Exhibit 10.1
EMPLOYMENT AGREEMENT
AGREEMENT between First Commerce Corporation (the "Company") and
_________________ (the "Executive"), dated as of the ___ day of _______, 1996.
1. Certain Definitions. (a) "Effective Date" means the first date
during the Change of Control Period on which a Change of Control occurs, except
that if the Executive's employment with the Company is terminated prior to such
date at the request of a third party who has taken steps reasonably calculated
to effect a Change of Control or otherwise in connection with or anticipation of
a Change of Control, then "Effective Date" means the date immediately prior to
the date of such termination.
(b) "Change of Control Period" means the period commencing on
the date hereof and ending on the third anniversary of the date hereof;
provided, however, that on each annual anniversary of the date hereof (the
"Renewal Date"), unless previously terminated, such period shall be
automatically extended so as to terminate three years from such Renewal Date,
unless at least 60 days prior to the Renewal Date the Company notifies the
Executive that such period shall not be so extended.
2. 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
(d) Approval by the shareholders of the Company's complete
liquidation or dissolution.
3. Employment Period. The Company hereby agrees to continue the
Executive in its employ, and the Executive hereby agrees to remain in the
Company's employ subject to the provisions of this Agreement, for the period
commencing on the Effective Date and ending on the second anniversary of such
date (the "Employment Period").
4. Terms of Employment. (a) Position and Duties. During the Employment
Period, (i) (A) the Executive's position, authority, duties and responsibilities
("Role") shall be commensurate with an executive capacity and substantially
comparable to the position, authority, duties and responsibilities of financial
institution executives generally having salaries approximately the same as
Executive's Annual Base Salary, as defined herein, and (B) his services shall be
performed at the location where he was employed immediately preceding the
Effective Date or any office or location within the State of Louisiana during
the thirteen-month period beginning on the Effective Date and less than 35 miles
from the location where he was employed immediately preceding the Effective Date
thereafter, provided that in the case of any relocation, the Company shall pay
all of Executive's expenses reasonably related to such relocation, including
cost of maintaining two residences, and any further relocation required or
necessary to comply with this Section 4; and
(ii) excluding any periods of vacation and sick leave
to which he is entitled, the Executive agrees to devote reasonable attention and
time during normal business hours to the Company's business and affairs, and to
use his reasonable best efforts to perform faithfully and efficiently the
responsibilities assigned to him hereunder. It shall not be a violation of this
Agreement for the Executive to (A) serve on corporate, civic or charitable
boards or committees, (B) deliver lectures, fulfill speaking engagements or
teach at educational institutions and (C) manage personal investments, so long
as such activities do not significantly interfere with the performance of his
responsibilities. To the extent that any such activities have been conducted by
the Executive prior to the Effective Date, the continued conduct of such
activities (or the conduct of activities similar in nature and scope thereto)
subsequent thereto shall not thereafter be deemed to interfere with the
performance of his responsibilities.
(b) Compensation During the Employment Period. (i) Base
Salary. During the Employment Period the Executive shall receive an annual base
salary ("Annual Base Salary"), paid at a monthly rate, at least equal to twelve
times the highest monthly base salary paid or payable, including any base salary
which has been earned but deferred, to him by the Company and its affiliates in
respect of the twelve-month period immediately preceding the month in which the
Effective Date occurs. During the Employment Period, the Annual Base Salary
shall be reviewed no more than 12 months after the last salary increase awarded
to the Executive prior to the Effective Date and thereafter at least annually.
Any increase in Annual Base Salary shall not serve to limit or reduce any other
obligation to the Executive hereunder. Annual Base Salary shall not be reduced
after any such increase and the term "Annual Base Salary" as used herein shall
refer to Annual Base Salary as so increased. As used in this Agreement, the term
"affiliates" shall include any entity controlled by, controlling or under common
control with the Company.
(ii) Annual Bonus. In addition to Annual Base Salary,
the Executive shall be awarded, for each fiscal year ending during the
Employment Period, an annual bonus (the "Annual Bonus") in cash at least equal
to his highest target bonus as fixed by the Compensation Committee of the
Company during the last three full fiscal years prior to the Effective Date
(annualized if the Executive was not employed by the Company for the whole of
such fiscal year) (the "Recent Annual Bonus"), to be paid no later than the end
of the third month of the fiscal year next following the fiscal year for which
the Annual Bonus is awarded, unless the Executive shall elect to defer its
receipt.
