BancorpSouth, Inc.
Change in Control Agreement
This
Agreement (“Agreement”) is entered into this 23rd
day of June, 2009, by and between BancorpSouth, Inc. (the
“Company”) and William L. Prater
(“Employee”).
Whereas,
Employee is employed as Executive Vice President of the Company;
and
Whereas,
the Company desires to provide certain severance payments to
Employee in the event that Employee’s employment with the
Company is terminated in connection with a change in control of the
Company;
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
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:
“
Administrator ” means a committee consisting of the
Company’s chief executive officer, the secretary of the
Company, the vice president of human resources, and any other
individuals appointed by the chief executive officer. The
Administrator may delegate any of its duties or authorities to any
person or entity. If a change in Control occurs, as described in
this Agreement, the Administrator shall be the committee of
individuals who were committee members immediately prior to the
Change in Control.
“
Benefit ” means the benefits described in
Article II.
“ Change
in Control ” means a transaction or circumstance in which
any of the following have occurred:
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(a)
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any
“person” as such term is used in sections 13
(d) and 14 (d) of the Exchange Act, 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 l3d-3 under said Act), directly or indirectly, of
securities of the Company representing more than 25% of the total
voting power represented by the Company’s then outstanding
Voting Securities {as defined below), or
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(b)
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during any period of two consecutive
years, individuals who at the beginning of such period constitute
the Board and any new director whose election by the Board or
nomination for election by the Company’s shareholders was
approved by a vote of at least two-thirds of the directors then
still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously
so approved, cease for any reason to constitute a majority thereof,
or
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(c)
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the
shareholders of the Company approve a merger or consolidation of
the Company with any other corporation, other than a merger or
consolidation which would result in the Voting Securities
(i.e., any securities of the entity which vote generally in
the election of its directors) of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into Voting Securities
of the surviving entity) more than 65% of the total voting power
represented by the Voting Securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation, or
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(d)
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the
shareholders of the Company approve a plan of complete liquidation
of the Company or an agreement for the sale or disposition by
the
Company of all or substantially all of its assets.
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“
Code ” means the Internal Revenue Code of 1986, as
amended.
“
ERISA ” means the Employee Retirement Income Security
Act of 1974, as amended.
ARTICLE II. CHANGE IN CONTROL
TERMINATION PAYMENT
Section 2.1 Benefits on
Termination.
(a)
Amount. Subject to the conditions, limitations and
adjustments that are provided for herein, the Company will provide
Benefits to Employee the sum of the amounts described below if,
within the 24 month period following a Change in Control,
Employee’s employment with the Company terminates pursuant to
Section 2.3 of this Agreement:
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(1)
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An
amount equal to 200% of the Employee’s annual base
compensation determined by reference to his base salary in effect
at the time of Change in Control.
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(2)
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An
amount equal to 200% of the highest annual bonus that Employee
would be eligible to receive during the fiscal year ending
during
which the Change in Control occurs.
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(3)
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For
a period of 24 months, participation in medical, life,
disability and similar benefit plans that are offered to similarly
situated employees of the Company immediately prior to the
applicable Change in Control for the Eligible Employee and his
dependents. Such participation may be pursuant to the continuation
coverage rights of Eligible Employees pursuant to Part 6 of
Title I of ERISA (“COBRA”) or the Company may provide
such benefits directly through the purchase of insurance or
otherwise. Notwithstanding the foregoing, the period for
participation in a self-funded medical plan pursuant to this
paragraph 3 shall not exceed the maximum period of continuation
coverage provided under COBRA. If benefits are provided pursuant to
COBRA continuation rights, the Company shall pay a cash amount to
the Eligible Employee at the time of severance that is sufficient
to cover all premiums required for such COBRA coverage under the
appropriate benefit plans.
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(4)
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For
a period of 24 months, participation in general and executive
fringe benefits offered to similarly situated executive employees
immediately prior to the applicable Change in Control, including,
but not limited to, auto allowance, financial planning, annual
physical examination, and civic and country club dues.
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(b)
Adjustments to the Amount of Benefit. Notwithstanding
anything herein to the contrary, the amounts due to Employee under
Section 2.1 (a) shall be adjusted in accordance with
Section 2.2 if any payment provided to Employee is determined
to be subject to the excise tax described in section 4999 of the
Code.
(c) Time
for Payment; Interest . The cash Benefits payable made under
this Section 2.1 shall be paid to Employee in a single lump
sum within ten days following the date of termination. The
Company’s obligation to pay to Employee 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 Benefit payments
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
payment of any portion of Benefits by the Company to Employee by
the Company. To the extent possible, this limitation shall be
applied by reducing only the portion of Benefits that exceed such
legal limitation.
2.2 Benefit
Adjustments. Notwithstanding the amount of Benefits described
in Section 2.1(a), Benefits shall be limited in the event that
Employee would realize less income on the receipt of Benefits and
other “change in control payments” (as defined in
section 280G of the Code), net of taxes, after deducting the amount
of excise taxes that would be imposed pursuant to section 4999 of
the Code. In such an event, the Benefits payable hereunder shall be
reduced so that Benefits received in combination with all other
change in control payments to be received by Employee equal the
maximum amount that does not result in the receipt of a
“parachute payment” (as defined by section 280G(b)(2)
of the Code) by Employee. This reduction shall not apply if the
amount of Benefits and other change in control payments received by
Employee exceed such reduced amount after deducting the excise tax
that would be imposed pursuant to section 4999 of the
Code.
2.3
Termination of Employment. Employee shall only be entitled to
the Benefits described in Section 2.1, as adjusted by
Section 2.2, if Employee’s termination of employment is
on account of termination by Company without cause or termination
by Employee with cause, which are described as follows:
(a) By
Company Without Cause, Termination of employment by the Company
without cause shall occur if the Company provides oral or written
notice to Employee of involuntary termination that is not on
account of just cause. For this purpose, termination for
“just cause” will only occur upon written notice to
Employee that employment is involuntarily terminated due to any of
the following:
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(1)
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conviction of Employee for a crime
involving fraud, dishonesty
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