EXHIBIT 10(v)
BANCORPSOUTH, INC.
CHANGE IN CONTROL AGREEMENT
THIS AGREEMENT ("Agreement") is entered into this 26th day of January,
2005, by and between BancorpSouth, Inc. (the "Company") and Xxxxx Xxxxxxx
("Employee").
W I T N E S S E T H:
WHEREAS, Employee is employed as Vice Chairman of the Company; and
WHEREAS, the Company desires to provide certain severance payments to
Employee in the event that Employee's employment with the Company is terminated
in connection with a change in control of the Company;
NOW, THEREFORE, based upon the premises set forth herein and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows
ARTICLE I. DEFINITIONS
Terms used in this Agreement that are defined are indicated by initial
capitalization of the term. References to an "Article" or a "Section" mean an
article or a section of this Agreement. In addition to those terms that are
specifically defined herein, the following terms are defined for purposes
hereof:
"Administrator" means a committee consisting of the Company's chief
executive officer, the secretary of the Company, the vice president of human
resources, and any other individuals appointed by the chief executive officer.
The Administrator may delegate any of its duties or authorities to any person or
entity. If a Change in Control occurs, as described in this Agreement, the
Administrator shall be the committee of individuals who were committee members
immediately prior to the Change in Control.
"Benefit" means the benefits described in Article II.
"Change in Control" means a transaction or circumstance in which any of
the following have occurred:
(a) any "person" as such term is used in sections 13(d) and 14(d) of the
Exchange Act, other than a trustee or other fiduciary holding securities
under an employee benefit plan of the Company or a corporation controlling
the Company or owned directly or indirectly by the shareholders of the
Company in substantially the same proportions as their ownership of stock
of the Company, becomes the "beneficial owner" (as defined in Rule 13d-3
under said Act), directly or indirectly, of securities of the Company
representing more than 25% of the total voting power represented by the
Company's then outstanding Voting Securities (as defined below), or
(b) during any period of two consecutive years, individuals who at the
beginning of such period constitute the Board and any new director whose
election by the Board or nomination for election by the Company's
shareholders was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the beginning
of the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a majority
thereof, or
(c) the shareholders of the Company approve a merger or consolidation of the
Company with any other corporation, other than a merger or consolidation
which would result in the Voting Securities (i.e., any securities of the
entity which vote generally in the election of its directors) of the
Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into Voting
Securities of the surviving entity) more than 65% of the total voting
power represented by the Voting Securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation, or
(d) the shareholders of the Company approve a plan of complete liquidation of
the Company or an agreement for the sale or disposition by the Company of
all or substantially all of its assets.
"Code" means the Internal Revenue Code of 1986, as amended.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
ARTICLE II. CHANGE IN CONTROL TERMINATION PAYMENT
SECTION 2.1 BENEFITS ON TERMINATION.
(a) Amount. Subject to the conditions, limitations and adjustments that
are provided for herein, the Company will provide Benefits to Employee the sum
of the amounts described below if, within the 24 month period following a Change
in Control, Employee's employment with the Company terminates pursuant to
Section 2.3 of this Agreement:
(1) An amount equal to 200% of the Employee's annual base compensation
determined by reference to his base salary in effect at the time of
Change in Control.
(2) An amount equal to 200% of the highest annual bonus that Employee
would be eligible to receive during the fiscal year ending during
which the Change in Control occurs.
(3) For a period of 24 months, participation in medical, life,
disability and similar benefit plans that are offered to similarly
situated employees of the Company immediately prior to the
applicable Change in Control for the Eligible Employee and his
dependents. Such participation may be pursuant to the continuation
coverage rights of Eligible Employees pursuant to Part 6 of Title I
of ERISA ("COBRA") or the Company may provide such benefits directly
through the purchase of insurance or otherwise. Notwithstanding the
foregoing, the period for participation in a self-funded medical
plan pursuant to this paragraph 3 shall not exceed the maximum
period of continuation coverage provided under COBRA. If benefits
are provided pursuant to COBRA continuation rights, the Company
shall pay a cash amount to the Eligible Employee at the time of
severance that is sufficient to cover all premiums required for such
COBRA coverage under the appropriate benefit plans.
(4) For a period of 24 months, participation in general and executive
fringe benefits offered to similarly situated executive employees
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immediately prior to the applicable Change in Control, including,
but not limited to, auto allowance, financial planning, annual
physical examination, and civic and country club dues.
