EXHIBIT 99.2
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into as of the 2 day
of June 2003, by and between Union Planters Bank, N.A., a Tennessee corporation
("UPB"), 0000 Xxxxxxxx Xxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxxx 00000, and Xxxx Xxxxxx
("Xxxxxx"), who resides at 000 Xxxxxxxxx Xxxxx, Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx
00000
UPB and Xxxxxx covenant and agree as follows:
1. Engagement and Duties. UPB hereby employs and engages Xxxxxx in the
position of Chief Credit Officer and Head of Credit Risk Management
with the officer title of Senior Executive Vice President to perform
the duties and responsibilities that are normally associated with such
position and office and such other duties as are assigned to Xxxxxx by
UPB.
2. Best Efforts.
x. Xxxxxx agrees to perform all duties and services that may be
required of him to the best of his ability, experience and
talents to the reasonable satisfaction of UPB and he shall
promptly obey and comply with all rules, regulations, policies
and orders that may from time to time be issued by UPB.
x. Xxxxxx agrees to devote his entire time, energy, skill and
best efforts exclusively to the service of UPB and to the
promotion of UPB's interest and not to engage in any other
commercial pursuits related to UPB's business or to accept
employment in any outside business or enterprise, except by
written authorization from UPB.
3. Term. UPB hereby agrees to employ Xxxxxx and Xxxxxx hereby agrees to be
employed by Company as Chief Credit Officer and Head of Credit Risk
Management for a period commencing on or before July 1,2003 and
continuing for three (3) years subject to the provisions for
termination as hereafter provided. This Agreement may be renewed for
additional terms of one (1) year upon the mutual written agreement of
the parties.
4. Compensation and Benefits.
a. Base Salary. Xxxxxx shall receive an initial base annual
salary ("Base Salary") of Two hundred forty thousand dollars
($240,000.00), payable semi-monthly in accordance with UPB's
normal payroll practices, and subject to applicable taxes and
withholding.
b. Annual Bonus. In addition to Base Salary, beginning in the
first quarter of 2005, Xxxxxx will be eligible to receive an
annual bonus ("Annual Bonus") at a target of 45% of base
salary in accordance with the provisions of the Corporate
Bonus Plan document, a copy of which will be provided to
Xxxxxx following his first day of work. In 2004 Xxxxxx will be
eligible to receive a pro rata share of his target bonus in
accordance with the terms of the Corporate Bonus Plan
Document.
c. Signing Bonus. Upon execution of this Agreement, Xxxxxx will
be entitled to receive a signing bonus of Fifty thousand
dollars ($50,000.00), subject to withholding as required by
law, which Signing Bonus will be due and payable as part of
Xxxxxx'x first payroll check. In the event that Xxxxxx should
voluntarily terminate his employment with
Company at any time during the first twelve (12) months of his
employment, Xxxxxx shall be required to reimburse Company a
pro-rated portion of the Signing Bonus, pursuant to the terms
of the Re-Payment Agreement which is incorporated herein and
attached hereto as Exhibit "A."
d. Vacation and Other Benefits. Xxxxxx will be eligible for four
weeks vacation annually after completing ninety (90) days of
employment. Vacation entitlement in 2003 will be pro-rated
based upon Xxxxxx'x start date. In addition, UPB agrees to
provide Xxxxxx the same benefits available to all salaried
employees generally. UPB will provide Xxxxxx with the same
directors' and officers' liability coverage as is provided to
other executives of UPB Company and all members of the Board.
e. Reimbursement of Business Expenses. Xxxxxx will be reimbursed
in full for all reasonable business related expenses incurred
during the performance of the services hereunder. UPB will
reimburse Xxxxxx from time to time based on an itemized
account of such expenditures, together with supporting
vouchers. All such expenses for reimbursement will be
submitted in accordance with UPB's regularly established
procedures. Such submissions must conform with the prevailing
federal and state income tax laws.
f. Health and Medical Plans. As of the first day of the pay
period following completion of a full month, Xxxxxx will be
entitled to participate in the Company's health, dental, basic
life insurance, short-term disability and long-term disability
plans. Xxxxxx will be eligible to participate in the vision
and long term care plans following one calendar month of
employment. A summary of benefits is attached hereto as
Exhibit "B."