(iii) Incentive, Savings and Retirement Plans. The
Executive shall be entitled to participate in all incentive, savings and
retirement plans, practices, policies and programs ("Programs") applicable
generally to other peer executives of the Company and its affiliates, but in no
event shall such Programs provide the Executive with incentive opportunities
(measured with respect to both regular and special incentive opportunities, to
the extent, if any, that such distinction is applicable), savings opportunities
and retirement benefit opportunities, in each case, less favorable, in the
aggregate, than the most favorable of those provided by the Company and its
affiliates for him under such Programs as in effect at any time during the
180-day period immediately preceding the Effective Date or if more favorable to
him, those provided generally at any time after the Effective Date to other peer
executives of the Company and its affiliates.
(iv) Welfare Benefit Plans. The Executive and/or his
family, as the case may be, shall be eligible for participation in and shall
receive all benefits under welfare benefit Programs provided by the Company and
its affiliates (including, without limitation, medical, prescription, dental,
disability, employee life, group life, accidental death and travel accident
insurance Programs) to the extent applicable generally to other peer executives
of the Company and its affiliates, but in no event shall such Programs provide
him with benefits which are less favorable, in the aggregate, than the most
favorable of such Programs in effect for him at any time during the 180-day
period immediately preceding the Effective Date or, if more favorable to him,
those provided generally at any time after the Effective Date to other peer
executives of the Company and its affiliates.
(v) Expenses. The Executive shall be entitled to
receive prompt reimbursement for all reasonable expenses incurred by him in
accordance with the most favorable policies, practices and procedures
("Policies") of the Company and its affiliates in effect for the Executive at
any time during the 180-day period immediately preceding the Effective Date or,
if more favorable to him, as in effect generally at any time thereafter with
respect to other peer executives of the Company and its affiliates.
(vi) Fringe Benefits. The Executive shall be entitled
to fringe benefits in accordance with the most favorable Policies of the Company
and its affiliates in effect for the Executive at any time during the 180-day
period immediately preceding the Effective Date or, if more favorable to him, as
in effect generally at any time thereafter with respect to other peer executives
of the Company and its affiliates.
(vii) Office and Support Staff. The Executive shall
be entitled to an office or offices of a size and with furnishings and other
appointments, and to personal secretarial and other assistance, at least
substantially comparable to the most favorable of the foregoing provided to the
Executive by the Company and its affiliates at any time during the 180-day
period immediately preceding the Effective Date or, if more favorable to him, as
provided generally at any time thereafter with respect to other peer executives
of the Company and its affiliates.
(viii) Vacation. The Executive shall be entitled to
paid vacation in accordance with the most favorable Policies of the Company and
its affiliates as in effect for him at any time during the 180-day period
immediately preceding the Effective Date or, if more favorable to him, as in
effect generally at any time thereafter with respect to other peer executives of
the Company and its affiliates.
5. Termination of Employment. (a) Death or Disability. The Executive's
employment shall terminate automatically upon his death during the Employment
Period. If the Company determines in good faith that his Disability has occurred
during the Employment Period it may give him written notice in accordance with
Section 12(b) of its intention to terminate his employment. In such event, his
employment shall terminate effective on the 30th day after receipt of such
notice (the "Disability Effective Date"), provided that, within the 30 days
after such receipt, he shall not have returned to full-time performance of his
duties. "Disability" means the absence of the Executive from his duties with the
Company on a full-time basis for 180 consecutive business days as a result of
incapacity due to mental or physical illness which is determined to be total and
permanent by a physician selected by the Company or its insurers and acceptable
to the Executive or his legal representative.
(b) Cause. The Company may terminate the Executive's
employment during the Employment Period for Cause. "Cause" means
(i) Executive'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
(ii) Executive's willful engaging in illegal conduct
or gross misconduct.
No act or failure to act, on the Executive'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 Executive'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 Executive 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 Executive is guilty of the conduct described in
subparagraph (i) or (ii) above, and specifying the particulars thereof in
detail.