(b) Adjustments to the Amount of Benefit. Notwithstanding anything herein
to the contrary, the amounts due to Employee under Section 2.1 (a) shall be
adjusted in accordance with Section 2.2 if any payment provided to Employee is
determined to be subject to the excise tax described in section 4999 of the
Code.
(c) Time for Payment; Interest. The cash Benefits payable made under this
Section 2.1 shall be paid to Employee in a single lump sum within ten days
following the date of termination. The Company's obligation to pay to Employee
any amounts under this Section 2.1 will bear interest at the lesser of (i) 10%
or (ii) the maximum rate allowed by law until paid by the Company, and all
accrued and unpaid interest will bear interest at the same rate, all of which
interest will be compounded annually.
(d) Troubled Institution Limitation. All Benefit payments hereunder are
subject to the limitations on golden parachute and indemnification payments set
forth in 12 USC Section 1823(k), the regulations promulgated thereunder, and
other law that prohibits payment of any portion of Benefits by the CompanY to
Employee by the Company. To the extent possible, this limitation shall be
applied by reducing only the portion of Benefits that exceed such legal
limitation.
2.2 BENEFIT ADJUSTMENTS. Notwithstanding the amount of Benefits described
in Section 2.l(a), Benefits shall be limited in the event that Employee would
realize less income on the receipt of Benefits and other "change in control
payments" (as defined in section 280G of the Code), net of taxes, after
deducting the amount of excise taxes that would be imposed pursuant to section
4999 of the Code. In such an event, the Benefits payable hereunder shall be
reduced so that Benefits received in combination with all other change in
control payments to be received by Employee equal the maximum amount that does
not result in the receipt of a "parachute payment" (as defined by section
280G(b)(2) of the Code) by Employee. This reduction shall not apply if the
amount of Benefits and other change in control payments received by Employee
exceed such reduced amount after deducting the excise tax that would be imposed
pursuant to section 4999 of the Code.
2.3 TERMINATION OF EMPLOYMENT. Employee shall only be entitled to the
Benefits described in Section 2.1, as adjusted by Section 2.2, if Employee's
termination of employment is on account of termination by Company without cause
or termination by Employee with cause, which are described as follows:
(a) By Company Without Cause. Termination of employment by the Company
without cause shall occur if the Company provides oral or written notice to
Employee of involuntary termination that is not on account of just cause. For
this purpose, termination for "just cause" will only occur upon written notice
to Employee that employment is involuntarily terminated due to any of the
following:
(1) conviction of Employee for a crime involving fraud, dishonesty or
theft, or of any felony which, in the reasonable judgment of the
Board, materially affects Employee's ability to perform his duties
pursuant to this Agreement;
(2) commission by Employee of an act of fraud, embezzlement, or material
dishonesty against the Company or its affiliates; or
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(3) intentional neglect of or material inattention to Employee's duties,
which neglect or inattention remains uncorrected for more than 30
days following written notice from the chief executive officer of
the Company detailing the Company's concern.
(b) By Employee With Cause. Termination of employment by Employee with
cause shall occur if Employee terminates employment for any of the following
reasons:
(1) A material adverse alteration in Employee's position,
responsibilities or status from that which was in effect immediately
prior to a Change in Control.
(2) A reduction in Employee's compensation as in effect immediately
prior to the Change in Control, or a substantial reduction in the
benefits provided to Employee prior to the Change in Control.
(3) Relocation of Employee by the Company to a location that is more
than 35 miles from the Employee's current workplace.
(4) The material breach of the Company of any portion of its employment
policies and/or any employment agreement with Employee.
Provided, however, that 180 days after Employee begins performing duties
pursuant to a position that was offered by the Company (or its successor)
following a Change in Control and that would have otherwise resulted in the
occurrence of the events described in this Section 2.3(b), the occurrence of the
events described in this Section 2.3(b) shall be determined by reference to the
position as it was accepted by Employee following the Change in Control.
ARTICLE III. ADMINISTRATION
SECTION 3.1. The provisions of this Agreement are intended to provide
severance benefits and protection to Employee. The Administrator has absolute
discretion to interpret the terms of this Agreement and to make all
determinations required in the administration hereof, including making
determinations about eligibility for and the amounts of Benefits. All decisions
of the Administrator are final, binding and conclusive on all parties.
SECTION 3.2. Benefits can only be denied or forfeited if Employee does not
satisfy the conditions for receiving payment that are described herein or if the
Company validly amends the Agreement as described in Section 4.4.
