ex10-2.htm

THIS AMENDED AND RESTATED AGREEMENT (the "Agreement") is made by and between WHITNEY HOLDING CORPORATION, a corporation organized and existing under the laws of the State of Louisiana (the "Holding Corporation"), WHITNEY NATIONAL BANK, a financial institution organized and existing under the laws of the United States (the "Bank"), and _____________ ("Officer").

WHEREAS, the Officer is presently employed by the Bank as _____________ (“Officer Title”), and the parties have previously entered into an Officer Agreement (the “Existing Agreement”) that entitles Officer to severance benefits in the event Officer’s employment is terminated under certain circumstances within a specified period prior to or following a Change in Control (as defined below); and

a. A diminution in the nature or scope of the Officer's authorities or duties, a change in his reporting responsibilities or titles or the assignment of the Officer to any duties or responsibilities that are inconsistent with his position, duties, responsibilities or status immediately preceding such assignment;

b. A reduction in the Officer's compensation during the Covered Period. For this purpose, "compensation" means the fair market value of all remuneration paid to the Officer by the Employer during the immediately preceding calendar year, including, without limitation, deferred compensation, stock options and other forms of incentive compensation awards, coverage under any employee benefit plan (such as a pension, 401(k), medical, dental, life insurance or long-term disability plan) and other perquisites;

a. Any “person”, including any “group”, determined in accordance with Section 13(d) (3) of the Securities Exchange Act of 1934, as amended, becomes the beneficial owner, directly or indirectly, of securities of the Holding Corporation representing 20% or more of the combined voting power of the Holding Corporation’s then outstanding securities, without the approval, recommendation, or support of the Board of Directors of the Holding Corporation as constituted immediately prior to such acquisition;

d. A change in the members of the Board of Directors of the Holding Corporation which results in the exclusion of a majority of the "continuing board." For this purpose, the term "continuing board" means the members of the Board of Directors of the Holding Corporation, determined as of the date on which this Agreement is executed and subsequent members of such board who are elected by or on the recommendation of a majority of such "continuing board"; or

1.4 "Covered Period" means the one-year period immediately preceding and the three-year period immediately following the occurrence of a Change in Control that qualifies as a “change in control event” as defined in §1.409A-3(i)(5) of the final regulations under Internal Revenue Code Section 409A.

1.6 "Severance Amount" means 200% of the Officer's "annual salary." For this purpose, "annual salary" means the average of all compensation paid to the Officer by the Company which is includible in the Officer's gross income for the highest 3 of the 5 calendar years immediately preceding the calendar year in which a Change in Control occurs, including the amount of any compensation which the Officer elected to defer under any plan or arrangement of the Company with respect to such years. If the Officer has been employed less than 5 years prior to the calendar year in which a Change in Control occurs, "annual salary" shall be determined by averaging the compensation (as defined in the preceding sentence) for the Officer's actual period of employment. Further, if the Officer has been employed less than 12 months prior to the occurrence of a Change in control, the actual compensation of the Officer shall be annualized for purposes of this Section 1.6. In the event of dispute between the Officer and the Company, the determination of the "annual salary" shall be made by an independent public accounting firm agreed upon by the Officer and the Company.

1.7 "Termination" or "Terminated" means (a) termination of the employment of the Officer with the Employer for any reason, other than cause, or (b) the resignation of the Officer following a Change in Duties. In no event, however, shall the Officer's voluntary separation from service with the Employer on account of death, disability, or resignation on or after the attainment of the normal retirement age specified in any qualified employee benefit plan maintained by the Employer constitute a Termination. For purposes of determining whether a Termination has occurred, "cause" means fraud, misappropriation of or intentional material damage to the property or business of the Employer or the commission of a felony by the Officer.

