UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934
December 16, 2008
Date of Report (Date of earliest event reported)
RENASANT CORPORATION
(Exact name of registrant as specified in its charter)
Mississippi | 001-13253 | 64-0676974 | ||
(State or other jurisdiction of incorporation) | (Commission File Number) |
(IRS Employer Identification No.) |
209 Troy Street, Tupelo, Mississippi 38804
(Address of principal executive offices)(Zip Code)
Registrants telephone number, including area code: (662) 680-1001
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
(b) On February 11, 2009, Larry R. Mathews, an Executive Vice President and a named executive officer of Renasant Corporation (the Company), resigned his employment with the Company, effective immediately. In consideration for a general waiver and release in favor of the Company and its affiliates, the Company and Mr. Mathews entered into a Separation Agreement under which Mr. Mathews will receive the remainder of his 2009 base compensation (which was $239,000), his country club dues for the remainder of 2009, and title to the Company-owned vehicle that he currently uses. The Company further agreed that the non-competition and non-solicitation covenants applicable to Mr. Mathews will terminate at the end of 2009. The Company released Mr. Mathews from any claims that it might have against him, except for, among others, claims arising from illegal action or from actions that would bar him from being indemnified under the Companys Bylaws.
The foregoing description of the Separation Agreement is qualified in its entirety by reference to the agreement itself, a copy of which is attached hereto as Exhibit 10.1 and incorporated herein by reference.
(e) Amendments to Deferred Compensation Plans. On December 16, 2008, the Company entered into technical amendments to its Deferred Stock Unit Plan and to the Renasant Bank Executive Deferred Income Plan and the Renasant Bank Directors Deferred Fee Plan. The purpose of these amendments, which were effective as of January 1, 2009, was to bring these plans into compliance with Section 409A of the Internal Revenue Code of 1986, as amended (the Code), and applicable regulations thereunder. Copies of the amendments to the foregoing plans are attached hereto as Exhibits 10.2, 10.3 and 10.4, respectively.
Severance Pay Plan. On December 16, 2008, the Board of Directors adopted the Renasant Corporation Severance Pay Plan. The plan, which was effective January 1, 2009, provides for severance benefits to officers and employees of the Company and its subsidiaries designated by the Board or the Boards designee. A participant in the plan is entitled to receive up to 26 weeks of base salary as severance upon his or her involuntary termination of employment, other than for cause. The actual severance payment is based on the participants number of years of service. The plan also provides that if, within two years following a change in control, a participant is terminated without cause or terminates his or her employment for good reason, he or she is entitled to severance equal to 26 weeks of base salary. Participants are also entitled to COBRA continuation premium payments under the plan.
All severance benefits are contingent on the participants release of any claims that he or she may have against the Company. Also, a participant who is party to an employment or similar agreement with the Company at the time of his or her termination is not eligible to receive severance benefits under the plan. The plan has been designed to comply with Code Section 409A. Cause, change in control and good reason are each defined in the plan.
Two of our named executive officers, Stuart R. Johnson and C. Mitchell Waycaster, have been designated as participants in the plan. Upon their qualified termination, they would each be entitled to receive 26 weeks of base salary as severance and COBRA continuation premium payments for 6 months. Mr. Johnson and Mr. Waycaster are parties to separate change in control agreements with the Company and will not be eligible to receive similar benefits under the Severance Pay Plan.
The foregoing description of the Severance Pay Plan is qualified in its entirety by reference to the plan itself, a copy of which is attached hereto as Exhibit 10.5 and incorporated herein by reference.
Change in Control Agreements. Effective January 1, 2009, the Company entered into change in control agreements with a number of its senior executive officers, including Stuart R. Johnson and C. Mitchell Waycaster. These agreements amend, restate and replace previous agreements with such executives that provided for payments in certain circumstances following a change in control of the Company.
Under the amended and restated change in control agreements, which have a one-year term and must be annually renewed, if an executives employment is involuntarily terminated without cause or he or she terminates employment for good reason, either within the 24-month period following the consummation of a change in control of the Company, then the executive is entitled to receive a severance payment equal to a specified multiple, not more than two times, of the sum of (1) annualized base compensation, and (2) average incentive bonus for the two full years preceding such change. For Mr. Johnson and Mr. Waycaster, the multiple is 2.00. Severance is payable in a lump sum promptly after termination (or six months thereafter if necessary to comply with Code Section 409A), and is in lieu of any other change in control payments that might be payable to the executive (including under the Severance Pay Plan described above). In addition, upon the occurrence of a change in control, an executives incentive awards vest in full and all performance conditions are deemed to have been satisfied. An executive also is entitled to receive premium contributions for the COBRA continuation period, which is a maximum period of 18 months, as well as payment of his or her incentive bonus for the previous year, to the extent not already paid. Cause, change in control, and good reason are each defined in the Change in Control Agreement.
Copies of the Change in Control Agreement with each of Mr. Johnson and Mr. Waycaster are attached hereto as Exhibits 10.6 and 10.7, respectively, and are incorporated herein by reference. The foregoing description of the change in control agreements is qualified in its entirety by reference to such agreements.
Resignation of Larry R. Mathews. The description of the Separation Agreement entered into between the Company and Larry R. Mathews in connection with his resignation from the Company is incorporated into this subsection (e) by reference.
Item 9.01 | Financial Statements and Exhibits. |
(d) The following exhibits are furnished herewith:
Exhibit No. |
Description |
|
10.1 | Separation Agreement dated February 11, 2009 between the Company and Larry R. Mathews | |
10.2 | Final 409A Compliance Amendment to Renasant Corporation Deferred Stock Unit Plan | |
10.3 | Final 409A Compliance Amendment to Renasant Bank Executive Deferred Income Plan | |
10.4 | Final 409A Compliance Amendment to Renasant Bank Directors Deferred Fee Plan | |
10.5 | Renasant Corporation Severance Pay Plan | |
10.6 | Change in Control Agreement dated as of January 1, 2009 between Renasant Corporation and Stuart R. Johnson | |
10.7 | Change in Control Agreement dated as of January 1, 2009 between Renasant Corporation and C. Mitchell Waycaster |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
RENASANT CORPORATION | ||||||
Date: February 17, 2009 | By: | /s/ E. Robinson McGraw | ||||
E. Robinson McGraw | ||||||
Chairman, President and Chief | ||||||
Executive Officer |
Exhibit Index
Exhibit No. |
Description |
|
10.1 | Separation Agreement dated February 11, 2009 between the Company and Larry R. Mathews | |
10.2 | Final 409A Compliance Amendment to Renasant Corporation Deferred Stock Unit Plan | |
10.3 | Final 409A Compliance Amendment to Renasant Bank Executive Deferred Income Plan | |
10.4 | Final 409A Compliance Amendment to Renasant Bank Directors Deferred Fee Plan | |
10.5 | Renasant Corporation Severance Pay Plan | |
10.6 | Change in Control Agreement dated as of January 1, 2009 between Renasant Corporation and Stuart R. Johnson | |
10.7 | Change in Control Agreement dated as of January 1, 2009 between Renasant Corporation and C. Mitchell Waycaster |
Exhibit 10.1
RENASANT CORPORATION
SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT (the Agreement) is made effective as of February 11, 2009, between Renasant Corporation and each of its subsidiaries and affiliates (collectively, the Company) and Larry R. Mathews (Executive).
1. Separation from Employment: Effective as of February 11, 2009, Executive hereby voluntarily resigns his employment with the Company (his Separation Date).
2. Final Wages: The Company shall pay to Executive any base compensation accrued but unpaid as of his Separation Date as soon as practicable thereafter.
3. Mutual Obligations: Provided that Executive executes a General Waiver and Release in the from and at the time prescribed under paragraph 4 hereof and such release becomes irrevocable in accordance with its terms:
a. | Executive acknowledges that on account of his voluntary resignation hereunder, the Companys obligations under that certain Employment Agreement by and between Executive and the Company dated July 14, 2004 (his Employment Agreement), are extinguished, in their entirety, without the payment of compensation or benefits, and that he is not otherwise entitled to severance or similar amounts under any separate plan, policy or program maintained by the Company. |
b. | The Company acknowledges that on account of Executives voluntary resignation hereunder, Executives obligations under his Employment Agreement are extinguished, in their entirety, except as set forth herein. |
4. Severance Amount: Provided that Executive executes a General Wavier and Release in the form attached hereto as Exhibit A during the 21 days following his Separation Date and such General Waiver and Release becomes irrevocable in accordance with its terms, the Company shall pay or provide to Executive:
a. | His base compensation at the periodic rate in effect as of his Separation Date, to be paid as of each of the Companys regularly scheduled pay dates during the period commencing as of his Separation Date and ending as of December 31, 2009; provided that the initial payment thereof shall be no earlier than the date on which Executives General Waiver and Release is irrevocable in accordance with its terms; |
b. | A monthly amount equal to the dues payable with respect to Executives membership in the Greystone Golf and Country Club, such amount to be paid during the period specified in subparagraph a hereof; and |
c. | Title to that certain 2006 Toyota Avalon currently in his possession, to be transferred as of the date on which Executives Waiver and Release shall become irrevocable. |
Notwithstanding the foregoing, if during the Restricted Period, Executive is employed in, or engages in, the Business in the Territory, any payments required under subparagraphs a and b hereof shall cease. Executive agrees that he shall promptly inform the Company of any such employment and that he shall reimburse to the Company the amount of any payment made hereunder with respect to the period after such employment commences. For this purpose, the term Restricted Period means the period
commencing on Executives Separation Date and ending as of December 31, 2009; Business means commercial banking or the lending of money, to the extent actively engaged in by the Alabama division of the Company during the Restricted Period; Territory means the counties of Jefferson, Madison, Morgan, and Shelby, Alabama.
5. Equity Compensation: Executive acknowledges that restricted stock awarded to him under the Companys 2001 Long-Term Incentive Plan (the LTIP) with respect to services to be performed during the Companys 2009 fiscal year, shall be forfeited and cancelled as of his Separation Date.
Any stock options granted to Executive under the LTIP that are vested and remain unexercised as of his Separation Date shall remain exercisable during the 60-day period following his Separation Date in accordance with their terms. Executive acknowledges that options not vested as of his Separation Date, if any, shall be cancelled and forfeited to the Company as of such date. Options otherwise exercisable hereunder that remain unexercised at the conclusion of such 60-day period shall be cancelled and forfeited to the Company at the conclusion of such period.
6. Other Benefits and Compensation: Except as may be expressly provided herein, this Agreement is not intended to affect, increase or restrict Executives benefits, rights and coverages under the separate employee benefit plans, policies and programs generally maintained by the Company for the benefit of its employees or officers in which Executive participated as of his Separation Date, including any contribution that may be due to Executive under the terms of the Companys tax-qualified retirement plan with respect to Executives compensation paid or accrued during the Companys 2008 fiscal year; provided that Executive acknowledges that he is not entitled to a bonus under the Companys Annual Incentive Plan for services that he performed in 2008, that he will not be entitled to a bonus under such plan with respect to any services that he has performed during 2009, and that any amount paid pursuant to paragraph 3 hereof shall not be taken into account for purposes of any contribution to any such plan or be eligible for deferral thereunder.
7. Executives Covenants: During the Restricted Period, Executive shall not, directly or indirectly, knowingly:
a. | Solicit or contact for business purposes any existing customer of the Company, or solicit or contact for business purposes any prospective customer of the Company, in either case for the purpose of competing with the Business; |
b. | Induce, or attempt to induce, any employee, agent or consultant of the Company to violate any covenant to which Executive is otherwise bound hereunder; |
c. | Interfere with any existing agreements or other arrangements to which the Company is a party, or interfere with any proposed agreement or arrangement to which the Company may be a party; or |
d. | Induce, or attempt to induce, solicit, offer or aid others to offer employment or engagement as a consultant or agent to any one who is a full-time employee, agent or consultant of the Company as of his Separation Date. |
In addition, during the Restricted Period and at all times thereafter, Executive shall not disclose to any person, except as may be required by law, any non-public information concerning the business, clients or affairs of the Company for any reason or purpose whatsoever. Executive shall further not make any use
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of such non-public information for his own purpose or for the benefit of anyone else, except the Company.
8. Return of Property: Except as provided herein, Executive shall promptly return to the Company all of the property of the Company, including, without limitation, equipment, computers, fax machines, portable telephones, printers, software, credit cards, manuals, customer lists, financial data, letters, notes, notebooks, reports and copies of any of the above and any confidential information that is in the possession or under the control of Employee.
9. Nondisparagement: As a material inducement to the Company to enter into this Agreement, Executive agrees that he will not:
a. | Publicly criticize or disparage the Company, or privately criticize or disparage the Company, in any manner intended or reasonably calculated to result in public embarrassment to, or injury to the reputation of, the Company in any community in which the Company is engaged in business; or |
b. | Damage the property of the Company or otherwise engage in any misconduct which is injurious to the business or reputation of the Company. |
Notwithstanding the foregoing, Executive shall not be deemed in breach of the covenants contained herein solely by reason of testimony compelled by process of law.
Likewise, the Company agrees that it will not publicly or privately criticize or disparage Executive in a manner intended or reasonably calculated to result in embarrassment to, or injury to the reputation of, Executive in the community, except that the Company shall report Executives separation on Form 8-K and as otherwise may be required under applicable law.
10. No Participation in Claims: Executive waives any right to in any way voluntarily assist any individual or entity in commencing or prosecuting any action or proceeding including, but not limited to, any administrative claims, charges or complaints and/or any lawsuit against the Company, or to in any way voluntarily participate or cooperate in any such action or proceeding, except to the extent such waiver may be prohibited by law or as to an employment discrimination claim prosecuted by another employee or administrative body.
