AMENDED AND RESTATED AGREEMENT
This Amended and Restated Agreement ("Agreement") is entered into as of
March 12, 2002, by Trustmark Corporation, a Mississippi corporation (the
"Company"), and Xxxxxx X. Host (the "Executive"). The Company and Executive have
entered into this Agreement with reference to the following facts:
A. The Company and Executive entered into that certain Agreement dated as of
the December 22, 1997 ("Original Agreement"); and
B. The Company and Executive desire to amend and restate in its entirety the
Original Agreement as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual premises and agreements
herein contained, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties, intending to be legally
bound, hereby agree as follows:
1. Definition of Terms. As used in this Agreement, the following terms shall
have the respective meanings indicated below:
A. "Base Salary" means the Executive's annual base salary as in effect at
any particular time.
B. "Cause" means that the Executive has (i) committed an act of personal
dishonesty, embezzlement or fraud; (ii) has misused alcohol or drugs;
(iii) failed to pay any obligation owed to the Company or any
affiliate; (iv) breached a fiduciary duty or deliberately disregarded
any rule of the Company or any affiliate; (v) has committed an act of
willful misconduct, or the intentional failure to perform stated
duties; (vi) has willfully violated any law, rule or regulation (other
than misdemeanors, traffic violations or similar offenses) or any
final cease-and-desist order; (vii) has disclosed without
authorization any Confidential Information of the Company or any
affiliate, or has engaged in any conduct constituting unfair
competition, or has induced any customer of the Company or any
affiliate to breach a contract with the Company or any affiliate.
C. "Change in Control" means any one of the following events: (1) the
acquisition by any person of ownership of, holding or power to vote
more than 20% of the Company's voting stock, (2) the acquisition by
any person of the ability to control the election of a majority of the
Company's board of directors, (3) the acquisition of a controlling
influence over the management or policies of the Company by any person
or by persons acting as a "group" (within the meaning of Section 13(d)
of the Securities Exchange Act of 1934 (Exchange Act), or (4) during
any period of two consecutive years, individuals (the "Continuing
Directors") who at the beginning of such period constitute the board
of directors (the "Existing Board") cease for any reason to constitute
at least two-thirds thereof, provided that any individual whose
election or nomination for election as a member of the Existing Board
was approved by a vote of at least two-thirds of the Continuing
Directors then in office shall be considered a Continuing Director.
Notwithstanding the foregoing, in the case of (1), (2) and (3) hereof,
ownership or control of the Company's voting stock by the only
subsidiary of the Company or any employee benefit plan sponsored by
the Company or any subsidiary shall not constitute a Change in
Control. For purposes of this subparagraph, the term "person" refers
to an individual or a corporation, partnership, trust, association,
joint venture, pool, syndicate, sole proprietorship, unincorporated
organization of any other form of entity not specifically listed
herein;
D. "Confidential Information" means all trade secrets, confidential
information (including but not limited to confidential information
with respect to marketing, product offerings or expansion plans) and
financial matters of the Company and its subsidiaries.
E. "Disability" means that the Executive becomes physically or mentally
disabled during the Executive's employment with the Company so that he
is unable to perform the services required of him for a period of 90
days.
F. "Employee Benefits" means all group life, hospitalization and
disability insurance plans, health programs, pension plans, similar
benefit plans or other so called "fringe benefit programs" of the
Company as are now existing or as may hereafter be revised or adopted
and offered to senior executives of the Company or its affiliates
generally.
G. "Good Reason" means (1) a demotion in the Executive's status, title or
position, or the assignment to the Executive of duties or
responsibilities which are materially inconsistent with such status,
title or position; (2) a material breach of this Agreement by the
Company, provided the Company has not remedied such breach within
thirty (30) days of receipt of written notice of such breach; or (3) a
relocation of the executive offices of the Company to a location more
than 50 miles outside of Jackson, Mississippi without the Executive's
written consent given to the Company within thirty (30) days of the
Executive's receipt of notification of such relocation by the Company.
H. "Retirement" means the last business day of the calendar year in which
the Executive reaches age 65.
2. Change in Control. If at any time during the Executive's employment the
Company experiences a Change in Control and within two (2) years after the
date the Change in Control occurs (i) the Executive's employment is
terminated other than for Cause, death, Disability or Retirement or (ii)
the Executive resigns for Good Reason, the Company shall pay to the
Executive in a lump sum in cash within thirty (30) days after the effective
date of termination the aggregate of the following amounts:
A. The sum of (1) the Executive's Base Salary and accrued vacation
benefits through the date of termination to the extent not theretofore
paid and (2) the additional sum of (i) Executive's Base Salary
immediately prior to the Change in Control and (ii) the highest annual
bonus amount earned in either of the two (2) years preceding the year
of the Change in Control.
B. The Company shall continue to provide to the Executive the Employee
Benefits for one year following the effective date of termination,
reduced by any employment benefits received from later employment; and
C. Any stock options granted Executive by the Company which have not
vested shall vest in the Executive in full as of the Change in
Control. Any such stock options which were intended by the parties to
be incentive stock options but which exceed the "$100,000 first
exercisable rule" shall be converted into non-qualified stock options.