2.1 Severance Awards. If the Officer's employment is Terminated during the Covered Period, then no later than 30 days after the later of (a) the six-month anniversary of such Termination, or (b) the occurrence of a Change in Control that qualifies as a “change in control event” as defined in §1.409A-3(i)(5) of the final regulations under Internal Revenue Code Section 409A, the Company shall:

c. In accordance with Section 2.2 hereof, provide for the benefit of the Officer, his spouse, and his dependents, if any, coverage under the plans, policies or programs (as the same may be amended from time to time) maintained by the Company for the purpose of providing medical benefits and life insurance to other Officer's of the Company with comparable duties; provided, however, that in no event shall the coverage provided under this paragraph be substantially less than the coverage provided to the Officer as of the date immediately preceding a Termination;

d. Pay to the Officer an amount equal to the contributions by the Company to the Whitney National Bank Savings Plus 401(k) Plan or a successor arrangement, that would have been made for the lesser of (i) two years following the date of Termination, or (ii) the number of years until the Officer's normal retirement age under such plan;

e. Pay to the Officer an amount equal to the present value of the additional benefits which would have accrued under the Whitney National Bank Retirement Plan or any successors thereto, that would have been made for the lesser of (I) two years following the Date of Termination, or (ii) the number of years until the Officer's normal retirement age under such plans; and

f. Pay to the Officer the amount to which the Officer would be entitled under the Executive Incentive Compensation Plan, or a successor thereto, for the calendar year in which a Change in Control occurs, determined as if all performance goals applicable to the Company and the Officer were achieved.

g. Pay to the Officer an amount equal to the present value of any benefit accrued under either the Whitney National Bank Retirement Plan, or any successors thereto, that would have been payable under the terms of such plan, including any additional accrual provided under Section 2.1e hereto, but was forfeited on account of the application of the vesting provisions contained in such plan.

2.2 Special Rules Governing Group Benefits. Coverage under Section 2.1c, hereof, shall (a) commence as of the later of the date of Termination or the occurrence of a Change in Control, and (b) end as of the earlier of the Officer's coverage under Medicare Part B or the date on which the Officer is covered under group plans providing substantially similar benefits maintained by another employer. For this purpose, the Company shall provide coverage during any period in which the payment of benefits is limited by any form of pre-existing condition clause. The benefits provided pursuant to Section 2.1c and this Section 2.2 in any one calendar year shall not affect the amount of benefits to be provided in any other calendar year; the reimbursement of an eligible expense shall be made on or before December 31 of the year following the year in which the expense was incurred; and the Officer’s rights to coverage shall not be subject to liquidation or exchange for another benefit.

Coverage under Section 2.1c, hereof, may be provided under a group policy or program maintained by the Company or the Company, in its sole discretion, may acquire or adopt an individual plan, policy or program providing coverage solely for the benefit of the Officer, his spouse, and his dependents, if any.

If coverage commences as of a Change in Control, the Company shall (a) retroactively reinstate the Officer, his spouse, and dependents, if any, as of the date of Termination, and (b) reimburse to the Officer his cost of obtaining similar coverage for the period commencing on the date of Termination and ending on the occurrence of a Change in Control. As to medical claims incurred during such period, any coverage actually obtained by the Officer shall be designated as the Officer's primary coverage, and the reinstated coverage shall operate as secondary coverage.

2.3 Other Plans and Agreements. To the maximum extent permitted by law and not withstanding any provision to the contrary contained in any plan, grant, program, contract or other arrangement under which the Officer and the Employer are parties, if the Officer's employment is Terminated during the Covered Period, then any vesting schedule or other restriction on the ownership of any benefits payable to the Officer under the terms of any such plan, grant, contract, or arrangement shall be accelerated or lapse, as the case may be.

2.4 Taxes. The Officer shall be responsible for applicable income tax and the Company shall have the right to withhold from any payment made under this Agreement, or to collect as a condition of any payment, any income taxes required by law to be withheld.

Notwithstanding the preceding paragraph, the Company shall pay any excise tax or similar penalty imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") or any comparable successor provision, on the Officer as a consequence of any "excess parachute payment" within the meaning of Section 280G of the Code (or a comparable successor provision) payable under this Agreement or any plan, grant, program, contract or other arrangement under which the Officer and the Employer are parties.

The Officer shall submit to the Company the calculation of the amount to be paid by the Company under this Section 2.4, together with supporting documentation, and the Company shall promptly pay such amount not later than December 31 of the year after the year in which the Officer remits the tax. If the Officer and the Company disagree as to such amount, an independent public accounting firm agreed upon by the Officer and the Company shall make such determination.

3.1 Notices. Notices and other communication required under this Agreement shall be made to the Company at 228 St. Charles Avenue, New Orleans, Louisiana 70130 and to the Officer at 228 St. Charles Avenue, New Orleans, Louisiana 70130 or, as to each party, at such other address as may be designated by written notice to the other. All such notices and communications shall be effective when deposited in the United States mail, postage prepaid, or delivered to the affected party.

