EXHIBIT 10(6)(B)
CHANGE OF CONTROL AGREEMENT
This AGREEMENT is entered into by and between CNB BANCSHARES, INC., an
Indiana corporation ("Company"), and XXXXXX XXXXXXX ("Executive").
BACKGROUND
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A. Executive is an officer and key management employee of Company.
B. Company's Board of Directors ("Board") has determined that it is in
the best interests of Company and its shareholders to assure Executive's
continued dedication and undivided time, attention, and loyalty, notwithstanding
the possibility, threat, or occurrence of a Change of Control (as defined in
Section 2 below).
C. In furtherance of that goal, the Board wishes to provide Executive
with certain benefits, if his employment should terminate as a result of a
Change of Control.
D. In reliance on this Agreement, Executive is willing to continue his
employment with Company on the terms agreed to by Executive and Company from
time to time.
In consideration of the premises, Company and Executive agree as
follows:
AGREEMENT
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1. DURATION OF AGREEMENT. This Agreement shall be effective January 12,
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1998 ("Effective Date"), and shall continue until the end of the Term (as
defined in Section 2).
2. DEFINITIONS. The following words and phrases, when capitalized, shall
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have the following meanings for purposes of this Agreement:
(a) AFFILIATE. "Affiliate" means an employer required to be
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aggregated with Company pursuant to Section 414 (b) or (c) of the Internal
Revenue Code.
(b) ANNIVERSARY DATE. "Anniversary Date" means each anniversary of
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the Effective Date occurring during the Term.
(c) CAUSE. "Cause" means and shall be limited to the following:
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(1) Executive's willful and continued failure to perform (other than a
failure resulting from Executive's illness or disability) his employment duties
after a demand for substantial performance is delivered to Executive on behalf
of the Board that specifically identifies the manner in which it alleges that
Executive has failed to perform his duties and Executive's failure to take
appropriate actions to correct such failure within thirty (30) days; or
(2) Executive's willful engaging in misconduct that has caused
demonstrable and material injury, monetary or otherwise, to Company or an
Affiliate.
For purposes of this Subsection (c), no act or failure to act on
Executive's part shall be considered "willful" unless done, or omitted to be
done, by Executive not in good faith and without reasonable belief that his
action or omission was in the best interests of Company. Notwithstanding the
foregoing, Executive shall not be deemed to have been terminated for Cause
unless and until the Board has delivered to him a copy of a notice of
termination, and after reasonable notice to him and an opportunity for him,
together with counsel, to be heard before the Board, at least two-thirds of the
Board finds, in its reasonable opinion, that Executive was guilty of conduct set
forth above in clause (1) or (2) and specifying the particulars thereof in
detail.
(d) CHANGE OF CONTROL. "Change of Control" shall be deemed to have
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occurred upon the happening of any one or more of the following:
(1) any person, as that term is used in Section 13(d)(3) and
14(d)(2) of the Securities Exchange Act of 1934, as amended from time to time,
becomes a beneficial owner, directly or indirectly, of securities of Company
representing twenty percent (20%) or more of the combined voting power of
Company's then outstanding securities;
(2) less than fifty-one percent (51%) of the members of the Board
are Incumbent Directors;
(3) any corporation or group of associated persons acting in
concert, owns more than twenty-five percent (25%) of the outstanding shares of
voting stock of Company
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coupled with or followed by the exercise of the voting power of such shares by
the election of two (2) or more directors of Company in any one election at the
instance of such corporation or group;
(4) Company becomes a party to an agreement of merger,
consolidation, or other reorganization pursuant to which Company will be a
constituent corporation, and either (A) Company is not the surviving or
resulting corporation, or (B) the transaction will result in less than eighty
percent (80%) of the outstanding voting securities of the surviving or resulting
entity being owned by the former shareholders of Company;
(5) Company becomes a party to an agreement providing for
Company's sale or other disposition of all or substantially all of its assets to
any individual, partnership, joint venture, association, trust, corporation, or
other entity or person which is not an Affiliate; or
(6) the occurrence of another event that the Board designates a
Change of Control.
(e) CHANGE OF CONTROL DATE. "Change of Control Date" means the date
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as of which a Change of Control occurs.
(f) CHANGE PERIOD. "Change Period" means the period beginning six
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months before the Change of Control Date and continuing for the number of months
specified in Appendix A after the Change of Control Date. Notwithstanding the
preceding sentence, if a Change of Control described in Paragraph (d)(4) or
(d)(5) occurs, the Change Period shall begin when Company becomes a party to a
legally binding agreement described in paragraph (d)(4) or (d)(5) but shall not
end until the number of months specified in Appendix A after the effective date
of the Change of Control transaction described in Paragraph (4) or (5).
