Exhibit 10.7
CHANGE IN CONTROL EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 1st day of January, 2021, by and between HANCOCK WHITNEY CORPORATION, a corporation organized and existing under the laws of the State of Mississippi ("HWC") and _____________ ("Executive").
W I T N E S S E T H:
WHEREAS, the Executive is employed by HWC or one of its Subsidiaries (HWC and its Subsidiaries are herein referred to, collectively, as the "Company") in a top executive or key management position having significant authority and responsibility and has made and is expected to make significant contributions to the profitability, growth and financial strength of the Company; and
WHEREAS, HWC, on behalf of itself, its shareholders and its Subsidiaries, wishes to attract and retain well-qualified executives and key personnel and to assure itself of the continuity of its management; and
WHEREAS, HWC recognizes that Executive is a valuable resource and, in the event of a Change in Control (as hereinafter defined) of HWC, HWC desires to assure itself of Executive's employment, continued loyalty and services or, in the event Executive is terminated or Executive's position with the Company is adversely affected as a result thereof, to assure Executive of adequate severance; and
WHEREAS, in the event of a Change in Control of HWC, HWC desires to assure, as much as possible, that its management team remains intact for a period of time after the Change in Control in order to assure a smooth transition and to increase the value of its franchise to its shareholders.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Upon the occurrence of a Change in Control of HWC, and subject to the terms and conditions of this Agreement, HWC hereby agrees to continue Executive in the employ of the Company, and Executive hereby agrees to remain in the employ of the Company, for the Employment Period (as hereinafter defined) provided Executive is employed by HWC or a Subsidiary thereof on the day immediately preceding the Closing Date (as hereinafter defined) with respect to the Change in Control. It is hereby acknowledged and agreed between the parties that, as provided in Section 1(c) above, this Agreement shall not operate to ensure employment, and further, as provided in Section 1(b) above, this Agreement shall not constitute an employment agreement unless and until a Change in Control, as defined herein, occurs, and, in the event of a Change in Control, shall operate as an employment agreement only for the Employment Period.
During the Employment Period, Executive shall receive the following compensation and benefits:
Notwithstanding the preceding, or any other provisions of this Agreement or of any Incentive Plan or Agreement, in the event the surviving entity in a Change in Control does not assume the Company's obligations under any such Incentive Plan or Agreement or convert Executive's rights under such Incentive Plan or Agreement into equivalent rights to equity in the surviving entity in connection with such Change in Control, the Board of Directors may, in its discretion, provide that Executive's benefits under such Incentive Plan or Agreement will become one hundred percent (100%) vested immediately upon such Change in Control whether or not Executive terminates service with the Company. In such event, all benefits under such Incentive Plan or Agreement shall be paid in a lump-sum, subject to Section 5(d), within 90 days following Executive's termination.
If the Reduced Amount is greater than the Net Change in Control Amount, the Executive shall be entitled to receive or commence to receive payments equal to the Reduced Amount. If the Net Change in Control Amount is greater than the Reduced Amount, Executive shall be entitled to receive or commence to receive the Unreduced Amount. If Executive receives the Unreduced Amount, Executive shall be solely responsible for the payment of Excise Tax due from Executive and attributable to such Unreduced Amount with no right of additional payment from HWC as reimbursement for such taxes. The computation required under this Section shall be made in writing by HWC's tax counsel and/or independent public accounting firm, and HWC shall bear all costs incurred with the calculation under this Section. For purposes of making the calculations under this Section, HWC's tax counsel and/or independent public accounting firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the applications of Sections 280G and 4999 of the Code. HWC and Executive shall furnish such information and documents as tax counsel and/or the independent public accounting firm may reasonably request in order to make a determination and the computations contemplated under this Section. Computations under this Section may be reviewed by tax counsel and/or independent accountants of Executive's choice and at the Executive's sole expense. In the event of a disagreement between HWC and Executive regarding the computations under this Section, such dispute shall be settled
by a separate tax counsel and/or independent public accountant (the "Auditor") agreed to by HWC and Executive who shall review and recalculate the amounts under this Section and whose costs and expenses shall be borne equally by HWC and Executive. The determination by such Auditor shall be conclusive and binding upon HWC and Executive.