11. Representations: By execution of this Agreement, Executive represents that no claim, charge, complaint or action by Executive against the Company exists in any forum or form. In the event any such claim, charge, complaint or action has been filed, Executive shall not be entitled to recover any monies or other relief therefrom.
12. Tax Withholding: The Company may withhold from any amount payable hereunder all Federal, state, city or other income or employment taxes that may be required by law to be withheld.
13. Separate Advice: Executive acknowledges that neither the Company nor its directors, officers or employees has provided him with advice about the terms and conditions of this Agreement, including the taxation of payments hereunder, and that neither the Company nor its directors, officers or employees has any obligation to do so. Executive acknowledges that he has been advised to consult his own counsel prior to the execution of this Agreement and he represents that he has done so. As a result, Executive agrees that he shall hold the Company, including its directors, officers and employees, harmless from any liability, including any income or excise tax liability or liability for interest, arising from the payment of any amount or the transfer of any property hereunder.
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14. Indemnification . The Company shall indemnify Executive with respect to his actions or inactions taken in his capacity as an officer of the Company, to the fullest extent provided under the Companys organizational documents and practices in effect as of his Separation Date and in accordance with the indemnification available to similarly situated officers of the Company as of such date.
15. General Provisions:
a. | If any provision of this Agreement is held to be invalid, illegal, or unenforceable, in whole or in part, such invalidity shall not affect any otherwise valid provision, and all other valid provisions shall remain in full force and effect. |
b. | Titles and headings used herein are solely for convenience of reference and do not constitute a part of this Agreement or affect its meaning, interpretation or effect. |
c. | This Agreement shall be construed and enforced in accordance with the internal laws of the State of Mississippi applicable to contracts made to be performed wholly within such state. |
d. | No term or condition herein shall be deemed to have been waived, nor shall there be an estoppel against the enforcement of any provision of this agreement, except by written instrument of the party charged with such waiver or estoppel. |
e. | This Agreement may not be modified or amended, except by an instrument in writing signed by the parties hereto. |
f. | This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior agreement, whether written or oral, with respect thereto. |
16. No Admission of Wrongdoing: Executive and the Company agree that neither this Agreement, Exhibit A hereto, nor the furnishing of the consideration set forth herein shall be deemed or construed at any time for any purpose as an admission by the Company or Executive, as the case may be, of any liability or unlawful conduct of any kind.
THIS SEPARATION AGREEMENT is executed in multiple counterparts as of the dates set forth below, each of which shall be deemed an original, to be effective as of the Separation Date designated above.
RENASANT CORPORATION | EXECUTIVE | |||||||
By: |
/s/ E. Robinson McGraw |
By: |
/s/ Larry R. Mathews |
|||||
E. Robinson McGraw | Larry R. Mathews | |||||||
Its: Chief Executive Officer | Date: February 11, 2009 | |||||||
Date: February 11, 2009 |
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Separation Date: February 11, 2009
EXHIBIT A
GENERAL WAIVER AND RELEASE
This General Waiver and Release (the Release) is made in exchange for the consideration offered under Paragraph 4 of the Separation Agreement entered into between me and Renasant Corporation and each of its subsidiaries and affiliates (collectively, the Employer), dated as of the date of my voluntary resignation, effective as of February 11, 2009 (the Agreement) (the Severance Amount), the sufficiency of which I hereby acknowledge.
1. General Terms and Conditions. I understand that signing this Release is an important legal act. I acknowledge that I have been advised by the Company to consult an attorney before signing this Release and that I have done so or I have determined that such consultation is not necessary. I understand that I have 21 calendar days after my Separation Date to consider whether to sign this Release, without alteration, and return it to the Company by first class mail or by hand delivery, and that if I execute and return this Release before the expiration of the 21-day period, I will be deemed to have waived the balance of the period.
2. Release. In return for the Severance Amount, I release my Employer, including its parents, subsidiaries, affiliates, related companies or entities, employee benefit plans and the directors, officers, employees, agents, administrators and other persons acting on behalf of each of them, together with their predecessors, successors and assignees (collectively referred to as the Released Parties) from all liabilities, demands, claims, actions, causes of action, and suits of whatsoever nature that I have or may have against the Released Parties arising from or in any way related to my employment with my Company and the termination thereof, whether known or unknown to me, or suspected or unsuspected, or that I have or may have individually or as a member of any class. I also release the Released Parties from any and all liabilities, demands, claims or suits that I may have against any of the Released Parties arising from any act occurring prior to the execution of this Waiver and Release, whether known or unknown to me, or suspected or unsuspected, or that I have or may have individually or as a member of any class.
3. Further Limitations. Notwithstanding paragraph 2 hereof, this Release does not release any claim that I may have (a) for continuation of health care coverage under COBRA, (b) for benefits arising from any retirement or welfare plan in which I was a participant during my employment, (c) for any rights arising under this General Waiver and Release or the Agreement, and (d) for any settlement or recovery in my capacity as a shareholder of the Company.
Without limiting the generality of paragraph 2 hereof, it is expressly acknowledged that this Release does apply to and does release any claim that I may have for discrimination or retaliation under any state workers compensation act or other state law prohibiting discrimination or retaliatory discharge, the Age Discrimination in Employment Act, and/or the Older Workers Benefit Protection Act, and/or any other claim that I might assert for unlawful discharge or discrimination for exercising any right under any benefit plan of the Employer.
4. General Provisions.
a. Should any of the provisions set forth in this Waiver be determined to be invalid by a court or other tribunal of competent jurisdiction, it is agreed that such determination shall not affect the enforceability of other provisions thereof.
b. I acknowledge that this Release and the Agreement set forth the entire understanding and agreement between me and the Company concerning the subject matter thereof and that they supersede any prior or contemporaneous oral and/or written agreements or representations, if any, between me and the Company. I further acknowledge that no person has the authority to vary the terms of this release, except an authorized officer of the Company by means of a written amendment hereto.
c. I acknowledge that I have read this Release, have had an opportunity to ask questions and have it explained to me, and that I understand that this Release will have the effect of knowingly and voluntarily waiving any action I might pursue, including breach of contract, personal injury, retaliation, discrimination on the basis of race, age, sex, national origin or disability and any other claims arising prior to the date hereof.
d. I further agree that in the event of my material breach of this Release, in addition to any other legal or equitable remedy, the Company shall be entitled to recover any payments made to me under the Agreement, subject to any restrictions on such recovery or relief as may be imposed under applicable law or as may be required to ensure that this Release is and remains valid and enforceable.
e. I understand that for a period of seven calendar days following the execution of this Release, I may revoke it by delivering a written statement to the Company by hand or by registered mail, addressed to the address for the Company specified in the Agreement, in which case the Release will not become effective. In such event, the Company shall have no obligation to provide me the consideration offered under Paragraph 4 of the Agreement and the Agreement shall be null and void and of no effect. Upon the expiration of such seven-day period, I understand that this Release shall be permanent and irrevocable.
f. I agree that absent the execution of this Release, I am not otherwise due the Severance Amount from the Company for services that I have performed or under any contractual agreement with the Company or in accordance with any severance pay plan or arrangement maintained by the Company.
/s/ Larry R. Mathews |
Larry R. Mathews |
Date: February 11, 2009
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GENERAL WAIVER AND RELEASE
This General Waiver and Release (the Release) is made in exchange for the non-competition and non-solicitation covenants and the other consideration (Executives Covenants) offered under that certain Separation Agreement between Renasant Corporation and each of its subsidiaries and affiliates (collectively, the Employer) and Larry R. Mathews (Executive) effective as of February 11, 2009, the sufficiency of which is hereby acknowledged.
1. Release. In return for the Executives Covenants, Employer hereby releases Executive from all liabilities, demands, claims, actions, causes of action, and suits of whatsoever nature that it has or may have against Executive, whether known or unknown, or suspected or unsuspected, arising from or in any way related to his employment with Employer and the termination thereof or any other act occurring prior to the execution of this Waiver and Release; provided , however , that this Release does not release Executive from any liabilities, demands, claims, actions, causes of action, and suits that Employer has or may have against Executive arising out of (a) any illegal or unlawful action or failure to act by Executive, (b) any action that resulted in Executive receiving a financial benefit to which he was not entitled, or (c) any action, or failure to act, by Executive to the extent that Executive would not be entitled to indemnification with respect to such action or failure to act under the Bylaws, as amended, of Renasant Corporation because Executive has not met the Standard of Conduct set forth in Section 2 of Article IX of such Bylaws.
2. General Provisions.
a. Should any of the provisions set forth in this Waiver be determined to be invalid by a court or other tribunal of competent jurisdiction, it is agreed that such determination shall not affect the enforceability of other provisions thereof.
b. Employer acknowledges that this Release sets forth the entire understanding and agreement between Employer and Executive concerning the subject matter hereof and that it supersedes any prior or contemporaneous oral and/or written agreements or representations, if any, between Employer and Executive. Employer further acknowledge that no person has the authority to vary the terms of this release, except by means of a written amendment hereto executed by Employer and Executive.
RENASANT CORPORATION | ||
By: |
/s/ E. Robinson McGraw |
|
E. Robinson McGraw, President and Chief | ||
Executive Officer |
Date: February 11, 2009
Exhibit 10.2
RENASANT CORPORATION
DEFERRED STOCK UNIT PLAN
(Final 409A Compliance Amendment)
Whereas, Renasant Corporation, a corporation organized and existing under the laws of the State of Mississippi (the Company), maintains the Renasant Corporation Deferred Stock Unit Plan, which plan was most recently amended and restated effective as of January 1, 2005 (the Plan);
Whereas, such Plan constitutes a deferred compensation arrangement within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended, and must now be amended to comply with the applicable provisions the final regulations promulgated thereunder;
Now, Therefore , the Plan shall be amended effective as of January 1, 2009, as follows.
1. | Definitions: |
1.1 The following sentence shall be added to Section 2.3 of the Plan to read in its entirety as follows:
For any year, Base Compensation hereunder shall include only those amounts actually paid during such year.
1.2 Section 2.18 of the Plan shall be amended and restated as follows:
2.18 References to key employee contained herein shall be deemed to refer to Specified Employee; a Specified Employee shall mean that as of his or her Separation Date, a Participant is a key employee of the company or an Affiliate within the meaning of Code Section 416(i), (ii) or (iii), but determined without regard to paragraph (i)(5) thereof. A Participant who satisfies such requirement as of a December 31st shall be considered a Specified Employee hereunder during the 12-month period commencing on the immediately following April 1st.
1.3 The flush language of Section 2.25 of the Plan shall be restated as follows:
2.25 Retirement or Retire means that a Participant has Separated From Service on or after:
1.4 The following Section 2.29 shall be added to the Plan to read in its entirety as follows:
2.29 The term Separation From Service , Separation Date or Separated From Service shall mean the later of the date on which (a) a Participant ceases to serve with the Company and its Affiliates, whether as an employee or as an independent contractor, or (b) the Company and such Participant reasonably anticipate that the Participant will perform no further services for the Company and its Affiliates, whether as a common law employee or an independent contractor. Notwithstanding the foregoing, a Participant may be deemed to incur a Separation From Service hereunder if he or she continues to provide services to the Company or an Affiliate, provided such services are not more than 20% of the average level of services performed by such Participant, whether as an employee or independent contractor, during the immediately preceding 36-month period. As used herein, the term termination of employment or words of similar import shall be deemed to mean and refer to a Separation From Service as defined herein.
2. | Deferrals: |
Section 4.1c of the Plan shall be restated in its entirety as follows:
c. | Thereafter, not later than the last pay date of the Plan Year preceding the Plan Year in which the services giving rise to such Base Compensation or Director Compensation are rendered, such election to be effective as of the first day of the Plan Year in which such services are rendered. |
3. | Distributions: |
Section 7.8 of the Plan shall be amended and restated in its entirety as follows:
7.8 Small Accounts. If the value of a Participants Account is not more than the applicable limit determined under Code Section 402(g) as of his or her Disability, death, Separation Date or Payment Date, as the case may be, then notwithstanding any provision of the Plan to the contrary, the Committee shall distribute such amount to the Participant in the form of an immediate single-sum payment as of such date.
4. | General Provisions: |
4.1 Section 11.1a of the Plan shall be amended and restated in its entirety as follows:
a. All deferrals shall cease as of the last day of the calendar year in which such termination occurs;
4.2 The following Section 11.8 shall be added to the Plan to read in its entirety as follows:
11.8 Final Transition Election. Notwithstanding any provision of this Plan to the contrary, with respect to a Benefit Commencement Date occurring on or after January 1, 2008, each Participant hereunder shall be entitled to modify the form in which his or her Account shall be paid, including increasing or decreasing the number of installment payments or changing from installment payments to a single-sum or from a single-sum to installment payments. Any such election shall be made in the form prescribed by the Administrator, shall be subject to the limitations set forth in IRS Notice 2005-1, as the same has been modified from time to time, and shall be made at the time or times prescribed by the Administrator, but not later than December 31, 2008.
This Final 409A Compliance Amendment was approved and executed by an authorized officer of Renasant Corporation.
Renasant Corporation | ||
By: |
/s/ E. Robinson McGraw |
|
Its: |
Chairman and Chief Executive Officer |
|
Date: December 16, 2008 |
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Exhibit 10.3
RENASANT BANK
EXECUTIVE DEFERRED INCOME PLAN
(Final 409A Compliance Amendment)
Whereas, Renasant Bank, a financial institution with its principal place of business in Tupelo, Mississippi (the Bank), maintains the Renasant Bank Executive Deferred Income Plan, which plan was most recently amended and restated effective as of January 1, 2007 (the Plan);
Whereas, such Plan constitutes a deferred compensation arrangement within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended, and must now be amended to comply with the applicable provisions the final regulations promulgated thereunder;
Now, Therefore , the Plan shall be amended effective as of January 1, 2009, as follows.
