AGREEMENT
AGREEMENT, dated this 1st day of November, 1996, between Acadiana
Bancshares, Inc. (the "Corporation"), a Louisiana-chartered corporation, LBA
Savings Bank (the "Savings Bank"), a Louisiana-chartered savings bank and a
wholly-owned subsidiary of the Corporation, and Xxxxxx X. Xxxxx, Xx. (the
"Executive").
WITNESSETH
WHEREAS, the Executive is presently an officer of the Corporation and the
Savings Bank (together the "Employers"); and
WHEREAS, the Employers desire to be ensured of the Executive's continued
active participation in the business of the Employers; and
WHEREAS, in order to induce the Executive to remain in the employ of the
Employers and in consideration of the Executive's agreeing to remain in the
employ of the Employers, the parties desire to specify the severance benefits
which shall be due the Executive in the event that his employment with the
Employers is terminated under specified circumstances;
WHEREAS, the Savings Bank and the Executive previously entered into an
Employment Agreement effective as of September 1, 1995 ("Prior Agreement"), and
now desire to amend and restate such Prior Agreement in its entirety in order
to, among other things, reflect the mutual-to-stock conversion of the Savings
Bank and the Corporation's status as the parent holding company of the Savings
Bank;
NOW THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereby amend and restate the Prior Agreement in
its entirety and agree as follows:
1. Definitions. The following words and terms shall have the meanings
set forth below for the purposes of this Agreement:
(a) Base Salary. "Base Salary" shall have the meaning set forth in
Section 3(a) hereof.
(b) Cause. Termination of the Executive's employment for "Cause" shall
mean termination because of personal dishonesty, incompetence, willful
misconduct, breach of fiduciary duty involving personal profit, intentional
failure to perform stated duties, willful violation of any law, rule or
regulation (other than traffic violations or similar offenses) or final
cease-and-desist order or material breach of any provision of this Agreement.
For purposes of this paragraph, no act or failure to act on the Executive's part
shall be
considered "willful" unless done, or omitted to be done, by the
Executive not in good faith and without reasonable belief that the Executive's
action or omission was in the best interest of the Employers. Under the terms
of this Agreement, a determination that "Cause" for termination of employment
exists shall require a vote of all of the members (other than the Executive) of
the Boards of Directors of each of the Employers, and such vote shall not be
made prior to the expiration of a fifteen (15) day period following the date on
which such Boards shall, by written notice to the Executive, furnish to him a
statement of the grounds for proposing to make such determination, during which
period the Executive shall be afforded a reasonable opportunity to make oral and
written presentations to such Boards, and to be represented by his legal counsel
at such presentations, to refute the grounds for the proposed determination.
Regardless of the circumstances surrounding the termination for "Cause," the
Executive shall continue to receive all compensation and benefits otherwise
payable under this Agreement and otherwise during such fifteen (15) day period.
(c) Change in Control of the Corporation. "Change in Control of the
Corporation" shall mean a change in control of a nature that would be required
to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934, as amended ("Exchange
Act") or any successor thereto, whether or not any security of the Corporation
is registered under Exchange Act; provided that, without limitation, such a
change in control shall be deemed to have occurred if (i) any "person" (as such
term is used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Corporation representing 25% or more of the
combined voting power of the Corporation's then outstanding securities; or (ii)
during any period of two consecutive years, individuals who at the beginning of
such period constitute the Board of Directors of the Corporation cease for any
reason to constitute at least a majority thereof unless the election, or the
nomination for election by stockholders, of each new director was approved by a
vote of at least two-thirds of the directors then still in office who were
directors at the beginning of the period.
(d) Code. "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(e) Date of Termination. "Date of Termination" shall mean (i) if the
Executive's employment is terminated for Cause or for Disability, the date
specified in the Notice of Termination, and (ii) if the Executive's employment
is terminated for any other reason, the date on which a Notice of Termination is
given or as specified in such Notice.
(f) Disability. Termination by the Employers of the Executive's
employment based on "Disability" shall mean termination because of any physical
or mental impairment which qualifies the Executive for disability benefits under
the applicable long-term disability plan maintained by the Employers or any
subsidiary or, if no such plan applies, which would qualify the Executive for
disability benefits under the Federal Social Security System.
