EXHIBIT 10.2
FIRST NATIONAL BANK OF PONTOTOC
EXECUTIVE AGREEMENT
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THIS AGREEMENT (the "Agreement") is made and entered into by and between
FIRST NATIONAL BANK OF PONTOTOC, a financial institution organized and existing
under the laws of the United States (the "Bank"), and XXXXX XXXXXXX (the
"Executive"), to be effective as of November 20, 1996;
WHEREAS, the Executive is presently employed by the Bank as Executive Vice
President;
WHEREAS, the Bank now desires to retain the services of the Executive by
providing certain assurances if the Executive's employment with the Bank is
terminated under the circumstances set forth in this Agreement;
WHEREAS, the Board of Directors of the Bank has determined that it is in
the best interests of the Bank and its shareholders to reorganize the Bank as a
subsidiary of a corporation that will be registered as a bank holding company
under the Federal Bank Holding Company Act of 1956 (the "Holding Company");
NOW, THEREFORE, effective as of November 20, 1996, the Bank and the
Executive agree to the following terms and conditions:
SECTION I
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DEFINITIONS
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1.1 "Change in Duties" means the occurrence of one of the following events
in connection with a Change in Control:
a. A diminution in the nature or scope of the Executive's authorities or
duties, a change in his reporting responsibilities or titles or the
assignment of the Executive to any duties or responsibilities that are
inconsistent with his position, duties, responsibilities or status
immediately preceding such assignment;
b. A reduction in the Executive's compensation during the Covered Period.
For this purpose, "compensation" means the fair market value of all
remuneration paid to the Executive by the Employer during the
immediately preceding calendar year, including, without limitation,
deferred compensation, stock options and other forms of incentive
compensation awards, coverage under any employee benefit plan (such as a
pension, thrift, medical, dental, life insurance or long-term disability
plan) and other perquisites;
c. The transfer of the Executive to a location requiring a change in his
residence or a material increase in the amount of travel ordinarily
required of the Executive in the performance of his duties; or
d. A good faith determination by the Executive that his position, duties,
responsibilities or status has been affected, whether directly or
indirectly, in any manner which prohibits the effective discharge of
any such duties or responsibilities.
1.2 "Change in Control" means and shall be deemed to have occurred if:
a. Any "person," including any "group," determined in accordance with
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended,
becomes the beneficial owner, directly or indirectly, of securities of
the Bank (or the Holding Company, as the case may be) representing 25%
or more of the combined voting power of the Bank's (or the Holding
Company's, as the case may be) then outstanding securities, without
the approval, recommendation, or support of the Board of Directors of
the Bank (or the Holding Company, as the case may be) as constituted
immediately prior to such acquisition;
b. Either of the Bank or the Holding Company is merged into another
corporate entity or consolidated with one or more corporations, other
than a wholly-owned subsidiary of the Holding Company, and other than
the transaction in which the Holding Company is formed;
c. A change in the members of the Board of Directors of the Bank (or the
Holding Company, as the case may be) which results in the exclusion of a
majority of the "continuing board." For this purpose, the term
"continuing board" means the members of the Board of Directors of the
Bank, determined as of the date on which this Agreement is executed and
subsequent members of such board who are elected by or on the
recommendation of a majority of such "continuing board"; or
d. The sale or other disposition of all or substantially all of the stock
or the assets of the Bank (or the Holding Company, as the case may be),
or any successor corporation thereto.
1.3 "Company" means the Bank and the Holding Company, once it becomes the
holding company of the Bank.
1.4 "Covered Period" means the one-year period immediately preceding
and the five-year period immediately following the occurrence of a Change in
Control.
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1.5 "Employer" means the Bank, the Holding Company or both, as the case
may be.
1.6 "Severance Amount" means 300% of the Executive's "annual salary." For
this purpose, "annual salary" means the average of all compensation paid to the
Executive by the Company which is includable in the Executive's gross income for
the highest 3 of the 5 calendar years immediately preceding the calendar year in
which a Change in Control occurs, including the amount of any compensation which
the Executive elected to defer under any plan or arrangement of the Company with
respect to such years. If the Executive has been employed less than 5 years
prior to the calendar year in which a Change in Control occurs, "annual salary"
shall be determined by averaging the compensation (as defined in the preceding
sentence) for the Executive's actual period of employment. Further, if the
Executive has been employed less than 12 months prior to the occurrence of a
Change in Control, the actual compensation of the Executive shall be annualized
for purposes of this Section 1.6. In the event of a dispute between the
Executive and the Company, the determination of the "annual salary" shall be
made by an independent public accounting firm agreed upon by the Executive and
the Company.
