EXHIBIT 10(i)
AGREEMENT
THIS AGREEMENT dated as of July 1, 1997, is made by and between First
Commercial Corporation, an Arkansas corporation (the "Company"), and Wayne
Hartsfield (the "Executive").
WHEREAS the Company considers it essential to its best interests and to
the best interests of its shareholders and customers to foster the continuous
employment of its key management personnel; and
WHEREAS the Company recognizes that the possibility of a Change in Control
(as defined in Section 8.4 hereof) exists, as in the case of any publicly-held
corporation, and that such possibility, and the uncertainty and questions
which it may raise among management, may result in the departure or
distraction of management personnel to the detriment of the Company and its
shareholders and customers; and
WHEREAS the Company has determined that appropriate steps should be taken
to reinforce and encourage the continued attention and dedication of members
of the Company's management, including the Executive, to their assigned duties
without distraction in the face of potentially disturbing circumstances
arising from the possibility of a Change in Control;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the Company and the Executive hereby agree as follows:
1. Defined Terms. Definitions of certain capitalized terms used in this
Agreement are provided in Section 8 and elsewhere in this Agreement.
2. Term of Agreement. This Agreement shall become effective on the date
hereof and shall remain in effect indefinitely thereafter; provided, however,
that (a) except as provided in clause (b) of this Section 2, either the
Company or the Executive may terminate this Agreement by giving the other
party at least one (1) year advance written notice of such termination, and
(b) if a Potential Change in Control or a Change in Control shall have
occurred during the term of this Agreement, this Agreement may not be
terminated until all obligations of either party hereto have been performed in
full, the Coverage Period has expired without the occurrence of a Triggering
Event, or in the case of a Potential Change in Control, no Change in Control
occurs for at least two years following such Potential Change in Control.
Notwithstanding the foregoing, this Agreement shall terminate upon the
Executive's attaining age sixty-five (65), the Executive's Disability or
death, except as to obligations of the Company hereunder arising from a Change
in Control and/or a termination of the Executive's employment that, in either
case, occurred prior to his having reached such age or the occurrence of his
Disability or death.
3. Agreement of the Company. In order to induce the Executive to remain
in the employ of the Company, the Company agrees, under the terms and
conditions set forth herein, that, upon the occurrence of both a Change in
Control and a Triggering Event during the term of this Agreement, the Company
shall provide to the Executive the benefits described in Sections 3.1 through
3.2 below (the "Severance Benefits"), unless prior to the date of any
Triggering Event, the Executive's employment with the Company has been
terminated for Cause or due to the Executive's Disability or death.
3.1 Lump-Sum Severance Payment. In lieu of any further salary
payments to the Executive for periods subsequent to the Date of Termination,
the Company shall pay to the Executive a lump sum severance payment, in cash,
without discount, equal to one-and-one half (1 1/2) times the Executive's
Annual Base Salary.
3.2 Vesting of Options. The vesting of all options to purchase
securities of the Company granted to the Executive pursuant to the Company's
1997 Incentive Stock Plan, or any other Company plan that are then held by the
Executive shall be accelerated to the later of the Date of Termination or six
months after the date such option was granted, and any provision contained in
the agreement(s) under which such options were granted that is inconsistent
with such acceleration is hereby modified to the extent necessary to provide
for such acceleration; such acceleration shall not apply to any option that by
its terms would vest prior to the date provided for in this Section 3.2.
4. Timing of Payment. The payment provided for in Section 3.1 shall be
made on the Date of Termination.
5. Reimbursement of Legal Costs. The Company shall pay to the Executive
all reasonable legal fees and expenses incurred by the Executive as a result
of a termination that entitles the Executive to any payments under this
Agreement including all such fees and expenses, if any, incurred in contesting
or disputing any Notice of Termination under Section 6.2 hereof or in seeking
to obtain or enforce any right or benefit provided by this Agreement. Such
payments shall be made within five (5) business days after delivery of the
Executive's respective written requests for payment accompanied with such
evidence of fees and expenses incurred as the Company reasonably may require.
