EXHIBIT 10.21
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of December 1, 1989, and
amended and restated as of April 17, 1997, by and between Union Planters
Corporation ("UPC") with offices at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, a resident of Memphis, Tennessee (hereinafter referred to as
"Officer").
W I T N E S S E T H:
WHEREAS, it is the intention and desire of the parties to enter into a
formal agreement whereby two principal purposes will be served, to wit:
A. UPC will have the benefit of the employment of Officer during the
period covered by this Agreement; and
B. Officer will be an executive of UPC during the Period hereinafter
defined.
NOW, THEREFORE, in consideration of the employment of Officer by UPC,
of the mutual promises, covenants, representations and warranties contained
herein, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
SECTION 1
EMPLOYMENT AND TERM
1.1 Employment. UPC hereby employs Officer, and Officer hereby accepts
such employment to perform the duties described in Section 2 of this Agreement.
1.2 Term.
(a) Base Term. The current term of employment is scheduled to
expire on December 31, 1999, unless such term of employment is extended or
terminated by agreement of the parties or as provided herein.
(b) Extended Term if Acquired. Notwithstanding any other provision
hereof to the contrary, this Agreement shall be renewable for one (1) additional
three (3) year term, at Officer's option, exercisable by him immediately prior
to, upon or at any time following the occurrence of any one of the following
events (a "Change in Control"):
(i) 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 (i), 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
(iii) of this Section 1.2(b); or
(ii) 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
(iii) 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 may
be, 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.
The renewal term shall commence on the later of (i) the date of notice
of said three-year renewal, or (ii) the date of the Change in Control, and any
remaining period of the current employment term, and any extension thereof,
shall be canceled.
(c) Self-Termination after Change in Control. Notwithstanding
any other provision herein to the contrary, upon a Change in Control and
exercise of the option to renew for three (3) years, Officer may at any time
thereafter during the extended term of this Agreement, at his sole discretion,
resign from employment hereunder without penalty upon 90 days written notice
setting forth the effective date of said resignation. Upon resignation of
Officer, Officer shall be entitled to receive a lump sum payment equal to (i)
three (3) times Officer's Final Average Earnings (as defined in the following
sentence), plus (ii) any Tax Gross-Up Payment payable under Sections 1.2(e) and
(f). For purposes of this Agreement, Officer's Final Average Earnings shall be
the sum of (i) his highest base salary in effect during any calendar year
preceding his termination of employment, including the year in which such
termination occurs, and (ii) his highest annual bonus payable with respect to
any calendar year preceding his termination of employment, including the year in
which such termination occurs. Said lump sum payment shall be payable in cash on
the effective date of Officer's resignation. If for any reason the lump sum
payment is not paid on the date specified, then, in addition to the lump sum
payment, UPC shall pay interest thereon at the maximum rate permissible by law
and shall continue to pay Officer monthly compensation, which shall not be a
credit against the lump sum payment, in an amount equal to one-twelfth (1/12) of
Officer's Final Average Earnings until such lump sum is paid.
(d) Annual Extension. On December 31 of each year, unless UPC
notifies Officer that his employment under this Agreement will not be extended,
his employment under this Agreement shall automatically be extended for a one
(1) year period from such term set forth in Section 1.2(a) on the same terms and
conditions as are set forth herein; provided, however, that the term of this
Agreement may be extended only to such time as will provide for a term ending at
age sixty-five (65) years. If UPC elects not to extend Officer's employment
under this Agreement, as provided in the preceding sentence, it shall do so by
notifying Officer in writing within sixty (60) days prior to the applicable
December 31 date. If UPC so elects not to extend Officer's employment under this
Agreement, Officer shall have the right to either remain as an employee for the
remaining term of this Agreement (subject to Officer's right to extend this
Agreement under Section 1.2(b) at any time during the remaining term if a Change
in Control has occurred or shall occur) or terminate this Agreement at any time
during said term and receive in a lump sum on the date of termination an amount
equal to three (3) times his Final Average Earnings (as defined in Section
1.2(c)), plus any Tax Gross-Up Payments required by Sections 1.2(e) and 1.2(f).
If for any reason the lump payment is not paid on the date specified, then, in
addition to the lump sum payment, UPC shall pay interest thereon at the maximum
rate permissible by law and shall continue to pay Officer monthly compensation,
which shall not be a credit against the lump sum payment, in an amount equal to
one-twelfth (1/12) of Officer's Final Average Earnings until such lump sum
payment is paid. UPC shall also pay to Officer such termination bonus as the
UPC Board of Directors may, in its discretion, determine. Officer's date of
termination shall be the December 31 following his election to terminate this
Agreement. Additionally, in the event this Agreement is not extended, all
options, stock appreciation rights, and other awards in the nature of rights
that may be exercised, and all awards of restricted stock, if any, issued to
Officer under all stock incentive plans of UPC shall immediately vest and be
exercisable by Officer and all restrictions thereon shall lapse.