1. | Definitions: |
1.1 Section 1.6 of the Plan shall be amended and restated in its entirety as follows:
1.6 The term Change in Control shall mean and be deemed to occur upon a Change in Equity Ownership, a Change in Effective Control, a Change in the Ownership of Assets or a Change by Merger. For this purpose:
a. | A Change in Equity Ownership means that a person or group acquires, directly or indirectly in accordance with Code Section 318, more than 50% of the aggregate fair market value or voting power of the capital stock of the Company, including for this purpose capital stock previously acquired by such person or group; provided, however, that a Change in Equity Ownership shall not be deemed to occur hereunder if, at the time of any such acquisition, such person or group owns more than 50% of the aggregate fair market value or voting power of the Companys capital stock. |
b. | A Change in Effective Control means that (i) a person or group acquires (or has acquired during the immediately preceding 12-month period ending on the date of the most recent acquisition by such person or group), directly or indirectly in accordance with Code Section 318, ownership of the capital stock of the Company possessing 35% or more of the total voting power of the Company, or (ii) a majority of the members of the Board of Directors of the Company is replaced during any 12-month period, whether by appointment or election, without endorsement by a majority of the members of the Board prior to the date of such appointment or election. |
c. | A Change in the Ownership of Assets means that any person or group acquires (or has acquired in a series of transactions during the immediately preceding 12-month period ending on the date of the most recent acquisition) all or substantially all of the assets of the Company. |
d. | A Change by Merger means that the Company shall consummate a merger or consolidation or similar transaction with another corporation or entity, unless as a result of such transaction, more than 50% of the then outstanding voting securities of the surviving or resulting corporation or entity shall be owned in the aggregate by the former shareholders of the Company and the voting securities of the surviving or resulting corporation or entity are owned in substantially the same proportion as the common stock of the Company was beneficially owned before such transaction. |
1.2 The following sentence shall be added to Section 1.25 of the Plan, to read in its entirety as follows:
For any year, a Participants Salary eligible for deferral hereunder shall include only such amounts actually paid during such year.
1.3 Section 1.26 of the Plan shall be amended and restated as follows:
1.26 The term Separation From Service, Separation Date or Separated From Service shall mean the later of the date on which (a) a Participant ceases to serve with the Bank and its Affiliates, whether as an employee or as an independent contractor, or (b) the Bank and such Participant reasonably anticipate that the Participant will perform no further services for the Bank and its Affiliates, whether as a common law employee or an independent contractor. Notwithstanding the foregoing, a Participant may be deemed to incur a Separation From Service hereunder if he or she continues to provide services to the Bank or an Affiliate, provided such services are not more than 20% of the average level of services performed by such Participant, whether as an employee or independent contractor, during the immediately preceding 36-month period.
1.4 Section 1.28 shall be added to the Plan to read in its entirety as follows:
1.28 References to key employee contained herein shall be deemed to refer to Specified Employee; a Specified Employee shall mean that as of his or her Separation Date a Participant is a key employee of the Bank or its Affiliates within the meaning of Code Section 416(i), (ii) or (iii), but determined without regard to paragraph (i)(5) thereof. A Participant who satisfies such requirement as of a December 31st shall be considered a Specified Employee hereunder during the 12-month period commencing on the immediately following April 1st.
2. | Death Benefits: |
2.1 Section 6.7 of the Plan shall be amended and restated to read in its entirety as follows:
6.7 Preretirement Death Benefits. (a) If a Participant first commences participation hereunder on or after January 1, 2007, and he or she dies while employed by the Bank or any of its Affiliates, his or her Beneficiary shall receive the amount then credited to his or her Account as of the Payment Date that coincides with or immediately follows the date of his or her death.
(b) If a Participant first commenced participation hereunder before January 1, 2007, and he or she dies while employed by the Bank or any Affiliate, his or her Beneficiary shall receive, in lieu of any benefit hereunder, a preretirement death benefit determined as follows:
i. | The amount of such benefit shall equal the value of his or her Account accrued on or after January 1, 2007, and his or her Prior Plans Benefit. For this purpose, the term Prior Plans Benefit means the preretirement death benefit available under the terms of the Prior Plans in effect as of December 31, 2006; the Administrator shall maintain a record of such benefit, and the record of the Administrator shall be conclusive and binding as to such amount. |
ii. | Such benefit shall commence on the Payment Date that coincides with or immediately follows the Participants date of death; |
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iii. | If a Participant elects to receive such benefit in less than 15 annual installments, the amount of each such payment or installment shall be determined with reference to the present value of such benefit, determined as of the Participants date of death using the Moodys corporate bond rate in effect as of such date. The Administrators determination hereunder shall be final and binding on all persons. |
iv. | The portion of such benefit determined with respect to a Participants Account shall continue to be credited with income, gain or loss during the installment payment period. |
v. | As a condition of receiving a Prior Plans Benefit hereunder, a Participant shall be required to annually defer to this Plan, or to a designated successor hereto, an amount not less than the amount fixed by the Administrator. If a Participant ceases deferrals hereunder or fails to defer such amount in any year, he or she shall not be entitled to receive a Prior Plans Benefit hereunder. |
(c) Payment of a preretirement death benefit hereunder shall be contingent upon the provision of such information as the Administrator may reasonably request, including, but not limited to a Participants death certificate.
(d) A Participant may direct that his or her preretirement death benefit be paid in the form of a single-sum or not more than 15 annual installment payments. Any such election shall be made in the form prescribed by the Administrator and shall be made at the time a Participant first defers hereunder, determined in accordance with Section 3.2 hereof. Once made, any such election shall be irrevocable. If a Participant fails to timely make an election hereunder, his or her preretirement death benefit shall be distributed in the form of a single-sum.
2.2 Section 6.8 of the Plan shall be amended and restated in its entirety as follows:
6.8 Death After Separation From Service. If a Participant dies after he or she Separates From Service, his or her Beneficiary shall receive the amount then credited to his or her Account, if any. Each Participant shall elect whether (a) such amount shall be paid to his or her Beneficiary in the form of a single-sum, or (b) any installments otherwise payable to the deceased Participant shall be payable to his or her Beneficiary in accordance with their terms. Each Participant shall make such election on the form prescribed by the Administrator when he or she first defers hereunder, determined in accordance with Section 3.2 hereof. Any such election shall be irrevocable. If a Participant fails to timely make such election, his or her benefit shall be paid in the form of a single-sum.
3. | General Provisions: |
3.1 Section 10.10 of the Plan shall be restated in its entirety as follows:
10.10 Termination . The Board of Directors shall have the right, at any time, to terminate this Plan. In the event of any such termination, the Board shall provide written notice of any such action to each Participant hereunder, and:
a. | All deferrals shall cease as of the last day of the calendar year in which such termination occurs; and |
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b. | Each Participants Account shall be distributed in accordance with the provisions of the Plan and any elections permitted hereunder, as the same may be modified from time to time in accordance with Section 6.9 hereof. |
3.2 The following transition relief shall be added to section 10.21 of the Plan:
(g) | Notwithstanding any provision of this Plan to the contrary, on or before December 31, 2008, or such earlier date as may be designated by the Administrator, each Participant hereunder may: |
i. | Modify the form in which his or her retirement benefits under Article 6 hereof shall be paid, including increasing or decreasing the number of installment payments; |
ii. | Designate an in-service subaccount as a retirement subaccount or a retirement subaccount as an in-service subaccount; |
iii. | Designate the year in which any in-service subaccount shall be distributed, provided that such distribution shall not be earlier than November 15, 2009, and shall not postpone any payment otherwise due in the year such election is made; or |
iv. | Elect whether his or her Account or other death benefit shall be paid in the form of a single-sum or continuing installments as provided in Sections 6.7 and 6.8 hereof; if any such Participant fails to make such election, his or her Account shall be paid in the form of a single-sum. |
3.3 The following Section 10.22 shall be added to the Plan to read in its entirety as follows:
10.22 Small Accounts. If the value of a Participants Account is not more than the applicable limit determined under Code Section 402(g) as of his or her Disability, death, Separation Date or Payment Date, as the case may be, then notwithstanding any provision of the Plan to the contrary, the Committee shall distribute such amount to the Participant in the form of an immediate single-sum payment as of such date.
3.4 The following Section 10.23 shall be added to the Plan to read in its entirety as follows:
10.23 Specified Employee Delay . Notwithstanding any provision of the Plan to the contrary, if a Participant is a Specified Employee as of his or her Separation Date, the commencement of any benefit or distribution made on account of his or her separation from service within the meaning of Code Section 409A shall be delayed until the Payment Date that is at least six whole calendar months following his or her Separation Date. In the event of any delay hereunder, the first payment shall include, without liability for interest or loss of investment opportunity thereon, the principal amount of any benefits otherwise payable between the actual commencement of such benefits and such Participants Payment Date.
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This Final 409A Compliance Amendment was executed by an authorized officer of Renasant Bank, to be effective as of the date or dates set forth herein.
Renasant Bank | ||
By: |
/s/ E. Robinson McGraw |
|
Its: |
Chairman and Chief Executive Officer |
|
Date: December 16, 2008 |
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Exhibit 10.4
RENASANT BANK
DIRECTORS DEFERRED FEE PLAN
(Final 409A Compliance Amendment)
Whereas, Renasant Bank, a financial institution with its principal place of business in Tupelo, Mississippi (the Bank), maintains the Renasant Bank Directors Deferred Fee Plan, which plan was most recently amended and restated effective as of January 1, 2007 (the Plan);
Whereas, such Plan constitutes a deferred compensation arrangement within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended, and must now be amended to comply with the applicable provisions the final regulations promulgated thereunder;
Now, Therefore , the Plan shall be amended effective as of January 1, 2009, as follows.
1. | Definitions: |
1.1 Section 1.5 of the Plan shall be amended and restated in its entirety as follows:
1.5 The term Change in Control shall mean and be deemed to occur upon a Change in Equity Ownership, a Change in Effective Control, a Change in the Ownership of Assets or a Change by Merger. For this purpose:
a. | A Change in Equity Ownership means that a person or group acquires, directly or indirectly in accordance with Code Section 318, more than 50% of the aggregate fair market value or voting power of the capital stock of the Company, including for this purpose capital stock previously acquired by such person or group; provided, however, that a Change in Equity Ownership shall not be deemed to occur hereunder if, at the time of any such acquisition, such person or group owns more than 50% of the aggregate fair market value or voting power of the Companys capital stock. |
b. | A Change in Effective Control means that (i) a person or group acquires (or has acquired during the immediately preceding 12-month period ending on the date of the most recent acquisition by such person or group), directly or indirectly in accordance with Code Section 318, ownership of the capital stock of the Company possessing 35% or more of the total voting power of the Company, or (ii) a majority of the members of the Board of Directors of the Company is replaced during any 12-month period, whether by appointment or election, without endorsement by a majority of the members of the Board prior to the date of such appointment or election. |
c. | A Change in the Ownership of Assets means that any person or group acquires (or has acquired in a series of transactions during the immediately preceding 12-month period ending on the date of the most recent acquisition) all or substantially all of the assets of the Company. |
d. | A Change by Merger means that the Company shall consummate a merger or consolidation or similar transaction with another corporation or entity, unless as a result of such transaction, more than 50% of the then outstanding voting securities of the surviving or resulting corporation or entity shall be owned in the aggregate by the former shareholders of the company and the voting securities of the surviving or resulting corporation or entity are owned in substantially the same proportion as the common stock of the company was beneficially owned before such transaction. |
1.2 Section 1.20 of the Plan shall be restated as follows:
1.20 The term Separation From Service, Separation Date or Separated From Service shall mean the later of the date on which (a) a Participant ceases to serve with the Company, the Bank, or their Affiliates, whether as a member of the Board of Directors, an employee or an independent contractor, or (b) the Company, the Bank, and such Participant reasonably anticipate that the Participant will perform no further services for the Company, the Bank or their Affiliates, whether as a member of the Board, as a common law employee or an independent contractor. Notwithstanding the foregoing, a Participant may be deemed to incur a Separation From Service hereunder if he or she continues to provide services to the Company, the Bank or another Affiliate, provided such services are not more than 20% of the average level of services performed by such Participant, whether as a director, an employee or independent contractor, during the immediately preceding 36-month period.
1.3 Section 1.21 shall be added to the Plan to read in its entirety as follows:
1.21 References to key employee contained herein shall be deemed to refer to Specified Employee; a Specified Employee shall mean that a Participant is a key employee of the Bank or an Affiliate, within the meaning of Code Section 416(i), (ii) or (iii), but determined without regard to paragraph (i)(5) thereof. A Participant who satisfies such requirement as of a December 31st shall be considered a Specified Employee hereunder during the 12-month period commencing on the immediately following April 1st.
2. | Death Benefits: |
2.1 Section 6.7 of the Plan shall be amended and restated as follows:
6.7 Preretirement Death Benefits. (a) If a Participant first commences participation hereunder on or after January 1, 2007, and he or she dies while serving as a member of the Board of Directors, his or her Beneficiary shall receive the amount then credited to his or her Account. Payment shall be made or commence as of the Payment Date that coincides with or immediately follows the date of the Participants death.
