As filed with the Securities and Exchange Commission on September 12, 2003
Registration No. 333-
----------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FIRST TENNESSEE NATIONAL CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
TENNESSEE 62-0803242
(Jurisdiction of Incorporation) (I.R.S. Employer Identification No.)
165 Madison Avenue
Memphis, Tennessee 38103
(901) 523-4444
(Address of Principal Executive Offices)
First Tennessee National Corporation Nonqualified Deferred Compensation Plan
(Full Title of the Plan)
Harry A. Johnson, III
Executive Vice President and General Counsel
First Tennessee National Corporation
65 Madison Avenue
Memphis, Tennessee 38103
(901)523-5624
(Name, Address and Telephone number of Agent For Service)
(with copy to:)
Clyde A. Billings, Jr.
Senior Vice President, Assistant General Counsel and Corporate Secretary
First Tennessee National Corporation
165 Madison Avenue
Memphis, Tennessee 38103
(901) 523-5679
CALCULATION OF REGISTRATION FEE
===================================================================================================================================
Proposed Maximum
Title of Each Class of Securities to Amount to be Offering Price Per Proposed Maximum Amount of
be Registered Registered Share Aggregate Offering Price Registration Fee
------------------------------------ ----------------------- ------------------------ ------------------------ ----------------
Deferred Compensation $30,000,000(1) $ 30,000,000(1) $30,000,000(1) $2,427
Obligations
===================================================================================================================================
(1) Estimated solely for the purpose of determining the amount of the
registration fee.
Pursuant to Rule 462 of the 1933 Act, the Registration Statement on
Form S-8 shall be effective upon filing with the Commission.
PART II
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are hereby incorporated by reference in this
Registration Statement:
1. The Registrant's most recent annual report on Form 10-K for the year
ended December 31, 2002.
2. The Registrant's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 2003 and June 30, 2003.
3. The Registrant's Current Reports on Form 8-K filed with the Commission
on dated May 8, 2003, May 12, 2003, June 9, 2003, and July 30, 2003.
In addition, all documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part thereof from the date of
filing of such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this registration statement to the extent that a
statement contained herein or in any other subsequently field document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
registration statement.
Item 4. DESCRIPTION OF SECURITIES
The securities being registered hereby represent deferred compensation
obligations (the "Obligations") of the registrant under the First Tennessee
National Corporation Nonqualified Deferred Compensation Plan (the "Plan"). The
securities represent contractual obligations of the registrant to pay or
distribute to participants in the Plan compensation, the receipt of which the
participants have elected to defer, as adjusted for notional investment
experience, in accordance with the terms of the Plan. The Obligations may also
represent amounts that the registrant has elected to contribute to participants'
accounts under the Plan, as adjusted for notional investment experience. All
amounts credited to a participant's account are adjusted for earnings or losses
based on notional investments in one or more mutual funds selected by the
participant from a menu chosen by the plan administrator. The Obligations are
payable in cash in a lump-sum distribution or in installments, in accordance
with the terms of the Plan, upon participants' termination of employment (or, in
the case of Directors, termination of service) for any reason, including but not
limited to death, disability or retirement. Participants may also elect to have
part or all of the Obligations payable as an in-service distribution on up to
three dates occurring prior to any termination of employment (or, in the case of
Directors, termination of service), which dates are selected by participants in
accordance with the terms of the Plan. The Plan may be amended, modified or
terminated at any time, provided that such amendment, modification or
termination may not adversely affect benefits already accrued without the
consent of the affected participants. There is no trading market for the
Obligations.
The Obligations are unsecured general obligations of the registrant and
rank pari passu with other unsecured and unsubordinated indebtedness of the
registrant. The Obligations are not subject in any manner, either voluntarily or
involuntarily, to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment or garnishment. Any attempt by any person to transfer or
assign benefits under the Plan, other than a claim for benefits by a Participant
or his or her beneficiary(ies), will be null, void and of no effect.
The Obligations are not convertible into any other security of the
registrant. No trustee has been appointed to take action with respect to the
Obligations and each participant in the Plan will be responsible for enforcing
2
his or her own rights with respect to the Obligations. The registrant may
establish a "rabbi trust" to serve as a source of funds from which it can
satisfy the Obligations.
Participants in the Plan will have no rights to any assets held by a rabbi
trust, except as general creditors of the registrant. Assets of any rabbi trust
will be subject to the claims of the registrant's general creditors in the event
of the registrant's insolvency.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Section 11(a) of the Securities Act of 1933, as amended (the "Securities
Act"), provides that if any part of a registration statement at the time it
becomes effective contains an untrue statement of a material fact or omits a
material fact required to be stated therein or necessary to make the statements
therein not misleading, any person acquiring a security pursuant to the
registration statement may assert a claim against, among others, an accountant
who has consented to be named as having certified any part of the registration
statement or as having prepared any report for use in connection with the
registration statement unless it is proven that at the time such person acquired
the security the person knew of such untruth or omission.
The registrant dismissed Arthur Andersen LLP ("Arthur Andersen") as its
independent public accountant on May 15, 2002, as described in the registrant's
Form 8-K dated May 15, 2002, and filed May 16, 2002. After reasonable efforts,
the registrant has not been able to obtain Arthur Andersen's consent to the
naming of that firm as an expert or to the incorporation by reference of Arthur
Andersen's audit report dated January 15, 2002 in this registration statement as
required by Section 7 of the Securities Act.
SEC Rule 437a promulgated pursuant to the Securities Act permits the
registrant to file registration statements that contain or incorporate by
reference financial statements in which Arthur Andersen had been acting as the
independent public accountant without filing the written consent of Arthur
Andersen required by Section 7 of the Securities Act. The lack of a consent from
Arthur Andersen will generally make unavailable a claim against the accountant
relating to securities acquired pursuant to this registration statement under
Section 11(a) of the Securities Act for any untrue statement of a material fact
contained in the financial statements audited by Arthur Andersen or any
omissions to state a material fact required to be stated in those financial
statements or necessary to make the statements in those financial statements not
misleading.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Tennessee Code Annotated Sections 48-18-501 through 48-18-509 authorize a
corporation to provide for the indemnification of officers, directors, employees
and agents in terms sufficiently broad to permit indemnification under certain
circumstances for liabilities (including reimbursement for expenses incurred)
arising under the Securities Act. The registrant has adopted the provisions of
the Tennessee statute pursuant to Article Six of its Bylaws. Also the registrant
has a "Directors' and Officers' Liability Insurance Policy" which provides
coverage sufficiently broad to permit indemnification under certain
circumstances for liabilities (including reimbursement for expenses incurred)
arising under the Securities Act.
Tennessee Code Annotated, Section 48-12-102, permits the inclusion in the
charter of a Tennessee corporation of a provision, with certain exceptions,
eliminating the personal monetary liability of directors to the corporation or
its shareholders for breach of the duty of care. The registrant has adopted the
provisions of the statute as Article 13 of its Charter.
The shareholders of the registrant have approved an amendment to Article
Six of the Bylaws pursuant to which the registrant is required to indemnify each
director and any officers designated by the Board of Directors, and advance
expenses, to the maximum extent not prohibited by law. In accordance with the
foregoing, the Board of Directors is authorized to enter into individual
indemnity agreements with the directors and such officers. Such indemnity
agreements have been approved for all of the directors and certain officers.
3
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
No response is required to this item.
Item 8. EXHIBITS
Exhibit Number Description
-------------- -----------
4.1 Restated Charter of the registrant, as amended, attached as
Exhibit 3(i) to the registrant's Annual Report on Form 10-K
for the year ended December 31, 1997 and incorporated herein
by reference.