(g) CONFIDENTIAL INFORMATION. "Confidential Information" means any
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information not in the public domain and not previously disclosed to the public
by the Board or management of the Company or an Affiliate with respect to the
products, facilities, and methods;
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trade secrets and other intellectual property; systems, procedures, manuals,
confidential reports, customer lists, financial information, business plans,
prospects, or opportunities of the Company or an Affiliate; or any information
which the Company or an Affiliate has designated as Confidential Information.
(h) DISABILITY. "Disability" means Executive's inability to perform
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the material duties of his employment because of physical or mental illness,
which inability is likely to last for a period of one year or longer.
(i) EFFECTIVE DATE. "Effective Date" means the effective date of this
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Agreement, as specified in Section 1.
(j) FULL INCENTIVE COMPENSATION. "Full Incentive Compensation" means
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incentive compensation for a calendar year (including incentive compensation in
the amount of zero), provided that such compensation is not reduced because
Executive was employed by the Company for less than the entire calendar year.
(k) GOOD REASON. "Good Reason" means, (i) with respect to a Change of
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Control described in Section 2(d)(4) in which Company is the surviving or
resulting corporation, and which results in less than eighty percent (80%) but
more than fifty percent (50%) of the outstanding voting securities of the
resulting or surviving corporation being owned by former shareholders of the
Company, a material change in position, title, compensation, status,
responsibilities, or working conditions in effect immediately before the Change
of Control or relocation of the Executive's place of employment to a location
more than fifty (50) miles from the Executive's place of employment immediately
before the Change of Control, and (ii) with respect to any Change of Control not
described in Clause (i), Executive's determination, in his sole judgment, that
the duties of his employment, compensation therefor, or the benefits or status
associated therewith have been reduced during the Change Period or that he is
unable to continue to perform the duties of his employment effectively because
of circumstances that changed during the Change Period directly or indirectly as
a result of the Change of Control.
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(l) INCUMBENT DIRECTOR. "Incumbent Director" means a director serving
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on the Board who (i) was a director on the Effective Date or (ii) was later
elected as a director (except a director whose initial assumption of office was
in connection with an actual or threatened election contest, including but not
limited to a consent solicitation, relating to the election of directors) and
whose appointment, election, or nomination for election was approved or
recommended by a vote of at least two-thirds of the directors then still in
office who either were directors on the Effective Date hereof or whose
appointment, election, or nomination for election was previously so approved or
recommended.
(m) PAYMENT PERIOD. "Payment Period" means the period beginning on
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the later of the Change of Control Date or the date of Executive's termination
of employment during the Change Period and continuing for the number of months
specified in Appendix A; provided, however, if Executive's employment terminates
after a Change of Control (or, in the case of a transaction described in
Paragraph 2(d)(4) or 2(d)(5), the later effective date of such transaction), the
number of months in the Payment Period shall be reduced by one for each full
calendar month before the effective date of Executive's termination of
employment occurring after the most recent Change of Control Date (or, in the
case of a transaction described in Paragraph 2(d)(3) or (4), the later effective
date of such transaction) before such termination date.
(n) TERM. "Term" means the period beginning on the Effective Date and
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ending on the second anniversary of the Effective Date, as extended pursuant to
the provisions of this Subsection. The period referred to in the preceding
sentence shall automatically be extended for one additional year on each
Anniversary Date, unless the Company has notified the Executive not fewer than
thirty (30) days before that Anniversary Date that the Term will not
automatically be extended further. Notwithstanding any provision of this
Agreement, if one or more Changes of Control occur during the Term (as
determined pursuant to the preceding provisions of this Subsection or as
extended pursuant to this sentence to reflect a prior Change of Control), the
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Term shall not end before the end of the Payment Period with respect to the
latest Change of Control occurring during the Term.
(o) TERMINATION COMPENSATION. "Termination Compensation" has the
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meaning specified in Paragraph 3(a)(1).
3. TERMINATION OF EXECUTIVE'S EMPLOYMENT DURING CHANGE PERIOD.
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(a) If Executive terminates his employment for Good Reason during the
Change Period, or if Company terminates Executive's employment during the Change
Period for a reason other than Cause or Executive's death or Disability,
Executive shall be entitled to the following benefits:
(1) An amount equal to Executive's Termination Compensation multiplied
by the number of months in the Payment Period. Executive's Termination
Compensation shall be equal to the sum of (i) his highest rate of base monthly
salary (unreduced by any elective salary deferrals or redirections) during the
twelve (12) month period immediately preceding his termination of employment
plus (ii) one-twelfth of his average annual incentive compensation with respect
to the shortest of (A) the three calendar years immediately preceding the
Payment Period, provided Executive received Full Incentive Compensation for all
such years, (B) the calendar years immediately preceding the Payment Period with
respect to which Executive received Full Incentive Compensation, or (C) the
total period of Executive's employment by Company. This amount shall be paid to
Executive in a lump sum between sixty (60) and ninety (90) days after the later
of (A) his termination of employment or (B) the Change of Control Date.
