EXHIBIT 10.3
RESTATEMENT OF
FIRST COMMERCE CORPORATION
SUPPLEMENTAL TAX-DEFERRED SAVINGS TRUST AGREEMENT
(a) This Restatement of Trust Agreement made this 21st day
of February, 1995, by First Commerce Corporation ("Company");
(b) WHEREAS, Company has adopted a nonqualified deferred
compensation plan known as the First Commerce Corporation Tax-
Deferred Savings Plan ("Plan");
(c) WHEREAS, the employers (including the Company) that
participate in the Plan (the "Employers") expect to incur
liability under the terms of the Plan with respect to their
employees who participate in the Plan ("Participating
Employees"), as well as the surviving Beneficiaries of deceased
Participating Employees;
(d) WHEREAS, Company, together with First National Bank of
Commerce ("Trustee") established on March 27, 1989, a trust,
known as the First Commerce Corporation Tax-Deferred Savings
Trust (hereafter referred to as the "Trust"), to which the
Employers can contribute assets that are held therein, subject to
the claims of each Employer's creditors in the event of the
Employer's Insolvency, as herein defined, until paid to
Participating Employees and Beneficiaries in such manner and at
such times as specified in the Plan;
(e) WHEREAS, it is the intention of the parties that the
Trust constitute an unfunded arrangement that does not affect the
status of the Plan as an unfunded plan maintained for the purpose
of providing deferred compensation for a select group of
management or highly compensated employees for purposes of Title
I of the Employee Retirement Income Security Act of 1974;
(f) WHEREAS, it is the intention of the Employers that they
will continue to make contributions to the Trust to provide
themselves with a source of funds to assist them in meeting their
liabilities under the Plan; and
(g) WHEREAS, the Company, having reserved the power to
amend the Trust, now desires to amend and restate the Trust in
order to follow more closely the wording of the IRS model form of
rabbi trust published at Rev. Proc. 92-64;
NOW, THEREFORE, the Company, pursuant to its reserved power
to amend the Trust, and acting through its undersigned authorized
officer by authority of the Board of Directors of the Company,
hereby amends and restates the Trust to read in its entirety as
follows:
SECTION 1. ESTABLISHMENT OF TRUST
(a) This Trust Agreement, as amended hereafter, shall
contain all of the operative provisions of the Trust. Trustee
agrees to hold all the current assets of the Trust and all future
contributions under the terms and conditions of this Trust
Agreement, as it may be amended in the future.
(b) The Trust is irrevocable. For purposes of La. R.S.
9:1801, every Employer under the Plan is a beneficiary of the
Trust.
(c) The Company intends that the Trust be a grantor trust,
of which the Employers are the grantors -- within the meaning of
subpart E, part I, subchapter J, chapter 1, subtitle A of the
Internal Revenue Code of 1986, as amended -- and this Trust
Agreement shall be construed accordingly.
(d) The principal of the Trust, and any earnings thereon
shall be held separate and apart from other funds of the
Employers, and shall be used exclusively for the uses and
purposes of Participating Employees and their Beneficiaries, and
the general creditors of the Employers, as herein set forth.
Participating Employees and their Beneficiaries shall have no
preferred claim on, or any beneficial ownership interest in, any
assets of the Trust. Any rights created under the Plan and this
Trust Agreement shall be mere unsecured contractual rights of
Participating Employees and their Beneficiaries against the
Employers. The assets of the Trust will be subject to the claims
of an Employer's general creditors under federal and state law in
the event of the Employer's Insolvency, as defined in Section
3(a) herein.
(e) The Employers, in their sole discretion, may at any
time, or from time to time, make additional deposits of cash or
other property in trust with Trustee, to augment the principal to
be held, administered and disposed of by Trustee as provided in
this Trust Agreement. Neither Trustee nor any Participating
Employee or Beneficiary shall have any right to compel such
additional deposits.
SECTION 2. PAYMENTS TO PARTICIPATING EMPLOYEES AND THEIR
BENEFICIARIES.
