EXHIBIT 10.15
[FORM OF CHANGE IN CONTROL SEVERANCE AGREEMENT
(2005)
WITH EXECUTIVE OFFICERS]
[ Date ]
[ Name and Address of
Executive ]
Dear [ Name of Executive
]:
First Horizon National Corporation,
a Tennessee corporation (including any successor thereto, the
"Company"), considers the establishment and maintenance of a sound
and vital management to be essential to protecting and enhancing
the best interests of the Company and its shareholders. In this
connection, the Company recognizes that, as is the case with many
publicly held corporations, the possibility of a change in control
may arise and that such possibility, and the uncertainty and
questions which it may raise among management, may result in the
departure or distraction of management personnel to the detriment
of the Company and its shareholders. Accordingly, the Board of
Directors of the Company (the "Board") has determined that
appropriate steps should be taken to reinforce and encourage the
continued attention and dedication of members of the Company's
management to their assigned duties without distraction in
circumstances arising from the possibility of a change in control
of the Company. In particular, the Board believes it important,
should the Company or its shareholders receive a proposal for
transfer of control of the Company, that you be able, if requested,
to assess and advise the Board whether such proposal would be in
the best interests of the Company and its shareholders and to take
such other action regarding such proposal as the Board might
determine to be appropriate, without being influenced by the
uncertainties of your own situation.
In order to induce you to remain in
the employ of the Company, this letter agreement, which has been
approved by the Board, sets forth certain benefits which the
Company agrees will be provided to you in the event of a "change in
control" of the Company under the circumstances described
below.
1.
Agreement to Provide Services; Right to
Terminate .
(i) Except as otherwise provided in
paragraph (ii) below, the Company or you may terminate your
employment at any time, subject to the Company's providing the
benefits hereinafter specified in accordance with the terms
hereof.
(ii) In the event a tender offer or
exchange offer is made by a Person (as hereinafter defined) for
more than 20 percent (20%) of the combined voting power of the
Company's outstanding securities ordinarily having the right to
vote at elections of directors, including shares of the common
capital stock of First Tennessee National Corporation, par value
$1.25 per share (the "Company Voting Securities"), you agree that
you will not leave the employ of the Company (other than as a
result of Disability, Retirement, or upon an event which would
constitute Good
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Reason if such event occurred after
a change in control of the Company, as such terms are hereinafter
defined) and will render the services contemplated in the recitals
to this Agreement until such tender offer or exchange offer has
been abandoned or terminated or a change in control of the Company,
as defined in Section 3 hereof, has occurred; provided ,
however , that such obligation shall not extend for a period
exceeding one hundred and eighty (180) days from the initial event
resulting in the obligation under this paragraph (ii). For purposes
of this Agreement, the term "Person" shall mean and include any
individual, corporation, partnership, group, association or other
"person", as such term is defined in Section 3(a)(9) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
and as used in Section 13(d) or Section 14(d) of the Exchange Act,
other than the Company, an entity in which the Company directly or
indirectly beneficially owns more than 50% of the voting securities
or interests (a "Subsidiary"), or any employee stock ownership or
other employee benefit plan or trust sponsored by the Company or a
Subsidiary.
2.
Term of Agreement . This Agreement shall commence
on the date hereof and shall continue in effect until you or the
Company shall have given three (3) years prior written notice of
termination of this Agreement; provided , that,
notwithstanding the delivery of any such notice, this Agreement
shall continue in effect for a period of thirty-six (36) months
after a change in control of the Company, as defined in Section 3
hereof, if such change in control shall have occurred during the
term of this Agreement. Notwithstanding anything in this Section 2
to the contrary, this Agreement shall terminate if you or the
Company terminate your employment prior to a change in control of
the Company, unless you reasonably demonstrate that such
termination of employment was at the request of a third party who
has taken steps reasonably calculated to effect a change in control
or otherwise arose in connection with or in anticipation of a
change in control, in which case your employment shall for all
purposes of this Agreement be deemed to have been terminated by you
for Good Reason immediately following a change in control of the
Company.
3.
