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EXHIBIT 10 (e)
Stock Bonus Agreement between BancorpSouth
and Michael W. Weeks and Escrow Agreement
between Bank of Mississippi and Michael W. Weeks
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STOCK BONUS AGREEMENT
AGREEMENT made as of January 17, 1995, between BANCORPSOUTH, INC.
("Bancorp" or, collectively with its subsidiaries, the "Company") and MICHAEL W.
WEEKS ("Weeks").
WHEREAS, the Company desires to retain the full-time, dedicated services
of Weeks as Vice Chairman of Volunteer Bank, or such other assigned positions
with the Company as the Board of Directors of Bancorp may determine, and to be
assured of its right to his services in said capacities; and
WHEREAS, Weeks is willing to serve in that capacity, or such other
senior officer capacities as may be assigned;
The parties, in consideration of the premises and other mutual
agreements hereinafter set forth, agree as follows:
1. Services to be Provided by Weeks. Weeks agrees to serve as Vice
Chairman of Volunteer Bank, or in any other senior officer capacity with the
Company assigned by the Board of Directors, pursuant to his employment
arrangement with the Company and agrees to devote substantially all his time to
performing such duties as may from time to time be assigned to him by the Board
of Directors of Bancorp and to grant the Company his undivided loyalty as long
as he continues to be employed by the Company.
2. Term. The term of this Agreement shall be from April 1, 1995, until
April 1, 2005. This Agreement is not an employment contract. The existence of
this Agreement shall not affect in any way the Company's right to discharge
Weeks.
3. Bonus Compensation; Stock Ownership. Simultaneously with the
execution of this Agreement, Bancorp shall deliver 15,000 shares of the $2.50
par value common stock of Bancorp ("Common Stock"), which may be either
authorized but unissued shares or shares held in the treasury of Bancorp, and
Weeks shall execute and deliver an Escrow Agreement in the form of Exhibit A
annexed hereto (the "Escrow Agreement"). Pursuant to the terms of the Escrow
Agreement and this Agreement, Weeks shall be entitled to receive notices of all
meetings of shareholders and vote the shares at such meetings and to receive
dividends paid with respect to the shares as set forth in Section 6 of the
Escrow Agreement. Weeks shall have no other right or interest in and to such
shares of Common Stock until such shares have been released to him by the Escrow
Agent upon the occurrence of the events specified in Section 2 and Section 3(b)
and Section 4 of the Escrow Agreement. In the event the Company does not
achieve either a .9% Return on Average Assets or a 11.29% Return on Average
Equity for any given year, no shares of Common Stock shall be released to Weeks
in the succeeding year.
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Such unreleased shares of Common Stock shall, however, remain in escrow and
shall be distributed in accordance with Section 2, 3(b) and 4 of the Escrow
Agreement.
In the event Weeks voluntarily terminates his employment with the
Company other than as provided in Section 6(b) hereof or if this Agreement is
terminated by the Company pursuant to Section 6(a)(i) hereof prior to April 1,
2005, Weeks shall retain full ownership of the shares of Common Stock that have
been released to him pursuant to the provisions of the Escrow Agreement and
Weeks shall forfeit all right, title and interest in and to any shares of Common
Stock still subject to the Escrow Agreement, which shares shall be delivered to
Bancorp to be held in treasury or to be cancelled as shall be determined by its
Board of Directors. In the event this Agreement is terminated pursuant to
Section 6(b) hereof prior to April 1, 2005, Weeks shall be entitled to receive
all shares of Common Stock held by the Escrow Agent as of such termination date
and shall be entitled to retain full ownership of all such shares of Common
Stock.
4. Covenants of Weeks. Weeks covenants that, as of the date of this
Agreement, he is not in violation of any agreement, covenant, court order,
consent decree, statute or other binding commitment of his to do, or refrain
from doing, any act, and that by entering into this Agreement he will not
thereby violate any such agreement, covenant, court order, consent decree,
statute or other binding commitment.
5. Noncompetition. Weeks agrees not to compete with the Company as
follows:
(a) Noncompetition. Weeks agrees that, upon termination of
this Agreement for any cause whatsoever other than a change in
control of the Company as defined in Section 6(b) hereof, he will
not directly or indirectly, as principal, agent, employee or in any
other capacity, for the term of two (2) years from the date of such
termination of employment, enter into or engage in the same
business now being carried on by the Company or as may be carried
on by the Company from the date hereof to the date of Weeks'
termination, or within any state in which the Company does
business. Furthermore, during that two-year period he will not,
directly or indirectly, divert or attempt to divert business from
the Company.
