WHITNEY HOLDING CORPORATION and WHITNEY NATIONAL BANK AMENDED AND RESTATED OFFICER AGREEMENT
Exhibit
10.2
WHITNEY
HOLDING CORPORATION
and
WHITNEY
NATIONAL BANK
AMENDED
AND RESTATED
THIS
AMENDED AND RESTATED AGREEMENT (the "Agreement") is made by and between WHITNEY
HOLDING CORPORATION, a corporation organized and existing under the laws of
the
State of Louisiana (the "Holding Corporation"), WHITNEY NATIONAL BANK, a
financial institution organized and existing under the laws of the United States
(the "Bank"), and _____________ ("Officer").
WHEREAS,
the Officer is presently employed by the Bank as _____________ (“Officer
Title”), and the parties have previously entered into an Officer
Agreement (the “Existing Agreement”) that entitles Officer to severance benefits
in the event Officer’s employment is terminated under certain circumstances
within a specified period prior to or following a Change in Control (as defined
below); and
WHEREAS,
the parties desire to amend and restate the Existing Agreement in order to
comply with the deferred compensation rules under Section 409a of the Internal
Revenue code of 1986.
NOW,
THEREFORE, effective as of January 1, 2008, the Holding Corporation, the Bank,
and the Officer agree to amend and restate the Existing Agreement as
follows:
SECTION
I
DEFINITIONS
1.1 "Change
in Duties" means the occurrence of one of the following events in connection
with a Change in Control:
a. A
diminution in the nature or scope of the Officer's authorities or duties, a
change in his reporting responsibilities or titles or the assignment of the
Officer to any duties or responsibilities that are inconsistent with his
position, duties, responsibilities or status immediately preceding such
assignment;
b. A
reduction in the Officer's compensation during the Covered
Period. For this purpose, "compensation" means the fair market value
of all remuneration paid to the Officer by the Employer during the immediately
preceding calendar year, including, without limitation, deferred compensation,
stock options and other forms of incentive compensation awards, coverage under
any employee benefit plan (such as a pension, 401(k), medical, dental, life
insurance or long-term disability plan) and other perquisites;
c. The transfer
of the Officer to a
location requiring a change in his residence or
a material increase in the amount of travel ordinarily required of the Officer
in the performance of his duties; or
d. A
good faith determination by the Officer that his position, duties,
responsibilities or status has been affected, whether directly or indirectly,
in
any manner which prohibits the effective discharge of any such duties or
responsibilities.
1.2 "Change
in Control" means and shall be deemed to have occurred if:
a. Any
“person”, including any “group”, determined in accordance with Section 13(d) (3)
of the Securities Exchange Act of 1934, as amended, becomes the beneficial
owner, directly or indirectly, of securities of the Holding Corporation
representing 20% or more of the combined voting power of the Holding
Corporation’s then outstanding securities, without the approval, recommendation,
or support of the Board of Directors of the Holding Corporation as
constituted immediately prior to such acquisition;
b. The
Federal Deposit Insurance Corporation or any other regulatory agency negotiates
and implements a plan for the merger, transfer of assets and liabilities,
reorganization, and/or liquidation of the Bank;
c. Either
of the Holding Corporation or the Bank is merged into another corporate entity
or consolidated with one or more corporations, other than a wholly owned
subsidiary of the Holding Corporation;
d. A
change in the members of the Board of Directors of the Holding Corporation
which
results in the exclusion of a majority of the "continuing board." For this
purpose, the term "continuing board" means the members of the Board of Directors
of the Holding Corporation, determined as of the date on which this Agreement
is
executed and subsequent members of such board who are elected by or on the
recommendation of a majority of such "continuing board"; or
e. The
sale or other disposition of all or substantially all of the stock or the assets
of the Bank by the Holding Corporation (or any successor corporation
thereto).
1.3 "Company"
means the Holding Corporation and the Bank.
1.4 "Covered
Period" means the one-year period immediately preceding and the three-year
period immediately following the occurrence of a Change in Control that
qualifies as a “change in control event” as defined in §1.409A-3(i)(5) of the
final regulations under Internal Revenue Code Section 409A.
1.5 "Employer"
means the Holding Corporation or the Bank or both, as the case may
be.
