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
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 Administer may appoint such agents, attorneys,
accounts, 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 31st day of January, 1997, in the
presence of the undersigned competent witnesses.
WITNESSES: FIRST COMMERCE CORPORATION
/s/ Witness By: /s/ Ian Arnof
- ------------ --------------
/s/ Witness Title: Chief Executive Officer
- ------------ -----------------------
Adoption of Amendment Recommended
/s/ Director of Human Resources
- --------------------------------
Director of Human Resources
ACKNOWLEDGMENT
STATE OF LOUISIANA
PARISH OF ORLEANS
BEFORE ME, the undersigned Notary Public, personally came and
appeared Ian Arnof, 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.
/s/ Ian Arnof
--------------
SWORN TO AND SUBSCRIBED
BEFORE ME THIS 31st DAY
OF January, 1997.
/s/ Notary Public
- ------------------
Notary Public
Joyce L. Schenewerk
Notary Public
State of Louisiana, Parish of Orleans
My commission is issued for life
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.
FIRST COMMERCE CORPORATION
RETIREMENT BENEFIT RESTORATION PLAN
AMENDMENT
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 supplement the Retirement Plan for Employees of First
Commerce Corporation (the "Retirement Plan"); and
WHEREAS, the Company reserved the right to amend the Plan,
and now desires to amend the Plan to provide generally for the
payment of benefits under similar supplemental benefit plans when
required pursuant to a corporate merger, and to provide for one
such plan in particular;
WHEREAS, the Director of Human Resources has determined that
the amendment does not require approval of the Company's board of
directors because any increase in the cost of the Plan resulting
from the amendment is pursuant to the corporate merger that has
already been approved by the board;
NOW, THEREFORE, effective August 1, 1996, the Plan is hereby
amended as follows:
I.
Section 9 of the Plan document is hereby amended by adding
thereto the following:
In the event of a corporate merger under which the
Company assumes obligations under a non-qualified
supplemental retirement plan (similar to this Plan)
that had been sponsored by the formerly-unrelated
employer, the benefit obligations under such employer's
plan may be transferred to this Plan. The obligations
shall be transferred to this Plan by adoption of an
Amendment which incorporates into the Plan an Addendum
describing said benefit. Any such transfer of
liabilities to this Plan shall terminate the
obligations of the Company and all Employers under the
plan of the formerly-unrelated employer.
II.
There is hereby added to the Plan, effective August 1, 1996
the attached Addendum describing the benefits of participants
under the Restoration Retirement Plan for Certain Participants in
the Retirement Plan for Employees for Central Bank.
THUS DONE AND SIGNED on this 9th day of July, 1997 in the
presence of the undersigned competent witnesses.
WITNESSES: FIRST COMMERCE CORPORATION
/s/ Witness BY /s/ Ian Arnof
- ----------- -------------
/s/ Witness
- ------------
I have determined that the foregoing amendment is unlikely to increase
by more than a minimal amount the aggregate cost to First Commerce
Corporation and its subsidiaries of maintaining this Plan and the plan
described in the Addendum, and I recommend adoption.
/s/ Director of Human Resources
- -------------------------------
Director of Human Resources
ACKNOWLEDGMENT
STATE OF LOUISIANA
PARISH OF ORLEANS
BEFORE ME, the undersigned Notary Public, personally came and
appeared Ian Arnof, 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.
/s/ Ian Arnof
-------------
SWORN TO AND SUBSCRIBED
BEFORE ME THIS 9TH DAY
OF JULY, 1997.
/s/ Notary Public
- ------------------
Notary Public
FIRST COMMERCE CORPORATION RETIREMENT
BENEFIT RESTORATION PLAN
A D D E N D U M
By authority of Section 9 of the Plan, the following provisions
shall apply to each Participant who accrued a benefit under the
Restoration Retirement Plan For Certain Participants in the Retirement
Plan For Employees For Central Bank (Central SERP) and was still
employed by Central Bank at the time of its merger into First Commerce
Corporation.
1. The value of the benefit under the Plan of each such
Participant shall be equal to (a) minus (b), where--
(a) equals the benefit that would be paid under Paragraph 4.01(e)
of the Retirement Plan if the benefits thereunder were determined
without the limitations of Code Sections 401(a)(17) and 415; and
(b) equals the benefit actually paid under Paragraph 4.01(e) of
the Retirement Plan.
