EXHIBIT 10.3
FIRST COMMERCE CORPORATION
RETIREMENT BENEFIT RESTORATION PLAN
WHEREAS, First Commerce Corporation (the "Company")
adopted effective January 1, 1994, the "First Commerce
Corporation Retirement Benefit Restoration Plan ("Plan"),
which Plan is designed to pay to each eligible employee the
difference between (1) the benefit that the employee would
have received under the Retirement Plan for Employees of
First Commerce Corporation (the "Retirement Plan") if his
total earnings (other than the portion of any bonus in
excess of 30% of base pay) were taken into account and there
were no limits under Internal Revenue Code Sections
401(a)(17) and 415, and (2) the benefit he actually receives
under the Retirement Plan; and
WHEREAS, the Company, represented by its Chief
Executive Officer, acting by authority of its Board of
Directors, desires to provide for benefits to an employee
whose employment terminates after a change of control of the
Company, and who would otherwise be ineligible for benefits
under both the Plan and the Retirement Plan because of not
being vested under the Retirement Plan;
NOW, THEREFORE, effective January 1, 1996, the Company
amends and restates the Plan to read in is entirety as
follows:
Section 1. Definitions.
For purposes only of this plan, the Plan and the
Retirement Plan:
a. An "Employee" is any person employed by an
Employer.
b. An Employee's "Retirement Plan Compensation" for a
year shall be the same as his Compensation for that year
under the Retirement Plan as then written.
c. An Employee's "Total Compensation" for a year
shall be the same as his Retirement Plan Compensation for
that year, except that (1) the portion (if any) of an
Employee's bonus for the year in excess of 30% of base pay
for the year shall not be included and (2) the dollar limitation
required by Internal Revenue Code Section 401(a)(17) to be
imposed on Retirement Plan Compensation shall be ignored.
d. An Employee's "Excess Compensation" for any year
shall be the difference between his Total Compensation and
his Retirement Plan Compensation for that year.
Any capitalized term used in this Plan document that is
not defined herein but is defined in the Retirement Plan
document, as amended, shall have the same meaning as is
given to it in the Retirement Plan document, as amended.
Additional definitions appear in the Appendix.
Section 2. Participation.
Every participant in the Retirement Plan who in 1993 or
any year thereafter receives Excess Compensation of $1,000
or more shall become a participant in the Plan
("Participant") upon such person's Entry Date if still an
Employee on that date. A person's "Entry Date" is the
latest of (a) January 1, 1994, (b) the last day of the year
in which such person becomes fully vested under the
Retirement Plan, or (c) the last day of the first year in
which such person has Excess Compensation of $1,000 or more;
provided, however, that the Entry Date of an Employee has
met the requirements under (a) and (c), but not under (b)
shall be the date on which a Change of Control occurs.
Section 3. Payment of Benefit.
a. The benefit payable under the Plan shall be known
as the "Restoration Benefit".
b. The Restoration Benefit shall be paid in the same
form and at the same time as the benefit paid to the
Participant under the Retirement Plan.
c. If no benefit is payable under the Retirement Plan
because the Participant is not vested under that plan, a
benefit shall nevertheless be payable under the Plan if a
Change of Control has occurred and the Participant's
Termination of Employment occurs involuntarily and without
Cause, or voluntarily for Good Reason, within 24 months
following the Change of Control. The benefit in that event
shall be payable beginning the month after the Termination
of Employment, in the form of a Life Annuity, if the
Participant is then unmarried, or in the form of a Qualified
Joint and Survivor Annuity, if the Participant is then
married. The terms "Change of Control", "Cause" and "Good
Reason" are defined in the Appendix.
Section 4. Amount of the Benefit.
a. Unless Paragraph (c) of Section 3 applies, the
amount of the Restoration Benefit shall be equal to A minus
B, where
"A" = The benefit that the Participant would have
received under the Retirement Plan if (1) Total
Compensation rather than Retirement Plan
Compensation were used to calculate his Accrued
Benefit with respect to each year of participation
in the Retirement Plan, and (2) the annual benefit
limitations under Code Section 415 did not apply.
