EXHIBIT 10.12
FIRST AMENDMENT TO
AGREEMENT RESPECTING EMPLOYMENT
THIS FIRST AMENDMENT TO AGREEMENT RESPECTING EMPLOYMENT ("First
Amendment"), dated as of the 27th day 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 (the
"NCBC"), and Xxxxx X. Xxxxxxx ("Employee") and amends certain provisions of the
Agreement Respecting Employment by and between the Company, NCBC and Employee,
dated as of July 1, 1994 (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:
1. 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 of the Agreement is hereby amended by relettering
paragraph (D) as (E) and by adding a new paragraph (D) to read in its entirety
as follows:
D. (i) Change in Control - Operation of Section 3(D).
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(a) This Section 3(D) shall be effective, but not operative,
immediately upon execution of the First Amendment to this Agreement by the
parties hereto and shall remain in effect so long as Employee remains employed
by the Company on active status or part-time status, but shall not be operative
unless and until there has been a Change in Control, as defined in subsection
(i)(b) hereof. Upon such a Change in Control, this Section 3(D) shall become
operative immediately.
(b) "Change in Control" shall mean a change in control of
the Company of the Company that shall be deemed to have occurred if
any and when, with or without the approval of the Board of Directors
of the Company incumbent prior to the occurrence,
(1) more than 25% of the outstanding securities entitled
to vote in elections of directors of the Company or of any company which
owns 25% of the voting stock of the Company ("Company's Parent") shall be
acquired by any person (as such term is used in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934, as amended) other than by any
person which includes Employee; or
2) as the result of a tender offer, merger,
consolidation, sale of assets or contested election, or any
combination of such transactions, the persons who were
directors of the Company or Company's Parent immediately before
the transaction shall cease to constitute a majority of the
Board of Directors of the Company, Company's Parent or of any
successor to either.
(ii) Employee's Rights Upon Change in Control. If a Change in
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Control (as defined in subsection (b) of Section 3(D)(i)) occurs, while
Employee is employed on active status by the Company, Employee may, in
his sole discretion, within eighteen (1 8) months after the date of the
Change in Control, give notice to the Secretary of the Company that he
intends to elect to exercise his rights under this Section 3(D) (the
"Notice of Intention"). If a Change in Control occurs within twelve (12)
months after Employee has been placed on part-time status pursuant to
either Section 4(C)(i) or Section 4(F), Employee may, in his sole
discretion, within twelve (12) months after the date of the Change in
Control, give notice to the Secretary of the Company that he intends to
exercise his rights under
this Section 3(D) (the "Notice of Intention"). The right to give such
Notice of Intention to elect to receive the payment provided for in
subsection (iii) of this Section 3(D) shall continue for eighteen (I 8)
months or twelve (12) months, respectively, from the date of the Change
in Control irrespective of any action by the Company pursuant to Section
4(A) (iii) or Section 4(F) within such eighteen (18)or twelve (12) month
period. Within thirty (30) days after the Company's receipt of the Notice
of Intention, the Company shall provide written notice to Employee
setting forth the Company's computation of the amount that would be
payable pursuant to subsection (iii) of this Section 3(D), accompanied by
the written opinion of the Company's independent certified public
accountants confirming the Company's computation. If Employee takes
exception to the Company's computation of such amount, Employee may (but
shall not be prejudiced in his right to later contest the amount actually
paid by failure to do so) give a further written notice to the Company
setting forth in reasonable detail Employee's exceptions to the Company's
computation, accompanied by the written opinion of Employee's tax advisor
confirming the basis for such exceptions. Exercise by Employee of his
rights pursuant to this Section 3(D) shall only be made by giving further
notice to the Secretary of the Company (the "Notice of Exercise") within
six (6) months from the date of the Notice of Intention.
(iii) Payment Upon Change in Control.