1.6 "Severance
Amount" means 200% of the Officer's "annual salary." For this purpose, "annual
salary" means the average of all compensation paid to the Officer by the Company
which is includible in the Officer's gross income for the highest 3 of the
5
calendar years immediately preceding the calendar year in which a Change in
Control occurs, including the amount of any compensation which the Officer
elected to defer under any plan or arrangement of the Company with respect
to
such years. If the Officer has been employed less than 5 years prior to the
calendar year in which a Change in Control occurs, "annual salary" shall be
determined by averaging the compensation (as defined in the preceding sentence)
for the Officer's actual period of employment. Further, if the Officer has
been
employed less than 12 months prior to the occurrence of a Change in control,
the
actual compensation of the Officer shall be annualized for purposes of this
Section 1.6. In the event of dispute between the Officer and the Company, the
determination of the "annual salary" shall be made by an independent public
accounting firm agreed upon by the Officer and the Company.
1.7 "Termination"
or "Terminated" means (a) termination of the employment of the Officer with
the
Employer for any reason, other than cause, or (b) the resignation of the Officer
following a Change in Duties. In no event, however, shall the Officer's
voluntary separation from service with the Employer on account of death,
disability, or resignation on or after the attainment of the normal retirement
age specified in any qualified employee benefit plan maintained by the Employer
constitute a Termination. For purposes of determining whether a Termination
has
occurred, "cause" means fraud, misappropriation of or intentional material
damage to the property or business of the Employer or the commission of a felony
by the Officer.
SECTION
II
TERMINATION
RIGHTS AND OBLIGATIONS
2.1 Severance
Awards. If the Officer's employment is Terminated during the Covered Period,
then no later than 30 days after the later of (a) the six-month anniversary
of
such Termination, or (b) the occurrence of a Change in Control that qualifies
as
a “change in control event” as defined in §1.409A-3(i)(5) of the final
regulations under Internal Revenue Code Section 409A, the Company
shall:
a. Pay
to the Officer the Severance Amount;
b. Transfer
to the Officer the ownership of all club memberships, automobiles and other
perquisites which were assigned to the Officer as of the day immediately
preceding such Termination;
c.
In accordance with Section 2.2 hereof, provide for the benefit of the
Officer, his spouse, and his dependents, if any, coverage under the plans,
policies or programs (as the same may be amended from time to time) maintained
by the Company for the purpose of providing medical benefits and life insurance
to other Officer's of the Company with comparable duties; provided, however,
that in no event shall the coverage provided under this paragraph be
substantially less than the coverage provided to the Officer as of the date
immediately preceding a Termination;
d. Pay
to the Officer an amount equal to the contributions by the Company to the
Whitney National Bank Savings Plus 401(k) Plan or a successor arrangement,
that
would have been made for the lesser of (i) two years following the date
of Termination, or (ii) the number of years until the Officer's
normal retirement age under such plan;
e. Pay
to the Officer an amount equal to the present value of the additional benefits
which would have accrued under the Whitney National Bank Retirement Plan or
any
successors thereto, that would have been made for the lesser of (I) two years
following the Date of Termination, or (ii) the number of years until the
Officer's normal retirement age under such plans; and
f. Pay
to the Officer the amount to which the Officer would be entitled under the
Executive Incentive Compensation Plan, or a successor thereto, for the calendar
year in which a Change in Control occurs, determined as if
all performance goals applicable to the Company and the Officer were
achieved.
g. Pay
to the Officer an amount equal to the present value of any benefit accrued
under
either the Whitney National Bank Retirement Plan, or any successors thereto,
that would have been payable under the terms of such plan, including any
additional accrual provided under Section 2.1e hereto, but was forfeited on
account of the application of the vesting provisions contained in such
plan.
2.2 Special
Rules Governing Group Benefits. Coverage under Section 2.1c, hereof, shall
(a)
commence as of the later of the date of Termination or the occurrence of a
Change in Control, and (b) end as of the earlier of the Officer's coverage
under
Medicare Part B or the date on which the Officer is covered under group plans
providing substantially similar benefits maintained by another employer. For
this purpose, the Company shall provide coverage during any period in which
the
payment of benefits is limited by any form of pre-existing condition
clause. The benefits provided pursuant to Section 2.1c and this
Section 2.2 in any one calendar year shall not affect the amount of benefits
to
be provided in any other calendar year; the reimbursement of an eligible expense
shall be made on or before December 31 of the year following the year in which
the expense was incurred; and the Officer’s rights to coverage shall not be
subject to liquidation or exchange for another benefit.
