EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") entered into as of the 1st day of November
2001, (the "Effective Date") by and between NATIONAL COMMERCE FINANCIAL
CORPORATION, a Tennessee corporation (the "Company"), and XXXXXX X. XXXXXXXX
("Employee").
R E C I T A L S:
WHEREAS, the Board of Directors of the Company has determined that it is in
the best interests of the Company's shareholders to encourage the continued
executive leadership of the Employee; and
WHEREAS, the Board of Directors has determined that it is in the best
interests of the shareholders to bring the contractual employment arrangements
of the Employee and the Chairman of the Board of Directors into greater
conformity; and
WHEREAS, the employee is willing for his current employment agreements with
the Company to terminate simultaneously with the commencement of the term of
this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the mutual provisions
contained herein, and for other good and valuable consideration, the parties
agree to enter into this Agreement and to agree with each other as follows:
1. EMPLOYMENT
A. Position and Duties. While employed by the Company on active
-------------------
status, the Employee shall serve as President and Chief Executive Officer of the
Company, with the authority, duties and responsibilities commensurate with such
positions. While employed by the Company on active or part-time status,
Employee shall serve as a member of the Board of Directors and until such time
as the Employee retires from service on the Board of Directors, the Employee
shall serve as a member of the Executive Committee of the Board of Directors.
While employed by the Company on active status, the Employee's services shall be
performed in Memphis, Tennessee.
B. The Employee shall not, during the term of his employment under
this Agreement, be engaged in any other activities if such activities interfere
materially with the Employee's performance of his current duties and
responsibilities for the Company, except for such
1
other activities as shall hereafter be carried on with the Company's consent.
The Company shall be deemed to have consented to the Employee's election now or
in the future to (i) serve on corporate, civic or charitable boards or
committees, (ii) deliver lectures, fulfill speaking engagements or teach at
educational institutions, and (iii) make and manage personal investments that do
not violate in any material respect the terms of Sections 6, 7 or 8 hereof to
the extent any such activities or types of activities have been conducted by the
Employee during any period of the Employee's employment with the Company prior
to the Effective Date. Further, if the Employee should enter part-time status,
the limitations of this Section 1(B) shall be subject to, and deemed modified
by, the provisions of Section 4(D).
2. TERM
Subject only to the provisions of either Section 3(F) or Section 4 hereof,
the "term" of the Employee's employment under this Agreement shall commence on
the Effective Date and end on July 5, 2006. The expiration of the term of this
Agreement shall in no way limit or otherwise affect adversely any of the
Employee's or his spouse's rights in or entitlements to benefits provided to the
Employee or his spouse pursuant to Sections 4(D)(iii) (as it relates to stock
incentive plans), 4(D)(viii), 4(H), and 4(I) (as it relates to stock incentive
plans) of this Agreement.
3. COMPENSATION
For all services rendered by the Employee while on active status under this
Agreement (which term shall mean the Employee's employment under this Agreement
at all times other than during such period as the Employee has elected part-time
status as provided in this Agreement), the Company agrees to compensate the
Employee for each compensation year (January 1 through December 31) during the
term hereof, as follows:
A. Base Salary. A base salary shall be payable to the Employee by
-----------
the Company as a guaranteed annual amount under this Agreement equal initially
to the sum of $750,000.00 per compensation year (the "Base Salary"), which shall
be payable in intervals consistent with the Company's normal payroll schedules
(but in no event less than semi-monthly). The Base Salary shall be subject to
being increased (but not decreased or adjusted other than as provided in Section
4 of this Agreement) in the sole discretion of the Board of Directors but only
in such form and to such extent as the Board of Directors may from time to time
approve. The official action of the Board of Directors increasing the Base
Salary payable to the Employee shall modify the amount of Base Salary stated in
this Section 3(A).
B. Other Compensation. The Employee shall be entitled to participate
------------------
in all incentive or supplemental compensation plans and arrangements instituted
by the Company and
2
covering its principal executive officers and to receive additional compensation
from the Company in such form and to such extent, if any, as the Board of
Directors may in its sole discretion from time to time specify and determine
with respect to the Company's principal executive officers generally; provided,
however, in the event the Employee shall go on part-time status for any reason,
the Employee shall nevertheless be entitled to be paid pro rata incentive or
supplemental compensation for the year ending in the compensation year in which
the Employee goes on part-time status, for the number of calendar months during
such fiscal year that Employee shall have been on active status, at the same
time, on the same basis and to the same extent as any of the Company's principal
executive officers on active status are selected by the Board of Directors to
receive any incentive or supplemental compensation award for such fiscal year.
The phrase "principal executive officers' as used in this Agreement shall mean
the Chairman of the Board of the Company, the other senior executive officers of
the Company and/or its affiliated companies and such other officers of the
Company as are designated by the Company's Board of Directors as "principal
executive officers."
C. Incentive Awards. Effective July 5, 2000, the Company granted the
----------------
Employee 100,000 shares of restricted common stock of the Company (the
"Restricted Stock") and a stock option to acquire 300,000 shares of the
Company's common stock (the "Option"), in each case pursuant to the terms of the
Company's 1994 Stock Plan (the "Plan"). The Option has a ten-year term from the
date of grant, without regard to the Employee's earlier termination of
employment. The Option has an exercise price equal to the fair market value of
the stock subject thereto on the date of grant. The Restricted Stock and the
Option shall vest in three equal installments, on each of the first, second and
third anniversaries following July 5, 2000, provided, that notwithstanding the
foregoing, the Restricted Stock and the Option shall immediately vest and be
exercisable or transferable upon a Change in Control of the Company or upon the
termination of Employee's employment (or, as applicable, change in status to
part-time) (x) due to his death or Disability, (y) by the Company other than
under Sections 4(A)(i) or (ii) or (z) by the Employee under Section 4(C)(ii).
The number of shares of the Restricted Stock and the number of shares of common
stock underlying the Option and the exercise price thereof shall be
appropriately and proportionately adjusted simultaneously with any changes in
capitalization or any reorganization of the Company, as provided for in the
Plan.
D. Other Benefits. The Employee shall be entitled to participate in
--------------
all of the pension group life/medical/dental/accidental/disability insurance,
thrift, savings, deferred compensation, incentive compensation, stock option,
stock rights, stock units, stock awards, vacation, automobile allowance, fringe
benefit, allowances, accommodations, employee welfare, employee benefit and
other plans, practices, programs and arrangements as are from time to time
available on generally applicable to the principal executive offers on a basis
no less favorable than provided to any other principal executive officer.
