Exhibit 10.6
FIRST COMMERCE CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
The Board of Directors of First Commerce Corporation having decided
upon adoption of this plan at its December 1996 meeting, the First Commerce
Corporation Supplemental Executive Retirement Plan ("Plan"), having the
following terms and conditions, is hereby formally adopted effective January 1,
1996:
I. Purpose of Plan
The purpose of the Plan is to provide to selected executives an
additional monthly benefit upon retirement, so that the benefit under the Plan,
when added to the monthly benefits payable (or the monthly benefits that are
equivalent to the lump sums payable) under certain other plans of First Commerce
Corporation, will equal a specified percentage of a covered executive's average
annual compensation.
II. Definitions
2.1 "Actuarially Equivalent" means equal in value. The factors used
to determine an Actuarially Equivalent benefit shall be the same as the factors
used, at the time the benefit becomes payable under the Plan, to calculate
actuarial equivalent benefits under the First Commerce Corporation Retirement
Plan, except that any special rate used to calculate lump sum payment under the
Retirement Plan shall not be used in determining Actuarial Equivalents.
2.2 "Average Pay" of a Participant means the average of his annual
compensation with the Employer Group for each of the five calendar years ending
with or prior to his Termination of Employment. A Participant's "annual
compensation" shall include his salary and a percentage of the bonus earned by
the Participant under the Company's Performance Bonus Plan. The percentage of
bonus (as much as 100% of actual bonus earned) that will be taken into account
under the Plan shall be as determined in advance by the Board's Compensation
Committee. Other forms of compensation provided by the Company, including
severance benefits, are not included in the term "annual compensation".
2.3 "Beneficiary" means the person or persons designated by the
Participant to receive any benefit payable under the Plan upon the death of the
Participant. If no Beneficiary has been designated, or the designation fails to
dispose of some or all of the benefit, the default Beneficiary shall be the
Participant's surviving spouse, if there is one, otherwise the Participant's
estate.
2.4 "Board" means the Board of Directors of First Commerce
Corporation.
2.5 "Company" means First Commerce Corporation, a corporation
organized under the laws of the State of Louisiana, or any company that succeeds
to it.
2.6 "Disability" means the absence of a Participant 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 Participant or his legal representative.
2.7 "Employer Group" means the Company and any enterprise that is
a direct or indirect subsidiary of the Company.
2.8 "Goal Amount" means the total of certain benefits that the Plan
is designed to assure that a Participant reaches, as described in article III,
below.
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2.9 "Participant" means an executive of the Company or any of its
subsidiaries whom the Compensation Committee of the Board has selected to
participate in the Plan.
2.10 "Plan" means the First Commerce Corporation Supplemental
Executive Retirement Plan, as expressed in this Plan document and any amendment
hereto.
2.11 "Termination of Employment" means a Participant's termination of
employment with the Employer Group, other than because of the Participant's
death.
2.12 "Vested Participant" means, except as provided in Section 3.4
and Section 5.1, below, a Participant who has reached the age of 55 and whose
current period of continuous service with the Employer Group is at least 10
years in duration.
III. Benefits
3.1 Normal Benefit. When a Vested Participant's Termination of
Employment occurs on or after his 65th birthday, the Company shall pay
Participant an annual benefit equal to the Goal Amount, minus the Offsets, where
a. The Goal Amount is 60% of the Participant's Average Pay; and
b. The Offsets are the following annual benefits provided to
the Participant upon his Termination of Employment:
(i) the benefits under the First Commerce Corporation
Retirement Plan and the First Commerce Corporation
Retirement Benefit Restoration Plan,
(ii) the benefits under the First Commerce Corporation
Tax-Deferred Savings Plan and First Commerce Corporation
Supplemental Tax-Deferred Savings Plan, other than the portion
of the benefits consisting of the Participant's deferrals and
earnings thereon,
(iii) the Participant's Primary Social Security benefit
(without reduction under the earnings test), and
(iv) any benefit under any plan or arrangement created or
agreed to by the Company (or any successor company) at any
time hereafter, unless (A) that benefit is offset by the
benefit under this Plan, or (B) by its terms that benefit is
intended to be in addition to the benefit provided under this
Plan.
