EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT 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. XXXXXXX ("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 modify and extend the contractual employment
arrangements of the Employee and the Company; and
WHEREAS, the employee is willing for his current employment agreement 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 or
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part-time status, the Employee shall serve as Chairman of the Board of Directors
of the Company, with the authority, duties and responsibilities commensurate
with such position. While employed by the Company on active or part-time
status, and until such time as the Employee retires from service on the Board of
Directors, the Employee shall serve as Chairman 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. If there is a
transaction involving the Company whereby Xxxxxx X. Xxxxxxxx surrenders his
position as Chief Executive Officer of the Company, or with the consent of
Xxxxxx X. Xxxxxxxx, a successor Chief Executive Officer is appointed, then
Employee will
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tender his resignation as Chairman of the Board allowing the election of Xxxxxx
X. Xxxxxxxx to the office of Chairman of the Board.
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 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 is placed
on or 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
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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
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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
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in all incentive or supplemental compensation plans and arrangements instituted
by the Company and 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
President and Chief Executive Officer 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
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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
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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,
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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.
E. Tax Indemnity. Should any of the payments of Base Salary, Part-
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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.
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F. (i) Change in Control - Operation of Section 3(F).
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(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 until July 5, 2003, so long as the 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 3(F)(i)(b); provided, however, if prior to July 5, 2003, a
transaction that would result in a Change in Control has been approved by
the Board of Directors of the Company but has not closed, then the Change
in Control provisions of the this Agreement shall remain in effect beyond
July 5, 2003 with respect to that transaction. 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
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Employee is employed by the Company on active status or part-time status
pursuant to Section 4(C)(i), 4(C)(ii), 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
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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 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 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 base amount less one
dollar ($1.00). The Employee's base amount shall be determined as defined
in Section 280G of the Internal Revenue Code of 1986, as amended (the
"Code"); provided, however, that amounts deferred under the Company's non-
qualified deferred compensation plan shall be included in determining the
base amount; further provided that such base amount shall not include any
payment received in connection with the merger of the Company with CCB
Financial Corporation or any compensation in years prior to 2000 (the
"Excluded 2000 Compensation"); further provided that such base amount shall
include compensation (other than Excluded 2000 Compensation) received by
the Employee after December 31, 1999 (which compensation shall be
annualized in the case of a partial year;
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
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,
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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
(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;
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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
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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.
4. TERMINATION, PART - TIME STATUS, AND REVISED COMPENSATION, DEATH,
DISABILITY
A. Termination. The employment of the Employee under this Agreement,
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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
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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 Company, and (B) any act, or failure to act,
based upon authority given pursuant to a resolution duly adopted by 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 July 5, 2006 (subject to the provisions
of Section 4(D)(iii) hereof).
B. Termination Payment For Cause. In the event of termination of the
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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) Part-time Status - Election by Company. 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), the Employee
shall, on the effective date of the notice, automatically be employed on
part-time status until July 5, 2006.
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(ii) Part-time Status - Election 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 immediately
place himself on part-time status and to terminate his employment under
this Agreement effective on July 5, 2006, if:
(a) the Company shall violate this Agreement in any material
respect;
(b) the Employee (other than by his own choice or pursuant to the
provisions of Section 1(A)) 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 Chairman of the Board of Directors
and Chairman 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.
(iii) Part-time Status - Election by Employee. (a) On or
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after January 1, 2002, and prior to July 5, 2003 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) (a) prior to July 5,
2003, 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;
(b) If the Employee is still employed by the Company on active
status on July 5, 2003, beginning on July 6, 2003, the Employee shall
automatically be employed on part-time status until July 5, 2006, unless
the Employee is terminated pursuant to Section 4(D)(v).
(iv) Termination - Election by Employee. Employee shall have
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the right at any time during his employment on active status, by giving
written notice to the Secretary of
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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
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Employee is on part-time status:
(i) (a) 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 on or after January 1, 2002
through July 5, 2003, 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(A)(iii), 4(C)(ii),Section 4(C) (iii)(a) or Section 4 (F) of
this Agreement is given;
(b) If the Employee goes on part-time status on July 6, 2003, the
Company shall pay to the Employee a Part-Time Base Salary from July 6, 2003
through July 5, 2006, in an amount equal to twenty-five percent (25%) 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 2003;
(c) If Employee is on part-time status on July 5, 2003, and has
been paid a Part-Time Base Salary pursuant to Section 4(D)(i)(a) above
based on 75% of total annual direct compensation, then on and after July 6,
2003 through July 5, 2006, the Part-Time Base Salary shall be reduced to
one-third (1/3) of the Part-Time Base Salary that had been in effect on
July 5, 2003, provided, however, that the Part-Time Base Salary shall be
subject to further adjustment pursuant to Section 4(D)(ii);
(d) As used in this Agreement the phrase "total annual direct
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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. 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 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
amount 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
12
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;
(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
13
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 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.
14
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);
(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)(i) 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)(i), 4(C)(ii) or 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
15
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 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 "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
Chief Executive Officer.
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
16
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 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. Employee and Company agree that Employee's background in the
grocery business, his leadership in the development and implementation of the
supermarket banking initiative of the Company provides the Company with a
nationwide potential for the concept of supermarket banking that is unique
within the banking industry and that the retention of the services of Employee
for the Company is a material consideration for this Agreement. The Employee,
therefore, further agrees at all times during the term of his employment
hereunder 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 engage in the
business of banking in supermarkets, grocery stores or other retail store
outlets anywhere in the United States. The business of banking as used in this
Section 6(B) shall include but not be limited to the direct or indirect
ownership interest licensing or consulting in or with regard to banking in
supermarkets, grocery stores or other retail store outlets.
C. 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
17
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 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
18
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
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.
19
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 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.
20
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.
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
Except with respect to that certain Deferred Compensation Agreement
dated December 1, 1983, between National Bank of Commerce and Employee, which
shall remain in full force and effect, 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 Employment Agreement, dated as of March 17, 2000,
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.
21
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' 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.
22
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the day and year indicated above.
/s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxx
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxx 00000
NATIONAL COMMERCE
FINANCIAL CORPORATION
By: /s/ W. Xxxxx Xxxxxxx, Xx.
-----------------------------------
W. Xxxxx Xxxxxxx, Xx.
Chairman, Compensation Committee
The Xxxxxxx Group, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
23
