AMENDMENT TO LIMITED CONFIDENTIALITY AND NON-COMPETE AGREEMENT
Exhibit
10.7(k2)
AMENDMENT
TO LIMITED CONFIDENTIALITY AND
NON-COMPETE
AGREEMENT
THIS
AMENDMENT is dated as of the _____ day of ___________, 200__, by and
between First Horizon National Corporation and FTN
Financial (collectively the “Company”) and Xxx X.
Xxxxxx (“Xxxxxx”).
WHEREAS,
the parties hereto entered into a Limited Confidentiality and Non-Compete
Agreement dated October 19, 2006 (the “Agreement”); and
WHEREAS,
the parties desire to make certain technical changes to the Agreement in
order
for the Agreement to be fully compliant with Section 409A of the Internal
Revenue Code.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein contained, and other good and valuable consideration,
the
receipt and sufficiency of which are hereby expressly acknowledged, the parties
agree as follows:
1. Paragraph
I of the Agreement is hereby amended to delete the first sentence of such
paragraph in its entirety and to substitute in lieu thereof the
following:
Beginning
January 1, 2007, and for a period of up to five (5) years thereafter, at
Xxxxxx’x sole option, the Company will provide office space, and an
administrative assistant paid by the Company, equipment, and supplies for
Xxxxxx
in an amount not in excess of $100,000 for each year of the five (5) year
period
in the event that Xxxxxx opts to utilize the office and services for the
full
five (5) year period.
2. While
it is intended that the benefits conferred under the Agreement and this
Amendment shall be provided in-kind, Xxxxxx shall not be barred from seeking
reimbursement of any amounts paid by him with respect to covered benefits
not in
excess of the foregoing annual limitation, provided that a properly documented
claim for reimbursement is made on or before September 30 of the year following
the year in which right to reimbursement first arose. The Company
shall pay all valid claims within thirty (30) days of submission.
3. Notwithstanding
any provision of the Agreement or this Amendment to the contrary, the right
to
in-kind benefits and/or reimbursement with respect to covered benefits is
not
subject (i) to liquidation for cash, (ii) to exchange for any other benefit
or
(iii) to acceleration, deferral or other change in the timing of the year
in
which such benefits must be consumed or forfeited.
4. The
foregoing provisions of this Amendment are intended to cause the Agreement
as
amended to conform with the requirements of Section 409A, including the
regulations thereunder and in particular Treasury Regulations §1.409A-1(b)(9)(v)
and/or §1.409A-3(i)(1)(iv)(A), and the provisions of this Amendment shall be
construed in accordance with that intention. If any provision of this
Amendment shall be inconsistent or in conflict with the applicable requirements
for Section 409A, then such requirements shall be deemed to override and
supersede the inconsistent or conflicting provision. Any provision
required for compliance with Section 409A that is omitted from this Amendment
shall be incorporated herein by reference and shall apply retroactively,
if
necessary, and be deemed a part of this Amendment to the same extent as though
expressly set forth herein.
5. This
Amendment shall take effect as of January 1, 2008.
6. Except
as expressly amended hereby, the Agreement shall remain in full force and
effect.
IN
WITNESS WHEREOF, the parties have executed this Amendment as of the day
and year first above written.
FIRST
HORIZON
NATIONAL CORPORATION
By:
Title:
FTN
FINANCIAL
By:
Title:
Xxx
Xxxxxx