3
E. Tax Indemnity. Should any of the payments of Base Salary, Part-
-------------
Time Base Salary, other incentive or supplemental compensation, benefits,
allowances, awards, payments, reimbursements or other perquisites (including the
payments provided for under this Section 3(E), singly, in any combination or in
the aggregate, that are provided for hereunder to be paid to or for the benefit
of the Employee (including, without limitation, the payment provided for in
Section 3(F) hereof) or under any other plan, agreement or arrangement between
the Employee and the Company, be determined or alleged to be subject to an
excise or similar purpose tax pursuant to Section 4999 of the Internal Revenue
Code of 1986, as amended, or any successor or other comparable federal, state or
local tax laws, the Company shall pay to the Employee such additional
compensation as is necessary (after taking into account all federal, state and
local income taxes payable by the Employee as a result of the receipt of such
additional compensation) to place the Employee in the same after tax position
(including federal, state and local taxes) he would have been in had no such
excise or similar purpose tax (or any interest or penalties thereon) been paid
or incurred. The Company hereby agrees to pay such additional compensation
within five (5) business days after the Employee notifies the Company that the
Employee intends to file a tax return which takes the position that such excise
or similar purpose tax is due and payable in reliance on a written opinion of
the Employee's tax counsel (such tax counsel to be chosen solely by the
Employee) that it is more likely than not that such excise tax is due and
payable. The costs of obtaining such tax counsel opinion shall be borne by the
Company, and as long as such tax counsel was chosen by the Employee in good
faith, the conclusions reached in such opinion shall not be challenged or
disputed by the Company. If the Employee intends to make any payment with
respect to any such excise or similar purpose tax as a result of an adjustment
to the Employee's tax liability by any federal, state or local tax authority,
the Company will pay such additional compensation by delivering its cashier's
check payable in such amount to the Employee within five (5) business days after
the Employee notifies the Company of his intention to make such payment.
Without limiting the obligation of the Company hereunder, the Employee agrees,
in the event the Employee makes any payment pursuant to the preceding sentence,
to negotiate with the Company in good faith with respect to procedures
reasonably requested by the Company which would afford the Company the ability
to contest the imposition of such excise tax; provided, however, that the
Employee will not be required to afford the Company any right to contest the
applicability of any such excise tax to the extent that the Employee reasonably
determines (based upon the opinion of his tax counsel) that such contest is
inconsistent with the overall tax interests of the Employee. For purposes of
this Section 3(E), payments from the Company or any affiliated companies or
successor shall be treated as payments from the Company.
F. (i) Change in Control - Operation of Section 3(F).
----------------------------------------------
(a) This Section 3(F) shall be effective, but not operative,
immediately upon execution of this Agreement by the parties hereto and
shall remain in effect so long as the Employee remains employed by the
Company on active status or part-time status, but
4
shall not be operative unless and until there has been a Change in Control,
as defined in 3(F)(i)(b). Upon such a Change in Control, this Section 3(F)
shall become operative immediately.
(b) "Change in Control" shall mean a change in control of the
Company that shall be deemed to have occurred if 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 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 the 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 immediately
before the transaction shall cease to constitute a majority of the Board of
Directors or of any successor.
(ii) Employee's Rights Upon Change in Control. If, while the
----------------------------------------
Employee is employed by the Company on active status or part-time status
pursuant to Section 4(C) (iii) or Section 4(F), a Change in Control (as
defined in Section 3(F)(i)(b)) occurs, the Employee may, in his sole
discretion, within eighteen (18) months, if he is on active status (twelve
(12) months after the date of the Change in Control if he is on part-time
status at the time 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(F) (the "Notice of Intention"). The right to give such Notice
of Intention to elect to receive the payment provided for in Section
3(F)(iii) shall continue for eighteen (18) or twelve (12) months, as
applicable, 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) or by
the Employee pursuant to Section 4(C) (ii) or (iii) 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 the Employee setting forth the Company's computation of
the amount that would be payable pursuant to Section 3(F)(iii), accompanied
by the written opinion of the Company's independent certified public
accountants confirming the Company's computation. If the Employee takes
exception to the Company's computation of such amount, the 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 the Employee's exceptions to the
Company's computation, accompanied by the written opinion of the Employee's
tax advisor confirming the basis for such exceptions. Exercise by the
Employee of his rights to receive the payment provided for in Section 3(F)
(iii) hereof pursuant to this Section 3(F) shall only
5
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.
------------------------------
(a) If the Employee gives the Notice of Exercise described in
Section 3(F)(ii) to the Company, the Company shall pay the Employee a lump
sum amount equal to three (3) times the Employee's average of the total
annual direct compensation paid to Employee by the Company (whether under
this Agreement, a predecessor agreement or otherwise) for the two (2)
highest of the three (3) compensation years immediately preceding the
compensation year in which the Notice of Intention specified in Section
3(F)(ii) is given.
As used in this Agreement, the phrase "total annual direct
compensation" shall mean:
(1) The gross amount of Base Salary (as from time to time
adjusted) paid to the Employee during a compensation year; plus
(2) All other forms of direct compensation attributable to that
specific compensation year whether or not actually paid to the Employee
during a subsequent compensation year. Direct compensation shall include,
but not be limited to, allowances or incentive or supplemental compensation
awards made to the Employee and any amounts paid by the Company for the
benefit of the Employee into any savings, deferred compensation or similar
Company-sponsored plan or arrangement. Direct compensation shall not
include (x) any amounts that must be recognized as compensation in any such
compensation year as a result of the Employee's exercise of a stock option,
exercise of a stock appreciation right, disqualified disposition of stock
acquired pursuant to the exercise of an incentive stock option or receipt
of an award or unit of the Company's (or any successor's) stock, or (y) any
amounts received by the Employee during a compensation year which would, as
hereinabove provided, be taken into account in computing the direct
compensation for a prior compensation year. Direct compensation shall also
not include any amounts received by the Employee in connection with the
merger of the Company with CCB Financial Corporation.