g. Stock Options. Xxxxxx shall be granted stock options under the
Union Planters Corporation Amended and Restated Stock
Incentive Plan to purchase up to twenty-five thousand (25,000)
shares of UPB's common stock, at the closing price on
employee's date of hire. Options shall vest at a rate of
one-third (1/3) per year for three years. Vesting upon
termination, whether voluntary or involuntary shall be
governed by the terms of the Plan. Xxxxxx will be eligible to
receive an additional grant of stock options in October
subject to the approval of the Compensation/
Nomination/Corporate Governance Committee of the Board of
Directors. Performance Restricted Stock. Xxxxxx will be
eligible to participate in the Performance Restricted Stock
grant program in 2004 subject to approval by the Compensation/
Nomination/Corporate Governance Committee of the Board of
Directors.
h. Performance Restricted Stock. Xxxxxx will be eligible to
participate in the Performance Restricted Stock Grant program
in 2004 subject to approval by the Compensation/
Nomination/Corporate Governance Committee of the Board of
Directors.
i. Club Membership. Xxxxxx will receive reimbursement for the
cost of a country club membership.
j. 401(k) Program. On the first day of the month coinciding with
or following ninety (90) days of employment, Xxxxxx will be
eligible to participate in the company 401(k) program.
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k. Relocation Reimbursement. Xxxxxx will be entitled to the
following relocation expense reimbursement:
i. home sale assistance, coordinated by Primacy
Relocation, through UPB's Corporate Human Resources
Department, pursuant to Home Sale Assistance Buyer
Value Option attached hereto as Exhibit "C."
ii. new home closing costs, escrow, and insurance in an
amount net after taxes;
iii. household furnishing moving costs will be paid
through UPB's accounts payable department and not
taxable to Xxxxxx;
iv. two (2) house-hunting trips for Xxxxxx and spouse, to
include travel, lodging and meals expense (two nights
per trip/or a total of five nights) will be
reimbursed;
v. Employee will receive up to ninety (90) days of
temporary housing at an extended-stay hotel with meal
per diem of $25 per day or furnished apartment (no
meal per diem);
vi. round-trip travel home, as reasonable and approved,
during Xxxxxx'x transition period; and,
vii. Relocation bonus of $10,000, less applicable taxes,
will be paid upon your transfer to Memphis to help
pay for costs not specifically covered in the policy.
5. Termination.
a. Termination by UPB for Cause. UPB may terminate Xxxxxx at any
time for Cause, effective immediately upon the giving of
written notice to Xxxxxx. In the event of termination for
Cause, UPB shall pay to Xxxxxx all accrued compensation
through the effective date of termination (subject to offset
for any specific amounts owed by Xxxxxx to UPB such as loans,
advances, or embezzlement of UPB funds). For purposes of this
Agreement, "Cause" means fraud, embezzlement, material
dishonesty, material failure to perform the duties and
responsibilities assigned to Xxxxxx, willful negligence in the
performance of Xxxxxx'x duties hereunder, or gross misconduct.
b. Death. This Agreement shall terminate immediately upon the
death of Xxxxxx provided, however, that Xxxxxx'x estate shall
be paid all accrued compensation owed to Xxxxxx to the date of
death.
c. Disability. UPB or Xxxxxx may terminate this Agreement upon
Xxxxxx'x failure or inability to perform the services required
hereunder due to disability provided, however, that Xxxxxx
shall be paid all accrued compensation owed to him to the
effective date of disability. For purposes of this Agreement,
"Disability" means a determination by a physician reasonably
satisfactory to UPB and Xxxxxx that Xxxxxx has been, is and/or
will be unable to participate in the affairs of UPB and to
fulfill the normal obligations of his employment with UPB
under this Agreement for a continuous period of longer than
120 days; provided, however, that if Xxxxxx and UPB are unable
to agree upon a physician, both Xxxxxx and UPB shall designate
a physician and the two (2) physicians so designated shall
agree upon a third physician, whose
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determination shall be final and binding.
