JOHN P. O’CONNOR, JR. RETIREMENT AGREEMENT
Exhibit
10.7(s)
XXXX
X. X’XXXXXX, XX.
This
Agreement is made by and between Xxxx X. X’Xxxxxx, Xx. ("Xx. X’Xxxxxx" or "you")
and First Horizon National Corporation, its predecessors, successors, assigns,
subsidiaries, parents, affiliates, and their respective directors, officers,
employees and agents, attorneys and representatives, both past, present, or
future ("the Company"). This arrangement is offered in recognition of your years
of service with the Company and is accompanied with the Company's hope that it
will assist you during the transition period that follows.
You
acknowledge that you have had more than 21 days to evaluate this Agreement.
After signing this Agreement, you have seven days during which you may revoke
your decision.
The elements
of the retirement agreement are these:
1. Agreement:
Your
signature at the conclusion of this document represents your knowing and
voluntary acceptance of this Agreement. You acknowledge that you have not been
pressured in any way to sign this Agreement and that you have executed it of
your own free will. This Agreement should be returned to Xxxxxxx Xxxxxxx, 000
Xxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxx, Xxxxxxxxx 00000, after you have fully
executed it. By its execution of this Agreement, the Company
acknowledges and confirms that the appropriate committee of its Board of
Directors or other administrative body has approved of your normal (age 65)
retirement as of May 30, 2008 for purposes of applying the benefits you are
otherwise entitled to under applicable plans (including those referenced in
Sections 2 and 6 of this Agreement) and that nothing herein shall be considered
in a manner which adversely affects any benefits, or the amount thereof, to
which you are or may otherwise be entitled under applicable plans.
2. Consideration:
In
consideration of your release as set forth below and your retirement on May 30,
2008, the Company will provide you with the following. You acknowledge that you
are not otherwise entitled to the consideration listed in this
Section. In the event of your death prior to the payment of any of
the amounts set forth in this Section, your entitlement to such consideration
will not be adversely affected and any payments for which a beneficiary has not
already been designated will be paid to your estate.
(i) Pro-Rata
Restricted
Stock
13,891 shares of restricted
stock will vest on your retirement date of May 30, 2008. This
represents a pro-rata portion of your outstanding restricted
shares. Shares will be withheld for taxes.
(ii) Pro-Rata
Annual Bonus
You
will be eligible for a pro-rata annual bonus for months worked in 2008, subject
to approval by the Compensation Committee of the Board of
Directors. The amount before pro-ration will be the same that you
would have received if you had not retired.
3. Protective
Covenants:
In
order to protect the legitimate interests of the Company, and its subsidiaries,
you agree to the following:
Confidentiality
and Non-Disclosure: You will not disclose to
others at any time in the future, whether directly or indirectly, any
information relating to the Company's business plans or other confidential
business information and/or trade secrets of the Company which you received or
to which you were given access during your employment with the Company;
provided, however,
the obligations set forth in this sentence will expire on May 30,
2010. If such information is required to be produced by law, court
order or governmental authority, you must promptly notify the Company of that
obligation. You may not produce or disclose any such information
until the Company has (a) requested protection from the court or other legal or
governmental authority issuing the process and the request has been denied or
pending action on the request you subsequently have been ordered to produce or
disclose such information, (b) consented in writing to such production or
disclosure, or (c) taken no action to protect its interest within ten (10)
business days (or such shorter period required by order of a court or other
legal or governmental authority) after receipt of your notice.
Non-Solicitation: For
a period of two (2) years following your retirement from the Company, you will
not, without the express written approval of the Company, directly or
indirectly, on behalf of yourself or for others, solicit or contact in any
manner (with the intent of providing any service or product competitive with any
service or product which is provided at the time of such contact by the Company)
any customer of the Company with whom you had actual contact while employed by
the Company.
Non-Interference: For
a period of two (2) years following your retirement, you will not directly or
indirectly induce or encourage:
(i) any
employee or contractor of the Company to leave his/her position to seek
employment or association with any person or entity other than the Company;
or
(ii) any
dealer, supplier or customer of the Company to modify or terminate any
relationship, whether or not evidenced by a written contract, with the
Company.