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(g) Good Reason. Termination by the Executive of the Executive's
employment for "Good Reason" shall mean termination by the Executive following a
Change in Control of the Corporation based on:
(i) without the Executive's express written consent, the failure to
elect or to re-elect or to appoint or to re-appoint the Executive
to the offices of President and Chief Executive Officer of the
Employers or a material adverse change made by the Employers in
the Executive's functions, duties or responsibilities as
President and Chief Executive Officer;
(ii) without the Executive's express written consent, a reduction by
the Employers in the Executive's Base Salary as the same may be
increased from time to time or, except to the extent permitted by
Section 3(b) hereof, a reduction in the package of fringe
benefits provided to the Executive, taken as a whole;
(iii) The principal executive office of the Employers is relocated
outside of the Lafayette, Louisiana, area or, without the
Executive's express written consent, the Employers require
the Executive to be based anywhere other than an area in
which the Employers' principal executive office is located,
except for required travel on business of the Employers to
an extent substantially consistent with the Executive's
present business travel obligations;
(iv) Any purported termination of the Executive's employment for
Cause, Disability or Retirement which is not effected pursuant to
a Notice of Termination satisfying the requirements of paragraph
(i) below; or
(v) The failure by the Employers to obtain the assumption of and
agreement to perform this Agreement by any successor as
contemplated in Section 8 hereof.
(h) IRS. IRS shall mean the Internal Revenue Service.
(i) Notice of Termination. Any purported termination of the Executive's
employment by the Employers for any reason, including without limitation for
Cause, Disability or Retirement, or by the Executive for any reason, including
without limitation for Good Reason, shall be communicated by written "Notice of
Termination" to the other party hereto. For purposes of this Agreement, a
"Notice of Termination" shall mean a dated notice which (i) indicates the
specific termination provision in this Agreement relied upon, (ii) sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of Executive's employment under the provision so indicated, (iii)
specifies a Date of Termination, which shall be not less than thirty (30) nor
more than ninety (90) days
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after such Notice of Termination is given, except in the case of the
Employers' termination of Executive's employment for Cause (in which case
such notice period shall be not less than fifteen (15) days and shall
otherwise satisfy the provisions of Section 1(b) hereof); and (iv) is given
in the manner specified in Section 9 hereof.
(j) Parachute Payment. The term "Parachute Payment" has the meaning as set
forth in Section 280G of the Code and applicable Treasury regulations (without
regard to Section 280G(b)(2)(A)(ii) of the Code and the Treasury regulations
thereunder).
(k) Retirement. Termination by the Employers of the Executive's
employment based on "Retirement" shall mean voluntary termination by the
Employee in accordance with the Employers' retirement policies, including early
retirement, generally applicable to their salaried employees.
2. Term of Employment.
(a) The Employers hereby employ the Executive as President and Chief
Executive Officer and Executive hereby accepts said employment and agrees to
render such services to the Employers on the terms and conditions set forth in
this Agreement. The term of employment under this Agreement shall be for three
years, commencing on the date of this Agreement and, subject to the requirements
of the succeeding sentence, shall be deemed automatically, without further
action, to extend for an additional year on each annual anniversary of the date
of this Agreement such that at any time the remaining term of this Agreement
shall be from two to three years. Prior to November 1, 1997 and each annual
anniversary thereafter, the Board of Directors of the Employers shall consider
and review (with appropriate corporate documentation thereof, and after taking
into account all relevant factors, including the Executive's performance
hereunder) extension of the term under this Agreement, and the term shall
continue to extend in the manner set forth above unless either the Boards of
Directors of the Employers does not approve such extension and provides written
notice to the Executive of such event or the Executive gives written notice to
the Employers of the Executive's election not to extend the term, in each case
with such written notice to be given not less than thirty (30) days prior to any
such anniversary date. References herein to the term of this Agreement shall
refer both to the initial term and successive terms.
(b) During the term of this Agreement, the Executive shall perform such
executive services for the Employers as may be consistent with his titles and
from time to time assigned to him by the Employers' Board of Directors.
3. Compensation and Benefits.
(a) The Employers shall compensate and pay Executive for his services
during the term of this Agreement a minimum salary of $129,600 per year, which
may be increased
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from time to time in such amounts as may be determined by the Board of
Directors of the Employers and may not be decreased without the Executive's
express written consent (hereinafter, referred to as Executive's "Base
Salary"). In addition, the Executive may receive bonus payments when, as,
and if determined in the sole discretion of the Board of Directors of
Employers.