SECTION 3.3. If Employee's claim for Benefits is denied, the Administrator
will furnish written notice of denial to Employee within 90 days of the date the
claim is received, unless special circumstances require an extension of time for
processing the claim. This extension will not exceed 90 days, and Employee must
receive written notice stating the grounds for the extension and the length of
the extension within the initial 90-day review period. If the Administrator does
not provide written notice, Employee may deem the claim denied and seek review
according to the appeals procedures set forth below.
(a) Notice of Denial. The notice of denial to the Claimant shall state:
(1) The specific reasons for the denial.
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(2) Specific references to pertinent provisions of the Agreement on
which the denial was based.
(3) A description of any additional material or information needed for
Employee to perfect his claim and an explanation of why the material
or information is needed.
(4) A statement that Employee may request a review upon written
application to the Administrator, review pertinent documents, and
submit issues and comments in writing and that any appeal that
Employee wishes to make of the adverse determination must be in
writing to the Administrator within 60 days after Employee receives
notice of denial of benefits.
(5) The name and address of the Administrator to which Employee may
forward an appeal. The notice may state that failure to appeal the
action to the Administrator in writing within the 60-day period will
render the determination final, binding and conclusive.
(b) Appeals Procedure. If Employee appeals to the Administrator, Employee
or his authorized representative may submit in writing whatever issues and
comments he believes to be pertinent. The Administrator shall reexamine all
facts related to the appeal and make a final determination of whether the denial
of benefits is justified under the circumstances. The Administrator shall advise
Employee in writing of:
(1) The Administrator's decision on appeal.
(2) The specific reasons for the decision.
(3) The specific provisions of the Agreement on which the decision is
based.
Notice of the Administrator's decision shall be given within 60 days of the
Claimant's written request for review, unless additional time is required due to
special circumstances. In no event shall the Administrator render a decision on
an appeal later than 120 days after receiving a request for a review.
ARTICLE IV. GENERAL TERMS
SECTION 4.1 NOTICES. All notices and other communications hereunder will
be in writing or by written telecommunication, and will be deemed to have been
duly given if delivered personally or if sent by overnight courier or by written
telecommunication, to the relevant address set forth below, or to such other
address as the recipient of such notice or communication will have specified to
the other party hereto in accordance with this Section:
If to the Company to:
BancorpSouth, Inc.
Personnel Director
X.X. Xxx 000
Xxxxxx, XX 00000
If to Employee, to:
Xxxxx Xxxxxxx
0000 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
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SECTION 4.2 WITHHOLDING; NO OFFSET. All payments required to be made by
the Company under this Agreement to Employee will be subject to the withholding
of such amounts, if any, relating to federal, state and local taxes as may be
required by law. No payment under this Agreement will be subject to offset or
reduction attributable to any amount Employee may owe to the Company or any
other person, except as required by law.
SECTION 4.3 ENTIRE AGREEMENT; MODIFICATION. This Agreement and its
Attachments constitute the complete and entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior agreements
between the parties. The parties have executed this Agreement based upon the
express terms and provisions set forth herein and have not relied on any
communications or representations, oral or written, which are not set forth in
this Agreement.
SECTION 4.4 AMENDMENT. This Agreement may not be modified by an subsequent
agreement unless the modifying agreement: (i) is in writing; (ii) contains an
express provision referencing this Agreement; (iii) is signed and executed on
behalf of the Company by an officer of the Company other than Employee; and (iv)
is signed by Employee.
SECTION 4.5 CHOICE OF LAW. This Agreement and the performance hereof will
be construed and governed in accordance with the laws of the State of
Mississippi, without regard to its choice of law principles, except to the
extent that federal law controls or preempts state law.
SECTION 4.6 SUCCESSORS AND ASSIGNS. The obligations, duties and
responsibilities of Employee under this Agreement are personal and shall not be
assignable. In the event of Employee's death or disability, this Agreement shall
be enforceable by Employee's estate, executors or legal representatives. The
obligations, duties and responsibilities of Company hereunder shall be binding
upon any successor of the Company (whether through a transaction described as a
Change in Control or otherwise).
SECTION 4.7 WAIVER OF PROVISIONS. Any waiver of any terms and conditions
hereof must be in writing and signed by the parties hereto. The waiver of any of
the terms and conditions of this Agreement shall not be construed as a waiver of
any subsequent breach of the same or any other terms and conditions hereof.
