EXHIBIT 10.46
CONTRACT BUYOUT AND SEPARATION AGREEMENT
This Contract Buyout and Separation Agreement (the "Agreement") is
entered into as of the 26th day of January, 2001 by and between Hibernia
Corporation, a Louisiana corporation, and Hibernia National Bank, a national
banking association organized and existing under the laws of the United States
(collectively, "Hibernia"), on the one hand, and Xxxxxxx X. Xxxxxx
("Executive"), on the other hand.
WHEREAS, Executive has been employed by Hibernia in the capacity of
President and Chief Executive Officer pursuant to that certain Employment
Agreement dated March 26, 1992 (the "Employment Agreement"); and
WHEREAS, Executive has also served as a member of the Board of
Directors of Hibernia Corporation and Hibernia National Bank and as an officer
and director of various direct and indirect subsidiaries of Hibernia Corporation
and Hibernia National Bank; and
WHEREAS, Executive and Hibernia have mutually agreed to Executive's
resignation from his employment with Hibernia and from the Board of Directors of
Hibernia and all subsidiaries of Hibernia; and
WHEREAS, Hibernia and Executive have agreed to terminate the Employment
Agreement and to provide to Executive certain separation payments and other
benefits pursuant to the terms and conditions set forth herein in connection
with Executive's resignation of his Board positions and his employment and the
buyout by Hibernia of the Employment Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, the parties hereto agree as follows:
Section 1. Resignation as Officer and Director. Hibernia and Executive
acknowledge and agree that effective as of the 17th day of December, 2000 (the
"Resignation Date"), Executive voluntarily resigned as President and Chief
Executive Officer of Hibernia Corporation and Hibernia National Bank, as a
member of the Board of Directors of Hibernia Corporation and Hibernia National
Bank and as an officer and director of each and every direct or indirect
subsidiary of Hibernia Corporation or Hibernia National Bank (such subsidiaries
are collectively referred to herein as the "Subsidiaries") for which Executive
then served as an officer or director. On the Resignation Date, Executive
executed a letter of resignation evidencing the foregoing resignations, which
resignations were accepted as of such date. Executive acknowledges and agrees he
has not and will not furnish Hibernia with a letter of the type described in
item 6 of Form 8-K.
Section 2. Resignation from Employment. By execution of this Agreement,
Executive hereby voluntarily resigns as an employee of Hibernia and the
Subsidiaries, such resignation to be effective as of the 31st day of January,
2001 (the "Separation Date"), and such resignations are hereby accepted. From
the Resignation Date through and including the Separation Date, Executive shall
continue as a common law employee of Hibernia, whose duties shall be prescribed
by the Board of Directors of Hibernia and shall include, but not be limited to,
assisting the Board of Directors and management of Hibernia in Hibernia's
transition to a new president and chief executive officer. Until the Separation
Date, Executive's e-mail and voicemail connections at Hibernia shall remain in
place and, until the Separation Date, Executive is expected promptly to respond
to e-mails and voicemails of a substantive nature and to forward them as
appropriate to Hibernia's other management officials and/or Chief Executive
Officer. Executive's e-mail and voicemail connections at Hibernia shall be
disconnected thirty (30) days after the Separation Date. Except as may be
expressly provided herein, the parties intend that Executive shall be credited
with service and compensation through the Separation Date in accordance with the
terms of any employee benefit plan (whether qualified or nonqualified)
maintained by Hibernia in which Executive participates and that expense
reimbursement by Hibernia shall continue through the Separation Date in
accordance with the custom and practice of Hibernia immediately prior to the
Resignation Date, provided that after the Resignation Date Executive shall not
incur expenses not previously agreed to.
Section 3. Termination of Employment Agreement. Executive acknowledges
and agrees that the execution of this Agreement shall constitute satisfaction in
full of Hibernia's obligations under, and the extinguishment and termination of,
the Employment Agreement and that the Employment Agreement was terminated and
extinguished as of the Resignation Date. From and after the Resignation Date,
this Agreement shall constitute the sole agreement between the parties relating
to Executive's rights and Hibernia's obligations upon cessation of Executive's
employment.
Section 4. Compensation and Benefits. Executive shall receive the
amounts and benefits described on Appendix A hereto and such amounts and
benefits shall be paid to Executive at such times and in such manner as set
forth therein, which appendix shall be deemed to form a part of this Agreement
by this reference.
Section 5. Hibernia Property. Executive shall be permitted to retain
without charge as his personal property the desk and credenza previously located
in his office (which have been placed in storage by Hibernia for Executive's
benefit), the laptop and desktop computers, printer and fax/copier previously
furnished him by Hibernia (which Hibernia acknowledges it has furnished to
Executive and which Executive acknowledges he has taken possession of).
Executive acknowledges that Hibernia can remove (or require Executive to remove)
any software loaded on such computers and licensed to Hibernia if Executive's
possession or use of such software after the Separation Date would violate any
license agreement to which Hibernia or any of the Subsidiaries is a party, and
Executive agrees to make the computers available to Hibernia for such purpose.
Executive agrees that all materials, records and documents (whether written or
in electronic form) made by Executive or in his possession concerning the
business, affairs or plans of Hibernia or any of the Subsidiaries, or other
items of property held by or for Executive but owned or used by Hibernia or any
of the Subsidiaries, are and shall be the sole property of Hibernia. Executive
agrees prior to the Separation Date or promptly thereafter to deliver to
Hibernia (and not to retain or destroy) any and all such Hibernia property
including, but not limited to, keys, credit and identification cards, client
files and information, acquisition files and information, contact information
for clients and customers and all other files and documents relating to
Hibernia, its plans, its business or its affairs, together with all written or
recorded materials, documents, computer discs, plans, records, notes or other
papers belonging to Hibernia.
Section 6. No Other Payments or Obligations. Executive understands and
agrees that neither Hibernia nor any successor of Hibernia will be obligated in
any way to provide him with future employment, compensation and/or benefits,
other than those provided for herein, in any amount or for any reason. The
payments provided for herein include all payments due Executive pursuant to the
Employment Agreement and all benefit plans provided by Hibernia in which
Executive participates or has participated.
Section 7. No Admissions. It is expressly understood and agreed that by
entering into this Agreement, neither Hibernia nor Executive in any way admits
that it or he has treated the other unlawfully or wrongfully in any way. Neither
this Agreement, nor the implementation thereof, shall be construed to be, or
shall be admissible in any proceedings as, evidence of an admission by Hibernia
or Executive of any violation of, or failure to comply with, any federal, state
or local law, ordinance, agreement, rule, regulation or order. However,
Executive agrees that this section does not preclude introduction of this
Agreement by Hibernia to establish that all of Executive's claims against
Hibernia and the Subsidiaries relating to the subject matter hereof were
settled, compromised and released according to the terms of this Agreement.
Section 8. Mutual Release. Executive and Hibernia agree to the
execution of a mutual release, in the form attached hereto as Appendix B, such
release to be executed on and as of the Separation Date.
