EXHIBIT 10(q)
BANCORPSOUTH, INC.
CHANGE IN CONTROL AGREEMENT
THIS AGREEMENT ("Agreement") is entered into this ______ day of
__________, _____, by and between BancorpSouth, Inc. (the "Company") and [NAME]
("Employee").
W I T N E S S E T H:
WHEREAS, Employee is employed as [title] of the Company; and
WHEREAS, the Company desires to provide certain severance payments to
Employee in the event that Employee's employment with the Company is terminated
in connection with a change in control of the Company;
NOW, THEREFORE, based upon the premises set forth herein and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
ARTICLE I. DEFINITIONS
Terms used in this Agreement that are defined are indicated by initial
capitalization of the term. References to an "Article" or a "Section" mean an
article or a section of this Agreement. In addition to those terms that are
specifically defined herein, the following terms are defined for purposes
hereof:
"Administrator" means a committee consisting of the Company's chief
executive officer, the secretary of the Company, the vice president of human
resources, and any other individuals appointed by the chief executive officer.
The Administrator may delegate any of its duties or authorities to any person or
entity. If a Change in Control occurs, as described in this Agreement, the
Administrator shall be the committee of individuals who were committee members
immediately prior to the Change in Control.
"Benefit" means the benefits described in Article II.
"Change in Control" means a transaction or circumstance in which any of
the following have occurred:
(a) any "person" as such term is used in sections 13(d) and 14(d) of the
Exchange Act, other than a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or a
corporation controlling the Company or owned directly or indirectly by
the shareholders of the Company in substantially the same proportions
as their ownership of stock of the Company, becomes the "beneficial
owner" (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of the Company representing more than 25%
of the total voting power represented by the Company's then outstanding
Voting Securities (as defined below), or
(b) during any period of two consecutive years, individuals who at the
beginning of such period constitute the Board and any new director
whose election by the Board or nomination for election by the Company's
shareholders was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the
beginning of the period or whose election or nomination for election
was previously so approved, cease for any reason to constitute a
majority thereof, or
(c) the shareholders of the Company approve a merger or consolidation of
the Company with any other corporation, other than a merger or
consolidation which would result in the Voting Securities (i.e., any
securities of the entity which vote generally in the election of its
directors) 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) more than 65%
of the total voting power represented by the Voting Securities of the
Company or such surviving entity outstanding immediately after such
merger or consolidation, or
(d) the shareholders of the Company approve a plan of complete liquidation
of the Company or an agreement for the sale or disposition by the
Company of all or substantially all of its assets.
"Code" means the Internal Revenue Code of 1986, as amended.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
ARTICLE II. CHANGE IN CONTROL TERMINATION PAYMENT
SECTION 2.1 BENEFITS ON TERMINATION.
(a) Amount. Subject to the conditions, limitations and adjustments that
are provided for herein, the Company will provide Benefits to Employee the sum
of the amounts described below if, within the 24 month period following a Change
in Control, Employee's employment with the Company terminates pursuant to
Section 2.3 of this Agreement:
(1) An amount equal to ____% of the Employee's annual base
compensation determined by reference to his base salary in
effect at the time of Change in Control.
(2) An amount equal to ____% of the highest annual bonus that
Employee would be eligible to receive during the fiscal year
ending during which the Change in Control occurs.
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(3) For a period of ___ months, participation in medical, life,
disability and similar benefit plans that are offered to
similarly situated employees of the Company immediately prior
to the applicable Change in Control for the Eligible Employee
and his dependents. Such participation may be pursuant to the
continuation coverage rights of Eligible Employees pursuant to
Part 6 of Title I of ERISA ("COBRA") or the Company may
provide such benefits directly through the purchase of
insurance or otherwise. Notwithstanding the foregoing, the
period for participation in a self-funded medical plan
pursuant to this paragraph 3 shall not exceed the maximum
period of continuation coverage provided under COBRA. If
benefits are provided pursuant to COBRA continuation rights,
the Company shall pay a cash amount to the Eligible Employee
at the time of severance that is sufficient to cover all
premiums required for such COBRA coverage under the
appropriate benefit plans.
(4) For a period of ___ months, participation in general and
executive fringe benefits offered to similarly situated
executive employees immediately prior to the applicable Change
in Control, including, but not limited to, auto allowance,
financial planning, annual physical examination, and civic and
country club dues.