(c) Good Reason. The Executive's employment may be terminated
by the Executive for Good Reason. "Good Reason" means:
(i) assignments to him that in any material respect
are inconsistent with or result in a diminution of his Role as contemplated by
Section 4(a), 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 Executive;
(ii) any failure by the Company to comply with any of
the provisions of Section 4(b), 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 Executive;
(iii) the Company's requiring him to be based at any
office or location other than as provided in Section 4(a)(i)(B) or to travel on
Company business to a substantially greater extent than reasonably required for
the performance of his duties;
(iv) any purported termination by the Company of his
employment otherwise than as expressly permitted by this Agreement; or
(v) any failure by the Company to comply with and
satisfy Section 11(c).
For purposes of this Section 5(c), any good faith determination of "Good Reason"
made by the Executive shall create a rebuttable presumption that "Good Reason"
exists. Anything in this Agreement to the contrary notwithstanding, a
termination by the Executive for any reason during the 30-day period immediately
following the first anniversary of the Effective Date shall be deemed to be a
termination for Good Reason for all purposes of this Agreement.
(d) Notice of Termination. Any termination for Cause or for
Good Reason shall be communicated by Notice of Termination to the other party
hereto given in accordance with Section 12(b). "Notice of Termination" means a
written notice which (i) indicates the specific termination provision hereof
relied upon, (ii) to the extent applicable, sets forth in reasonable detail the
circumstances claimed to provide a basis for termination under the provision so
indicated and (iii) if the Date of Termination is other than the date of receipt
of such notice, specifies the termination date (which date shall be not more
than thirty days after the giving of such notice). The failure by the notifying
party to set forth in the Notice of Termination any circumstance which
contributes to a showing of Good Reason or Cause shall not waive any right of
such party from asserting such circumstance in enforcing its or his rights
hereunder.
(e) Date of Termination. "Date of Termination" means in the
case of (i) a termination for Cause or for Good Reason, the date of receipt of
the Notice of Termination or any later date specified therein, as the case may
be, (ii) a termination by the Company other than for Cause or Disability, the
date on which the Company notifies the Executive of such termination and (iii) a
termination by reason of death or Disability, the date of Executive's death or
the Disability Effective Date, as the case may be.
6. Obligations of the Company upon Termination. (a) Good Reason; Other
Than for Cause, Death or Disability. If, during the Employment Period, the
Company shall terminate the Executive's employment other than for Cause or
Disability or the Executive shall terminate employment for Good Reason:
(i) the Company shall pay to the Executive in a lump
sum in cash within 30 days after the Date of Termination the aggregate of the
following amounts:
A. the sum of (1) his Annual Base Salary through
the Date of Termination to the extent not theretofore paid, (2) the product of
(x) the higher of (I) the Recent Annual Bonus and (II) the Annual Bonus paid or
payable, including any bonus or portion thereof which has been earned but
deferred (and annualized for any fiscal year consisting of less than twelve full
months or during which he was employed for less than twelve full months), for
the most recently completed fiscal year during the Employment Period, if any
(such higher 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 Termination, and the denominator of which is 365 and
(3) any compensation previously deferred by him (together with any accrued
interest or earnings thereon) and any accrued vacation pay, in each case to the
extent not theretofore paid (the sum of the amounts described in clauses (1),
(2), and (3) being hereinafter referred to as the "Accrued Obligations"); and
B. the product of (1) three and (2) the sum
of (x) the Annual Base Salary and (y) the Highest Annual Bonus, except that in
the case in which the termination is for "Good Reason" solely by virtue of the
last sentence of Section 5(c) the lump sum payment shall consist of 50% of the
foregoing, and the remaining 50% shall be paid in a lump sum on the first
anniversary of the Date of Termination, provided that Executive has complied
with Section 10(b).