The Company shall, within five (5) business days after the date
of the Notice of Exercise, deliver to the Employee its cashier's check in
the amount payable pursuant to this Section 3(F)(iii)(a), and payment of
such amount shall terminate the Employee's rights to receive any and all
other payments, rights or benefits pursuant to Sections 3(A), 3(B), 3(D), 4
and 5 of this Agreement, other than any payments, rights or benefits
arising (x) pursuant to Section 3(E), Section 3(F)(iii), Section 3(G) 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
6
continuation of such payments, rights or benefits after the termination of
the Employee's employment 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 the 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 the Employee pursuant to the provisions of the Company's
Certificate of Incorporation, By-laws or otherwise.
(c) If Employee gives the Notice of Exercise, in addition to the
lump sum payment under Section 3(F)(iii)(a) above, the Company shall pay to
the Employee in a lump sum in cash within five (5) business days after the
date of the Notice of Exercise the aggregate of the following amounts:
(1) the sum of (A) the Employee's Base Salary through the date of
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 the 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 the
Employee would receive if the Employee's employment continued for three
years after the Notice of Exercise assuming for this purpose that all
accrued benefits are fully vested and, assuming that the 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 the 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; and
7
(d) If the Employee gives the Notice of Exercise, for three (3)
years after the date of the Notice of Exercise, or such longer period as
may be provided by the term 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 the Employee and/or the Employee's eligible dependents at
least equal to those provided to the Employee at any time during the 120
day period immediately preceding the Change in Control or, if more
favorable to the 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 the Employee 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 the Employee for retiree benefits pursuant to
such plans, practices, programs and policies, the Employee shall be
considered to have remained employed until three (3) 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 the Employee's employment with the Company,
the Company shall at least provide medical and dental insurance coverage
for the 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 immediately prior to the Notice of
Exercise, and the Company shall be entitled to credits for coverage to the
Employee and his spouse provided by Medicare.
(e) If the Employee gives the Notice of Exercise, the Employee
shall be entitled to the provision of the benefits and services set forth
in Section 4(D)(viii) and 4(H).
G. Employee's Expenses. All costs and expenses (including reasonable
-------------------
legal, accounting and other advisory fees) incurred by the Employee to (i)
defend the validity of this Agreement, (ii) contest any determinations by the
Company concerning the amounts payable (or reimbursable) by the Company to the
Employee under this Agreement, (iii) determine in any tax year of the Employee
the tax consequences to the Employee of any amounts payable (or reimbursable)
under Section 3(E) or (C) hereof, or (iv) prepare responses to an Internal
Revenue Service audit of, and to otherwise defend, his personal income tax
return for any year which is the subject of any such audit, or an adverse
determination, administrative proceedings or civil litigation arising therefrom
that is occasioned by or related to an audit by the Internal Revenue Service of
the Company's income tax returns, are, upon written demand by the Employee, to
be promptly advanced or reimbursed to the Employee or paid directly, on a
current basis, by the Company or its successor.
8
H. Life Insurance. During the term of this Agreement, the Company
--------------
shall continue to maintain the split-dollar life insurance agreement with the
Employee existing as of the Effective Date (the "Split Dollar Agreement") and,
together with the Employee, continue to maintain the related life insurance
policy owned by the Employee (the "Insurance Policy") and collaterally assigned
to the Company (the "Collateral Assignment") providing coverage on the life of
Employee for the benefit of the Employee's estate, beneficiaries designated by
him, and/or trusts created by him as originally established and maintained under
the prior employment agreement with Employee dated as of March 17, 2000 ("Prior
Agreement"). Any exercise of the Insurance Policy Buy-Out Option (as defined
below) by the Employee shall release the Company from any further obligation to
maintain the Split Dollar Agreement and the Insurance Policy.
4. TERMINATION, PART-TIME STATUS, AND REVISED COMPENSATION, DEATH,
DISABILITY
A. Termination. The employment of the Employee under this Agreement,
-----------
while the Employee is on active status, may be terminated at any time by the
Company, acting through its Board of Directors (and not a committee thereof),
(i) for cause in the event of (x) the Employee's final conviction
of a felony crime involving moral turpitude, or (y) the Employee's
deliberate, intentional and continuing refusal to substantially perform his
duties and obligations under this Agreement (except by reason of incapacity
due to illness or accident) if he shall have either failed to remedy such
alleged breach within 45 days from his receipt of written notice from the
Secretary of the Company demanding that he remedy such alleged breach, or
shall have failed to take reasonable steps in good faith to that end during
such 45 day period and thereafter, provided that there shall have been
delivered to the Employee a further notice after the end of such 45 day
period asserting that the Board of Directors has determined that the
Employee was guilty of conduct set forth in this clause (y), that the
Employee has failed to take reasonable steps in good faith to remedy such
alleged breach, and specifying the particulars thereof in detail, and
provided further that the Employee thereafter shall have received a
certified copy of a resolution of the Board of Directors of the Company
adopted by the affirmative vote of not less than three-fourths (3/4) of the
entire membership of the Board of Directors at a meeting called and held
for that purpose and at which the Employee was given an opportunity to be
heard, finding that the Employee was guilty of conduct set forth in this
clause (y), that the Employee has failed to take reasonable steps in good
faith to remedy such alleged breach, and specifying the particulars thereof
in detail; provided, however, that (A) no act, or failure to act, on the
part of the Employee shall be considered "deliberate" and "intentional"
unless it is done, or omitted to be done, by the Employee in bad faith or
without a reasonable belief that the Employee's action or omission was in
the best interests of the
9
Company, and (B) any act, or failure to act, based upon authority given
pursuant to a resolution duly adopted by the Board or upon instructions of
the Chairman of the Board or based upon the advice of the Company's
internal or external legal counsel shall be conclusively presumed to be
done, or omitted to be done, by the Employee in good faith and in the best
interest of the Company.
(ii) for cause upon a determination that the Employee has engaged
in willful fraud or defalcation or other dishonesty involving the funds,
assets or the operation of the Company, or
(iii) for any reason in its sole discretion, upon written
notice to the Employee effective on the thirtieth (30th) day after the
Employee's receipt of such notice (the "Date of Termination").
B. Termination Payment For Cause. In the event of termination of the
-----------------------------
Employee's employment under this Agreement by the Company under either Section
4(A)(i) or (ii), the Employee shall only be entitled to receive the monthly or
semi-monthly installment of his Base Salary being paid at the time of such
termination and, if applicable, other compensation due hereunder, computed on a
pro rata basis, up to the effective date of such termination.
