). In addition,
the Company will pay or provide you, to the extent not already paid or provided,
any amounts or benefits required to be paid or provided or which you are
eligible to receive under any plan, program, policy or practice or other
contract or agreement of the Group through the termination date (your
“Accrued Other Benefits”). |
| |
(2) The Company will pay severance of three times the sum of your Base Salary and
Bonus Amount. For purposes of this Agreement, “Base Salary”
means the greater of your annual base salary at the rate in effect immediately
before a Change in Control and your annual base salary at the rate in effect as
of your termination date, in each case, determined without regard to any
deferred compensation elections made by you. For purposes of this Agreement,
“Bonus Amount” means the greater of (A) the average annual cash
bonus paid or payable to you by the Company for the three full fiscal year
period ending immediately before the occurrence of a Change in Control, and (B)
your target annual cash bonus for the fiscal year of termination (in each case
determined without regard to any deferred compensation elections made by you). |
| |
(3) To the extent not included in your Accrued Compensation, the Company will pay
you a pro-rata bonus amount for the year of termination, based on your Bonus
Amount. |
| |
(4) In addition, for three years after termination of your employment, the Company
will continue your medical and dental coverage (and coverage for your eligible
dependents) at a level at least equal to the level that such benefits would have
been provided to you in accordance with
|
| |
the Company’s employee benefit
plans if your employment had not terminated; provided that the Company
shall cease to provide such coverage if you obtain alternate employment and are
eligible for substantially comparable group medical coverage with such employer.
Notwithstanding the foregoing, for purposes of determining your eligibility for
retiree medical benefits pursuant to any plan, program or arrangement maintained
by the Company (but not for purposes of determining the time of commencement of
any such benefits), you shall be deemed to have remained employed by the Company
until three years after your termination date. |
| |
(5) For purposes of vesting and eligibility under the AmSouth Bancorporation
Retirement Plan and the AmSouth Bancorporation Supplemental Executive Retirement
Plan, you will be credited with the additional years (or partial years) of age
and service with the Company that you would have accrued if you had remained
employed by the Company through the second anniversary of the Change in Control. |
| |
(6) The Company shall also provide you with reasonable outplacement services for the
period through the last day of the second calendar year following the calendar
year during which your termination of employment occurred. |
| |
(c) For Certain Termination Following a Potential Change in Control. If
during the term of this Agreement, (i) a Potential Change in Control has
occurred, (ii) your employment with the Company is terminated while the
Potential Change in Control is pending either by the Company without Cause or by
you for Good Reason and (iii) the termination of your employment (or the
circumstances giving rise to Good Reason) was at the request of a third party
who has taken steps reasonably calculated to effect a Change in Control or
otherwise arose in connection with or anticipation of a Change in Control,
then the Company will make the same payments and provide the same
benefits set forth in Section 5(b) (substituting “Potential Change in
Control” for all references to “Change in Control” in that
Section).
|
| |
(d) Other Terminations. If the term of this Agreement expires before a Change
in Control and before termination of your employment with the Company or if your
employment with the Company terminates other than as contemplated under Section
5(a) or (b), this Agreement will automatically terminate and there will be no
obligation or liability of any kind under this Agreement.
|
| 6. |
Terms and Conditions to Your Severance Protection |
| |
(a) Form and Time of Payment. The cash amounts provided for in Section 5
above shall be paid in a single lump sum payment on the regularly scheduled
payroll day immediately following the 30th day after your termination date (but
in no event later than March 15th following the calendar year in
which occurs the later of the time the legally binding right to the payment
arises or the time such right first ceases to be subject to a substantial risk
of forfeiture). It is intended that these payments constitute short-term
deferred compensation within the meaning of the applicable Treasury regulations
pursuant to Section 409A of the Internal Revenue Code of 1986, as amended (the
“Code”). Notwithstanding the preceding two sentences, (A) if
you are a “specified employee” at the time you separate from service
with Company and any payment or benefit under Section 5 is determined to
constitute non-qualified deferred compensation, such payment shall be made or
such benefit shall be provided on the date that is six months after your
separation from service with the Company, all as determined in accordance with
Section 409A of the Code, and (B) if you separate from service with the Company
on or before December 31, 2007, any amount that you are entitled to receive
under this Agreement will be paid to you at the times contemplated under the
Prior Agreement (as determined by the Company in accordance with Section 409A of
the Code).