d. Change of Control. In the event of a Change of Control, as
defined on the attached Exhibit "D" and which results in
termination of Xxxxxx'x employment with UPB, mandatory
relocation and/or results in a diminished Base Salary or a
reduction in job duties with an associated decrease of two (2)
or more pay levels at any time within the first twelve (12)
months from the effective date of the Change of Control, for a
reason(s) other than cause, Xxxxxx shall be entitled to
receive the following:
i. accrued base salary through the date of termination
of his employment;
ii. a lump sum equal to two point nine nine (2.99) times
Xxxxxx'x annual base salary;
iii a lump sum equal to two point nine nine (2.99) times
Xxxxxx'x Corporate Annual "target Bonus and,
iv. any other benefits to which Xxxxxx is entitled upon
his termination of employment with UPB in accordance
with the terms of the plans and programs of UPB.
6. Non-Disclosure. For a period of five (5) years after the date of any
termination or expiration of this Agreement, Xxxxxx will not disclose
any information deemed Confidential Information, except (i) to a person
who is an authorized employee (ii) as required by law, regulation or
order of any court or regulatory commission, department or agency or
(iii) as part of a confidential communication to an attorney. If Xxxxxx
shall attempt to disclose the Confidential Information or any part or
parts thereof in a manner contrary to the terms of this Agreement, UPB
shall have the right, in addition to other remedies which may be
available to it, to injunctive relief enjoining such acts or attempts,
it being acknowledged that legal remedies are inadequate. This
provision shall survive termination of this Agreement for the five (5)
year period above provided.
7. Definition of Confidential Information and Authorized Employee.
Confidential Information means any information not disseminated by UPB
to the general public (including identity of customers, clients,
business contacts, suppliers of goods and/or services, and any
transaction by or between such person or entities and UPB) and which
Xxxxxx used or knew of because of his employment at UPB, including
specific information about methods not generally employed in the
industry at large and which are used or known to be contemplated for
use in the future by UPB for the purpose of gaming proprietary
advantage over competitors; provided, however, that Confidential
Information shall not include general knowledge of skills and
techniques acquired or improved as a result of the employment
experience at UPB. Authorized employee means with respect to UPB,
members of the Board of Directors; the Chief Executive Officer; the
President; Executive Vice Presidents; immediate supervisors; a fellow
employee on a need-to-know basis only; and any UPB employee is the
course of the performance of the Xxxxxx'x duties pursuant to this
Agreement. Xxxxxx shall be entitled at all times to disclose
Confidential Information to his personal attorney on a confidential
basis and as may otherwise be required by law.
8. Notices. Any notice required or permitted to be given hereunder shall
be sufficient if in writing, and delivered personally or sent by
registered or certified mail, return receipt
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requested, to the parties at the following addresses or to such other
addresses as either party may designate in writing to the other party:
If to UPB:
ATTN: Director of Human Resources
Union Planters Corporation
0000 Xxxxxxxx Xxxxx Xxxxxxx
Xxxxxxx, XX 00000
If to Xxxxxx:
Xxxx Xxxxxx
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9. Arbitration. Any dispute or controversy between UPB and Xxxxxx, except
for a dispute or controversy arising under paragraph 7 of this
agreement, whether arising out of or relating to this Agreement, its
interpretation, its breach, or otherwise, shall be settled by
arbitration in Memphis, Tennessee administered by the American
Arbitration Association, with any such dispute or controversy arising
under this Agreement being so administered in accordance with its rules
then in effect, and judgment on the award rendered by the arbitrator
may be entered in any court having jurisdiction thereof. The arbitrator
shall have the authority to award any remedy or relief that a court of
competent jurisdiction could order or grant including, without
limitation, the issuance of an injunction. However, either party may,
without inconsistency with this arbitration provision, apply to any
court having jurisdiction over such dispute or controversy and seek
interim provisional, injunctive or other equitable relief until the
arbitration award is rendered or the controversy is otherwise resolved.
Except as necessary in court proceedings to enforce this arbitration
provision or an award rendered hereunder, or to obtain interim relief,
neither a party nor an arbitrator may disclose the existence, content
or results of any arbitration hereunder without the prior written
consent of UPB and Xxxxxx. Notwithstanding any choice of law provision
included in this Agreement, the United States Federal Arbitration Act
shall govern the interpretation and enforcement of this arbitration
provision.