3. Confidentiality, Nonsolicitation and Noncompete.
3.1 Confidentiality. The Executive covenants and agrees that all trade secrets,
confidential information (including but not limited to confidential
information with respect to marketing, product offerings or expansion
plans), and financial matters of the Company and its subsidiaries
(collectively "Confidential Information") which are learned by him in the
course of his employment by the Company shall be held in a fiduciary
capacity and treated as confidential by him and shall not be disclosed,
communicated or divulged by him or used by him for the benefit of any
person or entity (other than the Company, its subsidiaries or affiliates)
unless expressly authorized in writing by the Board, or unless the
Confidential Information becomes generally available to the public
otherwise than through disclosure by the Executive.
3.2 Nonsolicitation. The Executive agrees that (1) during the period he is
employed with the Company and for a period of twelve (12) months after
termination of employment, he will not, without the prior written consent
of the Board, directly or indirectly solicit, entice, persuade, or induce
any employee, director, officer, associate, consultant, agent or
independent contractor of the Company or its subsidiaries (i) to terminate
such person's employment or engagement by the Company or its subsidiaries
or (ii) to become employed by any person, firm, partnership, corporation,
or other such enterprise other than the Company, its subsidiaries or
affiliates, and (2) he shall not following the termination of his
employment hereunder represent that he is any way connected with the
business of the Company or its subsidiaries (except to the extent agreed to
in writing by the Company).
3.3 Noncompete. The Executive agrees that during the period he is employed with
the Company and, for a period of twelve (12) months following the date of
termination of his employment for any reason except Retirement, he will not
(except as a representative of the Company or with the prior written
consent of the Board), directly or indirectly, engage, participate or make
any financial investment, as an employee, director, officer, associate,
consultant, agent, independent contractor, lender or investor, in the
business of any person, firm, partnership, corporation or other enterprise
that is engaged in direct competition with the business of the Company in
any geographic area in which the Company is then conducting such business.
Nothing in this Section 3.3 shall be construed to preclude the Executive
from making any investments in the securities of any business enterprise
whether or not engaged in competition with the Company, to the extent that
such securities are actively traded on a national securities exchange or in
the over-the-counter market in the United States or on any foreign
securities exchange and represent less than one-percent (1%) of any class
of securities of such business enterprise. Executive acknowledges that if
his employment with the Company terminates for any reason, he can earn a
livelihood without violating the foregoing restrictions and that the time
period and scope of the foregoing restrictions are reasonably required for
the protection of the Company's valid business interests.
3.4. Covenant Payments. In consideration for the covenants contained in Section
3, which are considered material to the Company, the Company agrees to pay
Executive all amounts owed pursuant to this Agreement, and upon Executive's
termination without Cause or Executive resigns for Good Reason, to pay
Executive an amount (the "Covenant Payments") equal to the sum of (i) the
Executive's Base Salary and (ii) the highest annual bonus earned in any one
of the three years preceding the termination. The Covenant Payments shall
be paid in twelve equal monthly installments commencing as soon as
practicable (but in no event later than thirty days) following the
Executive's date of termination. In the event of the Executive's death
following such date of termination, any unpaid installments shall be paid
to the Executive's estate in a single undiscounted cash lump sum. Such lump
sum shall be paid no later than thirty days after the Company has been
notified of the Executive's death. Notwithstanding anything herein to the
contrary, if the Executive is terminated for Cause or the Executive
voluntarily resigns other than for Good Reason or has a Disability, the
Executive will remain subject to the covenants contained in Section 3 but
will not be entitled to the Covenant Payments.
3.5 Remedies. The Company would be damaged irreparably if any provision of
Section 3 was not performed by the Executive in accordance with its terms
or was otherwise breached and that money damages would be an inadequate
remedy for any such nonperformance or breach. Therefore, the Company or its
successors or assigns shall be entitled, in addition to any other rights
and remedies existing in their favor, including the right to retain the
Covenant Payments, to an injunction or injunctions to prevent any breach or
threatened breach of any such provisions and to enforce such provisions
specifically (without posting a bond or other security). Executive agrees
that Company or its successors or assigns may retain the Covenant Payments
as partially liquidated damages for such breach and not as a penalty. The
Executive would be damaged irreparably if any provision of Section 3 was
not performed by the Company in accordance with its terms or was otherwise
breached and that money damages would be an inadequate remedy for any such
nonperformance or breach. Therefore, the Executive shall be entitled, in
addition to any other rights and remedies existing in his favor, to an
injunction or injunctions to prevent any breach or threatened breach of any
such provisions and to enforce such provisions specifically (without
posting a bond or other security).
4. Release. The payments and benefits to which the Executive is entitled
pursuant to Sections 2 and 3 are contingent upon the Executive executing a
release agreement in a form reasonably acceptable to the Company.