(e) Income Tax Gross-Up Payment. Anything in this Agreement to the
contrary notwithstanding, in the event any payment or distribution by UPC to or
for the benefit of Officer, or any acceleration of any benefit (whether paid or
payable, distributed or distributable, or accelerated pursuant to the terms of
this Agreement or otherwise) is paid or payable, distributed or distributable,
or accelerated by reason of there having occurred a Change in Control, including
without limitation (i) any lump-sum, interest or compensation-continuation
payments under Section 1.2(c) of this Agreement, (ii) a cash-out of options
(including previously vested options) or an acceleration of options pursuant to
Section 4.3(b) following a Change in Control, (iii) any income tax liability
associated with stock options or restricted stock accelerated by a Change in
Control, (iv) any SERP or deferred compensation payments accelerated by a Change
in Control, (v) the payment or receipt of any other benefit (cash or stock)
triggered or accelerated by a Change in Control, and (vi) an Excise Tax Gross-Up
Payment under Section 1.2(f) below (in any such case, a "Change in Control
Benefit"), then Officer shall be entitled to receive an additional payment (an
"Income Tax Gross-Up Payment") in an amount equal to the federal, state and
local taxes (including income taxes and social security, FICA, FUTA and other
employment taxes) owed by Officer with respect to such Change in Control Benefit
such that after payment by Officer of all taxes (including any interest or
penalties imposed with respect to such taxes), including, without limitation,
any taxes (and any interest and penalties imposed with respect thereto) imposed
upon the Income Tax Gross-Up Payment, Officer retains an amount of the Income
Tax Gross-Up Payment equal to the federal, state and local taxes (including
income taxes and social security, FICA, FUTA and other employment taxes) imposed
upon the Change in Control Benefit.
(f) Excise Tax Gross-Up Payment. Anything in this Agreement to the
contrary notwithstanding and except as set forth below, in the event it shall be
determined that any payment or distribution by UPC to or for the benefit of
Officer (whether paid or payable or distributed or distributable pursuant to the
terms of this Agreement or otherwise, but determined without regard to any
additional payments required under this Section 1.2(f)) (a "Parachute Payment")
would be subject to the excise tax imposed by Section 4999 of the Internal
Revenue Code of 1986, as amended (the "Code"), or any interest or penalties are
incurred by Officer with respect to such excise tax (such excise tax, together
with any such interest and penalties, are hereinafter collectively referred to
as the "Excise Tax"), then Officer shall be entitled to receive an additional
payment (an "Excise Tax Gross-Up Payment") in an amount such that after payment
by Officer of all taxes (including any interest or penalties imposed with
respect to such taxes), including, without limitation, any income taxes (and any
interest and penalties imposed with respect thereto) and Excise Tax imposed upon
the Excise Tax Gross-Up Payment, Officer retains an amount of the Excise Tax
Gross-Up Payment equal to the Excise Tax imposed upon the Parachute Payments.
(g) Calculation and Adjustment of Tax Gross-Up Payments.
(i) Subject to the provisions of Section 1.2(g)(ii), all
determinations required to be made under Sections 1.2(e) and 1.2(f), including
whether and when a Gross-Up Payment is required and the amount of such Gross-Up
Payment and the assumptions to be utilized in arriving at such determination,
shall be made by Price Waterhouse LLP or such other nationally recognized public
accounting firm as may be designated by Officer (the "Accounting Firm") which
shall provide detailed supporting calculations both to UPC and Officer within 15
business days of the receipt of notice from Officer that there has been a Change
in Control Payment or a Parachute Payment, or such earlier time as is requested
by UPC. In the event that the Accounting Firm is serving as accountant or
auditor for the individual, entity or group effecting a Change in Control,
Officer shall appoint another nationally recognized accounting firm to make the
determinations required hereunder (which accounting firm shall then be referred
to as the Accounting Firm hereunder). All fees and expenses of the Accounting
Firm shall be borne solely by UPC. Any Income Tax Gross-Up Payment or Excise Tax
Gross-Up Payment, as determined pursuant to Section 1.2(e) or 1.2(f), shall be
paid by UPC to Officer within five days of the receipt of the Accounting Firm's
determination. Any determination by the Accounting Firm shall be binding upon
UPC and Officer. As a result of the uncertainty in the application of Section
4999 of the Code at the time of the initial determination by the Accounting Firm
hereunder, it is possible that Excise Tax Gross-Up Payments which will not have
been made by UPC should have been made ("Underpayment"), consistent with the
calculations required to be made hereunder. In the event that UPC exhausts its
remedies pursuant to Section 1.2(g)(ii) and Officer thereafter is required to
make a payment of any Excise Tax, the Accounting Firm shall determine the amount
of the Underpayment that has occurred and any such Underpayment shall be
promptly paid by UPC to or for the benefit of Officer.
