EXHIBIT (10)-17
AGREEMENT
THIS AGREEMENT (the
“Agreement”) is made this 1st day of April 2002,
by and among The Banc Corporation , a Delaware corporation
(the “Company”), The Bank , an Alabama banking
corporation (the “Bank”), and Chris Gossett , an
individual resident of Alabama residing at 105 Autumn Place,
Birmingham, AL 35242 (the “Employee”).
RECITALS:
WHEREAS, the Company desires to
provide the Employee certain protection in the event of a change in
control of the Company on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of
the foregoing and the mutual covenants and agreements hereinafter
set forth, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, do
hereby agree as follows:
1. Change of Control
.
(a) If Employee’s
employment with the Company shall be terminated by Employee for
Good Reason by providing a Notice of Termination to the Company,
the Employee shall be entitled to the following:
(i) the
Company shall pay the Employee in cash with fifteen days of the
Termination Date an amount equal of all Accrued Compensation and
the Pro Rata Bonus;
(ii) the
Company shall pay to the Employee in cash at the end of each of the
twelve consecutive months following the Termination Date an amount
equal to one-twelfth of the sum of the Base Amount plus the Bonus
Amount plus all benefits and all Director’s fees, including
retainers, to which the Employee would be entitled for the same
period, or within 30 days, at the Employee’s option, a
lump sum equal to the present value of the payments due under this
Section 1(a)(ii); provided, however, that such lump sum amount
shall be reduced to its net present value assuming an interest rate
equal to six percent (6%) and 12 equal monthly payments commencing
on the Termination Date;
(iii) the
restrictions on any outstanding incentive awards (including stock
options) granted to the Employee under any Company’s stock
option plan, Company stock option plan, or under any other
incentive or deferred compensation plan or arrangement shall lapse
and such incentive or deferred compensation award shall become 100%
vested, all stock options and stock appreciation rights granted to
the Employee shall be immediately exercisable and shall be 100%
vested. The period in which Employee may exercise any option
granted shall be the full term of such option.
(b) The Employee shall not be
required to mitigate the amount of any payment provided for in this
Agreement by seeking other employment or otherwise, and no such
payment shall be offset or reduced by the amount of any
compensation or benefits provided to the Employee in any subsequent
employment.
(c) The severance pay and
benefits provided for in this Section 1 shall be in lieu of
any other severance or termination pay to which the Employee may be
entitled under any Company severance or termination plan, program,
practice or arrangement. The Employee’s entitlement to any
other compensation or benefits shall be determined in accordance
with the Company’s employee benefit plans and other
applicable programs, policies and practices then in effect.
2. Trade Secrets . The
Employee shall not, at any time, either during the term of his
employment or after the Termination Date, use or disclose any Trade
Secrets of the Company, except in fulfillment of his duties as the
Employee during his employment, for so long as the pertinent
information or data remain Trade Secrets, whether or not the Trade
Secrets are in written or tangible form.
3. Successors: Binding
Agreement.
(a) This Agreement shall be
binding upon and shall inure to the benefit of the Company, its
Successor and Assigns and the Company shall require any Successors
and Assigns to expressly assume and agree to perform this Agreement
in the same manner and to the same extent that the Company would be
required to perform it if no such succession or assignment had
taken place.
(b) Neither this Agreement nor
any right or interest hereunder shall be assignable or transferable
by the Employee, his beneficiaries or legal representatives, except
by will or by the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by the
Employee’s legal personal representative.
4. Notice . For the
purposes of this Agreement, notices and all other communications
provided for in the Agreement (including the Notice of Termination)
shall be in writing and shall be deemed to have been duly given
when personally delivered or sent by certified mail, return receipt
requested, postage prepaid, addressed to the respective addresses
last given by each party to the other, provided that all notices to
the Company shall be directed to the attention of the Board of
Directors with a copy to the Secretary of the Company. All notices
and communications shall be deemed to have been received on the
date of delivery thereof.
5. Settlement of Claims
. The Company’s obligation to make the payments provided for
in this Agreement and to otherwise perform its obligations
hereunder shall not be affected by any circumstances, including,
without limitation, any set-off, counterclaim, recoupment, defense
or other right which the Company may have against the Employee or
others. The Company may, however, withhold from any benefits
payable under this Agreement all federal, state, city or other
taxes as shall be required pursuant to any law or governmental
regulation or ruling.
6. Modification and
Waiver . No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge
is agreed to in writing and signed by the Employee and the Company.
No waiver by any party hereto at any time of any breach by the
other party hereto of, or compliance with, any condition or
provision of this
Agreement to be performed by such other party shall be deemed a
waiver of similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time.
7. Governing Law . This
Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Alabama without giving
effect to the conflict of laws principles thereof. Any action
brought by any party to this Agreement shall be brought and
maintained in a court of competent jurisdiction in the State of
Alabama.
8. Severability . The
provisions of this Agreement shall be deemed severable, and the
invalidity or unenforceability of any provision shall not affect
the validity or enforceability of the other provisions
hereof.
9. Entire Agreement .
This Agreement constitutes the entire agreement between the parties
hereto and supersedes all prior agreements, if any, understandings
and arrangements, oral or written, between the parties hereto with
respect to the subject matter hereof.
10. Headings . The
headings of Sections herein are included solely for convenience of
reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
11. Counterparts . This
Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together shall
constitute one and the same instrument.
12. Definitions . For
purposes of this Agreement, the following terms shall have the
following meanings:
(a) “Accrued
Compensation” shall mean an amount which shall inc
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