(b) If a Participant first commenced participation hereunder before January 1, 2007, and he or she dies while serving as a member of the Board of Directors, his or her Beneficiary shall receive, in lieu of any benefit hereunder, a preretirement death benefit determined as follows:
i. | The amount of such benefit shall equal his or her Account accrued on or after January 1, 2007, and his or her Prior Plans Benefit. For this purpose, the term Prior Plans Benefit means the preretirement death benefit available under the terms of the Prior Plans as of December 31, 2006; the Administrator shall maintain a record of such benefit, and the record of the Administrator shall be conclusive and binding as to such amount. |
ii. | Such benefit shall commence on the Payment Date that coincides with or immediately follows the Participants date of death. |
iii. | If a Participant elects to receive such benefit in less than 15 annual installments, the amount of each such payment or installment shall be determined by the Administrator with reference to the present value of such benefit, determined as of the Participants date of death using the Moodys corporate bond rate in effect as of such date. The Administrators determination hereunder shall be final and binding on all persons. |
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iv. | The portion of such benefit that is determined with respect to a Participants Account shall continue to be credited with income, gain or loss during the installment payment period. |
v. | As a condition of receiving a Prior Plans Benefit hereunder, a Participant shall be required to annually defer to this Plan, or a designated successor hereto, an amount not less than the amount fixed by the Administrator. If a Participant ceases deferrals hereunder or fails to defer such amount in any year, he or she shall not be entitled to receive such benefit hereunder. |
(c) Payment of a preretirement death benefit hereunder shall be contingent upon the provision of such information as the Administrator may reasonably request, including, but not limited to a Participants death certificate.
(d) A Participant may direct that his or her preretirement death benefit be paid in the form of a single-sum or not more than 15 annual installment payments. Any such election shall be made in the form prescribed by the Administrator and shall be made at the time a Participant first defers under the Plan, determined in accordance with Section 3.2 hereof. Once made, any such election shall be irrevocable. If a Participant fails to timely make an election hereunder, his or her preretirement death benefit shall be distributed in the form of a single-sum.
2.2 Section 6.8 of the Plan shall be amended and restated in its entirety as follows:
6.8 Death After Separation From Service. If a Participant dies after he or she Separates From Service, his or her Beneficiary shall receive the amount then credited to his or her Account, if any. Each Participant shall elect whether (a) such amount shall be paid to his or her Beneficiary in the form of a single-sum, or (b) any installments otherwise payable to the deceased Participant shall be payable to his or her Beneficiary, in accordance with their terms. Each Participant shall make such election on the form prescribed by the Administrator when he or she first defers hereunder, determined in accordance with Section 3.2 hereof. Any such election shall be irrevocable. If a Participant fails to timely make such election, he or she shall be deemed to have elected receipt in the form of a single-sum.
3. | General Provisions: |
3.1 Section 10.8 of the Plan shall be restated as follows:
10.8 Termination . The Board of Directors shall have the right, at any time, to terminate this Plan. In the event of any such termination, the Board shall provide written notice of any such action to each Participant hereunder, and:
a. | All deferrals shall cease as of the last day of the calendar year in which such termination occurs; and |
b. | Each Participants Account shall be distributed in accordance with the provisions of the Plan and any elections permitted hereunder, as the same may be modified from time to time in accordance with Section 6.9 hereof. |
3.2 The following transition relief shall be added to section 10.19 of the Plan:
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(g) | Notwithstanding any provision of this Plan to the contrary, on or before December 31, 2008, or such earlier date as may be designated by the Administrator, each Participant hereunder shall be entitled to elect to: |
i. | Modify the form in which his or her retirement benefits under Article 6 hereof shall be paid, including increasing or decreasing the number of installment payments; |
ii. | Designate an in-service subaccount as a retirement subaccount or a retirement subaccount as an in-service subaccount; or |
iii. | Designate the year in which any in-service subaccount shall be distributed, provided that such distribution shall not be earlier than November 15, 2009, and shall not postpone any payment otherwise due in the year such election is made. |
iv. | Elect whether his or her Account or other death benefit shall be paid in the form of a single-sum or continuing installments as provided in Sections 6.7 and 6.8 hereof; if any such Participant fails to make such election, his or her Account shall be paid in the form of a single-sum. |
3.3 The following Section 10.20 shall be added to the Plan to read in its entirety as follows:
10.20 Small Accounts. Notwithstanding any provisions of the Plan to the contrary, if the value of a Participants Account is not more than the applicable limit determined under Code Section 402(g) as of his or her Disability, death, Separation Date or Payment Date, as the case may be, then notwithstanding any provision of the Plan to the contrary, the Committee shall distribute such amount to the Participant in the form of an immediate single-sum payment as of such date.
3.4 The following Section 10.21 shall be added to the Plan to read in its entirety as follows:
10.21 Specified Employee Delay . Notwithstanding any provision of the Plan to the contrary, if a Participant is a Specified Employee as of his or her Separation Date, the commencement of any benefit or distribution made on account of his or her separation from service within the meaning of Code Section 409A shall be delayed until the later of (a) the first business day of the seventh whole calendar month following his or her Separation Date, or (b) his or her Payment Date. In the event of any delay hereunder, the first payment shall include, without liability for interest or loss of investment opportunity thereon, the principal amount of any benefits otherwise payable between the actual commencement of such benefits and such Participants Payment Date.
This Final 409A Compliance Amendment was executed by an authorized officer of Renasant Bank, to be effective as of the date or dates set forth herein.
Renasant Bank | ||
By: |
/s/ E. Robinson McGraw |
|
Its: |
Chairman and Chief Executive Officer |
|
Date: | December 16, 2008 |
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Exhibit 10.5
RENASANT CORPORATION
SEVERANCE PAY PLAN
THIS SEVERANCE PAY PLAN (the Plan) is adopted and maintained by Renasant Corporation (the Company), to be effective as of January 1, 2009. Benefits under this Plan are in lieu of any other severance or similar amount payable on account of your termination of employment under any other plan, policy or program maintained by your Employer.
1. Introduction: This Plan is intended to be a welfare benefit plan within the meaning of ERISA; it provides severance benefits to eligible officers and employees of the Company and any subsidiary of the Company at least 80% of which is owned, directly or indirectly, by the Company (collectively with the Company, called your Employer). This document, including Exhibit A, serves as both the Plan document and its summary plan description.
2. Eligibility: You become eligible to receive benefits under the Plan if the Board of Directors of the Company, or any officer of the Company to whom the Board of Directors has delegated authority to act on its behalf with respect to the Plan, designates you as an eligible participant in the Plan (referred to herein as a Participant).
a. Regular Severance. If you are a Participant, you will be eligible to receive Regular Severance, provided you satisfy all of the following conditions when your employment ends:
|
You are not involuntarily terminated by your Employer for Cause (as defined below) or your employment does not end on account of your disability, death, resignation or retirement; |
|
You are not a party to an employment agreement with your Employer; and |
|
You sign a Wavier and Release in the form required by your Employer, which includes a release of any claims you may then possess against your Employer and your Wavier and Release becomes irrevocable. |
b. Change In Control Severance. If you are a Participant, you will be eligible to receive Change in Control Severance, provided you satisfy all of the following conditions when your employment ends:
|
The Company has experienced a Change in Control (as defined below); |
|
You are not a party to an employment agreement with your Employer; |
|
You sign a Wavier and Release in the form required by your Employer, which includes a release of any claims you may then possess against your Employer and your Wavier and Release becomes irrevocable; and |
|
You are involuntarily terminated by the Company, without Cause, or you terminate your employment with the Company for Good Reason (as defined below), in either case occurring within 24 months following the Change in Control. |
3. Benefits: Severance consists of cash benefits and COBRA continuation payments. The amount of your Regular or Change in Control Severance depends upon your position at the time your
employment ends and is subject to any conditions or maximum aggregate payout to all Participants in the Plan, as may be established from time to time by the Board of Directors:
Type of Severance |
Base Salary Benefit |
COBRA
Continuation Payments |
||
Regular |
1 week for each Year of Service |
6 months | ||
4 weeks
minimum |
||||
26 weeks maximum | ||||
Change in Control |
26 weeks | 18 months |
a. Years of Service. A Year of Service is measured as a consecutive 12-month period of service; partial years of service are disregarded. If you terminate your employment and you are later rehired, only service from your rehire date will be considered.
b. Premium Payments. If you receive COBRA continuation payments, your Employer will pay COBRA premiums for you and your dependents enrolled in the Companys health plans (major medical, vision and dental) as of the most recent annual enrollment period. Your COBRA continuation payments are contingent upon your timely election to continue your medical benefits in accordance with COBRA. Payments will end before the number of months specified above if the COBRA continuation period for you or any of your dependents ends earlier.
c. Payments. Cash payments will be paid in the form of a single sum 30 days following the date on which your employment ends, provided you have then satisfied all of the applicable conditions. As a condition of any payment, your Employer can withhold any taxes that are required by law to be withheld.
d. Payment Delay. Although unlikely, if you are a specified employee at the time your employment ceases, your Employer may be required to delay some or all of your payments until the first business day of the seventh month following your termination. If this delay occurs, payment will be made as soon as practicable, but without liability for interest or loss of investment opportunity. The definition of the term specified employee is included in Section 409A of the Internal Revenue Code of 1986, as amended (the Code), and is complex. Generally, it refers to officers and others with administrative or managerial authority whose annual compensation is in excess of $130,000 (as may be adjusted from time to time), but not more than a total of 50 employees. Your Employer will determine your status at the time of your termination and inform you if you are a specified employee whose payments are subject to delay.
4. Administration and Claims: The Board of Directors of the Company administers this Plan in its discretion. The Board has delegated to the Companys Chief Executive Officer the authority to designate the employees of the Company and its subsidiaries eligible to be Participants in the Plan. The Board has delegated to the Companys Human Resources Department the authority to oversee the day-to-day administration of this Plan. In this capacity, the Human Resources Department, among other things, determines your position at the time of your termination and the amount of your benefit. The Human Resources Department will also provide you with the Waiver and Release necessary to receive your benefits. In connection with its administration of the Plan, the Human Resources Department can adopt rules and procedures and interpret the Plan and any form or document related to the Plan, including the
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resolution of uncertainty created by any conflict, ambiguity or omission contained in the Plan and/or its related documents, subject to the final determination of the Board of Directors.
a. Claims. It is not necessary to make a claim or application to receive your Regular or a Change in Control Severance; you will receive any necessary documents from your Employer at the time of your termination. If you believe that you are eligible to receive a benefit, or that the amount of your benefit has not been correctly determined, you can make a claim to have your benefit redetermined. To make a claim, you must file a written statement with the Human Resources Department that explains why you believe you are entitled to a payment and identifies the provisions of the Plan you are relying upon to make your claim.
Once it receives your claim, the Human Resources Department, on behalf of the Board of Directors, will respond, in writing, within 90 days. If it denies your claim, in whole or in part, the response will include the reasons why your claim is denied, and it will identify the Plan provisions and employment records upon which the denial is based. You can appeal a denial by writing to the Human Resources Department not later than 60 days after the denial. Your appeal should explain why you believe the denial is incorrect and it should include any information or documents you believe support your position. Before you submit your appeal, you can request copies of any documents in the possession of your Employer that are relevant to the determination of your benefit, such as your salary history or a copy of the Plan. The Board of Directors will review your appeal and provide you with written notice of its disposition not later than 60 days after it is received.
b. Arbitration. In the event that any dispute or controversy arises in connection with this Plan and you have exhausted the Plans claims procedures, your dispute or controversy will be resolved by arbitration. The consideration for your agreement to arbitration is your receipt of benefits under the Plan. Any arbitration proceeding will be conducted in accordance with the employment rules of the American Arbitration Association (AAA). Any dispute or claim will be presented to a single arbitrator selected by our mutual agreement (or the arbitrator will be selected in accordance with the rules of the AAA). All determinations of the arbitrator will be final and binding upon you and the Employer. Each party to the arbitration proceeding will bear its own costs in connection with the proceedings, except that the costs and expenses of the arbitrator will be divided evenly between the parties. The venue for any arbitration proceeding and for any judicial proceeding related to this arbitration provision (including a judicial proceeding to enforce this provision) will be in Tupelo, Mississippi, unless another venue is designated by the Board of Directors.
5. Definitions:
a. Cause. You will be deemed to be terminated for Cause if your employment is involuntarily terminated because you have:
|
Committed an intentional act of fraud, embezzlement or theft in the course of your employment or otherwise engaged in any intentional misconduct which is materially injurious to the Companys (or your Employers) financial condition or business reputation; |
|
Committed intentional damage to the property of the Company (or your Employer) or committed intentional wrongful disclosure of confidential or proprietary information which is materially injurious to the Companys (or your Employers) financial condition or business reputation; |
|
Been indicted for the commission of a felony or a crime involving moral turpitude; |
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|
Willfully and substantially refused to perform the essential duties of your position, which has not been cured within 30 days following written notice by the Companys Chief Executive Officer; |
|
Intentionally, recklessly or negligently violated any material provision of any code of ethics, code of conduct or equivalent code or policy of the Company or your Employer applicable to you; or |
|
Intentionally, recklessly or negligently violated any material provision of the Sarbanes-Oxley Act of 2002 or any of the rules adopted by the Securities and Exchange Commission implementing any such provision. |
b. Base Salary. Your Base Salary is your annualized base salary.
c. Change in Control. The term Change in Control means and shall be deemed to occur upon a Change in Equity Ownership, a Change in Effective Control, a Change in the Ownership of Assets or a Change by Merger. For this purpose:
|
A Change in Equity Ownership means that a person or group acquires, directly or indirectly in accordance with Code Section 318, more than 50% of the aggregate fair market value or voting power of the capital stock of the Company, including for this purpose capital stock previously acquired by such person or group; provided, however, that a change in Equity Ownership shall not be deemed to occur hereunder if, at the time of any such acquisition, such person or group owns more than 50% of the aggregate fair market value or voting power of the Companys capital stock. |
|
A Change in Effective Control means that (i) a person or group acquires (or has acquired during the immediately preceding 12-month period ending on the date of the most recent acquisition by such person or group), directly or indirectly in accordance with Code Section 318, ownership of the capital stock of the Company possessing 35% or more of the total voting power of the Company, or (ii) a majority of the members of the Board of Directors of the Company is replaced during any 12-month period, whether by appointment or election, without endorsement by a majority of the members of the Board prior to the date of such appointment or election. |
|
A Change in the Ownership of Assets means that any person or group acquires (or has acquired in a series of transactions during the immediately preceding 12-month period ending on the date of the most recent acquisition) all or substantially all of the assets of the Company. |
|
A Change by Merger means that the Company shall consummate a merger or consolidation or similar transaction with another corporation or entity, unless as a result of such transaction, more than 50% of the then outstanding voting securities of the surviving or resulting corporation or entity shall be owned in the aggregate by the former shareholders of the Company and the voting securities of the surviving or resulting corporation or entity are owned in substantially the same proportion as the common stock of the Company was beneficially owned before such transaction. |
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d. Good Reason means that in connection with a Change in Control:
|
Your Base Compensation in effect immediately before the Change in Control is materially reduced; |
|
Your authority, duties or responsibilities are materially reduced from what your authority, duties or responsibilities prior to the Change in Control; or |
|
You are required to transfer to an office or business location located more than a 30-mile radius from where you were assigned to prior to the Change in Control. |
No event or condition described above is considered Good Reason unless (a) you notify the Chief Executive Officer in writing of your objection to such event or condition within 60 days after you learn of such event, (b) such event or condition is not corrected by the Company within 30 days after receipt of such notice, and (c) you resign within 60 days after the expiration of the 30-day period described in subparagraph (b) hereof.