(ii) Officer shall notify UPC in writing of any claim by the Internal
Revenue Service that, if successful, would require the payment by UPC of the
Income Tax Gross-Up Payment or the Excise Tax Gross-Up Payment. Such
notification shall be given as soon as practicable but no later than ten
business days after Officer is informed in writing of such claim and shall
apprise UPC of the nature of such claim and the date on which such claim is
requested to be paid. Officer shall not pay such claim prior to the expiration
of the 30-day period following the date on which it gives such notice to UPC (or
such shorter period ending on the date that any payment of taxes with respect to
such claim is due). If UPC notifies Officer in writing prior to the expiration
of such period that it desires to contest such claim, Officer shall:
(A) give UPC any information reasonably requested by
UPC relating to such claim,
(B) take such action in connection with contesting
such claim as UPC shall reasonably request in writing from
time to time, including, without limitation, accepting legal
representation with respect to such claim by an attorney
reasonably selected by UPC,
(C) cooperate with UPC in good faith in order
effectively to contest such claim, and
(D) permit UPC to participate in any proceedings
relating to such claim;
provided, however, that UPC shall bear and pay directly all costs and expenses
(including additional interest and penalties) incurred in connection with such
contest and shall indemnify and hold Officer harmless, on an after-tax basis,
for any Excise Tax or income tax (including interest and penalties with respect
thereto) imposed as a result of such representation and payment of costs and
expenses. Without limitation of the foregoing provisions of this Section
1.2(g)(ii), UPC shall control all proceedings taken in connection with such
contest and, at its sole option, may pursue or forgo any and all administrative
appeals, proceedings, hearings and conferences with the taxing authority in
respect of such claim and may, at its sole option, either direct Officer to pay
the tax claimed and ▇▇▇ for a refund or contest the claim in any permissible
manner, and Officer agrees to prosecute such contest to a determination before
any administrative tribunal, in a court of initial jurisdiction and in one or
more appellate courts, as UPC shall determine; provided, however, that if UPC
directs Officer to pay such claim and ▇▇▇ for a refund, UPC shall advance the
amount of such payment to Officer, on an interest-free basis and shall indemnify
and hold Officer harmless, on an after-tax basis, from any Excise Tax or income
tax (including interest or penalties with respect thereto) imposed with respect
to such advance or with respect to any imputed income with respect to such
advance; and further provided that any extension of the statute of limitations
relating to payment of taxes for the taxable year of Officer with respect to
which such contested amount is claimed to be due is limited solely to such
contested amount. Furthermore, UPC's control of the contest shall be limited to
issues with respect to which an Income Tax Gross-Up Payment or Excise Tax
Gross-Up Payment would be payable hereunder and Officer shall be entitled to
settle or contest, as the case may be, any other issue raised by the Internal
Revenue Service or any other taxing authority.
(iii) If, after the receipt by Officer of an amount advanced by UPC
pursuant to Section 1.2(g)(ii), Officer becomes entitled to receive any refund
with respect to such claim, Officer shall (subject to UPC's complying with the
requirements of Section 1.2(g)(ii)) promptly pay to UPC the amount of such
refund (together with any interest paid or credited thereon after taxes
applicable thereto). If, after the receipt by Officer of an amount advanced by
UPC pursuant to Section 1.2(g)(ii), a determination is made that Officer shall
not be entitled to any refund with respect to such claim and UPC does not notify
Officer in writing of its intent to contest such denial of refund prior to the
expiration of 30 days after such determination, then such advance shall be
forgiven and shall not be required to be repaid and the amount of such advance
shall offset, to the extent thereof, the amount of Income Tax Gross-Up Payment
or Excise Tax Gross-Up Payment required to be paid.
SECTION 2
DUTIES
2.1 General Duties. Officer shall serve UPC as President and Chief
Operating Officer, and as an executive officer of any subsidiary of UPC to which
he may be elected. Officer shall also be a member of the Boards of Directors of
UPC, and Bank, and such other Boards of subsidiaries to which he may be elected.
He shall also be a member of the Executive Committee of UPC and Bank, and such
other committees of the Boards of UPC, Bank and subsidiaries to which he may be
appointed. He shall perform such duties and responsibilities as are customarily
performed by persons acting in such capacities.
2.2 Extent of Service. During the term hereof, Officer agrees to devote
substantially his entire time, attention and skill to the performance of his
duties as President and Chief Operating Officer of UPC. UPC recognizes that
Officer serves on several civic and corporate boards and that such service does
not conflict with the duties outlined above.
2.3 Best Efforts. Officer agrees that he will, at all times,
faithfully, industriously, and to the best of his ability, experience and
talents, perform all of the duties that may be required of and from him by the
Boards of Directors as described above.
2.4 Location. The duties of Officer shall be performed at UPC's
executive offices in the reasonable vicinity of Memphis, Tennessee. The
permanent location of the duties Officer is to perform shall not be moved
without Officer's consent. Officer shall also on a temporary basis perform such
duties at such other place or places as the Board of Directors of UPC shall
reasonably designate or as the interests or opportunities of the Board of
Directors of UPC shall reasonably require.
SECTION 3
COMPENSATION
3.1 Annual Base Salary. UPC shall pay Officer, and Officer shall accept
from UPC, in full payment for Officer's services hereunder, an annual base
salary in the minimum amount of Four Hundred Fifty-Five Thousand Dollars
($455,000), payable twice monthly in periodic equal installments during the
year, which annual base salary shall be reviewed at least annually and may be
increased from time to time as determined by the Board of Directors of UPC.