(a) From time to time the Company's Director of Human
Resources ("Plan Administrator") shall deliver to Trustee a
schedule (the "Payment Schedule") that indicates the amounts
payable in respect of each Participating Employee and
Beneficiary, that provides a formula or other instructions
acceptable to Trustee for determining the amounts so payable, the
form in which such amount is to be paid (as provided for or
available under the Plan), and the time of commencement for
payment of such amounts. Except as otherwise provided herein,
Trustee shall make payments to Participating Employees and
Beneficiaries in accordance with such Payment Schedule. The
amount credited to an account under Section 4 to fund the
Employers' obligations under the Plan to a specific Participating
Employee shall be debited from the account only if the Plan
Administrator indicates on the Payment Schedule that the payment
is to be made to that Participating Employee or his Beneficiary.
Trustee shall make provision for the reporting and withholding of
any federal, state or local taxes that may be required to be
withheld with respect to the payment of benefits pursuant to the
terms of the Plan and shall pay amounts withheld to the
appropriate taxing authorities or determine that such amounts
have been reported, withheld and paid by the Employers.
(b) The entitlement of a Participating Employee or
Beneficiary to benefits under the Plan shall be determined by the
Plan Administrator, and any claim for such benefits shall be
considered and reviewed under the procedures set out in the Plan.
(c) An Employer may make payment of benefits directly to
Participating Employees and Beneficiaries as they become due
under the terms of the Plan. The Company shall notify Trustee of
any such direct payments of benefits prior to the time the
benefits are payable. In addition, if the assets of the Trust,
including any earnings, are not sufficient to make payments of
benefits in accordance with the terms of the Plan, the Employers
shall remain liable under the Plan to make the balance of each
such payment as it falls due. Trustee shall notify the Company
when the assets of the Trust are not sufficient to make currently
due payments.
SECTION 3. TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO
TRUST BENEFICIARY WHEN EMPLOYER IS INSOLVENT.
(a) Trustee shall cease payment of benefits to
Participating Employees and their Beneficiaries if any Employer
is Insolvent. An Employer shall be considered "Insolvent" for
purposes of this Trust Agreement if (i) the Employer is unable to
pay its debts as they become due, or (ii) the Employer is subject
to a pending proceeding as a debtor under the United States
Bankruptcy Code.
(b) At all times during the continuance of this Trust, as
provided in Section 1(d) hereof, the principal and income of the
Trust shall be subject to claims of general creditors of each
Employer under federal and state law as set forth below.
(c) The Board of Directors and the Chief Executive Officer
of the Company shall have the duty to inform Trustee in writing
of an Employer's Insolvency. If a person claiming to be a
creditor of an Employer alleges in writing to Trustee that the
Employer has become Insolvent, Trustee shall determine whether
the Employer is Insolvent and, pending such determination,
Trustee shall discontinue payment of benefits to Participating
Employees and Beneficiaries out of the Trust.
(d) Unless Trustee has actual knowledge of an Employer's
Insolvency, or has received notice from the Employer or a person
claiming to be a creditor alleging that Employer is Insolvent,
Trustee shall have no duty to inquire whether the Employer is
Insolvent. Trustee may in all events rely on such evidence
concerning the Employer's solvency as may be furnished to Trustee
and that provides Trustee with a reasonable basis for making a
determination concerning the Employer's solvency.
(e) If at any time Trustee has determined that an Employer
is Insolvent, Trustee shall discontinue payments to Participating
Employees and Beneficiaries and shall hold the assets of the
Trust for the benefit of the general creditors of the Insolvent
Employer. Nothing in this Trust Agreement shall in any way
diminish any rights of Participating Employees and Beneficiaries
to pursue their rights as general creditors of the Employer with
respect to benefits due under the Plan or otherwise.
(f) Trustee shall resume the payment of benefits to
Participating Employees and Beneficiaries out of the Trust in
accordance with Section 2 of this Trust Agreement only after
Trustee has determined that the Employer is not Insolvent (or is
no longer Insolvent).