(ii) the Executive shall immediately become fully
100% vested under the Company's qualified defined benefit retirement plan and
benefits restoration plan (together, the "Retirement Plan"), and any excess or
supplemental retirement plan in which the Executive participates as if his
employment continued for three years after the Date of Termination assuming for
this purpose that his compensation in each of the three years is that required
by Section 4(b)(i) and (ii);
(iii) for three years after the Date of Termination,
or such longer period as may be provided by the terms of the appropriate
Program, the Company shall continue benefits to the Executive and/or his family
at least equal to those which would have been provided to them in accordance
with the Programs described in Section 4(b)(iv) if his employment had not been
terminated or, if more favorable to him, as in effect generally at any time
thereafter with respect to other peer executives of the Company and its
affiliates and their families, provided, however, that if the Executive 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; and provided
further that if the application of this sentence would result in material
adverse tax consequences to the Company, the Company may, in lieu thereof, make
cash payments to the Executive sufficient to allow him to obtain equivalent
coverage for himself and his family (including to the extent necessary the
election of COBRA coverage and the maintenance of duplicate coverage during any
pre-existing condition exclusion), and any additional cash payments necessary so
that Executive will receive the full pre-tax benefit of the cash payments in
lieu of coverage. For purposes of determining eligibility (but not the time of
commencement of benefits) of the Executive for retiree benefits pursuant to such
Programs the Executive shall be considered to have remained employed until three
years after the Date of Termination and to have retired on the last day of such
period;
(iv) for a period ending on the earlier of one year
from the Date of Termination or Executive's obtaining other full-time permanent
employment, the Company shall, at its sole expense as incurred, provide the
Executive with outplacement services that are reasonable in scope and cost in
relation to his position; provided that this subparagraph shall not apply if
Executive's termination was solely for "Good Reason" under the last sentence of
Section 5(c).
(v) to the extent not theretofore paid or provided,
the Company shall timely pay or provide to the Executive any other amounts or
benefits required to be paid or provided or which he is eligible to receive
under any Program or contract or agreement of the Company and its affiliates
(such other amounts and benefits shall be hereinafter referred to as the "Other
Benefits").
(b) Termination for Death or Disability. If during the
Employment Period, the Executive's employment is terminated by reason of his
death or Disability, this Agreement shall terminate without further obligations,
other than for payment of Accrued Obligations and the timely payment or
provision of Other Benefits. Accrued Obligations shall be paid in a lump sum in
cash within 30 days of the Date of Termination. With respect to the provision of
Other Benefits, the term "Other Benefits" as used in this Section 6(b) shall
include, without limitation, benefits at least equal to the most favorable
benefits provided by the Company and affiliates to peer executives of the
Company and such affiliates or their estates, beneficiaries or families, as the
case may be, under such Programs relating to death benefits, if any, as in
effect with respect to other peer executives at any time during the 120-day
period immediately preceding the Effective Date or, if more favorable, as in
effect on the date of his death with respect to other peer executives of the
Company and its affiliates and their beneficiaries.
(c) Cause; Other than for Good Reason. If the Executive's
employment is terminated for Cause during the Employment Period, this Agreement
shall terminate without further obligations to the Executive other than the
obligation to pay to the Executive (x) his Annual Base Salary through the Date
of Termination, (y) the amount of any compensation previously deferred by him,
and (z) Other Benefits, in each case to the extent theretofore unpaid. If the
Executive voluntarily terminates employment during the Employment Period other
than for Good Reason, this Agreement shall terminate without further obligations
to the Executive, other than for Accrued Obligations and the timely payment or
provision of Other Benefits. In such case, all Accrued Obligations shall be paid
to the Executive in a lump sum in cash within 30 days of the Date of
Termination.
7. Non-exclusivity of Rights. Nothing herein shall prevent or limit the
Executive's continuing or future participation in any Program provided by the
Company or any of its affiliates and for which he may qualify, nor, subject to
Section 12(f), shall anything herein limit or otherwise affect such rights as he
may have under any contract or agreement with the Company or any of its
affiliates. Amounts which are vested benefits or which the Executive is
otherwise entitled to receive under any Program of or any contract or agreement
with the Company or any of its affiliates at or subsequent to the Date of
Termination shall be payable in accordance with such Program or contract or
agreement except as explicitly modified by this Agreement.
8. Full Settlement. The Company's obligation to make the payments
provided for herein and otherwise to perform its obligations hereunder shall not
be affected by any set-off, counterclaim, recoupment, defense or other claim,
right or action which the Company may have against the Executive or others. In
no event shall the Executive be obligated to seek other employment or take any
other action by way of mitigation of the amounts payable to him under any of the
provisions hereof and such amounts shall not be reduced whether or not he
obtains other employment. The Company agrees to pay as incurred, to the full
extent permitted by law, all legal fees and expenses which the Executive may
reasonably incur as a result of any contest (regardless of the outcome thereof)
by the Company, the Executive or others of the validity or enforceability of, or
liability under, any provision hereof or any guarantee of performance thereof
(including as a result of any contest by the Executive about the amount of any
payment pursuant to this Agreement), plus in each case interest on any delayed
payment at the applicable Federal rate provided for in Section 7872(f)(2)(A) of
the Internal Revenue Code of 1986, as amended (the "Code"); provided that if in
connection with any dispute in which it is finally determined by a court that
the position of Executive is wholly without merit, Executive shall be required
to reimburse the Company for Executive's legal fees and expenses so paid by the
Company.