3.2 Stock Options. Officer shall be entitled to participate in all of
UPC's stock option programs. Based upon satisfactory performance, it is
anticipated that Officer will be granted additional stock options from time to
time, such additional grants to be considered on an annual basis. Officer shall
be granted full protection against dilution of such options as is provided under
the terms of the Stock Option Plans. In the event of a Change in Control as
defined in Section 1.2(b), or if UPC elects not to extend Officer's employment
under Section 1.2(d), then all options, stock appreciation rights, and other
awards in the nature of rights that may be exercised, and all awards of
restricted stock, if any, issued to Officer under all stock incentive plans of
UPC shall immediately vest and be exercisable by Officer and all restrictions
thereon shall lapse. Also, in the event of a Change in Control, any stock or
stock equivalents held in a deferred account on behalf of Officer shall become
immediately payable.
UPC shall take such action as may be necessary from time to time to
allow Officer to sell all stock issuable upon exercise of Officer's options free
of resale restrictions, including but not limited to the grant to Officer of
piggyback registration rights with respect to such stock. Such sales may only be
made under all existing securities laws.
3.3 Reimbursement of Expenses. UPC shall reimburse Officer for such
reasonable out-of-pocket expenses necessarily incurred by Officer while
rendering the services contemplated hereunder, and shall provide an appropriate
automobile to be used by Officer in the conduct of the business of UPC.
3.4 Tax Withholdinqs. UPC shall deduct from the regular monthly
compensation payable to Officer all federal, state and local income tax, social
security, FICA, FUTA, and other withholdings as required by law.
3.5 Annual Incentive Bonus, Executive Stock and Deferred Compensation
Plans. During the term hereof, and any renewal, Officer shall be eligible for
participation in any of UPC's and Bank's incentive bonus programs, executive
stock and deferred compensation plans. Bonuses for less than a full year of
service may be granted at the discretion of the Board. Any such bonuses shall be
paid within 90 days of the close of the fiscal year.
3.6 Annual Vacation. Officer shall be entitled to an annual vacation
period as set forth in UPC Personnel Policies Manual No. 5.04, as amended from
time to time.
3.7 Other Fringe Benefits. Officer shall have the following fringe
benefit programs made available to him: hospital and major medical coverage,
including dependent coverage; short term and long term disability and life
insurance. Officer shall also be entitled to participate in such other fringe
benefit programs as UPC shall have or shall make available from time to time to
senior executives. Further, UPC agrees to pay for or reimburse Officer for
expenses, including dues, for clubs of which Officer is a member, the facilities
of which Officer shall use from time to time in holding various company
functions or entertaining company employees, customers or guests.
SECTION 4
TERMINATION
4.1 Termination by UPC. UPC may at any time terminate this Agreement and
the employment of Officer for Cause. For the purposes of this Agreement, "Cause"
shall mean:
(i) the willful and continued failure by Officer to substantially
perform his duties with UPC or one of its affiliates (other than any such
failure resulting from incapacity due to physical or mental illness), after a
written demand for substantial performance is delivered to Officer by the Board
of Directors of UPC, which demand specifically identifies the manner in which
Officer has not substantially performed his duties, and Officer fails to comply
with such demand within a reasonable time, or
(ii) the willful engaging by Officer in gross misconduct which is
materially and demonstrably injurious to UPC.
For purposes of this provision, no act or failure to act, on the part of
Officer, shall be considered "willful" or "gross misconduct" unless it is done,
or omitted to be done, by Officer in bad faith or without reasonable belief that
Officer's action or omission was in the best interests of UPC. Any act, or
failure to act, based upon authority given pursuant to a resolution duly adopted
by the Board or upon the instructions of the Chief Executive Officer or a senior
officer of UPC or based upon the advice of counsel for UPC shall be conclusively
presumed to be done, or omitted to be done, by Officer in good faith and in the
best interests of UPC. The cessation of employment of Officer shall not be
deemed to be for Cause unless and until there shall have been delivered to him a
copy of a resolution duly adopted by the affirmative vote of not less than a
majority of the entire membership of the Board of Directors of UPC at a meeting
of the Board called and held for that purpose (after reasonable notice to
Officer, and an opportunity for Officer, together with counsel of his choice, to
be heard before the Board), finding that, in good faith opinion of the Board,
Officer is guilty of the conduct set forth above in clauses (i) or (ii) of this
Section 4.1, and specifying the particulars thereof in reasonable detail.
4.2 Effect on Parties.
(a) Termination for Cause. If UPC terminates this Agreement as
specified in 4.1 above then the rights of Officer after such termination shall
be as follows:
(i) Officer's salary which may have accrued through
termination and annual incentive bonus if such has been approved but
not paid shall be paid;
(ii) Officer shall be entitled to the option cash-out or
acceleration rights selected by UPC under Section 4.3(a) below.
(b) Termination by Resignation. If UPC notifies Officer of its
election, under Section 1.2(d), not to extend Officer's employment, then Officer
shall have the option cash-out or acceleration rights specified in Section
4.3(b) below together with the rights specified under Section 1.2(d).