Section 9. Cooperation in Claims. With respect to any claim asserted by
or brought against Hibernia or the Subsidiaries in relation to its or their
business and/or against Executive in his former capacity as employee, officer or
director of Hibernia or the Subsidiaries, Executive, upon reasonable notice and
at the written request of an executive officer of Hibernia, and without
requiring a court order or other compulsion, agrees to make himself and any
necessary records or documents in his possession reasonably available to
Hibernia for reasonable time periods to prosecute or defend any such claim; and
Executive will use his best efforts to cooperate with Hibernia in prosecuting or
defending any such claim, provided, however, that in any case where Executive is
required to travel for any consultation or legal proceedings at the express
written request of an executive officer of Hibernia (excluding any instance
where Hibernia and Executive are on opposite sides of the litigation, in any
other opposing position or in possible adverse positions), Executive shall be
entitled to receive reimbursement of reasonable travel costs incurred.
Section 10.Covenant Not to Compete.
(a) Executive and Hibernia acknowledge and agree that as of the
Resignation Date, Hibernia is engaged in the commercial banking, retail and
consumer banking, small business banking, insurance and securities businesses
("Hibernia's Business") and that as of the Resignation Date, Hibernia is
conducting one or more of such businesses in the parishes listed on Appendix D
hereto in the State of Louisiana (the "Restricted Area").
(b) In respect of the consideration described herein, the sufficiency
of which is hereby acknowledged, during the period commencing on February 1,
2001 and ending on January 31, 2003 (the "Restriction Period"), Executive shall
not carry on, engage or take part in, render services to or own, share in the
earnings of, or invest in the stock, bonds or other securities of any other
entity directly or indirectly engaged in Hibernia's Business or in a business
similar thereto within the Restricted Area, whether on his own behalf or on
behalf of any other person or entity, whether as owner, director, principal,
agent, partner, officer, employee, independent contractor, consultant,
stockholder, licensor or otherwise, alone or in association with any other
person; provided that, Executive may own passive investments in the securities
of any similar business (but without otherwise participating in such similar
business) if such securities are listed on any national or regional securities
exchange or traded in the over-the-counter market and if Executive's ownership
interest is less than 5% of any class of securities of a similar business.
(c) During the Restriction Period, Executive shall not, either directly
or indirectly, through one or more intermediaries or otherwise, on or for his
own behalf or on behalf of any other person or entity, solicit, induce, recruit,
encourage, advise or counsel any customer of Hibernia or any of the Subsidiaries
to cease being a customer of Hibernia or any of the Subsidiaries, to do business
with another person or entity that engages in all or part of Hibernia's Business
or otherwise to take away such customer or attempt to do any of the foregoing.
(d) If Hibernia ceases to engage in all of Hibernia's Business in a
parish included in the Restricted Area, such parish shall thereupon cease to be
part of the Restricted Area unless and until Hibernia again carries on or
engages in Hibernia's Business therein, but all remaining portions of such
Restricted Area shall continue to be part thereof.
(e) If any portion of this Section 10 shall be determined to be invalid
or unenforceable for any reason, the remaining provisions of this Section 10
shall be unaffected thereby and shall remain in full force and effect to the
fullest extent permitted by applicable law. Without limiting the generality of
the preceding sentence, if it is determined that any Restricted Area exceeds the
maximum area in which Section 10 may lawfully apply, or that Section 10
otherwise exceeds any maximum limitation imposed by law, then it is the
intention of the parties that Section 10 shall not thereby be rendered
unenforceable, but rather that the excessive provision be modified so as to
render Section 10 enforceable to the maximum extent.
Section 11. Additional Limitations on Other Activities. In respect of
the consideration described herein, the sufficiency of which is hereby
acknowledged, for a period commencing on February 1, 2001 and ending on January
31, 2002, Executive shall not, either directly or indirectly, through one or
more intermediaries or otherwise, on his own behalf or on behalf of any other
person or entity, employ, solicit, induce, recruit, encourage, advise or counsel
any employee or agent of Hibernia or any of the Subsidiaries to leave their
employment, or take away such employees or agents or attempt to solicit, induce,
recruit, encourage or take away such employees or agents. Executive may respond
to unsolicited requests for employment by such employees or agents.
Section 12. Confidential and Proprietary Information. Executive
acknowledges and agrees that any and all nonpublic information regarding
Hibernia, the Subsidiaries or any customer of Hibernia or any of the
Subsidiaries is confidential and the unauthorized disclosure of such information
could result in irreparable harm to Hibernia. Executive shall not, for a period
commencing on February 1, 2001 and ending on January 31, 2006, disclose or
permit the disclosure of any such information to any person other than a person
employed by Hibernia or engaged by Hibernia to render professional services to
Hibernia under circumstances requiring such person to adhere to an obligation of
confidentiality with respect to Hibernia, except as such disclosure may be
required by statute, regulation or judicial or administrative order, in which
case Executive shall provide Hibernia prior written notice of such requirement
and an opportunity to contest the same. Such disclosure shall be deemed to be so
required if required by such statute, regulation or order (including any
subpoena or other demand for information purporting to be made under authority
of any statute, regulation or order) on the face thereof, and Executive shall
have no obligation to contest such statute, regulation or order. The term
"confidential information" does not include any information which, at the time
of disclosure, is in the public domain through no breach by Executive of his
obligation of confidentiality. Executive agrees that he will not take with him
any document belonging to Hibernia or any of its affiliates which is of a
confidential or proprietary nature relating to Hibernia or any such affiliate.
Section 13. Business Reputation. Executive agrees to refrain from
performing any act, engaging in any conduct or course of action or making or
publishing any statements, claims, allegations or assertions which have or may
reasonably have the effect of demeaning the name or business reputation of
Hibernia or any of the Subsidiaries, or any of its or their employees, officers,
directors, agents or advisors or which adversely affects (or may reasonably be
expected adversely to affect) the best interests (economic or otherwise) of any
of them. Hibernia agrees, except as may be required by law, to refrain from
making or publishing any statements, claims, allegations or assertions which it
believes have or may reasonably be expected to have the effect of demeaning the
name or business reputation of Executive.
Section 14. Successors and Assigns. This Agreement shall be binding
upon, inure to the benefit of and be enforceable by Executive's personal or
legal representatives, executors, administrators, successors, heirs,
distributes, devisees and legatees. Executive may not sell, assign, pledge or
transfer his rights or obligation hereunder, except as to any payment which may
be assigned by will or the laws of intestacy. This Agreement shall also be
binding upon, inure to the benefit of and be enforceable by any successor to
Hibernia by reason of any merger, consolidation or sale of assets, dissolution
or other reorganization or other form of business combination by Hibernia.
Section 15. Knowing and Voluntary. Executive acknowledges that he has
obtained legal counsel with respect to the terms and conditions of this
Agreement, including its Appendices and Exhibits, that he and his counsel have
reviewed the terms and conditions of this Agreement, that he understands its
terms and that he has executed this Agreement voluntarily and without any
coercion, undue influence, threat or intimidation of any kind whatsoever.
Section 16. Arbitration. Any dispute, controversy or claim arising out
of or relating to this Agreement, the termination of or purchase of Executive's
rights under the Employment Agreement or Executive's employment with Hibernia or
cessation of employment with Hibernia, including but not limited to any claim of
discrimination under state or federal law, shall be resolved exclusively through
binding arbitration conducted by three arbitrators in accordance with the rules
of the American Arbitration Association then in effect; provided, however, that
in the event of a claimed violation of Sections 5, 8, 9, 10, 11, 12 or 13
hereof, Hibernia may also seek injunctive or other relief as specified in
Section 23 hereof. The parties agree that any arbitration proceeding shall be
conducted in New Orleans, Louisiana and consent to exclusive jurisdiction and
venue there. The award of the arbitrators shall be final and binding, and the
parties waive any right to appeal the arbitral award, to the extent that a right
to appeal may be lawfully waived. Each party retains the right to seek judicial
assistance to compel arbitration and to enforce any decision of the arbitrators,
including but not limited to the final award.