(b) Adjustments to the Amount of Benefit. Notwithstanding anything
herein to the contrary, the amounts due to Employee under Section 2.1(a) shall
be adjusted in accordance with Section 2.2 if any payment provided to Employee
is determined to be subject to the excise tax described in section 4999 of the
Code.
(c) Time for Payment; Interest. The cash Benefits payable made under
this Section 2.1 shall be paid to Employee in a single lump sum within ten days
following the date of termination. The Company's obligation to pay to Employee
any amounts under this Section 2.1 will bear interest at the lesser of (i) 10%
or (ii) the maximum rate allowed by law until paid by the Company, and all
accrued and unpaid interest will bear interest at the same rate, all of which
interest will be compounded annually.
(d) Troubled Institution Limitation. All Benefit payments hereunder are
subject to the limitations on golden parachute and indemnification payments set
forth in 12 USC ss.1823(k), the regulations promulgated thereunder, and other
law that prohibits payment of any portion of Benefits by the Company to Employee
by the Company. To the extent possible, this limitation shall be applied by
reducing only the portion of Benefits that exceed such legal limitation.
2.2 BENEFIT ADJUSTMENTS. Notwithstanding the amount of Benefits
described in Section 2.1(a), Benefits shall be limited in the event that
Employee would realize less income on the receipt of Benefits and other "change
in control payments" (as defined in section 280G of the Code), net of taxes,
after deducting the amount of excise taxes that would be imposed pursuant to
section 4999 of the Code. In such an event, the Benefits payable hereunder shall
be reduced so that Benefits received in combination with all other change in
control payments to be received by Employee equal the maximum amount that does
not result in the receipt of a "parachute
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payment" (as defined by section 280G(b)(2) of the Code) by Employee. This
reduction shall not apply if the amount of Benefits and other change in control
payments received by Employee exceed such reduced amount after deducting the
excise tax that would be imposed pursuant to section 4999 of the Code.
2.3 TERMINATION OF EMPLOYMENT. Employee shall only be entitled to the
Benefits described in Section 2.1, as adjusted by Section 2.2, if Employee's
termination of employment is on account of termination by Company without cause
or termination by Employee with cause, which are described as follows:
(a) By Company Without Cause Termination of employment by the Company
without cause shall occur if the Company provides oral or written notice to
Employee of involuntary termination that is not on account of just cause. For
this purpose, termination for "just cause" will only occur upon written notice
to Employee that employment is involuntarily terminated due to any of the
following:
(1) conviction of Employee for a crime involving fraud, dishonesty
or theft, or of any felony which, in the reasonable judgment
of the Board, materially affects Employee's ability to perform
his duties pursuant to this Agreement;
(2) commission by Employee of an act of fraud, embezzlement, or
material dishonesty against the Company or its affiliates; or
(3) intentional neglect of or material inattention to Employee's
duties, which neglect or inattention remains uncorrected for
more than 30 days following written notice from the chief
executive officer of the Company detailing the Company's
concern.
(b) By Employee With Cause. Termination of employment by Employee with
cause shall occur if Employee terminates employment for any of the following
reasons:
(1) A material adverse alteration in Employee's position,
responsibilities or status from that which was in effect
immediately prior to a Change in Control.
(2) A reduction in Employee's compensation as in effect
immediately prior to the Change in Control, or a substantial
reduction in the benefits provided to Employee prior to the
Change in Control.
(3) Relocation of Employee by the Company to a location that is
more than 35 miles from the Employee's current workplace.
(4) The material breach of the Company of any portion of its
employment policies and/or any employment agreement with
Employee.
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Provided, however, that 180 days after Employee begins performing duties
pursuant to a position that was offered by the Company (or its successor)
following a Change in Control and that would have otherwise resulted in the
occurrence of the events described in this Section 2.3(b), the occurrence of the
events described in this Section 2.3(b) shall be determined by reference to the
position as it was accepted by Employee following the Change in Control.
ARTICLE III. ADMINISTRATION
SECTION 3.1. The provisions of this Agreement are intended to provide
severance benefits and protection to Employee. The Administrator has absolute
discretion to interpret the terms of this Agreement and to make all
determinations required in the administration hereof, including making
determinations about eligibility for and the amounts of Benefits. All decisions
of the Administrator are final, binding and conclusive on all parties.
