Exhibit 10.2
CHANGE IN CONTROL COMPENSATION AGREEMENT
This Agreement dated as of the 20 th day of December,
2006 by and between BankTrust (the "Bank"), an Alabama banking
corporation having its principal place of business in Mobile,
Alabama and Bruce C. Finley, Jr. (the "Executive").
RECITALS:
A. The Compensation Committee of the Board of Directors of the
Bank has recommended, and the Board of Directors has approved, that
the Bank enter into agreements with key executives of the Bank
designated from time to time by the Compensation Committee which
provide for compensation under certain circumstances after a change
in control.
B. Executive is a key executive of the Bank and has been
selected by the Compensation Committee to enter into this
Agreement.
C. If the Bank should become subject to any proposed or
threatened Change in Control (as hereinafter defined), the Board of
Directors of the Bank believes it imperative that the Bank and the
Board of Directors be able to rely upon Executive to continue in
his position and the Bank be able to receive and rely upon his
advice, if requested, as to the best interests of the Bank and its
stockholders, without concern that he might be distracted by the
personal uncertainties and risks created by such a proposal or
threat.
D. If the Bank should receive any such proposal, Executive may
be called upon to assist in the assessment thereof, advise
management and the Board of Directors as to whether such proposal
would be in the best interest of the Bank and its stockholders, and
take such other actions above and beyond his regular duties as the
Board might determine to be appropriate.
NOW, THEREFORE, as assurance to the Bank that it will have the
continued dedication of Executive and the availability of his
advice and counsel notwithstanding the possibility, threat or
occurrence of an effort to take over control of the Bank, and as an
inducement to Executive to remain in the employ of the Bank, and
for other good and valuable consideration, the Bank and Executive
agree as follows:
1. Services During Certain Events. In the event
any person, firm or corporation unaffiliated with the Bank begins a
tender or exchange offer, circulates a proxy to stockholders, or
takes other steps to effect a Change in Control (as hereinafter
defined), Executive agrees that he will not voluntarily leave the
employ of the Bank on less than 4 months written notice to the
Chairman of the Board or Chairman of the Executive Committee of the
Bank, will render the services expected of his position and will
act in all things related to the possible Change in Control in the
manner he believes in good faith to be in the best interests of the
shareholders of the Bank until such person, firm or corporation has
abandoned or terminated his or its efforts to effect a change in
Control or until a Change in Control has occurred.
2. Termination Following Change in Control. Except
as provided in Section 4, the Bank will provide or cause to be
provided to Executive the rights and benefits described in Section
3 in the event that Executive's employment is terminated at any
time within two years following a Change in Control (as such term
is defined in this Section 2) under the circumstances stated in (a)
or (b) below:
(a) by the Bank for reasons other than for "cause" (as such term
is defined in Section 4) or other than as a consequence of
Executive's death, permanent disability or attainment of the normal
retirement date as provided under the Bank's pension plan (the
"Retirement Plan") as in effect immediately preceding such date
("Normal Retirement Date"); or
(b) by Executive following the occurrence of any of the
following events:
(i) the assignment of Executive to any
duties or responsibilities that are inconsistent with his position,
duties, responsibilities or status immediately preceding such
Change in Control or a change in his reporting responsibilities or
titles in effect at such time, in either case resulting in
reduction of his responsibilities or position;
(ii) the reduction of Executive's annual compensation, meaning
thereby the
fair market value of all remuneration paid to the Executive by the
Bank during
the immediately preceding calendar year, including, without
limitation,
deferred compensation and other forms of incentive compensation
awards,
coverage under any employee benefit plan (such as a pension,
thrift, dental,
life insurance or long-term disability plan) and other
perquisites;
(iii) the transfer of Executive to a location requiring a change
in his
residence or a material increase in the amount of travel
normally
required of Executive in connection with his employment.
For purposes of this Agreement, a "Change in Control" is hereby
defined to be: (1) a merger, consolidation or other corporate
reorganization of the Bank or its parent company in which either
the Bank or its parent company fails to survive; (2) disposition by
the Bank's parent company of the Bank; (3) the beneficial ownership
by one person or a closely related group of persons of as much as
40% of the outstanding voting stock of the Bank's parent company,
unless the acquisition of stock resulting in such ownership by such
person or related group had been approved in advance by the Board
of Directors of the Bank or the parent company; or (4) as may
otherwise be defined by the Board of Directors from time to
time.
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Rights and Benefits Upon Termination. In the event of
the termination of
Executive's employment under any of
the circumstances set forth in Section 2 hereof ("Termination"),
the Bank agrees to provide or cause to be provided to Executive the
following rights and benefits:
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Salary and Other Payments at Termination. Executive
shall be
entitled to receive payment in cash in
the amount of three times Executive's Average Annual Earnings, as
such term is defined in this Section 3 (a) during the most recent
three-year fiscal periods (or the period during which the Executive
has been employed by the Bank if less than three years.) However,
if such amount exceeds limits provided in the then existing
provisions of the Internal Revenue Code for the imposition of tax
penalties on such payments, the amount shall be reduced to the
highest amount allowed to avoid such penalties. At the election of
Employee, payment shall be made in equal monthly payments over a
three year period beginning with the month following Termination,
or payment shall be made in a lump sum. A