Section 17. Captions and Paragraph Headings. Captions and paragraph
headings used herein are for convenience only and are not a part of this
Agreement and shall not be used in construing it.
Section 18. Entire Agreement. Except as otherwise expressly provided
herein, this Agreement and the Appendices and Exhibits hereto (including the
agreements referred to herein as continuing and the Release) shall constitute
the entire agreement between Hibernia and Executive with respect to the subject
matter hereof and supersede all prior arrangements or understandings with
respect to the subject matter hereof, written or oral. Any subsequent alteration
in, or variance from, any term or condition of this Agreement shall be effective
only if executed in writing and signed by Executive and Hibernia. Nothing in
this Agreement expressed or implied is intended to confer upon any person, other
than Hibernia, Executive and their respective successors, any rights, remedies,
obligations or liabilities under or by any reason of this Agreement. The parties
hereto further acknowledge and agree that that certain Contract Buyout Proposal
executed on December 17, 2000 has been cancelled and terminated and that such
buyout proposal is of no further force and effect.
Section 19. Choice of Law. This Agreement, and the rights and
obligations of the parties hereto, shall be governed and construed in accordance
with the laws of the State of Louisiana without consideration of the conflicts
of laws provisions thereof.
Section 20. Negotiated Agreement. The Agreement was negotiated between
the parties hereto, and the fact that one party or the other drafted this
Agreement shall not be used in its interpretation.
Section 21. Notices. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given only if
delivered personally or by facsimile transmission or mailed (first class postage
prepaid) or sent by overnight courier to the parties at the following addresses
or facsimile numbers:
If to Executive to:
Xxxxxxx X. Xxxxxx
[Home Address]
With a copy to:
Xxxx Xxxxx, Esq.
Wachtell, Lipton, Xxxxx & Xxxx
00 X. 00xx Xxxxxx
Xxx Xxxx, X.X. 00000
Facsimile No. 212-403-2000
If to Hibernia to:
Hibernia Corporation
X.X. Xxx 00000
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Chief Executive Officer
Facsimile No. 000-000-0000
With a copy to:
Corporate Law Division
Hibernia National Bank
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile No. 000-000-0000
All such notices, requests and other communications will (i) if delivered
personally or by overnight courier to the address as provided in this section,
be deemed given upon delivery, (ii) if delivered by facsimile transmission to
the facsimile number as provided in this section, be deemed given upon receipt,
and (iii) if delivered by mail in the manner described above to the address as
provided in this section, be deemed given upon receipt (in each case regardless
of whether such notice, request or other communication is received by any other
person to whom a copy of such notice, request or other communication is to be
delivered pursuant to this section). Any party from time to time may change its
address, facsimile number or other information for the purpose of notices to
that party by giving written notice specifying such change to the other parties
hereto.
Section 22. Waiver. The failure by any party to enforce any of its
rights hereunder shall not be deemed to be a waiver of such rights, unless such
waiver is an express written waiver which has been signed by the waiving party.
Waiver of any one breach shall not be deemed to be a waiver of any other breach
of the same or any other provision hereof.
Section 23. Remedies. In the event of a breach or threatened breach by
Executive of the provisions of Sections 5, 8, 9, 10, 11, 12 or 13 hereof,
Executive agrees that Hibernia shall be entitled to a temporary restraining
order or a preliminary injunction (without the necessity of posting bond in
connection therewith) and that any additional payments or benefits due to
Executive or his dependents hereunder shall be cancelled and forfeited, except
as such additional benefits may be required by law. Nothing herein shall be
construed to prohibit Hibernia from pursuing any other remedy available to it
for such breach or threatened breach, including the recovery of damages from
Executive.
Section 24. Counterparts. This Agreement may be executed in any number
of counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
IN WTINESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
WITNESSES: HIBERNIA CORPORATION
__________________ By: _________________________
Name: ___________
(please print)
__________________
Name: ___________
(please print)
HIBERNIA NATIONAL BANK
__________________
Name: ___________ By: _________________________
(please print)
__________________
Name: ___________
(please print)
EXECUTIVE:
__________________
Name: ___________
(please print)
__________________
__________________
Name: ___________
(please print)
CONTRACT BUYOUT AND SEPARATION AGREEMENT
APPENDIX A
This Appendix A is intended to form a part of that certain Contract
Buyout and Separation Agreement (the "Agreement") by and between Xxxxxxx X.
Xxxxxx ("Executive") and Hibernia Corporation and Hibernia National Bank
(collectively, "Hibernia") and to more fully describe the compensation and
benefits due to Executive under the terms of Section 4 of such Agreement.
Capitalized terms not otherwise defined in this Appendix A shall have the
meanings given such terms in the Agreement.
A. Payment. Hibernia shall make an aggregate payment to Executive in
the amount of $2,000,000, which amount shall be paid in the form of (a)
continued salary and benefits through the Separation Date, subject to federal
and Louisiana income and employment taxes, and (b) provided that Executive
executes the Mutual Release attached to this Agreement as Exhibit B (the
"Release") on the Separation Date, a single sum of $1,945,832 to be paid on
February 1, 2001. Executive agrees that such single sum payment shall be subject
to withholding as supplemental wage payment(s) for federal income tax purposes
and income taxes of the appropriate state. The payment shall also be subject to
withholding for federal employment tax purposes and employment taxes of the
appropriate state.
B. Medical Benefits. Provided that Executive executes the Release on
the Separation Date, commencing on February 1, 2001 and ending on the earlier of
(a) July 31, 2002, or (b) the date Executive is covered under another employer's
group medical plan, Hibernia will pay for the benefit of Executive and his
dependents who were covered on December 16, 2000, the cost of group medical
coverage in accordance with the provisions of the Consolidated Omnibus Budget
Reconciliation Act of 1985 ("COBRA"). In the event Executive or any such
dependent is not covered under another employer's group medical plan at the time
that COBRA coverage ceases, Hibernia will purchase and pay the premiums for
comparable medical coverage for Executive (and any such dependents) until the
earliest to occur of (a) the date Executive is covered under another employer's
group medical plan, (b) March 31, 2003, or (c) the date any such dependent
ceases to be a dependent as defined in Hibernia's group medical plan. Executive
shall promptly notify Hibernia of any change in the status of any such
dependents. Hibernia shall not be required to pay the cost of medical coverage
for any person who was not a dependent on December 16, 2000.