Change in Control . For purposes of this
Agreement, a "change in control" means the occurrence of any one of
the following events:
(i) individuals who, on
January 21, 1997, constitute the Board (the "Incumbent
Directors") cease for any reason to constitute at least a majority
of the Board, provided that any person becoming a director
subsequent to January 21, 1997, whose election or nomination for
election was approved by a vote of at least three-fourths (3/4) of
the Incumbent Directors then on the Board (either by a specific
vote or by approval of the proxy statement of the Company in which
such person is named as a nominee for director, without written
objection to such nomination) shall be an Incumbent Director;
provided , however , that no individual elected or
nominated as a director of the Company initially as a result of an
actual or threatened election contest with respect to directors or
as a result of any other actual or threatened solicitation of
proxies or consents by or on behalf of any person other than the
Board shall be deemed to be an Incumbent Director;
(ii) any Person is or becomes a
"beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company
representing 20% or more of the combined voting power of the
Company Voting Securities; provided , however , that
the event
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described in this
paragraph (ii) shall not be deemed to be a change in control
by virtue of any of the following acquisitions: (A) by any
underwriter temporarily holding securities pursuant to an offering
of such securities, or (B) pursuant to a Non-Qualifying
Transaction (as defined in paragraph (iii));
(iii) the consummation of a merger,
consolidation, share exchange or similar form of corporate
transaction involving the Company or any of its Subsidiaries that
requires the approval of the Company's stockholders, whether for
such transaction or the issuance of securities in the transaction
(a "Business Combination"), unless immediately following such
Business Combination: (A) more than 60% of the total voting
power of (x) the corporation resulting from such Business
Combination (the "Surviving Corporation"), or (y) if
applicable, the ultimate parent corporation that directly or
indirectly has beneficial ownership of 100% of the voting
securities eligible to elect directors of the Surviving Corporation
(the "Parent Corporation"), is represented by Company Voting
Securities that were outstanding immediately prior to the
consummation of such Business Combination (or, if applicable, is
represented by shares into which such Company Voting Securities
were converted pursuant to such Business Combination), and such
voting power among the holders thereof is in substantially the same
proportion as the voting power of such Company Voting Securities
among the holders thereof immediately prior to the Business
Combination, (B) no person (other than any employee benefit
plan sponsored or maintained by the Surviving Corporation or the
Parent Corporation), is or becomes the beneficial owner, directly
or indirectly, of 20% or more of the total voting power of the
outstanding voting securities eligible to elect directors of the
Parent Corporation (or, if there is no Parent Corporation, the
Surviving Corporation) and (C) at least two-thirds (2/3) of
the members of the board of directors of the Parent Corporation
(or, if there is no Parent Corporation, the Surviving Corporation)
were Incumbent Directors at the time of the Board's approval of the
execution of the initial agreement providing for such Business
Combination (any Business Combination which satisfies all of the
criteria specified in (A), (B) and (C) above shall be deemed to be
a "Non-Qualifying Transaction"); or
(iv) the stockholders of the Company
approve a plan of complete liquidation or dissolution of the
Company or a sale of all or substantially all of the Company's
assets.
Notwithstanding the foregoing, a
change in control of the Company shall not be deemed to occur
solely because any person acquires beneficial ownership of more
than 20% of the Company Voting Securities as a result of the
acquisition of Company Voting Securities by the Company which
reduces the number of Company Voting Securities outstanding;
provided , that if after such acquisition by the Company
such person becomes the beneficial owner of additional Company
Voting Securities that increases the percentage of outstanding
Company Voting Securities beneficially owned by such person, a
change in control of the Company shall then occur.
4.
Termination Following Change in Control
. If any of the events described in Section 3 hereof constituting a
change in control of the Company shall have occurred, you shall be
entitled to the benefits provided in Section 5 upon your
termination of employment within thirty-six (36) months following
such change in control; provided, however, that you shall be
entitled to the benefits provided in Section 5(viii) whether or not
your employment has been terminated. For
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purposes of this Agreement,
"Disability," "Retirement," "Cause" and "Good Reason" have the
meanings set forth below in this Section 4.
(i) Disability . Termination
by the Company of your employment based on "Disability" shall mean
termination because of your "disability" under the Company's Long
Term Disability Plan, or any successor or substitute plan or plans
of the Company, in effect immediately prior to the change in
control of the Company.
(ii) Retirement . Termination
by you or by the Company of your employment based on "Retirement"
shall mean termination as a result of your mandatory retirement in
accordance with the Company's retirement policy generally
applicable to similarly situated officers, as in effect immediately
prior to the change in control of the Company, or in accordance
with any retirement arrangement established with your written
consent.
(iii) Cause . Termination by
the Company of your employment for "Cause" shall mean termination
upon (a) the willful and continued failure by you to perform
substantially your duties with the Company (other than any such
failure resulting from your incapacity due to physical or mental
illness) after a written demand for substantial performance is
delivered to you by the Chairman of the Board, Chief Executive
Officer or President of the Company which specifically identifies
the manner in which such person believes that you have not
substantially performed your duties, which failure to perform
causes material and demonstrable economic harm to the Company or
its Affiliates, (b) the willful engaging by you in illegal conduct
which is materially and demonstrably injurious to the Company, or
(c) the conviction of, or a plea of guilty or nolo
contendere to, a felony. For purposes of this paragraph
(iii), no act, or failure to act, on your part shall be considered
"willful" unless done, or omitted to be done, by you in bad faith
and without reasonable belief that your action or omission was in,
or not opposed to, the best interests of the Company or its
Affiliates. Any act, or failure to act, based upon authority given
pursuant to a resolution duly adopted by the Board or based upon
the advice of counsel for the Company or upon the instructions of
the Chief Executive Officer or other senior executive officer of
the Company shall be conclusively presumed to be done, or omitted
to be done, by you in good faith and in the best interests of the
Company and its Affiliates. For purposes of this Agreement,
"Affiliate" means any person directly or indirectly controlling,
controlled by, or under common control with the Company. It is also
expressly understood that your attention to matters or your
engagement in activities not directly related to the business of
the Company shall not provide a basis for termination for Cause so
long as the Board has approved your engagement in such activities
prior to or following a change in control. Notwithstanding the
foregoing, in the case of clause (a) or (b) of this paragraph
(iii), you shall not be deemed to have been terminated for Cause
unless and until there shall have been delivered to you a copy of a
resolution duly adopted by the affirmative vote of not less than
three-fourths (3/4) of the entire membership of the Board
(excluding you if you are a Board member) at a meeting of the Board
called and held for such purpose (after reasonable notice to you
and an opportunity for you, together with your counsel, to be heard
before the Board), finding that in the good faith opinion of the
Board you were guilty of the conduct set forth above in (a) or (b)
of this paragraph (iii) and specifying the particulars thereof in
detail. The Company must notify you of any event constituting Cause
within ninety (90) days following the Company's knowledge of its
existence or such event shall not constitute Cause under this
Agreement.