(c) Death or Disability. Upon Officer's death or Disability (as defined
below), then Officer's rights shall be as follows:
(i) Officer's salary which may have accrued through
termination and annual incentive bonus if such has been
approved but not paid shall be paid; and
(ii) Officer shall have the option cash-out or
acceleration rights specified in Section 4.3(b) below; and
(iii) Officer shall be titled to receive a lump sum
equal to three times his Final Average Earnings, payable
within 30 days of the date of death or termination of
employment by reason of Disability.
For purposes of this Agreement, "Disability" means a
mental or physical disability as determined by the Board in
accordance with standards and procedures similar to those
under UPC's employee long-term disability plan, if any. At any
time that UPC does not maintain such a long-term disability
plan, Disability shall mean the inability of Officer, as
determined by the Board, to substantially perform his regular
duties and responsibility due to a medically determinable
physical or mental illness which has lasted (or can reasonably
be expected to last) for a period of six consecutive months.
(d) Survival of Certain Obligations. Any termination by UPC pursuant to
Section 4.1 above shall not terminate UPC's rights and Officer's obligations
under the Confidential Information, Assistance in Litigation or Arbitration
Sections in this Agreement.
4.3 Option Cash-Out or Acceleration Rights.
(a) If UPC terminates Officer's employment pursuant to Section 4.1, UPC
shall have the option to, within 90 days after the effective date of such
termination, or such longer period as may be necessary under
applicable laws including Section 16(b) of the Exchange Act relating to short
swing profits, either (i) effect a cash lump sum settlement equal to the
"spread" between the exercise price of the UPC stock options (vested or
unvested) held by Officer as of the date of notice of termination and the
closing trade price on NYSE (or the fair market value of UPC's stock, as
determined by the Board, if no longer traded on the NYSE) as of the date of such
termination, or (ii) declare all UPC stock options issued to Officer fully
vested and exercisable by Officer within a one-year period from the date of
notice of termination.
(b) If UPC terminates Officer's employment pursuant to Section
4.2(b) or 4.2(c), or if Officer self-terminates under Section 1.2(c) or 1.2(d),
Officer or his Estate shall have the right to elect in writing within 90 days
after the effective date of such termination, either (i) a cash lump sum from
UPC equal to the "spread" between the exercise price of the UPC stock options
(vested or unvested) held by Officer as of the date of notice of termination and
the closing trade price on NYSE (or the fair market value of UPC's stock, as
determined by the Board, if no longer traded on the NYSE) as of the date of such
termination, or (ii) full vesting of all UPC stock options issued to Officer and
the right to exercise each such option from the date of termination through the
remaining term of the option.
4.4 Resignation by Officer Absent a Change in Control or Non-Renewal.
Aside from Officer's rights under Sections 1.2(c) and 1.2(d), Officer may
terminate his employment hereunder, upon 90 days written notice, and such
termination shall terminate all of Officer's rights hereunder, and such
termination shall not affect UPC's rights hereunder. It is understood that a
resignation by Officer under Sections 1.2(c) or (d) shall not be construed as a
termination under this Section.
SECTION 5
CONFIDENTIAL INFORMATION
5.1 Officer recognizes that UPC's and Bank's business interests require
a fiduciary relationship between UPC, Bank and Officer and the fullest practical
protection and confidential treatment of the confidential information relating
to UPC and Bank. Officer acknowledges the reasonableness, in the context of
UPC's business, of the promises herein made and recognizes a just purpose in
UPC's protecting its confidential information. Officer acknowledges that in the
course of his association with UPC he may have in the past or may in the future
receive certain lists of UPC's prospective acquisition and management agreements
and other confidential information and knowledge concerning the business of UPC
(hereinafter collectively referred to as "information") which UPC desires to
protect. Officer understands that such information is confidential and agrees
not to reveal such information to anyone outside UPC so long as the confidential
or secret nature of the information shall continue.
SECTION 6
ASSISTANCE IN LITIGATION
6.1 Officer shall, upon reasonable notice, furnish such information and
assistance to UPC as may reasonably be required by UPC in connection with any
litigation in which UPC or any of its subsidiaries or affiliates is, or may
become, a party.
SECTION 7
ARBITRATION
7.1 Methods. Any difference, claims or matters in dispute arising among
the parties out of this Agreement or connected herewith shall be submitted by
them to arbitration before a panel of three arbitrators selected as follows:
each party shall select an arbitrator from the American Arbitration
Association's Approved List of Arbitrators. The arbitrators so selected by the
parties shall agree upon a third arbitrator and the three so selected shall
resolve the dispute under the duly promulgated rules and regulations of the
American Arbitration Association or its successor, and the pertinent provisions
of the laws of the State of Tennessee, relating to arbitration. The decision of
the arbitrators may be entered as a judgment in any Court in the State of
Tennessee or elsewhere. Any arbitrator selected who does not have experience
relating to the banking and financial services industry shall avail himself of
the counsel of an individual who has such experience. Costs of such arbitration
shall be borne as specified by the arbitrators.
7.2 Specific Performance. Notwithstanding Section 7.1 above, all
Provisions hereof are for the protection and are intended to be for the benefit
of the parties hereto and enforceable directly by and binding upon each party.
