EXHIBIT 10.11
FIRST AMENDMENT TO
AGREEMENT RESPECTING EMPLOYMENT
THIS FIRST AMENDMENT TO AGREEMENT RESPECTING EMPLOYMENT ("First
Amendment"), dated as of the 27th of July 1998, is made and entered into by and
between National Bank of Commerce, a national banking association (the
"Company"), National Commerce Bancorporation, a Tennessee corporation ("NCBC"),
and Xxxxxx X. Xxxxx ("Employee") and amends certain provisions of the Agreement
Respecting Employment by and between the Company, NCBC and Employee, dated as of
January 1, 1992 (the "Agreement").
WHEREAS, the Company, NCBC and Employee have determined that it is in the
best interests of the parties to the Agreement to amend the Agreement to modify
certain provisions.
NOW, THEREFORE, the parties hereto agree as follows:
I . Section 3(C) of the Agreement is hereby amended by adding the
following sentence to the end of such Section:
For purposes of this Section 3(C), payments from NCBC or any affiliate or
successor of the Company or NCBC shall be treated as payments from the Company.
2. Section 3(D)(iii) of the Agreement is hereby amended by adding the
following provisions to the end of such Section:
(c) If Employee gives the Notice of Exercise, in addition to the lump sum
payment under paragraph (a) above, the Company shall pay to Employee in a lump
sum in cash within five (5) business days after the delivery of the Notice of
Exercise the aggregate of the following amounts:
(1) the sum of (A) Employee's Base Salary through the date of the Notice of
Exercise, (B) the product of (x) the highest annual bonus paid or payable,
including any bonus or portion, thereof which has been earned but deferred,
during the three year period immediately prior to the date of the Notice of
Exercise (such amount being referred to as the"Highest Annual Bonus") and (y) a
fraction, the numerator of which is the number of days in the current fiscal
year through the date of the Notice of Exercise, and the denominator of which is
365 and (C) any accrued vacation pay, in each case to the extent not theretofore
paid; and
(2) the amount equal to the excess (without any present value discount) of
(A) the actuarial equivalent of the benefit under the company=s qualified
defined benefit retirement plan (the "Retirement Plan") (utilizing actuarial
assumptions no less favorable to Employee than those in effect under the
Company's Retirement Plan immediately prior to the Change of Control), and the
National Bank of Commerce Supplemental Employee Retirement Plans Amended and
Restated (the "SERP") which Employee would receive if Employee's employment
continued for three years after the date of the Notice of Exercise assuming for
this purpose that all accrued benefits are fully vested, and, assuming that
Employee's compensation in each of the three years is Employee's highest Base
Salary during the three year period immediately preceding the date of the Notice
of Exercise and the Highest Annual Bonus, over (B) the actuarial equivalent of
Employee's actual benefit (paid or payable), if any, under the Retirement Plan
and the SERP as of the date of the Notice of Exercise;
(d) If Employee gives the Notice of Exercise, for three years after the
date of the Notice of Exercise, or such longer period as may be provided by the
terms of the appropriate plan, program, practice or policy, the Company shall
continue to provide welfare benefits (including, without limitation, medical,
prescription, dental, disability, employee life, group life, accidental death
and travel accident insurance plans and programs) to Employee and/or Employee's
eligible dependents at least equal to those provided to Employee at any time
during the 120-day period immediately preceding the Change in Control or, if
more favorable to Employee, those provided generally at any time after the
Change in Control to other peer executives of the Company and its affiliated
companies; provided, however, that if Employee becomes reemployed with another
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employer and is eligible to receive medical or other welfare benefits under
another employer provided plan, the medical and other welfare benefits described
herein shall be secondary to those provided under such other plan during such
applicable period of eligibility. For purposes of
determining eligibility (but not the time of commencement of benefits) of
Employee for retiree benefits pursuant to such plans, practices, programs and
policies, Employee shall be considered to have remained employed until three
years after the date of the Notice of Exercise and to have retired on the last
day of such period;
3. Except as expressly modified hereby, the terms and provisions of
the Employment Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be duly executed and delivered as of the date first above written.
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Xxxxxx X. Xxxxx
NATIONAL BANK OF COMMERCE
By:
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NATIONAL COMMERCE BANCORPORATION
By:
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