Exhibit 10.2
NBC CAPITAL CORPORATION
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into by and between
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ("Executive"), and NBC Capital Corporation, a
corporation organized and existing under the laws of the State of
Mississippi (the "Company"), and is intended to amend and restate, in its
entirety, that certain Employment Agreement between National Bank of
Commerce and Executive, initially effective as of January 2, 2001.
1. EMPLOYMENT AND TERM
1.1 Position. The Company shall employ and retain Executive as its
Chief Operating Officer or in such other capacity or capacities as shall be
mutually agreed upon, from time to time, by Executive and the Company, and
Executive agrees to be so employed, subject to the terms and conditions set
forth herein. Executive's duties and responsibilities shall be those
assigned to him hereunder, from time to time, by the Chief Executive Officer
of the Company and shall include such duties as are the type and nature
normally assigned to similar executive officers of a corporation of the size,
type and stature of the Company. Executive shall report to the Chief
Executive Officer.
1.2 Concurrent Employment. During the term of this Agreement,
Executive and the Company acknowledge that Executive may be concurrently
employed by the Company and one or more subsidiaries or other entities with
respect to which the Company owns (within the meaning of Section 425(f) of
the Internal Revenue Code of 1986, as amended (the "Code")) 50% or more of
the total combined voting power of all classes of stock or other equity
interests (an "Affiliate"), and that all of the terms and conditions of this
Agreement shall apply to such concurrent employment. Reference to the
Company hereunder shall be deemed to include any such concurrent employers.
1.3 Full Time and Attention. During the term of this Agreement and
any extensions or renewals thereof, Executive shall devote his full time,
attention and energies to the business of the Company and will not, without
the prior written consent of the Chief Executive Officer, be engaged (whether
or not during normal business hours) in any other business or professional
activity, whether or not such activities are pursued for gain, profit or other
pecuniary
advantage.
Notwithstanding the foregoing, Executive shall not be prevented
from (a) engaging in any civic or charitable activity for which
Executive receives no compensation or other pecuniary advantage,
(b) investing his personal assets in businesses which do not
compete with the Company, provided that such investment will not
require any services on the part of Executive in the operation of
the affairs of the businesses in which investments are made and
provided that Executive's participation in such businesses is
solely that of an investor, or (c) purchasing securities in any
corporation whose securities are regularly traded, provided that
such purchases will not result in Executive owning beneficially
at any time 5% or more of the equity securities of any
corporation engaged in a business competitive with that of the
Company.
1.4 Term. Executive's employment under this Agreement shall commence
as of June 1, 2003 (the "Effective Date"), and shall terminate on May 31, 2006
(such date or the last day of employment specified in any renewal or amendment
hereof referred to herein as the "Termination Date") (the period commencing as
of the Effective Date and ending as of the Termination Date referred to herein
as the "Employment Term").
Commencing on the second anniversary of the Effective Date and each
anniversary thereafter, Executive's Employment Term shall automatically be
extended for an additional one-year period; provided, however, that either
party may provide written notice to the other that the Employment Term will
not be further extended, such notice to be provided not later than 30 days
prior to the end of the then-current Employment Term.
2. COMPENSATION AND BENEFITS
2.1 Base Compensation. The Company shall pay Executive an annual
salary equal to his annual base salary in effect as of the Effective Date,
such amount shall be prorated and paid in equal installments in accordance
with the Company's regular payroll practices and policies and shall be
subject to applicable withholding for employment and income taxes
(Executive's "Base Compensation"). Executive's Base Compensation shall be
reviewed no less often than annually and may be increased or reduced by the
Board of Directors of the Company (the "Board"), in its sole discretion;
provided, however, that Executive's Base Compensation may not be reduced
during or as the result of a Change in Control unless agreed to by Executive
and the Company or due to lack of performance by Executive.