3.5 Payment of Expenses. In the event that it is necessary or desirable for the Officer to retain legal counsel and/or incur other cost and expenses in connection with the enforcement of the terms of the Agreement, the Company shall pay (or the Officer shall be entitled to reimbursement of) reasonable attorneys' fees, costs, and expenses actually incurred, without regard to the final outcome, unless there is no reasonable basis for the Officer's action.

3.7 Nature of Obligation. The Company intends that its obligations hereunder be construed in the nature of severance pay. The Company's obligations under Section 2 are absolute and unconditional and shall not be affected by any circumstance, including without limitation, any right of offset, counterclaim, recoupment, defense, or other right which the Company may have against the Officer or others. All amounts payable by the Company hereunder shall be paid without notice or demand.

3.9 No Effect on Other Benefits. Any other compensation paid or benefits provided to the Officer shall be in addition to and not in lieu of the benefits provided to such Officer under this Agreement. Except as may be expressly provided herein, nothing in this Agreement shall be construed as limiting, varying or reducing the provision of any benefit available to the Officer (or to such Officer's estate or other beneficiary) pursuant to any employment agreement, group plan, including any qualified pension or profit-sharing plan, health, disability or life insurance plan, or any other form of agreement or arrangement between the Company and the Officer.

3.10 Entire Agreement. This Agreement constitutes the entire agreement between the Officer and the Holding Corporation and the Bank and is intended to supersede all prior written or oral understandings with respect to the subject matter of this Agreement.

3.11 Invalidity. In the event that any one or more provisions of this Agreement shall, for any reason, be held invalid, illegal, or unenforceable in any manner, such invalidity, illegality or unenforceability shall not affect any other provision of such Agreement.

3.12 Mitigation. Notwithstanding any provision of this Agreement to the contrary and to the maximum extent permitted by law, the Officer shall not be subject to any duty to mitigate the severance awards received hereunder by seeking other employment. No severance award received under this Agreement shall be offset by any compensation the Officer receives from future employment, and the Officer shall not be required to perform any service as a condition of this Agreement.

(a) Notwithstanding anything in this Agreement to the contrary, to the extent that any amount or benefit that would constitute non-exempt “deferred compensation” for purposes of Section 409A of the Internal Revenue Code would otherwise be payable or distributable hereunder by reason of Officer’s termination of employment, such amount or benefit will not be payable or distributable to Officer by reason of such circumstance unless (i) the circumstances giving rise to such termination of employment meet any description or definition of “separation from service” in Section 409A of the Code and applicable regulations (without giving effect to any elective provisions that may be available under such definition), or (ii) the payment or distribution of such amount or benefit would be exempt from the application of Section 409A of the Code by reason of the short-term deferral exemption or otherwise. This provision does not prohibit the vesting of any amount upon a termination of employment, however defined. If this provision prevents the payment or distribution of any amount or benefit, such payment or distribution shall be made on the date, if any, on which an event occurs that constitutes a Section 409A-compliant “separation from service.”

(b) Notwithstanding anything in this Agreement to the contrary, if any amount or benefit that would constitute non-exempt “deferred compensation” for purposes of Section 409A of the Code would otherwise be payable or distributable under this Agreement by reason of Officer’s separation from service during a period in which he is a Specified Employee (as defined below), then, subject to any permissible acceleration of payment by the Company under Treas. Reg. Section 1.409A-3(j)(4)(ii) (domestic relations order), (j)(4)(iii) (conflicts of interest), or (j)(4)(vi) (payment of employment taxes):

(i) if the payment or distribution is payable in a lump sum, Officer’s right to receive payment or distribution of such non-exempt deferred compensation will be delayed until the earlier of Officer’s death or the first day of the seventh month following Officer’s separation from service; and

(ii) if the payment or distribution is payable over time, the amount of such non-exempt deferred compensation that would otherwise be payable during the six-month period immediately following Officer’s separation from service will be accumulated and Officer’s right to receive payment or distribution of such accumulated amount will be delayed until the earlier of Officer’s death or the first day of the seventh month following Officer’s separation from service, whereupon the accumulated amount will be paid or distributed to Officer and the normal payment or distribution schedule for any remaining payments or distributions will resume.