You
acknowledge and agree that the restrictions set forth in paragraph 3 hereof are
reasonable and necessary for the protection of Company business and
goodwill. You further agree that if you breach or threaten to breach
any of your obligations in this Agreement, the Company in addition to any other
remedies available to it under the law may obtain specific performance and/or
injunctive relief against you to prevent such continued or threatened
breach. You also acknowledge and agree that the Company shall be
reimbursed by you for all sums paid to you pursuant to paragraph 2 of this
agreement as well as attorneys’ fees and other costs incurred by it in enforcing
any of its right or remedies under this section or any other provision of the
Agreement.
4. Release
and Waiver:
In consideration for the payments and benefits described in paragraph 2 above,
and other good and valuable consideration, the receipt of which you acknowledge
by your signature in the space provided below, but subject to the provisions of
paragraph 6 of the Agreement, you do, for yourself, your heirs, personal
representatives, agents and assigns, fully, absolutely, and unconditionally
release, acquit and forever discharge the Company, and any and all of its
predecessors, successors, assigns, subsidiaries, parents, affiliates, and their
respective directors, officers, employees and agents, attorneys and
representatives, both past, present, or future, from any and all claims, losses,
demands, liabilities, causes of action, fees (including attorney's fees),
compensation, back pay and/or front pay, employment or re-employment and any
other benefits, obligation or liability of any kind, known or unknown, whether
heretofore asserted or unasserted, including but not limited to all causes of
action arising out of or in any way related to your employment by the Company,
or your separation, whether arising out of or related to Title VII of the Civil
Rights Act of 1964, as amended ("Title VII"); the Civil Rights Act of 1991; the
Xxxxxxxx-Xxxxx Act; the Americans with Disabilities Act of 1990; the Age
Discrimination in Employment Act of 1967, as amended, (the "ADEA"), the Family
and Medical Leave Act ("FMLA"), the Fair Labor Standards Act ("FLSA"), the
Tennessee Human Rights Act, Tennessee Code Annotated section 4-21-101 et seq,
and Tennessee Code Annotated 8-50-103 (Employment of the Handicapped), and any
other federal or state, local, or city statute, code, ordinance, rule,
regulation, or common law governing, controlling or otherwise dealing with
employment, employment discrimination or equal employment opportunity,
unemployment compensation, employment termination, or otherwise all causes of
action occurring from the beginning of time to the date of this
Agreement.
Notwithstanding
the foregoing or anything to the contrary contained in this Agreement, nothing
herein is intended to affect any obligation the Company may have to indemnify
you, hold you harmless or advance to you or pay expenses in accordance with the
Company’s Bylaws or any individual indemnity agreement in place at the time
of this Agreement, and it is agreed that nothing in this Agreement will be
construed as a waiver by you of any such rights.
5. Acknowledgment
of OWBPA Compliance:
Because this Agreement includes a release and waiver as to claims under the Age
Discrimination in Employment Act, your signature below acknowledges that it
complies with the Older Workers Benefit Protection Act ("OWBPA") of 1990 and
further acknowledges that you confirm, understand and agree to the terms and
conditions of this Agreement; that these terms are written in lay persons terms,
and that you have been fully advised of your right to seek the advice of an
attorney, as well as tax advisors to review this Agreement. You acknowledge
receiving not less than twenty one (21) calendar days in which to consider this
Agreement to ensure that your execution of this Agreement is knowing and
voluntary. In signing below, you expressly acknowledge that you have been
afforded at least twenty-one (21) days to consider this Agreement and that your
execution of same is with full knowledge of the consequences thereof and is of
your own free will. By signing on the date below, if less than twenty-one (21)
days, you voluntarily elect to forgo waiting twenty-one (21) full days. You
agree that any change, material or immaterial, to the terms of this Agreement
does not restart the running of the twenty-one (21) day period.
