EX-10.(17) CHANGE IN CONTROL AGREEMENT



 





EXHIBIT (10)-17




AGREEMENT




     THIS
AGREEMENT (the “Agreement”) is made this 1st day of April 2002, by and among The Banc
Corporation, a Delaware corporation (the “Company”), The Bank, an Alabama banking corporation (the
“Bank”), and Chris Gossett, an individual resident of Alabama residing at 105 Autumn Place,
Birmingham, AL 35242 (the “Employee”).



RECITALS:




     WHEREAS, the Company desires to provide the Employee certain protection in the event of a
change in control of the Company on the terms and conditions hereinafter set forth;



     NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements
hereinafter set forth, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound, do hereby agree as follows:



     1. Change of Control.



     (a) If Employee’s employment with the Company shall be terminated by Employee for Good Reason
by providing a Notice of Termination to the Company, the Employee shall be entitled to the
following:



          (i) the Company shall pay the Employee in cash with fifteen days of the Termination Date an
amount equal of all Accrued Compensation and the Pro Rata Bonus;




          (ii) the Company shall pay to the Employee in cash at the end of each of the twelve
consecutive months following the Termination Date an amount equal to one-twelfth of the sum of the
Base Amount plus the Bonus Amount plus all benefits and all Director’s fees, including retainers,
to which the Employee would be entitled for the same period, or within 30 days, at the Employee’s
option, a lump sum equal to the present value of the payments due under this Section 1(a)(ii);
provided, however, that such lump sum amount shall be reduced to its net present value assuming an
interest rate equal to six percent (6%) and 12 equal monthly payments commencing on the
Termination Date;




          (iii) the restrictions on any outstanding incentive awards (including stock options) granted
to the Employee under any Company’s stock option plan, Company stock option plan, or under any
other incentive or deferred compensation plan or arrangement shall lapse and such incentive or
deferred compensation award shall become 100% vested, all stock options and stock appreciation
rights granted to the Employee shall be immediately exercisable and shall be 100% vested. The
period in which Employee may exercise any option granted shall be the full term of such option.




     (b) The Employee shall not be required to mitigate the amount of any payment provided for in
this Agreement by seeking other employment or otherwise, and no such payment shall be offset or
reduced by the amount of any compensation or benefits provided to the Employee in any subsequent
employment.



 









 





     (c) The severance pay and benefits provided for in this Section 1 shall be in lieu of any
other severance or termination pay to which the Employee may be entitled under any Company
severance or termination plan, program, practice or arrangement. The Employee’s entitlement to any
other compensation or benefits shall be determined in accordance with the Company’s employee
benefit plans and other applicable programs, policies and practices then in effect.



     2. Trade Secrets. The Employee shall not, at any time, either during the term of his
employment or after the Termination Date, use or disclose any Trade Secrets of the Company, except
in fulfillment of his duties as the Employee during his employment, for so long as the pertinent
information or data remain Trade Secrets, whether or not the Trade Secrets are in written or
tangible form.



     3. Successors: Binding Agreement. 



     (a) This Agreement shall be binding upon and shall inure to the benefit of the Company, its
Successor and Assigns and the Company shall require any Successors and Assigns to expressly assume
and agree to perform this Agreement in the same manner and to the same extent that the Company
would be required to perform it if no such succession or assignment had taken place.



     (b) Neither this Agreement nor any right or interest hereunder shall be assignable or
transferable by the Employee, his beneficiaries or legal representatives, except by will or by the
laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable
by the Employee’s legal personal representative.



     4. Notice. For the purposes of this Agreement, notices and all other communications
provided for in the Agreement (including the Notice of Termination) shall be in writing and shall
be deemed to have been duly given when personally delivered or sent by certified mail, return
receipt requested, postage prepaid, addressed to the respective addresses last given by each party
to the other, provided that all notices to the Company shall be directed to the attention of the
Board of Directors with a copy to the Secretary of the Company. All notices and communications
shall be deemed to have been received on the date of delivery thereof.



     5. Settlement
of Claims. The Company’s obligation to make the payments provided for
in this Agreement and to otherwise perform its obligations hereunder shall not be affected by any
circumstances, including, without limitation, any set-off, counterclaim, recoupment, defense or
other right which the Company may have against the Employee or others. The Company may, however,
withhold from any benefits payable under this Agreement all federal, state, city or other taxes as
shall be required pursuant to any law or governmental regulation or ruling.



     6. Modification and Waiver. No provisions of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in writing and signed by
the Employee and the Company. No waiver by any party hereto at any time of any breach by the other
party hereto of, or compliance with, any condition or provision of this



 









 







Agreement to be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent time.



     7. Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Alabama without giving effect to the conflict of laws
principles thereof. Any action brought by any party to this Agreement shall be brought and
maintained in a court of competent jurisdiction in the State of Alabama.