C. Existing Stock Options. At various times during his employment,
Executive was granted options to purchase Hibernia common stock. As of December
17, 2000, Executive held the number of options as reflected on Exhibit A-1
hereto. Hibernia agrees that as of January 31, 2001, provided that Executive
executes the Release on the Separation Date, (a) Executive's resignation from
employment will be treated as a retirement for purposes of the option grants
listed on Exhibit A-1 hereto (which would result in the expiration dates as
listed on Exhibit A-1 hereto), (b) Hibernia will take all action necessary to
extend the exercise period of the options granted pursuant to option grants
003190, 003551 and 004610 as listed on Exhibit A-1 (the "Extended Options")
through January 31, 2006 and to accelerate the vesting on any unvested portion
of such Extended Options so that all unvested options will vest as of January
31, 2001, provided that any of such Extended Options that have an exercise price
as of the date this Agreement is executed that is less than the closing price of
Hibernia's common stock on the day immediately preceding the date of execution
of this Agreement shall not be an Extended Option and, as a result, shall not
have an extended exercise period or accelerated vesting period, and (c) Hibernia
will take all action necessary to accelerate the vesting of the options granted
pursuant to option grant 005629 as listed on Exhibit A-1 so that all unvested
options will vest as of January 31, 2001. All other terms and provisions of the
options listed on Exhibit A-1 as set forth in the option agreements reflecting
those option grants will remain in full force and effect. To the extent any of
the foregoing actions require the amendment of outstanding option agreements, by
execution of this Agreement, Executive consents to such amendments. Executive
agrees that amounts treated as compensation upon exercise of the options listed
on Exhibit A-1 shall be subject to withholding as supplemental wage payments for
federal income tax purposes and the income taxes of the appropriate state. The
payments shall also be subject to withholding for employment tax purposes.
D. Additional Stock Options. On or prior to January 31, 2001, Hibernia
shall grant to Executive a nonqualified option to purchase 250,000 shares of
Class A Common Stock of Hibernia Corporation (the "Additional Option") in the
form and subject to the terms and conditions set forth on Appendix C hereto.
Executive agrees that amounts treated as compensation upon exercise of such
option shall be subject to withholding as supplemental wage payments for federal
income tax purposes and income taxes of the appropriate state. The payments
shall also be subject to withholding for employment tax purposes. The Additional
Option shall be subject to forfeiture if Executive fails to execute the Release
on the Separation Date.
E. Change of Control Payment. Provided that Executive executes the
Release on the Separation Date, in the event a Change of Control of Hibernia
occurs on or before March 31, 2003 or is announced on or before March 31, 2003
and the announced transaction is consummated within six months of the
announcement, Hibernia will pay to Executive an additional single sum payment in
the amount of $1,000,000. Such amount shall be paid not later than ten days
after the occurrence of the Change of Control. For purposes of this section,
"Change of Control" shall mean (i) a person, including a "group" as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934 and the rules and
regulations promulgated thereunder, becomes the beneficial owner of shares of
Hibernia Corporation having 50% or more of the voting power of Hibernia
Corporation, (ii) Hibernia Corporation sells or disposes of all or substantially
all of its assets or substantially all of the assets of Hibernia National Bank,
or (iii) during any period of two consecutive calendar years, the individuals
who at the beginning of such period constitute the Board of Directors of
Hibernia Corporation cease for any reason to constitute at least a majority
thereof, unless the election, or the nomination for election, by the
shareholders of Hibernia Corporation of each new director was approved by a vote
of at least a majority of the directors then still in office who were directors
at the beginning of the period. No definition of "Change of Control" other than
the definition stated in the preceding sentence shall apply to the change of
control payment provided for herein. Executive agrees that such payment shall be
subject to withholding as a supplemental wage payment for federal income tax
purposes and income taxes of the appropriate state. The payment shall also be
subject to withholding for employment tax purposes.
F. Split Dollar Life Insurance Plan. Hibernia shall amend the Split
Dollar Life Insurance Plan (the "Split Life Plan") to allow Hibernia to pay for
the benefit of Executive the corporate portion of the premiums on the following
four life insurance policies until March 31, 2003, which payments shall be made
when due provided that Executive executes the Release on the Separation Date:
(a) Policy No. 13827164, (b) Policy No. 13852773, (c) Policy No. 15435425 and
(d) Policy No. 15435441 (the "Policies"). Executive acknowledges that to the
extent deemed necessary or appropriate by Hibernia, the payment of such premiums
shall constitute compensation to him in the year of payment. As of March 31,
2003 (or such earlier date as Hibernia is notified that Executive has not paid
his portion of the premiums on the Policies, which shall be entirely Executive's
obligation), an "Early Termination" shall be deemed to have occurred and the
provisions of Section 6.1 of the Split Life Plan shall apply to the Policies. By
execution of this Agreement, Executive consents to the modification of the Split
Life Plan as contemplated herein. Executive acknowledges and agrees that no
other benefits shall accrue to him with respect to the Split Life Plan and no
other payments shall be made to him with respect to such plan. Executive agrees
that to the extent deemed necessary or appropriate by Hibernia, such payments
from the plan may be treated as compensation and that such amounts shall be
subject to withholding as supplemental wage payments for federal income tax
purposes and income taxes of the appropriate state. The payments shall also be
subject to withholding for employment tax purposes. Executive further agrees
that he will be required to pay his portion of the premiums on the Policies as
follows: A payment (of $5,100.00) will be due within thirty days of January 31,
2001 (for his portion of the premiums through December 31, 2001); a second
payment (of $6,125.00) will be due on or before January 1, 2002 (for his portion
of the premiums through December 31, 2002); and the third payment (of $1,690.00)
will be due on or before January 1, 2003 (for his portion of the premiums
through March 31, 2003).
G. Deferred Award Plan. Hibernia shall make a Deferred Award (as
defined in the Deferred Award Plan) on behalf of Executive to the Deferred Award
Plan for the year 2000 in the amount specified by the terms of the Deferred
Award Plan, which Deferred Award shall be made at the time provided for in the
Deferred Award Plan. On or as of January 31, 2001, provided that Executive
executes the Release on the Separation Date, Hibernia shall make an
extraordinary Deferred Award on behalf of Executive to the Deferred Award Plan
of $225,000 with respect to the year 2000. In the event that the extraordinary
Deferred Award is made prior to January 31, 2001 (to enable Hibernia to report
2000 wage payments timely or for any other reason), such award shall be subject
to forfeiture and immediately returned to Hibernia if Executive fails to execute
the Release on the Separation Date. To the extent any of the foregoing actions
constitute an amendment or modification of the Deferred Award Plan, by execution
of this Agreement, Executive consents to such amendment or modification.
Executive agrees that such awards shall be subject to withholding for employment
tax purposes and that other amounts due Executive may be reduced to satisfy this
obligation.
With respect to the Deferred Award Plan, Executive acknowledges and
agrees as follows: (i) that he is fully vested under the Deferred Award Plan;
(ii) that the balance in Executive's Vested Account (as defined in the Deferred
Award Plan) as of December 31, 2000 prior to the awards described above is
$152,639.21; (iii) that other than the Deferred Awards provided for herein, no
additional amounts (except Interest as provided for in the Deferred Award Plan)
shall be credited to his account under the Deferred Award Plan; and (iv) that
his Vested Account (as defined in the Deferred Award Plan) shall be paid to him
in the form of a single payment on or before March 1, 2002, subject to
withholding as a supplemental wage payment for federal income tax purposes and
income tax of the appropriate state. Executive acknowledges and agrees that no
other benefits shall accrue to him and no other payments shall be made to him
under the Deferred Award Plan.
H. Supplemental Stock Compensation Plan for Key Management Employees.
Executive acknowledges and agrees as follows: (i) that he is fully vested under
the Supplemental Stock Compensation Plan for Key Management Employees (the
"Supplemental Plan"); (ii) that an allocation in the amount specified by the
terms of the Supplemental Plan shall be made to Executive's account under the
Supplemental Plan as of December 31, 2000; (iii) that no additional amounts
shall be credited to his account under the Supplemental Plan after December 31,
2000; (iv) that the balance in Executive's Vested Account (as defined in the
Supplemental Plan), as of December 31, 2000 prior to the allocation referenced
above is $118,921.72; and (v) that his Vested Account (as defined in the
Supplemental Plan) shall be paid to him in the form of a single payment on or
before March 1, 2002. Executive acknowledges that allocations under the plan
shall be subject to employment taxes and that payments from the plan shall be
subject to withholding as supplemental wage payments for federal income tax
purposes and income tax of the appropriate state. Executive acknowledges and
agrees that no other benefits shall accrue to him and no other payments shall be
made to him with respect to the Supplemental Plan.