2.2 Annual Incentive Bonus. In addition to the foregoing, Executive
shall be eligible for participation in the Annual Incentive Compensation Plan
or similar bonus arrangement maintained by the Company or an Affiliate or such
other bonus or incentive plans which the Company or its Affiliates may adopt,
from time to time, for similarly situated executives (an "Incentive Bonus").
2.3 Long-Term Incentives. In addition to the foregoing, Executive
shall be eligible for participation in the 2001 Long-Term Incentive
Compensation Plan maintained by the Company and such other long-term incentive
plans which the Company or its Affiliates may adopt, from time to time, for
similarly situated executives (a "Long-Term Incentive").
2.4 Supplemental Retirement Benefit. In addition to the foregoing,
Executive shall be eligible to participate in the Revenue Neutral
Supplemental Retirement Plan maintained by the Company or such other
supplemental retirement benefit plans which the Company or its Affiliates may
adopt, from time to time, for similarly situated executives (the "Supplemental
Plan").
2.5 Other Benefits. During the term of this Agreement and in
addition to the amounts otherwise provided herein, Executive shall participate
in such plans, policies, and programs as may be maintained, from time to time,
by the Company or its Affiliates for the benefit of senior executives or
employees, including, without limitation, profit sharing, life insurance, and
group medical and other welfare benefit plans. Any such benefits shall be
determined in accordance with the specific terms and conditions of the
documents evidencing any such plans, policies, and programs.
2.6 Reimbursement of Expenses. The Company shall reimburse Executive
for such reasonable and necessary expenses as are incurred in carrying out his
duties hereunder, consistent with the Company's standard policies and annual
budget. The Company's obligation to reimburse Executive hereunder shall be
contingent upon the presentment by Executive of an itemized accounting of such
expenditures.
3. TERMINATION
3.1 Termination Payments to Executive. As set forth more fully in
this Section 3 and except as provided in Section 3.3 hereof, Executive shall
be entitled to one or more of the payments described below:
a. Executive's Base Compensation accrued but not yet paid as of the
date of his termination.
b. Executive's Incentive Bonus payable (or that would be payable if
Executive continued employment) with respect to the year of his
termination, prorated to reflect Executive's actual period of
service during such year.
c. Executive's Base Compensation payable until the Termination Date
(determined without regard to the automatic renewal provisions of
Section 1.4 hereof), but not less than 100% of such annual Base
Compensation.
Except as expressly provided in this Section 3, Executive shall also be
entitled to such compensation and benefits as may be provided under the terms
of a separate plan or agreement maintained by the Company (or its Affiliates),
to the extent not duplicative of the benefits provided herein.
3.2 Termination for Death or Disability. If Executive dies or becomes
disabled during the Employment Term, this Agreement and Executive's employment
hereunder shall immediately terminate and the Company's obligations hereunder
shall automatically cease. In such event, the Company shall pay to Executive
(or his estate) the amounts described in Sections 3.1a and 3.1b hereof.
Payment shall be made in the form of one or more single-sums as soon as
practicable after Executive's death or disability or as and when such amounts
are ascertainable.
For purposes of this Section 3.2, Executive shall be deemed "disabled"
if he is actually receiving benefits under the Company's (or an Affiliate's)
separate long-term disability plan and his illness or injury is expected to be
of a permanent or indefinite duration. The Board shall determine whether
Executive is disabled hereunder.
3.3 Company's Termination for Cause. This Agreement and Executive's
employment hereunder may be terminated by the Company on account of Cause. In
such event, the Company shall pay to Executive the amount described in Section
3.1a hereof. Payment shall be made in the form of a single-sum not later than
ten days after such termination. Notwithstanding any provision of this
Agreement or any other plan, policy or agreement evidencing any other
compensation arrangement or benefit payable to Executive, no additional amount
shall be paid to Executive, except as may be required by law.