(b) During the term of the Agreement, Executive shall be entitled to
participate in and receive the benefits of any pension or other retirement
benefit plan, profit sharing, stock option, employee stock ownership, or other
plans, benefits and privileges given to employees and executives of the
Employers, to the extent commensurate with his then duties and responsibilities,
as fixed by the Board of Directors of the Employers. The Employers shall not
make any changes in such plans, benefits or privileges which would adversely
affect Executive's rights or benefits thereunder, unless such change occurs
pursuant to a program applicable to all executive officers of the Employers and
does not result in a proportionately greater adverse change in the rights of or
benefits to Executive as compared with any other executive officer of the
Employers. Nothing paid to Executive under any plan or arrangement presently in
effect or made available in the future shall be deemed to be in lieu of the
salary payable to Executive pursuant to Section 3(a) hereof.
(c) During the term of this Agreement, Executive shall be entitled to paid
annual vacation in accordance with the policies as established from time to time
by the Board of Directors of the Employers, which shall in no event be less than
two weeks per annum. Executive shall not be entitled to receive any additional
compensation from the Employers for failure to take a vacation, nor shall
Executive be able to accumulate unused vacation time from one year to the next,
except to the extent authorized by the Board of Directors of the Employers.
(d) In the event of termination by the Employers of the Executive's
employment based on Disability (as defined herein):
(A) the Executive shall continue to receive on a monthly basis, the
Executive's annual compensation from the Employers at the rate in
effect at the time of such termination for a period of twelve
(12) months, and
(B) the Employers shall provide continued medical insurance for the
benefit of the Executive and his spouse until the Executive shall
have attained the age of 65, and such insurance shall be
comparable to that which is provided to the Executive as of the
date of this Agreement notwithstanding anything to the contrary
in this Agreement; provided further, in the event of the death of
the Executive prior to the Executive attaining age 65, the
Employers shall provide said medical insurance for the benefit of
the Executive's spouse until the Executive's spouse attains the
age of 65.
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(e) In the event of the Executive's death during the term of this
Agreement, his spouse, estate, legal representative or named beneficiaries (as
directed by the Executive in writing) shall be paid on a monthly basis the
Executive's annual compensation from the Employers at the rate in effect at the
time of the Executive's death for a period of twelve (12) months from the date
of the Executive's death.
(f) The Executive shall receive the use, during the term of this
Agreement, of an automobile of the make, year and model customarily furnished by
the Savings Bank to executive officers. Executive shall have use of the
automobile, and replacements thereof, at no cost and the Employers shall provide
for all insurance maintenance, operating expenses and fuel.
4. Expenses. The Employers shall reimburse Executive or otherwise
provide for or pay for all reasonable expenses incurred by Executive in
furtherance of, or in connection with the business of the Employers, including,
but not by way of limitation, automobile and traveling expenses, and all
reasonable entertainment expenses (whether incurred at the Executive's
residence, while traveling or otherwise), subject to such reasonable
documentation and other limitations as may be established by the Board of
Directors of the Employers. If such expenses are paid in the first instance by
Executive, the Employers shall reimburse the Executive therefor.
5. Termination.
(a) The Employers shall have the right, at any time upon prior Notice of
Termination, to terminate the Executive's employment hereunder for any reason,
including without limitation termination for Cause, Disability or Retirement,
and Executive shall have the right, upon prior Notice of Termination, to
terminate his employment hereunder for any reason.
(b) In the event that (i) Executive's employment is terminated by the
Employers for Cause, Disability or Retirement or in the event of the Executive's
death, or (ii) Executive terminates his employment hereunder other than for Good
Reason, Executive shall have no right pursuant to this Agreement to compensation
or other benefits for any period after the applicable Date of Termination other
than as enumerated in subsections 3(d) and 3(e) hereinabove.
