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Exhibit 10.11 BANCTRUST FINANCIAL GROUP, INC.
AMENDED AND RESTATED
DIRECTORS DEFERRED COMPENSATION PLAN
This Amended and Restated Directors
Deferred Compensation Plan ("Plan") is executed by the undersigned
to be effective as of January 1, 2009. R E C I T A L
S
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A.
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Prior to the merger between CommerceSouth and BancTrust
Financial Group, Inc., CommerceSouth had in place a Directors
Deferred Compensation Plan (amended and restated effective as of
January 1, 2001) and accompanying Deferred Stock Trust
Agreement.
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B.
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Pursuant to the terms of the merger, the said Directors Deferred
Compensation Plan was continued and amended and restated effective
as of January 1, 2004 to make appropriate changes to the names
of entities subject to the Plan and such corresponding changes as
were appropriate.
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C.
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Since the amendment and restatement of the Plan,
Section 409A of the Internal Revenue Code of 1986, as amended
(the "Code"), and the regulations and guidance thereunder
("Section 409A"), has been enacted setting forth restrictions
and requirements for deferred compensation.
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C.
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The purpose of this amendment and restatement of the Directors
Deferred Compensation Plan is to make appropriate changes to bring
the Plan into compliance with Section 409A, all approved by
the Directors of BancTrust Financial Group, Inc.
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ARTICLE I
DEFINITIONS 1.1 Bank shall mean any
bank that is or becomes a Subsidiary of the Company.
1.2 Bank Change in Control shall mean
the following:
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(a)
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The Consummation of an acquisition by any Person of Beneficial
Ownership of 50% or more of the combined voting power of the then
outstanding Voting Securities of the Bank; provided, however, that
for purposes of this Section 1.2, any acquisition by an
employee, or Group composed entirely of employees, any qualified
pension plan, any publicly held mutual fund or any employee benefit
plan (or related trust) sponsored or maintained by the Bank or any
corporation Controlled by the Bank shall not constitute a Change in
Control;
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(b)
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Consummation of a reorganization, merger or consolidation of the
Bank (a "Bank Business Combination"), in each case, unless,
following such Bank Business Combination, the Bank Controls the
corporation surviving or resulting from such Bank Business
Combination; or
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(c)
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Consummation of the sale or other disposition of all or
substantially all of the assets of the Bank to an entity which the
Company does not Control.
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1.3 Beneficial Ownership shall
mean beneficial ownership within the meaning of Rule 13d-3
promulgated under the Exchange Act.
1.4 Board of Directors shall mean the
Board of Directors of the Company.
1.5 Business Combination shall mean a
reorganization, merger or consolidation or sale of the
Company, or a sale of all or substantially all of the
Company’s assets. 1.6 Common
Stock shall mean the Common Stock of the Company.
1.7 Company shall mean BancTrust
Financial Group, Inc. 1.8 Company
Change in Control shall mean any of the following:
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(a)
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The Consummation of an acquisition by any Person of Beneficial
Ownership of 20% or more of the Company’s Voting Securities;
provided, however, that for purposes of this subsection (a), the
following acquisitions of the Company’s Voting Securities
shall not constitute a Change in Control:
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(i)
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any acquisition directly from the Company,
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(ii)
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any acquisition by the Company,
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(iii)
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any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation
controlled by the Company,
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(iv)
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any acquisition by a qualified pension plan or publicly held
mutual fund,
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(v)
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any acquisition by an Employee or Group composed exclusively of
Employees, or
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(vi)
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any Business Combination which would not otherwise constitute a
Change in Control because of the application of clauses (i),
(ii) and (iii) of Section 1.8(c).
