EXHIBIT 10.9
FIRST AMENDMENT TO AMENDED AND RESTATED
AGREEMENT RESPECTING EMPLOYMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED AGREEMENT RESPECTING
EMPLOYMENT ("First Amendment"), dated as of the 27 day of July 1998, is made and
entered into by and between National Bank of Commerce, a national banking
association (the "Company"), National Commerce Bancorporation, a Tennessee
corporation (the "NCBC"), and Xxxxxx X. Xxxxxxx ("Employee") and amends certain
provisions of the Amended and Restated Agreement Respecting Employment by and
between the Company, NCBC and Employee, dated as of September 1, 1993 (the
"Agreement").
WHEREAS, the Company, NCBC and Employee have determined that it is in the
best interests of the parties to the Agreement to amend the Agreement to modify
certain provisions.
NOW, THEREFORE, the parties hereto agree as follows:
I . Section 3(C) of the Agreement is hereby amended by adding the
following sentence to the end of such Section:
For purposes of this Section 3(C), payments from NCBC or any affiliate or
successor of the Company or NCBC shall be treated as payments from the Company.
2. Section 3(D)(ii) of the Agreement is hereby amended by amending the
first two sentences of the such Section to read in their entirety as follows:
If, while the Employee is employed by the Company on active status or
part-time status pursuant to either Section 4(C)(i), (ii) or (iii) or
Section 4(F), a Change in Control (as defined in subsection (b) of
Section 3(D)(i)) occurs, Employee may, in his sole discretion, within
eighteen (18) months after the date of the Change in Control 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(D) (the "Notice of Intention"). The right to give
such Notice of Intention to elect to receive the payment provided for in
subsection (iii) of this Section 3(D) shall continue for eighteen (18) or
twelve (12) months from the date of the Change in Control, respectively,
irrespective of any action by the Company pursuant to Section 4(A)(iii)
or Section 4(F) or by Employee pursuant to Section 4(C)(ii) or (iii)
within such eighteen (18) or twelve (12) month period.
3. Section 3(D)(iii) of the Agreement is hereby amended by adding the
following provisions to the end of such Section.
(c) If Employee gives the Notice of Exercise, in addition to the lump sum
payment under paragraph (a) above, the Company shall pay to Employee in a lump
sum in cash within five (5) business days after the date of the Notice of
Exercise the aggregate of the following amounts:
(1) the sum of (A) Employee's Base Salary through the date of the Notice of
Exercise, (B) the product of (x) the highest annual bonus paid or payable,
including any bonus or portion thereof which has been earned but deferred,
during the three year period immediately prior to the date of the Notice of
Exercise (such amount being referred to as the "Highest Annual Bonus") and (y) a
fraction, the numerator of which is the number of days in the current fiscal
year through the date of the Notice of Exercise, and the denominator of which is
365 and (C) any accrued vacation pay, in each case to the extent not theretofore
paid; and
(2) the amount equal to the excess (without any present value discount) of
(A) the actuarial equivalent of the benefit under the Company's qualified
defined benefit retirement plan (the "Retirement Plan") (utilizing actuarial
assumptions no less favorable to Employee than those in effect under the
Company's Retirement Plan immediately prior to the Change of Control), and the
National Bank of Commerce Supplemental Employee Retirement Plan as Amended and
Restated (the "SERP") which Employee would receive if 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 Employee's compensation in each of the three years is
the Employee's highest Base Salary during the three year period immediately
preceding the date of the Notice of Exercise and the Highest Annual Bonus, over
(B) the actuarial equivalent of Employee's actual benefit (paid or payable), if
any, under the Retirement Plan and the SERP as of the Date of the date of the
Notice of Exercise; and
(d) If Employee gives the Notice of Exercise, for three years after the
date of the Notice of Exercise, or such longer period as may be provided by the
terms of the appropriate plan, program, practice or policy the Company shall
continue to provide welfare benefits (including, without limitation, medical,
prescription, dental, disability, employee life, group life, accidental death
and travel accident insurance plans and programs) to Employee and/or Employee's
eligible dependents at least equal to those provided to Employee at any time
during the 120-day period immediately preceding the Change in Control or, if
more favorable to Employee, those provided generally at any time after the
Change in Control to other peer executives of the Company and its affiliated
companies; ided, however, that if Employee becomes reemployed with another
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employer and is eligible to receive medical or other welfare benefits under
another employer provided plan, the medical and other welfare benefits described
herein shall be secondary to those provided under such other plan during such
applicable period of eligibility. For purposes of determining eligibility (but
not the time of commencement of benefits) of Employee for retiree benefits
pursuant to such plans, practices, programs and policies, Employee shall be
considered to have remained employed until three years after the Notice of
Exercise and to have retired on the last day, if such period. In addition to,
and not in limitation of, the benefits provided by the foregoing, after
termination of Employee's employment with the Company, the Company shall at
least provide medical and dental insurance coverage for Employee and his spouse
for their lifetimes that is comparable to the medical and dental insurance
coverage provided by the Company to its principal executive officers as of
September 1, 1993, and the Company shall be entitled to credits for coverage to
Employee and his spouse provided by Medicare.
(e) If Employee gives the Notice of Exercise, Employee shall be entitled to
the provision of the benefits and services set forth in Section 4(D)(viii) of
the Agreement until the later of (a) Employee's attainment of age 65 or (b)
Employee ceasing to be on the Board of Directors of NCBC, the Company or their
successors.
4. Except as expressly modified hereby, the terms and provisions of
the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be duly executed and delivered as of the date first above written.
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Xxxxxx X. Xxxxxxx
NATIONAL BANK OF COMMERCE
By:
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NATIONAL COMMERCE BANCORPORATION
By:
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