1.7 "Termination" or "Terminated" means (a) termination of the employment
of the Executive with the Employer for any reason, other than cause, or (b) the
resignation of the Executive following a Change in Duties. In no event,
however, shall the Executive's voluntary separation from service with the
Employer on account of death, disability, or resignation on or after the
attainment of the normal retirement age specified in any qualified employee
benefit plan maintained by the Employer constitute a Termination. For purposes
of determining whether a Termination has occurred, "cause" means fraud,
misappropriation of or intentional material damage to the property or business
of the Employer or the commission of a felony by the Executive.
SECTION II
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TERMINATION RIGHTS AND OBLIGATIONS
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2.1 Severance Awards. If the Executive's employment is Terminated during
the Covered Period, then no later than 30 days after the later of (a) the date
of such Termination, or (b) the occurrence of a Change in Control, the Company
shall:
a. Pay to the Executive the Severance Amount;
b. Transfer to the Executive the ownership of all club memberships,
automobiles and other perquisites which were assigned to the Executive
as of the day immediately preceding such Termination;
c. In accordance with Section 2.2 hereof, provide for the benefit of the
Executive, his spouse, and his dependents, if any, coverage under the
plans, policies or programs (as the same may be amended from time to
time)
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maintained by the Company for the purpose of providing medical
benefits and life insurance to other executives of the Company with
comparable duties; provided, however, that in no event shall the
coverage provided under this paragraph be substantially less than the
coverage provided to the Executive as of the date immediately
preceding a Termination;
d. Pay to the Executive an amount equal to the contributions by the
Company to the First National Bank Employee Profit Sharing Plan, or a
successor arrangement, that would have been made for the lesser of (i)
3 years following the date of Termination, or (ii) the number of years
until the Executive's normal retirement age under such plan;
e. Pay to the Executive the amount to which the Executive would be
entitled under the annual First National Bank Performance Plan, or a
successor thereto, for the calendar year in which a Change in Control
occurs, determined as if all performance goals applicable to the
Company and the Executive were achieved.
2.2 Special Rules Governing Group Benefits. Coverage under Section 2.1c,
hereof, shall (a) commence as of the later of the date of Termination or the
occurrence of a Change in Control, and (b) end as of the earlier of the
Executive's coverage under Medicare Part B or the date on which the Executive is
covered under group plans providing substantially similar benefits maintained by
another employer. For this purpose, the Company shall provide coverage during
any period in which the payment of benefits is limited by any form of pre-
existing condition clause.
Coverage under Section 2.1c, hereof, may be provided under a group policy
or program maintained by the Company or the Company, in its sole discretion, may
acquire or adopt an individual plan, policy or program providing coverage solely
for the benefit of the Executive, his spouse, and his dependents, if any.
If coverage commences as of a Change in Control, the Company shall (a)
retroactively reinstate the Executive, his spouse, and dependents, if any, as of
the date of Termination, and (b) reimburse to the Executive his cost of
obtaining similar coverage for the period commencing on the date of Termination
and ending on the occurrence of a Change in Control. As to medical claims
incurred during such period, any coverage actually obtained by the Executive
shall be designated as the Executive's primary coverage, and the reinstated
coverage shall operate as secondary coverage.
2.3 Other Plans and Agreements. To the maximum extent permitted by law
and not withstanding any provision to the contrary contained in any plan, grant,
program, contract or other arrangement under which the Executive and the
Employer are parties, if the Executive's employment is Terminated during the
Covered Period, then any vesting schedule or other restriction on the ownership
of any benefits payable to the Executive under the terms
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of any such plan, grant, contract, or arrangement shall be accelerated or lapse,
as the case may be.
Notwithstanding any provision to the contrary contained in any plan, grant,
program, contract, or arrangement under which the Executive and the Employer are
parties, if the Executive has elected to defer the payment of any benefit under
any such plan, grant, contract, or arrangement, then the payment of such benefit
shall be accelerated and paid to the Executive in the form of a single-sum no
later than 30 days after the Executive's Termination during the Covered Period.
2.4 Taxes. The Executive shall be responsible for applicable income tax
and the Company shall have the right to withhold from any payment made under
this Agreement, or to collect as a condition of any payment, any income taxes
required by law to be withheld.