I. Deferred Compensation Plan for Key Management Employees. Executive
acknowledges and agrees as follows with respect to the Deferred Compensation
Plan for Key Management Employees (the "Deferred Compensation Plan"): (i) that
Executive is fully vested in his Deferred Matching Makeup Account; (ii) that as
of December 31, 2000, the balance in Executive's Deferred Matching Makeup
Account is $285,390.83; (iii) that no additional amounts shall be credited to
Executive's account under the Deferred Compensation Plan; and (iv) that
Executive's account shall be paid to him in the form of a single payment on or
before March 1, 2002, subject to withholding as a supplemental wage payment for
federal income tax purposes and income tax of the appropriate state. Executive
acknowledges and agrees that no other benefits shall accrue to him and no other
payments shall be made to him under the Deferred Compensation Plan.
J. Vacation/Sick Pay. Executive acknowledges and agrees that no
further amounts are due him other than as specifically provided herein and that
no amounts are due for vacation pay or sick pay.
K. Initiation Fee. As of the Resignation Date, no further initiation
fees or club dues shall be paid by Hibernia on Executive's behalf.
L. Home Security System. Routine and customary maintenance and
monitoring charges for Executive's home security system for his residence(s) in
the New Orleans area shall be paid through the Separation Date and no further
payments for installation, maintenance or monitoring shall be paid by Hibernia
with respect to such home security system after the Separation Date.
M. Retirement Security Plan/Employee Stock Ownership Plan and Trust.
Executive acknowledges that he is a participant in the Retirement Security Plan
and the Employee Stock Ownership Plan and Trust, each maintained by Hibernia
Corporation, and that his benefits under such plans shall be determined in
accordance with the terms and conditions of such plans and any election related
thereto.
N. Other Insurance. Executive acknowledges that as of the Separation
Date, Hibernia shall cease, whether directly or indirectly, to pay premiums for
any other policy of insurance with respect to which Executive is named as the
insured. Executive acknowledges that any such policy shall lapse, be canceled or
otherwise disposed of in accordance with its terms, including the terms of any
ancillary or collateral document related thereto.
O. No Additional Benefits. Executive acknowledges and agrees that
except as expressly provided herein, his coverage under any benefit plan,
program, policy or arrangement sponsored or maintained by Hibernia shall cease
and be terminated as of the Separation Date. Executive further acknowledges and
agrees that no payment made by Hibernia pursuant hereto is subject to any
employer matching obligation or any other employer contribution under any
benefit or deferred compensation plan, whether or not any such payment is
characterized as wages or compensation.
P. Tax Consequences. Executive acknowledges that he has been encouraged
to obtain personal tax advice concerning the terms of the Agreement and, in
particular, this Appendix A and that neither Hibernia nor any of its officers,
directors or employees have provided tax advice to him or otherwise guaranteed
the tax consequences to Executive of any payment or benefit contemplated
hereunder. Executive further acknowledges that certain of the options listed on
Exhibit A-1 hereto are incentive stock options. As such, the tax treatment of
such options is subject to limitations on the time and manner of exercise and
the disposition of the underlying securities acquired on exercise. Neither
Hibernia nor any of its officers, directors or employees have provided tax
advice to Executive with respect to such options or otherwise guaranteed the tax
consequences thereof.
Q. Tax Controversy. Executive acknowledges that Hibernia now intends to
treat the payments, contributions, distributions or other amounts described in
paragraphs X, X, X, X, X, X, X and I of this Appendix A as supplemental wage
payments under the laws of the State of Louisiana that are subject to
withholding and remission of income tax at the applicable rate. Hibernia
acknowledges that Executive disputes such withholding and remission, which he
consents to under protest for tax purposes only. Nevertheless, in order to
facilitate the payments, contributions and distributions contemplated in this
Appendix A, Executive agrees that such withholding and remission by Hibernia
shall not constitute a breach of this Agreement.
Executive may, at any time, furnish to Hibernia evidence satisfactory
to Hibernia that such withholding and remission does not apply. In such event,
and to the extent that Hibernia, in its sole discretion, determines that such
withholding and remission is not required, Hibernia shall not make such
withholding and remission with respect to any payments or other distributions
subsequently due or payable under this Agreement. Executive acknowledges that
his remedy for the withholding and remission of amounts hereunder is protest to
the State of Louisiana, including appropriate legal and/or administrative action
against such state or its appropriate agencies. In no event, however, shall
Executive name Hibernia as a party thereto.
Hibernia acknowledges receipt of Executive's Declaration of Domicile,
dated December 20, 2000, which was intended to establish that Executive was
domiciled in and a resident of the State of Florida as of such date.
CONTRACT BUYOUT AND SEPARATION AGREEMENT
EXHIBIT A-1
OPTIONS
Exercise Price #Options
Grant Date Option# Per Share Outstanding
3/26/92 001505 $ 4.1875 328,360
3/26/93 001717 $ 7.1875 13,913
3/26/93 001718 $ 7.1875 628,753
3/25/94 002009 $ 7.9375 12,598
3/25/94 002010 $ 7.9375 643,428
1/23/95 002151 $ 6.9375 125,000
3/18/96 002671 $ 10.1875 125,000
1/27/97 003190 $ 13.4375 125,000
1/27/98 003551 $ 18.2813 150,000
1/26/99 004610 $ 16.0938 175,000
1/25/00 005629 $ 9.9063 185,000
CONTRACT BUYOUT AND SEPARATION AGREEMENT
EXHIBIT A-1 (Cont.)
Grant Date Option# Expiration of Option after Retirement
3/26/92 001505 March 26, 2002
3/26/93 001717 March 26, 2003
3/26/93 001718 March 26, 2003
3/25/94 002009 January 31, 2002
3/25/94 002010 January 31, 2002
1/23/95 002151 January 31, 2002
3/18/96 002671 January 31, 2002
1/27/97 003190 January 31, 2006
(if an Extended Option)
January 31, 2002
(if not an Extended Option)
1/27/98 003551 January 31, 2006
(if an Extended Option)
January 31, 2002
(if not an Extended Option)
1/26/99 004610 January 31, 2006
(if an Extended Option)
January 31, 2002
(if not an Extended Option)
1/25/00 005629 January 31, 2002
CONTRACT BUYOUT AND SEPARATION AGREEMENT
APPENDIX B
MUTUAL RELEASE
This Mutual Release (the "Release") is made and entered into as of this
31st day of January, 2001, by and between Hibernia Corporation and Hibernia
National Bank (collectively, "Hibernia") and Xxxxxxx X. Xxxxxx ("Executive") and
is intended to set forth the mutual releases contemplated under Section 8 of
that certain Contract Buyout and Separation Agreement by and between the parties
hereto executed as of January __, 2001 (the "Agreement").
