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EXHIBIT 10.4
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STOCK BONUS
ESCROW AGREEMENT
THIS AGREEMENT is entered into as of this 16th day of April, 2000,
among Xxxxx X. Xxxxxx ("Xxxxxx"), BancorpSouth, Inc. (the "Company") and
BancorpSouth Bank as escrow agent ("Escrow Agent").
WHEREAS, at the closing of that merger transaction between
BancorpSouth, Inc. and First United Bancshares (the "Closing Date"), the Company
will grant to Xxxxxx 100,000 shares of the Company's Common Stock ("Common
Stock") which are subject to certain restrictions and risks of forfeiture that
are described in the Stock Bonus Agreement, dated April 16, 2000, between Xxxxxx
and the Company (the "Stock Agreement");
WHEREAS, pursuant to the Stock Agreement, the Company and Xxxxxx have
agreed that the shares of Common Stock granted thereunder shall be held in
escrow until such restrictions and risks of forfeiture have lapsed, at which
time the shares are to be released to Xxxxxx or, if forfeited, to the Company;
and
WHEREAS, the Escrow Agent is willing to hold the shares of Common Stock
described in the Stock Agreement pending their release to Xxxxxx or forfeiture
to the Company;
NOW, THEREFORE, in consideration of the premises set forth herein and
other mutual agreements and good and valuable consideration hereinafter set
forth, the parties hereby agree as follows:
1. Transfer of Stock to Escrow Agent. Upon the issuance of the Common
Stock under the Stock Agreement, the Company shall issue five stock certificates
to the Escrow Agent, each for 20,000 shares of Common Stock granted pursuant to
the Stock Agreement, registered in the name of Xxxxx X. Xxxxxx. Certificates
issued upon the execution of the Stock Agreement are referred to herein as
"Certificates." Each Certificate will bear a legend substantially as follows:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS OF AN ESCROW AGREEMENT, DATED APRIL 16, 2000, AMONG
XXXXX X. XXXXXX, BANCORPSOUTH, INC. AND BANCORPSOUTH BANK AS
ESCROW AGENT, AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN
COMPLIANCE WITH SUCH AGREEMENT. A COPY OF THE ESCROW AGREEMENT
IS AVAILABLE AT THE PRINCIPAL OFFICES OF BANCORPSOUTH, INC.
Upon issuance Xxxxxx will, or will cause the Company to, deposit the
Certificates with the Escrow Agent, together with one stock power for each
Certificate, duly executed in blank, to be held by the Escrow Agent in
accordance with the terms of this Agreement.
2. Release of Shares From Escrow. The Escrow Agent will hold
the Certificates until they are released. A Certificate, and the attendant stock
power, shall be released to
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Xxxxxx upon the first anniversary of the Closing Date and upon each succeeding
anniversary of the Closing Date while he is employed by the Company, until all
Certificates have been released to Xxxxxx or forfeited to the Company pursuant
to the terms of the Stock Agreement.
(a) Notwithstanding the foregoing, upon receipt, prior to the
anniversary of the Closing Date of any year, of a certificate
signed by the majority of the Company's Board of Directors and
the Company's Secretary certifying that according to the
Company's annual report for the Company's year ending on the
preceding December 31, the Company's Return on Average Assets
was less than 0.9% and its Return on Average Equity was less
than 12.825%, the Escrow Agent will retain the Certificate
that was to delivered to Xxxxxx on the anniversary of the
Closing Date for the year that follows such December 31, and
shall hold such Certificate until it is forfeited or becomes
vested under the terms of the Stock Agreement.
(b) On the fifth anniversary of the Closing Date, the Escrow Agent
shall deliver to Xxxxxx all Certificates in its possession,
together with the accompanying stock powers, that have not
been forfeited pursuant to the terms of the Stock Agreement.
(c) Upon delivery of the Certificates to Xxxxxx, they will bear
appropriate state and federal securities legends as directed
by the Company and appropriate stop transfer instructions will
be noted in the stock records of the Company.
3. Effect of Termination of Employment. Notwithstanding the provisions
of Section 2 hereof, the Escrow Agent shall deliver all certificates held to
Xxxxxx or the Company in the event of Xxxxxx'x termination of employment prior
to the expiration of this Agreement, in accordance with the following:
(a) Upon receipt of a certificate signed by the majority of the
Company's Board of Directors (excluding Xxxxxx if he is a
Director) and the Company's Secretary certifying that Xxxxxx'x
employment with the Company and/or the Bank has been
terminated in accordance with the provisions of Section
7(a)(i) of the Stock Agreement, or if Xxxxxx voluntarily
terminates his employment with the Company and/or the Bank and
the provisions of Section 7(b) of the Stock Agreement do not
apply, the Escrow Agent will complete the stock powers
relating to all Certificates held by it and deliver such
Certificates, together with the accompanying stock powers, to
the Company.
(b) If Xxxxxx'x employment with the Company and/or the Bank has
been terminated in accordance with the provisions of Section
7(a)(ii) or 7(b) of the Stock Agreement, the Escrow Agent will
deliver to Xxxxxx all Certificates held by it with the
accompanying stock powers.