4.2 Bylaws of the registrant, as amended and restated, attached
as Exhibit 3(ii) to the registrant's Quarterly Report on
Form 10-Q for the quarter ended September 30, 2002 and
incorporated herein by reference.
4.3 First Tennessee National Corporation Nonqualified Deferred
Compensation Plan
5 Opinion and Consent of Baker, Donelson, Bearman, Caldwell &
Berkowitz
23.1 Consent of Baker, Donelson, Bearman, Caldwell & Berkowitz
(contained in Exhibit 5)
23.2 Consent of KPMG LLP.
24 Power of Attorney
Item 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under the 1933
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for the purposes
of determining any liability under the 1933 Act, each filing of the registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the 1934 Act) that is incorporated by reference in
the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the 1933
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the 1933 Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the 1933 Act and will be governed by the final
adjudication of such issue.
4
[SIGNATURE PAGE TO FOLLOW]
5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Memphis and State of Tennessee, on September 12,
2003.
FIRST TENNESSEE NATIONAL CORPORATION
By: /s/ James F. Keen
-----------------------------------------------
James F. Keen, Executive Vice President,
Chief FinancialOfficer and Corporate Controller
(Principal Financial and Accounting Officer)
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the
date indicated.
NAME TITLE DATE
/s/ Ralph Horn* Chairman of the Board and a Director September 12, 2003
--------------------------------------
Ralph Horn
President, Chief Executive Officer and a September 12, 2003
/s/ J. Kenneth Glass* Director (principal executive officer)
--------------------------------------
J. Kenneth Glass
Executive Vice President, Chief Financial September 12, 2003
Officer and Corporate Controller
(principal financial officer and principal
/s/ James F. Keen* accounting officer)
--------------------------------------
James F. Keen
/s/ Robert C. Blattberg* Director September 12, 2003
--------------------------------------
Robert C. Blattberg
/s/ George E. Cates* Director September 12, 2003
--------------------------------------
George E. Cates
/s/ James A. Haslam, III* Director September 12, 2003
--------------------------------------
James A. Haslam, III
/s/ R. Brad Martin* Director September 12, 2003
--------------------------------------
R. Brad Martin
/s/ Vicki R. Palmer* Director September 12, 2003
--------------------------------------
Vicki R. Palmer
6
/s/ Michael D. Ross* Director September 12, 2003
--------------------------------------
Michael D. Rose
/s/ William B. Sansom* Director September 12, 2003
--------------------------------------
William B. Sansom
/s/ Jonathan P. Ward* Director September 12, 2003
--------------------------------------
Jonathan P. Ward
/s/ Luke Yancy, III* Director September 12, 2003
--------------------------------------
Luke Yancy, III
*By: /s/ Clyde A. Billings, Jr. September 12, 2003
--------------------------------------
Clyde A. Billings, Jr. as
Attorney-in-Fact
7
EXHIBIT 4.3
-----------
FIRST TENNESSEE NATIONAL CORPORATION
NONQUALIFIED DEFERRED COMPENSATION PLAN
1
ARTICLE I
Establishment and Purpose.......................................Page 3
ARTICLE II
Definitions.....................................................Page 3
ARTICLE III
Eligibility and Participation...................................Page 8
ARTICLE IV
Deferral Elections, Company Discretionary Contributions,
Account Valuation...............................................Page 8
ARTICLE V
Distributions and Withdrawals..................................Page 13
ARTICLE VI
Administration.................................................Page 16
ARTICLE VII
Amendment and Plan Termination.................................Page 17
ARTICLE VIII
Informal Funding...............................................Page 17
ARTICLE IX
Claims.........................................................Page 18
ARTICLE X
General Conditions................................................Page 20
2
FIRST TENNESSEE NATIONAL CORPORATION
NONQUALIFIED DEFERRED COMPENSATION PLAN
ARTICLE I
ESTABLISHMENT AND PURPOSE
-------------------------
First Tennessee National Corporation hereby sponsors the First Tennessee
National Corporation Nonqualified Deferred Compensation Plan. The purpose of the
Plan is to provide selected eligible employees of the Company and the Bank,
members of the Company's Board of Directors, and such of the divisions or
affiliates of the Company or the Bank that have adopted the Plan for their
Eligible Employees with an opportunity to defer receipt of a portion of their
base salary, bonus, commission and, in the case of Directors, Directors' Fees,
and such other specified cash compensation (if any) as is permitted from time to
time by the Committee. The Plan is not intended to meet the qualification
requirements of Section 401(a) of the Internal Revenue Code, but is intended to
be an unfunded arrangement providing deferred compensation to eligible employees
who are part of a select group of management or highly compensated employees of
the Company and selected subsidiaries within the meaning of Sections 201, 301
and 401 of ERISA. The Plan is intended to be exempt from the requirements of
Parts 2, 3 and 4 of Title I of ERISA as a "top hat" plan, and to be eligible for
the alternative method of compliance for reporting and disclosure available for
unfunded "top hat" plans.
ARTICLE II
DEFINITIONS
-----------
2.1 Account Balance. Account Balance means, with respect to the Deferred
Compensation Account or a Sub-Account, the total value of all the
Investment Options in which the Participant deferrals, and Company
Discretionary Contributions, have been Deemed Invested as of a
specific date, taking into account the value of all distributions from
that Account or Sub-Account to the specific date.
2.2 Allocation Election. Allocation Election means a choice by a
Participant of one or more Investment Options, and the allocation
among them, in which future Participant deferrals and/or existing
Account Balances are Deemed Invested for purposes of determining
earnings in a particular Sub-Account.
2.3 Allocation Election Form. Allocation Election Form means the form (or
web site screen) approved by the Plan Administrator on which the
Participant makes an Allocation Election, Rebalances a Sub-Account, or
elects a Transfer.
2.4 Annual Valuation Date. Annual Valuation Date means the anniversary of
the Termination Valuation Date or In-Service Distribution Valuation
Date utilized to determine the amount of an annual installment
payment.
2.5 Bank. The Bank means First Tennessee Bank National Association, a
wholly owned subsidiary of the Company.
3
FIRST TENNESSEE NATIONAL CORPORATION
NONQUALIFIED DEFERRED COMPENSATION PLAN
2.6 Beneficiary. Beneficiary means a natural person, estate, or trust
designated by a Participant on the form designated by the Plan
Administrator to receive benefits to which a Beneficiary is entitled
under and in accordance with provisions of the Plan. The Participant's
estate shall be the Beneficiary if:
(i) the Participant has not designated a natural person or trust as
Beneficiary,or
(ii) the designated Beneficiary has predeceased the Participant.
2.7 Chief Executive Officer. Chief Executive Officer means the individual
who performs the functions of a Chief Executive Officer for the
Company.
2.8 Code. Code means the Internal Revenue Code, as amended from time to
time.
2.9 Company. Company means First Tennessee National Corporation, its
successors and assigns.
2.10 Company Discretionary Contributions. Company Discretionary
Contribution means a credit to a Participant's Retirement/Termination
Account by a Participating Employer at a time and in an amount
determined in the sole discretion of the Committee.
2.11 Compensation. Compensation means, for purposes of this Plan, base
salary (including any deferred salary under a Code Section 401(k) or
125 plan), bonus, commission, Directors' annual retainers, Directors'
Fees, and such other cash compensation (if any) approved by the
Committee as Compensation for purposes of this Plan.