"B" = The benefit that the Participant actually
receives under the Retirement Plan.
b. If Paragraph (c) of Section 3 applies, the amount
of the Restoration Benefit shall be equal to the benefit
that the Participant would have received under the
Retirement Plan if (1) he had been vested under the
Retirement Plan, (2) Total Compensation were used to
calculate his Accrued Benefit with respect to each year of
participation in the Retirement Plan, and (3) the annual
benefit limitations under Code Section 415 did not apply.
Section 5. Survivor Benefit.
a. The provisions of this Paragraph (a) apply if the
provisions of Paragraph (c) of Section 3 do not apply. Upon
a Participant's death no benefit shall be paid under the
Plan unless a benefit is payable to a surviving annuitant or
beneficiary under the Retirement Plan. The amount of the
benefit payable to the beneficiary or surviving annuitant
under the Plan shall be equal to the difference between the
benefit that would have been paid under the Retirement Plan
if Total Compensation had been taken into account and there
were no annual benefit limit, and the benefit actually paid
under the Retirement Plan. The benefit shall be paid to the
same person, in the same form, and for the same term as the
benefit under the Retirement Plan.
b. The provisions of this Paragraph (b) apply if the
provisions of Paragraph (c) of Section 3 do apply. If the
Participant dies after his termination of employment the
only death benefit will be a survivor annuity if the
Participant was married when the benefit commenced (and
therefore entitled to a Qualified Joint and Survivor Annuity
under Paragraph 3(b)) and the spouse to whom the Participant
was married when the annuity began survived the Participant.
If the Participant dies before his termination of employment
survived by a spouse, the surviving spouse shall receive a
Qualified Preretirement Survivor Annuity equal to the amount
the spouse would have received under the Retirement Plan if
the Participant had been vested under that plan. No other
death benefit shall be paid under the Plan.
Section 6. Company's Obligation
The Company and the Participant's Employer or Employers
shall be responsible to pay the benefits provided for in
this Plan.
Section 7. Plan Administration.
a. The Director of Human Resources of First Commerce
Corporation shall be the Plan Administrator.
b. The Plan Administrator may appoint such agents,
attorneys, accountants, and actuaries as may be required to
administer the Plan.
c. The Plan Administrator shall make all decisions in
connection with the administration of the Plan, including
decisions concerning eligibility to participate and amounts
of benefits. The Plan Administrator shall have the sole
authority to interpret the Plan, and all of its decisions
shall be final and binding on all persons affected thereby.
Section 8. Assignment.
To the extent that a Participant, survivor annuitant or
beneficiary acquires a contractual right to receive a
Restoration Benefit, such right shall not be subject to
assignment, pledge (including collateral for a loan or
security for the performance of an obligation), encumbrance
or transfer. Any attempt to assign, pledge, encumber or
transfer such rights shall not be recognized.
Section 9. Amendment and Termination.
The Company, through its Board of Directors or any
person to whom it has delegated the power, reserves the
right to amend the Plan, including discontinuing further
accrual of benefits hereunder, provided that no such
amendment shall reduce a Participant's already accrued
Restoration Benefit or affect the vesting of the Restoration
Benefit. The Company also reserves the right to terminate
the Plan at any time and distribute to all Participants the
Actuarial Equivalent of their Restoration Benefit earned to
that date.
Section 10. Governing Law.
The Plan shall be governed by the laws of the State of
Louisiana.
Section 11. Funding.
Participants, surviving annuitants and beneficiaries
have only an unsecured right to receive their Restoration
Benefits, as general creditors of their Employers and the
Company. The company, however, has undertaken to fund its
obligations through a Retirement Benefit Restoration Trust,
to which it may make contributions from time to time.