6. Termination Procedures.
6.1 Notice of Termination. After a Potential Change in Control or a
Change in Control, any termination of the Executive's employment (other than
by reason of death) must be preceded by a written Notice of Termination from
the terminating party to the other party hereto in accordance with Section 7.5
hereof. For purposes of this Agreement, a "Notice of Termination" shall mean
a notice which shall (i) specify the date of termination (the "Date of
Termination") which shall not be more than sixty (60) days from the date such
Notice of Termination is given, (ii) indicate the notifying party's opinion
regarding the specific provisions of this Agreement that will apply upon such
termination and (iii) set forth in reasonable detail the facts and
circumstances claimed to provide a basis for the application of the provisions
indicated. Termination of the Executive's employment shall occur on the
specified Date of Termination even if there is a dispute between the parties
pursuant to Section 6.2 hereof relating to the provisions of this Agreement
applicable to such termination.
6.2 Dispute Concerning Applicable Termination Provisions. If within
thirty (30) days of receiving the Notice of Termination the party receiving
such notice notifies the other party that a dispute exists concerning the
provisions of this Agreement that apply to such termination, the dispute shall
be resolved either by mutual written agreement of the parties or by expedited
commercial arbitration under the rules of the American Arbitration
Association, pursuant to the procedures set forth in Section 7.14 herein. The
parties shall pursue the resolution of such dispute with reasonable diligence.
Within five (5) days of such a resolution, any party owing any payments
pursuant to the provisions of this Agreement shall make all such payments
together with interest accrued thereon at the rate provided in Section
1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended.
7. Miscellaneous.
7.1 No Mitigation. The Company agrees that, if the Executive's
employment by the Company is terminated in a manner that results in the
payment of Severance Benefits hereunder, the Executive shall not be required
to seek other employment or to attempt in any way to reduce any amounts
payable to the Executive by the Company pursuant to this Agreement. Further,
the amount of any payment or benefit provided for under this Agreement shall
not be reduced by any compensation earned by the Executive as the result of
employment by another employer, by retirement benefits, by offset against any
amount claimed to be owed by the Executive to the Company, or otherwise.
7.2 Successors. In addition to any obligations imposed by law upon
any successor to the Company, the Company shall be obligated to require any
successor (whether direct or indirect, by purchase, merger, consolidation,
operation of law, or otherwise) to all or substantially all of the business
and/or assets of the Company to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place; in the event of
such a succession, references to the "Company" herein shall thereafter be
deemed to include such successor. Failure of the Company to obtain such
assumption and agreement prior to the effectiveness of any such succession
shall be a breach of this Agreement and shall entitle the Executive to
terminate his employment and thereafter to receive Severance Benefits, except
that, for purposes of implementing the foregoing, the date on which any such
succession becomes effective shall be deemed the Date of Termination.
7.3 Incompetency. Any benefit payable to or for the benefit of the
Executive, if legally incompetent, or incapable of giving a receipt therefor,
shall be deemed paid when paid to the Executive's guardian or to the party
providing or reasonably appearing to provide for the care of such person, and
such payment shall fully discharge the Company.
7.4 Death. This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If
the Executive shall die while any amount would still be payable to the
Executive hereunder (other than amounts which, by their terms, terminate upon
the death of the Executive) if the Executive had continued to live, all such
amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to the executors, personal representatives or
administrators of the Executive's estate.
7.5 Notices. For the purpose of this Agreement, notices and all
other communications provided for in the Agreement shall be in writing and
shall be deemed to have been duly given when delivered or mailed by United
States registered mail, return receipt requested, postage prepaid, addressed
to the respective addresses set forth below, or to such other address as
either party may have furnished to the other in writing in accordance
herewith, except that notice of change of address shall be effective only upon
actual receipt:
To the Company:
First Commercial Corporation
400 West Capitol Avenue
Little Rock, Arkansas 72201
Attention:
To the Executive:
7.6 Modification, Waiver. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge
is agreed to in writing and signed by the Executive and such officer as may be
specifically designated by the Board or its delegee. No waiver by either
party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed
by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time.