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(b)
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A change in the composition of the Company’s board of
directors whereby individuals who constitute the Incumbent Board
cease for any reason to constitute at least a majority of the
Company’s board of directors; or
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(c)
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Consummation of a Business Combination, unless, following such
Business Combination, all of the following three conditions are
met:
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(i)
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all or substantially all of the individuals and entities who
held Beneficial Ownership, respectively, of the Company’s
Voting Securities immediately prior to such Business Combination
beneficially own, directly or indirectly. 65% or more of the
combined voting power of the Voting Securities of the corporation
surviving or resulting from such Business Combination, (including,
without limitation, a corporation which as a result of such
transaction holds Beneficial Ownership of all or substantially all
of the Company’s Voting Securities or all or substantially
all of the Company’s assets) (such surviving or resulting
corporation to be referred to as "Surviving Company"), in
substantially the same proportions as their ownership, immediately
prior to such Business Combination, of the Company’s Voting
Securities;
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(ii)
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no Person (excluding any corporation resulting from such
Business Combination, any qualified pension plan, public]y held
mutual fund, Group composed exclusively of employees or employee
benefit plan (or related trust) of the Company, its subsidiaries,
or Surviving Company) holds Beneficial Ownership, directly or
indirectly, of 20% or more of the combined voting power of the then
outstanding Voting Securities of Surviving Company except to the
extent that such ownership existed prior to the Business
Combination; and
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(iii)
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at least a majority of the members of the board of directors of
Surviving Company were members of the Incumbent Board at the
earlier of the date of execution of the initial agreement, or of
the action of the Company board of directors, providing for such
Business Combination.
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1.9 Compensation shall mean the
compensation payable to the Directors of the Company and of the
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Subsidiaries and shall include cash retainer fees, meeting fees,
and other compensation payable to the Directors.
1.10 Compensation Committee shall
mean the Company’s Executive Committee, unless and until a
separate Compensation Committee is formed by the Company.
1.11 Compensation Payment Date shall
mean the date on which Compensation is payable to a Director or
Compensation would otherwise be payable to a Director if an
election to defer such Compensation had not been made.
1.12 Consummation shall mean the
completion of the final act necessary to complete a transaction as
a matter of law, including, but not limited to, any required
approvals by the corporation’s shareholders and board of
directors, the transfer of legal and beneficial title to securities
or assets and the final approval of the transaction by any
applicable domestic or foreign governments or agencies.
1.13 Control shall mean, in the case
of a corporation, Beneficial Ownership of more than 50% of the
combined voting power of the corporation’s Voting Securities,
or in the case of any other entity, Beneficial Ownership of more
than 50% of such entity’s voting equity interests.
1.14 Deferred Stock Account shall
mean the bookkeeping account established under Section 7.1 on
behalf of a Director and includes shares of Common Stock credited
thereto to reflect the reinvestment of dividends pursuant to
Section 7.1 (a)(ii). 1.15
Deferred Stock Trust shall mean the Deferred Stock Trust for
Directors of the Company and its Subsidiaries.
1.16 Director shall mean (a) a
member of the Board of Directors of the Company or its Subsidiaries
including advisory directors of such entities and (b) who is
not an active employee of the Company or a Subsidiary.
1.17 Distribution Election shall mean
the designation by a Director of the manner of distribution of the
amounts and quantities held in the Director’s Deferred Stock
Account upon the director’s termination from the Board of
Directors of the Company and all Subsidiaries pursuant to
Section 6.3. l.18 Exchange Act
shall mean the Securities Exchange Act of 1934, as amended.
1.19 Group shall have the meaning set
forth in Section 14(d) of the Exchange Act.
1.20 Incumbent Board shall mean those
individuals who constitute the Company Board of Directors as of
January 1, 2004, plus any individual who shall become a
director subsequent to such date whose election or nomination for
election by the Company’s shareholders was approved by a vote
of at least 75% of the directors then comprising the Incumbent
Board. Notwithstanding the foregoing, no individual who shall
become a director of the Company Board of Directors subsequent to
January 1, 2004, whose initial assumption of office occurs as
a result of an actual or threatened election contest (within the
meaning of Rule 14a-11 of the regulations promulgated under
the Exchange Act) with respect to the election or removal of
directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Company board
of directors shall be a member of the Incumbent Board.