2.12 Compensation Deferral Agreement. Compensation Deferral Agreement means
the deferral election form, or such other forms furnished by the Plan
Administrator (or screens on the Participant web site approved by the
Plan Administrator), on which a Participant elects: (a) the amount and
type of Compensation to defer for the following Plan Year (in dollar
amount or percentage); (b) any In-Service Distribution Dates for that
year's, or a portion of that year's, deferrals; and (c) the payment
schedule for Retirement and In-Service distributions. The Allocation
Election Form may also be part of the Compensation Deferral Agreement,
in the discretion of the Plan Administrator.
2.13 Death Benefit. Death Benefit means a distribution of the total amount
of the Participant's Deferred Compensation Account Balance, including
any remaining unpaid In-Service Account balances, to the Participant's
Beneficiary(ies) in accordance with Article V of the Plan.
2.14 Deemed Investment. A Deemed Investment (or "Deemed Invested") means
the notional conversion of a dollar amount of deferred Compensation
and Company Discretionary Contributions credited to a Participant's
Deferred Compensation Account into shares or units (or a fraction of
such measures of ownership, if applicable) of the underlying
investment (e.g. mutual fund or other investment) which is referred to
by the Investment Option(s) selected by the Participant. The
4
FIRST TENNESSEE NATIONAL CORPORATION
NONQUALIFIED DEFERRED COMPENSATION PLAN
conversion shall occur as if shares (or units) of the designated
investment were being purchased (or sold, in the case of a
distribution) at the purchase price as of the close of business of the
day on which the Deemed Investment occurs. At no time shall a
Participant have any real or beneficial ownership in the actual
investment to which the Investment Option refers.
2.15 Deferred Compensation Account ("Account"). A Participant's Deferred
Compensation Account means the aggregate of all Sub-Accounts
maintained for Participant deferrals and Company Discretionary
Contributions, together with a record of Deemed Investments in
accordance with Participants' Allocation Elections, minus any
withdrawals or distributions from said Account. The Account, and all
component Sub-Accounts, shall be a bookkeeping account utilized solely
as a device for the measurement of amounts to be paid to the
Participant under the Plan. The Account, and all Sub-Accounts, shall
not constitute or be treated as an escrow, trust fund, or any other
type of funded account for Code or ERISA purposes and, moreover,
amounts credited thereto shall not be considered "plan assets" for
ERISA purposes.
2.16 Deferred Compensation Committee or "Committee". Committee means the
Human Resources Committee of the Company's Board of Directors.
2.17 Director. Director means a member of the board of directors of the
Company who is not also an Employee.
2.18 Directors' Fees. Directors' Fees means the annual cash retainer,
meeting fees, and committee fees paid to Directors during the Plan
Year.
2.19 Disability. Disability means a disability that would qualify as a
total and permanent disability under the long-term disability plan
then in effect at the company employing the Participant at the onset
of such total and permanent disability.
2.20 Eligible Employee. Eligible Employee means an Employee who is part of
a select group of management or highly compensated employees of an
Employer within the meaning of Sections 201, 301 and 401 of ERISA, and
who is selected by the Plan Administrator to participate in the Plan.
2.21 Employee. Employee means a full-time salaried employee of an Employer.
2.22 Employer. Employer (or "Participating Employer") means the Company,
the Bank, and such subsidiaries or affiliates of the Company or the
Bank that have adopted the Plan for their Eligible Employees.
2.23 ERISA. ERISA means the Employee Retirement Income Security Act of
1974, as amended from time to time.
5
FIRST TENNESSEE NATIONAL CORPORATION
NONQUALIFIED DEFERRED COMPENSATION PLAN
2.24 In-Service Distribution. In-Service Distribution means a payment by
the Company to the Participant following a date elected by the
Participant (the In-Service Distribution Date) of the amount
represented by the account balance in the In-Service Sub-Account
pertaining to that In-Service Distribution. In-Service Distributions
shall be made in accordance with Participants' In-Service Distribution
form of payment election.
2.25 In-Service Account. In-Service Account means a separate Sub-Account of
the Deferred Compensation Account, created whenever a Participant
elects a new In-Service Distribution Date (not already established
with a Sub-Account) with respect to a portion, or all, of his or her
deferral contributions, to which such portion of deferral specified by
the Participant is credited and Deemed Invested in accordance with the
Participant's Allocation Election.
2.26 In-Service Distribution Date. In-Service Distribution Date means the
date selected by the Participant, following which the In-Service
Distribution Sub-Account Balance shall be distributed in accordance
with the Plan.
2.27 In-Service Distribution Valuation Date. In-Service Distribution
Valuation Date means the last day of the calendar month in which the
In-Service Distribution Date occurs.
2.28 Investment Option. Investment Option means a security or other
investment such as a mutual fund, life insurance sub-account, or other
investment approved by the Plan Administrator for use as part of an
Investment Option menu, which a Participant may elect as a measuring
device to determine Deemed Investment earnings (positive or negative)
to be valued in the Participant's Account or Sub-Account. The
Participant has no real or beneficial ownership in the security or
other investment represented by the Investment Option.
2.29 Participant. Participant means a Director or an Eligible Employee who:
(1) is selected to participate in this Plan in accordance with Section
3.1 and has elected to defer Compensation in accordance with the Plan
in any Plan Year; (2) has been credited with a Plan Balance Transfer;
(3) has received a Company Contribution; or (4) has an Account Balance
in his or her Deferred Compensation Account, including any
Sub-Account, greater than zero prior to his or her death. A
Participant's continued participation in the Plan shall be governed by
Section 3.2 of the Plan.
2.30 Plan. Plan means the First Tennessee National Corporation Nonqualified
Deferred Compensation Plan as documented herein and as may be amended
from time to time hereafter.
2.31 Plan Administrator. Plan Administrator means a committee of
individuals appointed by the Company's EVP Corporate and Employee
Services which is responsible for the day-to-day decision making,
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FIRST TENNESSEE NATIONAL CORPORATION
NONQUALIFIED DEFERRED COMPENSATION PLAN
record keeping, and administration of the Plan; provided, that the
Plan Administrator may delegate duties of the Plan Administrator to
employees or others to assist in the administration of the Plan.
2.32 Plan Balance Transfer. Plan Balance Transfer means the crediting to
the Participant's Retirement/Termination Account an amount equal to
the Participant's account balance in an existing nonqualified deferred
compensation plan sponsored by the Company (other than this Plan) at
such time and in accordance with such procedures as are established by
the Plan Administrator in its sole discretion.
2.33 Plan Year. Plan Year means January 1 through December 31.
2.34 Rebalance. Rebalance means an Allocation Election which pertains to a
Participant's then existing Sub-Account and which reallocates the
Sub-Account Balance among Investment Options available in the Plan.
2.35 Retirement. Retirement means the voluntary termination of employment
with the Company: (a) upon reaching age 65 with at least 5 "Years of
Service" (as defined in the Company pension plan); or (b) after
reaching age 55 with at least 15 Years of Service; or (c) after
attaining an age, which when added to the Participant's Years of
Service, totals at least 75. Retirement shall also mean such
involuntary terminations as are designated as a Retirement for
purposes of this Plan in the sole discretion of the Committee. In the
case of a Director, Retirement means the cessation of performing
services as a Director.
2.36 Retirement/Termination Account. Retirement/Termination Account means a
Sub-Account of the Deferred Compensation Account containing deferrals,
Plan Balance Transfers, Company Discretionary Contributions and Deemed
Investment earnings thereon which have not been allocated to
In-Service Account(s) by the Participant.