|
| |
(b) Condition. The Company’s obligation to pay or provide the payments
and benefits described in Sections 5(b)(2) through (6) shall be contingent upon
your signing (and failing to revoke during any applicable revocation period),
within 55 days following termination of your employment, a general release of
|
| |
claims in favor of the Company and its affiliates.
|
| |
(c) Exclusive Severance Benefit. The severance pay provided for in Section 5
shall be in lieu of any other severance pay to which you may otherwise be
eligible to receive under any severance policy, plan, agreement or arrangement
maintained by the Company or any of its affiliates from time to time. Your
entitlement to any other benefits (other than additional severance pay) shall be
determined in accordance with the Company’s employee benefit plans and
other applicable programs and practices then in effect.
|
| 7. |
Effect of Change in Control Excise Tax. |
| |
(a) General. This Section 7 will apply to all Payments, including any
Payments you receive in respect of the merger of the Company and AmSouth
Bancorporation. In the event of a determination that any Payments are subject to
the Excise Tax, the Company shall pay to you an amount, within 30 days of the
determination of the amount (but in any event no later than by the end of your
taxable year next following the taxable year in which the Excise Tax is
remitted), which, on an after-tax basis (including federal income and excise
taxes, and state and local income taxes) equals the Excise Tax. However, if the
total Payments do not exceed 110% of the Excise Limit, the total Payments will
be reduced to the Excise Limit. For purposes of this Section 7, you shall
be deemed to pay federal, state and local income taxes at the highest marginal
rate of taxation for the calendar year in which the gross up payment is to be
made, taking into account the maximum reduction in federal income taxes which
could be obtained from deduction of state and local income taxes.
|
| |
(b) Determinations. All determinations required to be made under this Section
7, including as to any underlying assumptions, will be made by the Accounting
Firm. If your Payments are reduced to the Excise Limit, the Accounting Firm will
provide you with a written opinion, in form and substance reasonably
satisfactory to you, that (1) you are not required to pay any Excise Tax and (2)
your not reporting any Excise Tax on your applicable federal income tax return
will not result in the imposition of a negligence or similar penalty. The
Company will bear all fees and expenses of the
|
| |
Accounting Firm, including any
costs of retaining experts. Determinations by the Accounting Firm in accordance
with this Section 7(b) will be binding other than as provided in Section 7(c).
|
| |
(c) Overpayment and Underpayment. As a result of uncertainty and complexities
in applying Section 4999 of the Code, it is possible that there may be an
Overpayment or an Underpayment. If the Accounting Firm, the Company (which
includes the position taken by the Company or the Group on its federal income
tax return), the Internal Revenue Service, or a court determines that there has
been an Underpayment, the Company will pay you the Underpayment within 10 days
of determination (but in any event no later than by the end of your taxable year
next following the taxable year in which the Underpayment is remitted), together
with interest at the applicable federal rate (as defined in Section 1274(d) of
the Code) for the term of the Underpayment. If a final determination of a court
or an Internal Revenue Service proceeding (that has been finally and
conclusively resolved) establishes that there has been an Overpayment, the
Overpayment will be deemed for all purposes to be a loan to you that was made on
the date you received the Overpayment. You agree to repay the Overpayment on
demand.
|
| 8. |
Fees and Expenses; Governing Law.
|
| |
(a) Fees and Expenses. The Company agrees to pay, to the full extent
permitted by law, all legal fees and expenses reasonably incurred by you as a
result of any contest by the Company, you or others of the validity or
enforceability of, or liability under, any provision of this Agreement or any
guarantee thereof. Reimbursement of your fees and expenses shall be made within
30 days of the date you submit a request for reimbursement, but in no event
shall any such amount be reimbursed after the last day of the calendar year
following the calendar year in which you incurred such fees and expenses.
However, the Company shall not be liable for any such fees or expenses if a
court determines that the position taken by you with respect to such contest is
an unreasonable position or is frivolous. In the event the determination
described in the preceding sentence is made, you shall promptly repay to the
|
| |
Company any reimbursement of fees and expenses that you received from the
Company before the date of such determination, together with interest at the
applicable federal rate (as defined in Section 1274(d) of the Code). The amount
of reimbursement for fees and expenses for which you may be reimbursed during a
calendar year shall not affect the amount of fees and expenses for which you are
eligible for reimbursement in any other calendar year. Your right to
reimbursement for fees and expenses is not subject to liquidation or exchange
for another benefit.
|
| |
(b) Governing Law. This Agreement will be governed by and construed in
accordance with the law of the State of Alabama applicable to contracts
made and to be performed entirely within that state.
