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Exhibit
10-h
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This
Amended and Restated Employment Agreement (" Agreement ") is
entered into as of October 23, 2007 by Trustmark Corporation,
a Mississippi corporation (the " Company "), and
Richard G. Hickson (the " Executive
"). The Company and Executive have entered into
this Agreement with reference to the following
facts:
A. The
Company and Executive entered into that certain Agreement
dated as of May 13, 1997, which the Company and Executive
amended and restated effective as of March 12, 2002 ("
Original
Agreement "); and
B. The
Company and Executive now desire to amend and restate in its
entirety the Original Agreement as set forth in this Agreement
to reflect the provisions of Section 409A of the Internal
Revenue Code of 1986, as amended (“ Code ”), and
the final regulations issued thereunder.
NOW,
THEREFORE, in consideration of the mutual premises and
agreements herein contained, and other good and valuable
consideration, the receipt and adequacy of which is hereby
acknowledged, the parties, intending to be legally bound,
hereby agree as follows:
1.
Term
of Employment . Subject to Section 5 hereof,
the term of the Executive's employment under this Agreement
commenced on the 13th day of May, 1997 (the "Commencement
Date"), and shall continue until terminated as provided in
Section 5 (the "Term").
2.
Duties
of Employment . The Executive agrees for the
Term to render his services to the Company as its President
and Chief Executive Officer and such other office or position
with the Company as may be reasonably requested by the Board
of Directors of the Company (the "Board"), and in connection
therewith, to perform such duties commensurate with his office
as he shall reasonably be directed by the Board to
perform. The Executive shall perform such duties
faithfully and diligently at all times. The
Executive shall have no other employment while he is employed
by the Company; provided, however, that the Executive may
serve on the boards of directors of companies which do not
compete with the Company and in such capacity attend regularly
scheduled board meetings to the extent approved in writing in
advance by the Board. When and if requested to do
so by the Board, the Executive shall serve as a director and
officer of any subsidiary or affiliate of the
Company. The Company shall notify the Executive if
it believes that the Executive has breached any of his
obligations under this Section 2; in such event, the Executive
shall have thirty (30) days within which to cure such breach,
other than a breach of his obligation to refrain from
employment with any person or entity other than the Company or
any of its subsidiaries or affiliates.
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3.
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Compensation and Other Benefits .
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3.1.
Salary
. As his full base compensation for all services to
be rendered by the Executive during the Term, the Company
shall pay to the Executive a base salary for each calendar
year of the Term in an amount established each year by the
Compensation Committee of the Board and the Board, but in no
event less than $400,000 annually. Payment shall be
made in accordance with the Company's usual payroll practices
for senior executives (not less frequently than
monthly). The annual base salary set forth in this
Section 3, as in effect at any particular time, shall
hereinafter be referred to as the "Base Salary." The Company
shall withhold or cause to be withheld from the Base Salary
(and other wages hereunder) all taxes and other amounts as are
required by law to be withheld.
3.2.
Annual
Bonus . In addition to the Base Salary, the
Executive shall have the opportunity annually to earn as a
bonus seventy percent (70%) of his Base Salary (the "Target
Award Opportunity"). In establishing the actual
bonus earned each year by the Executive (the "Annual Bonus"),
the Compensation Committee of the Board, in consultation with
the Executive, shall have the discretion to increase the
Annual Bonus above or decrease the Annual Bonus below the
Target Award Opportunity for that year. In so doing
the Compensation Committee's determination shall be based upon
an assessment of the performance of both the Executive and the
Company taking into consideration such performance goals as
may be established by the Compensation Committee periodically
in consultation with the Executive. The Executive's
Annual Bonus shall not exceed one hundred percent (100%) of
the Base Salary for any one year. Any Annual Bonus
due hereunder shall be payable to the Executive no later than
the 15 th
of the third month following the end of the year to which the
Annual Bonus relates.
3.3.
Stock
Options . The Company will grant to the
Executive stock option grants from time to time in such
amounts as are determined in the sole discretion of the
Compensation Committee of the Board.
3.4.
Vacation
. The Executive shall be entitled to four (4) weeks
of paid vacation for each calendar year of the Term
hereof. Upon termination of employment, Executive
shall be paid for all unused vacation granted during the year
of termination at the Base Salary rate then existing as soon
as practicable after the effective date of termination in
accordance with the Company’s usual payroll practices
(not less frequently than monthly). The Executive
shall not be paid for any unused vacation if terminated for
Cause (as hereinafter defined). No payment shall be
made for unused vacation from any prior years.