Each party hereto agrees that the remedy through arbitration or at law of the
other for any actual or threatened breach of this agreement would be inadequate
and that the other party shall be entitled to specific performance hereof or
injunctive relief or both, by temporary or permanent injunction or such other
appropriate judicial remedy, writ or order as may be decided by a court of
competent jurisdiction in addition to any damages which the complaining party
may be legally entitled to recover together with reasonable expenses of
arbitration, litigation, including attorney's fees incurred in connection
therewith as may be approved by such arbitrators or court.
SECTION 8
MISCELLANEOUS
8.1 Assignment by UPC. This Agreement shall inure to the benefit of and
be binding upon UPC and its successors and assigns. UPC will require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of UPC to
assume expressly and agree to perform this Agreement in the same manner and to
the same extent that UPC would be required to perform it if no such succession
had taken place. As used in this Agreement, "UPC" shall mean UPC as hereinbefore
defined and any successor to its business and/or assets as aforesaid which
assumes and agrees to perform this Agreement by operation of law, or otherwise.
8.2 Assignment by Officer. This is a personal agreement on the part of
Officer and may not be sold, assigned, transferred or conveyed by Officer
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by Officer's legal
representatives.
8.3 Entire Agreement. This Agreement contains the entire agreement
among the parties hereto and there are no representations, inducements,
promises, agreements, arrangements or undertakings, oral or written, among the
parties as to the subject matter covered.
8.4 Severability. Should any part of this Agreement be declared
invalid for any reason, such invalidity shall not affect the validity of any
remaining portion hereof and such remaining portion shall continue in full force
and effect as if this Agreement had been originally executed without including
the invalid part.
8.5 Governing Law. This Agreement and its performance shall be
interpreted and construed in accordance with the laws of the State of
Tennessee.
8.6 Titles. Titles and captions in no way define, limit, extend or
describe the scope of this Agreement nor the intent of any provision hereof.
8.7 Amendments. No changes, alterations, modifications, additions or
qualifications to the terms of this Agreement shall be made or be binding unless
made in writing and executed by the parties in the same manner as this
Agreement.
8.8 No Waiver. Failure by either party to enforce any right granted by
this Agreement shall not constitute a waiver of such right and waiver of any
provision of this Agreement shall not constitute a waiver of any other
provision.
8.9 Notices. Any notice, instrument or communication required or
permitted under this Agreement shall be deemed to have been effectively given
and made if in writing and if served whether by personal delivery to the party
for whom it is intended, or by being deposited, postage prepaid, registered or
certified mail, return receipt requested, in the United States mail, addressed
to the party for whom it is intended at the following addresses:
Officer: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
UPC: Union Planters Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chairman of the Board
8.10 Full Settlement. UPC's obligation to make the payments provided
for in this Agreement and otherwise to perform its obligations hereunder shall
not be affected by any set-off, counterclaim, recoupment, defense or other
claim, right or action which UPC may have against Officer or others. In no event
shall Officer be obligated to seek other employment or take any other action by
way of mitigation of the amounts payable to Officer under any of the provisions
of this Agreement and such amounts shall not be reduced whether or not Officer
obtains other employment. UPC agrees to pay as incurred, to the full extent
permitted by law, all legal fees and expenses, including arbitration fees, which
Officer may reasonably incur as a result of any contest (regardless of the
outcome thereof) by UPC, Officer or others of the validity or enforceability of,
or liability under, any provision of this Agreement or any guarantee of
performance thereof (including as a result of any contest by Officer about the
amount of any payment pursuant to this Agreement), plus in each case interest on
any delayed payment at the applicable federal rate provided for in Section
7872(f)(2)(A) of the Code.
8.11 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Amended and
Restated Agreement, this 17th day of April, 1997.
Attest: UNION PLANTERS CORPORATION
/s/ ▇. ▇. House By: /s/ M. ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------- --------------------------------
Title: Senior Vice President and
Assistant Treasurer
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Approved and Acknowledged:
UNION PLANTERS CORPORATION
SALARY AND BENEFITS COMMITTEE
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Chairman
AMENDMENT NO. 1 TO THE AMENDED AND RESTATED
EMPLOYMENT AGREEMENT AS OF APRIL 17, 1997
WHEREAS, Union Planters Corporation ("UPC") and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
("Officer") have entered into the Employment Agreement Amended and Restated as
of April 17, 1997 ("Agreement"); and
WHEREAS, the Board of Directors elected ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as Chairman
and Chief Executive Officer on September 18, 2000 and have approved this
Amendment No. 1 to Sections 2.1 and 2.2 of the Agreement; and
WHEREAS, the Salary and Benefits Committee of the Board of Directors
has approved this Amendment No.1 to Section 3.1 of the Agreement.
NOW, THEREFORE, the Agreement is hereby amended to read as follows:
2.1 General Duties. Officer shall serve UPC as Chairman of the
Board and Chief Executive Officer, and as an executive officer
of any subsidiary of UPC to which he may be elected. Officer
shall also be a member of the Board of Directors of UPC, and
Bank and such other Boards of subsidiaries to which he may be
elected. He shall also be a member of the Executive Committee
of UPC and Bank, and such other committees of the Boards of
UPC, Bank and subsidiaries to which he may be appointed. He
shall perform such duties and responsibilities as are
customarily performed by persons acting in such capacities.