5. Excise Tax Limitation.
A. Notwithstanding anything contained in this Agreement (or in any other
agreement between the Executive and the Company) to the contrary, to
the extent that any payments and benefits provided under this
Agreement or payments or benefits provided to, or for the benefit of,
the Executive under any plan or agreement of the Company (such
payments or benefits are collectively referred to as the "Payments")
would be subject to the excise tax (the "Excise Tax") imposed under
Section 4999 of the Internal Revenue Code of 1986, as amended (the
"Code"), the Payments shall be reduced if and to the extent that a
reduction in the Payments would result in the Executive retaining a
larger amount, on an after-tax basis (taking into account federal,
state and local income taxes and the Excise Tax), than he would have
retained had he been entitled to receive all of the Payments (such
reduced amount is hereinafter referred to as the "Limited Payment
Amount"). Unless the Executive shall have given prior written notice
to the Company specifying a different order to effectuate the
reduction, the Company shall reduce the Payments by first reducing or
eliminating those payments or benefits which are not payable in cash
and then by reducing or eliminating cash payments, in each case in
reverse order beginning with payments or benefits which are to be paid
the farthest in time from the date the "Determination" (as hereinafter
defined) is delivered to the Company and the Executive. Any notice
given by the Executive pursuant to the preceding sentence shall take
precedence over the provisions of any other plan, arrangement or
agreement governing the Executive's rights and entitlements to any
benefits or compensation.
B. The determination as to whether the Payments shall be reduced to the
Limited Payment Amount and the amount of such Limited Payment Amount
(the "Determination") shall be made at the Company's expense by an
accounting firm selected by the Company and reasonably acceptable to
the Executive which is designated as one of the five (5) largest
accounting firms in the United States (the "Accounting Firm"). The
Accounting Firm shall provide the Determination in writing, together
with detailed supporting calculations and documentation, to the
Company and the Executive on or prior to the date of termination of
the Executive's employment if applicable, or at such other time as
requested by the Company or by the Executive. Within ten (10) days of
the delivery of the Determination to the Executive, the Executive
shall have the right to dispute the Determination (the "Dispute") in
writing setting forth the precise basis of the dispute. If there is no
Dispute, the Determination shall be binding, final and conclusive upon
the Company and the Executive.
C. Any Excise Tax payable hereunder shall be paid by the Executive.
6. Non-Assignment. This Agreement and all of the Executive's rights and
obligations hereunder are personal to the Executive and shall not be
assignable; provided, however, that upon his death all of the Executive's
rights to cash payments under this Agreement shall inure to the benefit of
his widow, personal representative, designees or other legal
representatives, as the case may be. Any person, firm or corporation
succeeding to the business of the Company by merger, purchase,
consolidation or otherwise shall assume by contract or operation of law the
obligations of the Company hereunder, provided, however, that the Company
shall, notwithstanding such assumption, remain liable and responsible for
the fulfillment of its obligations under this Agreement.
7. Severability. Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal
or unenforceable in any respect under any applicable law or rule in any
jurisdiction such invalidity, legality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
8. Notices. Any notice or other communication required or permitted hereunder
shall be in writing and shall be delivered personally, telegraphed,
telexed, sent by facsimile transmission or sent by certified, registered or
express mail, postage prepaid. Any such notice shall be deemed given when
so delivered personally, telegraphed, telexed or sent by facsimile
transmission, or if mailed, five days after the date of deposit in the
United States mail, as follows:
(i) if to the Company, to:
Trustmark Corporation
000 Xxxx Xxxxxxx Xxxxxx
Post Xxxxxx Xxx 000
Xxxxxxx, XX 00000
Attention: Chief Executive Officer
(ii) if to the Executive, to:
Xxxxxx X. Host
000 Xxxxxx Xxx
Xxxxxxx, XX 00000
Any party may change its address for notice hereunder by notice to the
other parties hereto.
9. Entire Agreement. This Agreement amends and restates the Original
Agreement. This Agreement contains the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior
representations, warranties and agreements, written or oral with respect
thereto between the Company and the Executive.
10. Waivers and Agreements. This Agreement may be amended, modified,
superseded, canceled, renewed or extended, and the terms and conditions
hereof may be waived, only by written instrument signed by the parties or,
in the case of a waiver, by the party waiving compliance. No delay on the
part of any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any waiver on the part of any
party of any right, power or privilege hereunder, nor any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege hereunder.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Mississippi, without regard to its
principle of conflicts of law.
12. Headings. The headings in this Agreement are for reference purposes only
and shall not in any way affect the meaning or interpretation of this
Agreement.
13. Board Approval. This Agreement has been authorized by action of the Board
of Directors of the Company on March 12, 2002, as is referenced in the
minutes of their meeting on that day.
IN WITNESS WHEREOF, the parties have executed this agreement as of the date
first above written.
TRUSTMARK CORPORATION EXECUTIVE
By: /s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxx X. Host
---------------------- ------------------
Xxxxxxx X. Xxxxxxx Xxxxxx X. Host
Chief Executive Officer