3.5.
Participation
in Employee Benefit Plans . The Executive
shall be permitted to participate in all group life,
hospitalization and disability insurance plans, health
programs, pension plans, similar benefit plans or other
so-called "fringe benefit programs" of the Company (the
"Employee Benefits") as are now existing or as may hereafter
be revised or adopted and offered to senior executives
generally to the extent the Executive is eligible under the
eligibility provisions of the relevant plan.
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4.
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Confidentiality, Nonsolicitation and Noncompete
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4.1.
Confidentiality
. The Executive covenants and agrees that all trade
secrets, confidential information (including but not limited
to confidential information with respect to marketing, product
offerings or expansion plans), and financial matters of the
Company and its subsidiaries (collectively "Confidential
Information") which are learned by him in the course of his
employment by the Company shall be held in a fiduciary
capacity and treated as confidential by him and shall not be
disclosed, communicated or divulged by him or used by him for
the benefit of any person or entity (other than the Company,
its subsidiaries or affiliates) unless expressly authorized in
writing by the Board, or unless the Confidential Information
becomes generally available to the public otherwise than
through disclosure by the Executive.
4.2.
Nonsolicitation
. The Executive agrees that (1) during the period
he is employed hereunder and for a period of twenty-four (24)
months thereafter, he will not, without the prior written
consent of the Board, directly or indirectly solicit, entice,
persuade, or induce any employee, director, officer,
associate, consultant, agent or independent contractor of the
Company or its subsidiaries (i) to terminate such person's
employment or engagement by the Company or its subsidiaries or
(ii) to become employed by any person, firm partnership,
corporation, or other such enterprise other than the Company,
its subsidiaries or affiliates, and (2) he shall not following
the termination of his employment hereunder represent that he
is in any way connected with the business of the Company or
its subsidiaries (except to the extent agreed to in writing by
the Company).
4.3.
Noncompete
. The Executive agrees that during the period he is
employed hereunder and for a period of twenty four (24) months
following the date of termination of his employment for any
reason except Retirement (as defined in Section 5.9), he will
not (except as a representative of the Company or with the
prior written consent of the Board), directly or indirectly,
engage, participate or make any financial investment, as an
employee, director, officer, associate, consultant, agent,
independent contractor, lender or investor, in the business of
any person, firm, partnership, corporation or other enterprise
that is engaged in direct competition with the business of the
Company in any geographic area in which the Company is then
conducting such business. Nothing in this Section
4.3 shall be construed to preclude the Executive from making
any investments in the securities of any business enterprise
whether or not engaged in competition with the Company, to the
extent that such securities are actively traded on a national
securities exchange or in the over-the-counter market in the
United States or on any foreign securities exchange and
represent less than one-percent (1%) of any class of
securities of such business enterprise. Executive
acknowledges that if his employment with the Company
terminates for any reason, he can earn a livelihood without
violating the foregoing restrictions and that the time period
and scope of the foregoing restrictions are reasonably
required for the protection of the Company's valid business
interests.
4.4
Covenant
Payments . In consideration for the
covenants contained in this Section 4, which are considered
material to the Company, the Company agrees to pay Executive
all amounts owed pursuant to this Agreement, and upon
Executive's termination without Cause or Executive’s
resignation for Good Reason, to pay Executive an amount (the "
Covenant
Payments ") equal to the product of two times the sum
of (i) the Executive's Base Salary and (ii) the highest Annual
Bonus earned in any one of the three years preceding the
termination. Subject to Section 13 hereof, the
Covenant Payments shall be paid in twenty-four (24) equal
monthly installments with the first installment commencing on
the 60 th
day after the effective date of termination and continuing
thereafter on the same day of each following month until all
twenty-four (24) monthly installments are paid. In
the event of the Executive's death following such date of
termination, any unpaid installments shall be paid to the
Executive's estate in a single undiscounted cash lump
sum. Such lump sum shall be paid on the 60
th
day after the Executive's death. Notwithstanding
anything herein to the contrary, if the Executive is
terminated for Cause or the Executive voluntarily resigns
other than for Good Reason or becomes disabled during the
Term, the Executive will remain subject to the covenants
contained in Section 4 but will not be entitled to the
Covenant Payments.