2.2 Extent of Service. During the term hereof, Officer agrees to
devote substantially his entire time, attention and skill to
the performance of his duties as Chairman of the Board and
Chief Executive Officer of UPC. UPC recognizes that Officer
serves on several civic and corporate boards and that such
service does not conflict with the duties outlined above.
3.1 Annual Base Salary. UPC shall pay Officer, and Officer shall
accept from UPC, in full payment for Officer's services
hereunder, an annual base salary in the minimum amount of Six
Hundred and Fifty Thousand Dollars ($650,000.00), payable
twice monthly in periodic equal installments during the year,
which annual base salary shall be reviewed at least annually
and may be increased from time to time as determined by the
Board of Directors of UPC.
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 1
to the Amended and Restated Employment Agreement as of April 17, 1997, this 26th
day of September, 2000.
Attest: UNION PLANTERS CORPORATION
/s/ ▇. ▇. House, Jr. /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------- ---------------------------------------------
▇.▇. House, Jr. ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Executive Vice President & CFO
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President and COO
Approved and Acknowledged:
UNION PLANTERS CORPORATION
SALARY AND BENEFITS COMMITTEE
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chairman
AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT, dated as of the 22nd day of January, 2004, by and between
Regions Financial Corporation, a Delaware corporation ("Regions"), and Union
Planters Corporation, a Tennessee corporation "Union Planters") and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇ ("Officer"), amends the Employment Agreement between Officer and Union
Planters Amended and Restated as of April 17, 1997, and as amended as of
September 26, 2000 (the "Employment Agreement"). Prior to the Effective Date,
Union Planters and Regions shall cause Newco (as defined in the Merger
Agreement) (the "Company") to become a party hereto for all purposes hereof by
executing and delivering a supplement hereto.
The parties hereto have determined that it is in the best interests of the
Company, Regions, Union Planters and their shareholders to assure that the
Company and Union Planters will have the continued dedication of Officer pending
and following the transactions (collectively, the "Merger") contemplated by the
Agreement and Plan of Merger, dated as of January 22, 2004, between the Company,
Regions and Union Planters (the "Merger Agreement"). Therefore, in order to
accomplish these objectives, Officer, Union Planters and Regions desire to enter
into this Amendment which will amend the terms of the Employment Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Effective Date. The parties hereto agree that the effective date of
this Amendment (which shall be defined as the "Effective Date" under
the Employment Agreement) shall mean the date on which the "Effective
Time" (as defined in the Merger Agreement) occurs. In the event that
the Effective Time shall not occur for any reason, this Amendment shall
be null and void ab initio and shall be of no force and effect.
2. Change in Control. The parties hereto agree and acknowledge that,
solely for purposes of the Employment Agreement, and except as
otherwise specifically set forth in this Amendment, a "Change in
Control" as defined in Section 1.2(b) of the Employment Agreement shall
be deemed not to have occurred as a result of the Merger (the parties
hereto agree that this shall have no effect on any other plans and
agreements of Union Planters, and/or on the stock options, restricted
stock and other equity holdings of Officer, pursuant to which a change
in control as defined under the relevant plans and agreements will have
occurred as of the Effective Date).
3. Immediate Effectiveness of 280G Gross-Up Provisions. Notwithstanding
Section 2 of this Amendment, and in recognition that a change in the
ownership or effective control of Union Planters as defined in Section
280G of the Internal Revenue Code of 1986, as amended, is presently
contemplated by reason of the Merger, the provisions of Sections 1.2(f)
and 1.2(g) of the Employment Agreement will be immediately applicable
to Officer as of the Effective Date.
4. Parties. References to "Union Planters" shall be substituted with "the
Company" as defined in the introductory paragraph of this Amendment,
throughout the Employment Agreement.
5. Position and Duties. Sections 2.1 and 2.2 of the Employment Agreement
are hereby deleted, and shall be replaced with the following:
"2.1 General Duties. Officer's employment under this Agreement after
the Effective Date shall be divided into three periods, the "Initial
Period," the "Second Period" and the "Third Period." The Initial Period
shall commence on the Effective Date and end on the date on which the
Chief Executive Officer of the Company as of the Effective Date (the
"Initial CEO") ceases for any reason to serve as Chief Executive
Officer of the Company, but in no event later than June 30, 2005. The
Second Period shall begin at the end of the Initial Period and end on
the date on which the Chairman of the Board of Directors as of the end
of the Initial Period ceases for any reason to serve as Chairman of the
Board of Directors, but in no event later than June 30, 2006. The Third
Period shall begin at the end of the Second Period. During the Initial
Period, Officer shall serve as the President of the Company; during the
Second Period, Officer shall serve as the Chief Executive Officer and
President of the Company; and during the Third Period, Officer shall
serve as the Chairman of the Board of Directors, and Chief Executive
Officer of the Company, in each case, with such duties and
responsibilities as are customary with respect to such positions.
