BancorpSouth, Inc. Change in Control Agreement

 

This Agreement ("Agreement") is entered into on November 27, 2012 by and among BancorpSouth, Inc., a Mississippi corporation (the “Company”), BancorpSouth Bank, a Mississippi-chartered bank (the “Bank”), and James D. Rollins III ("Executive"). The Company and the Bank are collectively referred to herein as “BancorpSouth.”

Whereas, Executive is employed as the Chief Executive Officer of BancorpSouth under the terms of an agreement of employment between Executive, the Company and the Bank, dated November 27, 2012 (the “Employment Agreement”);

Whereas, the parties contemplate that Executive will provide services to BancorpSouth under the terms of the Employment Agreement for a term of three years, subject to extension by mutual agreement, and may continue employment with BancorpSouth following the expiration of the term of the Employment Agreement; and

Whereas, in the event that the parties mutually agree to continue Executive’s employment with BancorpSouth following the expiration of the Employment Agreement, the parties desire to provide for continuation of certain covenants and certain rights to Executive in the event of a change in control of the Company that results in Executive’s termination of employment;

Now, Therefore, based upon the premises set forth herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows, such terms to be effective without further action of the parties upon the expiration of the term of the Employment Agreement, provided that Executive continues to be employed following such expiration (the “Effective Date”):

Terms used in this Agreement that are defined are indicated by initial capitalization of the term. References to an “Article” or a "Section" mean an article or a section of this Agreement. In addition to those terms that are specifically defined herein, the following terms are defined for purposes hereof:

“Affiliate.” Affiliate means the Bank and any entity that is a parent or subsidiary organization of the Company or the Bank.

“Cause.” A termination of Executive’s employment for Cause means a termination of employment on account of any of the incidents described below. Termination for Cause is further conditioned on the Company or Affiliate, as appropriate, providing written notice to Executive of its intent to terminate within 90 days of the date that the Cause event has occurred or is initiated and the Executive does not materially cure such condition within thirty (30) days after receiving such notice.

(5)

Executive has breached the restrictive covenants in Sections 3.1 or 3.2.

The existence of Cause shall be determined in good faith by the Board of Directors of the Company or the Compensation Committee. The Company shall have sole discretion in making its determination that an event constituting Cause has occurred; provided, however, that such determination must be made in a reasonable and good faith manner.

"Change in Control" means a transaction or circumstance in which any of the following have occurred:

(1)

the merger, acquisition or consolidation of the Company or the Bank with any corporation in which such corporation immediately after such merger, acquisition or consolidation owns more than 50% of the voting securities (defined as any securities which vote generally in the election of its directors) of the Company or the Bank, as applicable, outstanding immediately prior thereto or more than 50% of the Company’s or the Bank’s, as applicable, total fair market value immediately prior thereto;

 

(2)

the date that any person, or persons acting as a group, as described in Treas. Reg. § 1.409A-3(i)(5) (a “Person”), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation controlling the Company or owned directly or indirectly by the shareholders of the Company in substantially the same proportions as their ownership of stock of the Company, becomes the "beneficial owner" (as defined in Rule 13d-3 under the Securities and Exchange Act of 1934, as amended), directly or indirectly, of securities of the Company representing more than 30% of the total voting power represented by the Company's then outstanding voting securities (as defined above);

 

(3)

the date that a majority of the members of the Board of Directors of the Company is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the Board of Directors of the Company before the date of the appointment or election; or

 

(4)

the date that any Person acquires (or has acquired within the 12-month period ending on such date) assets from the Company that have a gross fair market value equal to 40% or more of the fair market value of the Company’s total assets; provided, however, that any of the following acquisitions will be excluded from such calculation:

 

(i)

an acquisition by a shareholder of the Company (immediately before the acquisition) in exchange for or with respect to its stock;

 

(ii)

an acquisition by an entity 50% or more of the total value or voting power of which is owned directly or indirectly by the Company;

 

(iii)

an acquisition by a Person that owns directly or indirectly 50% or more of the total value or voting power of the outstanding stock of the Company; or

 

(iv)

an acquisition by an entity 50% or more of the total value or voting power of which is owned directly or indirectly by a Person described in paragraph (iii) above.

 

“COBRA” means the Consolidated Omnibus Budget Reconciliation Act of 1985.

“Code” means the Internal Revenue Code of 1986, as amended.

“Compensation Committee.” The Executive Compensation and Stock Incentive Committee of the Company’s Board of Directors or any successor committee duly appointed thereby.