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(a) If Employee gives the Notice of Exercise described in
subsection (ii) of this Section 3(D) to the Company, the Company shall
pay employee a lump sum amount equal to three (3) times Employee's base
amount (as defined by Section 280C, of the Internal Revenue Code of 1986,
as amended the "Code"), less one dollar ($1.00 ). The Company shall,
within five (5) business days after the date of the Notice of Exercise,
deliver to Employee its cashier's check in the amount payable pursuant to
this subsection (iii)(a) of Section 3(D), and payment of such amount
shall terminate Employee's right to receive any and all other payments,
rights or benefits pursuant to Sections 3(A), 3(B), 4 and 5 of this
Agreement, other than any pavements, rights or benefits arising (x)
pursuant to Section 3(C), subsection (iii) of Section 3(D), Section 3(E)
or Section 12 of this Agreement, or (y) from any other agreement, plan or
policy which by its terms or by operation of law provides for the
continuation of such payments, rights or benefits after the termination
of Employee's relationship with the Company.
(b) Such lump sum payment shall be in addition to and shall not
be offset or reduced by any other amounts payable or that may become
payable to Employee, or his beneficiaries, by the Company, including, but
not limited to, salary, severance pay, consulting fees, disability
benefits, termination benefits, retirement benefits, life and health
insurance benefits, or any other compensation or benefit payment that is
part of any valid previous, current, or future contract, plan or
agreement, written or oral, or any indemnification payments that may be
or become payable to Employee pursuant to the provisions of the Company's
Certificate of Incorporation, By-laws or otherwise.
(c) 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 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 in Control), and the National Bank of Commerce
Supplemental Employee Retirement Plan as 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 the 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 Employee's Date of Termination, 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
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becomes reemployed with another 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
Notice of Exercise and to have retired on the last day of such period.
In addition to, and not in limitation of, the benefits provided by the
foregoing, after termination of Employee's employment with the Company,
the Company shall at least provide medical and dental insurance coverage
for Employee and his spouse for their lifetimes that is comparable to the
medical and dental insurance coverage provided by the Company to its
principal executive officers as of July l, 1994, and the Company shall be
entitled to credits for coverage to Employee and his spouse provided by
Medicare.
(e) If, within eighteen (18) months following a Change in Control
which occurs while Employee is employed on active status by the Company,
the Company shall terminate Employee's employment other than for cause
(as defined in Section 4(A)(i) hereof) or Employee's disability, or
Employee shall terminate for good reason (as defined below), Employee
shall be entitled to receive the payments and benefits under Section
3(D)(iii)(a), 3(D)(iii)(c)(1), and 3(D)(iii)(d) and Employee shall remain
entitled to receive the pension benefit set forth in Section 4(D)(vi).
If Employee wishes to commence receiving such pension benefit prior to
age 65 (in a lump sum or otherwise) Employee will be treated as having
three (3) additional years of age and service credit and such payments
shall be the actuarial equivalent (using assumptions no less favorable to
Employee than those in effect under the Company's Retirement Plan as of
the Change in Control) of the benefits set forth in Section 4(D)(vi).
For purposes of this Section 3(D)(i)(e), "good reason" shall mean the
occurrence of any of the following events, without Employee's express
written consent: (1) the scope of the duties, and authority assignment
to Employee immediately prior to the Change in Control is significantly
diminished (without Employee's express written consent) whether or not
for cause (other than as defined in Section 4(A)(i)); or (2) a reduction
;in Employee's Base Salary. Notwithstanding the foregoing, any violation
of clause (1) above solely attributable to the fact that NCBC may no
longer be a public company or may become a subsidiary, or any transfer of
the Employee to a substantially similar position with a substantially
similar title, level of duties and responsibilities to those assigned to
Employee immediately prior to the
Change in Control shall not constitute good reason.
3. Except as expressly modified hereby, the terms and provisions of
the 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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Xxxxx X. Xxxxxxx
NATIONAL BANK OF COMMERCE
By:
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NATIONAL COMMERCE BANCORPORATION
By:
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