Benefits under an employment agreement that are provided only after a
Change of Control shall not be Offsets.
3.2 Actuarially Equivalent Offsets. If any of the Offsets provided
under a Company plan or arrangement is a benefit paid other than in the form of
a life-only annuity commencing within a month of the commencement of the benefit
under this Plan, the Offset shall be the life-only annuity commencing the same
date as this Plan's benefit commences that is Actuarially Equivalent to the
actual benefit under the other plan or arrangement.
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3.3 Termination of Employment Prior to 65. If a Vested Participant's
Termination of Employment occurs prior to age 65, instead of a Goal Amount of
60% of Average Pay the Goal Amount shall be the following percentage of Average
Pay:
Age at Termination of Employment Percentage of Average Pay
-------------------------------- -------------------------
55 40%
56 42%
57 44%
58 46%
59 48%
60 50%
61 52%
62 54%
63 56%
64 58%
65 60%
3.4 Disability. If a Participant has a Termination of Employment
because of Disability, the Participant shall be a Vested Participant, regardless
of age and years of continuous service, and shall receive a benefit under the
Plan determined under Section 3.3. If the age at Termination of Employment is
less than 55 the Goal Amount shall be reduced below 40% of Average Pay by 2% of
Average Pay for each year that the Participant's age at Disability is less than
55.
3.5 Form of Benefit. Any benefit under Section 3.1, Section 3.3 or
Section 3.4 shall be paid by the Company to the Participant in the form of a
"Life Annuity With 120 Payments Certain", or a "Joint-and-50%-Survivor Annuity".
If the Joint-and-50%-Survivor Annuity is an available option, the election to
receive or not to receive the Joint-and-50%-Survivor annuity shall be
irrevocable after the first annuity payment is made.
a. Life Annuity With 120 Payments Certain. This is the normal form of
benefit. The Company pays an equal amount each month for the life of
the Participant, beginning the month after the Termination of
Employment and ending with the month of the Participant's death. If the
Participant dies before 120 monthly payments have been made, the
monthly payments shall continue to the Participant's Beneficiary until
the Participant and his Beneficiary have together received a total of
120 monthly payments.
b. Joint-and-50%-Survivor Annuity. If a Participant is married when his
benefit begins to be paid, the Participant shall have the right to
elect this form of benefit. The Company pays an equal amount each month
for the life of the Participant, beginning the month after the
Termination of Employment and ending with the month of the
Participant's death. If the spouse to whom the Participant is married
at the time the benefit commences is still married to him at his death,
the Company pays the surviving spouse a monthly annuity equal to 50% of
the Participant's monthly annuity. The surviving spouse's annuity
begins the month after the month of the Participant's death and ends in
the month of the surviving spouse's death. The Participant's monthly
annuity under this form of benefit is reduced so that the benefit is
Actuarially Equivalent to the Life Annuity With 120 Payments Certain.
3.6 When No Benefit is Payable. No benefit shall be paid under
the Plan under either of the following circumstances:
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a. A Participant has a Termination of Employment when he is not yet a
Vested Participant.
b. A Participant's Termination of Employment is for Cause. "Cause"
means (i) the 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 of
Directors 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) 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.
3.7 Death Benefit. If a Participant dies before his Termination of
Employment, but at a time when he would have been considered a Vested
Participant if he had had a Termination of Employment, the Company shall pay a
benefit to Participant's Beneficiary equal in value to the benefit the
Participant would have received under the Plan if he had had a Termination of
Employment on the date of his death. If a Participant dies after his Termination
of Employment but before he receives the first annuity payment under Section
3.1, 3.3, or 3.4, no benefit shall be paid under any of those sections, and
instead the Participant's Beneficiary shall receive a benefit equal in value to
the benefit the Participant was entitled to receive when he had the Termination
of Employment. If this paragraph applies, the death benefit shall be paid in a
lump sum.
If a Participant dies after a benefit has begun to be paid under
Section 3.1, 3.3, or 3.4, the only benefit payable thereafter shall be the
survivor benefit under Paragraph 3.5(a) or 3.5(b), whichever applies.