C. (i) Termination by Company Without Cause. In the event the
------------------------------------
Company shall give Employee notice of termination of the Employee's employment
under this Agreement pursuant to Section 4(A) (iii):
(a) the Company shall pay to the Employee a lump sum in cash within 30
days after the Date of Termination the aggregate of the following amounts:
(1) the sum of (x) the Employee's Base Salary through the Date of
Termination to the extent not theretofore paid, (y) the product of (A)
the bonus paid or payable to the Employee in respect of the last
fiscal year ended prior to the Date of Termination, including any
bonus or portion thereof which has been earned but deferred (and
annualized for any fiscal year consisting of less than twelve (12)
full months or during which the Employee was employed for less than
twelve (12) full months) (such amount being referred to as the "Recent
Annual Bonus") and (B) a fraction, the numerator of which is the
number of days in the current compensation year through the Date of
Termination, and the denominator of which is 365, and (z) any
compensation previously deferred by the Employee (together with any
accrued interest or earnings thereon) to the extent not theretofore
paid (the sum of the amounts described in clauses (x), (y) and (z)
shall be hereinafter referred to as the "Accrued Obligations"); and
10
(2) the amount equal to the product of (x) the greater of (A) 48
months and (B) the number of months and portions thereof from the Date
of Termination until the expiration of the term of employment
hereunder (the "Continuation Period"), divided by twelve (12), and (y)
the sum of (C) the Employee's Base Salary and (D) the Recent Annual
Bonus;
(b) the Option shall become immediately vested and fully exercisable
and the restrictions on the Restricted Stock shall lapse immediately;
(c) the Option and all options that are vested, but unexercised, as of
the Date of Termination shall remain exercisable for the period during
which they would have been exercisable absent the termination of the
Employee's employment;
(d) for the duration of the Continuation Period, the Employee and the
Employee's dependants shall continue to be eligible to participate in the
medical, dental and health benefit plans and arrangements applicable to the
Employee immediately prior to the Date of Termination on the same terms and
conditions as in effect for the Employee and the Employee's dependents
immediately prior to the Date of Termination;
(e) for the duration of the Continuation Period, the Company shall
maintain the Split Dollar Agreement and continue to pay all premiums due
under the Split Dollar Agreement and the Insurance Policy; provided,
however, that upon or at any time prior to the expiration of the
Continuation Period, the Employee or the then owner of the Insurance Policy
may terminate the Split Dollar Agreement and the Collateral Assignment
Agreement by paying to the Company an amount equal to the total amount of
the premiums advance by the Company (or its predecessor and its affiliates)
in accordance with the Split-Dollar Agreement as of the date of termination
of the Split Dollar Agreement, minus any withdrawals of cash value or loan
proceeds received by the Company or its affiliated companies from the face
value of the Insurance Policy and which are made to the Company or its
affiliates as of the date of the termination of the Split Dollar Agreement
(such payment may, in the discretion of the Employee or other owner of the
policy, be made in cash or may be accomplished by means of a loan or
withdrawal of cash values of the Insurance Policy which is authorized by
the Employee or such other owner of the Insurance Policy) (the "Insurance
Policy Buy-Out Option"); and
(f) to the extent not theretofore paid or provided, the Company shall
timely pay or provide to the Employee any other amounts or benefits
required to be paid or provided or which the Employee is eligible to
receive under any plan program, policy or practice or
11
contract or agreement of the Company and its affiliated companies through
the Date of Termination ("Other Benefits").
(ii) Termination by Employee for Cause. The Employee shall have
---------------------------------
the right at any time during his employment on active status, at his sole
option and election, by giving written notice to the Secretary of the
Company within six (6) months after the occurrence of the event(s) that are
the basis for the giving of such notice, to terminate his employment under
this Agreement effective on the 30th day following the date such notice is
delivered to the Secretary of the Company , if:
(a) the Company shall violate this Agreement in any material
respect;
(b) the Employee (other than by his own choice) shall not be
reelected or reappointed by the Company to or shall be removed from (other
than by reasons justifying such action by the Company under Sections
4(A)(i) or (ii), 4(E), or 4(F) of this Agreement) the offices and positions
of President and Chief Executive Officer of the Company, a member of the
Board of Directors and a member of the Executive Committee of the Board of
Directors or such higher or additional office or position to which the
Employee, with his consent, may subsequently be elected; or
(c) the nature or scope of the duties, powers, authority,
functions and responsibilities assigned to the Employee by the Company
pursuant to this Agreement (or attached to the positions specified in
Section 4(C)(ii)(b)) on the date hereof are increased, changed or
diminished (without the Employee's express written consent) whether or not
for cause (other than as defined in Section 4(A)(i) or (ii)), directly or
indirectly, including, without limitation, any action or inaction which
impairs or detracts in any respect from the Employee's ability to perform,
carry out or exercise such duties, powers, authority, functions and
responsibilities.
On the 30th day following the date the notice described in this
Section 4(C)(ii) is delivered to the Secretary of the Company, the Employee
shall be entitled to receive the payments and benefits set forth in Section
4(C)(i)(a) through (f) above.
(iii) Part-time Status Election by Employee. On or after April
-------------------------------------
7, 2003, and while employed by the Company on active status, Employee shall
have the right, in his sole discretion, to elect to be employed on part-
time status until July 5, 2006 by giving prior written notice to the
Secretary of the Company. An election by the Employee under this Section
4(C) (iii) shall become effective as soon as practicable and in any event
no later than 60 days after the Secretary of the Company receives notice of
such election.
12
(iv) Termination - Election by Employee. Employee shall have
----------------------------------
the right at any time during his employment on active status, by giving
written notice to the Secretary of the Company, to terminate the Employee's
employment under this Agreement effective 90 days after the date on which
such notice is given by the Employee. In the event the Employee shall make
such election under this Section 4(C) (iv), the Employee shall, in addition
to all other reimbursements, payments or other allowances required to be
paid under this Agreement or under any other plan, agreement or policy
which survives the termination of this Agreement, be paid his Base Salary
payable during such 90 day period after the giving of such notice and a
lump sum payment, payable by delivery of the Company's cashier's check
within five (5) business days after the end of such 90 day period, in an
amount equal to three (3) monthly installments of his Base Salary (less
required tax withholding) in effect pursuant to Section 3(A) hereof at the
time the Employee makes such election under this Section 4(C) (iv).