4.5
Remedies
. The Company would be damaged irreparably if any
provision of Section 4 was not performed by the Executive in
accordance with its terms or was otherwise breached and that
money damages would be an inadequate remedy for any such
nonperformance or breach. Therefore, the Company or
its successors or assigns shall be entitled, in addition to
any other rights and remedies existing in their favor,
including the right to retain the Covenant Payments, to an
injunction or injunctions to prevent any breach or threatened
breach of any such provisions and to enforce such provisions
specifically (without posting a bond or other
security). Executive agrees that Company or its
successors or assigns may retain the Covenant Payments as
partially liquidated damages for such breach and not as a
penalty. The Executive would be damaged irreparably
if any provision of Section 4 was not performed by the Company
in accordance with its terms or was otherwise breached and
that money damages would be an inadequate remedy for any such
nonperformance or breach. Therefore, the Executive
shall be entitled, in addition to any other rights and
remedies existing in his favor, to an injunction or
injunctions to prevent any breach or threatened breach of any
such provisions and to enforce such provisions specifically
(without posting a bond or other security).
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5.
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Termination and Severance .
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5.1.
Notice
of Termination . Subject to the provisions
of this Agreement, the Company and the Executive may terminate
the Term on thirty (30) days written notice to the other
party, which notice shall specify in detail the cause for
termination, except that no prior written notice need be given
by the Company in the event it terminates the Executive's
employment hereunder for Cause (as hereinafter defined and
subject to applicable cure provisions).
5.2.
Resignation
. Except as otherwise provided in Section 5.7 or
5.8 herein, the Executive may voluntarily terminate the Term
and resign from employment with the Company by written notice
to Company specifying the effective date of such
resignation. Upon receipt of such notice, the
Company shall have the right to terminate the Term immediately
or at such earlier date as the Company may elect by written
notice to the Executive and, in such event the termination
shall be treated as a voluntary termination without Good
Reason by the Executive. Thereafter, Company shall
have no further obligations or liabilities to Executive,
except for obligations to pay the Executive (1) any unpaid
Base Salary and accrued vacation benefits earned through the
date of termination; and, (2) the Annual Bonus earned for the
calendar year immediately preceding the calendar year of
termination to the extent not already paid. Such
unpaid Base Salary and accrued vacation benefits and the
Annual Bonus shall be paid to the Executive in a lump sum as
soon as practicable after the effective date of termination in
accordance with the Company’s usual payroll practices
(not less frequently than monthly); provided, however, that if
payment of any such amounts at such time would result in a
prohibited acceleration under Section 409A of the Code, then
such amount shall be paid at the time the amount would
otherwise have been paid under the applicable plan, policy,
program or arrangement relating to such amount absent such
prohibited acceleration.
5.3.
Death
. In the event of the Executive's death during the
Term, the Term and the Executive's employment shall terminate
automatically, and Company shall pay to his spouse or
designated beneficiary, or if none, to his estate (1) any
unpaid Base Salary and accrued vacation benefits earned
through the date of death, (2) the Annual Bonus earned for the
calendar year immediately preceding the calendar year of death
to the extent not already paid, and (3) a pro rata share of
the Target Award Opportunity for the calendar year of
Executive’s death (calculated on the basis of the number
of days elapsed in such year through the date of
death). The Company shall pay to the Executive, his
spouse, designated beneficiary or estate, as the case may be,
such unpaid base salary and accrued vacation benefits and such
Annual Bonus in a lump sum as soon as practicable after the
effective date of termination of the Executive’s
employment on account of his death in accordance with the
Company’s usual payroll practices (not less frequently
than monthly) and the pro-rata share of the Target Award
Opportunity in a single lump sum on the 60 th
day following termination of the Executive's employment on
account of his death; provided, however, that if payment of
any such amounts at such time would result in a prohibited
acceleration under Section 409A of the Code, then such amount
shall be paid at the time the amount would otherwise have been
paid under the applicable plan, policy, program or arrangement
relating to such amount absent such prohibited
acceleration.
5.4.
Disability
. If the Executive becomes physically or mentally
disabled during the Term so that he is unable to perform the
services required of him pursuant to this Agreement for a
period of 90 days, the Company may terminate the Term and the
Executive's services hereunder effective the 91 st
day after the date of such disability, at which time the
Company shall promptly pay to the Executive (1) any unpaid
base salary and accrued vacation benefits and the Annual Bonus
earned for the calendar year immediately preceding the
calendar year of death to the extent not already paid in a
lump sum as soo
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