A. Release By Executive. Executive acknowledges that the payments and
benefits made under the terms of the Agreement, as set forth in Appendix A
thereto, are sufficient to support this Release. Executive also acknowledges
that the payment of the compensation and benefits described in paragraphs A
through G of Appendix A to the Agreement is contingent upon the execution of
this Release and that such payments and benefits are in addition to any other
wages or benefits to which Executive is entitled, receipt of which is hereby
acknowledged.
Executive, on behalf of himself, his heirs, representatives,
administrators, estates, successors and assigns, does hereby irrevocably and
unconditionally remise, release and forever discharge Hibernia Corporation and
Hibernia National Bank and its or their predecessors, parents, subsidiaries,
affiliates, benefit plans and arrangements and its or their past, present and
future officers, directors, trustees, administrators, fiduciaries, stockholders,
agents, employees and attorneys, as well as the heirs, successors and assigns of
any of such persons or such entities (hereinafter separately and collectively
called "Releasees"), from all manner of suits, actions, causes of action,
damages and claims, known or unknown, legal or equitable, that he has, or may
have, against any of the Releasees for any actions up to and including the date
of this Release and the continuing effects thereof, including without
limitation, any claims arising by virtue of his status as a shareholder,
officer, employee and/or director of Hibernia or out of his employment or
resignation from or other termination of employment with Hibernia or out of the
Employment Agreement (as defined in the Agreement) or the termination thereof.
Except for the performance of the provisions of the Agreement, it is the
intention of Executive to effect a general release of all such claims.
This Release includes, but is not limited to, claims which were
asserted, could have been asserted or could be asserted by Executive, or on his
behalf, arising out of his employment with Hibernia or the resignation from such
employment or other termination thereof or the termination of the Employment
Agreement (as defined in the Agreement), including but not limited to, claims
under federal or state laws, federal, state and local statutes, ordinances,
executive orders, the Employee Retirement Income Security Act of 1974, as
amended, and state or local law claims of any kind. Executive acknowledges that
he may have sustained or may yet sustain damages, costs or expenses that are
presently unknown and that relate to claims between him and the Releasees
released by this Release and he agrees that he is waiving all such claims. For
the purpose of implementing a full and complete release and discharge of the
Releasees, Executive expressly acknowledges this Release is intended to include
in its effect, without limitation, all claims that he does not know or suspect
to exist in his favor at the time he signs this Release and that this Release
contemplates the extinguishment of any such claim or claims. Executive shall
forever refrain and forbear from commencing, instituting or prosecuting any
lawsuit, action, claim or proceeding before or in any court or arbitration
proceeding against the Releasees by or naming or joining such Releasees as
parties to collect or enforce any claims or causes of action which are released
and discharged hereby.
Executive hereby acknowledges and agrees that he has knowingly
relinquished, waived and forever released any and all other claims and/or
remedies that might be available to him, including without limitation, claims
for back pay, front pay, fringe benefits, contract and compensatory damages,
punitive damages and attorneys' fees or expenses of litigation.
The foregoing release and covenant not to xxx is not, however, intended
to release or apply to, and shall not release or apply to any right of Executive
to claim or receive indemnification and related benefits as an officer or
director of Hibernia under any applicable law or Hibernia's Articles of
Incorporation or Articles of Association or Bylaws or to claim or receive
insurance coverage or to be defended under any directors and officers insurance
coverage which applies to or benefits directors and/or officers of Hibernia and
which applies to Executive without the purchase by Hibernia of any additional or
tail coverage.
B. Release By Hibernia. In consideration for Executive's promises and
releases herein, the sufficiency of which is hereby acknowledged, Hibernia, for
itself, its subsidiaries, successors and assigns, now and forever, hereby
releases and discharges Executive from any and all claims, legal or equitable
actions, liability or litigation, real or contemplated, known or unknown, that
Hibernia may now have or may later claim to have had against Executive for any
actions up to and including the date of this Release, including without
limitation, any claims arising out of Executive's employment or resignation from
or other termination of employment with Hibernia or the termination of the
Employment Agreement (as defined in the Agreement), provided that Hibernia does
not release or waive any claims regarding Executive's performance or
nonperformance of the Agreement or any claims arising from any allegations of or
illegal acts or unlawful conduct by Executive or any claims against Hibernia for
any ultra xxxxx acts by Executive or any claims which any bank regulatory
authority advises Hibernia cannot lawfully be released, which claims are
expressly reserved. Hibernia acknowledges that it may have sustained or may yet
sustain damages, costs or expenses that are presently unknown and that relate to
claims between it and Executive which are nonetheless released hereby. For the
purpose of implementing a full and complete release and discharge of Executive,
except with respect to the exceptions set forth above, Hibernia expressly
acknowledges this Release is intended to include in its effect, without
limitation, all claims that it does not know or suspect to exist in its favor at
the time it signs this Release and that this Release contemplates the
extinguishment of any such claim or claims. Hibernia shall forever refrain and
forbear from commencing, instituting or prosecuting any lawsuit, action, claim
or proceeding before or in any court or arbitration proceeding against Executive
or naming or joining Executive as a party to collect or enforce any claims or
causes of action which are released and discharged hereby. Hibernia hereby
acknowledges and agrees that it has knowingly relinquished, waived and forever
released any and all other remedies that might be available to it, including
without limitation, claims for contract damages, punitive damages and attorneys'
fees or expenses of litigation.
C. Successors and Assigns. This Release shall be binding upon, inure to
the benefit of and be enforceable by Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributes,
devisees and legatees. This Release shall also be binding upon, inure to the
benefit of and be enforceable by any successor to Hibernia by reason of any
merger, consolidation or sale of assets, dissolution, reorganization or other
form of business combination by Hibernia.
D. Knowing and Voluntary. Executive acknowledges that he has obtained
separate legal counsel with respect to the terms and conditions of this Release,
that he has reviewed the terms and conditions of this Release, that he
understands its terms and that he has executed this Release voluntarily and
without any coercion, undue influence, threat or intimidation of any kind
whatsoever.
E. Arbitration. Any dispute, controversy or claim arising out of or
relating to this Release shall be resolved exclusively through binding
arbitration conducted by three arbitrators in accordance with the rules of the
American Arbitration Association then in effect. The parties agree that any
arbitration proceeding shall be conducted in New Orleans, Louisiana and consent
to exclusive jurisdiction and venue there. The award of the arbitrators shall be
final and binding, and the parties waive any right to appeal the arbitral award,
to the extent that a right to appeal may be lawfully waived. Each party retains
the right to seek judicial assistance to compel arbitration and to enforce any
decision of the arbitrators, including but not limited to the final award.
F. Entire Agreement. This Release and the Agreement shall constitute
the entire agreement between Hibernia and Executive with respect to the subject
matter hereof and supersede all prior arrangements or understandings with
respect to the subject matter hereof, written or oral. Any subsequent alteration
in, or variance from, any term or condition of this Release shall be effective
only if executed in writing and signed by Executive and Hibernia. Nothing in
this Release expressed or implied is intended to confer upon any person, other
than Hibernia, Executive, their respective successors and the Releasees, any
rights, remedies, obligations or liabilities under or by any reason of this
Release.
G. Choice of Law. This Release, and the rights and obligations of the
parties hereto, shall be governed and construed in accordance with the laws of
the State of Louisiana without consideration of the conflicts of laws provisions
thereof.
H. Counterparts. This Release may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
THIS MUTUAL RELEASE was executed in multiple counterparts, each of
which shall be deemed an original, as of this 31st day of January, 2001.