10. Governing Law. This Agreement shall be governed by and construed under
the laws of the State of Tennessee and all matters pertaining to this
Agreement that cannot be resolved by referring to its provisions shall
be governed by the laws of Tennessee, including statutes of limitations
and remedies, without regard to any otherwise applicable principles of
conflicts of law.
11. Entire Agreement. This Agreement constitutes the entire and sole
understanding and agreement between UPB and Xxxxxx with regard to all
matters contained herein. This agreement may be amended, supplemented,
or interpreted at any time only by written instrument duly executed by
both parties.
12. Severability. In the event that any provisions of this Agreement are
determined to be invalid or unenforceable by a court of competent
jurisdiction, the valid provisions shall remain in full force and
effect.
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13. Benefit. This Agreement shall inure to the benefit of and be
enforceable by the parties hereto, and their respective heirs,
representatives and successors.
14. Assignment. This Agreement is not assignable by either party hereto
except that this Agreement may be assigned by UPB to a Successor Entity
or as part of a Sale Transaction, provided however, that Xxxxxx and UPB
shall be bound by the Change in Control Addendum, which is incorporated
herein and attached hereto as Exhibit "D.
15. Waiver. Any consent by any party to, or waiver of a breach of any
provision of this Agreement by the other, whether express or implied,
shall not constitute a consent to, waiver of, or excuse for any breach
of any other provision or subsequent breach of the same provision.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first
above written.
WITNESS: Union Planters Bank, N.A.
/s/ Xxxx Xxxxxx By: /s/ Xxxx X. Xxxxxx
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Xxxx Xxxxxx Executive Vice President
Its: Head of Human Resources
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Exhibit A. Re-payment Agreement. Omitted as no longer operative
Exhibit B. Summary of Union Planters Bank health and medical benefits.
Omitted as no longer operative
Exhibit C. Union Planter's Corporation Relocation Policy.
Omitted as no longer operative.
Exhibit D. Change in control.
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EXHIBIT D: CHANGE IN CONTROL
Change in Control means the occurrence of any of the following events:
(1) The acquisition by any individual, entity, or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) (a "Person") of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended)
of 25% or more of either (a) the then outstanding shares of common stock of UPC
(the "Outstanding Company Common Stock" or (b) the combined voting power of the
then outstanding voting securities of UPC entitled to vote generally in the
election of directors (the "Outstanding Company Voting Securities"); provided,
however, that for purposes of this subsection (1), the following acquisitions
shall not constitute a Change in Control: (w) any acquisition directly from UPC,
(x) any acquisition by UPC, (y) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by UPC or any corporation controlled by
UPC, or (z) any acquisition by any Person pursuant to a transaction which
complies with clauses (A), (B), and (C) of subsection (3) of this Section; or
(2) Individuals who, as of the date hereof, constitute the Board of Directors of
UPC (the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director subsequent to the date hereof whose election, or nomination for
election by UPC's shareholders, was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board shall be considered as though
such individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election
or removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board; or
(3) Consummation of a reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of UPC (a "Business
Combination"), in each case, unless, following such Business Combination,
(A) all or substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Company Common Stock and
outstanding Company Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more than 65% of,
respectively, the then outstanding shares of common stock and the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case maybe, of the corporation
resulting from such Business Combination (including, without limitation, a
corporation which as a result of such transaction owns UPC or all or
substantially all of UPC's assets either directly or through one or more
subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Business Combination of the Outstanding Company
Common Stock and Outstanding Company Voting Securities, as the case may be, and
(B) no Person (excluding any corporation resulting from such Business
Combination or any employee benefit plan (or related trust) of UPC or such
corporation resulting from such Business Combination) beneficially owns directly
or indirectly, 25% or more of, respectively, the then outstanding shares of
common stock of the corporation resulting from such Business Combination or the
combined voting power of the then outstanding voting securities of such
corporation except to the extent that such ownership existed prior to the
Business Combination, and
(C) at least a majority of the members of the board of directors of the
corporation resulting from such Business Combination were members of the
Incumbent Board at the time of the execution of the initial agreement, or of the
action of the Board, providing for such Business Combination.
If any change in management occurs during your employment and your employment is
terminated for reasons other than cause, then you shall receive the same pay and
benefits as described in Section 5.d of the Employment Agreement.