IV. Plan Administration
4.1 Plan Administrator. The Compensation Committee of the Company's
Board shall be the Plan Administrator. The Plan Administer may appoint such
agents, attorneys, accountants, and actuaries as may be required to administer
the Plan. 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.
4.2 Non-assignability of Benefits. To the extent that a Participant or
Beneficiary acquires a contractual right to receive a benefit under the Plan,
such right shall not be subject to assignment, pledge
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(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.
4.3 Governing Law. The Plan shall be governed by the laws of the
State of Louisiana.
4.4 Funding. No trust is established to fund benefits under the Plan
in advance. Participants and Beneficiaries have only an unsecured right to
receive their Plan benefits, as general creditors of the Company.
4.5 Demand for Benefits. Benefits upon Termination of Employment shall
ordinarily be paid to a Participant without the need for demand, and to a
Beneficiary upon receipt of the Beneficiary's address and Social Security number
(and evidence of death, if needed). Nevertheless, a Participant or a person
claiming to be a 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.
V. Change of Control
5.1 Special Benefit Provisions. Any provisions of Article III to
the contrary notwithstanding, upon the occurrence of a Specified Event with
respect to a Participant:
a. He shall be deemed a Vested Participant, even if he does not meet the
requirements of Section 2.12;
b. The Participant's benefit shall be paid within 60 days following the
Termination of Employment in the form of a lump sum (not an annuity)
that is Actuarially Equivalent to the normal benefit of a Life Annuity
With 120 Payments Certain; and
c. The Goal Amount shall be the following percentage of the
Participant's Average Pay:
Age at Termination Percentage of Average Pay
------------------ -------------------------
62 60%
61 58%
60 56%
59 54%
58 52%
57 50%
56 48%
55 46%
If the Specified Event occurs prior to the Participant's age 55, the Goal Amount
shall be reduced by another 2% of Average Pay for each year that the
Participant's age at that time is less than 55.
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5.2 Specified Event. A "Specified Event" is a Participant's Termination
of Employment following a Change of Control, if the termination is by the
Company without Cause, or is by the Participant for Good Reason.
5.3 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
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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.
5.4 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. Furthermore, a
Termination of Employment 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 for Good Reason.
VI. Miscellaneous
6.1 Amendment. The Company, through the Board or any person to whom it
has delegated the power, reserves the right to amend the Plan, including
discontinuing further accrual of benefits hereunder. The Compensation Committee
of the Board shall have the power to add or remove Company employees as
Participants, and shall have the power to determine the percentage of a
Participant's future bonuses that will be included in his "annual compensation"
under Section 2.2. In no event, however, shall any action described in the
preceding two sentences cause a Participant to receive a benefit that is less
than the amount of the benefit that would be paid to the Participant if he had
had a Termination of Employment on the date that the action is taken.
6.2 Successor Company. 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 the
obligation to perform under the Plan in the same manner and to the same extent
that the Company would be required to perform if no such succession had taken
place.
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6.3 Successor Payee . Any monthly payment that becomes due under the
Plan to a Participant or Beneficiary prior to the death of the payee but remains
unpaid at his death shall be payable to the estate of the payee.
6.4 Governing Law. The Plan shall be governed by and construed in
accordance with the laws of the State of Louisiana, without reference to
principles of conflicts of laws.
6.5 Withholding. The Company may withhold from any amounts payable
hereunder such taxes as shall be required to be withheld by law or regulation.
Thus done and signed on this 31st day of January, 1997, in the presence
of the undersigned competent witnesses.
WITNESSES: FIRST COMMERCE CORPORATION
/s/ Rhonda Cartwright By: /s/ Ian Arnof
- ----------------------------------- --------------------------------
Rhonda Cartwright Ian Arnof
/s/ William Roohi Title:
- -----------------------------------
William Roohi
Approved:
Barry Mulroy
---------------------------
Director of Human Resources
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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 Supplemental Executive Retirement Plan document as a free act and deed
on behalf of First Commerce Corporation for the purpose therein set forth.
/s/ Ian Arnof
-----------------------------------
Ian Arnof
SWORN TO AND SUBSCRIBED
BEFORE ME THIS 31st DAY
OF January, 1997.
/s/ Joyce L. Schenewerk
- -----------------------------------
Joyce L. Schenewerk
Notary Public
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