1.21 Market Value shall mean the
average of the high and low prices of the Common Stock, as
published in the Wall Street Journal in its report of NASDAQ
composite transactions, on the date such Market Value is to be
determined, as specified herein (or the average of the high and low
sale prices on the trading day immediately preceding such date if
the Common Stock is not traded on the NASDAQ on such date).
1.22 Participant shall mean a
Director or former Director who has an unpaid Deferred Stock
Account balance under the Plan. 1.23
Person shall mean any individual, entity or group within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange
Act.
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1.24 Intentionally omitted
1.25 Subsidiary shall mean BankTrust
(organized under the laws of the State of Alabama), BancTrust
Company, Inc. (f/k/a South Alabama Trust Company), BankTrust of
Alabama and BankTrust (organized under the laws of the State of
Florida) and such other entities: (a) as to which the Company
owns eighty percent (80%) or more of the Voting Securities; and
(b) which shall have been approved by the Company as an entity
whose directors are eligible to participate in the Plan; and
(c) which shall have elected to sponsor the Plan for its
directors. 1.26 Trust Administrative
Committee shall mean the committee that is appointed by the Board
of Directors to administer the Deferred Stock Trust.
1.27 Voting Securities shall mean the
outstanding voting securities of a corporation entitling the holder
thereof to vote generally in the election of such
corporation’s directors ARTICLE II
PURPOSE The Plan provides a method of
deferring payment to a Director of his Compensation as fixed from
time to time until termination of his service on the board. ARTICLE
III
ELIGIBILITY An individual who serves
as a Director shall be eligible to participate in the Plan. ARTICLE
IV
ADMINISTRATION The Plan shall be
administered by the Compensation Committee of the Board of
Directors as appointed from time to time. The Compensation
Committee shall have the power to interpret the Plan and, subject
to its provisions, to make all determinations necessary or
desirable for the Plan’s administration. The decisions,
actions and records of the Committee shall be conclusive and
binding upon the Company and all persons having or claiming to have
any right or interest in or under the Plan. The Committee may
delegate to such officers, employees or departments of the Company
such authority, duties and responsibilities of the Committee as it,
in its sole discretion, considers necessary or appropriate for the
proper and efficient operation of the Plan, including, without
limitation, (i) interpretation of the Plan, (ii) approval
and payment of claims, and (iii) establishment of procedures for
administration of the Plan. ARTICLE V
PLAN PERIODS The first Plan Period
shall commence the first day of the month which begins at least
thirty (30) days following the date a Director is elected to
that position. Said first Plan Period shall continue until the end
of the calendar year during which the Director was elected to that
position and all subsequent Plan Periods shall be on a calendar
year basis. Notwithstanding the foregoing, the Plan and Plan
Periods shall continue uninterrupted for Directors who were
directors of CommerceSouth or one of its subsidiaries prior to the
merger into BancTrust and who continue to serve as Directors of
BancTrust or one of its Subsidiaries after the merger and the
initial Plan Period for directors of BancTrust and its Subsidiaries
who are eligible to participate in the Plan shall begin on the day
prior to the first meeting of said directors after the effective
date of the merger between CommerceSouth and BancTrust. ARTICLE
VI
ELECTIONS
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6.1 Deferral Elections
Prior to the beginning of a Plan
Period, a Director may direct that payment of all or any portion of
cash Compensation that otherwise would be paid to the Director for
the Plan Period, be deferred in amounts as designated by the
Director, and credited to a Deferred Stock Account. Upon the
Director’s termination from the Board of Directors, such
deferred Compensation and accumulated investment return held in the
Director’s Deferred Stock Account shall be distributed to the
Director in accordance with the Director’s Distribution
Election and the provisions of Article VIII.
6.2 Elections
An election to defer Compensation is
irrevocable unless a Director terminates participation for a future
Plan Period prior to the commencement of such Plan Period or, prior
to the beginning of a Plan Period, changes his election regarding
future payments. A termination of participation shall become
effective after being received by the Secretary of the Company and
shall not affect amounts previously deferred in prior Plan Periods.
A termination of participation shall be effec
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