Coverage
under Section 2.1c, hereof, may be provided under a group policy or program
maintained by the Company or the Company, in its sole discretion, may acquire
or
adopt an individual plan, policy or program providing coverage solely for the
benefit of the Officer, his spouse, and his dependents, if any.
If
coverage commences as of a Change in Control, the Company shall (a)
retroactively reinstate the Officer, his spouse, and dependents, if any, as
of
the date of Termination, and (b) reimburse to the Officer his cost of obtaining
similar coverage for the period commencing on the date of Termination and ending
on the occurrence of a Change in Control. As to medical claims incurred during
such period, any coverage actually obtained by the Officer shall be designated
as the Officer's primary coverage, and the reinstated coverage shall operate
as
secondary coverage.
2.3 Other
Plans and Agreements. To the maximum extent permitted by law and not
withstanding any provision to the contrary contained in any plan, grant,
program, contract or other arrangement under which the Officer and the Employer
are parties, if the Officer's employment is Terminated during the Covered
Period, then any vesting schedule or other restriction on the ownership of
any
benefits payable to the Officer under the terms of any such plan, grant,
contract, or arrangement shall be accelerated or lapse, as the case may
be.
2.4 Taxes.
The Officer shall be responsible for applicable income tax and the Company
shall
have the right to withhold from any payment made under this Agreement, or to
collect as a condition of any payment, any income taxes required by law to
be
withheld.
Notwithstanding
the preceding paragraph, the Company shall pay any excise tax or similar penalty
imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the
"Code") or any comparable successor provision, on the Officer as a consequence
of any "excess parachute payment" within the meaning of Section 280G of the
Code
(or a comparable successor provision) payable under this Agreement or any plan,
grant, program, contract or other arrangement under which the Officer and the
Employer are parties.
The
Officer shall submit to the Company the calculation of the amount to be paid
by
the Company under this Section 2.4, together with supporting documentation,
and
the Company shall promptly pay such amount not later than December 31 of the
year after the year in which the Officer remits the tax. If the Officer and
the
Company disagree as to such amount, an independent public accounting firm agreed
upon by the Officer and the Company shall make such
determination.
SECTION
III
MISCELLANEOUS
3.1 Notices.
Notices and other communication required under this Agreement shall be made
to
the Company at ▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and to
the
Officer at ▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or, as to each
party, at such other address as may be designated by written notice to the
other. All such notices and communications shall be effective when deposited
in
the United States mail, postage prepaid, or delivered to the affected
party.
3.2 Employment Rights. The
terms of this Agreement shall not be deemed to confer on the Officer any right
to continue in the employ of the Employer for any period or any right to
continue his present or any other rate of compensation.
3.3 Assignment.
The Officer shall not sell, assign, pledge, transfer or otherwise convey the
right to receive any form of payment or benefit provided under the Agreement,
except by will or the laws of intestacy.
3.4 Inurement.
This Agreement shall be binding upon and inure to the benefit of the Holding
Corporation, the Bank and the Officer and their respective heirs, executors,
administrators, successors, and assigns.
3.5 Payment
of Expenses. In the event that it is necessary or desirable for the Officer
to
retain legal counsel and/or incur other cost and expenses in connection with
the
enforcement of the terms of the Agreement, the Company shall pay (or the Officer
shall be entitled to reimbursement of) reasonable attorneys' fees, costs, and
expenses actually incurred, without regard to the final outcome, unless there
is
no reasonable basis for the Officer's action.
3.6 Amendment
and Termination. This Agreement shall not be
amended or terminated by any act of the Company, except as may be
expressly agreed upon, in writing, by the Company and the Officer.
3.7 Nature
of Obligation. The Company intends that its obligations hereunder be construed
in the nature of severance pay. The Company's obligations under Section 2 are
absolute and unconditional and shall not be affected by any circumstance,
including without limitation, any right of offset, counterclaim, recoupment,
defense, or other right which the Company may have against the Officer or
others. All amounts payable by the Company hereunder shall be paid without
notice or demand.