For purposes of this Agreement, "Cause" means that Executive has:
a. Committed an intentional act of fraud, embezzlement or theft in
the course of his employment or otherwise engaged in any
intentional misconduct that is materially injurious to the
Company's (or an Affiliate's) financial condition or business
reputation;
b. Committed intentional damage to the property of the Company (or
an Affiliate) or committed intentional wrongful disclosure of
Confidential Information (as defined in Section 5.2) that is
materially injurious to the Company's (or an Affiliate's)
financial condition or business reputation;
c. Performed his duties in an unsatisfactory manner as determined
by the Board of Directors; or
d. A material breach of this Agreement by Executive.
No act or failure to act on the part of Executive will be deemed "intentional"
if it was due primarily to an error in judgment or negligence, but will be
deemed "intentional" only if 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 interest of the Company (or an Affiliate).
The Board, acting in good faith, may terminate Executive's
employment hereunder on account of Cause (or may determine that any
termination by the Company is on account of Cause). The Board shall
provide written notice to Executive, including a description of the
specific reasons for the determination of Cause. Executive shall
have the opportunity to appear before the Board, with or without
legal representation, to present arguments and evidence on his
behalf. Following such presentation (or upon Executive's failure
to appear), the Board, by an affirmative vote of not less than 66%
of the nonemployee members of the Board, shall confirm that the
actions or inactions of Executive constitute Cause hereunder.
3.4 Termination by the Company, without Cause. The Company may
terminate this Agreement and Executive's employment hereunder, without Cause,
upon 30 days prior written notice to Executive (or such shorter period as may
be agreed upon by Executive and the Chief Executive Officer). In such event,
the Company shall provide to Executive (a) the amount described in Section
3.1a hereof, payable not later than ten days after such termination, and (b)
the amounts determined under Sections 3.1b and 3.1c hereof, payable in not
more than two equal installments, one-half not later than 30 days after
termination and the other one-half not later than six months after such
termination.
3.5 Termination by Executive. If Executive voluntarily terminates his
employment with the Company for any reason (other than under Section 4.2
hereof), the Company shall pay to Executive the amount described in Section
3.1a hereof. Payment shall be made in the form of a single-sum not later than
ten days after such termination. No additional payments or benefits shall be
due hereunder, except as may be provided under a separate plan, policy or
program evidencing a separate compensatory arrangement or benefit or as may be
required
by law.
3.6 Return of Property. Upon termination of this Agreement for any
reason, Executive shall promptly return to the Company all of the property of
the Company (and its Affiliates), including, without limitation, automobiles,
equipment, computers, fax machines, portable telephones, printers, software,
credit cards, manuals, customer lists, financial data, letters, notes,
notebooks, reports and copies of any of the above and any Confidential
Information (as defined in Section 5.2 hereof) that is in the possession or
under the control of Executive.
4. CHANGE IN CONTROL
4.1 Definitions. The term "Change in Control" shall have the meaning
ascribed to it in the NBC Capital Corporation 2001 Long-Term Incentive
Compensation Plan, as the same may be amended from time to time.
The term "Good Reason," when used herein, shall mean that in connection
with a Change in Control:
a. Executive's Base Compensation in effect immediately before such
Change in Control is reduced or there is a significant reduction
or termination of Executive's rights to any employee benefit in
effect immediately prior to the Change in Control;
b. Executive's authority, duties or responsibilities are
significantly reduced from those contemplated in Section 1.1
hereof or Executive has reasonably determined that, as a result
of a change in circumstances that significantly affects his
employment with the Company (or an Affiliate), he is unable to
exercise the authority, power, duties and responsibilities
contemplated in Section 1.1 hereof;
c. Executive is required to be away from his office in the course of
discharging his duties and responsibilities under this Agreement
significantly more than was required prior to the Change in
Control; or
d. Executive is required to transfer to an office or business
location located more than 60 miles from the location he was
assigned to prior to the Change in Control.