|
| |
(c) Waiver of Jury Trial. To the extent permitted by law, you and the
Company waive any and all rights to a jury trial with respect to any
Employment Matter.
|
| |
(d) Jurisdiction and Choice of Forum. You and the Company irrevocably
submit to the exclusive jurisdiction of any state or federal court located in
Birmingham, Alabama over any contest related to this Agreement, your employment
or termination of your employment. This includes any action or proceeding to
compel arbitration or to enforce an arbitration award. Both you and the Company
(1) acknowledge that the forum stated in this Section 8(d) has a reasonable
relation to this Agreement and to the relationship between you and the Company
and that the submission to the forum will apply even if the forum chooses to
apply non-forum law, (2) waive, to the extent permitted by law, any objection to
personal jurisdiction or to the laying of venue of any action or proceeding
covered by this Section 8(d) in the forum stated in this Section, (3) agree not
to commence any such action or proceeding in any forum other than the forum
stated in this Section 8(d), and (4) agree that, to the extent permitted by law,
a final and non-appealable judgment in any such action or proceeding in any such
court will be conclusive and binding on you and the Company. However, nothing in
this Agreement precludes you or the Company from bringing any action or
proceeding in any
|
| |
court for the purpose of enforcing the provisions of this
Section 8(d).
|
| |
(e) Counterparts. This Agreement may be executed in counterparts, each of
which will constitute an original and all of which, when taken together, will
constitute one agreement.
|
If you agree to the terms and conditions of this Agreement, please execute and return
a copy of this Agreement to the Executive Compensation Department of the Company.
This Agreement will then be reviewed by the Company’s Compensation Committee.
AGREED AND ACKNOWLEDGED:
Some of the terms used in the attached
Agreement are defined in this Annex, which also includes some of the general provisions
that govern the Agreement. This Annex is a part of this Agreement, and you should refer to
this Annex as you review the Agreement.
1. Definitions.
For
purposes of the Change in Control Agreement, the following terms have the meanings
indicated:
| |
Terms Relating to Change in Control:
|
| |
“Change in Control” means any of the following events:
|
| |
(1) the acquisition by any “Person” (as the term “person”
is used for the purposes of Section 13(d) or 14(d) of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”)) of direct
or indirect beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 20% or more of the combined voting power of the
then-outstanding securities of the Company entitled to vote in the election of
directors (the “Voting Securities”); or |
| |
(2) individuals (the “Incumbent Directors”) who, as of the date
hereof, constitute the Board of Directors of the Company (the
“Board”) cease for any reason to constitute at least a majority
of the Board; provided, however, that any individual becoming a
director subsequent to the date hereof whose election, or nomination for
election, was approved by a vote of at least two-thirds of the Incumbent
Directors who are then on the Board (either by specific vote or by approval,
without prior written notice to the Board objecting to the nomination, of a
proxy statement in which the individual was named as nominee) shall be an
Incumbent Director, unless such individual is initially elected or nominated as
a director of the Company as a result of an actual or threatened election
contest with
|
| |
respect to the election or removal of directors (“Election
Contest”) or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board (“Proxy
Contest”), including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest; or |
| |
(3) consummation of a merger, consolidation, reorganization, statutory share
exchange, or similar form of corporate transaction involving the Company or
involving the issuance of shares by the Company, the sale or other disposition
(including by way of a series of transactions or by way of merger,
consolidation, stock sale or similar transaction involving one or more
subsidiaries) of all or substantially all of the Company’s assets or
deposits, or the acquisition of assets or stock of another entity by the Company
(each a “Business Combination”), unless such Business
Combination is a “Non-Control Transaction.” A “Non-Control
Transaction” is a Business Combination immediately following which the
following conditions are met: |
| |
(A) the stockholders of the Company immediately before such Business Combination
own, directly or indirectly, more than 55% of the combined voting power of the
then-outstanding voting securities entitled to vote in the election of directors
(or similar officials in the case of a non-corporation) of the entity resulting
from such Business Combination (including, without limitation, an entity that as
a result of such Business Combination owns the Company or all of substantially
all of the Company’s assets, stock or ownership units either directly or
through one or more subsidiaries) (the “Surviving Corporation”)
in substantially the same proportion as their ownership of the Company Voting
Securities immediately before such Business Combination; |