Executive agrees that during Executive's employment by the Company and for a period of two (2) years thereafter (the "Restrictive Period") Executive shall comply with the restrictive covenants set forth in this Section 6. Executive's receipt of the severance pay and benefits under Section 5 of this Agreement is conditioned upon Executive's compliance with these covenants while employed by the Company and through the payment date of the lump-sum severance amount as set forth in Section 5(a)(i). Additionally, any rights to coverage under the HWC group health plan pursuant to Section 5(a)(ii) shall terminate in the event of a breach of one or more of the covenants contained herein during the Coverage Period.
The following definitions shall apply to this Agreement:
For purposes of the above, "persons acting as a group" shall have the meaning as in Treasury Regulations Section 1.409A-3(i)(5)(v)(B).
It is intended that the definition of Change in Control contained herein shall be the same as a change of ownership of a corporation, a change in the effective control of a corporation and/or a change in the ownership of a substantial portion of a corporation's assets as reflected in Treasury Regulations Section 1.409A-3(i)(5), as modified by the substitution of the higher percentage requirement in items (ii) and (iv) above; and all questions or determinations in connection with any such Change in Control shall be construed and interpreted in accordance with the provisions of such Regulations. This definition of Change in Control shall be applicable only for purposes of determining Executive's rights under this Agreement which become applicable in the event of such a Change in Control and for no other purpose.
Notwithstanding the preceding, however, none of such actions shall constitute "Good Reason" unless (1) Executive provides the Company notice of the existence of such condition within ninety (90) days of the initial existence thereof specifically
identifying the acts or omissions constituting the grounds for Good Reason and a period of at least thirty days following such notice within which to remedy such condition and (2) Executive's termination occurs within the two-year period following the initial existence of such condition.
The parties recognize that the enforceability of employment contracts with banks are subject to some uncertainty and that banks and their bank holding companies are subject to regulatory restrictions that change from time to time. As a result, Executive may be prevented from obtaining or enforcing any or all of his or her rights hereunder from HWC. Nothing herein shall require HWC or a Subsidiary thereof to perform any obligation hereunder if such performance is prohibited or limited by applicable law or regulation, as determined in a proceeding or adjudication by a court, tribunal, or regulatory agency having authority to so determine, which determination is final and subject to no further appeals. The parties further acknowledge and agree that it is the intent of this Agreement that it be enforced to the fullest degree permitted by law and regulation.
All notices and other communications provided for by this Agreement shall be in writing and shall be deemed to have been duly given when delivered in person or mailed by United States Certified Mail, return receipt requested, postage prepaid, addressed as follows:
If to Executive:
______________________________
______________________________
______________________________
lf to HWC:
HANCOCK WHITNEY CORPORATION
P. O. Box 4019
Gulfport, MS 39502-4019
Attention: Chief Human Resources Officer
or to such other addresses any party may have furnished to the other in writing in accordance with this Agreement. Notices and other communications hereunder to a Subsidiary shall be addressed to such Subsidiary's principal place of business
addressed to the President thereof, unless another address has been furnished for such purpose under the provisions of this Section.
Notwithstanding any other provision in this Agreement, HWC and Executive intend for this Agreement to comply in all respects with the provisions of Section 409A of the Code and Treasury Regulations and other guidance issued thereunder. Each provision and term of this Agreement should be interpreted accordingly. If any provision or term of this Agreement would be prohibited by or be inconsistent with Section 409A of the Code, then such provision shall be deemed to be conformed to comply with Section 409A of the Code or, if it is not possible to conform the provision to comply with Section 409A, such provision shall be null and void to the extent, and only to the extent, required for this Agreement to be in compliance with Section 409A of the Code without affecting the remainder of this Agreement.
The provisions of this Agreement shall be interpreted and construed in accordance with, and enforcement may be made under, the laws of the State of Mississippi.
If any provision or portion of this Agreement shall be determined to be invalid or unenforceable for any reason, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law.
This Agreement sets forth the entire Agreement of the parties hereto and supersedes all prior agreements, understandings and covenants with respect to the subject matter hereof including, but not limited to, any prior change in control or
employment agreement between the parties, whether or not the term of such prior agreement has expired. Except as provided in Section 1, this Agreement may be amended or terminated only by mutual agreement of the parties in writing.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
HANCOCK WHITNEY CORPORATION
By: _______________________________
Title: _____________________________
EXECUTIVE
__________________________________
Print Name: ________________________