     8. Severability. The provisions of this Agreement shall be deemed severable, and the
invalidity or unenforceability of any provision shall not affect the validity or enforceability of
the other provisions hereof.



     9. Entire Agreement. This Agreement constitutes the entire agreement between the
parties hereto and supersedes all prior agreements, if any, understandings and arrangements, oral
or written, between the parties hereto with respect to the subject matter hereof.



     10. Headings. The headings of Sections herein are included solely for convenience of
reference and shall not control the meaning or interpretation of any of the provisions of this
Agreement.



     11. Counterparts.
This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original but all of which together shall constitute one and the same
instrument.



     12. Definitions. For purposes of this Agreement, the following terms shall have the
following meanings:



     (a) “Accrued Compensation” shall mean an amount which shall include all amounts earned or
accrued through the Termination Date but not paid as of the Termination Date including without
limitation, (i) base salary and (ii) reimbursement for reasonable and necessary expenses incurred
by the Employee on behalf of the Company during the period ending on the Termination Date.



     (b) “Base Amount” shall mean the greater of the Executive’s annual base salary (i) at the rate
in effect on the Termination Date or (ii) at the highest rate in effect at any time during the
ninety day period prior to the Change in Control, and shall include all amounts of his base salary
that are deferred under the qualified and non-qualified employee benefit plans of the Company or
any other agreement or arrangement.



     (c) “Bonus Amount” shall mean the greater of (i) the most recent annual bonus paid or payable
to the Executive, or, if greater, the annual bonus paid or payable for the year ended prior to the
fiscal year during which a Change in Control occurred, or (ii) the average of the annual bonuses
paid or payable during the three full fiscal years ended prior to the Termination Date or, if
greater, the three full fiscal years ended prior to the Change in Control (or, in each case, such
lesser period for which annual bonuses were paid or payable to the Executive).



 









 





     (d) A “Change in Control” shall mean the occurrence during the term of this agreement of any
of the following events:



          (i) An acquisition (other than directly from the Company) of any voting securities of the
Company (the “Voting Securities”) by any “Person” (as the term person is used for purposes of
Section 13(d) or 14(d) of the Securities Exchange Act of 1934 (the “1934 Act”) immediately after
which such Person has “Beneficial Ownership” (within the meaning of Rule 13d-3 promulgated under
the 1934 Act) of 20% or more of the combined voting power of the Company’s then outstanding Voting
Securities; provided, however, that in determining whether a Change in Control has
occurred, Voting Securities which are acquired in a “Non-Control Acquisition” (as hereinafter
defined) shall not constitute an acquisition which would cause a Change in Control. A “Non-Control
Acquisition” shall mean an acquisition by (A) an employee benefit plan (or a trust forming a part
thereof) maintained by (x) the Company or (y) any corporation or other Person of which a majority
of its voting power or its equity securities or equity interest is owned directly or indirectly by
the Company (a “Subsidiary”), (B) the Company or any 80% owned subsidiary, or (C) any Person in
connection with a “Non-Control Transaction” (as hereinafter defined).




          (ii) The individuals who, as of the date of this Agreement, are members of the Board (the
“Incumbent Board”) cease for any reason to constitute at least two-thirds of the Board;
provided, however, that if the election, or nomination for election by the
Company’s stockholders, of any new director was approved by a vote of at least two-thirds of the
Incumbent Board, such new director shall, for purposes of this Agreement, be considered as a
member of the Incumbent Board; provided, further, that no individual shall be
considered a member of the Incumbent Board if such individual initially assumed office as a result
of either an actual or threatened “Election Contest” (as described in Rule 14a-11 promulgated
under the 1934 Act) or other actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board (a “Proxy Contest”) including by reason of any agreement
intended to avoid or settle any Election Contest or Proxy Contest; or




          (iii) Approval by stockholders of the Company of:




               a) A merger, consolidation or reorganization involving the Company, unless



                    (1) the stockholders of the Company, immediately before such merger, consolidation or
reorganization, own, directly or indirectly, immediately following such merger, consolidation or
reorganization, at least two-thirds of the combined voting power of the outstanding voting
securities of the corporation resulting from such merger or consolidation or reorganization (the
“Surviving Corporation”) in substantially the same proportion as their ownership of the Voting
Securities immediately before such merger, consolidated or reorganization, and



 









 





                    (2) the individuals who were members of the Incumbent Board immediately prior to the execution
of the agreement providing for such merger, consolidation or reorganization constitute at least
two-thirds of the members of the board of directors of the Surviving Corporation.




(A transaction described in the immediately preceding clauses (1) and (2)
shall herein be referred to as a “Non-Control Transaction. “)



                    (3) A complete liquidation or dissolution of the Company; or



                    (4) An agreement for the sale or other disposition of all or substantially all of the assets
of the Company to any Person.