(c) In the event that Executive's employment is terminated by the
Employers for other than Cause, Disability, Retirement or the Executive's death
or such employment is terminated by the Executive due to a material breach of
this Agreement by the Employers, which breach has not been cured within fifteen
(15) days after a written notice of non-compliance has been given by the
Executive to the Employers, then the Employers shall, subject to the provisions
of Section 6 hereof, if applicable:
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(A) pay to the Executive, in equal monthly installments during the
period representing the term of this Agreement which would
otherwise remain but for the Notice of Termination and beginning
with the first business day of the month following the Date of
Termination, a cash severance amount equal to the greater of (x)
the Base Salary which the Executive would have earned over the
remaining term of this Agreement as of his Date of Termination or
(y) an amount equal to two (2) times the Executive's Base Salary
as of his Date of Termination; and
(B) maintain and provide for a period ending at the earlier of (x)
the expiration of the remaining term of employment pursuant
hereto prior to the Notice of Termination or (y) the date of the
Executive's full-time employment by another employer (provided
that the Executive is entitled under the terms of such employment
to benefits substantially similar to those described in this
subparagraph (B), at no cost to the Executive, the Executive's
continued participation in all group insurance, life insurance,
health and accident, disability and other employee benefit plans,
programs and arrangements in which the Executive was entitled to
participate immediately prior to the Date of Termination (other
than stock option and restricted stock plans of the Employers),
provided that in the event that the Executive's participation in
any plan, program or arrangement as provided in this subparagraph
(B) is barred, or during such period any such plan, program or
arrangement is discontinued or the benefits thereunder are
materially reduced or such benefits are less than the benefits
provided to Executive immediately prior to his termination of
employment with the Employers, the Employers shall arrange to
provide the Executive with benefits which (together with any
benefits provided to Executive by another Employer in the event
has accepted full-time employment with another employer) are
substantially similar to those which the Executive was entitled
to receive under such plans, programs and arrangements
immediately prior to the Date of Termination.
(d) In the event that Executive's employment is terminated for Good Reason
subsequent to a Change in Control, then the Employers shall, subject to the
provisions of Section 6 hereof, if applicable:
(A) pay to the Executive, a lump sum cash severance payment equal to
three (3) times the Executive's Base Salary as of his Date of
Termination; and
(B) maintain and provide for a period ending at the earlier of (x)
the expiration of the remaining term of employment pursuant
hereto prior to the Notice of Termination or (y) the date of the
Executive's
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full-time employment by another employer (provided
that the Executive is entitled under the terms of such employment
to benefits substantially similar to those described in this
subparagraph (B), at no cost to the Executive, the Executive's
continued participation in all group insurance, life insurance,
health and accident, disability and other employee benefit plans,
programs and arrangements in which the Executive was entitled to
participate immediately prior to the Date of Termination (other
than stock option and restricted stock plans of the Employers),
provided that in the event that the Executive's participation in
any plan, program or arrangement as provided in this subparagraph
(B) is barred, or during such period any such plan, program or
arrangement is discontinued or the benefits thereunder are
materially reduced or such benefits are less than the benefits
provided to Executive immediately prior to his termination of
employment with the Employers, the Employers shall arrange to
provide the Executive with benefits which (together with any
benefits provided to Executive by another Employer in the event
has accepted full-time employment with another employer) are
substantially similar to those which the Executive was entitled
to receive under such plans, programs and arrangements
immediately prior to the Date of Termination.
(e) If the Executive becomes liable, in any taxable year, for the payment
of an excise tax under Section 4999 of the Code on account of any payments to
the Executive pursuant to this Section 5, and the Employers choose not to
contest the liability or have exhausted all administrative and judicial appeals
contesting the liability, the Employers shall pay the Executive (i) an amount
equal to the excise tax for which the Executive is liable under Section 4999 of
the Code, (ii) the federal, state, and local income taxes, and interest if any,
for which the Executive is liable on account of the payments pursuant to item
(i), and (ii) any additional excise tax under Section 4999 of the Code and any
federal, state and local income taxes for which the Executive is liable on
account of payments made pursuant to items (i) and (ii).
(f) This subsection 5(f) applies if the amount of payments to the
Executive under subsection 5(e) has not been determined with finality by the
exhaustion of administrative and judicial appeals. In such circumstances, the
Employers and the Executive shall, as soon as practicable after the event or
series of events has occurred giving rise to the imposition of the excise
tax, cooperate in determining the amount of the Executive's excise tax
liability for purposes of paying the estimated tax. The Executive shall
thereafter furnish to the Employers or their successors a copy of each tax
return which reflects a liability for an excise tax under Section 4999 of the
Code at least 20 days before the date on which such return is required to be
filed with the IRS. The liability reflected on such return shall be
dispositive for the purposes hereof unless, within 15 days after such notice
is given, the Employers furnish the Executive with a letter of the auditors
or tax advisor selected by the Employers indicating a different liability or
that the matter is not free from doubt under the
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applicable laws and regulations and that the Executive may, in such
auditor's or advisor's opinion, cogently take a different position, which shall
be set forth in the letter with respect to the payments in question. Such letter
shall be addressed to the Executive and state that he is entitled to rely
thereon. If the Employers furnish such a letter to the Executive, the position
reflected in such letter shall be dispositive for purposes of this Agreement,
except as provided in subsection 5(g) below.