6. General Provisions:
a. Spendthrift Provision. Your benefits are not subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or charge. Any attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber or charge to such benefit will be void and given no effect. Any benefit payable under the terms of the Plan is not subject to attachment or legal process, and any such action shall not be recognized by your Employer.
b. Employment Rights. Participation in the Plan is not an employment agreement; nothing contained in the Plan gives you the right to be retained in the employ of your Employer or otherwise modifies your at will employment status.
c. Amendment or Termination. Except as provided below, your Employer has no obligation to maintain the Plan for any particular length of time; the Board of Directors of the Company possesses the right, at any time, to amend or terminate this Plan, in whole or in part. Notwithstanding this general authority (i) no amendment or termination will change the amount of your benefit if you are or become eligible to receive it before the adoption or effective date of the amendment or termination, and (ii) no amendment or termination can be made effective during the 24-month period following a Change in Control without your written consent. If the Plan is amended or terminated, you will receive written notice.
d. Rehire. If you are rehired by your Employer, any COBRA continuation payments will stop and you may be required to repay all or a portion of any cash benefit paid to you under the Plan if the number of weeks of Base Salary you received is greater than the number of weeks between your termination and reemployment dates.
e. Coordination with WARN. All payments made under this Plan reduce any amount your Employer may be required to pay to you under the Worker Adjustment and Retraining Notification Act, called WARN.
f. Successors; Binding Plan. This Plan is binding upon your Employer and any successor to your Employer, whether by purchase, merger, consolidation or otherwise. This Plan inures to your benefit and is enforceable by you, including your personal or legal representatives, and executors or heirs. If you die while any amount is payable to you, the remaining amount will be paid to your surviving spouse or estate.
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g. Governing Law. The Plan is governed by federal law to the extent applicable, and to the extent not applicable, by the laws of the State of Mississippi.
h. General Assets. Benefits payable from the Plan are paid solely from the general assets of the Employer. The Employer has not established a trust or earmarked any asset to pay benefits, and it has not acquired any form of insurance to fund your benefits.
RENASANT CORPORATION | ||
By: |
/s/ E. Robinson McGraw |
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Name: | E. Robinson McGraw | |
Title: | Chairman of the Board and Chief | |
Executive Officer | ||
Date: | December 16, 2008 |
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RENASANT CORPORATION
SEVERANCE PAY PLAN
EXHIBIT A
GENERAL INFORMATION
Name of Plan: Renasant Corporation Severance Pay Plan.
Name and Address of the Company: Renasant Corporation, 209 Troy Street, Tupelo, Mississippi 38804.
Affiliates: Members of the parent and subsidiary group affiliated with Renasant Corporation including: Renasant Bank and other entities affiliated with the Company from time to time.
Employer Identification Number: 64-0676974
Plan Identification Number : ______
Type of Plan: Unfunded welfare benefit plan funded by the general assets of the Company and its affiliates
Plan Administrator: The Board of Directors, acting through its Human Resources Department
Agent for Service of Legal Process: For disputes arising under the Plan, service of legal process may be made upon, Renasant Corporation, General Counsel, 209 Troy Street, Tupelo, Mississippi 38804.
Plan Year: The calendar year.
Events That May Cause a Loss of Benefits: The following events, among others, may cause a loss of your benefits or a delay in payment:
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The Company reserves the right to amend or terminate the Plan. |
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If you do not sign a Waiver and Release, you will not receive benefits. |
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If you are terminated for Cause, you may not receive benefits. |
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If your employment ends on account of your death, disability or resignation, you may not receive benefits. |
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If you are rehired, you may be required to return a portion of the payments previously made to you. |
ERISA Rights: If you are a Participant, you are entitled to certain rights and protections under the Employee Retirement Income Security Act of 1974, as amended, called ERISA. ERISA provides that you are entitled to:
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Examine, without charge, at the administrators office and at other specified locations, all documents governing the plan, including any insurance contracts and a copy of the latest annual report (Form 5500 Series) filed by the Plan with the U.S. Department of Labor and available at the Public Disclosure Room of the Employee Benefits Administration and the Plans most recent summary Plan description. You are entitled to obtain copies of these documents by providing a written request to the administrator; you may be charged a nominal fee for copying them. |
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Receive a summary of the Plans annual financial report. |
Prudent Actions by Plan Fiduciaries. In addition to creating rights for participants, ERISA imposes duties upon the people who are responsible for the operation of the Plan. The people who operate the Plan, called fiduciaries, have a duty to act prudently and in the interests of you and other participants and beneficiaries. No one can terminate you or otherwise discriminate against you in any way to prevent you from obtaining benefits or exercising your rights under ERISA.
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Enforce Your Rights. If your claim for benefits is denied or ignored, in whole or in part, you have a right to know why this was done, to obtain copies of documents relating to the decision without charge, and to appeal any denial, all within certain time schedules.
Under ERISA, there are steps you can take to enforce your rights. For instance, if you request a copy of Plan documents or the latest annual report 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 Plan administrator to provide the materials and pay you up to $110 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 which is denied or ignored, in whole or in part, you may file suit in a state or federal court. If fiduciaries misuse the Plans money or if you are discriminated against for asserting your rights, you may seek assistance from the U.S. Department of Labor, or may file suit in a federal court. The court will decide who should
pay court costs and legal fees. If you are successful, the court may order the person you have sued to pay these 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).
Assistance With Your Questions. 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, or if you need assistance in obtaining documents from the administrator, you should contact the nearest office of the Employee Benefits Security Administration, U.S. Department of Labor, listed in your telephone directory or the Division of Technical Assistance and Inquiries, Employee Benefits Security Administration, U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, DC 20210. You may also obtain certain publications about your rights and responsibilities under ERISA by calling the publications hot line of the Employee Benefits Security Administration.
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Exhibit 10.6
RENASANT CORPORATION
CHANGE IN CONTROL AGREEMENT
This Change in Control Agreement (the Agreement) is entered into by and between Stuart R. Johnson (Executive) and Renasant Corporation, a Mississippi corporation (the Company), and is intended to amend, restate and replace, in its entirety, that certain Employment Agreement by and between Executive and the Company dated as of February 10, 1998 (the Prior Agreement).
1. | Definitions: |
1.1 Affiliate means one or more subsidiaries or other entities with respect to which the Company owns (within the meaning of Section 425(f) of the Internal Revenue Code of 1986, as amended (the Code)) 50% or more of the total combined voting power of all classes of stock or other equity interests.
1.2 Base Compensation means Executives annualized base salary.
1.3 Board means the Board of Directors of the Company.
1.4 Cause means that Executive has:
a. | Committed an intentional act of fraud, embezzlement or theft in the course of his employment or otherwise engaged in any intentional misconduct which is materially injurious to the Companys (or an Affiliates) financial condition or business reputation; |
b. | Committed intentional damage to the property of the Company (or an Affiliate) or committed intentional wrongful disclosure of Confidential Information (as defined below); |
c. | Been indicted for the commission of a felony or a crime involving moral turpitude; |
d. | Willfully and substantially refused to perform the essential duties of his position, which has not been cured within 30 days following written notice by the Companys Chief Executive Officer; |
e. | Intentionally, recklessly or negligently violated any material provision of any code of ethics, code of conduct or equivalent code or policy of the Company or its Affiliates applicable to him; or |
f. | Intentionally, recklessly or negligently violated any material provision of the Sarbanes-Oxley Act of 2002 or any of the rules adopted by the Securities and Exchange Commission implementing any such provision. |
No act or failure to act on the part of Executive will be deemed intentional if it was due primarily to an error in judgment or negligence (but not gross negligence), but will be deemed intentional only if done or omitted to be done by Executive not in good faith and without reasonable belief that his action or omission was in the best interest of the Company or an Affiliate.
1.5 Change In Control means and shall be deemed to occur upon a Change in Equity Ownership, a Change in Effective Control, a Change in the Ownership of Assets or a Change by Merger. For this purpose:
a. | A Change in Equity Ownership means that a person or group acquires, directly or indirectly in accordance with Code Section 318, more than 50% of the aggregate fair market value or voting power of the capital stock of the Company, including for this purpose capital stock previously acquired by such person or group; provided, however, that a change in Equity Ownership shall not be deemed to occur hereunder if, at the time of any such acquisition, such person or group owns more than 50% of the aggregate fair market value or voting power of the Companys capital stock. |
b. | A Change in Effective Control means that (i) a person or group acquires (or has acquired during the immediately preceding 12-month period ending on the date of the most recent acquisition by such person or group), directly or indirectly in accordance with Code Section 318, ownership of the capital stock of the Company possessing 35% or more of the total voting power of the Company, or (ii) a majority of the members of the Board of Directors of the Company is replaced during any 12-month period, whether by appointment or election, without endorsement by a majority of the members of the Board prior to the date of such appointment or election. |
c. | A Change in the Ownership of Assets means that any person or group acquires (or has acquired in a series of transactions during the immediately preceding 12-month period ending on the date of the most recent acquisition) all or substantially all of the assets of the Company. |
d. | A Change by Merger means that the Company shall consummate a merger or consolidation or similar transaction with another corporation or entity, unless as a result of such transaction, more than 50% of the then outstanding voting securities of the surviving or resulting corporation or entity shall be owned in the aggregate by the former shareholders of the Company and the voting securities of the surviving or resulting corporation or entity are owned in substantially the same proportion as the common stock of the Company was beneficially owned before such transaction. |
The Board shall promptly certify to Executive whether a Change in Control has occurred hereunder, which certification shall not be unreasonably withheld.
1.6 Code means the Internal Revenue Code of 1986, as amended.
1.7 Good Reason means that in connection with a Change in Control:
a. | Executives Base Compensation in effect immediately before such change is materially diminished; |
b. | Executives authority, duties or responsibilities are materially diminished from those performed by Executive prior to the Change in Control; or |
c. | There is a material change in the office or business location at which Executive is required to perform services, but in no event less than a change outside the 30-mile radius of the location he was assigned to prior to the Change in Control. |
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No event or condition described in this Section 1.7 shall constitute Good Reason unless (a) Executive provides to the Chief Executive Officer notice of his objection to such event or condition not more 60 days after Executive first learns of such event, which notice shall be delivered in writing, (b) such event or condition is not promptly corrected by the Company, but in no event later than 30 days after receipt of such notice, and (c) Executive resigns his employment with the Company and its Affiliates not more than 60 days following the expiration of the 30-day period described in subparagraph (b) hereof.
1.8 Incentive Bonus means the amount paid or payable to Executive under the Companys Performance Based Rewards Plan or similar annual cash bonus arrangement.
1.9 Termination of employment, separation from service, and words of similar import used herein shall mean the later of the date on which (a) an Executives employment with the Company and its Affiliates ceases, or (b) the Company and such Executive reasonably anticipate that Executive will perform no further services for the Company and its Affiliates, whether as a common law employee or independent contractor. Notwithstanding the foregoing, Executive may be deemed to incur a separation from service hereunder if he continues to provide services to the Company or an Affiliate, provided such services are not more than 20% of the average level of services performed, whether as an employee or independent contractor, during the immediately preceding 36-month period.