Notwithstanding the preceding paragraph, the Company shall pay any excise
tax or similar penalty imposed by Section 4999 of the Internal Revenue Code of
1986, as amended (the "Code") or any comparable successor provision, on the
Executive as a consequence of any "excess parachute payment" within the meaning
of Section 280(g) of the Code (or a comparable successor provision) payable
under this Agreement or any plan, grant, program, contract or other arrangement
under which the Executive and the Employer are parties, including any and all
income taxes due (1) on any such excise tax or similar penalty so paid by the
Company and (2) on any income taxes incurred by the Executive for any excise
tax, or similar penalty, or income taxes paid on his behalf by the Company. It
is the intention of the parties that the burden of any excise tax or similar
penalty will be borne entirely by the Company.
The Executive shall submit to the Company the amount to be paid under this
Section 2.4, together with supporting documentation. If the Executive and the
Company disagree as to such amount, an independent public accounting firm agreed
upon by the Executive and the Company shall make such determination.
SECTION III
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MISCELLANEOUS
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3.1 Notices. Notices and other communication required under this
Agreement shall be made to the Company at 00 Xxxxx Xxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000, and to each Executive at his regular residence in Pontotoc,
Mississippi or, as to each party, at such other address as may be designated by
written notice to the other. All such notices and communications shall be
effective when deposited in the United States mail, postage prepaid, or
delivered to the affected party.
3.2 Employment Rights. The terms of this Agreement shall not be deemed to
confer on the Executive any right to continue in the employ of the Employer for
any period or any right to continue his present or any other rate of
compensation.
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3.3 Assignment. The Executive shall not sell, assign, pledge, transfer or
otherwise convey the right to receive any form of payment or benefit provided
under the Agreement, except by will or the laws of intestacy.
3.4 Inurement. This Agreement shall be binding upon and inure to the
benefit of the Holding Corporation, the Bank and the Executive and their
respective heirs, executors, administrators, successors and assigns.
3.5 Payment of Expenses. If it is necessary or desirable for the
Executive to retain legal counsel and/or incur other costs and expenses in
connection with the enforcement of the terms of the Agreement, then the Company
shall pay (or the Executive shall be entitled to reimbursement of) reasonable
attorneys' fees, costs, and expenses actually incurred, without regard to the
final outcome, unless there is no reasonable basis for the Executive's action.
3.6 Amendment and Termination. The Agreement shall not be amended or
terminated by any act of the Company, except as may be expressly agreed upon, in
writing, by the Company and the Executive.
3.7 Nature of Obligation. The Company intends that its obligations
hereunder be construed in the nature of severance pay. The Company's
obligations under Section 2 are absolute and unconditional and shall not be
affected by any circumstance, including, without limitation, any right of
offset, counterclaim, recoupment, defense, or other right which the Company may
have against the Executive or others. All amounts payable by the Company
hereunder shall be paid without notice or demand.
3.8 Choice of Law. The Agreement shall be governed and construed in
accordance with the laws of the State of Mississippi.
3.9 No Effect on Other Benefits. Any other compensation paid or benefits
provided to the Executive shall be in addition to and not in lieu of the
benefits provided to such Executive under this Agreement. Except as may be
expressly provided herein, nothing in this Agreement shall be construed as
limiting, varying or reducing the provision of any benefit available to the
Executive (or to such Executive's estate or other beneficiary) pursuant to any
employment agreement, group plan, including any qualified pension or profit-
sharing plan, health, disability or life insurance plan, or any other form of
agreement or arrangement between the Company and the Executive.
3.10 Entire Agreement. This Agreement constitutes the entire agreement
between the Executive and the Bank (or the Holding Company, as the case may be)
and is intended to supersede all prior written or oral understandings with
respect to the subject matter of this Agreement.
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3.11 Invalidity. If any one or more provisions of this Agreement shall,
for any reason, be held invalid, illegal or unenforceable in any manner, then
such invalidity, illegality or unenforceability shall not affect any other
provision of such Agreement.
3.12 Mitigation. Notwithstanding any provision of this Agreement to the
contrary and to the maximum extent permitted by law, the Executive shall not be
subject to any duty to mitigate the severance awards received hereunder by
seeking other employment. No severance award received under this Agreement
shall be offset by any compensation the Executive receives from future
employment, and the Executive shall not be required to perform any service as a
condition of this Agreement.
EXECUTED in multiple counterparts as of the dates set forth below, each of
which shall be deemed an original, and effective as of the date first set forth
above.
EXECUTIVE FIRST NATIONAL BANK OF
PONTOTOC
/s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxx Xxxxxxxxxx
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XXXXX XXXXXXX XXXXX XXXX XXXXXXXXXX
Date: November 20, 1996 Title: President
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Date: November 20, 1996
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