2.37 Sub-Account. Sub-Account means a portion of the Deferred Compensation
Account maintained separately by the Plan Administrator in order to
properly administer the Plan.
2.38 Termination of Employment. Termination of Employment means the
termination of a Participant's employment with the Employer for which
the Participant performs services, for any reason other than
Retirement. The foregoing notwithstanding, a continuation of
employment with an affiliate or other subsidiary of the Company or of
the Bank which is not a Participating Employer in this Plan or in any
other nonqualified deferred compensation plan sponsored by the
Company, or a continuation of employment with an affiliate or
subsidiary of the Company or of the Bank for which the Company
sponsors a nonqualified deferred compensation plan accompanied with a
Plan Balance Transfer to the plan of the Participant's new Employer,
with no break in service, shall not constitute a Termination of
Employment.
2.39 Termination Valuation Date. Termination Valuation Date means the last
day of the calendar month in which Termination of Employment or
Retirement occurs.
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FIRST TENNESSEE NATIONAL CORPORATION
NONQUALIFIED DEFERRED COMPENSATION PLAN
2.40 Transfer. Transfer means a partial Allocation Election with respect to
a Participant's then existing Sub-Account where a Participant
transfers a portion of the Sub-Account balance from one Investment
Option to another.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
-----------------------------
3.1 Eligibility and Participation. Each Eligible Employee, determined in
the sole discretion of the Plan Administrator, and each Director shall
be eligible to participate in this Plan.
3.2 Duration. Once an Employee or Director becomes a Participant, such
Employee or Director shall continue to be a Participant so long as he
or she is entitled to receive benefits hereunder, notwithstanding any
subsequent Termination of Employment.
3.3 Revocation of Future Participation. Notwithstanding the provisions of
Section 3.2, the Plan Administrator may revoke such Participant's
eligibility to make future deferrals under this Plan. Such revocation
will not affect in any manner a Participant's Deferred Compensation
Account or other terms of this Plan.
3.4 Notification. Each newly Eligible Employee and Director shall be
notified by the Plan Administrator, in writing, of his or her
eligibility to participate in this Plan.
ARTICLE IV
DEFERRAL ELECTIONS, COMPANY DISCRETIONARY CONTRIBUTIONS, AND PARTICIPANT
------------------------------------------------------------------------
ACCOUNT VALUATION
-----------------
4.1 Deferral Elections, generally
-----------------------------
(a) A Participant shall make deferral elections under the Plan by
completing and submitting to the Plan Administrator a written
Compensation Deferral Agreement provided by the Plan
Administrator (or completing and electronically submitting the
deferral election screen on the Participant web site, when made
available by the Plan Administrator). Deferral elections become
effective upon the first day of the Plan Year following the date
of the election or, in the case of a newly Eligible Employee,
upon the first pay day which follows the date of the election.
Deferral elections are made during an annual enrollment period
which ends no later than September 30, with respect to deferrals
of annual bonus, and December 31, with respect to base salary and
all other forms of Compensation, preceding the Plan Year to which
the deferral election relates unless the enrollment period is
extended by the Plan Administrator because of extraordinary
circumstances. In no event may an enrollment period be extended
8
FIRST TENNESSEE NATIONAL CORPORATION
NONQUALIFIED DEFERRED COMPENSATION PLAN
beyond the last day of the month prior to the beginning of the
Plan Year to which the deferral elections refer. Other cash
Compensation deferral elections shall be made prior to the time
such amounts have been earned, during special enrollment periods
announced by the Plan Administrator.
(b) An Eligible Employee or Director who becomes eligible to be a
Participant during any Plan Year may, in the initial year of
eligibility only, make deferral elections with respect to
Compensation which will be earned during the balance of such Plan
Year but after such elections in such Plan Year, within 30 days
of the date of notification of eligibility as required in Section
3.4 of the Plan.
(c) Deferral elections shall be effective for one Plan Year and shall
expire at the end of the Plan Year to which they refer and may
not be modified during the Plan Year except in the event of a
financial emergency determined in the sole discretion of the Plan
Administrator.
(d) A deferral election shall designate the amount of Compensation to
be deferred in dollar amount or in whole percentages. An Eligible
Employee Participant may defer into this Plan up to 75% of his or
her Compensation, minus the amount (if any) of deferrals made by
the Participant into the First Tennessee National Corporation
Deferred Compensation Stock Option Program for the same Plan
Year. A Director Participant may defer into this Plan up to 100%
of his or her Compensation. The minimum deferral amount into this
Plan for any Participant must be at least $5,000 for each Plan
Year. A Participant may elect different percentages for different
types of Compensation as permitted by the Plan Administrator.
(e) The foregoing notwithstanding, in the event a Participant's
deferral election results in insufficient non-deferred
Compensation from which to withhold taxes in accordance with
applicable law, the deferral election shall be reduced as
necessary to allow the Employer to satisfy tax withholding
requirements.
(f) Deferrals pertaining to base salary shall be deducted by the
Employer on a pro rata basis from a Participant's base salary for
each pay period during the Plan Year, and the amount deferred
shall be credited to the Participant's elected Sub-Account and a
Deemed Investment shall be made in the investment(s) represented
by the Investment Option(s) elected by the Participant as of the
close of business on the date it would otherwise have been paid
as Compensation to the Participant. Deferrals pertaining to other
forms of Compensation shall be deducted by the Employer from the
Participant's Compensation payment on the date of payment of such
Compensation and the amount deferred shall be credited to the
Participant's elected Sub-Account and a Deemed Investment shall
be made in the investment(s) represented by the Investment
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Option(s) elected by the Participant as of the close of business
on the date it would otherwise have been paid as Compensation to
the Participant.
(g) The Compensation Deferral Agreement shall indicate the
Participant's election of a payment schedule for his or her
Retirement/Termination Account. A Participant shall elect to have
such Retirement/Termination Account distributed: (a) a portion,
or all, in a single lump sum payable as soon as administratively
practicable following the Termination Valuation Date; and/or (b)
the balance in up to five (5) annual installment payments payable
in accordance with Section 5.3 of the Plan. An election of a
payment schedule for a Participant's Retirement/Termination
Account shall pertain to the entire Retirement/Termination
Account balance (e.g. new payment schedule elections override
previously elected payment schedules). A Participant shall be
permitted to change (override) his or her Retirement/Termination
Account payment schedule election at any time by filing a new
Compensation Deferral Agreement (or by following such procedures
as are set by the Plan Administrator regarding using the
Participant website, when available), provided such election is
made at least thirteen (13) months prior to the Participant's
date of Retirement. Any payment schedule election made within
thirteen months of Retirement shall be null and void, and the
most recent payment schedule election which is dated at least
thirteen months prior to Retirement will be in effect.
4.2 In-Service Distribution Date Election
-------------------------------------
(a) The Compensation Deferral Agreement shall also indicate the
Participant's election of In-Service Distribution Date(s) (if
any). An In-Service Distribution election shall pertain to such
portion of deferred Compensation for the Plan Year as elected by
the Participant and shall cause an In-Service Account to be
established (unless such Account already exists), to which such
portion of deferred Compensation shall be credited. In the event
an In-Service Account has already been established for the
In-Service Distribution Date referred to in the deferral
election, such portion of deferred Compensation shall be credited
to the existing In-Service Account.
(b) A Participant may maintain up to three (3) In-Service Accounts.