(g) Provided that there are sufficient assets, if Trustee
discontinues the payment of benefits from the Trust pursuant to
Section 3(b) hereof and subsequently resumes such payments, the
first payment following such discontinuance shall include the
aggregate amount of all payments due to Participating Employees
and Beneficiaries under the terms of the Plan for the period of
such discontinuance, less the aggregate amount of any payments
made to those Participating Employees and Beneficiaries by any
Employer in lieu of the payments provided for hereunder during
the period of discontinuance.
SECTION 4.PAYMENTS TO EMPLOYERS.
Except as provided in Section 3 hereof, no Employer shall
have the right or power to direct Trustee to return to the
Employer or to divert to others any of the Trust assets before
all payment benefits have been paid to Participating Employees
and Beneficiaries pursuant to the terms of the Plan.
SECTION 5. INVESTMENTS.
(a) In no event may Trustee acquire any policy of insurance
on the life of any individual. Otherwise, Trustee can invest in
any assets that are permitted for Louisiana trustees to invest
in, including stock or obligations of the Company. All rights
associated with assets of the Trust (including the right to vote
Company stock) shall be exercised by Trustee or the person
designated by Trustee, and shall in no event be exercisable by or
rest with Participating Employees or Beneficiaries. The Company,
acting through its board of directors or the board's delegate,
shall have the right at any time and from time to time, in its
sole discretion, to substitute assets of equal fair market value
for any asset held in the Trust. This right is exercisable by
the Company in a nonfiduciary capacity without the approval or
consent of any person in a fiduciary capacity.
(b) An account shall be kept by the Trustee in the name of
each Participating Employee under the Plan, to which shall be
credited that portion of each contribution which is identified by
the Employers as funding their liability under the Plan to that
Participating Employee.
(c) The Trustee may register the assets comprising the
Trust in the name of the Trustee or the Trustee's nominee.
Further, the Trustee may hold any security in bearer form.
SECTION 6. DISPOSITION OF INCOME.
During the term of this Trust, all income received by the
Trust, net of expenses and taxes, shall be accumulated and
reinvested.
SECTION 7. ACCOUNTING BY TRUSTEE.
Trustee shall keep accurate and detailed records of all
investments, receipts, disbursements, and all other transactions
required to be made, including such specific records as shall be
agreed upon in writing between the Plan Administrator and
Trustee. Within thirty days following each Valuation Date under
the First Commerce Corporation Tax-Deferred Savings Plan ("401(k)
Plan") and within thirty days after the removal or resignation of
Trustee, Trustee shall deliver to the Plan Administrator a
written account of its administration of the Trust since the
preceding Valuation Date, setting forth all investments,
receipts, disbursements and other transactions effected by it,
including a description of all securities and investments
purchased and sold with the cost or net proceeds of such
purchases or sales (accrued interest paid or receivable being
shown separately), and showing all cash, securities and other
property held in the Trust and in each account as of the
Valuation Date or the date of such removal or resignation, as the
case may be. To the greatest extent practical, the same
accounting and valuation methods shall be used to recalculate
account balances as are used for the 401(k) Plan.
SECTION 8. RESPONSIBILITIES OF TRUSTEE.
(a) Trustee may consult with legal counsel (who may also be
counsel for Company generally) with respect to any of its duties
or obligations hereunder.
(b) Trustee may hire agents, accountants, actuaries,
investment advisors, financial consultants or other professionals
to assist it in performing any of its duties or obligations
hereunder.
(c) Trustee shall have, without exclusion, all powers
conferred on Trustees by applicable law, unless expressly
provided otherwise herein.
(d) Notwithstanding any powers granted to Trustee pursuant
to this Trust Agreement or to applicable law, Trustee shall not
have any power that could give this Trust the objective of
carrying on a business and dividing the gains therefrom, within
the meaning of section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Internal
Revenue Code.
SECTION 9. COMPENSATION AND EXPENSES OF TRUSTEE.
The Company shall pay all administrative and Trustee's fees
and expenses. If not so paid, the fees and expenses shall be
paid from the Trust.
SECTION 10. RESIGNATION AND REMOVAL OF TRUSTEE.