 

 

“Good Reason.” A termination of employment for Good Reason means a resignation or other termination of employment by Executive for any of the reasons described below, provided that such condition is not initiated by Executive or with Executive’s consent. Good Reason is further conditioned on the Executive providing written notice to BancorpSouth of his intent to terminate within 90 days of the date that the Good Reason condition is initiated and the Company, the Bank or an Affiliate, as appropriate, does not materially cure such condition within thirty (30) days after receiving such notice.

(1)

A material diminution in Executive’s Base Salary or target Bonus or incentive compensation opportunity.

 

(2)

A material diminution in Executive's authority, duties, or responsibilities.

(3)

A requirement that Executive report and be subject to the authority of an officer or employee of the Company or an Affiliate rather than to the Board of Directors of the Company.

(4)

A relocation of Executive's principal place of employment by fifty (50) miles or more.

(5)

Any material breach of this Agreement by the Company or the Bank or the failure of any successor to assume this Agreement on and after a Change of Control.

(a)           Amount. If there is a Change in Control after expiration of the Employment Agreement, then subject to the conditions, limitations and adjustments that are provided for herein, the Company will provide to Executive the sum of the amounts described below if, within the twelve (12) month period following such Change in Control, Executive's employment with the Company and its Affiliates is terminated for reasons other than Cause or is terminated for Good Reason:

(1)

An amount equal to 300% of the Executive's annual base compensation determined by reference to his base salary in effect at the time of Change in Control.

(2)

An amount equal to 300% of the highest annual bonus that Executive would be eligible to receive during the fiscal year ending during which the Change in Control occurs.

(3)

For a period of thirty-six (36) months, Executive shall continue to participate in the Company’s health and welfare benefit plans, to the extent post-employment participation is permitted thereunder. Continued participation in BancorpSouth’s group health benefit plans by Executive shall be subject to the restrictions of COBRA, provided that Executive shall be permitted to continue coverage under COBRA at the same rate that applies to similarly situated executive officers of the Company. To the extent that Executive cannot participate in such benefit plans, he shall receive a lump sum cash payment equal to the value of such participation during the 36-month period.

(4)

For a period of thirty-six (36) months, participation in general and executive fringe benefits offered to similarly situated executive employees immediately prior to the applicable Change in Control, to the extent that post-employment participation is permitted thereunder. To the extent that Executive cannot participate in such benefit plans, he shall receive a lump sum cash payment equal to the value of such participation during the 36-month period.

(5)

Immediate vesting of all equity incentive awards.

(b)           Adjustments. Notwithstanding anything herein to the contrary, the amounts and the timing of payments due to Executive under Section 2.1(a) shall be adjusted in accordance with Section 2.2.

 

 

(c)           Time for Payment; Interest. The cash amounts payable under this Section 2.1 shall be paid to Executive in a single lump sum within ten days following the date of termination of employment. The Company's obligation to pay to Executive any amounts under this Section 2.1 will bear interest at the lesser of (i) 10% or (ii) the maximum rate allowed by law until paid by the Company, and all accrued and unpaid interest will bear interest at the same rate, all of which interest will be compounded annually.

(d)           Troubled Institution Limitation. All payments and benefits hereunder are subject to the limitations on golden parachute and indemnification payments set forth in 12 USC §1823(k), the regulations promulgated thereunder, and other law that prohibits payments under this Agreement to Executive by the Company. To the extent possible, this limitation shall be applied by reducing only the portion of payments and benefits that exceed such legal limitation.

2.2           Limitation of Payments.

 

(a)           Golden Parachute. Notwithstanding anything in this Agreement to the contrary, if Executive is a “disqualified individual” (as defined in section 280G(c) of the Code) and the benefits and payments provided for in this Agreement, together with any other payments or vesting of equity awards which Executive has the right to receive on account of a “change in control” (defined for this purpose in section 280G of the Code) would in the aggregate result in a “parachute payment” (as defined in section 280G(b)(2) of the Code) to Executive, the total amount of all such change in control payments shall be reduced by BancorpSouth so that the aggregate payments to Executive do not constitute such a parachute payment; provided, however, that such reduction shall not occur if such the net payment to Employee after considering the effect of any applicable excise tax under section 4999 of the Code is greater than the amount that Executive would receive after application of the reduction described in this Section. If Executive’s payments or benefits are delivered to a lesser extent in accordance with this Section, then Executive’s aggregate benefits shall be reduced in the following order (i) cash severance pay that is exempt from section 409A, (ii) any other cash severance pay, (iv) continued health care benefits, (iii) any restricted stock, (iv) any equity awards other than restricted stock and stock options, and (v) stock options. Unless BancorpSouth and Executive otherwise agree in writing, any determination required under this Section shall be made by an independent advisor designated by the Company and reasonably acceptable to Executive (“Independent Advisor”), whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required under this Section, the Independent Advisor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of sections 280G and 4999 of the Code; provided that Independent Advisor shall assume that Executive pays all taxes at the highest marginal rate. The Company and Executive shall furnish to Independent Advisor such information and documents as Independent Advisor may reasonably request in order to make a determination under this Section. The Company shall bear all costs that the Independent Advisor may incur in connection with any calculations contemplated by this Section.