(c) A newly established In-Service Distribution Date must be at least
two (2) years from the end of the Plan Year to which the election
which creates it refers. Participants may allocate deferred
compensation to existing In-Service Accounts so long as the
In-Service Distribution Date for the In-Service Account occurs
after the end of the Plan Year to which the election refers.
(d) A Participant may change or cancel an In-Service Distribution
Date once only, as follows:
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(i) An In-Service Distribution Date change (including a
cancellation) may be made by submitting a new Compensation
Deferral Agreement or such other form as may be provided for
In-Service Distribution Date changes by the Plan
Administrator (or completing and electronically submitting
the appropriate screen on the Participant website, when
available) at any time, so long as the date that such form
is submitted to the Plan Administrator is at least thirteen
(13) months prior to the In-Service Distribution Date being
changed; and
(ii) The In-Service Distribution Date may be extended to a
subsequent year (and must be extended by at least one year),
but it may not be made to occur sooner than the original
date.
(iii) The In-Service Distribution Date may be cancelled, even
after a change. A cancellation of an In-Service Distribution
Date shall cause the In-Service Sub-Account associated with
it to be merged into the Retirement/Termination Sub-Account.
(iv) Making an In-Service Distribution Date change or
cancellation in accordance with the Plan is specific to the
In-Service Distribution to which it refers, and shall not
affect other In-Service Distributions or the ability of the
Participant to make new In-Service Distribution elections
with respect to new deferral contributions.
(e) Any portion of a deferral not credited to an In-Service
Distribution Account will be credited to the
Retirement/Termination Account.
(f) The Compensation Deferral Agreement shall also indicate the
Participant's election of payment schedule for each In-Service
Distribution Date. Permitted payment schedules for In-Service
Distributions are a single lump sum or from two (2) to five (5)
annual installment payments. An election of a payment schedule
for a Participant's In-Service Account shall pertain to the
entire In-Service Account balance (e.g. new payment schedules
override previously elected payment schedules). A Participant
shall be permitted to change (override) his or her payment
schedule election for an In-Service Distribution at any time by
filing a new Compensation Deferral Agreement (or by following
such procedures as are set by the Plan Administrator regarding
using the Participant website, when available), provided such
election is made at least thirteen (13) months prior to the
In-Service Distribution Date. Any payment schedule election made
within thirteen months of an In-Service Distribution Date shall
be null and void, and the most recent payment schedule election
which is dated at least thirteen months prior to the In-Service
Distribution Date will be in effect.
4.3 Company Discretionary Contributions and Vesting
-----------------------------------------------
(a) The Committee may, in its sole and absolute discretion, make
Company Discretionary Contributions to any or all Participant(s)
by crediting to said Participants' Retirement/Termination
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Accounts an amount determined in the sole and absolute discretion
of the Committee. The Committee shall be under no obligation to
make Company Discretionary Contributions unless the Company so
obligates itself under an employment agreement or other
agreement.
(b) Company Discretionary Contributions and Deemed Investment
earnings thereon shall be subject to a vesting schedule
established by the Committee for each Company Discretionary
Contribution. Such vesting schedule shall be communicated in
writing to the Participant receiving a Company Discretionary
Contribution at the time of crediting to the Participant's
Account, and a copy shall be retained by the Plan Administrator.
If no vesting schedule is communicated in accordance herewith,
the Company Discretionary Contribution shall be 100% vested from
the date of crediting.
(c) Deemed Investments shall be made in the same manner as for
deferrals (Section 4.1 of the Plan) on the date the Company
Matching Contribution is credited to the Participant's
Retirement/Termination Account.
4.4 Plan Balance Transfers
----------------------
(a) The Plan Administrator, in its sole discretion, may determine
that a portion (or all) of an account balance maintained for all
Participants in another Company sponsored nonqualified deferred
compensation plan may upon such determination (and if the
Participant so elects) be "transferred" to this Plan (the
unfunded obligation of the Company to the Participant under the
other plan is decreased and the obligation of the Company to the
Participant in this Plan is increased in an identical amount).
(b) The Plan Balance Transfer amount shall be credited to the
Participant's Retirement/Termination Account on the date
established by the Plan Administrator, in its sole discretion
(the "Plan Balance Transfer Effective Date").
4.5 Allocation Elections and Valuation of Accounts
----------------------------------------------
(a) A Participant shall elect Investment Options from a menu provided
by the Plan Administrator. The initial election shall be made on
the Allocation Election form approved by the Plan Administrator
(or Allocation Election Screen on the Participant website
approved by the Plan Administrator) and shall specify the
allocations among the Investment Options elected. A Participant
may make different Allocation Elections for each Account. A
Participant's Accounts shall be valued as the sum of the value of
all Deemed Investments minus any withdrawals or distributions
from said Account. Investment Options shall be utilized to
determine the earnings attributable to the Account. Elections of
Investment Options do not represent actual ownership of, or any
ownership rights in or to, the securities or other investments to
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FIRST TENNESSEE NATIONAL CORPORATION
NONQUALIFIED DEFERRED COMPENSATION PLAN
which the Investment Options refer, nor is the Company in any way
bound or directed to make actual investments corresponding to
Deemed Investments.
(b) The Plan Administrator, in its sole discretion, shall be
permitted to add or remove Investment Options provided that any
such additions or removals of Investment Options shall not be
effective with respect to any period prior to the effective date
of such change. Any unallocated portion of an Account or any
unallocated portion of new deferrals shall be Deemed Invested in
an Investment Option referring to a money market based fund or
sub-account.
(c) A Participant may make a new Allocation Election with respect to
future deferrals or Plan Balance Transfers, and may Rebalance or
Transfer funds in any of his or her Accounts, provided that such
new allocations, Rebalances or Transfers shall be in increments
of one percent (1%), and Rebalances and Transfers apply to the
entire Account Balance. New Allocation Elections, Rebalances, and
Transfers may be made on any business day, and will become
effective on the same business day or, in the case of Allocation
Elections received after a cut-off time established by the Plan
Administrator, the following business day.
(d) Notwithstanding anything in this Section to the contrary, the
Company shall have the sole and exclusive authority to invest any
or all amounts deferred in any manner, regardless of any
Allocation Elections by any Participant. A Participant's
Allocation Election shall be used solely for purposes of
determining the value of such Participant's Accounts and the
amount of the corresponding liability of the Company in
accordance with this Plan.
4.6 Prohibition Against Modifications to deferral elections.
--------------------------------------------------------
A Participant may not modify or revoke a deferral election during a
Plan Year by changing the amount of the Compensation deferral except
that, in the case of unforeseen financial hardship, the Plan
Administrator in its sole discretion may grant a request by a
Participant to revoke such Participant's deferral election for the
balance of the Plan Year.
ARTICLE V
DISTRIBUTIONS AND WITHDRAWALS
-----------------------------
5.1 In-Service Distributions.
------------------------
(a) Subject to Section 5.5 of the Plan, an In-Service Distribution
shall be paid in accordance with the payment schedule election
made with respect thereto, beginning as soon as administratively
practicable following the In-Service Distribution Valuation Date.
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In the event a Participant has elected installment payments for
an In-Service Distribution, the installment payments shall be
determined and paid in accordance with Section 5.4 of the Plan.
(b) Notwithstanding a Participant's election to receive an In-Service
Distribution, all remaining undistributed In-Service Distribution
Account balances shall be combined with the
Retirement/Termination Account in the event of Retirement,
Termination of Employment, Death, or Disability if the
Retirement, Termination of Employment, Death, or Disability
occurs prior to any In-Service Distribution Date or prior to the
completion of payment(s) elected in connection with any
In-Service Distribution Date.