9. Certain Additional Payments by the Company.
(a) Anything herein to the contrary notwithstanding and except
as set forth below, if it is determined that any payment or distribution by the
Company to or for Executive's benefit (whether paid or payable or distributed or
distributable pursuant to the terms hereof or otherwise, but determined without
regard to any additional payments required under this Section 9) (a "Payment")
would be subject to the excise tax imposed by Section 4999 of the Code or any
interest or penalties are incurred by the Executive with respect to such excise
tax (such excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the "Excise Tax"), then the Executive
shall be entitled to receive an additional payment (a "Gross-Up Payment") in an
amount such that after payment by him of all taxes (including any interest or
penalties imposed with respect to such taxes), including, without limitation,
any income taxes (and any interest and penalties imposed with respect thereto)
and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an
amount of the Gross-Up Payment, equal to the Excise Tax imposed upon the
Payments.
(b) Subject to the provisions of Section 9(c), all
determinations required to be made under this Section 9, including whether and
when a Gross-Up Payment is required, the amount thereof and the assumptions to
be used in arriving at such determination, shall be made by Arthur Andersen LLP
or such other certified public accounting firm as may be designated by the
Executive (the "Accounting Firm") which shall provide detailed supporting
calculations both to the Company and the Executive within 15 business days of
the receipt of notice from the Executive that there has been a Payment, or such
earlier time as is requested by the Company. If the Accounting Firm is serving
as accountant or auditor for the Person effecting the Change of Control, the
Executive shall appoint another nationally recognized accounting firm to make
the determinations required hereunder (which accounting firm shall then be
referred to as the Accounting Firm hereunder). All fees and expenses of the
Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as
determined pursuant to this Section 9, shall be paid by the Company to the
Executive within five days of the receipt of the Accounting Firm's
determination. Any determination by the Accounting Firm shall be binding upon
the parties. As a result of the uncertainty in the application of Section 4999
of the Code at the time of the initial determination by the Accounting Firm
hereunder, it is possible that Gross-Up Payments that have not been made should
have been made ("Underpayment"). If the Company exhausts its remedies pursuant
to Section 9(c) and the Executive thereafter is required to make a payment of
any Excise Tax, the Accounting Firm shall determine the amount of the
Underpayment and any such Underpayment shall be promptly paid by the Company to
or for the benefit of the Executive.
(c) The Executive shall notify the Company in writing of any
claim by the Internal Revenue Service ("IRS") that, if successful, would require
a Gross-Up Payment. Such notification shall be given as soon as practicable but
no later than ten business days after the Executive is informed in writing of
such claim and shall apprise the Company of the nature of such claim and the
date on which such claim is requested to be paid. The Executive shall not pay
such claim prior to the expiration of the 30-day period following the date on
which he gives such notice (or such shorter period ending on the date that any
payment of taxes with respect to such claim is due). If the Company notifies the
Executive in writing prior to the expiration of such period that it desires to
contest such claim, the Executive shall, with respect to such claim:
(i) give the Company any information reasonably
requested relating to it,
(ii) take such action in connection with contesting
it as the Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with respect to it
by an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in
order effectively to contest it, and
(iv) permit the Company to participate in any
proceedings relating to it;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions of
this Section 9(c), the Company shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the IRS in
respect of such claim and may, at its sole option, either direct the Executive
to pay the tax claimed and sue for a refund or contest the claim in any
permissible manner, and the Executive agrees to prosecute such contest to a
determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs the Executive to pay
such claim and sue for a refund, the Company shall advance the amount of such
payment to him, on an interest-free basis and shall indemnify and hold him
harmless, on an after-tax basis, from any Excise Tax or income tax (including
interest or penalties with respect thereto) imposed with respect to such advance
or with respect to any imputed income with respect to such advance; and further
provided that any extension of the statute of limitations relating to payment of
taxes for the taxable year of the Executive with respect to which such contested
amount is claimed to be due is limited solely to such contested amount.