Thereupon, this Agreement shall terminate and the Employee shall have no
further rights under or be entitled to any other benefits of this
Agreement, provided that the provisions of Sections 3 (E) and 3 (G), 6, 7,
8 and 12 shall survive such termination.
D. Employee's Rights on Part-Time Status. During the period that the
-------------------------------------
Employee is on part-time status:
(i) The Company shall pay to the Employee a revised, guaranteed
minimum annual base salary (the "Part-Time Base Salary") from the date the
Employee goes on part-time status until July 5, 2006, in an amount equal to
seventy-five percent (75%) of the average of the total annual direct
compensation paid to the Employee by the Company (whether under this
Agreement, a predecessor agreement or otherwise) for the two (2) highest of
the three (3) compensation years immediately preceding the compensation
year in which the notice specified in Section 4(C) (iii) or Section 4 (F)
of this Agreement is given. As used in this Agreement, the phrase "total
annual direct compensation" shall mean:
(a) The gross amount of Base Salary (as from time to time
adjusted) paid to the Employee during a compensation year; plus
(b) All other forms of direct compensation attributable to that
specific compensation year whether or not actually paid to the Employee
during a subsequent compensation year. Direct compensation for purposes of
this Section 4(D)(i) shall include, but not be limited to, allowances or
incentive or supplemental compensation awards made to the Employee and any
amounts paid by the Company for the benefit of the Employee into any
savings, deferred compensation or similar Company-sponsored plan or
arrangement,. Direct compensation shall not include (x) any amounts that
must be recognized as compensation in any such compensation year as a
result of the Employee's exercise of a stock option, exercise of a stock
appreciation right, disqualified disposition of stock acquired
13
pursuant to the exercise of an incentive stock option or receipt of an
award or unit of the Company's (or any successor's) stock, or (y) any
amounts received by the Employee during a compensation year which would, as
hereinabove provided, be taken into account in computing the direct
compensation for a prior compensation year. Direct compensation shall also
not include any amounts received by the Employee in connection with the
merger of the Company with CCB Financial Corporation;
(ii) The Part-Time Base Salary payable by the Company to the
Employee pursuant to this Section 4(D) shall be increased (but not
decreased) annually on the first anniversary of the date of the Employee's
going on part-time status and each anniversary thereof, on a compound
basis, by the same percentage increase (if any) in the Consumer Price Index
for All Urban Consumer's - All Items Index, for Region/population size
class cross classification for South/B (or any substantially similar index
published for the same area) as published by the U.S. Department of Labor,
Bureau of Labor Statistics for the twelve (12) month period immediately
preceding the first anniversary of the date of the Employee's going on
part-time status or the twelve (12) month period immediately preceding each
anniversary thereof, as applicable;
(iii) The Employee shall continue to participate (at not less
than his highest levels of participation or coverage during the last twelve
(12) months the Employee was on active status) in all of the Company's
pension, group life/medical/dental/accidental disability insurance, thrift,
savings, deferred compensation, stock option, unit or award plans, vacation
plans, automobile allowances and other benefit plans, fringe benefits,
allowances and accommodations of employment on active status that are
afforded to the principal executive officers of the Company (including,
without limitation, the security alarm system at the Employee's personal
residence). No change from active to part-time status by the Employee
pursuant to any provision of this Agreement shall be deemed to constitute a
termination or cessation of the Employee's employment or a break in the
Employee's continuous employment for purposes of any stock option or other
equity award agreement between the Employee and the Company under any stock
option or equity incentive plans of the Company. Subject to the terms of
such stock option or equity award agreements and related stock or equity
incentive plans, nothing in this Agreement and no action by the Company or
the Employee pursuant to any provision of this Agreement shall (x)
interrupt or prevent the orderly vesting of the Employee in his stock
options or other equity awards or accelerate the time at which Employee
would otherwise be entitled to exercise his stock options or other equity
awards in accordance with the terms of such stock option or equity award
agreements and related stock option or equity incentive plans, or (y) cause
the Employee's stock options or other equity incentive awards to expire
earlier than they otherwise would under such stock option or equity award
agreements and stock or equity incentive plans;
14
(iv) If the Employee is on part-time status by virtue of action
taken by him pursuant to Section 4(C)(iii), hereunder, the Employee may
only engage in part-time employment with other employers which does not
require him to devote substantially all of his time to any other business
activity;
(v) This Agreement and the Employee's continuing employment on
part-time status may be terminated at any time by the Company (x) pursuant
to the provisions of Section 4(A)(i) or (ii), or (y) acting through its
Board of Directors (and not a committee thereof) if the Employee violates
the provisions of any of Sections 6, 7 or 8;
(vi) While on part-time status and except as otherwise required
herein, the Employee shall not be required to perform any regular duties
for the Company (except to provide such services consistent with the
Employee's educational background, experience and prior positions with the
Company, as may be acceptable to the Employee) or to seek or accept
additional employment with any other employer (although the Employee shall
be free to do so as long as accepting such additional employment or
engaging in other business activity is not in conflict in any material
respect with the limitations set forth in Section 4(D) (iv) or Section 6 of
this Agreement). If the Employee, at his discretion, shall accept any such
additional employment or engage in any such other business activity
consistent with Section 6 of this Agreement, there shall be no offset,
reduction or effect upon any rights, benefits or payments to which the
Employee is entitled pursuant to this Agreement. Furthermore, the Employee
shall have no obligation to account for, remit, rebate or pay over to the
Company any compensation or other amounts earned or derived in connection
with such additional employment or business activity consistent with
Section 6 of this Agreement;
(vii) The Employee shall, however, make himself generally
available for special projects or to consult with the Company and its
employees at such times and at such places as may be reasonably requested
by the Company and which shall be reasonably satisfactory to the Employee
and consistent with the Employee's regular duties and responsibilities in
the course of his other employment, if any; and
(viii) While on part-time status, the Company shall continue to
provide the Employee with either the same or, at the Company's election, at
a different location within the same general geographic area, alternate
office space, furnishings, facilities, reserved parking, supplies,
services, equipment, secretarial and administrative assistance that are in
each case at least commensurate with the size and quality of that which are
provided to the other principal executive officers of the Company. The
Company and Employee may mutually agree upon an equivalent monthly cash
allowance in lieu of the Employee being provided all or any part of these
items. The Company shall have no obligation to provide for or furnish
these items if such items are being furnished or provided for in comparable
fashion
15
by another employer. On and after the termination of the Employee
pursuant to Section 4(C)(i), 4(C)(ii) or 4(C)(iii) or the Employee's
retirement as an employee of the Company or after the termination of this
Agreement by the election of the Employee to take a lump sum payment upon a
Change in Control as provided in Section 3(F), the Company agrees to
provide to the Employee until such time as the Employee reaches age 70 with
either the same or, at the Company's election, at a different location
within the same general geographic area, alternate office space,
furnishings, facilities, reserved parking, supplies, services, equipment,
secretarial and administrative assistance that are in each case at least
commensurate with the size and quality of that which are provided to the
other principal executive officers of the Company. The Company and the
Employee may mutually agree upon an equivalent monthly cash allowance in
lieu of the Employee being provided all or any part of these items. The
Company shall have no obligation to provide for or furnish these items if
(i) the Employee has obtained a full time position with another employer,
and (ii) such items are being furnished or provided for in comparable
fashion by such other employer.