(b) Respect for employee relationships. Weeks agrees that
upon termination of this Agreement, he will not, without the prior
written consent of the Company, directly or indirectly, as
principal, agent, employee or in any other capacity, for the term
of two years from the date of such termination of employment, hire,
entice away
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or in any other manner persuade any employee of the Company to
discontinue his relationship with the Company.
(c) Return of documents. Weeks agrees that, upon termination
of this Agreement for any cause whatsoever, he shall deliver to the
Company all correspondence, agreements, contracts, books of
account, records, files, research, manuals or other documents, and
all copies thereof, relating to, concerning or arising out of the
business and operations of the Company.
(d) Reasonable nature of restrictions. Weeks represents and
admits that, in the event of the termination of his employment for
any reason whatsoever, his experience and capabilities are such
that he can obtain employment in business not in competition with
the Company, and that enforcement of a remedy by way of injunction
will not prevent him from earning a livelihood. Weeks further
represents and admits that the period of two years following
termination of his employment with the Company, during which time
he may not compete with the Company nor disturb the relationship
between the Company and its employees, is reasonably necessary to
protect the interests of the Company and would not unfairly or
unreasonably restrict Weeks.
6. Termination and Severance. It is the contemplation of the parties
hereto that this Agreement shall not be terminated prior to the expiration of
the initial term set forth in Section 2 hereof.
(a) Termination by the Company. Notwithstanding the
foregoing, the Company shall have the immediate right to terminate
this Agreement upon the happening of any of the following events:
(i) an act, in the good faith judgment of the Board of
Directors of Bancorp, of dishonesty, embezzlement or fraud
against the Company; Weeks' conviction of a misdemeanor
involving dishonesty or breach of trust; Weeks' conviction of
a felony; or the issuance of any order for Weeks' removal as
an employee of the Company by any state or federal regulatory
agency or court of competent jurisdiction; or
(ii) the death of Weeks or the mental or physical
illness, disability or incapacity of Weeks which, in the
reasonable and good faith judgment of the Board of Directors
of Bancorp, prevents Weeks from performing his duties
hereunder and the
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continuance of such illness, disability or incapacity for a
period of 90 substantially consecutive days.
(b) Termination by Weeks. Notwithstanding the foregoing,
Weeks shall have the immediate right to terminate this Agreement in
the event there is a change in control of the Company, as defined
in (c) below.
(c) Change in Control. Change in control of an entity shall
be deemed to have occurred if:
(i) any "person" as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended,
other than a trustee or other fiduciary holding securities
under an employee benefit plan of the entity or a corporation
controlling the entity or owned directly or indirectly by the
stockholders of the entity in substantially the same
proportions as their ownership of stock of such entity;
becomes the "beneficial owner" (as defined in Rule 13d-3
under said Act), directly or indirectly, of securities of
such entity representing more than 25% of the total voting
power represented by such entity's then outstanding Voting
Securities (as defined below), or
(ii) during any period of two consecutive years,
individuals who at the beginning of such period constitute
the Board of Directors of such entity and any new director
whose election by the Board of Directors or nomination for
election by such entity's stockholders was approved by a vote
of at least two-thirds (2/3) 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
(iii) the stockholders of such entity approve a merger
or consolidation of such entity with any other corporation,
other than a merger or consolidation which would result in
the Voting Securities of such entity 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 such entity or such
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surviving entity outstanding immediately after such merger or
consolidation, or the stockholders of such entity approve a
plan of complete liquidation of such entity or an agreement
for the sale or disposition by such entity of all or
substantially all of its assets.
For purposes of this section "Voting Securities" of an
entity shall mean any securities of the entity which vote
generally in the election of its directors.
7. Merger. Upon a merger or consolidation in which Bancorp is not the
surviving entity this Agreement shall continue unless terminated by Weeks
pursuant to Section 6(b), and the surviving corporation shall substitute its
common shares having a value equivalent to the value of the Common Stock for the
Common Stock required to be delivered after consummation of the merger.
8. Election. Upon receipt of Common Stock, Weeks may desire to make an
election under Section 83(b) of the Internal Revenue Code of 1986 ("Code")
regarding the timing and amount of compensation income to be recognized by him
on account of his receipt of Common Stock. The making of such an election shall
be wholly within the discretion of Weeks and it shall be the sole responsibility
of Weeks to see that such election, if desired, is properly made and timely
filed. If Weeks makes such an election, he shall inform the Company in writing
immediately thereafter.