5.2 Retirement Distribution. Subject to Section 5.5 of the Plan, in the
event of Retirement of a Participant or in the event of the
termination of services of a Director, the vested portion of the
Participant's Retirement/Termination Account balance (including
In-Service Accounts as aforementioned) will be paid (or the first
payment will be made) in accordance with the Participant's payment
schedule election for the Retirement/Termination Account beginning as
soon as administratively practicable following the Termination
Valuation Date.
5.3 Termination of Employment Distribution. In the event of a
Participant's Termination of Employment, the vested portion of the
Participant's Retirement/Termination Account (including In-Service
Accounts as aforementioned) will be paid in a single lump sum as soon
as administratively practicable following the Termination Valuation
Date.
5.4 Installment Payments. If the Participant has elected installment
payments for the Retirement/Termination or In-Service Account and is
eligible under the Plan to receive installment payments, annual cash
payments will be made beginning as soon as administratively
practicable following the applicable Valuation Date (Termination or
In-Service) or, in the event of a partial lump sum election, following
the first anniversary of the partial lump sum payment made following
Retirement. Such payments shall continue annually on or about the
anniversary of the previous installment payment until the number of
installment payments elected has been paid. The installment payment
amount shall be determined annually as the result of a calculation,
performed on the Annual Valuation Date, where (i) is divided by (ii):
(i) equals the value of the applicable Sub-Account on the Annual
Valuation Date; and
(ii) equals the remaining number of installment payments.
5.5 Small Account Balance Lump Sum Payment. The foregoing notwithstanding,
in the event that a Participant's Retirement/Termination Account
Balance is less than $25,000 or a Participant's In-Service
Distribution Sub-Account Balance is less than $10,000 on the initial
Termination or In-Service Distribution Valuation Date, the In-Service
or Retirement/Termination Account balance, as applicable, shall be
paid in a single lump sum as soon as administratively practicable
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following the Valuation Date, and any payment election to the contrary
shall be null and void.
5.6 Disability Distribution. In the event of Disability, the Participant
shall receive the Retirement/Termination Account balance (including
In-Service Accounts as aforementioned) in a single lump sum as soon as
administratively practicable following the end of the month in which
Disability occurred. The Valuation Date for purposes of determining
the Disability distribution shall be the last day of the month in
which the Participant's Disability occurs.
5.7 Death Distribution. In the event of death, a Participant's beneficiary
shall receive the Retirement/Termination Account balance (including
In-Service Accounts as aforementioned) in a single lump sum as soon as
administratively practicable following the end of the month in which
death occurred. The Valuation Date for purposes of determining the
death distribution shall be the last day of the month in which the
Participant's death occurs.
5.8 Hardship Distribution. In the event a Participant experiences an
Unforeseeable Emergency, said Participant may request, in writing to
the Plan Administrator, a distribution under the Plan to meet the
financial burden caused by the Unforeseeable Emergency. An
"Unforeseeable Emergency" is a severe financial hardship to the
Participant resulting from a sudden and unexpected illness or accident
of the Participant or of a dependent (as defined in Code section
152(a)) of the Participant, loss of the Participant's property due to
casualty, or some other similar extraordinary and unforeseeable
circumstance arising as a result of events beyond the control of the
Participant. The circumstances that will constitute an unforeseeable
emergency will depend upon the facts of each case, but, in any case,
payment may not be made to the extent that such hardship is or may be
relieved--(i) through reimbursement or compensation by insurance or
otherwise; (ii) by liquidation of the Participant's assets, to the
extent the liquidation of such assets would not itself cause severe
financial hardship; or (iii) by cessation of deferrals under the Plan.
Examples of what are not considered to be Unforeseeable Emergencies
include the need to send a Participant's child to college or the
desire to purchase a home. Distributions in the event of an
Unforeseeable Emergency shall only be made in an amount calculated by
the Participant, and approved by the Plan Administrator, to be
necessary to reasonably satisfy the emergency need.
5.9 Voluntary Distribution. A Participant who is an active employee or
Director may request, in writing to the Plan Administrator, to have up
to 100% of the Participant's Deferred Compensation Account distributed
in a single lump sum to the Participant at any time and for any
reason, subject to a penalty of 10% of the amount distributed. The
penalty shall be forfeited to the Company. There is a minimum
distribution request amount of $10,000. A requesting Participant's
deferral elections shall be revoked for the balance of the Plan Year
in which the voluntary distribution request is granted and deferrals
shall not be permitted for the following Plan Year. The amount of the
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FIRST TENNESSEE NATIONAL CORPORATION
NONQUALIFIED DEFERRED COMPENSATION PLAN
distribution shall be subtracted first from the vested portion of the
Participant's Retirement/Termination Account until depleted and then
from the In-Service Accounts (if any) beginning with the most distant.
Values for purposes of administering this Section shall be determined
on the date the Plan Administrator approves the amount of the
distribution, or such other date determined by the Plan Administrator.
5.10 Court Order. In the event of a final, non-appealable valid order of a
Court of competent jurisdiction in a domestic relations matter which
requires a distribution of a Participant's Account or portion thereof
, the Plan Administrator may, in its sole discretion, treat such
request as though it were a request for a Hardship withdrawal which
satisfied the requirements of an unforeseen severe financial hardship
and make a distribution to the Participant, or court ordered recipient
as the case may be in the amount necessary to satisfy the Court order.
5.11 Pro-rata subtraction from Investment Options. In the event a
distribution under this Article V (e.g. an installment payment,
hardship or voluntary distribution, etc.) is less than the entire
Account Balance and the Account is allocated over more than one
Investment Option, the distribution shall be subtracted from each
Investment Option in a pro-rata manner determined in the sole
discretion of the Plan Administrator.
ARTICLE VI
ADMINISTRATION
--------------
6.1 Plan Administration. This Plan shall be administered by the Plan
Administrator, which shall have sole discretionary authority to make,
amend, interpret and enforce all appropriate rules and regulations for
the administration of this Plan and to utilize its discretion to
decide or resolve any and all questions, including but not limited to
eligibility for benefits and interpretations of this Plan and its
terms, as may arise in connection with the Plan. Claims for benefits
shall be filed with the Plan Administrator and resolved in accordance
with the claims procedures in Article IX.
6.2 Withholding. The Employer shall have the right to withhold from any
payment made under the Plan (or any amount deferred into the Plan) any
taxes required by law to be withheld in respect of such payment (or
deferral).
6.3 Indemnification. The Company shall indemnify and hold harmless each
employee, officer, director, agent or organization, to whom or to
which is delegated duties, responsibilities, and authority with
respect to administration of the Plan, against all claims,
liabilities, fines and penalties, and all expenses reasonably incurred
by or imposed upon him or it (including but not limited to reasonable
attorney fees) which arise as a result of his or its actions or
failure to act in connection with the operation and administration of
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FIRST TENNESSEE NATIONAL CORPORATION
NONQUALIFIED DEFERRED COMPENSATION PLAN
the Plan to the extent lawfully allowable and to the extent that such
claim, liability, fine, penalty, or expense is not paid for by
liability insurance purchased or paid for by the Company.
Notwithstanding the foregoing, the Company shall not indemnify any
person or organization if his or its actions or failure to act are due
to gross negligence or willful misconduct or for any such amount
incurred through any settlement or compromise of any action unless the
Company consents in writing to such settlement or compromise.
6.4 Expenses. The expenses of administering the Plan shall be paid by the
Participating Employer(s).