E. Death. In the event of the Employee's death during the term of his
-----
employment hereunder, the Company shall pay a death benefit to the Employee's
surviving spouse or (if his spouse shall not survive him) to the Employee's
estate equal to two (2) times his annual Base Salary or Part-Time Base Salary
then payable pursuant to Sections 3(A) or 4(D), as the case may be, such death
benefit to be paid in 48 equal monthly installments commencing on the first day
of the month following the date of death of the Employee. Further, the Company
shall pay to the Employee's surviving spouse or estate, as applicable, his Base
Salary through the date of the Employee's death to the extent not theretofore
paid to him and, to the extent not theretofore paid or provided, shall pay or
provide the Other Benefits. In addition, the Option shall become immediately
and fully exercisable and the restrictions on the Restricted Stock shall lapse
immediately. All stock options that vested prior to the date of death shall
remain exercisable for the longer of twelve (12) months or the exercise period
in effect immediately prior to the date of death, and the Employee's rights to
all benefits under all benefit plans that are "non-qualified" plans shall be
100% vested regardless of the Employee's age and years of service, at the time
of the Employee's death.
F. Disability. The Employee shall be covered by the Company's disability
----------
benefit plan as such plan may from time to time exist. The Company may
eliminate or change the terms and conditions of said plan at its discretion with
no liability to the Employee other than the liability, if any, under such plan
which may have accrued up to the elimination or change of such plan. If,
because of physical or mental illness or personal injury while the Employee is
on active status or part-time status, the Employee shall become permanently
unable or disabled such that he is unable to perform, and in all reasonable
medical likelihood, is going to continue indefinitely to be unable to perform
his normal duties in his regular manner, as determined by independent, competent
medical authority ("Disability);
16
(i) if such Disability determination occurs while the Employee
is on active status, the Company may elect (but shall not be obligated) to
terminate the Employee's employment under this Agreement on a date which is
not less than three (3) years after the date on which written notice of
such termination is received by the Employee in which event the Employee
shall be placed on part-time status, and the Company shall pay to the
Employee the Part-Time Base Salary payable pursuant to Section 4(D) for the
greater of (x) the balance of the period remaining under the term of this
Agreement, or (y) for three years; or
(ii) if such Disability determination occurs while the Employee
is on part-time status pursuant to Section 4(C)(iii), the Company shall
continue to pay to the Employee the amount of his Part-Time Base Salary
then payable for the greater of (x) the balance of the period remaining
under the term of this Agreement, or (y) for one (1) year; reduced, in any
case however, by the amount of any payments made to the Employee under the
coverage then afforded to the Employee by the Company's Disability benefit
plan in effect at the time such Disability determination is made. The
Employee shall, during such disability and until the effective date of the
termination of this Agreement and of payments hereunder by the Company to
the Employee, continue to enjoy all other applicable benefits of employment
that would otherwise pertain to continued employment on part-time status
pursuant to this Agreement.
G. Return of Property. Upon termination of the Employee's employment
------------------
under this Agreement, however brought about, the Employee (or his
representatives) shall promptly deliver and return to the Company all the
Company's property including, but not limited to, credit cards, manuals,
customer lists, financial data, letters, notes, notebooks, reports and copies of
any of the above, and any tangible Protected Information (as defined in Section
7) which is in the possession or under the control of the Employee.
H. Post-Retirement Medical Benefits. On and after the termination of the
--------------------------------
Employee pursuant to Section 3(F), Section 4(C)(i), 4(C)(ii) or 4(C)(iii) or the
Employee's retirement as an employee of the Company,, the Company shall provide
medical and dental insurance coverage for the 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 the date of
the Employee's termination or retirement, as applicable.. The Company shall be
entitled to credits for coverage to Employee and his spouse provided by
Medicare. For purposes of this Agreement, Employee shall not be deemed to have
retired until after the expiration of his part-time status under Section
4(C)(iii) of this Agreement.
I. Affiliate Status; Stock Options. After the termination of the
-------------------------------
Employee's employment on active or part-time status, other than pursuant to
Section 4(A)(i) or (ii), he shall remain an
17
"affiliate" of the Company and, as partial consideration for such right, shall
continue to be available to consult with the Company and its employees at such
times and at such places as may be reasonably convenient and acceptable to him
and in such manner as may be consistent with his educational background,
experience and prior positions with the Company and with his regular duties and
responsibilities in the course of any other employment he may have. All existing
and hereafter granted stock options and other equity awards in favor of the
Employee shall vest according to their terms while he is serving as an affiliate
hereunder and he may exercise such options and other equity awards within the
time periods granted under all such stock option and other equity award plans
pursuant to which the stock options or awards were or are granted. Upon the
final exercise or expiration of all such stock options and other equity awards,
the Employee's status as an "affiliate" shall terminate.
5. OTHER EMPLOYEE RIGHTS
A. The Employee is authorized to incur reasonable business expenses
while on active status as an employee of the Company, including expenses for
meals, entertainment, hotel and air travel, telephone, automobile, dues, club
expenses, fees, and similar items and shall be entitled to incur such reasonable
business expenses, determined commensurate with the extent of his consultation
hereunder, while on part-time status with the Company. The Company shall either
pay directly or promptly reimburse the Employee for such expenses upon the
presentment by the Employee from time to time of an itemized accounting (as
reasonably required by the Company's policies) of such expenditures for which
reimbursement is sought.