Furthermore, the Company's control of the contest shall be limited to issues
with respect to which a Gross-Up Payment would be payable hereunder and the
Executive shall be entitled to settle or contest, as the case may be, any other
issue raised by the IRS or any other taxing authority.
(d) If, after the receipt by the Executive of an amount
advanced by the Company pursuant to Section 9(c), he becomes entitled to receive
any refund with respect to such claim, he shall (subject to the Company's
complying with the requirements of Section 9(c)) promptly pay to the Company the
amount of such refund (together with any interest paid or credited thereon after
taxes applicable thereto). If, after the receipt by the Executive of an amount
advanced by the Company pursuant to Section 9(c), a determination is made that
he is not entitled to any refund with respect to such claim and the Company does
not notify him in writing of its intent to contest such denial of refund prior
to the expiration of 30 days after such determination, then such advance shall
be forgiven and shall not be required to be repaid and the amount of such
advance shall offset, to the extent thereof, the amount of Gross-Up Payment
required to be paid.
10. Other Obligations of Executive. (a) The Executive shall hold in a
fiduciary capacity for the Company's benefit all secret or confidential
information, knowledge or data relating to the Company or any of its affiliates,
and their respective businesses, which shall have been obtained by him during
his employment and which shall not be or become public knowledge (other than by
acts by the Executive or his representatives in violation of this Agreement).
After termination of his employment with the Company, he shall not, without the
Company's prior written consent or as may otherwise be required by law or legal
process, communicate or divulge any such information, knowledge or data to
anyone other than the Company and those designated by it. In no event shall an
asserted violation of the provisions of this Section 10 constitute a basis for
deferring or withholding any amounts otherwise payable to the Executive
hereunder.
(b) If Executive terminates his employment solely for "Good
Reason" under the last sentence of Section 5(c), the Company shall not be
obligated to make the lump sum payment that would otherwise be due under Section
6(a)(i)(B) if, during the one-year period following the Date of Termination,
Executive becomes a management official of any banking institution that has a
main or full-service banking office in any Parish in the State of Louisiana in
which the Company has its main or a full-service banking office; provided that
this Section 10(b) shall not be applicable (i) if the Company has not at all
times during such period complied with all of its obligations under this
Agreement or, (ii) if at the time Executive became a management official of a
banking institution such institution at that time did not have a main or
full-service banking office in any Parish in the State of Louisiana in which the
Company has its main or a full-service banking office, or (iii) if Executive's
duties with such institution does not give him authority with respect to that
portion of such institution's business being conducted in Louisiana.
11. Successors. (a) This Agreement is personal to the Executive and
without the Company's prior written consent shall not be assignable by him
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by the Executive's legal
representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of its business and/or assets to assume expressly and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
As used herein, "Company" means the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law or otherwise.
12. Miscellaneous. (a) This Agreement shall be governed by and
construed in accordance with the laws of the State of Louisiana, without
reference to principles of conflict of laws. The captions of this Agreement are
not part of the provisions hereof and shall have no force or effect. This
Agreement may not be amended or modified otherwise than by a written agreement
executed by the parties hereto or their respective successors and legal
representatives.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive:
If to the Company:
First Commerce Corporation
210 Baronne Street
New Orleans, LA 70130
Attention: General Counsel
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision hereof
shall not affect the validity or enforceability of any other provision.
(d) The Company may withhold from any amounts payable
hereunder such taxes as shall be required to be withheld pursuant to any
applicable law or regulation.
(e) The Executive's or the Company's failure to insist upon
strict compliance with any provision hereof or to assert any right he or it may
have hereunder, including, without limitation, the right of the Executive to
terminate employment for Good Reason pursuant to Section 5(c) of this Agreement,
shall not be deemed to be a waiver of such provision or right or any other
provision or right of this Agreement.
(f) The Executive and the Company acknowledge that, except as
may otherwise be provided under any other written agreement between the
Executive and the Company, the employment of the Executive by the Company is "at
will" and, subject to Section 1(a) hereof, prior to the Effective Date, the
Executive's employment and/or this Agreement may be terminated by either the
Executive or the Company at any time prior to the Effective Date, in which case
the Executive shall have no further rights under this Agreement. From and after
the Effective Date, this Agreement shall supersede any other agreement between
the parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, the Executive and the Company have executed this
Agreement as of the day and year first above written.
[Executive]
____________________________________
FIRST COMMERCE CORPORATION
By _______________________________