EXHIBIT 10(r)
BancorpSouth, Inc.
Change in Control Agreement
This Agreement (“Agreement”) is entered into
this 10 th day of January,
2008, by and between BancorpSouth, Inc. (the “Company”)
and Gordon R. Lewis (“Employee”).
WITNESSETH:
Whereas, Employee is employed as Vice Chairman 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
ARTICLE I. DEFINITIONS
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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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 13d-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 |
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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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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. |
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“ 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. |
(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.l(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 with
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