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Exhibit 10.1
IBERIABANK CORPORATION
IBERIABANK
Change in Control Severance
Agreement
THIS Change in Control Severance
Agreement (the "Agreement") is dated effective as of the 15
th day of December,
2008 (the "Effective Date"), by and between Jeffrey A. Powell (the
"Employee"), IBERIABANK (the "Company"), and IBERIABANK Corporation
(the "Holding Company").
WHEREAS, the Employee became employed by the Holding Company as
an officer on the Effective Date and will also provide services to
the Company;
WHEREAS, the Company and the Holding Company deem it to be in
their respective best interests to enter into the Agreement as an
additional incentive to the Employee to join the Holding Company;
and
WHEREAS, the parties desire by this writing to set forth their
understanding as to their respective rights and obligations in the
event a change of control occurs with respect to the Company or the
Holding Company.
NOW, THEREFORE, the undersigned parties agree as follows:
1. Defined Terms . When used anywhere in this Agreement,
the following terms shall have the meaning set forth herein.
(a) "Board" shall mean the Board of Directors of the
Employer.
(b) "Change in Control" shall mean (i) a change in control
of the Holding Company, of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of
Regulation 14A promulgated under the Securities Exchange Act of
1934, as amended ("Exchange Act") or any successor thereto, whether
or not any security of the Holding Company is registered under
Exchange Act; provided that, without limitation, such a Change in
Control shall be deemed to have occurred if any "person" (as such
term is used in Sections 13(d) and 14(d) of the Exchange Act) is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, or securities of the Holding
Company representing 25% or more of the combined voting power of
the Holding Company then outstanding securities; (ii) during
any period of two consecutive years, individuals (the "Continuing
Directors") who at the beginning of such period constitute the
Board of Directors (the "Existing Board") of the Holding Company
cease for any reason to constitute at least two-thirds thereof,
provided that any individual whose election or nomination for
election as a member of the Existing Board was approved by a vote
of at least two-thirds of the Continuing Directors then in office
shall be considered a Continuing Director unless his or her initial
assumption of office occurs as a result of an actual or
threatened
contest with respect to the election or removal
of directors or other actual or threatened solicitation of proxies
by or on behalf of someone other than a Continuing Director; or
(iii) the acquisition of ownership, holding or power to vote
more than 25% of the voting stock of the Company by any person
other than the Holding Company.
(c) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and as interpreted through applicable
rulings and regulations in effect from time to time.
(d) "Code §280G Maximum" shall mean the product of 2.99 and
the Employee’s "base amount" within the meaning of Code
§280G(b)(3).
(e) "Date of Termination" shall mean the date Employee has a
"separation from service" as defined in Treasury Regulation
§1.409A-1(h)(1).
(f) "Disability" shall mean termination of the Employee’s
employment because of any physical or mental impairment which
qualifies the Employee for disability benefits under the applicable
long-term disability plan maintained by the Employers or, if no
such plan applies, which would qualify the Employee for disability
benefits under the Federal Social Security System.
(g) "Employer" means the Holding Company or the Company,
whichever employs the Employee.
(h) "Good Reason" shall mean (i) without the
Employee’s express written consent: the assignment to the
Employee, by the Employer, of any duties which are materially
inconsistent with the Employee’s positions, duties,
responsibilities and status with the Employer immediately prior to
a Change in Control, or a material change or diminution in the
Employee’s reporting responsibilities, titles or offices as
an employee and as in effect immediately prior to such a Change in
Control, or any removal of the Employee from or any failure to
re-elect the Employee to any of such responsibilities, titles or
offices, except in connection with the termination of the
Employee’s employment for Just Cause or Disability or as a
result of the Employee’s death or by the Employee other than
for Good Reason; (ii) without the Employee’s express
written consent, a reduction by the Employer in the
Employee’s base salary as in effect on the date of the Change
in Control or as the same may be increased from time to time
thereafter or a reduction in the package of fringe benefits
provided to the Employee; (iii) any purported termination of
the Employee’s employment for Just Cause or Disability which
is not effected pursuant to a Notice of Termination satisfying the
requirements hereof ;(iv) the failure by the Company or the Holding
Company to obtain the assumption of and agreement to perform this
Agreement by any successor as contemplated in Section 8
hereto; (v) requirement that the Employee principally perform
all services at location more than 30 miles from such location on
the Effective Date. For purposes of this Section 1(h), any
good faith determination of "Good Reason" made by the Employee
shall create a rebuttable presumption that "Good Reason" exists.