SECTION 3.2. Benefits can only be denied or forfeited if Employee does
not satisfy the conditions for receiving payment that are described herein or if
the Company validly amends the Agreement as described in Section 4.4.
SECTION 3.3. If Employee's claim for Benefits is denied, the
Administrator will furnish written notice of denial to Employee within 90 days
of the date the claim is received, unless special circumstances require an
extension of time for processing the claim. This extension will not exceed 90
days, and Employee must receive written notice stating the grounds for the
extension and the length of the extension within the initial 90-day review
period. If the Administrator does not provide written notice, Employee may deem
the claim denied and seek review according to the appeals procedures set forth
below.
(a) Notice of Denial. The notice of denial to the Claimant shall
state:
(1) The specific reasons for the denial.
(2) Specific references to pertinent provisions of the Agreement
on which the denial was based.
(3) A description of any additional material or information needed
for Employee to perfect his claim and an explanation of why
the material or information is needed.
(4) A statement that Employee may request a review upon written
application to the Administrator, review pertinent documents,
and submit issues and comments in writing and that any appeal
that Employee wishes to make of the adverse determination must
be in writing to the Administrator within 60 days after
Employee receives notice of denial of benefits.
(5) The name and address of the Administrator to which Employee
may forward an appeal. The notice may state that failure to
appeal the action to the Administrator
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in writing within the 60-day period will render the
determination final, binding and conclusive.
(b) Appeals Procedure. If Employee appeals to the Administrator,
Employee or his authorized representative may submit in writing whatever issues
and comments he believes to be pertinent. The Administrator shall reexamine all
facts related to the appeal and make a final determination of whether the denial
of benefits is justified under the circumstances. The Administrator shall advise
Employee in writing of:
(1) The Administrator's decision on appeal.
(2) The specific reasons for the decision.
(3) The specific provisions of the Agreement on which the decision
is based.
Notice of the Administrator's decision shall be given within 60 days of the
Claimant's written request for review, unless additional time is required due to
special circumstances. In no event shall the Administrator render a decision on
an appeal later than 120 days after receiving a request for a review.
ARTICLE IV. GENERAL TERMS
SECTION 4.1 NOTICES. All notices and other communications hereunder
will be in writing or by written telecommunication, and will be deemed to have
been duly given if delivered personally or if sent by overnight courier or by
written telecommunication, to the relevant address set forth below, or to such
other address as the recipient of such notice or communication will have
specified to the other party hereto in accordance with this Section:
If to the Company to:
BancorpSouth, Inc.
Personnel Director
P.O. Box 789
Tupelo, MS 38802
If to Employee, to:
[name]
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SECTION 4.2 WITHHOLDING; NO OFFSET. All payments required to be made by
the Company under this Agreement to Employee will be subject to the withholding
of such amounts, if any,
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relating to federal, state and local taxes as may be required by law. No payment
under this Agreement will be subject to offset or reduction attributable to any
amount Employee may owe to the Company or any other person, except as required
by law.
SECTION 4.3 ENTIRE AGREEMENT; MODIFICATION. This Agreement and its
Attachments constitute the complete and entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior agreements
between the parties. The parties have executed this Agreement based upon the
express terms and provisions set forth herein and have not relied on any
communications or representations, oral or written, which are not set forth in
this Agreement.
SECTION 4.4 AMENDMENT. This Agreement may not be modified by an
subsequent agreement unless the modifying agreement: (i) is in writing; (ii)
contains an express provision referencing this Agreement; (iii) is signed and
executed on behalf of the Company by an officer of the Company other than
Employee; and (v) is signed by Employee.
SECTION 4.5 CHOICE OF LAW. This Agreement and the performance hereof
will be construed and governed in accordance with the laws of the State of
Mississippi, without regard to its choice of law principles, except to the
extent that federal law controls or preempts state law.
SECTION 4.6 SUCCESSORS AND ASSIGNS. The obligations, duties and
responsibilities of Employee under this Agreement are personal and shall not be
assignable. In the event of Employee's death or disability, this Agreement shall
be enforceable by Employee's estate, executors or legal representatives. The
obligations, duties and responsibilities of Company hereunder shall be binding
upon any successor of the Company (whether through a transaction described as a
Change in Control or otherwise).
SECTION 4.7 WAIVER OF PROVISIONS. Any waiver of any terms and
conditions hereof must be in writing and signed by the parties hereto. The
waiver of any of the terms and conditions of this Agreement shall not be
construed as a waiver of any subsequent breach of the same or any other terms
and conditions hereof.