No event or condition described in this Section 4.1 shall constitute Good
Reason unless (a) Executive gives the Company notice of his objection to such
event or condition within a reasonable period after Executive learns of such
event, which notice may be delivered orally or in writing to the Chief
Executive Officer, (b) such event or condition is not promptly corrected by
the Company, but in no event later than 30 days after receipt of such notice,
and (c) Executive resigns his employment with the Company (and its Affiliates)
not more than 60 days following the expiration of the 30-day period described
in subparagraph (b) hereof.
4.2 Termination of Employment In Connection With a Change in Control.
If Executive's employment is terminated by the Company, without Cause (as
defined in Section 3.3 hereof), or Executive terminates his employment
hereunder for Good Reason, either at any time within the 60-day period
preceding or 36-month period following the occurrence of a Change in Control,
then notwithstanding any provision of this Agreement to the contrary and in
lieu of any compensation or benefits otherwise payable hereunder:
a. The Company shall pay to Executive the amount described in Section
3.1a in the form of a single-sum not later than ten days after such
termination.
b. The Company shall pay to Executive the amount described in Section
3.1b in the form of a single-sum not later than 30 days after such
termination.
c. The Company shall pay an amount equal to two times Executive's Base
Compensation in effect immediately prior to the Change in Control,
payable in the form of a single-sum not later than 30 days after
such termination.
d. The Company shall provide, at the Company's sole expense, coverage
for the Executive and his dependants under the Company's (or an
Affiliate's) group medical plan at the same type and level of
health benefits received by Executive and his dependents
immediately prior to such termination for a period of three years
or until Executive and/or his dependents obtain coverage under a
reasonably satisfactory group health plan with no applicable
preexisting condition limitation, whichever comes first; such
coverage to be in addition to any coverage available to Executive
and his dependants under Code Section 4980B.
e. Vesting shall be accelerated, any restrictions shall lapse, and
all performance objectives shall be deemed satisfied as to any
outstanding grants or awards made to Executive under the 2001
Long-Term Incentive Compensation Plan and such other long-term
incentive plans which the Company or its Affiliates may adopt,
from time to time. Executive shall be entitled to such
additional benefits or rights as may be provided in the
documents evidencing such plans or the terms of any agreement
evidencing such grant or award.
4.3 Tax Payment. If any payment to Executive pursuant to this
Agreement or any other payment or benefit from the Company or an Affiliate
in connection with a Change in Control is subject to the excise tax imposed
under Code Section 4999 or any similar excise or penalty tax payable under
any United States federal, state, local or other law, the Company shall pay
an amount to Executive such that, after the payment by Executive of all taxes
on such amount, there remains a balance sufficient to pay such excise or
penalty tax. Executive shall submit to the Company the amount to be paid
under this Section 4.3, together with supporting documentation. If Executive
and the Company disagree as to such amount, an independent public accounting
firm agreed upon by Executive and the Company shall make such determination.
5. LIMITATIONS ON ACTIVITIES
5.1 Consideration for Limitation on Activities. Executive acknowledges
that the execution of this Agreement and the payments and benefits described
herein constitute sufficient consideration for the restrictions and
limitations set forth in this Section 5.
5.2 Confidential Information. Executive recognizes and acknowledges
that during the term of his employment, he will have access to confidential,
proprietary, non-public information concerning the Company and its Affiliates,
which may include, without limitation, (a) books and records relating to
operations, finance, accounting, personnel and management, including policies
and procedures, (b) deposit, investment, customer and loan data,
(c) information related to product design and development, (d) computer
software, customer lists, information obtained on competitors, and sales
tactics, and (e) various other non-public trade or business information,
including business opportunities, marketing or business diversification plans,
methods and processes, and financial data and the like (collectively, the
"Confidential Information"). Executive agrees that he will not at any time,
either while employed by the Company or afterwards, make any independent use
of, or disclose to any other person or organization (except as authorized by
the Company or pursuant to court order) any of the Confidential Information.
