EXHIBIT 10.5
AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT, dated as of the 22nd day of January, 2004, by and
between Regions Financial Corporation, a Delaware corporation ("Regions"), and
Union Planters Corporation, a Tennessee corporation ("Union Planters") and
Xxxxxxx X. Xxxxx ("Officer"), amends the Employment Agreement between Officer
and Union Planters Amended and Restated as of April 17, 1997, and as amended as
of September 26, 2000 (the "Employment Agreement"). Prior to the Effective Date,
Union Planters and Regions shall cause Newco (as defined in the Merger
Agreement) (the "Company") to become a party hereto for all purposes hereof by
executing and delivering a supplement hereto.
The parties hereto have determined that it is in the best interests of
the Company, Regions, Union Planters and their shareholders to assure that the
Company and Union Planters will have the continued dedication of Officer pending
and following the transactions (collectively, the "Merger") contemplated by the
Agreement and Plan of Merger, dated as of January 22, 2004, between the Company,
Regions and Union Planters (the "Merger Agreement"). Therefore, in order to
accomplish these objectives, Officer, Union Planters and Regions desire to enter
into this Amendment which will amend the terms of the Employment Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Effective Date. The parties hereto agree that the effective date
of this Amendment (which shall be defined as the "Effective Date" under the
Employment Agreement) shall mean the date on which the "Effective Time" (as
defined in the Merger Agreement) occurs. In the event that the Effective Time
shall not occur for any reason, this Amendment shall be null and void ab initio
and shall be of no force and effect.
2. Change in Control. The parties hereto agree and acknowledge
that, solely for purposes of the Employment Agreement, and except as otherwise
specifically set forth in this Amendment, a "Change in Control" as defined in
Section 1.2(b) of the Employment Agreement shall be deemed not to have occurred
as a result of the Merger (the parties hereto agree that this shall have no
effect on any other plans and agreements of Union Planters, and/or on the stock
options, restricted stock and other equity holdings of Officer, pursuant to
which a change in control as defined under the relevant plans and agreements
will have occurred as of the Effective Date).
3. Immediate Effectiveness of 280G Gross-Up Provisions.
Notwithstanding Section 2 of this Amendment, and in recognition that a change in
the ownership or effective control of Union Planters as defined in Section 280G
of the Internal Revenue Code of 1986, as amended, is presently contemplated by
reason of the Merger, the provisions of Sections 1.2(f) and 1.2(g) of the
Employment Agreement will be immediately applicable to Officer as of the
Effective Date.
4. Parties. References to "Union Planters" shall be substituted
with "the Company" as defined in the introductory paragraph of this Amendment,
throughout the Employment Agreement.
5. Position and Duties. Sections 2.1 and 2.2 of the Employment
Agreement are hereby deleted, and shall be replaced with the following:
"2.1 General Duties. Officer's employment under this Agreement after
the Effective Date shall be divided into three periods, the "Initial
Period," the "Second Period" and the "Third Period." The Initial Period
shall commence on the Effective Date and end on the date on which the
Chief Executive Officer of the Company as of the Effective Date (the
"Initial CEO") ceases for any reason to serve as Chief Executive
Officer of the Company, but in no event later than June 30, 2005. The
Second Period shall begin at the end of the Initial Period and end on
the date on which the Chairman of the Board of Directors as of the end
of the Initial Period ceases for any reason to serve as Chairman of the
Board of Directors, but in no event later than June 30, 2006. The Third
Period shall begin at the end of the Second Period. During the Initial
Period, Officer shall serve as the President of the Company; during the
Second Period, Officer shall serve as the Chief Executive Officer and
President of the Company; and during the Third Period, Officer shall
serve as the Chairman of the Board of Directors, and Chief Executive
Officer of the Company, in each case, with such duties and
responsibilities as are customary with respect to such positions.
During the Initial Period, Officer shall report directly to the Initial
CEO. The Board of Directors shall appoint Officer to the positions
specified above at the times specified above. Officer shall be
appointed to the Board of Directors and shall serve on the Board of
Directors throughout the period of Officer's employment with the
Company, subject to election by the shareholders of the Company,
without additional consideration."
"2.2 Extent of Services. During Officer's employment under this
Agreement, and excluding any periods of vacation and sick leave to
which Officer is entitled, Officer agrees to devote substantially all
of his business attention and time to the business and affairs of the
Company and, to the extent necessary to discharge the responsibilities
assigned to Officer hereunder, to use Officer's reasonable best efforts
to perform faithfully and efficiently such responsibilities. The
Company recognizes that Officer serves on several civic and corporate
boards and that such service, as well as the management of Officer's
personal investments, does not conflict with the duties outlined
above."