B. The Employee shall be provided by the Company with office space,
furnishings and facilities, reserved parking, secretarial and administrative
assistance, supplies and equipment commensurate with the size and quality of
that which is being provided to the Employee on the Effective Date, but in no
event less than the same as are provided from time to time to the Company's
Chairman of the Board.
C. The Employee shall not be required to move his principal place of
residence from Memphis, Tennessee or to perform regular duties which could
reasonably be expected to require such move against his wish and the Company
agrees that no animosity or prejudice will be held against the Employee in the
event the Company should request such a move and the Employee declines such
request.
6. COVENANT NOT TO COMPETE
A. The Employee recognizes that in the highly competitive business in
which the Company is engaged, personal contact is of primary importance in
securing new customers and in
18
retaining the accounts and goodwill of present customers and protecting the
business of the Company. The Employee, therefore, agrees that at all times
during the term of his employment here under and for a period of two (2) years
after the termination of his employment hereunder, he will not, for himself or
on behalf of any person, corporation, association or other entity other than the
Company:
(i) engage in the commercial banking business within any county in
any state in which the Company or any corporation or other entity owned or
controlled by it maintains an office or is engaged in the commercial
banking business that produced in excess of 5% of the net income after tax
of the Company on a consolidated basis for the twelve (12) months prior to
the date of termination of employment; or
(ii) directly or indirectly solicit or attempt to solicit business
from any customer of the Company existing on the date of termination of
such employment; provided, however, that this covenant not to compete shall
not apply after a termination of employment if such termination occurs for
cause under Section 4(A)(i) or (ii).
B. If the provisions of this Section 6 are violated, in whole or in part,
the Company shall be entitled, upon application to any court of proper
jurisdiction, to a temporary restraining order or preliminary injunction
(without the necessity of posting any bond with respect thereto) to restrain and
enjoin the Employee from such violation without prejudice to any other remedies
the Company may have at law or in equity. Further, in the event that the
provisions of this Section 6 should ever be deemed to exceed the time,
geographic or occupational limitations permitted by the applicable laws, the
Employee and the Company agree that such provisions shall be and are hereby
reformed to the maximum time, geographic or occupational limitations permitted
by the applicable laws. The provisions of this Section 6 shall survive the
termination of the Employee's employment or expiration or termination of this
Agreement.
7. DISCLOSURE OF INFORMATION
The Employee recognizes and acknowledges that he has access to
confidential information concerning the Company, its subsidiaries and the
corporations affiliated with the Company of a special and unique value which
includes (but is not limited to) the books and records relating to operations,
finance, accounting, loans, investments, personnel and management; written
policies and other printed matter relating particularly to operations such as
customer names and addresses and customer financial information. The Employee
also recognizes that a portion of the Company's business is dependent upon a
large number of trade secrets, including secret formulations, techniques,
methods, processes, data and the like. The Employee acknowledges and agrees
that protection of these trade secrets and confidential information
(collectively "Protected Information") against unauthorized disclosure and use
is of critical importance to the Company, and
19
the Employee therefore agrees that he will not at any time, either while
employed by the Company or afterwards, make any independent use of, or knowingly
disclose to any other person or organization (except as required by regulatory
authority or by a court or as authorized by the Company) any of the trade
secrets or other confidential proprietary information of the Company, whether
patentable or not. In the event of a breach or threatened breach by the Employee
of the provisions of this Section 7, the Company shall be entitled to an
injunction restraining the Employee from disclosing, in whole or in part, such
confidential information. Nothing herein shall be construed as prohibiting the
Company from pursuing any other remedies available to it for such breach or
threatened breach, including the recovery of damages from the Employee.
8. EMPLOYEE CONDUCT
A. The Employee represents and agrees with the Company that he will
not knowingly make any disbursement or other payment of any kind or character
out of the compensation paid or expenses reimbursed to him pursuant hereto or
with any other fund, which contravene, in any material respect, any policy of
the Company or, in any material respect, any applicable statute, rule,
regulation or order of any jurisdiction, foreign or domestic. The Employee
further agrees to indemnify and save harmless the Company from any liabilities,
obligations, claims, penalties, fines or losses resulting from any unauthorized
or unlawful acts of the Employee which contravene in any material respect any
policy of the Company or any statute, rule, regulation or order of any
jurisdiction, foreign or domestic, applicable to the Employee or the Company.
The provisions of this Section 8 shall survive the dissolution or termination of
the Employee's employment under this Agreement.
B. The Employee acknowledges that he has been furnished with a
current copy of the Employee Handbook of the Company dated 9/90, that he has
read and understands such policies and procedures set forth in such Handbook,
(and will read and become familiar with any revisions or supplements to this
Handbook), that he understands such policies and procedures are applicable to
the Employee in the performance of his duties and job performance for the
Company, and that he agrees to observe in all material respects the Company's
policies and procedures in the conduct by the Employee of his employment duties
for the Company.
C. The Employee agrees to disclose honestly and fully all
information and documentation in his possession concerning all transactions or
events relating to or affecting the Company or any entity owned or controlled by
(or otherwise affiliated with) the Company, as and to the extent such
information or documentation is requested by the Company or the authorized
representatives thereof; provided that if the Employee indicates to the Company
that the information or documentation requested is privileged, confidential or
personally sensitive, appropriate steps will be taken to attempt to protect such
privilege, confidentiality or privacy to the extent possible consistent with the
ethical and legal obligations applicable to the Company, but neither such
20
assertions by the Employee nor the undertakings attempted by the Company with
respect thereto shall qualify the unconditional disclosure obligation of the
Employee set forth above.
9. GENERAL PROVISIONS
A. In case any one or more of the provisions of this Agreement shall,
for any reason, be held or found by final judgment of a court of competent
jurisdiction to be invalid, illegal or unenforceable in any respect, (i) such
invalidity, illegality or unenforceability shall not affect any other provisions
of this Agreement, (ii) this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein (except that
this Section 9(A)(ii) shall not prohibit any modification allowed under Section
6 hereof), and (iii) if the effect of a holding or finding that any such
provision is invalid, illegal or unenforceable is to modify to the Employee's
detriment, reduce or eliminate any compensation, reimbursement, payment,
allowance or other benefit to the Employee intended by the Company and the
Employee in entering into this Agreement, the Company shall promptly negotiate
and enter into an agreement with the Employee containing alternative provisions
(reasonably acceptable to the Employee), that will restore to the Employee (to
the extent lawfully permissible) substantially the same economic, substantive
and income tax benefits the Employee would have enjoyed had any such provision
of this Agreement been upheld as legal, valid and enforceable. A party's failure
to insist upon strict compliance with any provision of this Agreement shall not
be deemed a waiver by such party of such provision or of any other provision of
this Agreement.