Executive may, in his discretion, elect to reduce the amount payable to him
pursuant to this Paragraph 3 to the extent necessary to avoid excise taxes in
Code Section 4999 of the Internal Revenue Code.
(2) Throughout the Payment Period, Company shall provide to Executive
and his family medical, life insurance, and other welfare benefits substantially
similar to those provided to active executive employees of the Company, provided
Executive pays any premiums
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charged by Company to active executive employees receiving similar coverage.
Beginning at the end of the Payment Period, Company shall provide medical
coverage to Executive and his family that is substantially similar to the
coverage provided to active employees of the Company, provided that Executive
pays Company the same premium as he would have been required to pay if such
coverage had been provided pursuant to the Consolidated Omnibus Budget
Reconciliation Act of 1985. Executive may elect to purchase single coverage or
family coverage pursuant to the preceding sentence. Subject to Executive's
payment of the required premiums, post-Payment Period medical coverage for
Executive and his spouse shall continue until the earliest of the following
events: (i) the Executive's (or in the case of coverage for the Executive's
spouse, his spouse's) Medicare eligibility, (ii) the Executive's (or in the case
of coverage for the Executive's spouse, his spouse's) death, or (iii) medical
coverage for the Executive (or in the case of coverage for the Executive's
spouse, his spouse) through another employer.
(b) The payment or provision of benefits to Executive pursuant to this
Agreement shall not affect the obligations of Company or its successor under any
plan, agreement, or arrangement generally applicable to Company's retired
management employees pursuant to which Executive is entitled to any retirement
benefits, welfare benefits, stock, or other fringe benefits.
4. NON-COMPETITION. Executive shall not, while employed or during the
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Payment Period, become an officer, director, or employee of, consultant to, or
majority shareholder in any bank or bank holding company that substantially
competes with Company, its subsidiaries, or Affiliates, or its successor or
successors within one hundred (100) miles from Evansville, Indiana, or fifty
(50) miles from the nearest banking office of Company or a subsidiary thereof.
5. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. Executive acknowledges
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that, by virtue of his employment, he has obtained or will obtain Confidential
Information, the use or disclosure of which could cause Company immeasurable and
substantial loss and damages for which no remedy at law would be adequate.
Accordingly, Executive covenants and agrees with
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Company that, except as necessary to perform his obligations to Company or with
the prior written consent of Company's Board, he will not at any time directly
or indirectly disclose any Confidential Information that he may acquire or has
acquired by reason of his association with Company. Without limiting the rights
or remedies, both legal and equitable, available to Company in the event of an
actual or threatened breach of Executive's obligations under this Section,
Company shall be entitled to seek and obtain a temporary restraining order
and/or a preliminary or permanent injunction against Executive, which shall
prevent Executive from engaging in any activities prohibited by this Section, or
to seek and obtain such other relief against Executive as may be required to
enforce Executive's obligations hereunder. Executive's obligations set forth in
this Section and Company's rights and remedies, whether legal or equitable, with
respect thereto, shall extend indefinitely.
6. EXPENSES. If Executive determines, in his absolute judgment, that it
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is necessary or advisable for him to incur reasonable legal and/or accounting
expenses, including but not limited to reasonable attorneys' and/or accountants'
fees, to obtain full and effective enforcement of his rights under this
Agreement or to determine the appropriate tax treatment of amounts paid pursuant
to this Agreement, Company shall reimburse Executive for all such reasonable
expenses and costs on a periodic basis. Company's obligation to reimburse
Executive for these reasonable expenses or costs pursuant to this Section shall
survive expiration of the Term and shall survive the termination of any later
employment agreements between Executive and Company. Any reimbursement required
by this Section shall be paid promptly to Executive after he submits a copy of
the service provider's invoice for the covered expense.
7. COMPANY'S OBLIGATION TO PROVIDE INFORMATION. After termination of
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Executive's employment, Company shall promptly provide Executive with reasonably
requested information relating to his retirement, benefits and payments under
this Agreement, and other post-employment benefits.
