Exhibit 10-h
AGREEMENT
This Agreement ("Agreement") is dated as of December 22, 1997, by and
between Trustmark Corporation, a Mississippi corporation (the "Company"), and
Gerard R. Host (the "Executive").
The Company desires to provide certain benefits described in this Agreement
to the Executive and the Executive desires to accept such benefits on the terms
and conditions of 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. "Company's 1997 Long Term Incentive Plan" shall means the Trustmark
Corporation 1997 Long Term Incentive Plan approved by its shareholders on March
11, 1997.
E. "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.
F. "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.
G. "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.
H. "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.
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 or Disability or (ii) the Executive resigns for Good
Reason, the following provisions shall apply:
A. 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:
(i) 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 product of (x) the sum of (i) Executive's Base Salary rate
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, and (y) a severance multiple of 2.0
(ii) The Company shall continue to provide to the Executive the Employee
Benefits for such period of time following the effective date of
termination for two (2) years, reduced by any employment benefits received
from later employment; and
(iii) Any stock options granted pursuant to the Company's 1997 Long Term
Incentive Plan which have not vested shall immediately vest in the
Executive in full. 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. Noncompete.
A. The Executive agrees that (1) during the period he is employed 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 (i) to terminate such
person's employment or engagement by the Company 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 (except to the extent agreed to in writing by
the Company).
B. The Executive agrees that during the period he is employed and, if the
Company terminates his employment for Cause or the Executive terminates his
employment without Good Reason for a period of twelve (12) months thereafter he
will not (except as a representative of the
Company or with the prior written consent of the Board) 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 the State of
Mississippi. Nothing in this paragraph B 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.
4. 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.
5. 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.
6. 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
248 East Capitol Street
Post Office Box 291
Jackson, MS 39205
Attention: Chief Executive Officer
(ii) if to the Executive, to:
Gerard R. Host
509 Winter Oak
Madison, MS 39110
Any party may change its address for notice hereunder by notice to the
other parties hereto.
7. Entire 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.
8. 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.
9. 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.
10. 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.
11. Board Approval. This Agreement has been authorized by action of the
Executive Compensation Committee of the Board of Directors of the Company on
December 22, 1997, 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/ Richard G. Hickson /s/ Gerard R. Host
------------------------ --------------------
Richard G. Hickson Gerard R. Host
Chief Executive Officer