9. Withholding. Whenever Weeks shall recognize compensation income as a
result of the receipt of Common Stock, he shall remit to the Company the minimum
amount of federal and state income and employment tax withholding which the Bank
or the Company is required to remit to the Internal Revenue Service or
applicable state department of revenue in accordance with the then current
provisions of the Code or applicable state law ("Withholding Tax"). The full
amount of the Withholding Tax shall be remitted simultaneously with the filing
of an election described in Section 7 or upon the occurrence of any other event
which results in the recognition of compensation income by Weeks. The
Withholding Tax may be paid by (i) cash, (ii) a certified check or (iii)
delivery of shares of Common Stock with a fair market value equal to the amount
of the Withholding Tax. (The fair market value of the Common Stock shall be
determined in accordance with the Treasury Regulations under Code Section 2031
as in effect on the date hereof.)
10. Nonassignment. No party hereto may assign any rights hereunder.
Any such purported delegation or assignment shall be void.
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11. Severability. It is the intention of the Company and Weeks that the
provisions of this Agreement shall be enforced to the fullest extent permissible
under the laws of the State of Mississippi, but that the unenforceability (or
the modification to conform with such laws or public policies) of any provisions
hereof shall not render unenforceable or impair the remainder of this Agreement.
Accordingly, if any provision of this Agreement shall be determined to be
invalid or unenforceable, either in whole or in part, this Agreement shall be
deemed amended to delete or modify, as necessary, the offending provisions and
to alter the balance of this Agreement in order to render the same valid and
enforceable to the fullest extent permissible as aforesaid.
12. Miscellaneous. (a) The existence of this Agreement shall not affect
in any way the right or power of Bancorp to make or authorize any adjustment,
reclassification, reorganization or other change in its capital or business
structure, any merger or consolidation of Bancorp, any issue of debt or equity
securities having preferences or priorities as to the Common Stock or the rights
thereof, the dissolution or liquidation of Bancorp, any sale or transfer of all
or any part of its business or assets, or any other corporate act or proceeding.
(b) This Agreement may only be amended or modified in writing as agreed
upon by all the parties hereto.
(c) All notices or other communications pursuant to this Agreement
shall be in writing and shall be deemed to have been duly given, if by hand
delivery, upon receipt thereof, or if mailed by certified or registered mail,
postage prepaid, three days following deposit in the United States mail, and
in any event, to be addressed to all of the parties as follows:
to the Company, at
One Mississippi Plaza
Tupelo, Mississippi 38801
to Weeks, at
Volunteer Bank
P. O. Box 549
Jackson, Tennessee 38302
or to such other address as shall hereafter be provided by proper notice to the
other parties.
(d) The captions and headings herein are for convenience of reference
only and shall not be deemed to be a part of the substance of this Agreement.
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(e) This Agreement shall be construed and interpreted according to the
laws of the State of Mississippi.
(f) The foregoing contains the entire and only agreement between the
parties respecting the subject matter hereof, and any representation, promise
or condition in connection therewith not incorporated herein shall not be
binding upon either party.
(g) The foregoing agreement shall be binding upon the parties hereto
and there respective heirs, successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
BANCORPSOUTH, INC.
By: /s/ Aubrey B. Patterson, Jr.
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Aubrey B. Patterson, Jr.
By: /s/ Michael W. Weeks
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MICHAEL W. WEEKS
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ESCROW AGREEMENT
AGREEMENT made as of January 17, 1995, among MICHAEL W. WEEKS ("Weeks"),
BANCORPSOUTH, INC. (the "Company") and BANK OF MISSISSIPPI as escrow agent
("Escrow Agent").
WHEREAS, Weeks has the right to acquire 15,000 shares of the Company's
Common Stock, $2.50 par value ("Common Stock"), and, pursuant to the terms of a
Stock Bonus Agreement, dated as of January 17, 1995, between Weeks and the
Company (the "Stock Agreement"), Weeks has agreed to place such shares of Common
Stock in escrow to be released to him upon the occurrence of certain events; and
WHEREAS, Escrow Agent is willing to act as escrow agent for the purposes
of holding such shares of Common Stock pending their release to Weeks or
forfeiture to the Company.