WITNESSES: HIBERNIA CORPORATION
__________________ By: _________________________
Name: ___________
(please print)
Name: ___________
(please print)
HIBERNIA NATIONAL BANK
__________________
Name: ___________ By: _________________________
(please print)
__________________
Name: ___________
(please print)
EXECUTIVE:
__________________ __________________
Name: ___________
(please print)
__________________
Name: ___________
(please print)
CONTRACT BUYOUT AND SEPARATION AGREEMENT
APPENDIX C
Form of Option Agreement for Additional Options
EXHIBIT 10.47
HIBERNIA CORPORATION
2001 NONQUALIFIED STOCK OPTION AGREEMENT
THIS NONQUALIFIED STOCK OPTION AGREEMENT (the "Agreement") is made and
entered into by and between Hibernia Corporation, a corporation organized and
existing under the laws of the State of Louisiana (the "Company"), and Xxxxxxx
X. Xxxxxx ("Employee"), to be effective as of January __, 2001 (the "Effective
Date"). This Agreement is intended to constitute an individual stock option plan
and is not made under the Long Term Incentive Plan of the Company.
1. Grant. As of the Effective Date, the Board of Directors of the
Company (the "Board"), or a committee of the Board, has granted to Employee a
nonqualified (or nonstatutory) stock option to purchase 250,000 shares (the
"Shares") of Class A no par value common stock issued by the Company (the
"Common Stock") at a price of $_____ per share, which is the Fair Market Value
(as defined below) of the Common Stock as of the date of grant (the "Exercise
Price").
2. Time of Exercise. Except as expressly provided herein, this option
shall vest on and be exercisable by Employee at any time on or after July __,
2001 [insert date that is 6 months after the grant] (the "Vesting Date"),
whether or not at the Vesting Date or thereafter Employee continues as an
employee of the Company; provided, however, that no part of this option may be
exercised after January 31, 2006 (the "Expiration Date").
3. Early Forfeiture. If Employee does not execute Appendix B, Mutual
Release, to that certain Contract Buyout and Separation Agreement dated January
__, 2001, by and among the Company, Hibernia National Bank and Employee, such
Mutual Release to be dated and executed as of January 31, 2001, this option
shall automatically expire and be deemed forfeited as of such date, without the
requirement of further notice or the payment of compensation.
4. Death. If Employee dies prior to the date on which this option is
exercised, forfeited or expires, the option shall become immediately exercisable
in full on the date of Employee's death (if such death takes place before the
Vesting Date) and Employee's legal representative shall be entitled to exercise
this option during the one-year period immediately following Employee's death,
but in no event later than the Expiration Date.
5. Method of Exercise. This option may be exercised during Employee's
lifetime only by the Employee. This option, to the extent exercisable, shall be
exercised, in whole or in part, by the delivery to the Company of written notice
of such exercise, in such form as the Board, or a committee of the Board, may
from time to time prescribe, accompanied by full payment of the Exercise Price
and any amounts required to be withheld pursuant to applicable income or
employment tax laws in connection with such exercise with respect to that
portion of this option being exercised. The value of the Shares for this purpose
shall be the Fair Market Value of such Shares on the date of exercise. The date
of proper delivery to the Company of such notice shall be the date of exercise
of this option. Unless and until the Company notifies Employee to the contrary,
the form attached to this Agreement as Exhibit A shall be used to exercise this
option.
Upon the exercise of this option, in whole or in part, Employee may pay
the Exercise Price in cash, by delivering duly endorsed certificates
representing Common Stock having a Fair Market Value on the date of exercise
equal to that portion of the Exercise Price being paid by delivery of such
Common Stock, or through a combination of cash and Common Stock; provided,
however, that no Common Stock that has not been held for at least six months
prior to the date of exercise or such other period as may be specified by the
Board, or a committee of the Board, may be used to pay any portion of the
Exercise Price.
Delivery of certificates representing the purchased Shares of Common
Stock shall be made by the Company reasonably promptly after receipt by the
Company of notice and all amounts described above required to be submitted to
the Company upon the exercise of this option; provided, however, that the
Company's obligation to deliver certificates may be postponed, in the sole
discretion of the Board or a committee thereof, for any period necessary to
list, register or otherwise qualify the purchased Shares under Federal
securities laws or any applicable state securities law.
The exercise, in whole or in part, of this option shall cause a
reduction in the number of unexercised Shares for which this option can
subsequently be exercised equal to the number of Shares with respect to which
this option is exercised.
6. Taxes. This option is intended to be a nonstatutory (or
nonqualified) option and is not an incentive stock option within the meaning of
section 422 of the Internal Revenue Code of 1986, as amended. This option shall
be subject to income and employment taxes. By execution below, Employee
acknowledges that he has been encouraged to obtain personal tax advice prior to
the exercise of this option or the disposition of the Shares acquired on the
exercise of this option and that the Company has not provided tax advice to
Employee or otherwise guaranteed the tax consequences of this option or the
Shares.
Employee may elect to have Common Stock otherwise issuable to him on
the exercise of this option withheld for the payment of Federal and state income
and employment taxes due by notifying the Company (through the office of the
Company's corporate Secretary), in writing, at the time of exercise. Such income
tax withholding shall be made at a rate not in excess of the highest rate
applicable to supplemental wage payments under Section 3402 of the Internal
Revenue Code of 1986, as amended. Common Stock withheld shall be valued at Fair
Market Value, determined as of the date of exercise.
7. Change of Control. Notwithstanding any provision of this Agreement
to the contrary, upon the occurrence of a Change of Control (as defined below)
on or before the Vesting Date, this option shall vest in full and remain
exercisable until the Termination Date.
8. No Assignment. This option shall not be subject in any manner
to sale, transfer, pledge, assignment or other encumbrance or disposition,
whether by operation of law or otherwise and whether voluntarily or
involuntarily, except by will or the laws of descent and distribution.
9. Recapitalization. This option shall be subject to adjustment by the
Board, or a committee of the Board, acting in its sole discretion, as to the
number and price of Shares covered by this option in the event of changes in the
outstanding Common Stock of the Company by reason of stock dividends, stock
splits, reverse stock splits, reclassifications of stock, recapitalizations,
reorganizations, mergers, consolidations, combinations, exchanges, acquisitions,
dispositions, spin-offs, spin-outs, split-ups, splitoffs, other distributions of
assets to shareholders, or assumptions and conversions of outstanding options,
grants, awards, or similar rights or obligations of other business enterprises
resulting from an acquisition on the part of the Company.
10. Employment Rights. Neither this Agreement, any term or provision of
this Agreement, the grant of this option, nor the exercise of this option shall
be deemed to confer upon Employee any right to continue in the employ of the
Company or any affiliate or interfere, in any manner, with the right of the
Company or an affiliate to terminate Employee's employment, whether with or
without cause, in its sole discretion.
11. Rights as Shareholder. Employee shall have no rights as a
shareholder of the Company with respect to any Shares subject to this option
until and unless a certificate or certificates representing such Shares are
issued to Employee pursuant to this Agreement. No adjustment shall be made for
dividends or other rights for which the record date is prior to the issuance of
such certificate or certificates.
12. Amendment and Modification. The terms and conditions set forth
herein may be amended by the written consent of the parties hereto.
13. Inurement. This Agreement shall be binding upon and shall inure
to the benefit of Employee and to the benefit of the Company, including
respective heirs, executors, administrators, successors and assigns.