7.7 Entire Agreement. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof have
been made by either party which are not expressly set forth in this Agreement.
7.8 Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Arkansas without regard to principles of conflicts of laws thereof.
7.9 Statutory Changes. All references to sections of the Exchange
Act shall be deemed also to refer to any successor provisions to such
sections.
7.10 Withholding. Any payments provided for hereunder shall be paid
net of any applicable withholding required under federal, state or local law
and any additional withholding to which the Executive has agreed.
7.11 Validity. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
7.12 No Right to Continued Employment. Nothing in this Agreement
shall be deemed to give any Executive the right to be retained in the employ
of the Company, or to interfere with the right of the Company to discharge the
Executive at any time and for any lawful reason, subject in all cases to the
terms of this Agreement.
7.13 No Assignment of Benefits. Except as otherwise provided herein
or by law, no right or interest of any Executive under the Agreement shall be
assignable or transferable, in whole or in part, either directly or by
operation of law or otherwise, including without limitation by execution,
levy, garnishment, attachment, pledge or in any manner; no attempted
assignment or transfer thereof shall be effective; and no right or interest of
any Executive under this Agreement shall be liable for, or subject to, any
obligation or liability of such Executive.
7.14 Arbitration Procedures. All disputes relating to this
Agreement, including without limitation any disputes under Section 6.2 hereof,
shall be submitted to expedited commercial arbitration under the rules of the
American Arbitration Association in Little Rock, Arkansas, with an arbiter who
is mutually acceptable to both parties being selected to preside over such
arbitration. The Federal Rules of Evidence shall apply, and the arbiter shall
establish the applicable rules of discovery. The prevailing party in any
arbitration shall be entitled to recover from the other party all fees and
expenses (including, without limitation, reasonable attorney's fees and
disbursements) incurred in connection with such arbitration. The arbiter
shall determine the scope of arbitrability. The only judicial relief shall be
(a) interim equitable relief and (b) relief in aid of or to enforce
arbitration.
7.15 Reduction of Benefits By Legally Required Benefits.
Notwithstanding any other provision of this Agreement to the contrary, if the
Company is obligated by law or by contract (other than under this Agreement)
to pay severance pay, a termination indemnity, notice pay, or the like, or if
the Company is obligated by law or by contract to provide advance notice of
separation ("Notice Period"), then any Severance Benefits hereunder shall be
reduced by the amount of any such severance pay, termination indemnity, notice
pay or the like, as applicable, and by the amount of any pay received with
respect to any Notice Period.
7.16 Headings. The headings and captions herein are provided for
reference and convenience only, shall not be considered part of this
Agreement, and shall not be employed in the construction of this Agreement.
8. Definitions.
8.1 "Annual Base Salary" means the greater of (a) the Executive's
highest annual base salary in effect during the one (1) year period preceding
a Change in Control and (b) the Executive's highest annual base salary in
effect during the one (1) year period preceding the Executive's Date of
Termination.
8.2 "Board" means the Board of Directors of the Company.
8.3 "Cause" means:
(a) the willful and continued failure of the Executive to
substantially perform the Executive's duties with the Company (other than any
such failure resulting from incapacity due to physical or mental illness),
after a written demand for substantial performance is delivered to the
Executive by the Board of the Company which specifically identifies the manner
in which the Board believes that the Executive has not substantially performed
the Executive's duties;
(b) the willful engaging by the Executive in illegal conduct or
gross misconduct which is materially and demonstrably injurious to the
Company;
(c) personal dishonesty or breach of fiduciary duty to the
Company that in either case results or was intended to result in personal
profit to the Executive at the expense of the Company; or
(d) willful violation of any law, rule or regulation (other than
traffic violations, misdemeanors or similar offenses) or cease-and-desist
order, court order, judgment or supervisory agreement, which violation is
materially and demonstrably injurious to the Company.