4. Shareholder Rights. During the period that the Escrow Agent holds
any of the Certificates, Xxxxxx shall be entitled to notice of all meetings,
annual or special, of stockholders of the Company at which stockholders have the
right to vote and Xxxxxx shall be entitled to vote all shares represented by
such Certificates held by the Escrow Agent at any such meeting upon any matter
upon which stockholders of the Company have the right to vote. Xxxxxx shall not
be entitled to any of the other attributes of ownership of the shares subject to
escrow, nor shall he have the right to pledge, hypothecate or otherwise encumber
such shares; provided, however, that Xxxxxx shall be entitled to receive cash
dividends paid with respect to any shares held in escrow. In the event the
Company increases or decreases
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the number of shares of Common Stock outstanding by means of a stock split,
stock dividend or recapitalization, certificates representing any additional
shares which Xxxxxx would be entitled to receive as the record holder of any
shares of Common Stock subject to escrow shall automatically be delivered by the
Company to the Escrow Agent and such shares shall be subject to the terms of
this Agreement as if they were part of the Certificates in respect of which they
were received.
5. Rights and Obligations of Escrow Agent.
(a) The Escrow Agent shall not be liable to any person for any act
by it except for gross negligence or willful misconduct by the
Escrow Agent. Each of Xxxxxx and the Company, severally,
agrees to indemnify and hold harmless the Escrow Agent for all
liabilities of the Escrow Agent arising from the doing of any
act or the failure to do any act except if such conduct
constituted gross negligence or willful misconduct by the
Escrow Agent.
(b) The Escrow Agent shall be obligated only for the performance
of such duties as are specifically set forth herein and may
rely and shall be protected in relying or refraining from
acting on any instrument reasonably believed by it to be
genuine and to have been signed or presented by the proper
party or parties. Except as set forth in Section 5(a), the
Escrow Agent shall not be personally liable for any act it may
do or omit to do hereunder as Escrow Agent while acting in
good faith and in the exercise of its own good judgment, and
any act done or omitted by it pursuant to the advice of its
own attorneys shall be conclusive evidence of such good faith.
(c) In case the Escrow Agent obeys or complies with any order,
judgment or decree of any court, it shall not be liable to any
of the parties hereto or to any other person, firm or
corporation by reason of such compliance, notwithstanding any
such order, judgment or decree being subsequently reversed,
modified, annulled, set aside, vacated or found to have been
entered without jurisdiction.
(d) The Escrow Agent shall be entitled to employ such legal
counsel and other experts as it may deem necessary to properly
advise it in connection with its obligations hereunder. The
Escrow Agent may rely upon the advice of such counsel, and may
pay such counsel reasonable compensation therefor.
(e) The Company agrees to reimburse Escrow Agent for all expenses
incurred by it in the performance of its services under this
Agreement. The Escrow Agent agrees to maintain adequate
records in such form and detail to support any claim for
reimbursement hereunder and to furnish such records or copies
to the Company as it may request.
6. Right to Information. If the Escrow Agent reasonably requires other
or further instruments in connection with this Agreement or its obligations in
respect hereto, Xxxxxx, and the Company each agree that he or it shall furnish
such instruments.
7. Retainment of Shares; Disputes. It is understood and agreed that
should any dispute arise with respect to the delivery and/or ownership or right
of possession of the securities held by the Escrow Agent hereunder, the Escrow
Agent is authorized and directed to retain in its possession without liability
to anyone all or any part of said securities until such dispute shall have been
settled either by mutual written agreement of the parties
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concerned or by a final order, decree or judgment of a court of competent
jurisdiction after the time for appeal has expired and no appeal has been
perfected, but the Escrow Agent shall be under no duty whatsoever to institute
or defend any such proceedings, whether by interpleader or otherwise.
8. Miscellaneous.
(a) This Agreement may only be amended or modified in a writing
executed by the parties hereto.
(b) All notices or other communications pursuant to this Agreement
shall be in writing and shall be deemed to have been duly
given, if by hand delivery, upon receipt thereof, or if mailed
by certified or registered mail, postage prepaid, three days
following deposit in the United States mail, and in any event,
to be addressed to:
the Company, at
BancorpSouth, Inc.
Xxx Xxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxx 00000
Attn: Chief Executive Officer
Xxxxxx, at
___________________
___________________
Escrow Agent, at
___________________
___________________
or to such other address as shall hereafter be provided by
proper notice to the other parties.
(c) This Agreement shall be construed and interpreted according to
the laws of the State of Mississippi, without regard to the
principles of conflicts of laws thereof.
(d) The foregoing, in conjunction with the Stock Agreement,
contains the entire and only agreement between the parties
respecting the subject matter hereof, and any representation,
promise or condition in connection therewith not incorporated
herein or therein shall not be binding upon either party.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
BANCORPSOUTH, INC.
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxx
Its: Chairman and Chief Executive Officer
BANCORPSOUTH BANK
By: /s/ Xxxxxx X. Xxxxxxxxx
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Its: Chairman, President and Chief
Executive Officer
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