          (iv) Notwithstanding anything contained in this Agreement to the contrary, if the Employee’s
employment is terminated prior to a Change in Control and the Employee reasonably demonstrates
that such termination (A) was at the request of a third party who has indicated an intention or
taken steps reasonably calculated to effect a Change in Control and who effectuates a Change in
Control (a “Third Party”) or (B) otherwise occurred in connection with, or in anticipation of, a
Change in Control which actually occurs, then for all purposes of this Agreement, the date of a
Change in Control with respect to the Employee shall mean the date immediately prior to the date
of such termination of the Employee’s employment.




     (e) “Good Reason” shall mean the occurrence within one year after a Change in Control of any
of the events or conditions described in subsections (i) through (vii) hereof:



          (i) a change in the Employee’s status, title, position or responsibilities (including
reporting responsibilities) which, in the Employee’s reasonable judgment, represents an adverse
change from his status, office, title, position or responsibilities as in effect at any time
within 90 days preceding the date of a Change in Control or at any time thereafter; the assignment
to the Employee of any duties or responsibilities which, in the Employee’s reasonable judgment,
are inconsistent with his status, office, title, position or responsibilities as in effect at any
time within 90 days preceding the date of a Change in Control or at any time thereafter; any
removal of the Employee from, or failure to reappoint or reelect him to, any such status, office,
title, position or responsibility, or any other change in condition or circumstances that in the
Employee’s reasonable judgment makes it materially more difficult for the Employee to carry out
the duties and responsibilities of his office that existed at any time within 90 days preceding
the date of a Change in Control or at any time thereafter;




          (ii) a reduction in the Employee’s base salary or any failure to pay the Employee any
compensation or benefits to which he is entitled within five days of the date due;




          (iii) Employer requiring the Employee to be based at any place outside a 30-mile radius from
the executive offices occupied by the Employee immediately prior to a Change in Control, except
for reasonably required travel on Employer’s business which is not materially greater than such
travel requirements prior to the Change in Control;




 









 








          (iv) the failure by the Company to (A) continue in effect (without reduction in benefit level
and/or reward opportunities) any material compensation or employee benefit plan in which the
Employee was participating at any time within ninety days preceding the date of a Change in
Control or at any time thereafter, unless such plan is replaced with a plan that provides
substantially equivalent compensation or benefits to the Employee or (B) provide the Employee with
compensation and benefits, in the aggregate, at least equal (in terms of benefit levels and/or
reward opportunities) to those provided for under each other employee benefit plan, program and
practice in which the Employee was participating at any time within 90 days preceding the date of
a Change in Control or at ay time thereafter;




          (v) the insolvency, or the filing by any person or entity, including the Company, of a
petition for bankruptcy of the Company, or other relief under any other moratorium or similar law,
which petition is not dismissed within 60 days;




          (vi) any material breach by Employer of this Agreement;




          (vii) any purported termination of the Employee’s employment for Cause by Employer which does
not comply with the terms of this Agreement; or



Any event or condition described in clause (i) through (vii) above which occurs prior to a Change
in Control but which the Employee reasonably demonstrates (A) was at the request of a Third Party,
or (B) otherwise arose in connection with, or in anticipation of, a Change in Control which
actually occurs, shall constitute Good Reason for purposes of this Agreement, notwithstanding that
it occurred prior to the Change in Control. The Employee’s right to terminate his employment for
Good Reason shall not be affected by his incapacity due to physical or mental illness.




     (f) “Notice of Termination” shall mean a written notice of termination from the Employee which
specifies an effective date of termination, indicates the specific termination provision in this
Agreement relied upon, and sets forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Employee’s employment under the provision of indicated.



     (g) “Successors and Assigns” shall mean a person, corporation or other entity acquiring all or
substantially all the assets and business of the Company (including this Agreement), whether by
operation of law or otherwise.



     (h) “Termination Date” shall mean the date specified in the Notice of Termination.



     (i) “Trade Secrets” shall mean any information, including but not limited to technical or
non-technical data, a formula, a pattern, a compilation, a program, a device, a method, a
technique, a drawing, a process, financial data, financial plans, product plans, information on
customers, or a list of actual or potential customers or suppliers, which: (i) derives economic
value, actual or potential, from not being generally known to, and not being readily ascertainable



 









 







by proper means by, other persons who can obtain economic value from its disclosure or use,
and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its
secrecy.



[Remainder of Page Intentionally Left Blank]




 









 








     IN WITNESS WHEREOF, the Company has caused this Agreement to he executed and its seal to be
affixed hereunto by its officers thereunto duly authorized, and the Employee has signed and sealed
this Agreement, effective as of the date first above written.



	 	 	 	 	 
	 	THE BANC CORPORATION

 	 
	 	By:  	/s/ James A. Taylor, Jr.
 	 
	 	 	Its:                President 	 
	 	 	 	 
	 
	 	THE BANK

 	 
	 	By:  	/s/ David R. Carter
 	 
	 	 	Its: EVP/CFO 	 
	 	 	 	 
	 
	 	EMPLOYEE:

 	 
	 	/s/ Chris Gossett