SECTION 4.8 SEVERABILITY. The provisions of this Agreement and the
amount of Benefits payable hereunder shall be deemed severable, and if any
portion shall be held invalid, illegal or enforceable for any reason, the
remainder of this Agreement and/or Benefit payment shall be effective and
binding upon the parties.
SECTION 4.9 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which will be deemed an original, and all of which
together will constitute one and the same instrument.
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ARTICLE V. ERISA RIGHTS AND INFORMATION
The parties acknowledge that the following information is provided to Employee
hereunder in connection with Employee's rights as a welfare plan participant
under ERISA. The terms "you" and "yours" refer to Employee.
As a participant in a welfare plan maintained by the Company, you are entitled
to certain rights and protections under ERISA. ERISA provides that all plan
participants shall be entitled to:
o Examine, without charge, at the Administrator's office and at other
specified locations, all plan documents, including insurance contracts,
and copies of all documents filed by the plan with the U.S. Department
of Labor, such as detailed annual reports and plan descriptions.
o Obtain copies of all plan documents and other plan information upon
written request to the Administrator. The Administrator may make a
reasonable charge for the copies.
o Receive a summary of the plan's annual financial report. The
Administrator is required by law to furnish each participant with a copy
of this summary annual report.
In addition to creating rights for plan participants, ERISA imposes duties upon
the people who are responsible for the operation of the employee benefit plan.
The people who operate your plan, called "fiduciaries" of the plan, have a duty
to do so prudently and in the interest of you and other plan participants and
beneficiaries. No one, including the Company or any other person, may fire you
or otherwise discriminate against you in any way to prevent you from obtaining a
benefit under this plan or from exercising your rights under ERISA.
If a claim for a Benefit is denied in whole or in part, you must receive a
written explanation of the reason for the denial. You have the right to have the
Administrator review and reconsider your claim.
Under ERISA, there are steps you can take to enforce the above rights. For
instance, if you request materials from the plan and do not receive them within
30 days, you may file suit in a federal court. In such a case, the court may
require the Administrator to provide the materials and pay you up to $100 a day
until you receive the materials, unless the materials were not sent because of
reasons beyond the control of the Administrator.
If you have a claim for benefits that is denied or ignored, in whole or in part,
you may file suit in a state or federal court. If it should happen that plan
fiduciaries misuse the plan's money or if you are discriminated against for
asserting your rights, you may seek assistance from the U.S. Department of Labor
or you may file suit in a federal court. The court will decide who should pay
court costs and fees. If you lose, the court may order you to pay these costs
and fees, for example, if it finds your claim is frivolous.
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If you have any questions about your plan, you should contact the Administrator.
If you have any questions about this statement or about your rights under ERISA,
you should contact the nearest Area Office of the U.S. Labor-Management Services
Administration, Department of Labor.
SUMMARY OF ERISA INFORMATION
Name of Plan: BancorpSouth, Inc. Change in Control Plan
Name and Address of the Company:
BancorpSouth, Inc.
One Mississippi Plaza
201 South Spring Street
Tupelo, MS 38804
Who Pays for the Plan: The cost of the plan is paid entirely by the Company.
The Company's Employer Identification No.: 64-0659571
Plan Number: 520
Plan Year: January 1 to December 31
Plan Administrator, Name, Address and Telephone No.:
Administrator of the BancorpSouth, Inc. Change in Control plan
c/o Cathy Freeman
BancorpSouth, Inc.
One Mississippi Plaza
201 South Spring Street
Tupelo, MS 38804
(662) 680-2000
Agent for Service of Legal Process on the Plan: Chief Executive Officer or
Administrator.
Benefits are paid out of the general assets of the Company. The Company may, in
its discretion establish a "grantor trust" to fund the payment of Benefits.
Otherwise, this plan does not give you any rights to any particular assets of
the Company. Cash amounts paid under a severance plan are generally considered
taxable income to the recipient.
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IN WITNESS WHEREOF, Company and Employee have caused this Agreement to
be executed on the day and year indicated below to be effective on the day and
year first written above.
EMPLOYEE
- ------------------------------------ ----------------------------------
[NAME] Date
COMPANY:
BANCORPSOUTH, INC.
By:
-------------------------------- ----------------------------------
Date
Its:
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