6. Location of Services. The first sentence of Section 2.4 of the
Employment Agreement is hereby deleted, and shall be replaced with the
following:
"The duties of Officer under this Agreement shall be required to be
performed in the reasonable vicinity of either Memphis, Tennessee or
Birmingham, Alabama."
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7. Level of Benefits After the Effective Date. There shall be added
a new Section 3.8 to the Employment Agreement, as follows:
"3.8 Level of Benefits After the Effective Date. Without limiting any
other provision of this Agreement, after the Effective Date, Officer
and/or Officer's family, as the case may be, shall be eligible for
participation in, and shall receive, pension and welfare benefits
(including without limitation supplemental and deferred benefits), and
fringe benefits and perquisites and all other benefits, on a basis, at
a level and in an amount that, on a benefit-for-benefit basis, is no
less favorable than the pension and welfare (including supplemental and
deferred benefits), and fringe, perquisite and other benefits that were
provided or made available to Officer and/or Officer's family on
January 22, 2004, whether pursuant to this Agreement or otherwise. For
purposes of all benefit plans, programs and policies of the Company,
all service credited to Officer by Union Planters up to the Effective
Date shall be credited by the Company for purposes of each such
corresponding plan, program and policy, provided, however, that such
credit shall not result in a duplication of benefits with respect to
the same period of service."
8. Right to Payments and Benefits Under Section 1.2(c) under
Certain Circumstances. There shall be added to the end of Section 1.2(c) of the
Employment Agreement a new paragraph, as follows:
"After the Effective Date, this Section 1.2(c) shall apply to
Officer, and Officer shall become entitled to receive payments and
benefits hereunder, only in the following circumstances: (i) if there
occurs a Change in Control of the Company other than the Merger, or
(ii) if, other than as a result of termination of Officer's employment
by the Company for Cause as defined under Section 4.1 or due to
Officer's death or Disability as defined under Section 4.2(c) or
Officer's termination of his employment as contemplated by Section 4.4,
(A) the Company fails to appoint Officer to the position of Chief
Executive Officer of the Company upon the expiration of the Initial
Period, (B) the Company removes Officer from the position of Chief
Executive Officer before commencement of the Third Period, or (C)
Officer fails to become the Chairman of the Board of Directors and
Chief Executive Officer upon the expiration of the Second Period (with
respect to clause (ii) hereof, the date of the "Change in Control"
hereunder shall be deemed to be the date Officer receives notice of
either such failure or removal)."
9. Treatment of Termination Without Cause or Removal. There shall
be added to the end of Section 1.2(d) of the Employment Agreement a new
sentence, as follows:
"The parties hereto acknowledge and agree that any termination by the
Company of Officer's employment hereunder, and/or any removal by the
Company of Officer from the position of Chief Executive Officer of the
Company after commencement of the Third Period (in each case, other
than as a result of termination of Officer's employment by the Company
for Cause, Officer's death or Disability or Officer's termination of
his employment as contemplated by
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Section 4.4), shall be deemed to be an immediate election by the
Company not to extend Officer's employment hereunder pursuant to this
Section 1.2(d) and, in the case of any such termination shall be deemed
an immediate election by Officer, and in the case of such removal,
shall, at the sole option of Officer, be deemed an immediate election
by Officer, to terminate this Agreement and receive the payments and
benefits provided for in this Section 1.2(d), in each case as of the
date Officer receives notice of either such termination or removal (for
purposes of clarity, this sentence shall have no impact on the ability
of Officer (or his estate or beneficiaries, as the case may be) to
receive the payments and benefits set forth in Section 4.2(c) in the
event of Officer's death or Disability)."
10. Notices. All notices and other communications to the Company
pursuant to Section 8.9 of the Employment Agreement shall be addressed as
provided in Section 8.8 of the Merger Agreement, provided that any notices to
Executive shall be follows:
Xxxxxxx X. Xxxxx
c/o Union Planters Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
or such other address as Executive shall provide to
Union Planters, Regions or the Company.
* * * * * * * *
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The terms of the Employment Agreement not hereby amended shall be and
remain in full force and effect, and are not affected by this Amendment.
IN WITNESS WHEREOF, Officer has hereunto set Officer's hand and,
pursuant to the due authorization, the Company and Union Planters have caused
these presents to be executed in their respective names on their behalf, all as
of the day and year first above written.
XXXXXXX X. XXXXX
/s/ Xxxxxxx X. Xxxxx
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UNION PLANTERS CORPORATION
By /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
REGIONS FINANCIAL CORPORATION
By /s/ Xxxx X. Xxxxx, Xx.
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Name: Xxxx X. Xxxxx, Xx.
Title: Chief Executive Officer
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