Anything in this Agreement to the contrary notwithstanding, a
termination by the Employee for any reason during the 30-day period
immediately following the first anniversary of the Effective Date
shall be deemed to be a termination for Good Reason for all
purposes of this Agreement.
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(i) "Just Cause" shall mean, in the good faith
determination of the Board, the Employee’s personal
dishonesty, incompetence in the performance of duties, willful
violation of any law, rule, regulation (other than traffic
violations or similar offenses) or final cease-and-desist order, or
material breach of this Agreement.
No act or failure to act, on the Employee’s part shall be
considered "willful" unless it is done, or omitted to be done, by
him in bad faith or without reasonable belief that his action or
omission was in the Employer’s best interests. Any act, or
failure to act, based upon authority given pursuant to a resolution
of the Board or instructions of the Chief Executive Officer or a
senior officer of the Employer or the advice of counsel for the
Employer shall be conclusively presumed to be in good faith and in
the Employer’s best interests. The cessation of
Employee’s employment shall not be deemed to be for Just
Cause unless and until there shall have been delivered to him a
copy of a resolution duly adopted by the vote of not less than
three-quarters of the entire membership of the Board at a meeting
called and held for such purpose (after reasonable notice is
provided to the Employee and he is given an opportunity, together
with counsel, to be heard before the Board), finding that, in the
Board’s good faith opinion, the Employee is guilty of the
conduct described in the preceding paragraph, and specifying the
particulars thereof in detail.
(j) "Notice of Termination" shall mean any purported termination
by the Employer for Just Cause or Disability or by the Employee for
Good Reason shall be communicated by written "Notice of
Termination" to the other party hereto. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which
(i) indicates the specific termination provision in this
Agreement relied upon, (ii) sets forth in reasonable detail
the facts and circumstances claimed to provide a basis for
termination of Employee’s employment under the provision so
indicated, (iii) specifies a date of termination, which shall
be not less than thirty (30) nor more than ninety
(90) days after such Notice of Termination is given, except in
the case of the Employer’s termination of Employee’s
employment for Just Cause, and (iv) is given in the manner
specified in this Agreement.
(k) "Protected Period" shall mean the period that begins on the
date three months before a Change in Control and ends on the later
of the third annual anniversary of the Change in Control or the
expiration date of this Agreement; except that if the
Employee’s employment with the Employer is terminated prior
to the first day of this period at the request of a third party who
has taken steps reasonably calculated to effect a Change in Control
or otherwise in connection with or anticipation of a Change in
Control, then the Protected Period shall commence on the date
immediately prior to the date of such termination.
(l) "Section 409A" shall mean Section 409A of the Internal
Revenue Code of 1986, as amended, and all regulations and guidance
issued thereunder.
(m) "Separation from Service" shall have the meaning provided in
Section 409A.
(n) "Specified Employee" shall have the meaning provided in
Section 409A.
2. Trigger Events . The Employee shall be entitled to
collect the severance benefits set forth in Section 3 of this
Agreement in the event that (i) the Employee voluntarily
terminates employment within 90 days of an event that both occurs
during the Protected
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Period and constitutes Good Reason, (ii) the
Employer or its successor(s) in interest terminate the
Employee’s employment for any reason other than Just Cause
during the Protected Period, or (iii) the employee voluntarily
terminates employment for any reason other than Just Cause within
30 days after a Change in Control; provided that any such
termination constitutes a Separation from Service.
3. Amount of Severance Benefit .
(a) If the Employee becomes entitled to collect severance
benefits pursuant to Section 2 hereof, the Employee shall
receive from the Employer a severance benefit equal to 70% of the
Code §280G Maximum.
(b) The amount payable under this Section 3(a) s
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