(g) Notwithstanding anything in this Agreement to the contrary, if the
Executive's liability for the excise tax under Section 4999 of the Code for a
taxable year is subsequently determined to be less than the amount paid by the
Employers pursuant to subsection 5(f), the Executive shall repay the Employers
at the time that the amount of such excise tax liability is finally determined,
the portion of such income and excise tax payments attributable to the reduction
(plus interest on the amount of such repayment at the rate provided on Section
1274(b)(2)(B) of the Code and if the Executive's liability for the excise tax
under Section 4999 of the Code for a taxable year is subsequently determined to
exceed the amount paid by the Employers pursuant to Section 5, the Employers
shall make an additional payment of income and excise taxes in the amount of
such excess, as well as the amount of any penalty and interest assessed with
respect thereto at the time that the amount of such excess and any penalty and
interest is finally determined.
6. Mitigation; Exclusivity of Benefits.
(a) The Executive shall not be required to mitigate the amount of any
benefits hereunder by seeking other employment or otherwise, nor shall the
amount of any such benefits be reduced by any compensation earned by the
Executive as a result of employment by another employer after the Date of
Termination or otherwise.
(b) The specific arrangements referred to herein are not intended to
exclude any other benefits which may be available to the Executive upon a
termination of employment with the Employers pursuant to employee benefit plans
of the Employers or otherwise.
7. Withholding. All payments required to be made by the Employers
hereunder to the Executive shall be subject to the withholding of such amounts,
if any, relating to tax and other payroll deductions as the Employers may
reasonably determine should be withheld pursuant to any applicable law or
regulation.
8. Assignability. The Employers may assign this Agreement and its rights
and obligations hereunder in whole, but not in part, to any corporation, bank or
other entity with or into which the Employers may hereafter merge or consolidate
or to which the Employers may transfer all or substantially all of its assets,
if in any such case said corporation, bank or other entity shall by operation of
law or expressly in writing assume all obligations of the Employers hereunder as
fully as if it had been originally made a party hereto, but may not otherwise
assign this Agreement or its rights and obligations hereunder. The Executive
may not assign or transfer this Agreement or any rights or obligations
hereunder.
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9. Notice. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by certified or
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below:
To the Employers: Acadiana Bancshares, Inc.
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
To the Executive: Xxxxxx X. Xxxxx, Xx.
000 Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
10. Amendment; Waiver. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the Executive and such officer or officers as may be
specifically designated by the Board of Directors of the Employers to sign on
its behalf. No waiver by any party hereto at any time of any breach by any
other party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
11. Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the United States
where applicable and otherwise by the laws of the State of Louisiana.
12. Nature of Obligations. Nothing contained herein shall create or
require the Employers to create a trust of any kind to fund any benefits which
may be payable hereunder, and to the extent that the Executive acquires a right
to receive benefits from the Employers hereunder, such right shall be no greater
than the right of any unsecured general creditor of the Employers.
13. Headings. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
14. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect.
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15. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
16. Regulatory Prohibition. Notwithstanding any other provision of this
Agreement to the contrary, any payments made to the Executive pursuant to this
Agreement, or otherwise, are subject to and conditioned upon their compliance
with Section 18(k) of the FDIA (12 U.S.C. Section 1828(k)) and any regulations
promulgated thereunder.
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IN WITNESS WHEREOF, this Agreement has been executed as of the date first
above written.
Attest: ACADIANA BANCSHARES, INC.
By:
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxxxxx Xxxxxxxxxxx
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Xxxxxxxx Xxxxxxxxxxx
Chairman of the Board
Attest: LBA SAVINGS BANK
By:
/s/ Xxxxx X. Xxxxxxx /s/Xxxxxxxx Xxxxxxxxxxx
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Xxxxxxxx Xxxxxxxxxxx
Chairman of the Board
Witness: XXXXXX X. XXXXX, XX.
By:
/s/ Xxxxx X. Xxxxxxx /s/Xxxxxx X. Xxxxx, Xx.,
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Xxxxxx X. Xxxxx, Xx., Individually
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