2. | Change in Control Benefits: |
2.1 Termination In Connection With a Change in Control. If Executives employment is involuntarily terminated by the Company, without Cause, or Executive terminates his employment with the Company for Good Reason, either occurring during the 24-month period following a Change in Control (Executives Eligible Termination), the Company shall pay or provide to Executive the following:
a. | Executives Incentive Bonus with respect to the Companys completed fiscal year immediately preceding Executives Eligible Termination, to the extent such amount has not been paid as of the change; such amount shall be paid on the payment date generally applicable to such bonus. |
b. | If Executive and/or his dependants timely elect to continue group medical coverage in accordance with Code Section 4980B with respect to the group medical plan sponsored by the Company or an Affiliate (excluding for this purpose any health flexible spending account described in Code Sections 125 and 105(h)), the Company shall pay to Executive the amount of the continuation coverage premium for the same type and level of coverage received by Executive and his electing dependants immediately prior to Executives Eligible Termination for the period such coverage is actually provided in accordance with Code Section 4980B, but not in excess of 18 months; payment hereunder shall be made on the first business day of each calendar month following Executives timely coverage election, and, to facilitate the payment of Executives group medical plan premiums, may, in the discretion of the Company, be remitted directly by the Company to such plan or other appropriate person. |
c. | Vesting shall be accelerated, any restrictions shall lapse, and all performance objectives shall be deemed satisfied as to any outstanding grant or award made to Executive under the Companys 2001 Long-Term Incentive Compensation Plan, as the same may be amended, restated or superseded from time to time. |
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d. | The Company shall pay to Executive an additional amount equal to 2.00 times the aggregate of Executives (i) Base Compensation in effect prior to such change, and (ii) average Incentive Bonus paid with respect to the two whole calendar years preceding such change; the amount determined hereunder shall be paid in the form of a single-sum not more than 30 days following such change. |
2.2 Limitation on Payments. If the aggregate present value of all payments and benefits due to Executive under this Agreement and any other payment or benefit due to Executive from the Company or an Affiliate or any successor thereto on account of a Change in Control (the Aggregate Payments) would be subject to the excise tax imposed by Code Section 4999, such payments or benefits shall be reduced by the minimum amount necessary to result in no portion of the Aggregate Payments, so reduced, being subject to such tax. The determination of whether a reduction is required hereunder shall be made by the Companys registered independent public accounting firm and shall be binding upon the parties hereto. To the extent practicable, Executive shall be entitled to select the payments or benefits subject to reduction.
2.3 Specified Employee Delay. In the event the Company determines that Executive is a specified employee within the meaning of Code Section 409A as of his Eligible Termination, then, notwithstanding any provision of this Agreement to the contrary, the Company shall postpone until the first business day of the seventh calendar month following such termination (the Delayed Payment Date) any payment or benefit hereunder which is deemed on account of Executives separation from service and not otherwise permitted to be paid or furnished in accordance with the provisions of Code Section 409A and the guidance promulgated thereunder. Any payment made as of Executives Delayed Payment Date shall include the principal amount of all payments suspended between Executives Eligible Termination and such date, without liability for interest or other loss of investment opportunity.
2.4 Other Benefits and Payments. Amounts payable or provided under this Section 2 shall be in lieu of and not in addition to any severance pay or similar post-termination benefit or payment otherwise provided under any severance pay or similar plan, policy or arrangement maintained by the Company or its Affiliates. Notwithstanding the foregoing, nothing contained herein shall affect the payment or provision of any amount or benefit which the Company and its Affiliates are required by law to pay or provide.
2.5 Further Limitation on Payments. As a condition of the receipt of any cash payment hereunder, Executive acknowledges that the Board retains the discretion to reduce the amount of the benefit to the extent necessary to ensure that all cash benefits paid under this Agreement on account of a Change in Control, when aggregated with similar change in control severance benefits paid under separate plans, policies and arrangements maintained by the Company and its Affiliates, excluding for this purpose payments made under certain employment agreements between the Company and/or Renasant Bank and certain of their executive officers, do not exceed a specified amount, which will be determined by the Board in good faith at the time a Change in Control occurs. The purpose of this limit is to ensure that all severance benefits payable on account of a Change in Control will not be excessive, when considered in the aggregate. If a reduction is required, the Board shall furnish notice to Executive, and, to the extent practicable, the amount of the reduction will be applied on a pro rata basis to all affected executive, officers and employees.
3. | Limitations On Activities: |
3.1 Consideration for Limitation on Activities. Executive acknowledges that the execution of this Agreement and the payments described herein constitute consideration for the limitations on activities set forth in this Section 3, the adequacy of which is hereby acknowledged.
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3.2 Intellectual Property. The parties hereto agree that the Company owns all Intellectual Property (as defined below) and associated goodwill. Executive agrees to assign, and hereby assigns to the Company, without further consideration or royalty, the ownership of and all rights to such property and goodwill. The Company shall possess the right to own, obtain and hold in its name any right, registration, or other protection or recordation associated with such Intellectual Property, and Executive agrees to perform, whether during the course of his employment with the Company or an Affiliate or thereafter, such actions as may be necessary or desirable to transfer, perfect and defend the Companys ownership or registration of such property. Notwithstanding the generality of the foregoing, this provision shall not apply to any property for which no equipment, supplies, facilities or information of the Company was used and which was developed entirely during Executives own time, unless such property relates to the business of the Company or an Affiliate or results from any work performed by Executive for the Company or an Affiliate.
For purposes of this Agreement, Intellectual Property shall mean all inventions, discoveries, creations, improvements, techniques, trade secrets, products (utility or design), works of authorship or any other intellectual property relating to any programming, documentation, technology, material, product, service, idea, process, method, plan or strategy concerning the business or interests of the Company and its Affiliates that Executive conceives, develops or delivers, in whole or in part, during the period of his employment with the Company and its Affiliates.
3.3 Confidential Information. Executive recognizes and acknowledges that during his employment with the Company and it Affiliates, he will have access to confidential, proprietary, non-public information concerning the Company and its Affiliates, which may include, without limitation, (a) books, records and policies relating to operations, finance, accounting, personnel and management, (b) information related to any business entered into by the Company or an Affiliate, (c) credit policies and practices, databases, customer lists, information obtained on competitors, and tactics, (d) various other non-public trade or business information, including business opportunities and strategies, marketing, acquisition or business diversification plans, methods and processes, work product, and (e) selling and operating policies and practices, including without limitation, policies and practices concerning the identity, solicitation, acquisition, management, resale or cancellation of unsecured or secured credit card accounts, loan or lease accounts or other accounts relating to consumer products and services (collectively, Confidential Information). Executive agrees that he will not at any time, either during the course of his employment or afterwards, make any independent use of, or disclose to any other person or organization any Confidential Information, except as may be expressly authorized by the Company, in the ordinary course of Executives employment with the Company and its Affiliates or as may be required by law or legal process.
3.4 Return of Property. Upon his termination of employment for any reason, Executive or his estate shall promptly return to the Company all of the property of the Company and its Affiliates, including, without limitation, automobiles, equipment, computers, fax machines, portable telephones, printers, software, credit cards, manuals, customer lists, financial data, letters, notes, notebooks, reports and copies of any of the above and any Confidential Information (as defined in Section 4.3 hereof) that is in the possession or under the control of Executive. Executive shall provide to the Company written certification that he has complied with the provisions of this Section 3.2 not later than ten days after such termination.
3.5 Business Reputation. Executive agrees that during the course of his employment and at all times thereafter he shall refrain from performing any act, engaging in any conduct or course of action or making or publishing an adverse, untrue or misleading statement which has or may reasonably have the effect of demeaning the name or business reputation of the Company or its Affiliates or which adversely
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affects (or may reasonably adversely affect) the best interests (economic or otherwise) of the Company or an Affiliate, except as may be required by law or legal process.
The Company agrees that during the course of Executives employment and thereafter, it shall refrain from performing any act, engaging in any conduct or course of action or making or publishing an adverse, untrue or misleading statement which has or may reasonably have the effect of demeaning Executive, except as may be required by law or legal process.
3.6 Non-Solicitation. Executive agrees that during the Restricted Period (as defined below), he shall not, directly or indirectly, for his own benefit or on behalf of another or to the Companys detriment:
a. | Solicit, hire, or offer to hire or participate in the hiring of any of the Companys or Affiliates officers, executive s or agents; |
b. | Persuade or attempt to persuade in any manner any officer, executive or agent of the Company or an Affiliate to discontinue any relationship with the Company or an Affiliate; or |
c. | Solicit, divert, or attempt to solicit or divert any customer or depositor of the Company or an Affiliate. |
3.7 Non-Competition . The Executive agrees that he shall not, during the Restricted Period, whether as an executive, officer, director, shareholder, owner, partner, joint venturer, independent contractor, consultant or in another managerial capacity, engage in the Banking Business in the Restricted Area. For purposes of this Section 3.7, the term Banking Business shall mean the management and/or operation of a retail bank or other financial institution, securities brokerage, or insurance agency or brokerage. The term Restricted Area shall mean within the 100-mile radius of any geographic location in which the Company or an Affiliate has an office on the date of Executives termination of employment with the Company and its Affiliates.
3.8 Reformation. The parties agree that each of the prohibitions set forth herein is intended to constitute a separate restriction. Accordingly, should any such prohibition be declared invalid or unenforceable, such prohibition shall be deemed severable from and shall not affect the remainder thereof. The parties further agree that each of the foregoing restrictions is reasonable in both time and geographic scope. If and to the extent a court of competent jurisdiction or an arbitrator, as the case may be, determines that any of the restrictions or covenants set forth in this Agreement are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent that such court or arbitrator deems reasonable and that this Agreement shall be reformed to the extent necessary to permit such enforcement.
3.9 Remedies. In the event of a breach or threatened breach by Executive of the provisions of this section hereof, Executive agrees that the Company shall be entitled to a temporary restraining order or a preliminary injunction (without the necessity of posting bond in connection therewith) and that any additional payments or benefits due to Executive may be suspended, canceled, or forfeited, in the sole discretion of the Company. Nothing herein shall be construed as prohibiting the Company from pursuing any other remedy available to it for such breach or threatened breach, including the recovery of damages from Executive.
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3.10 Survival. Executive acknowledges that the proscriptions set forth in this Section 3 shall survive the termination of his employment with the Company and its Affiliates and/or the termination or expiration of this Agreement .
3.11 Definition. As used herein, the term Restricted Period shall mean the period commencing upon Executives termination of employment for any reason and ending (a) two years after Executives Eligible Termination, or (b) six months thereafter, in all other cases.
4. | Miscellaneous: |
4.1. Not an Employment Agreement. Nothing contained herein shall be deemed to constitute an employment agreement between Executive and the Company or any Affiliate. The parties expressly intend that this Agreement shall not be deemed to modify Executives at will employment status.
4.2 Mitigation Not Required. As a condition of any payment hereunder, Executive shall not be required to mitigate the amount of such payment by seeking other employment or otherwise, nor will any profits, income, earnings or other benefits from any source whatsoever create any mitigation, offset, reduction or any other obligation on the part of Executive under this Agreement.
4.3 Enforcement of This Agreement. In addition to the Companys equitable remedies provided under Section 3.9 hereof, which need not be exclusively resolved by arbitration, in the event that any legal dispute arises in connection with, relating to, or concerning this Agreement, or in the event of any claim for breach or violation of any provision of this Agreement, Executive agrees that such dispute or claim will be resolved by arbitration. Any such arbitration proceeding shall be conducted in accordance with the rules of the American Arbitration Association (AAA). Any such dispute or claim will be presented to a single arbitrator selected by mutual agreement of the Executive and the Company (or the arbitrator will be selected in accordance with the rules of the AAA). All determinations of the arbitrator will be final and biding upon the Executive and the Company. Except as provided in Section 5.3 hereof, each party to the arbitration proceeding will bear its own costs in connection with such arbitration proceedings, except that unless otherwise paid by the Company in accordance with such section, the costs and expenses of the arbitrator will be divided evenly between the parties. The venue for any arbitration proceeding and for any judicial proceeding related to this arbitration provision (including a judicial proceeding to enforce this provision) will be in Tupelo, Mississippi.
4.4 Attorneys Fees. In the event any dispute in connection with this Agreement arises with respect to obligations of Executive or the Company that were required prior to the occurrence of a Change in Control, all costs, fees and expenses, including attorneys fees, of any litigation, arbitration or other legal action in connection with such matters in which Executive substantially prevails, shall be borne by, and be the obligation of, the Company.
After a Change in Control has occurred, Executive shall not be required to incur legal fees and the related expenses associated with the interpretation, enforcement or defense of Executives rights under this Agreement by arbitration, litigation or otherwise. Accordingly, if following a Change in Control, the Company has failed to comply with any of its obligations under this Agreement or the Company or any other person takes or threatens to take any action to declare this Agreement void or unenforceable or in any way reduce the possibility of collecting the amounts due hereunder, or institutes any litigation or other action or proceeding designed to deny or to recover from Executive the benefits provided or intended to be provided under this Agreement, Executive shall be entitled to retain counsel of Executives choice, at the expense of the Company, to advise and represent Executive in connection with any such interpretation, enforcement or defense, including without limitation, the initiation or defense of any
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litigation, arbitration or other legal action, whether by or against the Company or any director, officer, stockholder or other person affiliated with the Company, in any jurisdiction. The Company shall pay and be solely financially responsible for any and all attorneys and related fees and expenses incurred by Executive in connection with any of the foregoing, without regard to whether Executive prevails, in whole or in part.
In no event shall Executive be required to reimburse the Company for any of the costs and expenses incurred by the Company relating to arbitration, litigation or other legal action in connection with this Agreement.
Executive shall claim payment or reimbursement of attorneys fees hereunder not later than 90 days after the end of the calendar year in which such claim arises hereunder. The Company shall promptly pay or reimburse such fees, but in no event later than 90 days after it receives proper and complete evidence thereof.
4.5 No Set-Off. There shall be no right of set-off or counterclaim in respect of any claim, debt or obligation against any payment to Executive provided for in this Agreement.
4.6 Assistance with Litigation. For a period of two years after Executives termination of employment with the Company and its Affiliates, Executive will furnish such information and proper assistance as may be reasonably necessary in connection with any litigation in which the Company (or an Affiliate) is then or may become involved, without the payment of a fee or charge, except reimbursement of his direct expenses.
4.7 Headings. Section and other headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
4.8 Entire Agreement. This Agreement constitutes the final and complete understanding and agreement among the parties hereto with respect to the subject matter hereof, and there are no other agreements, understandings, restrictions, representations or warranties among the parties other than those set forth herein. Executive acknowledges that this Agreement replaces, in its entirety, the Prior Agreement and extinguishes, in their entirety, the Companys obligations thereunder.
4.9 Amendments. This Agreement may be amended or modified at any time in any or all respects, but only by an instrument in writing executed by the parties hereto.