SECTION 4.8 SEVERABILITY. The provisions of this Agreement and the amount
of Benefits payable hereunder shall be deemed severable, and if any portion
shall be held invalid, illegal or enforceable for any reason, the remainder of
this Agreement and/or Benefit payment shall be effective and binding upon the
parties.
SECTION 4.9 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which will be deemed an original, and all of which
together will constitute one and the same instrument.
ARTICLE V. ERISA RIGHTS AND INFORMATION
The parties acknowledge that the following information is provided to Employee
hereunder in connection with Employee's rights as a welfare plan participant
under ERISA. The terms "you" and "yours" refer to Employee.
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As a participant in a welfare plan maintained by the Company, you are entitled
to certain rights and protections under ERISA. ERISA provides that all plan
participants shall be entitled to:
- Examine, without charge, at the Administrator's office and at other
specified locations, all plan documents, including insurance contracts,
and copies of all documents filed by the plan with the U.S. Department of
Labor, such as detailed annual reports and plan descriptions.
- Obtain copies of all plan documents and other plan information upon
written request to the Administrator. The Administrator may make a
reasonable charge for the copies.
- Receive a summary of the plan's annual financial report. The Administrator
is required by law to furnish each participant with a copy of this summary
annual report.
In addition to creating rights for plan participants, ERISA imposes duties upon
the people who are responsible for the operation of the employee benefit plan.
The people who operate your plan, called "fiduciaries" of the plan, have a duty
to do so prudently and in the interest of you and other plan participants and
beneficiaries. No one, including the Company or any other person, may fire you
or otherwise discriminate against you in any way to prevent you from obtaining a
benefit under this plan or from exercising your rights under ERISA.
If a claim for a Benefit is denied in whole or in part, you must receive a
written explanation of the reason for the denial. You have the right to have the
Administrator review and reconsider your claim.
Under ERISA, there are steps you can take to enforce the above rights. For
instance, if you request materials from the plan and do not receive them within
30 days, you may file suit in a federal court. In such a case, the court may
require the Administrator to provide the materials and pay you up to $100 a day
until you receive the materials, unless the materials were not sent because of
reasons beyond the control of the Administrator.
If you have a claim for benefits that is denied or ignored, in whole or in part,
you may file suit in a state or federal court. If it should happen that plan
fiduciaries misuse the plan's money or if you are discriminated against for
asserting your rights, you may seek assistance from the U.S. Department of Labor
or you may file suit in a federal court. The court will decide who should pay
court costs and fees. If you lose, the court may order you to pay these costs
and fees, for example, if it finds your claim is frivolous.
If you have any questions about your plan, you should contact the Administrator.
If you have any questions about this statement or about your rights under ERISA,
you should contact the nearest Area Office of the U.S. Labor-Management Services
Administration, Department of Labor.
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SUMMARY OF ERISA INFORMATION
Name of Plan: BancorpSouth, Inc. Change in Control Plan
Name and Address of the Company:
BancorpSouth, Inc.
Xxx Xxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Who Pays for the Plan: The cost of the plan is paid entirely by the Company.
The Company's Employer Identification No.: 00-0000000
Plan Number: 520
Plan Year: January 1 to December 31
Plan Administrator, Name, Address and Telephone No.
Administrator of the BancorpSouth, Inc. Change in Control plan
c/o Xxxxx Xxxxxxx
BancorpSouth, Inc.
Xxx Xxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
(000) 000-0000
Agent for Service of Legal Process on the Plan: Chief executive officer or
Administrator.
Benefits are paid out of the general assets of the Company. The Company may, in
its discretion establish a "grantor trust" to fund the payment of Benefits.
Otherwise, this plan does not give you any rights to any particular assets of
the Company. Cash amounts paid under a severance plan are generally considered
taxable income to the recipient.
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This Agreement replaces and supercedes any previous Change-Of-Control
Agreement between the Company and Employee. All other such agreements are null
and void.
IN WITNESS WHEREOF, Company and Employee have caused this Agreement to be
executed on the day and year indicated below to be effective on the day and year
first written above.
EMPLOYEE
/s/ Xxxxx Xxxxxxx 1/31/05
------------------------------ ------------------------------------
Xxxxx Xxxxxxx Date
COMPANY:
BANCORPSOUTH, INC.
By: /s/ W.O. Xxxxx 1/31/05
------------------------------ ------------------------------------
(Date)
Its: Senior Vice President
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