6.5 Delegation of Authority. In the administration of this Plan, the Plan
Administrator may, from time to time, employ agents and delegate to
them such administrative duties as it sees fit, and may from time to
time consult with legal counsel who may be legal counsel to the
Company.
6.6 Binding Decisions or Actions. The decision or action of the Plan
Administrator in respect of any question arising out of or in
connection with the administration, interpretation and application of
the Plan and the rules and regulations thereunder shall be final and
conclusive and binding upon all persons having any interest in the
Plan.
ARTICLE VII
AMENDMENT AND PLAN TERMINATION
------------------------------
7.1 Amendment and Plan Termination. The Plan is intended to be permanent,
but the Committee may at any time modify, amend, or terminate the
Plan, provided that such modification, amendment or termination shall
not cancel, reduce, or otherwise adversely affect the amount of
benefits of any Participant accrued (and, except as provided in this
Section 7.1 any form of payment elected) as of the date of any such
modification, amendment, or termination, without the consent of the
Participant. The Committee shall be permitted, upon total Plan
termination, to instruct the Plan Administrator to pay each
Participant (without such Participant's consent) a lump sum in the
amount of such Participant's Account Balance as of the date of such
Plan termination.
7.2 Adverse Income Tax Determination. Notwithstanding anything to the
contrary in the Plan, if any Participant receives a deficiency notice
from the United States Internal Revenue Service asserting constructive
receipt of amounts payable under the Plan, or if legislation is passed
or IRS regulations or other guidance is issued which causes current
income taxation of deferred amounts, Company Discretionary
Contributions, and/or the investment earnings attributed thereto due
to any Participant distribution, right to such distribution, or other
Plan provision, the Committee, in its sole discretion, may terminate
the Plan or such Participant's participation in the Plan, and/or may
declare null and void any Plan provision with respect to affected
Participants. In addition, it is intended that this Plan comply with
17
FIRST TENNESSEE NATIONAL CORPORATION
NONQUALIFIED DEFERRED COMPENSATION PLAN
all provisions of the Code and regulations and rulings in effect from
time to time regarding the permissible deferral of compensation and
taxes thereon, and it is understood that this Plan does so comply. If
the laws of the United States or of any relevant state are amended or
construed in such a way as to make this Plan (or its intended deferral
of compensation and taxes) in whole or in part void, then the
Committee, in its sole discretion, may choose to terminate the Plan or
it may (to the extent it deems practicable) give effect to the Plan in
such a manner as it deems will best carry out the purposes and
intentions of this Plan.
ARTICLE VIII
INFORMAL FUNDING
----------------
8.1 General Assets. All benefits in respect of a Participant under this
Plan shall be paid directly from the general funds of the Company, or
a rabbi trust created by the Company for the purpose of informally
funding the Plan, and other than such rabbi trust, if created, no
special or separate fund shall be established and no other segregation
of assets shall be made to assure payment. No Participant, spouse or
Beneficiary shall have any right, title or interest whatever in or to
any investments which the Company, or any of its subsidiaries or
affiliated companies, may make to aid the Company in meeting its
obligation hereunder, including any assets held by a rabbi trust.
Nothing contained in this Plan, and no action taken pursuant to its
provisions, shall create or be construed to create a trust of any
kind, or a fiduciary relationship, between the Company, or any if its
subsidiaries or affiliated companies, and any Employee, spouse, or
Beneficiary. To the extent that any person acquires a right to receive
payments from the Company hereunder, such rights are no greater than
the right of an unsecured general creditor of the Company.
8.2 Rabbi Trust. The Company may, at its sole discretion, establish a
grantor trust, commonly known as a rabbi trust, as a vehicle for
accumulating the assets needed to pay the promised benefit, and the
Company and/or the Employer may contribute from time to time to such
rabbi trust, if established, but the Company shall be under no
obligation to establish any such trust or any other informal funding
vehicle.
ARTICLE IX
CLAIMS
------
9.1 Filing a Claim. Any controversy or claim arising out of or relating to
the Plan shall be filed with the Plan Administrator which shall make
all determinations concerning such claim. Any decision by the Plan
Administrator denying such claim shall be in writing and shall be
delivered to the Participant or Beneficiary filing the claim
("Claimant"). Such decision shall set forth the reasons for denial in
plain language. Pertinent provisions of the Plan document shall be
cited and, where appropriate, an explanation as to how the Claimant
can perfect the claim will be provided, including a description of any
additional material or information necessary to complete the claim,
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FIRST TENNESSEE NATIONAL CORPORATION
NONQUALIFIED DEFERRED COMPENSATION PLAN
and an explanation of why such material or information is necessary.
The claim denial also shall include an explanation of the claims
review procedures and the time limits applicable to such procedures,
including a statement of the Claimant's right to bring a civil action
under Section 502(a) of ERISA following an adverse decision on review.
This notice of denial of benefits will be provided within 90 days of
the Plan Administrator's receipt of the Claimant's claim for benefits.
If the Plan Administrator fails to notify the Claimant of its decision
regarding the Claimant's claim, the claim shall be considered denied,
and the Claimant shall then be permitted to proceed with an appeal as
provided in this Article. If the Plan Administrator determines that it
needs additional time to review the claim, the Plan Administrator will
provide the Claimant with a notice of the extension before the end of
the initial 90-day period. The extension will not be more than 90 days
from the end of the initial 90-day period and the notice of extension
will explain the special circumstances that require the extension and
the date by which the Plan Administrator expects to make a decision.
9.3 Appeal. A Claimant who has been completely or partially denied a
benefit shall be entitled to appeal this denial of his claim by filing
a written appeal with the Plan Administrator no later than sixty (60)
days after: (a) receipt of the written notification of such claim
denial, or (b) the lapse of ninety (90) days without an announced
decision notice of extension. A Claimant who timely requests a review
of his or her denied claim (or his or her authorized representative)
may review, upon request and free of charge, copies of all documents,
records and other information relevant to the denial and may submit
written comments, documents, records and other information relevant to
the claim to the Plan Administrator. The Plan Administrator may, in
its sole discretion and if it deems appropriate or necessary, decide
to hold a hearing with respect to the claim appeal. Following its
review of any additional information submitted by the Claimant, the
Plan Administrator shall render a decision on its review of the denied
claim in the following manner:
(a) The Plan Administrator shall make its decision regarding the
merits of the denied claim within 60 days following His receipt
of the appeal (or within 120 days after such receipt, in a case
where there are special circumstances requiring extension of time
for reviewing the appealed claim). It shall deliver the decision
to the Claimant in writing. If an extension of time for reviewing
the appeal is required because of special circumstances, written
notice of the extension shall be furnished to the Claimant prior
to the commencement of the extension. The notice will indicate
the special circumstances requiring the extension of time and the
date by which the Plan Administrator expects to render the
determination on review.
(b) The review will take into account comments, documents, records
and other information submitted by the Claimant relating to the
claim without regard to whether such information was submitted or
considered in the initial benefit determination.
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NONQUALIFIED DEFERRED COMPENSATION PLAN
(c) The decision on review shall set forth a specific reason for the
decision, and shall cite specific references to the pertinent
Plan provisions on which the decision is based.
(d) The decision on review will include a statement that the Claimant
is entitled to receive, upon request and free of charge,
reasonable access to and copies of all documents, records, or
other information relevant to the Claimant's claim for benefits.
(e) The decision on review will include a statement describing any
voluntary appeal procedures offered by the plan and a statement
of the Claimant's right to bring an action under Section 502(a)
of ERISA.