| |
(B) at least a majority of the members of the board of directors of the Surviving
Corporation were Incumbent Directors at the time of
|
| |
the Board’s approval of
the execution of the initial Business Combination agreement; and |
| |
(C) no person other than (i) the Company or any of its subsidiaries, (ii) the
Surviving Corporation or its ultimate parent corporation, or (iii) any employee
benefit plan (or related trust) sponsored or maintained by the Company
immediately before such Business Combination beneficially owns, directly or
indirectly, 20% or more of the combined voting power of the Surviving
Corporation’s then-outstanding voting securities entitled to vote in the
election of directors; or |
| |
(4) Approval by the stockholders of the Company of a complete liquidation or
dissolution of the Company. |
| |
Notwithstanding
the foregoing and anything in the Agreement to the contrary, a Change in Control shall not
be deemed to occur solely because any Person (the “Subject Person”)
acquired Beneficial Ownership of more than the permitted amount of the outstanding Voting
Securities as a result of the acquisition of Voting Securities by the Company which, by
reducing the number of Voting Securities outstanding, increases the proportional number of
shares Beneficially Owned by the Subject Person, provided that if a Change in
Control would occur (but for the operation of this sentence) and after such acquisition of
Voting Securities by the Company, the Subject Person becomes the Beneficial Owner of any
additional Voting Securities, then a Change in Control shall occur. |
| |
“Potential Change in Control” means the occurrence of any one of the following:
|
| |
(1) the Company enters into a definitive written agreement, the consummation of
which would result in the occurrence of a Change in Control; or |
| |
(2) the Board adopts a resolution to the effect that, for purposes of this
Agreement, a Potential Change in Control has occurred. |
| |
A Potential Change in Control shall cease occurring (A) in the case of (1) above, when the
Change in Control occurs or the relevant agreement terminates and (B) in the case of (2)
above, when the Board so determines by resolution. |
| |
Terms Relating to Excise Tax
|
| |
“Accounting
Firm” means any independent, nationally recognized public accounting firm that
(1) the Company selects before a Change in Control or (2) that is reasonably acceptable to
you and selected by the surviving company after a Change in Control.
|
| |
“Excise
Limit” means the greatest amount of Payments that could be made to you without
giving rise to Excise Tax.
|
| |
“Excise
Tax” means the excise tax imposed by Section 4999 of the Code and any related
interest or penalties incurred by you.
|
| |
“Payment”
means any payment made or benefit provided, including any awards and distributions, to you
or for your benefit (i) by the Group, whether or not pursuant to this Agreement, or (ii)
by any other entity in connection with a change in the ownership or effective control of
any member of the Group or a change in the ownership of a substantial portion of the
assets of the Group.
|
| |
“Overpayment”
means any Payment that is above the amount provided in Section 7(a) of the Agreement.
|
| |
“Underpayment”
means any Payment that is not made, consistent with the determination of the Accounting
Firm or the Company pursuant to Section 7(d) of Agreement, but that should have been made
pursuant to the correct application of Section 7(a) of the Agreement.
|
2. Effect on Other
Agreements.
| |
(a) Prior Employment Agreements and Severance Rights. This Agreement will
supersede the Prior Agreement and any earlier change in control severance or
similar rights you may have with any member of the Group. |
| |
(b) Effect on Other Agreements; Entire Agreement. This Agreement is the
entire agreement between you and the Company with respect to the benefits
contemplated by this Agreement and supersedes any earlier agreement, written or
oral, with respect to the subject matter of this Agreement. In entering into
this Agreement, no party has relied on or made any representation, warranty,
inducement, promise or understanding that is not in this Agreement. |
3. Successors.
| |
(a) Assignment by You. You may not assign this Agreement without the
Company’s consent. Also, except as required by law, your right to receive
payments or benefits under this Agreement may not be subject to execution,
attachment, levy or similar process. Any attempt to effect any of the preceding
in violation of this Section 3(a), whether voluntary or involuntary, will be
void. |
| |
(c) Assumption by any Surviving Company. Before the effectiveness of any
Business Combination, the Company will cause (i) the Surviving Company to
unconditionally assume this Agreement in writing and (ii) a copy of the
assumption to be provided to you. After the Business Combination, the Surviving
Company will be treated for all purposes as the Company under this Agreement. |
4. General Provisions.
| |
(a) Construction. (i) References to the following terms have the meanings
stated: |
| |
1.
To Sections are to sections of this Agreement unless otherwise stated.
|
|
2.
To any contract (including this Agreement) are to the contract as
amended, modified, supplemented or replaced from time to time. |
|
3.