Assets of the Trust are subject to the payment of claims of
general creditors of the Company or any Employer upon the
Company's or Employer's insolvency. The Company's and
Employers' obligations under the Plan are not limited to the
amount in the Trust.
Section 12. Demand for Benefit.
Benefits upon termination of employment shall
ordinarily be paid to a Participant without the need for
demand, and to a surviving annuitant or beneficiary upon
receipt of the surviving annuitant or beneficiary's address
and Social Security number (and evidence of death, if
needed). Nevertheless, a Participant or a person claiming
to be a surviving annuitant or beneficiary can file a claim
for benefits with the Plan Administrator. The Plan
Administrator shall accept or reject the claim within 30
days of its receipt. If the claim is denied, the Plan
Administrator shall give the reason for denial in a written
notice calculated to be understood by the claimant,
referring to the Plan provisions that form the basis of the
denial. If any additional information or material is
necessary to perfect the claim, the Plan Administrator will
identify these items and explain why such additional
material is necessary. If the Plan Administrator neither
accepts nor rejects the claim within 30 days, the claim
shall be deemed to be denied. Upon the denial of a claim,
the claimant may file a written appeal of the denied claim
to the Plan Administrator within 60 days of the denial. The
claimant shall have the opportunity to be represented by
counsel and to be heard at a hearing. The claimant shall
have the opportunity to review pertinent documents and the
opportunity to submit issues and argue against the denial in
writing. The decision upon the appeal must be made no later
than the later of (a) 60 days after receipt of the request
for review, or (b) 30 days after the hearing. The Plan
Administrator must set a date for such a hearing within 30
days after receipt of the appeal. In no event shall the
date of the hearing be set later than 60 days after receipt
of the notice. If the appeal is denied, the denial shall be
in writing. If an initial claim is denied, and the claimant
is ultimately successful, all subsequent reasonable
attorney's fees and costs of claimant, including the filing
of the appeal with the Plan Administrator, and any
subsequent litigation, shall be paid by the Employer unless
the failure of the Employer to pay is caused by reasons
beyond its control, such as insolvency or bankruptcy.
Thus done and signed on this ___ day of _______________,
1996, in the presence of the undersigned competent
witnesses.
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
Retirement Benefit Restoration Plan document as a free act
and deed on behalf of First Commerce Corporation for the
purpose therein set forth.
SWORN TO AND SUBSCRIBED
BEFORE ME THIS ____ DAY
OF _________________, 1996.
APPENDIX TO
FIRST COMMERCE CORPORATION
RETIREMENT BENEFIT RESTORATION PLAN
(As restated in September, 1996, effective January 1, 1996)
1. Change of Control. "Change of Control" means
a. The acquisition by any individual, entity or group
within the meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934, as amended (the
"34 Act")(a "person") of beneficial ownership (within
the meaning of Rule 13d-3 under the 34 Act) of 40% or
more of either (i) the Company's then outstanding
common stock ("Outstanding Stock") or (ii) the combined
voting power of its then outstanding voting securities
entitled to vote generally in the election of directors
("Outstanding Voting Securities") other than any
acquisition (i) by any employee benefit plan (or
related trust) sponsored or maintained by the Company
or any entity controlled by it or (ii) by any entity
pursuant to a transaction which complies with Section
2(c)(i), (ii) or (iii); or
b. Individuals who as of the date hereof constitute the
Board (the "Incumbent Board") cease for any reason to
constitute at least a majority thereof; provided,
however, that any individual becoming a director
subsequent to the date hereof whose election or
nomination was approved by a vote of at least a
majority of the directors then comprising the Incumbent
Board shall be considered as a member of the Incumbent
Board unless his or her initial assumption of office
occurs as a result of an actual or threatened contest
with respect to the election or removal of directors or
other actual or threatened solicitation of proxies by
or on behalf of a Person other than the Board; or
c. Consummation of a reorganization, merger or
consolidation, share exchange or sale or other
disposition of all or substantially all of the
Company's assets (a "Combination") unless immediately
thereafter (i) all or substantially all of the
beneficial owners of the Outstanding Stock and
Outstanding Voting Securities immediately prior to such