(a) Trustee may resign at any time by written notice to the
Company's chief executive officer, which shall be effective
thirty days after receipt of such notice unless the chief
executive officer and Trustee agree otherwise.
(b) Trustee may be removed by the Company's chief executive
officer on thirty days notice or upon shorter notice accepted by
the Trustee.
(c) Upon resignation or removal of Trustee and appointment
of a successor Trustee, all assets shall subsequently be
transferred to the successor Trustee. The transfer shall be
completed within thirty days after receipt of notice of
resignation, removal or transfer, unless the Company's chief
executive officer extends the time limit.
(d) If Trustee resigns or is removed, a successor shall be
appointed, in accordance with Section 11 hereof, by the effective
date of resignation or removal under paragraph (a) or (b) of this
section. If no such appointment has been made, Trustee may apply
to a court of competent jurisdiction for appointment of a
successor or for instructions. All expenses of Trustee in
connection with the proceeding shall be allowed as administrative
expenses of the Trust.
SECTION 11. APPOINTMENT OF SUCCESSOR.
(a) If Trustee resigns or is removed, in accordance with
Section 10(a) or (b) hereof, the Company's chief executive
officer shall have the power to appoint a successor Trustee,
which appointment shall be effective when accepted in writing by
the new Trustee, who shall have all of the rights and powers of
the former Trustee, including ownership rights in the Trust
assets. The former Trustee shall execute any instrument
necessary or reasonable requested by the Company or the successor
Trustee to evidence the transfer.
(b) The successor Trustee need not examine the records and
acts of any prior Trustee and may retain or dispose of existing
Trust assets, subject to Sections 7 and 8 hereof. The successor
Trustee shall not be responsible for and Company shall indemnify
and defend the Successor Trustee from any claim or liability
resulting from any action or inaction of any prior Trustee or
from any other past event, or any condition existing at the time
it becomes successor Trustee.
SECTION 12. AMENDMENT OR TERMINATION.
(a) This Trust Agreement may be amended by a written
instrument approved by the Company's board of directors and
executed by its chief executive officer, and accepted by Trustee.
Notwithstanding the foregoing, no such amendment shall conflict
with the terms of the Plan or make the Trust revocable.
(b) Although the Company intends to continue the Trust in
operation indefinitely, the Company nevertheless expressly
reserves the right, through its board of directors, to terminate
the Trust in whole or in part or discontinue contributions. Upon
such a termination, the assets of the Trust shall be distributed
to Participating Employees and Beneficiaries as directed by the
Plan Administrator, provided that the provisions of Section 3 of
this Trust Agreement are not applicable at that time. Any assets
remaining after payment of all amounts owed under the Plan and
Trust to Participating Employees and Beneficiaries and payment of
all Trustee fees and expenses shall be delivered to the Company.
SECTION 13. MISCELLANEOUS.
(a) Any provision of this Trust Agreement prohibited by law
shall be ineffective to the extent of any such prohibition,
without invalidating the remaining provisions hereof.
(b) Benefits payable to Participating Employees and
Beneficiaries under this Trust Agreement may not be anticipated,
assigned (either at law or in equity), alienated, pledged,
encumbered or subjected to attachment, garnishment, levy,
execution or other legal or equitable process.
(c) This Trust Agreement shall be governed by and construed
in accordance with the laws of the State of Louisiana.
SECTION 14. EFFECTIVE DATE.
This restated Trust Agreement shall be effective
immediately.
WITNESSES: FIRST COMMERCE CORPORATION
_____________________________ BY:__________________________
_____________________________ TITLE:_______________________
ACKNOWLEDGMENT
STATE OF LOUISIANA
PARISH OF ORLEANS
BEFORE ME, the undersigned Notary Public, personally came
and appeared _____________________________, who being by me sworn
did depose and state that he signed the foregoing restated
Supplemental Tax-Deferred Savings Trust Agreement as a free act
and deed on behalf of First Commerce Corporation, for the
purposes therein set forth.
_________________________________
SWORN TO AND SUBSCRIBED BEFORE ME
THIS _____ DAY OF _________, 1995.
________________________________
NOTARY PUBLIC