2. Except as provided in Paragraph 1, the amount, form and time
of payment of the benefit to a Participant or the Participant's
Beneficiary shall be determined as provided in the Plan documents.
3. Payment of the benefit pursuant to this Addendum shall
relieve the Company and all other Employers of any obligation they
might otherwise have had under the Central SERP.
4. Since this Addendum is a part of the First Commerce
Corporation Retirement Benefit Restoration Plan, terms used herein
that are defined in the main provisions of the Plan shall have the
same meaning here.
RESTORATION RETIREMENT PLAN FOR CERTAIN PARTICIPANTS IN
THE RETIREMENT PLAN FOR EMPLOYEES OF CENTRAL BANK
AMENDMENT
The Restoration Retirement Plan for Certain Participants in
the Retirement Plan for Employees of Central Bank ("Plan") was
established by Central Bank on November 1, 1990 in order to
provide benefits for certain executives that could not be
provided under the qualified Retirement Plan for Employees of
Central Bank ("Basic Plan") because of limitations imposed by the
Internal Revenue Code. Central Bank was merged into First
Commerce Corporation effective July 1, 1996, and the accrual of
benefits under both the Basic Plan and the Plan ceased as of July
31, 1996.
The Plan was intended to provide benefits not available
under the Basic Plan because of any limitations under the
Internal Revenue Code ("Code"). However, the Plan was worded in
a way that could be interpreted as referring to limitations under
Code Section 415 only. The purposes of this amendment are (1) to
make it clear that the restrictions under Code Section 401(a)(17)
are also taken into account and (2) to take into account the
corporate merger, resulting in discontinuance of accrual of
benefits under the Basic Plan and the Plan, and the transfer of
Plan obligations to a plan of First Commerce Corporation.
Section 9 of the Plan document allows amendment by the board
of directors of Central Bank. First Commerce Corporation is the
successor plan sponsor with amending power, and its board of
directors has delegated to its chief executive officer the power
to amend any plan when the amendment does not increase the cost
of the plan by more than a minimal amount. It has been
determined that this amendment will not increase costs because it
merely makes explicit an understanding that previously had been
implicit.
THEREFORE, Section 5(a) of the Plan document is hereby
amended to read in its entirety as follows, effective as of the
date of adoption of the Plan:
(a) the benefits which would have been paid to such
participant, or on his behalf to his beneficiary,
under the Basic Plan, if the provisions of the
Basic Plan were administered without regard to the
limitations of Sections 401(a)(17) and 415 of the
Internal Revenue Code of 1986, as amended.
FURTHERMORE, upon the amendment of the First Commerce
Corporation Retirement Benefit Restoration Plan to provide for
payment of the benefit accrued under this Plan through July 31,
1996, this Plan shall be deemed to have been merged into the
Restoration Plan, and no separate benefit shall be paid
thereafter under this Plan.
THUS DONE AND SIGNED, on this 9th day of July, 1997,
in New Orleans, Louisiana, in in the presence of the undersigned
competent witnesses.
WITNESSES: FIRST COMMERCE CORPORATION
/s/ Witness BY /s/ Ian Arnof
- ------------ -------------
/s/ Witness
- ------------
I have determined that the foregoing amendment is unlikely to
increase by more than a minimal amount the aggregate cost to
First Commerce Corporation and its subsidiaries of maintaining
this Plan and the plan described in the Addendum, and I recommend
adoption.
/s/ Director of Human Resources
- --------------------------------
DIRECTOR OF HUMAN RESOURCES
ACKNOWLEDGMENT
STATE OF LOUISIANA
PARISH OF ORLEANS
BEFORE ME, the undersigned Notary Public, personally came and
appeared Ian Arnof, who being by me sworn did depose and state
that he signed the foregoing Restoration Retirement Plan for certain
Participants in the Retirement Plan for Employees of Central Bank
Amendment as a free act and deed on behalf of First Commerce
Corporation for the purpose therein set forth.
/s/ Ian Arnof
-------------
SWORN TO AND SUBSCRIBED
BEFORE ME THIS 9TH DAY
OF JULY, 1997.
/s/ Notary Public
- ------------------
Notary Public