Combination beneficially own, directly or indirectly,
more than 50% of, respectively, the then outstanding
shares of common stock and the combined voting power of
the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may
be, of the entity resulting from such Combination
(including, without limitation, an entity which as a
result of such transaction owns the Company or all or
substantially all of its assets either directly or
through one or more subsidiaries) in substantially the
same proportions as their ownership immediately prior
to such Combination of the Outstanding Stock and
Outstanding Voting Securities, as the case may be, (ii)
no Person (excluding any entity resulting from such
Combination or any employee benefit plan (or related
trust) of the Company or such resulting entity)
beneficially owns, directly or indirectly, 20% or more
of, respectively, the then outstanding shares of common
stock of the resulting entity or the combined voting
power of the then outstanding voting securities of such
entity except to the extent that such ownership existed
prior to the Combination and (iii) at least a majority
of the members of the board of directors of the
resulting entity were members of the Incumbent Board at
the time of the execution of the initial agreement or
of the action of the Board providing for such
Combination; or
2. Cause. "Cause" means
a. Participant's willful and continued failure to
perform substantially his duties (other than any such
failure resulting from incapacity due to physical or
mental illness), after a written demand for substantial
performance is delivered to him by the Board or the
Chief Executive Officer of the Company which
specifically identifies the manner in which the Board
or Chief Executive Officer believes that he has not
substantially performed his duties, or
b. Participant's willful engaging in illegal conduct or
gross misconduct.
No act or failure to act, on the Participant's part shall be
considered "willful" unless it is done, or omitted to be
done, by him in bad faith or without reasonable belief that
his action or omission was in the Company's best interests.
Any act, or failure to act, based upon authority given
pursuant to a resolution of the Board or instructions of the
Chief Executive Officer or a senior officer of the Company
or the advice of counsel for the Company shall be
conclusively presumed to be in good faith and in the
Company's best interests. The cessation of Participant's
employment shall not be deemed to be for Cause unless and
until there shall have been delivered to him a copy of a
resolution duly adopted by the vote of not less than three-
quarters of the entire membership of the Board at a meeting
called and held for such purpose (after reasonable notice is
provided to the Participant and he is given an opportunity,
together with counsel, to be heard before the Board),
finding that, in the Board's good faith opinion, the
Participant is guilty of the conduct described in
subparagraph (i) or (ii) above, and specifying the
particulars thereof in detail.
3. Good Reason. "Good Reason" means:
a. the Company providing assignments that in any
material respect are inconsistent with or result in a
diminution of the Participant's position, authority,
duties and responsibilities, excluding an isolated,
insubstantial and inadvertent action not taken in bad
faith and which is remedied by the Company promptly
after receipt of notice thereof given by the
Participant;
b. a reduction of the Participant's compensation and
benefits package for reasons other than an across-the-
board reduction, other than an isolated, insubstantial
and inadvertent failure not occurring in bad faith and
which is remedied by the Company promptly after receipt
of notice thereof given by the Participant;
c. the Company's requiring him to be based at any
office or location other than the location where he was
employed immediately preceding the Change of Control,
or any office or location within the State of Louisiana
during the 13-month period beginning on the date of the
Change of Control and less than 35 miles from the
location where he was previously employed (provided
that, in the case of any relocation, the Company pays
all of Participant's expenses reasonably related to
such relocation), or to travel on Company business to
a substantially greater extent than reasonably required
for the performance of his duties;
Any good faith determination of "Good Reason" made by the
Participant shall create a rebuttable presumption that "Good
Reason" exists. Anything in this Agreement to the contrary
notwithstanding, a termination by the Participant for any
reason during the 30-day period immediately following the
first anniversary of the Change of Control shall be deemed
to be a termination for Good Reason for all purposes of this
Agreement.