4.10 Choice of Law. The validity of this Agreement, the construction of its terms, and the determination of the rights and duties of the parties hereto shall be governed by and construed in accordance with the internal laws of the State of Mississippi applicable to contracts made to be performed wholly within such state, without regard to the choice of law provisions thereof.
4.11 Notices. All notices and other communications under this Agreement must be in writing and will be deemed to have been duly given when (a) delivered by hand, (b) sent by facsimile to a facsimile number given below, provided that a copy is sent by a nationally recognized overnight delivery service (receipt requested), or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case as follows:
If to Executive: | Most Recent Address | |
on File with the Company |
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If to the Company: | Renasant Corporation | |
209 Troy Street Tupelo, MS 38804 Attention: Chief Executive Officer |
or to such other addresses as a party may designate by notice to the other party.
4.12 Successors; Assignment. This Agreement is personal to Executive and shall not be assigned by him or her without the prior written consent of the Company. This Agreement will inure to the benefit of and be binding upon the Company, its Affiliates, successors and assigns, including, without limitation, any person, partnership, company, corporation or other entity that may acquire substantially all of the Companys assets or business or with or into which the Company may be liquidated, consolidated, merged or otherwise combined. This Agreement will inure to the benefit of and be binding upon Executive, his heirs, estate, legatees and legal representatives. Any payment due to Executive shall be paid to his surviving spouse or estate after his death.
4.13 Severability. Each provision of this Agreement is intended to be severable. In the event that any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable, the same shall not affect the validity or enforceability of any other provision of this Agreement, but this Agreement shall be construed as if such invalid, illegal or unenforceable provision was not contained herein. Notwithstanding the foregoing, however, no provision shall be severed if it is clearly apparent under the circumstances that the parties would not have entered into this Agreement without such provision.
4.14 Withholding. As a condition of any payment hereunder the Company or an Affiliate shall withhold any federal, state or local taxes required to be withheld.
4.15 Survival. Notwithstanding anything herein to the contrary, the rights and obligations of the Company and its Affiliates and Executive under Sections 3.2, 4, and 5 hereof shall remain operative and in full force and effect regardless of the expiration or termination of this Agreement or the termination of Executives employment hereunder for any reason.
4.16 Waiver. The failure of either party to insist in any one or more instances upon performance of any terms or conditions of this Agreement will not be construed as a waiver of future performance of any such term, covenant, or condition and the obligations of either party with respect to such term, covenant or condition will continue in full force and effect.
4.17 Term; Expiration and Termination. This Agreement shall be effective as of January 1, 2009, and shall, unless earlier terminated as provided herein, terminate as of the first anniversary hereof; provided, that on the first anniversary of this Agreement and on each subsequent anniversary hereof, this Agreement shall be automatically extended for an additional one-year term unless the Company gives Executive notice of its intent not to renew this Agreement at least 60 days prior to the end of the initial term or any renewal term hereof. This Agreement shall be earlier terminated and the Companys obligations hereunder shall cease upon Executives death, disability or termination of employment with the Company and its Affiliates for any reason, except as provided in Section 2.1 hereof. The Company may earlier terminate this Agreement for Cause, notwithstanding that Executives employment with the Company has not been terminated.
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This Agreement is executed in multiple counterparts as of the dates set forth below, each of which shall be deemed an original, to be effective as designated above.
Renasant Corporation: | Executive: | |||||||
By: | /s/ E. Robinson McGraw | /s/ Stuart R. Johnson | ||||||
E. Robinson McGraw | ||||||||
Chief Executive Officer | ||||||||
Date: | January 21, 2009 | Date: | January 15, 2009 |
NO.99891227.3
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Exhibit 10.7
RENASANT CORPORATION
CHANGE IN CONTROL AGREEMENT
This Change in Control Agreement (the Agreement) is entered into by and between C. Mitchell Waycaster (Executive) and Renasant Corporation, a Mississippi corporation (the Company), and is intended to amend, restate and replace, in its entirety, that certain Employment Agreement by and between Executive and the Company dated as of September 12, 2000 (the Prior Agreement).
1. | Definitions: |
1.1 Affiliate means one or more subsidiaries or other entities with respect to which the Company owns (within the meaning of Section 425(f) of the Internal Revenue Code of 1986, as amended (the Code)) 50% or more of the total combined voting power of all classes of stock or other equity interests.
1.2 Base Compensation means Executives annualized base salary.
1.3 Board means the Board of Directors of the Company.
1.4 Cause means that Executive has:
a. | Committed an intentional act of fraud, embezzlement or theft in the course of his employment or otherwise engaged in any intentional misconduct which is materially injurious to the Companys (or an Affiliates) financial condition or business reputation; |
b. | Committed intentional damage to the property of the Company (or an Affiliate) or committed intentional wrongful disclosure of Confidential Information (as defined below); |
c. | Been indicted for the commission of a felony or a crime involving moral turpitude; |
d. | Willfully and substantially refused to perform the essential duties of his position, which has not been cured within 30 days following written notice by the Companys Chief Executive Officer; |
e. | Intentionally, recklessly or negligently violated any material provision of any code of ethics, code of conduct or equivalent code or policy of the Company or its Affiliates applicable to him; or |
f. | Intentionally, recklessly or negligently violated any material provision of the Sarbanes-Oxley Act of 2002 or any of the rules adopted by the Securities and Exchange Commission implementing any such provision. |
No act or failure to act on the part of Executive will be deemed intentional if it was due primarily to an error in judgment or negligence (but not gross negligence), but will be deemed intentional only if done or omitted to be done by Executive not in good faith and without reasonable belief that his action or omission was in the best interest of the Company or an Affiliate.
1.5 Change In Control means and shall be deemed to occur upon a Change in Equity Ownership, a Change in Effective Control, a Change in the Ownership of Assets or a Change by Merger. For this purpose:
a. | A Change in Equity Ownership means that a person or group acquires, directly or indirectly in accordance with Code Section 318, more than 50% of the aggregate fair market value or voting power of the capital stock of the Company, including for this purpose capital stock previously acquired by such person or group; provided, however, that a change in Equity Ownership shall not be deemed to occur hereunder if, at the time of any such acquisition, such person or group owns more than 50% of the aggregate fair market value or voting power of the Companys capital stock. |
b. | A Change in Effective Control means that (i) a person or group acquires (or has acquired during the immediately preceding 12-month period ending on the date of the most recent acquisition by such person or group), directly or indirectly in accordance with Code Section 318, ownership of the capital stock of the Company possessing 35% or more of the total voting power of the Company, or (ii) a majority of the members of the Board of Directors of the Company is replaced during any 12-month period, whether by appointment or election, without endorsement by a majority of the members of the Board prior to the date of such appointment or election. |
c. | A Change in the Ownership of Assets means that any person or group acquires (or has acquired in a series of transactions during the immediately preceding 12-month period ending on the date of the most recent acquisition) all or substantially all of the assets of the Company. |
d. | A Change by Merger means that the Company shall consummate a merger or consolidation or similar transaction with another corporation or entity, unless as a result of such transaction, more than 50% of the then outstanding voting securities of the surviving or resulting corporation or entity shall be owned in the aggregate by the former shareholders of the Company and the voting securities of the surviving or resulting corporation or entity are owned in substantially the same proportion as the common stock of the Company was beneficially owned before such transaction. |
The Board shall promptly certify to Executive whether a Change in Control has occurred hereunder, which certification shall not be unreasonably withheld.
1.6 Code means the Internal Revenue Code of 1986, as amended.
1.7 Good Reason means that in connection with a Change in Control:
a. | Executives Base Compensation in effect immediately before such change is materially diminished; |
b. | Executives authority, duties or responsibilities are materially diminished from those performed by Executive prior to the Change in Control; or |
c. | There is a material change in the office or business location at which Executive is required to perform services, but in no event less than a change outside the 30-mile radius of the location he was assigned to prior to the Change in Control. |
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No event or condition described in this Section 1.7 shall constitute Good Reason unless (a) Executive provides to the Chief Executive Officer notice of his objection to such event or condition not more 60 days after Executive first learns of such event, which notice shall be delivered in writing, (b) such event or condition is not promptly corrected by the Company, but in no event later than 30 days after receipt of such notice, and (c) Executive resigns his employment with the Company and its Affiliates not more than 60 days following the expiration of the 30-day period described in subparagraph (b) hereof.
1.8 Incentive Bonus means the amount paid or payable to Executive under the Companys Performance Based Rewards Plan or similar annual cash bonus arrangement.
1.9 Termination of employment, separation from service, and words of similar import used herein shall mean the later of the date on which (a) an Executives employment with the Company and its Affiliates ceases, or (b) the Company and such Executive reasonably anticipate that Executive will perform no further services for the Company and its Affiliates, whether as a common law employee or independent contractor. Notwithstanding the foregoing, Executive may be deemed to incur a separation from service hereunder if he continues to provide services to the Company or an Affiliate, provided such services are not more than 20% of the average level of services performed, whether as an employee or independent contractor, during the immediately preceding 36-month period.
2. | Change in Control Benefits: |
2.1 Termination In Connection With a Change in Control. If Executives employment is involuntarily terminated by the Company, without Cause, or Executive terminates his employment with the Company for Good Reason, either occurring during the 24-month period following a Change in Control (Executives Eligible Termination), the Company shall pay or provide to Executive the following:
a. | Executives Incentive Bonus with respect to the Companys completed fiscal year immediately preceding Executives Eligible Termination, to the extent such amount has not been paid as of the change; such amount shall be paid on the payment date generally applicable to such bonus. |
b. | If Executive and/or his dependants timely elect to continue group medical coverage in accordance with Code Section 4980B with respect to the group medical plan sponsored by the Company or an Affiliate (excluding for this purpose any health flexible spending account described in Code Sections 125 and 105(h)), the Company shall pay to Executive the amount of the continuation coverage premium for the same type and level of coverage received by Executive and his electing dependants immediately prior to Executives Eligible Termination for the period such coverage is actually provided in accordance with Code Section 4980B, but not in excess of 18 months; payment hereunder shall be made on the first business day of each calendar month following Executives timely coverage election, and, to facilitate the payment of Executives group medical plan premiums, may, in the discretion of the Company, be remitted directly by the Company to such plan or other appropriate person. |
c. | Vesting shall be accelerated, any restrictions shall lapse, and all performance objectives shall be deemed satisfied as to any outstanding grant or award made to Executive under the Companys 2001 Long-Term Incentive Compensation Plan, as the same may be amended, restated or superseded from time to time. |
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d. | The Company shall pay to Executive an additional amount equal to 2.00 times the aggregate of Executives (i) Base Compensation in effect prior to such change, and (ii) average Incentive Bonus paid with respect to the two whole calendar years preceding such change; the amount determined hereunder shall be paid in the form of a single-sum not more than 30 days following such change. |
2.2 Limitation on Payments. If the aggregate present value of all payments and benefits due to Executive under this Agreement and any other payment or benefit due to Executive from the Company or an Affiliate or any successor thereto on account of a Change in Control (the Aggregate Payments) would be subject to the excise tax imposed by Code Section 4999, such payments or benefits shall be reduced by the minimum amount necessary to result in no portion of the Aggregate Payments, so reduced, being subject to such tax. The determination of whether a reduction is required hereunder shall be made by the Companys registered independent public accounting firm and shall be binding upon the parties hereto. To the extent practicable, Executive shall be entitled to select the payments or benefits subject to reduction.
2.3 Specified Employee Delay. In the event the Company determines that Executive is a specified employee within the meaning of Code Section 409A as of his Eligible Termination, then, notwithstanding any provision of this Agreement to the contrary, the Company shall postpone until the first business day of the seventh calendar month following such termination (the Delayed Payment Date) any payment or benefit hereunder which is deemed on account of Executives separation from service and not otherwise permitted to be paid or furnished in accordance with the provisions of Code Section 409A and the guidance promulgated thereunder. Any payment made as of Executives Delayed Payment Date shall include the principal amount of all payments suspended between Executives Eligible Termination and such date, without liability for interest or other loss of investment opportunity.
2.4 Other Benefits and Payments. Amounts payable or provided under this Section 2 shall be in lieu of and not in addition to any severance pay or similar post-termination benefit or payment otherwise provided under any severance pay or similar plan, policy or arrangement maintained by the Company or its Affiliates. Notwithstanding the foregoing, nothing contained herein shall affect the payment or provision of any amount or benefit which the Company and its Affiliates are required by law to pay or provide.
2.5 Further Limitation on Payments. As a condition of the receipt of any cash payment hereunder, Executive acknowledges that the Board retains the discretion to reduce the amount of the benefit to the extent necessary to ensure that all cash benefits paid under this Agreement on account of a Change in Control, when aggregated with similar change in control severance benefits paid under separate plans, policies and arrangements maintained by the Company and its Affiliates, excluding for this purpose payments made under certain employment agreements between the Company and/or Renasant Bank and certain of their executive officers, do not exceed a specified amount, which will be determined by the Board in good faith at the time a Change in Control occurs. The purpose of this limit is to ensure that all severance benefits payable on account of a Change in Control will not be excessive, when considered in the aggregate. If a reduction is required, the Board shall furnish notice to Executive, and, to the extent practicable, the amount of the reduction will be applied on a pro rata basis to all affected executive, officers and employees.
3. | Limitations On Activities: |
3.1 Consideration for Limitation on Activities. Executive acknowledges that the execution of this Agreement and the payments described herein constitute consideration for the limitations on activities set forth in this Section 3, the adequacy of which is hereby acknowledged.