For purposes of the preceding clauses, no act or failure to act, on the part
of the Executive, shall be considered "willful" unless it is done, or omitted
to be done, by the Executive in bad faith and without reasonable belief that
the Executive's action or omission was in the best interests of the Company.
Any act, or failure to act, based upon prior approval given by the Board or
upon the instructions or with the approval of the Executive's superior or
based upon the advice of counsel for the Company, shall be conclusively
presumed to be done, or omitted to be done, by the Executive in good faith and
in the best interests of the Company. The cessation of employment of the
Executive shall not be deemed to be for Cause unless and until there shall
have been delivered to the Executive, as part of the Notice of Termination, a
copy of a resolution duly adopted by the affirmative vote of not less than
three-quarters (3/4) of the entire membership of the Board at a meeting of the
Board called and held for the purpose of considering such termination (after
reasonable notice is provided to the Executive and the Executive is given an
opportunity, together with counsel, to be heard before the Board) finding
that, in the good faith opinion of the Board, the Executive is guilty of the
conduct described in clause (a), (b), (c), or (d) above, and specifying the
particulars thereof in detail.
8.4 A "Change in Control" means the occurrence of any of the
following events:
(a) any Person or Persons acting together, excluding employee
benefit plans of the Company, are or become the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 under the Exchange Act or any successor provisions
thereto), directly or indirectly, of securities of the Company representing
twenty-five percent (25%) or more of the combined voting power of the
Company's then outstanding securities;
(b) the Company's shareholders approve (or, in the event no
approval of the Company's shareholders is required, the Company consummates) a
merger, consolidation, share exchange, division or other reorganization or
transaction of the Company (a "Fundamental Transaction") with any other
corporation, other than a Fundamental Transaction which would result in the
voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) at least sixty percent (60%)
of the combined voting power immediately after such Fundamental Transaction of
(i) the Company's outstanding securities, (ii) the surviving entity's
outstanding securities, or (iii) in the case of a division, the outstanding
securities of each entity resulting from the division;
(c) the shareholders of the Company approve a plan of complete
liquidation or winding-up of the Company or an agreement for the sale or
disposition (in one transaction or a series of transactions) of all or
substantially all of the Company's assets;
(d) during any period of twenty-four consecutive months,
individuals who at the beginning of such period constituted the Board
(including for this purpose any new director whose election or nomination for
election by the Company's shareholders was approved by a vote of at least two-
thirds (2/3) of the directors then still in office who were directors at the
beginning of such period) cease for any reason to constitute at least a
majority of the Board; or
8.5 "Company" means First Commercial Corporation, an Arkansas
corporation. If the Executive becomes employed by a direct or indirect
Subsidiary of First Commercial Corporation, the "Company" shall also be deemed
to refer to the Subsidiary thereof by which the Executive is employed. In
such case, references to payments, benefits, privileges or other rights to be
accorded by the "Company" shall be deemed to include such payments, benefits,
privileges or other rights to be provided by the Subsidiary by which the
Executive is employed or First Commercial Corporation, as the case may be, to
correspond to the corporate entity obligated to make payments or provide
benefits, privileges or other rights pursuant to employee benefit plans
affected by the provisions hereof, and in the absence of any such existing
plans or provisions, such reference shall be deemed to be to First Commercial
Corporation.
8.6 "Coverage Period" means the period commencing on the date on
which a Change in Control occurs and ending on the second anniversary date
thereof.
8.7 "Date of Termination" has the meaning assigned to such term in
Section 6.1 hereof.
8.8 "Disability" means the complete disability of the Executive under
the Company's appropriate plan, as amended from time to time.