B. The Employee acknowledges receipt of an executed original copy of
this Agreement (together with any attachments hereto) and agrees that, with
respect to the subject matter hereof, it is the entire agreement between the
Employee and the Company. Any other oral or written representations,
understandings or agreements between the Employee and the Company covering the
same subject matter which are in conflict with this Agreement are hereby merged
into and superseded by the provisions of this Agreement.
C. The Company shall have no right of set-off or counterclaim in
respect of any debt or other obligation of the Employee to the Company against
any payment or other obligation of the Company to the Employee provided for in
this Agreement or pursuant to any other plan, agreement or policy.
D. No provision of this Agreement may be amended, modified or waived
except pursuant to a writing signed by the Employee and by a person duly
authorized by the Board of Directors.
E. No right to or interest in any compensation or reimbursement
payable hereunder shall be assignable or divisible by the Employee; provided,
however, that this provision
21
shall not preclude the Employee from designating one or more beneficiaries to
receive any amount that may be payable after his death and shall not preclude
his executor or administrator from assigning any right hereunder to the person
or persons entitled thereto.
F. The headings of Sections and subsections hereof are included
herein solely for convenience of reference and shall not control the meaning or
interpretation of any of the provisions of this Agreement.
G. (i) The Company consents with respect to any action, suit or
other legal proceeding pertaining directly to this Agreement or to the
interpretation of or enforcement of any of the Employee's or the Company's
rights or obligations hereunder, to service of process in the State of Tennessee
and service of same at Xxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000 upon any
executive officer of the Company. The Company irrevocably (a) agrees that any
such suit, action or legal proceeding may be brought in the courts of such state
or the United States District Court for the Western District of Tennessee,
Western Division , (b) consents to the jurisdiction of each such court in any
such suit, action or legal proceeding and (c) waives any objection it may have
to the laying of venue of any such suit, action or legal proceeding in any of
such courts.
(ii) This Agreement shall be construed in accordance with and
governed for all purposes by the laws of the State of Tennessee.
H. This Agreement may not be assigned, partitioned, subdivided,
pledged, or hypothecated in whole or in part without the express prior written
consent of the Employee and Company. This Agreement shall not be terminated
either by the voluntary or involuntary dissolution or the winding up of the
affairs of the Company, or by any merger or consolidation wherein the Company is
not the surviving corporation, or by any transfer of all or substantially all of
the Company's assets on a consolidated basis. In the event of any such merger,
consolidation or transfer of assets, the provisions of this Agreement shall be
binding upon and shall inure to the benefit of the surviving corporation or to
the corporation to which such assets shall be transferred.
I. If any amounts which are required or determined to be paid or
payable or reimbursed or reimbursable to the Employee under this Agreement (or
under any other plan, agreement, policy or arrangement with the Company) are not
so paid promptly at the times provided herein or therein, such amounts shall
accrue interest compounded daily at the annual percentage rate which is two
percentage points (2%) above the interest rate which is established by the
Company's primary banking subsidiary, from time to time, as its Prime Rate, from
the date such amounts were required or determined to have been paid or payable
or reimbursed or reimbursable to the Employee until such amounts and any
interest accrued thereon are finally and fully paid; provided, however, that in
no event shall the amount of interest contracted for, charged or received
hereunder exceed the maximum non-usurious amount of interest allowed by
applicable law.
22
J. The Company agrees with the Employee that, except to the extent
required by law, it will not make or publish, without the express prior written
consent of the Employee, any written or oral statement concerning the terms of
the Employee's employment relationship with the Company and will not, if the
Employee goes on part-time status for any reason or xxxxxx his employment with
the Company, make or publish any written or oral statement concerning the
Employee including, without limitation, his work-related performance or the
reasons or basis for the Employee going on part-time status or severing his
employment relationship with the Company.
10. TERMINATION OF PRIOR AGREEMENTS
This Agreement shall terminate and supersede any and all prior written or
oral agreements or understandings existing between the Company and the Employee
with respect to employment or compensation, including the Prior Agreement and
the Employment Agreement, dated as of July 5, 2000, to be effective upon a
"Change in Control", and the Company and the Employee hereby mutually release
and discharge each other from any further obligation, liability or
responsibility under any of the foregoing.
11. NOTICES
Any notice required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been given, except as otherwise
specifically provided herein, when delivered in person or when deposited in the
U.S. mail, registered or certified, postage prepaid, and mailed to the
respective addresses set forth herein. Either party may change his or its
address for notices hereunder by notifying the other party in writing of the
respective party's change of address.
12. DISPUTES; PAYMENT OF ATTORNEYS' FEES
If at any time during the term of this Agreement or afterwards there should
arise any dispute as to the validity, interpretation or application of any term
or condition of this Agreement, the Company agrees, upon written demand by the
Employee to promptly provide sums sufficient to pay on a current basis the
Employee's costs and reasonable attorneys' fees (including expenses of
investigation and the fees and expenses of experts, etc.) incurred by the
Employee in connection with any such dispute or any litigation, (x) provided
that the Employee shall repay any such amounts paid or advanced if the Employee
is not the prevailing party with respect to any dispute or litigation arising
under Sections 6, 7 or 8, or (y) regardless of whether the Employee is the
prevailing party in a dispute or in litigation involving any other provision of
this Agreement, provided that the court in which such litigation is first
initiated determines with respect to this obligation, upon application of either
party hereto, that the Employee did not initiate frivolously such litigation.
Under no circumstances shall the Employee be obligated to pay or reimburse the
Company for any attorneys'
23
fees, costs or expenses incurred by the Company. The provisions of this Section
12 shall survive the expiration or termination of this Agreement and of the
Employee's employment hereunder.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the day and year indicated above.
/s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxxx
000 Xxxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
NATIONAL COMMERCE
FINANCIAL CORPORATION
By: /s/ X. Xxxxxx Xxxxxxx, Jr.
------------------------------------
W. Xxxxx Xxxxxxx, Xx.
Chairman, Compensation Committee
24