5.3 Nonsolicitation. Executive agrees that he shall not, for a
24-month period commencing as of the date of Executive's voluntary termination
(as described in Section 3.5 hereof) or Executive's involuntary termination by
the Company on account of Cause (as described in Section 3.3 hereof), directly
or indirectly, whether for himself or on behalf of or in conjunction with any
other person, persons, company, partnership, corporation or business of
whatever nature:
a. Solicit any customer or divert or attempt to divert any customer,
depositor or supplier of the Company or an Affiliate; or
b. Induce any employee or agent of the Company or an Affiliate to
terminate employment with the Company (or Affiliate) or to
commence work with any competitor of the Company or an
Affiliate.
5.4 Noncompetition. Executive agrees that he shall not, for a 24-month
period commencing as of the date of Executive's voluntary termination (as
described in Section 3.5 hereof) or Executive's involuntary termination by the
Company on account of Cause (as described in Section 3.3 hereof), whether as an
officer, director, shareholder, owner, partner, joint venture, or in a
managerial capacity, whether as an employee, independent contractor, consultant
or advisor, engage in the Company's Business in any counties of any states in
which the Company presently maintains, or has maintained during the preceding
12-month period, a banking center.
For purposes of this Section 5.4, the term "Company's Business" means
the banking business.
5.5 Severability; Reformation. Executive agrees that the restrictions
in this Section 5 are reasonable both as to time and to geographic scope and
that each restriction is intended to be severable and separate, and that the
unenforceability of any specific restriction shall not affect the provisions of
any other restriction or limitation.
If any court of competent jurisdiction determines that any restrictions
set forth herein are unreasonable, then it is the intention of the parties that
such restrictions be enforced to the fullest extent that the court deems
reasonable and that this Agreement shall be reformed.
5.6 Remedies. Because of the difficulty of measuring economic losses
to the Company or its Affiliates as a result of a breach of any of the
foregoing covenants and restrictions and because of the immediate and
irreparable damage that could be caused to the Company and its Affiliates
for which they would have no other adequate remedy, Executive agrees that in
addition to any remedy that may otherwise available, the foregoing covenants
and restrictions may be enforced by the Company or an Affiliate, in the event
of breach by him, by injunctions and restraining orders without the necessity
of posting any bond or other security therefor.
6. MISCELLANEOUS
6.1 Mitigation Not Required. As a condition of any payment hereunder,
Executive shall not be required to mitigate the amount of such payment by
seeking other employment or otherwise, nor will any profits, income, earnings
or other benefits from any source whatsoever create any mitigation, offset,
reduction or any other obligation on the part of Executive under this
Agreement.
6.2 Enforcement of this Agreement. After a Change in Control has
occurred, Executive shall not be required to incur legal fees and expenses
associated with the interpretation, enforcement or defense of his rights under
this Agreement by litigation or otherwise. Accordingly, if, following a Change
in Control, the Company has failed to comply with any of its obligations under
this Agreement or the Company or any other person takes or threatens to take
action to declare this Agreement void or unenforceable or institutes any
litigation or proceeding designed to deny or to recover from Executive the
benefits provided under this Agreement, Executive shall be entitled to retain
counsel of Executive's choice, at the expense of the Company, to advise and
represent Executive in connection with such dispute. This provision is
intended to include any such interpretation, enforcement or defense, including
without limitation the initiation or defense of any litigation, arbitration or
other legal action, whether by or against the Company or any director, officer,
stockholder or other person affiliated with the Company, in any jurisdiction.
The Company shall pay and be solely financially responsible for any and all
attorneys' and related fees and expenses incurred by Executive in connection
with any of the foregoing, without regard to whether Executive prevails, in
whole or in part.
In no event shall Executive be required to reimburse the Company for any
of the costs and expenses incurred by the Company relating to arbitration,
litigation or other legal action in connection with this Agreement.