To any statute, rule or regulation are to the statute,
rule or regulation as amended, modified, supplemented or replaced from time to
time (and, in the case of statutes, include any rules and regulations
promulgated under the statute) and to any section of any statute, rule
or regulation include any successor to the section. |
|
4.
To any governmental authority include any successor to the governmental
authority. |
| |
5.
To any plan include any programs, practices and policies. |
| |
6.
To any entity include any corporation, limited liability company,
partnership, association, business trust and similar organization and include
any governmental authority. |
| |
7.
To any affiliate of any entity are to any person or other entity
directly or indirectly controlling, controlled by or under common control with
the first entity. |
|
(ii)
The various headings in this Agreement are for convenience of reference
only and in no way define, limit or describe the scope or intent of any
provisions or Sections of the Agreement or this Annex. |
|
(iii)
Unless the context requires otherwise, (A) words describing the singular
number include the plural and vice versa, (B) words denoting any
gender include all genders and (C) the words “include”,
“includes” and “including” will be deemed to
be followed by the words “without limitation.” |
|
(iv)
It is your and the Group’s intention that this Agreement not be construed
more strictly with regard to you or the Group. |
|
(b)
Withholding. You and the Group will treat all payments to you under this
Agreement as compensation for services. Accordingly, the Group may withhold from
any payment any taxes that are required to be withheld under any law, rule or
regulation. |
|
(c)
Severability. If any provision of this Agreement is found by any court of
competent jurisdiction (or legally empowered agency) to be illegal, invalid or
unenforceable for any reason, then (i) the provision will be amended
automatically to the minimum extent necessary to cure the illegality or
invalidity and permit enforcement and (ii) the remainder of this Agreement will
not be affected. |
|
(d)
No Set-off or Mitigation. Your and the Company’s respective
obligations under this Agreement will not be affected by any set-off,
counterclaim, recoupment or other right you or any member of the Group may have
against each other or anyone else. You do not need to seek other employment or
take any other action to mitigate any amounts owed to you under this Agreement,
and those amounts will not be reduced if you do obtain other employment. |
|
(e)
Notices. All notices, requests, demands and other communications under
this Agreement must be in writing and will be deemed given (i) on the business
day sent, when delivered by hand or facsimile transmission (with confirmation)
during normal business hours, (ii) on the business day after the business day
sent, if delivered by a nationally recognized overnight courier or (iii) on the
third business day after the business day sent if delivered by registered or
certified mail, return receipt requested, in each case to the following address
or number (or to such other addresses or numbers as may be specified by notice
that conforms to this paragraph (e): |
If
to you, to:
If to
the Company or any other member of the Group, to:
| |
Regions Financial Corporation
X.X. Xxx 00000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
|
with
a copy to:
| |
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx
Facsimile: 000-000-0000
|
|
(f)
Consideration. This Agreement is in consideration of the mutual covenants
contained in it. You and the Company acknowledge the receipt and sufficiency of
the consideration to this Agreement and intend this Agreement to be legally
binding. |
|
(g)
Amendments and Waivers. Any provision of this Agreement may be amended or
waived but only if the amendment or waiver is in writing and signed, in the case
of an amendment, by you and the Company or, in the case of a waiver, by the
party that would have benefited from the provision waived. Except as this
Agreement otherwise provides, no failure or delay by you or the Group to
exercise any right or remedy under this Agreement will operate as a |
|
waiver,
and no partial exercise of any right or remedy will preclude any further exercise. |
|
(h)
Third Party Beneficiaries. Subject to Section 6 of the Agreement, this
Agreement will be binding on, inure to the benefit of and be enforceable by the
parties and their respective heirs, personal representatives, successors and
assigns. This Agreement does not confer any rights, remedies, obligations or
liabilities to any entity or person other than you and the Company and your and
the Company’s permitted successors and assigns, although this
Agreement will inure to the benefit of the Group and Section 3(a) of this Annex
will inure to the benefit of the most recent persons named in a notice under
that Section. |
|
(j)
No Golden Parachute Payments; Application to the Appropriate Federal Banking
Agency. If any Payment would otherwise be a golden parachute payment within
the meaning of Section 18(k) of the Federal Deposit Insurance Act, the Payment
will not be made unless permitted under applicable law. The Company will
use best efforts promptly to apply to the appropriate federal banking agency for
a determination that any golden parachute payment is permissible. Any Payment
that is determined permissible will be paid in accordance with its terms or, if
due before the date of determination, will be paid within 30 days of
determination together with interest at the applicable federal rate (as defined
in Section 1274(d) of the Code). |