8.9 "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
8.10 "Good Reason" means:
(a) the determination by the Executive made in good faith within
the first twelve (12) months immediately following a Change in Control that
the Executive cannot effectively carry out his duties to the Company, which
determination shall be made in a writing delivered to the Company; or
(b) the occurrence during the Coverage Period of any of the
following events:
(i) the assignment to the Executive of any duties
inconsistent in any material respect with the Executive's position, authority,
duties or responsibilities immediately prior to a Change in Control or any
other action by the Company which results in a diminution in any respect in
such position, authority, duties or responsibilities, excluding for this
purpose an isolated and inadvertent action not taken in bad faith that is
remedied by the Company promptly after receipt of notice thereof given by the
Executive;
(ii) a reduction by the Company in the Executive's annual
base salary as in effect on the date hereof or as the same may be increased
from time to time;
(iii) the Company's requiring the Executive to be based at
any office or location that is more than fifty (50) miles from the Executive's
office or location immediately prior to either a Potential Change in Control
that precedes a Change in Control or a Change in Control;
(iv) the failure by the Company (a) to continue in effect any
compensation plan in which the Executive participates immediately prior to
either a Potential Change in Control preceding a Change in Control or a Change
in Control that is material to the Executive's total compensation, unless an
equitable arrangement (embodied in an ongoing substitute or alternative plan)
has been made with respect to such plan, or (b) to continue the Executive's
participation therein (or in such substitute or alternative plan) on a basis
not materially less favorable, both in terms of the amount of benefits
provided and the level of the Executive's participation relative to other
participants, than existed immediately prior to a Potential Change in Control
that precedes a Change in Control or a Change in Control;
(v) the failure by the Company to continue to provide the
Executive with benefits substantially similar to those enjoyed by the
Executive under any of the Company's pension, life insurance, medical, health
and accident, disability or other welfare plans in which the Executive was
participating immediately prior to a Potential Change in Control that precedes
a Change in Control or a Change in Control; or
(vi) the failure by the Company to pay to the Executive any
deferred compensation when due under any deferred compensation plan or
agreement applicable to the Executive; or
(vii) the failure by the Company to honor all the terms and
provisions of this Agreement.
8.11 "Notice of Termination" shall have the meaning assigned to such
term in Section 6.1 hereof.
8.12 "Person" shall have the meaning given in Section 3(a)(9) of the
Exchange Act and shall also include any syndicate or group deemed to be a
"person" under Section 13(d)(3) of the Exchange Act.
8.13 "Potential Change in Control" means the occurrence of any of the
following:
(a) the Board approves a transaction described in Subsection (b)
of the definition of Change in Control contained in Section 8.4 hereof;
(b) the commencement of a proxy contest in which any Person seeks
to replace or remove a majority of the members of the Board; or
(c) any Person files an application with the Board of Governors
of the Federal Reserve System for approval of the acquisition of more than
five percent (5%) of the Company's voting securities, or of any class thereof,
under the Bank Holding Company Act of 1956, as amended, or any successor
statute thereto, or files a notice of intent to acquire ten percent (10%) or
more of the Company's outstanding voting securities, or any class thereof,
pursuant to the Change in Bank Control Act or any successor statute thereto.
8.14 "Severance Benefits" has the meaning assigned to such term in
Section 3 hereof.
8.15 "Subsidiary" means any corporation controlled by the Company,
directly or indirectly.
8.16 "Triggering Event" means (i) the termination of the Executive's
employment by the Company at any time during the Coverage Period, other than a
termination for Cause or a termination due to the Executive's Disability or
death or (ii) a termination of the Executive's employment by the Executive at
any time during the Coverage Period when Good Reason exists.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
by its officer, thereunto duly authorized, and the Executive has executed this
Agreement, all as of the day and year first above written.
FIRST COMMERCIAL CORPORATION
By /s/ Barnett Grace
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Name: Barnett Grace
Title: Chief Executive Officer
EXECUTIVE:
/s/ Wayne Hartsfield
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Name: Wayne Hartsfield