NOW, THEREFORE, the parties, in consideration of the premises and other
mutual agreements hereinafter set forth, agree as follows:
1. Weeks hereby agrees that upon the issuance of the Common Stock under the
Stock Agreement, he will cause the Company to issue ten stock
certificates, each for 1,500 shares of the Common Stock, registered in the
name of Michael W. Weeks. Weeks agrees that upon the issuance of any
Additional Installments, as defined in Section 2 of this Agreement, he
will cause the Company to issue a number of certificates equal to the
number of full years remaining in the term of the Stock Agreement on the
date the Additional Installment is made. Each such certificate shall be
for an equal number of shares; provided, however, that such certificates
may be for an unequal number of shares to the extent necessary to prevent
the issuance of fractional shares. (Certificates issued upon the
execution of the Stock Agreement and Additional Installments are referred
to herein as "Certificates"). Each Certificate will bear a legend
substantially as follows:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
THE TERMS OF AN ESCROW AGREEMENT, DATED JANUARY 17, 1995,
AMONG MICHAEL W. WEEKS, BANCORPSOUTH, INC. AND BANK OF
MISSISSIPPI, AS ESCROW AGENT, AND MAY NOT BE SOLD OR
TRANSFERRED EXCEPT IN COMPLIANCE WITH SUCH AGREEMENT. A
COPY OF THE ESCROW AGREEMENT IS AVAILABLE AT THE PRINCIPAL
OFFICES OF BANCORPSOUTH, INC.
Upon issuance Weeks will, or will cause the Company to, deposit the
Certificates with the Escrow Agent, together with
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one stock power for each Certificate, duly executed in blank, to be held
by the Escrow Agent in accordance with the terms of this Agreement.
2. The Escrow Agent will hold the Certificates until they are released. A
Certificate, and the attendant stock power, shall be released to Weeks
upon April 1, 1996, and upon each succeeding April 1 while he is employed
by the Company, until all Certificates have been released.
Notwithstanding the foregoing, upon receipt, prior to April 1 of any
year, of a Certificate signed by the majority of the Company's Board of
Directors and the Company's Secretary certifying that according to the
Company's annual report for the Company's year ending on the preceding
December 31, the Company's Return on Average Assets was less than .9% and
its Return on Average Equity was less than 11.2%, the Escrow Agent will
complete the stock powers relating to the Certificates to be delivered to
Weeks on April 1 of the year that follows such December 31 and shall then
deliver those Certificates, together with the accompanying stock powers,
to the Company. Upon such April 1 the Company shall deliver to the
Escrow Agent, as an additional installment ("Additional Installment"),
new Certificates, and accompanying stock powers, for a number of shares
equal to the number of shares returned to the Company.
3. Notwithstanding the provisions of Section 2 hereof, upon receipt of a
certificate signed by the majority of the Company's Board of Directors and
the Company's Secretary certifying that:
(a) Weeks' employment with the Company or a
subsidiary of the Company has been terminated in accordance
with the provisions of Section 6(a) of the Stock Agreement or
that Weeks has voluntarily terminated his employment with the
Company or a subsidiary of the Company, the Escrow Agent will
complete the stock powers relating to all Certificates held
by it and deliver such Certificates, together with the
accompanying stock powers, to the Company; or
(b) Weeks' employment with the Company and/or its
subsidiaries has been terminated in accordance with the
provisions of Section 6(b) of the Stock Agreement, the Escrow
Agent will deliver to Weeks all Certificates held by it with
the accompanying stock powers.
4. Notwithstanding the provisions of Section 2 hereof on April 1, 2005, the
Escrow Agent shall deliver to Weeks all Certificates
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in its possession, together with the accompanying stock powers.
5. Upon delivery of the Certificates to Weeks, they will bear appropriate
state and federal securities legends as directed by the Company and
appropriate stop transfer instructions will be noted in the stock records
of the Company.
6. During the period that the Escrow Agent holds any of the Certificates,
Weeks shall be entitled to notice of all meetings, annual or special, of
stockholders of the Company at which stockholders have the right to vote
and Weeks shall be entitled to vote all shares represented by such
Certificates held by the Escrow Agent at any such meeting upon any matter
upon which stockholders of the Company have the right to vote. Weeks
shall not be entitled to any of the other attributes of ownership of the
shares subject to escrow, nor shall he have the right to pledge,
hypothecate or otherwise encumber such shares; provided, however, that
Weeks shall be entitled to receive cash dividends paid with respect to any
shares held in escrow. In the event the Company increases or decreases
the number of shares of Common Stock outstanding by means of a stock
split, stock dividend or recapitalization, certificates representing any
additional shares which Weeks would be entitled to receive as the record
holder of any shares of Common Stock subject to escrow shall automatically
be delivered by the Company to the Escrow Agent and such shares shall be
subject to the terms of this Agreement as if they were part of the
Certificates in respect of which they were received.