 

 

(b)           Section 409A.

 

(1)

A payment of any amount or benefit hereunder that is (i) subject to section 409A of the Code, and (ii) to be made because of a termination of employment shall not be made unless such termination is also a “separation from service” within the meaning of section 409A of the Code and the regulations promulgated thereunder and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” “resignation” or like terms shall mean “separation from service” within the meaning of section 409A of the Code. Notwithstanding any provision of this Agreement to the contrary, if at the time of Executive’s “separation from service” Executive is a “specified employee” (as defined under section 409A of the Code), then to the extent that any amount to which Executive is entitled in connection with his separation from service is subject to section 409A of the Code, payments of such amounts to which Executive would otherwise be entitled during the six (6) month period following the separation from service will be accumulated and paid in a lump sum on the earlier of (i) the first day of the seventh month after the date of the separation from service, or (ii) the date of Executive’s death. This paragraph shall apply only to the extent required to avoid Executive’s incurrence of any additional tax or interest under section 409A or any regulations or Treasury guidance promulgated thereunder.

 

(2)

Notwithstanding any provision of this Agreement to the contrary, to the extent that any payment under the terms of this Agreement would constitute an impermissible acceleration or deferral of payments under section 409A of the Code or any regulations or Treasury guidance promulgated thereunder, or under the terms of any applicable plan, program, arrangement or policy of the employer, such payments shall be made no earlier or later than at such times allowed under section 409A of the Code or the terms of such plan, program, arrangement or policy.

 

The covenants contained in this Article III are provided by Executive as partial consideration for the obligations of BancorpSouth described in this Agreement.

    Section 3.1                      Non-solicitation.

 

(a)           Beginning on the Effective Date and for a period of two (2) years after the date of termination of Executive’s employment with BancorpSouth or any of its Affiliates for any reason other than termination or resignation elected by Executive for Good Reason (the “Termination Date”), Executive will not, directly or indirectly, for himself or for another, in any manner whatsoever, procure, solicit, accept or aid another in the procurement, solicitation or acceptance of financial services business (including without limitation, solicitation of banking, insurance or securities products and services), and other related products marketed by the Company or its Affiliates, or make inquiries about any of those products from or to any person, firm, corporation or association which was at the Termination Date, either doing business with the Company or any of its Affiliates, in the Territory (as hereinafter defined), or being actively solicited by the Company or any of its Affiliates during the twelve (12) months prior to the Termination Date and Executive directly or indirectly serviced or solicited such account or customer.

 

(b)           Beginning on the Effective Date and for a period of two (2) years after the Termination Date, unless termination or resignation is elected by Executive for Good Reason, Executive will not induce, attempt to induce, solicit, encourage, contact or discuss employment with any other employee of BancorpSouth or any of its Affiliates to terminate his or her employment with BancorpSouth. Executive also agrees not to disclose the identity of any other employee of the BancorpSouth to any other Competing Business (as hereinafter defined) for purposes of recruiting or hiring away such employee. Executive agrees not to hire any prospective employee for a Competing Business if Executive knows or should have known that such prospect currently works for the Company or its Affiliates.

 

(c)           Executive shall not, during the non-solicitation periods described in Sections 3.1(a) and 3.1(b) above, use or disclose to any other person the names of the Company’s or any of its Affiliate’s customers, clients and the nature of their business with the Company or its Affiliates.