During the Initial Period, Officer shall report directly to the Initial
CEO. The Board of Directors shall appoint Officer to the positions
specified above at the times specified above. Officer shall be
appointed to the Board of Directors and shall serve on the Board of
Directors throughout the period of Officer's employment with the
Company, subject to election by the shareholders of the Company,
without additional consideration."
"2.2 Extent of Services. During Officer's employment under this
Agreement, and excluding any periods of vacation and sick leave to
which Officer is entitled, Officer agrees to devote substantially all
of his business attention and time to the business and affairs of the
Company and, to the extent necessary to discharge the responsibilities
assigned to Officer hereunder, to use Officer's reasonable best efforts
to perform faithfully and efficiently such responsibilities. The
Company recognizes that Officer serves on several civic and corporate
boards and that such service, as well as the management of Officer's
personal investments, does not conflict with the duties outlined
above."
6. Location of Services. The first sentence of Section 2.4 of the
Employment Agreement is hereby deleted, and shall be replaced with the
following:
"The duties of Officer under this Agreement shall be required to be
performed in the reasonable vicinity of either Memphis, Tennessee or
Birmingham, Alabama."
7. Level of Benefits After the Effective Date. There shall be added a new
Section 3.8 to the Employment Agreement, as follows:
"3.8 Level of Benefits After the Effective Date. Without limiting any
other provision of this Agreement, after the Effective Date, Officer
and/or Officer's family, as the case may be, shall be eligible for
participation in, and shall receive, pension and welfare benefits
(including without limitation supplemental and deferred benefits), and
fringe benefits and perquisites and all other benefits, on a basis, at
a level and in an amount that, on a benefit-for-benefit basis, is no
less favorable than the pension and welfare (including supplemental and
deferred benefits), and fringe, perquisite and other benefits that were
provided or made available to Officer and/or Officer's family on
January 22, 2004, whether pursuant to this Agreement or otherwise. For
purposes of all benefit plans, programs and policies of the Company,
all service credited to Officer by Union Planters up to the Effective
Date shall be credited by the Company for purposes of each such
corresponding plan, program and policy, provided, however, that such
credit shall not result in a duplication of benefits with respect to
the same period of service."
8. Right to Payments and Benefits Under Section 1.2(c) under Certain
Circumstances. There shall be added to the end of Section 1.2(c) of the
Employment Agreement a new paragraph, as follows:
"After the Effective Date, this Section 1.2(c) shall apply to Officer,
and Officer shall become entitled to receive payments and benefits
hereunder, only in the following circumstances: (i) if there occurs a
Change in Control of the Company other than the Merger, or (ii) if,
other than as a result of termination of Officer's employment by the
Company for Cause as defined under Section 4.1 or due to Officer's
death or Disability as defined under Section 4.2(c) or Officer's
termination of his employment as contemplated by Section 4.4, (A) the
Company fails to appoint Officer to the position of Chief Executive
Officer of the Company upon the expiration of the Initial Period, (B)
the Company removes Officer from the position of Chief Executive
Officer before commencement of the Third Period, or (C) Officer fails
to become the Chairman of the Board of Directors and Chief Executive
Officer upon the expiration of the Second Period (with respect to
clause (ii) hereof, the date of the "Change in Control" hereunder shall
be deemed to be the date Officer receives notice of either such failure
or removal)."
9. Treatment of Termination Without Cause or Removal. There shall be added
to the end of Section 1.2(d) of the Employment Agreement a new
sentence, as follows:
"The parties hereto acknowledge and agree that any termination by the
Company of Officer's employment hereunder, and/or any removal by the
Company of Officer from the position of Chief Executive Officer of the
Company after commencement of the Third Period (in each case, other
than as a result of termination of Officer's employment by the Company
for Cause, Officer's death or Disability or Officer's termination of
his employment as contemplated by Section 4.4), shall be deemed to be
an immediate election by the Company not to extend Officer's employment
hereunder pursuant to this Section 1.2(d) and, in the case of any such
termination shall be deemed an immediate election by Officer, and in
the case of such removal, shall, at the sole option of Officer, be
deemed an immediate election by Officer, to terminate this agreement
and receive the payments and benefits provided for in this Section
1.2(d), in each case as of the date Officer receives notice of either
such termination or removal (for purposes of clarity, this sentence
shall have no impact on the ability of Officer (or his estate or
beneficiaries, as the case may be) to receive the payments and benefits
set forth in Section 4.2(c) in the event of Officer's death or
Disability)."
10. Notices. All notices and other communications to the Company pursuant
to Section 8.9 of the Employment Agreement shall be addressed as
provided in Section 8.8 of the Merger Agreement, provided that any
notices to Executive shall be follows:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
c/o Union Planters Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or such other address as Executive shall provide to Union Planters,
Regions or the Company.
The terms of the Employment Agreement not hereby amended shall be and remain in
full force and effect, and are not affected by this Amendment.
IN WITNESS WHEREOF, Officer has hereunto set Officer's hand and, pursuant to the
due authorization, the Company and Union Planters have caused these presents to
be executed in their respective names on their behalf, all as of the day and
year first above written.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
UNION PLANTERS CORPORATION
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
REGIONS FINANCIAL CORPORATION
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
---------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Chief Executive Officer