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8. BINDING EFFECT AND ASSIGNMENT. This Agreement shall inure to the
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benefit of and shall be binding upon the parties to this Agreement and their
respective executors, administrators, heirs, personal representatives,
successors, and assigns, but neither this Agreement nor any right created by
this Agreement may be assigned or transferred by either party. Notwithstanding
the foregoing, the Company shall assign this Agreement to any person or entity
succeeding to substantially all of the business and assets of the Company upon a
Change in Control, and upon such a Change in Control, the Company shall obtain
the assumption of this Agreement by its successor.
9. NOTICES. Any notice to a party required or permitted to be given by
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this Agreement shall be in writing and shall be deemed given when mailed by
registered or certified mail to the party at the party's address as specified in
this Section:
If to the Company, to: CNB Bancshares, Inc.
Attention: Corporate Secretary
00 X.X. Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
or such other address designated by Company in writing to Executive as provided
in this Section.
If to Executive, to: Xxxxxx Xxxxxxx
00 X. Xxxxxxxxxx Xx
Xxxxxxxxxx, XX 00000
or such other address designated by the Executive in writing to the Company as
provided in this Section.
10. SEVERABILITY. If any term, provision, covenant, or restriction of
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this Agreement is held by a court of competent jurisdiction to be invalid, void,
or unenforceable, the remainder of the terms, provisions, covenants, and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired, or invalidated.
11. AMENDMENTS. This Agreement may not be modified, amended, altered, or
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supplemented except upon the execution and delivery of a written agreement
executed by Company and Executive.
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12. GOVERNING LAW. This Agreement shall be construed in accordance with
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the laws of the State of Indiana.
13. ARBITRATION. Any dispute, claim, or controversy concerning the terms,
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meaning, application, or enforcement of any provision of this Agreement that
cannot be resolved through direct discussion or mediation shall be submitted to
final and binding arbitration before a neutral arbitrator pursuant to the
arbitration procedures set out in this Section ("Procedures") under the auspices
of the American Arbitration Association (AAA) at Evansville, Indiana. The AAA
Employment Dispute Resolution Rules in effect at the time of the arbitration
shall govern arbitration proceedings, except insofar as these Procedures, as
they may be amended from time to time, specifically provide otherwise.
Executive may initiate a claim or case only by a written notice to Company as
provided in this Agreement. Company may likewise initiate a claim or case by a
written notice delivered to Executive, as provided in this Agreement. The
written notice must set forth the matter in dispute in sufficient detail to
advise the non-initiating party of the nature and amount of the dispute or
claim, the date(s) of the underlying occurrence(s), and the relief requested.
It shall also be the initiating party's responsibility to submit the claim and
other required documents and fees to AAA in a timely manner; provided, however,
if Executive is fully or partially successful, Company shall reimburse Executive
for arbitration fees reasonably incurred. In conducting arbitration
proceedings, the AAA-appointed arbitrator shall be authorized to award any
relief available under the laws of the United States or the State of Indiana
applicable to the claim, dispute, or controversy submitted, where such relief is
warranted based on the evidence and the law. Any arbitration award shall be
final and binding, and enforceable by an action in any court of competent
jurisdiction. No award shall be set aside, or denied enforcement, by any court
in any action unless the court finds that the arbitrator purported to resolve
claims, disputes, or controversies not within the scope of these Procedures.
Adherence to these Procedures, and the agreement of the parties to this
Agreement to follow them, shall be enforceable in an action to compel or stay
arbitration pursuant to the Federal Arbitration Act or the Indiana Uniform
Arbitration Act in a court of competent jurisdiction.
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14. INTEGRATION. This Agreement supersedes all prior agreements between
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the parties with respect to the matters covered herein.
15. COUNTERPARTS. This Agreement may be signed in two counterparts, each
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of which shall be deemed to be an original but which together shall constitute
one and the same instrument.
16. EFFECT OF HEADINGS. The section headings in this Agreement are for
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convenience only and shall not affect the construction of this Agreement.
IN WITNESS WHEREOF, CNB Bancshares, Inc. has caused this Agreement to be
executed on this 12th day of January, 1998, and Executive has executed this
Agreement on the date specified below.
ATTEST: CNB BANCSHARES, INC.
/s/ Xxxx X. Xxxxxxxxxx By /s/ Xxxxx X. Xxxxxxxx
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(Signature)
January 12, 1998
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(Date)
EXECUTIVE
/s/ Xxxxxx Xxxxxxx
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(Signature)
January 12, 1998
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(Date)
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APPENDIX A
The Payment Period shall consist of 36 months.
ATTEST: CNB BANCSHARES, INC.
/s/ Xxxx X. Xxxxxxxxxx By /s/ Xxxxx X. Xxxxxxxx
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(Signature)
January 12, 1998
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(Date)
EXECUTIVE
/s/ Xxxxxx Xxxxxxx
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(Signature)
January 12, 1998
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(Date)
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