7. (a) The Escrow Agent shall not be liable to any person for any act by it
except for gross negligence or willful misconduct by the Escrow Agent.
Each of Weeks and the Company, severally, agrees to indemnify and hold
harmless the Escrow Agent for all liabilities of the Escrow Agent arising
from the doing of any act or the failure to do any act except conduct
constituting gross negligence or willful misconduct by the Escrow Agent.
(b) The Escrow Agent shall be obligated only for the performance of such
duties as are specifically set forth herein and shall be protected in
acting or refraining from acting in reliance on any instrument reasonably
believed by it to be genuine and to have been signed or presented by the
proper party or parties. Except as set forth in Section 7(a), the Escrow
Agent shall not be personally liable for any act it may do or omit to do
hereunder as Escrow Agent while acting in good faith and in the exercise
of its own good judgment, and any act done or omitted by it pursuant to
the advice of its own attorneys shall be conclusive evidence of such good
faith.
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(c) In case the Escrow Agent obeys or complies with any order, judgment
or decree of any court, it shall not be liable to any of the parties
hereto or to any other person, firm or corporation by reason of such
compliance, notwithstanding any such order, judgment or decree being
subsequently reversed, modified, annulled, set aside, vacated or found to
have been entered without jurisdiction.
(d) The Escrow Agent shall be entitled to employ such legal counsel and
other experts as it may deem necessary properly to advise it in
connection with its obligations hereunder. The Escrow Agent may rely
upon the advice of such counsel, and may pay such counsel reasonable
compensation therefor.
(e) The Company agrees to reimburse Escrow Agent for all expenses
incurred by it in the performance of its services under this Agreement.
The Escrow Agent agrees to maintain adequate records and in such form and
detail to support any claim for reimbursement hereunder and to furnish
such records or copies to the Company as it may request.
8. If the Escrow Agent reasonably requires other or further instruments in
connection with this Agreement or its obligations in respect hereto,
Weeks, and the Company each agree that he or it shall furnish such
instruments.
9. It is understood and agreed that should any dispute arise with respect to
the delivery and/or ownership or right of possession of the securities
held by the Escrow Agent hereunder, the Escrow Agent is authorized and
directed to retain in its possession without liability to anyone all or
any part of said securities until such dispute shall have been settled
either by mutual written agreement of the parties concerned or by a final
order, decree or judgment of a court of competent jurisdiction after the
time for appeal has expired and no appeal has been perfected, but the
Escrow Agent shall be under no duty whatsoever to institute or defend any
such proceedings, whether by interpleader or otherwise.
10. Miscellaneous.
(a) This Agreement may only be amended or modified in writing executed by
the parties hereto.
(b) All notices or other communications pursuant to this Agreement shall
be in writing and shall be deemed to have been duly given, if by hand
delivery, upon receipt thereof, or if mailed by certified or registered
mail, postage prepaid, three days following deposit in the United States
mail, and in any event, to be addressed to:
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the Company, at
One Mississippi Plaza
Tupelo, Mississippi 38801
Weeks, at
Volunteer Bank
P. O. Box 549
Jackson, Tennessee 38302
Escrow Agent, at
One Mississippi Plaza
Tupelo, Mississippi 38801
or to such other address as shall hereafter be provided by proper notice
to the other parties.
(c) This Agreement shall be construed and interpreted according to the
laws of the State of Mississippi.
(d) The foregoing, in conjunction with the Stock Agreement, contains the
entire and only agreement between the parties respecting the subject
matter hereof, and any representation, promise or condition in connection
therewith not incorporated herein or therein shall not be binding upon
either party.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
WITNESS:
/s/ Cathy M. Robertson /s/ Michael W. Weeks
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MICHAEL W. WEEKS
BANCORPSOUTH, INC.
Attest:
/s/ Cathy M. Robertson By: /s/ Aubrey B. Patterson,
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Secretary
BANK OF MISSISSIPPI
Attest:
/s/ Cathy M. Robertson By: /s/ Aubrey B. Patterson, Jr.
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Secretary
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