3.8 Choice
of Law. The Agreement shall be governed and construed in accordance
with the laws of the State of Louisiana.
3.9 No
Effect on Other Benefits. Any other compensation paid or benefits provided
to
the Officer shall be in addition to and not in lieu of the benefits provided
to
such Officer under this Agreement. Except as may be expressly provided herein,
nothing in this Agreement shall be construed as limiting, varying or reducing
the provision of any benefit available to the Officer (or to such Officer's
estate or other beneficiary) pursuant to any employment agreement, group plan,
including any qualified pension or profit-sharing plan, health, disability
or
life insurance plan, or any other form of agreement or arrangement between
the
Company and the Officer.
3.10
Entire Agreement. This Agreement constitutes the entire agreement between the
Officer and the Holding Corporation and the Bank and is intended to supersede
all prior written or oral understandings with respect to the subject matter
of
this Agreement.
3.11
Invalidity. In the event that any one or more provisions of this Agreement
shall, for any reason, be held invalid, illegal, or unenforceable in any manner,
such invalidity, illegality or unenforceability shall not affect any other
provision of such Agreement.
3.12
Mitigation. Notwithstanding any provision of this Agreement to the contrary
and
to the maximum extent permitted by law, the Officer shall not be subject to
any
duty to mitigate the severance awards received hereunder by seeking other
employment. No severance award received under this Agreement shall be offset
by
any compensation the Officer receives from future employment, and the Officer
shall not be required to perform any service as a condition of this
Agreement.
3.13
Internal Revenue Code Section 409A.
(a) Notwithstanding
anything in this Agreement to the contrary, to the extent that any amount or
benefit that would constitute non-exempt “deferred compensation” for purposes of
Section 409A of the Internal Revenue Code would otherwise be payable or
distributable hereunder by reason of Officer’s termination of employment, such
amount or benefit will not be payable or distributable to Officer by reason
of
such circumstance unless (i) the circumstances giving rise to such
termination of employment meet any description or definition of “separation from
service” in Section 409A of the Code and applicable regulations (without
giving effect to any elective provisions that may be available under such
definition), or (ii) the payment or distribution of such amount or benefit
would be exempt from the application of Section 409A of the Code by reason
of the short-term deferral exemption or otherwise. This provision
does not prohibit the vesting of any amount upon a termination of employment,
however defined. If this provision prevents the payment or
distribution of any amount or benefit, such payment or distribution shall be
made on the date, if any, on which an event occurs that constitutes a Section
409A-compliant “separation from service.”
(b) Notwithstanding
anything in this Agreement to the contrary, if any amount or benefit that would
constitute non-exempt “deferred compensation” for purposes of Section 409A of
the Code would otherwise be payable or distributable under this Agreement by
reason of Officer’s separation from service during a period in which he is a
Specified Employee (as defined below), then, subject to any permissible
acceleration of payment by the Company under Treas. Reg. Section
1.409A-3(j)(4)(ii) (domestic relations order), (j)(4)(iii) (conflicts of
interest), or (j)(4)(vi) (payment of employment taxes):
(i) if
the payment or distribution is payable in a lump sum, Officer’s right to receive
payment or distribution of such non-exempt deferred compensation will be delayed
until the earlier of Officer’s death or the first day of the seventh month
following Officer’s separation from service; and
(ii) if
the payment or distribution is payable over time, the amount of such non-exempt
deferred compensation that would otherwise be payable during the six-month
period immediately following Officer’s separation from service will be
accumulated and Officer’s right to receive payment or distribution of such
accumulated amount will be delayed until the earlier of Officer’s death or the
first day of the seventh month following Officer’s separation from service,
whereupon the accumulated amount will be paid or distributed to Officer and
the
normal payment or distribution schedule for any remaining payments or
distributions will resume.
For
purposes of this Agreement, the term “Specified Employee” has the meaning given
such term in Code Section 409A and the final regulations
thereunder.
EXECUTED
in multiple counterparts as of the dates set forth below, each of which shall
be
deemed as original, and effective as of the date first set forth
above.
WHITNEY
HOLDING CORPORATION
WHITNEY
NATIONAL BANK
By:___________________________________
Title:
Chairman of the Board
and
Chief Executive Officer
Date:
_________________________________
OFFICER:
______________________________________
Date: ________________________________