6. Other
Benefits:
Your right to benefits under all other plans of the Company is not affected by
your signature to this Agreement. This includes your qualified
pension benefit, Pension Restoration Plan benefit, 401k benefit, executive
survivor benefit, post-retirement medical benefits and any deferred compensation
arrangements. Payment of deferred compensation subject to IRC Section
409A and your Pension Restoration Plan benefit will be begin as
previously elected but no earlier than the first pay date which is at least six
months following your retirement date. You will also be eligible for a pro-rata
payment of the Performance Stock Units (PSUs) that you received in 2007, paid at
the same time that other participants in the plan receive their payments. As
provided under the plan, your management stock options will continue to vest as
scheduled following your retirement and will expire the earlier of the original
expiration date or the third anniversary of your retirement
date. Deferral stock options will expire the earlier of the original
expiration date or the fifth anniversary of your retirement
date. Long-term Incentive Plan (LTIP) grants and all unvested
restricted stock not included in section 2 will be canceled on your retirement
date.
7. Right
of Revocation:
Your signature also acknowledges that, in compliance with the OWBPA
mentioned above, you have been fully advised by the Company of your right to
revoke and nullify this release and Agreement, which right must be exercised if
at all, within seven (7) days of the date of your signature. Any revocation of
this agreement must be in writing, addressed to First Tennessee Bank, attention
Xxxxxxx Xxxxxxx, Employee Services Division, 000 Xxxxx Xxxxxx, Xxxxx Xxxxx,
Xxxxxxx, Xxxxxxxxx 00000. The Company must be notified within the foregoing
seven day period. This agreement will not become effective or enforceable until
the expiration of the seven day period. In the event the company
enters a merger or other change-in-control agreement after you sign this release
and Agreement, you will not be eligible for change-in-control severance benefits
under your current change-in-control agreement.
8. Return
of Documents:
By your signature, you acknowledge and confirm that you will return to the
Company any and all documents belonging to it, as well as any other property
which belongs to it, and that no such documents or materials or property will be
retained by you.
9. Binding
Effect:
Upon your signing this Agreement, and after the expiration of seven (7) days, it
will become effective and is binding upon you and the Company and their
respective successors, assigns, heirs and personal representatives, as is
discussed in paragraph 4 above.
10. Severability:
A finding that any provision of this Agreement is void or unenforceable shall
not affect the validity or enforceability of any other provisions of this
Agreement.
11. Drafting:
This Agreement is a product of negotiations between the parties and in
construing the provisions of this Agreement, no inference or presumption shall
be drawn against either party on the basis of which party or their attorneys
drafted this Agreement.
12. Captions:
The captions to the various paragraphs of this Agreement are for convenience
only and are not part of this Agreement.
13. Sole
Agreement:
By your signature, you also confirm that the only consideration for your signing
this Agreement are the terms set forth within it, and that no other promise or
agreement of any kind has been made to you by the Company or anyone acting by,
for, or on its behalf.
YOU
ALSO AFFIRM THAT YOU HAVE BEEN FREE TO DISCUSS THIS MATTER PRIVATELY AND
THOROUGHLY WITH A FINANCIAL COUNSELOR AND AN ATTORNEY OF YOUR CHOICE AND THAT
YOU FULLY UNDERSTAND THE MEANING AND INTENT OF THIS AGREEMENT, INCLUDING, BUT
NOT LIMITED TO, ITS FINAL AND BINDING EFFECT.
This
Agreement covers in detail each and every element of the retirement agreement
agreed upon between you and the Company. Your signature in the space provided
below will confirm that you have had an unhurried opportunity to carefully read
and review this Agreement and seek advice with respect to its content, and that
you fully understand its meaning in all respects.
This
Agreement may be enforced by the parties in any state or federal court of
competent jurisdiction.
This
Agreement is signed in duplicate originals at First Horizon National Corporation
in Memphis, Tennessee.
I HAVE READ
THE FOREGOING AGREEMENT, HAVE HAD A REASONABLE AND ADEQUATE OPPORTUNITY TO
REVIEW IT, AND FULLY UNDERSTAND AND VOLUNTARILY SIGN THE SAME.
/s/
Xxxx X. X’Xxxxxx,
Xx. May
12, 2008
Xxxx X.
X’Xxxxxx,
Xx. Date
Witnessed
by:
/s/
Xxxx X. Xxxxxxx 5/12/08
[Notary Seal]
Notary of the
State of Tennessee
First
Horizon National Corporation
By: /s/
Xxxx
Xxxxxx Xxx
13, 2008
Xxxx
Xxxxxx Date
Executive
Vice President
and
Human Resources Manager
Human Resources Manager