6.3 Arbitration. Any dispute, controversy or claim arising out of or
relating to this Agreement or Executive's employment or the termination
thereof, including, but not limited to, any claim of discrimination under
state or federal law, shall be resolved exclusively by binding arbitration in
Starkville, Mississippi (or such other location as may be agreed to by the
parties), in accordance with the rules of the American Arbitration Association
then in effect. Judgment may be entered on the arbitrator's award in any
court having competent jurisdiction.
6.4 No Set-Off. There shall be no right of set-off or counterclaim in
respect of any claim, debt or obligation against any payment to Executive
provided for in this Agreement.
6.5 Assistance with Litigation. For a period of one year after the
end of the last period for which Executive will have received any compensation
under this Agreement, Executive will furnish such information and assistance
as may be reasonably necessary in connection with any litigation or other
proceedings in which the Company (or an Affiliate) is then or may become
involved.
6.6 Headings. Section and other headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning
or interpretation of this Agreement.
6.7 Entire Agreement. This Agreement constitutes the entire
understanding and agreement among the parties hereto with respect to the
subject matter hereof and supercedes any prior agreements or understandings,
whether written or oral, relating to such subject matter.
6.8 Amendments. This Agreement may be amended or modified at any time
in any or all respects, but only by an instrument in writing executed by the
parties hereto.
6.9 Choice of Law. The validity of this Agreement, the construction of
its terms, and the determination of the rights and duties of the parties hereto
shall be governed by and construed in accordance with the internal laws of the
State of Mississippi applicable to contracts made to be performed wholly within
such state.
6.10 Notices. All notices and other communications under this
Agreement must be in writing and will be deemed to have been duly given when
(a) delivered by hand, (b) sent by telecopier to a telecopier number given
below, provided that a copy is sent by a nationally recognized overnight
delivery service (receipt requested), or (c) when received by the addressee,
if sent by a nationally recognized overnight delivery service (receipt
requested), in each case as follows:
If to Executive: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to the Company: NBC Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
or to such other addresses as a party may designate by notice to the other
party.
6.11 Assignment. This Agreement will inure to the benefit of and be
binding upon the Company, its Affiliates, successors and assigns, including,
without limitation, any person, partnership, company, corporation or other
entity that may acquire substantially all of the Company's assets or business
or with or into which the Company may be liquidated, consolidated, merged or
otherwise combined, and will inure to the benefit of and be binding upon
Executive, his heirs, estate, legatees and legal representatives. If
payments become payable to Executive's surviving spouse or other assigns and
such person thereafter dies, such payment will revert to Executive's estate.
6.12 Severability. Each provision of this Agreement is intended to be
severable. In the event that any one or more of the provisions contained in
this Agreement shall for any reason be held to be invalid, illegal or
unenforceable, the same shall not affect the validity or enforceability of any
other provision of this Agreement, but this Agreement shall be construed as if
such invalid, illegal or unenforceable provisions was not contained herein.
Notwithstanding the foregoing, however, no provision shall be severed if it is
clearly apparent under the circumstances that the parties would not have
entered into this Agreement without such provision.
6.13 Withholding. The Company (or an Affiliate) may withhold from any
payment hereunder any federal, state or local taxes required to be withheld.
6.14 Survival. Notwithstanding anything herein to the contrary, to
the extent applicable, the obligations of the Company (and its Affiliates) and
the obligations of Executive under Sections 3, 4, 5 and 6 shall remain
operative and in full force and effect regardless of the expiration of this
Agreement.
6.15 Waiver. The failure of either party to insist in any one or more
instances upon performance of any terms or conditions of this Agreement will
not be construed as a waiver of future performance of any such term, covenant,
or condition and the obligations of either party with respect to such term,
covenant or condition will continue in full force and effect.
THIS AGREEMENT is executed in multiple counterparts as of the dates set
forth below, each of which shall be deemed an original, to be effective as of
the Effective Date designated above.
NBC CAPITAL CORPORATION ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
By: _____________________________ _____________________________
Its: ____________________________ Date: ______________________
Date: __________________________