 

 

(a)           Executive hereby covenants and agrees with BancorpSouth that beginning with the Effective Date and for a period of two (2) years after the Termination Date, unless termination or resignation elected by Executive for Good Reason, (the “Noncompetition Period”) Executive will not directly or indirectly, in any capacity whatsoever, for himself or for any other person, firm, corporation, association or other entity, as a partner, stockholder or otherwise, (i) operate, develop or own any interest (other than the ownership of less than five percent (5%) of the equity securities of a publicly-traded company) in, or be employed by or consult with, any business which has or engages in activities in any county in any state in which the Company or any Affiliate has an office or in any county in any state where Executive, at the Termination Date or for twelve (12) months prior to the Termination Date, performed services for the Company or drew customers (hereinafter, the “Territory”) constituting or relating to the establishment, ownership, management or operation of a bank or financial services company or other related business (a “Competing Business”); (ii) compete with the Company or its Affiliates in the operation or development of any Competing Business; (iii) engage in any business as or act as a financial services professional (including without limitation the profession of commercial banker), or provide consultation or other such services concerning financial services, either on his own behalf or on behalf of any other person, firm or corporation in the Territory; (iv) call upon, communicate with an attempt to procure or otherwise attempt to procure, service or maintain, any financial services account with any known customer of the Company or its Affiliates; or (v) disclose at any time whether during either the Noncompetition Period or during the period Executive is employed by BancorpSouth or an Affiliate any confidential or secret information concerning (A) the business, affairs or operations of the Company or its Affiliates, or (B) any marketing, sales, advertising or other concepts or plans of the Company or its Affiliates.

 

 

(c)           Executive specifically acknowledges that the restrictions of Sections 3.1 and 3.2 as to time and manner of non-solicitation, non-competition and non-disclosure or use of Confidential Information are reasonable and necessary to protect the legitimate business interests of the Company.

 

Section 3.3                      Remedies, Modification and Separability. Executive and BancorpSouth agree that Executive’s breach of Sections 3.1 and 3.2 of this Agreement will result in irreparable harm to BancorpSouth, that no adequate remedy at law is available, and that BancorpSouth shall be entitled to injunctive relief; provided, however, nothing herein shall prevent BancorpSouth from pursuing any other remedies at law or at equity available to it. Should a court of competent jurisdiction declare any of the covenants set forth in Sections 3.1 or 3.2 unenforceable, the court shall be empowered to modify or reform such covenants so as to provide relief reasonably necessary to protect the interests of BancorpSouth and Executive and to award injunctive relief, or damages, or both, to which BancorpSouth may be entitled. If any provision of this Agreement is declared by a court of last resort to be invalid, BancorpSouth and Executive agree that such declaration shall not affect the validity of the other provisions of this Agreement. If any provision of this Agreement is capable to two constructions, one of which would render the provision void and the other of which would render the provision valid, then the provision shall have the construction which renders it valid.

 

           Section 3.4                      Mutual Non-Disparagement. Executive agrees that he will not intentionally make any disparaging or detrimental public comments about BancorpSouth, any of its officers, directors, employees, Affiliates or agents nor will Executive authorize, encourage or participate with anyone on Executive’s behalf to make such statements. In consideration of the foregoing, BancorpSouth, any of its Affiliates and any of their directors and senior officers will not intentionally make any disparaging or detrimental public comments about Executive. Nothing in this Section shall preclude either party from fulfilling any duty or obligation that he or it may have at law, from responding to any subpoena or official inquiry from any court or government agency, including providing truthful testimony, documents subpoenaed or requested or otherwise cooperating in good faith with any proceeding or investigation, or, in the case of Executive, from taking any reasonable actions to enforce his rights under this Agreement.

 

 

If to Executive, to:

James D. Rollins III

________________________

________________________

With a copy to:

Skadden Arps Slate Meagher & Flom llp

Attn: Joseph M. Yaffe

525 University Avenue Suite 1100

Palo Alto, California 94301

 

 

    Section 4.9                     Attorneys’ Fees. In the event BancorpSouth or Executive breaches any term or provision of this Agreement and the other party employs an attorney or attorneys to enforce the terms of this Agreement, then the breaching or defaulting party agrees to pay the other party the reasonable attorneys’ fees and costs incurred to enforce this Agreement.

    Section 4.10                      Counterparts. This Agreement may be executed in multiple counterparts, each of which will be deemed an original, and all of which together will constitute one and the same instrument.

IN WITNESS WHEREOF, Company, Bank and Executive have caused this Agreement to be executed on the day and year indicated below to be effective as described above.

 /s/ James D. Rollins III                                                                                    11-20-12                                                                                          

James D. Rollins III                                                                                          Date

By:            /s/ Aubrey B. Patterson                                                      Nov. 19, 2012                                                                                             

           Date

Its:           Chairman & CEO

By:            /s/ Aubrey B. Patterson                                                      Nov. 19, 2012                                                                                             

           Date

Its:           Chairman & CEO