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(iv) Good Reason .
Termination by you of your employment for "Good Reason" shall mean
termination based upon the occurrence after a change in control of
the Company of any of the following events, without your written
consent specifically acknowledging that any such event shall not
give rise to Good Reason under this Agreement:
(A) a determination by you, in your
reasonable judgment, that there has been an adverse change in your
status, title(s) or position(s) with the Company as in effect
immediately prior to the change in control, including, without
limitation, any adverse change in your status, title(s) or
position(s) as a result of a diminution in your duties or
responsibilities, or the assignment to you of any duties or
responsibilities which are inconsistent with such status, title(s),
or position(s) as in effect immediately prior to the change in
control, or any removal of you from, or any failure to reappoint or
reelect you to, such position(s) (except in connection with the
termination of your employment for Cause, Disability or Retirement
or as a result of your death or by you other than for Good
Reason);
(B) a reduction by the Company in
your base salary or annual target bonus opportunity (including any
adverse change in the formula for such annual bonus target) as in
effect immediately prior to the change in control or as the same
may be increased from time to time thereafter;
(C) the failure by the Company to
continue in effect any employee benefit plan, compensation plan,
welfare benefit plan or material fringe benefit plan in which you
are participating immediately prior to such change in control or
the taking of any action by the Company which would adversely
affect your participation in or reduce your benefits under any such
plan, unless you are permitted to participate in other plans
providing you with substantially equivalent benefits in the
aggregate (at substantially equivalent cost with respect to welfare
benefit plans);
(D) the failure by the Company to
provide and credit you with the number of paid vacation days to
which you are then entitled in accordance with the Company's normal
vacation policy as in effect immediately prior to the change in
control;
(E) the Company's requiring you to
(i) be based at (a) an office that is greater than 25 miles from
where your office is located immediately prior to the change in
control or (b) at an office not appropriate for your position
(including, without limitation, your removal from the Company's
principal executive offices), except for required travel on the
Company's business to an extent substantially consistent with the
business travel obligations which you undertook on behalf of the
Company prior to the change in control, or (ii) travel on Company
business to a substantially greater extent than was required
immediately prior to the change in control;
(F) the failure by the Company to
obtain from any Successor (as hereinafter defined) the assent to
this Agreement contemplated by Section 6 hereof;
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(G) any purported termination by the
Company of your employment which is not effected pursuant to a
Notice of Termination satisfying the requirements of paragraph (v)
below (and, if applicable, paragraph (iii) above); and for purposes
of this Agreement, no such purported termination shall be
effective; or
(H) any refusal by the Company to
continue to allow you to attend to matters or engage in activities
not directly related to the business of the Company which, prior to
the change in control, you were permitted by the Board to attend to
or engage in.
An isolated and inadvertent action
taken in good faith and which is remedied by the Company within ten
(10) days after receipt of notice thereof given by Executive shall
not constitute Good Reason. Notwithstanding anything herein to the
contrary, termination of your employment for any or no reason
(other than Cause or Retirement) during the 30-day period
commencing one (1) year after the date of a change in control shall
constitute termination for Good Reason; provided ,
however , that this sentence shall not apply if either (a) a
change in control pursuant to Section 3(ii) shall have occurred and
such change in control would not have occurred if "20%" were
replaced by "50%" in such Section 3(ii) or (b) a change in control
pursuant to Section 3(iii) shall have occurred and such change in
control would not have occurred if (x) "60%" in subclause (A) of
such Section 3(iii) were replaced by "50%", (y) 20% in subclause
(B) of such Section 3(iii) were replaced by 50% and (z) "two-thirds
(2/3)" in subclause (C) of such Section 3(iii) were replaced by "a
majority". For purposes of this Agreement, "Plan" shall mean any
compensation plan such as an incentive, stock option, restricted
stock, pension restoration or deferred compensation plan or any
employee be