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3.2 Intellectual Property. The parties hereto agree that the Company owns all Intellectual Property (as defined below) and associated goodwill. Executive agrees to assign, and hereby assigns to the Company, without further consideration or royalty, the ownership of and all rights to such property and goodwill. The Company shall possess the right to own, obtain and hold in its name any right, registration, or other protection or recordation associated with such Intellectual Property, and Executive agrees to perform, whether during the course of his employment with the Company or an Affiliate or thereafter, such actions as may be necessary or desirable to transfer, perfect and defend the Companys ownership or registration of such property. Notwithstanding the generality of the foregoing, this provision shall not apply to any property for which no equipment, supplies, facilities or information of the Company was used and which was developed entirely during Executives own time, unless such property relates to the business of the Company or an Affiliate or results from any work performed by Executive for the Company or an Affiliate.
For purposes of this Agreement, Intellectual Property shall mean all inventions, discoveries, creations, improvements, techniques, trade secrets, products (utility or design), works of authorship or any other intellectual property relating to any programming, documentation, technology, material, product, service, idea, process, method, plan or strategy concerning the business or interests of the Company and its Affiliates that Executive conceives, develops or delivers, in whole or in part, during the period of his employment with the Company and its Affiliates.
3.3 Confidential Information. Executive recognizes and acknowledges that during his employment with the Company and it Affiliates, he will have access to confidential, proprietary, non-public information concerning the Company and its Affiliates, which may include, without limitation, (a) books, records and policies relating to operations, finance, accounting, personnel and management, (b) information related to any business entered into by the Company or an Affiliate, (c) credit policies and practices, databases, customer lists, information obtained on competitors, and tactics, (d) various other non-public trade or business information, including business opportunities and strategies, marketing, acquisition or business diversification plans, methods and processes, work product, and (e) selling and operating policies and practices, including without limitation, policies and practices concerning the identity, solicitation, acquisition, management, resale or cancellation of unsecured or secured credit card accounts, loan or lease accounts or other accounts relating to consumer products and services (collectively, Confidential Information). Executive agrees that he will not at any time, either during the course of his employment or afterwards, make any independent use of, or disclose to any other person or organization any Confidential Information, except as may be expressly authorized by the Company, in the ordinary course of Executives employment with the Company and its Affiliates or as may be required by law or legal process.
3.4 Return of Property. Upon his termination of employment for any reason, Executive or his estate shall promptly return to the Company all of the property of the Company and its Affiliates, including, without limitation, automobiles, equipment, computers, fax machines, portable telephones, printers, software, credit cards, manuals, customer lists, financial data, letters, notes, notebooks, reports and copies of any of the above and any Confidential Information (as defined in Section 4.3 hereof) that is in the possession or under the control of Executive. Executive shall provide to the Company written certification that he has complied with the provisions of this Section 3.2 not later than ten days after such termination.
3.5 Business Reputation. Executive agrees that during the course of his employment and at all times thereafter he shall refrain from performing any act, engaging in any conduct or course of action or making or publishing an adverse, untrue or misleading statement which has or may reasonably have the effect of demeaning the name or business reputation of the Company or its Affiliates or which adversely
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affects (or may reasonably adversely affect) the best interests (economic or otherwise) of the Company or an Affiliate, except as may be required by law or legal process.
The Company agrees that during the course of Executives employment and thereafter, it shall refrain from performing any act, engaging in any conduct or course of action or making or publishing an adverse, untrue or misleading statement which has or may reasonably have the effect of demeaning Executive, except as may be required by law or legal process.
3.6 Non-Solicitation. Executive agrees that during the Restricted Period (as defined below), he shall not, directly or indirectly, for his own benefit or on behalf of another or to the Companys detriment:
a. | Solicit, hire, or offer to hire or participate in the hiring of any of the Companys or Affiliates officers, executive s or agents; |
b. | Persuade or attempt to persuade in any manner any officer, executive or agent of the Company or an Affiliate to discontinue any relationship with the Company or an Affiliate; or |
c. | Solicit, divert, or attempt to solicit or divert any customer or depositor of the Company or an Affiliate. |
3.7 Non-Competition . The Executive agrees that he shall not, during the Restricted Period, whether as an executive, officer, director, shareholder, owner, partner, joint venturer, independent contractor, consultant or in another managerial capacity, engage in the Banking Business in the Restricted Area. For purposes of this Section 3.7, the term Banking Business shall mean the management and/or operation of a retail bank or other financial institution, securities brokerage, or insurance agency or brokerage. The term Restricted Area shall mean within the 100-mile radius of any geographic location in which the Company or an Affiliate has an office on the date of Executives termination of employment with the Company and its Affiliates.
3.8 Reformation. The parties agree that each of the prohibitions set forth herein is intended to constitute a separate restriction. Accordingly, should any such prohibition be declared invalid or unenforceable, such prohibition shall be deemed severable from and shall not affect the remainder thereof. The parties further agree that each of the foregoing restrictions is reasonable in both time and geographic scope. If and to the extent a court of competent jurisdiction or an arbitrator, as the case may be, determines that any of the restrictions or covenants set forth in this Agreement are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent that such court or arbitrator deems reasonable and that this Agreement shall be reformed to the extent necessary to permit such enforcement.
3.9 Remedies. In the event of a breach or threatened breach by Executive of the provisions of this section hereof, Executive agrees that the Company shall be entitled to a temporary restraining order or a preliminary injunction (without the necessity of posting bond in connection therewith) and that any additional payments or benefits due to Executive may be suspended, canceled, or forfeited, in the sole discretion of the Company. Nothing herein shall be construed as prohibiting the Company from pursuing any other remedy available to it for such breach or threatened breach, including the recovery of damages from Executive.
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3.10 Survival. Executive acknowledges that the proscriptions set forth in this Section 3 shall survive the termination of his employment with the Company and its Affiliates and/or the termination or expiration of this Agreement .
3.11 Definition. As used herein, the term Restricted Period shall mean the period commencing upon Executives termination of employment for any reason and ending (a) two years after Executives Eligible Termination, or (b) six months thereafter, in all other cases.
4. | Miscellaneous: |
4.1. Not an Employment Agreement. Nothing contained herein shall be deemed to constitute an employment agreement between Executive and the Company or any Affiliate. The parties expressly intend that this Agreement shall not be deemed to modify Executives at will employment status.
4.2 Mitigation Not Required. As a condition of any payment hereunder, Executive shall not be required to mitigate the amount of such payment by seeking other employment or otherwise, nor will any profits, income, earnings or other benefits from any source whatsoever create any mitigation, offset, reduction or any other obligation on the part of Executive under this Agreement.
4.3 Enforcement of This Agreement. In addition to the Companys equitable remedies provided under Section 3.9 hereof, which need not be exclusively resolved by arbitration, in the event that any legal dispute arises in connection with, relating to, or concerning this Agreement, or in the event of any claim for breach or violation of any provision of this Agreement, Executive agrees that such dispute or claim will be resolved by arbitration. Any such arbitration proceeding shall be conducted in accordance with the rules of the American Arbitration Association (AAA). Any such dispute or claim will be presented to a single arbitrator selected by mutual agreement of the Executive and the Company (or the arbitrator will be selected in accordance with the rules of the AAA). All determinations of the arbitrator will be final and biding upon the Executive and the Company. Except as provided in Section 5.3 hereof, each party to the arbitration proceeding will bear its own costs in connection with such arbitration proceedings, except that unless otherwise paid by the Company in accordance with such section, the costs and expenses of the arbitrator will be divided evenly between the parties. The venue for any arbitration proceeding and for any judicial proceeding related to this arbitration provision (including a judicial proceeding to enforce this provision) will be in Tupelo, Mississippi.
4.4 Attorneys Fees. In the event any dispute in connection with this Agreement arises with respect to obligations of Executive or the Company that were required prior to the occurrence of a Change in Control, all costs, fees and expenses, including attorneys fees, of any litigation, arbitration or other legal action in connection with such matters in which Executive substantially prevails, shall be borne by, and be the obligation of, the Company.
After a Change in Control has occurred, Executive shall not be required to incur legal fees and the related expenses associated with the interpretation, enforcement or defense of Executives rights under this Agreement by arbitration, litigation or otherwise. Accordingly, if following a Change in Control, the Company has failed to comply with any of its obligations under this Agreement or the Company or any other person takes or threatens to take any action to declare this Agreement void or unenforceable or in any way reduce the possibility of collecting the amounts due hereunder, or institutes any litigation or other action or proceeding designed to deny or to recover from Executive the benefits provided or intended to be provided under this Agreement, Executive shall be entitled to retain counsel of Executives choice, at the expense of the Company, to advise and represent Executive in connection with any such interpretation, enforcement or defense, including without limitation, the initiation or defense of any
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litigation, arbitration or other legal action, whether by or against the Company or any director, officer, stockholder or other person affiliated with the Company, in any jurisdiction. The Company shall pay and be solely financially responsible for any and all attorneys and related fees and expenses incurred by Executive in connection with any of the foregoing, without regard to whether Executive prevails, in whole or in part.
In no event shall Executive be required to reimburse the Company for any of the costs and expenses incurred by the Company relating to arbitration, litigation or other legal action in connection with this Agreement.
Executive shall claim payment or reimbursement of attorneys fees hereunder not later than 90 days after the end of the calendar year in which such claim arises hereunder. The Company shall promptly pay or reimburse such fees, but in no event later than 90 days after it receives proper and complete evidence thereof.
4.5 No Set-Off. There shall be no right of set-off or counterclaim in respect of any claim, debt or obligation against any payment to Executive provided for in this Agreement.
4.6 Assistance with Litigation. For a period of two years after Executives termination of employment with the Company and its Affiliates, Executive will furnish such information and proper assistance as may be reasonably necessary in connection with any litigation in which the Company (or an Affiliate) is then or may become involved, without the payment of a fee or charge, except reimbursement of his direct expenses.
4.7 Headings. Section and other headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
4.8 Entire Agreement. This Agreement constitutes the final and complete understanding and agreement among the parties hereto with respect to the subject matter hereof, and there are no other agreements, understandings, restrictions, representations or warranties among the parties other than those set forth herein. Executive acknowledges that this Agreement replaces, in its entirety, the Prior Agreement and extinguishes, in their entirety, the Companys obligations thereunder.
4.9 Amendments. This Agreement may be amended or modified at any time in any or all respects, but only by an instrument in writing executed by the parties hereto.
4.10 Choice of Law. The validity of this Agreement, the construction of its terms, and the determination of the rights and duties of the parties hereto shall be governed by and construed in accordance with the internal laws of the State of Mississippi applicable to contracts made to be performed wholly within such state, without regard to the choice of law provisions thereof.
4.11 Notices. All notices and other communications under this Agreement must be in writing and will be deemed to have been duly given when (a) delivered by hand, (b) sent by facsimile to a facsimile number given below, provided that a copy is sent by a nationally recognized overnight delivery service (receipt requested), or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case as follows:
If to Executive: | Most Recent Address | |
on File with the Company |
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If to the Company: | Renasant Corporation | |
209 Troy Street | ||
Tupelo, MS 38804 | ||
Attention: Chief Executive Officer |
or to such other addresses as a party may designate by notice to the other party.
4.12 Successors; Assignment. This Agreement is personal to Executive and shall not be assigned by him or her without the prior written consent of the Company. This Agreement will inure to the benefit of and be binding upon the Company, its Affiliates, successors and assigns, including, without limitation, any person, partnership, company, corporation or other entity that may acquire substantially all of the Companys assets or business or with or into which the Company may be liquidated, consolidated, merged or otherwise combined. This Agreement will inure to the benefit of and be binding upon Executive, his heirs, estate, legatees and legal representatives. Any payment due to Executive shall be paid to his surviving spouse or estate after his death.
4.13 Severability. Each provision of this Agreement is intended to be severable. In the event that any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable, the same shall not affect the validity or enforceability of any other provision of this Agreement, but this Agreement shall be construed as if such invalid, illegal or unenforceable provision was not contained herein. Notwithstanding the foregoing, however, no provision shall be severed if it is clearly apparent under the circumstances that the parties would not have entered into this Agreement without such provision.
4.14 Withholding. As a condition of any payment hereunder the Company or an Affiliate shall withhold any federal, state or local taxes required to be withheld.
4.15 Survival. Notwithstanding anything herein to the contrary, the rights and obligations of the Company and its Affiliates and Executive under Sections 3.2, 4, and 5 hereof shall remain operative and in full force and effect regardless of the expiration or termination of this Agreement or the termination of Executives employment hereunder for any reason.
4.16 Waiver. The failure of either party to insist in any one or more instances upon performance of any terms or conditions of this Agreement will not be construed as a waiver of future performance of any such term, covenant, or condition and the obligations of either party with respect to such term, covenant or condition will continue in full force and effect.
4.17 Term; Expiration and Termination. This Agreement shall be effective as of January 1, 2009, and shall, unless earlier terminated as provided herein, terminate as of the first anniversary hereof; provided, that on the first anniversary of this Agreement and on each subsequent anniversary hereof, this Agreement shall be automatically extended for an additional one-year term unless the Company gives Executive notice of its intent not to renew this Agreement at least 60 days prior to the end of the initial term or any renewal term hereof. This Agreement shall be earlier terminated and the Companys obligations hereunder shall cease upon Executives death, disability or termination of employment with the Company and its Affiliates for any reason, except as provided in Section 2.1 hereof. The Company may earlier terminate this Agreement for Cause, notwithstanding that Executives employment with the Company has not been terminated.
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This Agreement is executed in multiple counterparts as of the dates set forth below, each of which shall be deemed an original, to be effective as designated above.
Renasant Corporation: | Executive: | |||||||
By: |
/s/ E. Robinson McGraw | /s/ C. Mitchell Waycaster | ||||||
E. Robinson McGraw | ||||||||
Chief Executive Officer | ||||||||
Date: | January 21, 2009 | Date: | January 2, 2009 |
NO.99891227.3
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