14. Governing Law. This Agreement is governed by the internal laws of
the State of Louisiana, without regard to the conflicts of law provisions
thereof, in all respects, including matters of construction, validity and
performance.
15. Investment Intent; Status as Accredited Investor. Employee is
acquiring this option and the underlying Common Stock for his own account and
not with a view to a distribution of this option or the Common Stock issuable
upon the exercise of this option within the meaning of Section 2(11) of the
Securities Act of 1933, as amended (the "Securities Act"). Employee is an
"accredited investor" as defined in Regulation D under the Securities Act.
16. Additional Requirements. Employee acknowledges that the Common
Stock acquired pursuant to the exercise of this option may bear such legends as
the Company deems appropriate to comply with applicable Federal or state
securities laws. In connection therewith and prior to the issuance of such
Shares, Employee may be required, and hereby agrees, to deliver to the Company
such other documents as may be reasonably requested by the Company to ensure
compliance with applicable Federal or state securities laws.
17. Registration of Option. Employee agrees, for himself and his
successors, that this option may not be exercised at any time that the Company
does not have in effect a registration statement under the Securities Act
relating to this option and the exercise thereof. The Company shall prepare and
file a registration statement on Form S-8 under the Securities Act providing for
the registration of this option. The Company shall pay all of the legal,
accounting, printing, filing and other fees and expenses associated with such
registration. The Company shall not be required to file more than one
registration statement hereunder. The Company may withdraw such registration
statement upon the earlier to occur of (i) the Expiration Date, (ii) the
forfeiture or other termination of this option or (iii) the exercise in full of
this option.
18. Restricted Securities. The Common Stock to be acquired by Employee
upon the exercise of this option is a "restricted security" under Rule 144 of
the Securities Act. The Common Stock to be acquired by Employee upon the
exercise of this option has not been registered under the Securities Act and may
only be sold or disposed of pursuant to the filing of a registration statement
or in compliance with the terms of Rule 144 and shall bear a legend to that
effect. The Company has no obligation to file a registration statement with
respect to such Shares.
19. Interpretation and Administration. Employee agrees that the terms
and conditions of this Agreement shall be construed by the Board or a committee
of the Board, and that any determination of the Board or such committee shall be
conclusive and binding on all parties claiming an interest in this option.
20. Reservation of Shares. An aggregate of 250,000 shares of Common
Stock have been reserved for issuance hereunder, which shares shall consist
solely of the Company's treasury shares.
21. Definitions. For purposes of this Agreement, the following terms
shall have the meanings set forth below:
(a) "Fair Market Value" of a share as of a specified date means
the average of the high and low sale prices per share of
Common Stock reported on the New York Stock Exchange
Composite Tape on that date, or if no prices are so reported
on that date, on the last preceding date on which such
prices are so reported. If the Common Stock is not listed on
the New York Stock Exchange at the time a determination of
Fair Market Value is required to be made hereunder, its Fair
Market Value shall be deemed to be equal to the average
between the reported high and low or closing bid and asked
prices per share, as determined by the Board, or a committee
of the Board, of the Common Stock on the most recent date on
which the Common Stock was publicly traded. In the event
that shares of Common Stock are not publicly traded at the
time a determination of Fair Market Value is required to be
made hereunder, the determination of Fair Market Value shall
be made by the Board, or a committee of the Board, pursuant
to a reasonable method adopted by the Board or such
committee in good faith for such purpose.
(b) "Change of Control" shallmean (i) a person, including a
"group" as defined in Section 13(d)(3) of the Securities
Exchange Act of 1934 and the rules and regulations
promulgated thereunder, becomes the beneficial owner of
shares of the Company having 50% or more of the voting power
of the Company, (ii) the Company sells or disposes of all or
substantially all of its assets or substantially all of the
assets of Hibernia National Bank, or (iii) during any period
of two consecutive calendar years, the individuals who at
the beginning of such period constitute the Board of
Directors of the Company cease for any reason to constitute
at least a majority thereof, unless the election, or the
nomination for election, by the Company's shareholders of
each new director was approved by a vote of at least a
majority of the directors then still in office who were
directors at the beginning of the period.
22. No Fractional Shares. No fractional shares shall be issued
upon the exercise of all or any portion of this option.
23. Committee of the Board. Any determination, interpretation or
other action required or permitted to be taken by the Board hereunder may be
taken by a committee appointed by the Board.
24. Extinguishment of Obligation. By execution below, Employee
acknowledges that this option satisfies and extinguishes, in full, the Company's
obligations to Employee set forth in paragraph D of Appendix A to that certain
Contract Buyout and Separation Agreement by and among Employee, the Company and
Hibernia National Bank dated as of January __, 2001. Employee further
acknowledges that this option constitutes sufficient consideration for the
restrictive covenants and proscriptions set forth therein.
HIBERNIA CORPORATION
By:_________________
Its:________________
ACKNOWLEDGMENT AND AGREEMENT
I acknowledge that the option to acquire shares of Common Stock granted
to me hereunder shall be subject to the terms and conditions of this Agreement.
By execution of this Agreement, I further acknowledge that no member of the
Board or any committee of the Board shall be liable for any action or
determination taken in good faith with respect to the option grant hereunder or
the interpretation of terms and conditions of this Agreement.
_____________________________
Xxxxxxx X. Xxxxxx
Dated as of January __, 2001
Exhibit A
EXERCISE OF OPTION
Secretary
Hibernia Corporation
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
The undersigned Optionee under the 2001 Nonqualified Stock Option
Agreement dated January __, 2001 between Hibernia Corporation and Xxxxxxx X.
Xxxxxx (the "Agreement"), hereby irrevocably elects to exercise the Stock Option
granted in the Agreement to purchase _____________ shares of Class A Voting
Common stock of Hibernia Corporation, no par value ("Shares"), and herewith
makes payment of $_____________ in the form of _______________ [cash, Shares,
cash plus Shares (indicate amount of each)].
Dated:__________________
_______________________________
(Signature of Optionee)
Date Received by Hibernia Corporation: ______________________
Received by: ________________________________________________
[Note: Shares being delivered in payment of all or any part of the exercise
price must be represented by certificates registered in the name of the Optionee
and duly endorsed by the Optionee and by each and every other co-owner in whose
name the Shares may also be registered.]
Name*(PleasePrint):___________________________________________
Home Address:_________________________________________________
______________________________________________________________
SocialSecurity No.:___________________________________________
*As stock should be registered
CONTRACT BUYOUT AND SEPARATION AGREEMENT
APPENDIX D
Restricted Area
Xxxxx Xxxxxx
Ascension Parish
Assumption Parish
Avoyelles Parish
Bossier Parish
Caddo Parish
Calcasieu Xxxxxx
Xxxxxxx Parish
Claiborne Parish
De Soto Parish
East Baton Rouge Parish
East Xxxxxxx Xxxxxx
Iberia Parish
Xxxxxxxxx Xxxxxx
Xxxxxxxxx Xxxxx Parish
Lafayette Parish
Lafourche Parish
Xxxxxxxxxx Parish
Madison Parish
Xxxxxxxxx Parish
Orleans Parish
Ouachita Parish
Rapides Parish
St. Xxxxxxx Xxxxxx
St. Xxxxxxx Xxxxxx
St. Xxxx the Baptist Parish
St. Xxxx Xxxxxx
St. Tammany Parish
Tangipahoa Parish
Terrebonne Parish
Vermilion Parish
Washington Parish
Webster Parish
West Xxxxxxx Xxxxxx