(f) A Claimant may not bring any legal action relating to a claim for
benefits under the Plan unless and until the Claimant has
followed the claims procedures under the Plan and exhausted his
or her administrative remedies under such claims procedures.
ARTICLE X
GENERAL CONDITIONS
------------------
10.1 Anti-assignment Rule. No interest of any Participant, spouse or
Beneficiary under this Plan and no benefit payable hereunder shall be
assigned as security for a loan, and any such purported assignment
shall be null, void and of no effect, nor shall any such interest or
any such benefit be subject in any manner, either voluntarily or
involuntarily, to anticipation, sale, transfer, assignment or
encumbrance by or through any Participant, spouse or Beneficiary.
10.2 No Legal or Equitable Rights or Interest. No Participant or other
person shall have any legal or equitable rights or interest in this
Plan that are not expressly granted in this Plan. Participation in
this Plan does not give any person any right to be retained in the
service of the Company or any of its subsidiaries or affiliated
companies. The right and power of the Company (or any of its
subsidiaries or affiliated companies that is the Employee's employer)
to dismiss or discharge an Employee is expressly reserved.
10.3 No Employment Contract. Nothing contained herein shall be construed to
constitute a contract of employment between an Employee and the
Company or Employer, or any of its subsidiaries or affiliated
companies.
10.4 Headings. The headings of Sections are included solely for convenience
of reference, and if there is any conflict between such headings and
the text of this Plan, the text shall control.
20
FIRST TENNESSEE NATIONAL CORPORATION
NONQUALIFIED DEFERRED COMPENSATION PLAN
10.5 Invalid or Unenforceable Provisions. If any provision of this Plan
shall be held invalid or unenforceable, such invalidity or
unenforceability shall not affect any other provisions hereof and the
Plan Administrator may elect in its sole discretion to construe such
invalid or unenforceable provisions in a manner that conforms to
applicable law or as if such provisions, to the extent invalid or
unenforceable, had not been included.
10.6 Governing Law. To the extent not preempted by ERISA, the laws of the
State of Tennessee shall govern the construction and administration of
the Plan.
21
FIRST TENNESSEE NATIONAL CORPORATION
NONQUALIFIED DEFERRED COMPENSATION PLAN
IN WITNESS WHEREOF, the Company and Participating Employer(s) have caused this
Plan to be adopted, effective as of September 1, 2003.
FIRST TENNESSEE NATIONAL
CORPORATION ("COMPANY")
By: _______________________________
Its: ______________________________
FIRST TENNESSEE BANK NATIONAL
ASSOCIATION ("PARTICIPATING
EMPLOYER")
By: _______________________________
Its: ______________________________
22
EXHIBIT 5
---------
Opinion And Consent of Baker, Donelson, Bearman, Caldwell & Berkowitz
---------------------------------------------------------------------
September 12, 2003
First Tennessee National Corporation
165 Madison
Memphis, Tennessee 38103
Gentlemen:
We have acted as securities counsel for First Tennessee National
Corporation, a Tennessee corporation (the "Company"), in connection with the
Company's Registration Statement on Form S-8 (the "Registration Statement"),
pursuant to the Securities Act of 1933, as amended, relating to the Registrant's
First Tennessee National Corporation Nonqualified Deferred Compensation Plan
(the "Plan"). This opinion is being furnished in response to Item 601 of
Regulation S-K and the instructions to Form S-8.
We are familiar with the proceedings to date with respect to the proposed
offering and have examined such records, documents and matters of law and
satisfied ourselves as to such matters of fact as we have considered relevant
for purposes of this opinion.
On the basis of the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized and existing under the
laws of the State of Tennessee.
2. The Plan has been duly and validly authorized and adopted, and the
securities being registered under the Registration Statement that may be
issued and sold from time to time in accordance with the Plan have been
duly authorized for issuance and will, when issued, sold and paid for in
accordance with the Plan, be validly issued, fully paid and non-assessable.
The foregoing opinion is limited to the federal laws of the United States
and the corporate laws of the State of Tennessee, and we are not expressing any
opinion as to the effect of the laws of any other jurisdiction.
In rendering the foregoing opinion, we have relied to the extent we deem
such reliance appropriate as to certain matters on statements, representations
and other information obtained from public officials, officers of the Company
and other sources believed by us to be responsible.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not thereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Act.
Very truly yours,
/s/ BAKER, DONELSON, BEARMAN, CALDWELL
& BERKOWITZ, PC
Exhibit 5.1 - 1
EXHIBIT 23.2
------------
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
First Tennessee National Corporation:
We consent to the incorporation by reference in the registration statement on
Form S-8 pertaining to the registering of deferred compensation obligations
under the First Tennessee National Corporation Nonqualified Deferred
Compensation Plan of our report dated February 21, 2003, with respect to the
consolidated statement of condition of First Tennessee National Corporation (the
Company) as of December 31, 2002 and the related consolidated statements of
income, shareholders' equity and cash flows for the year then ended, which
report is incorporated by reference in the Company's 2002 Annual Report on Form
10-K, and to all references to our firm included therein.
Our report refers to our audit of the adjustments that were applied for the
restatements of the 2001 and 2000 consolidated financial statements, as more
fully described in Notes 1 and 22 to the consolidated financial statements, and
the revision described in Note 7 to the consolidated financial statements.
However, we were not engaged to audit, review, or apply any procedures to the
2001 and 2000 consolidated financial statements other than with respect to such
adjustments.
KPMG LLP
September 12, 2003
Exhibit 23.2-1
EXHIBIT 24
----------
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below does hereby constitute and appoint JAMES F. KEEN, CLYDE A. BILLINGS, JR.,
and MILTON A. GUTELIUS, JR., jointly and each of them severally, his or her true
and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to execute and sign the Registration Statement on Form S-8
to be filed with the Securities and Exchange Commission, pursuant to the
provisions of the Securities Act of 1933, by First Tennessee National
Corporation ("Corporation") relating to the issuance of $30,000,000 Deferred
Compensation Obligations of the Corporation pursuant to the First Tennessee
National Corporation Nonqualified Deferred Compensation Plan ("Plan") and,
further, to execute and sign any and all pre-effective and post-effective
amendments thereto and to file the same, with all exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, or their or
his or her substitute or substitutes, full power and authority to do and perform
each and every act and thing requisite or necessary to be done in and about the
premises, as fully to all intents and purposes as the undersigned might or could
do in person, hereby ratifying and confirming all the acts that said
attorneys-in-fact and agents, or any of them, or their or his or her substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
NAME TITLE DATE
/s/ Ralph Horn Chairman of the Board and a Director May 13, 2003
--------------------------------------
Ralph Horn
President, Chief Executive Officer and a May 13, 2003
/s/ J. Kenneth Glass Director (principal executive officer)
--------------------------------------
J. Kenneth Glass
Executive Vice President, Chief Financial May 13, 2003
Officer and Corporate Controller
(principal financial officer and principal
/s/ James F. Keen accounting officer)
--------------------------------------
James F. Keen
/s/ Robert C. Blattberg Director May 13, 2003
--------------------------------------
Robert C. Blattberg
/s/ George E. Cates Director May 13, 2003
--------------------------------------
George E. Cates
/s/ James A. Haslam, III Director May 13, 2003
--------------------------------------
James A. Haslam, III
/s/ R. Brad Martin Director May 13, 2003
--------------------------------------
R. Brad Martin
/s/ Vicki R. Palmer Director May 13, 2003
--------------------------------------
Vicki R. Palmer
Exhibit 24 - 1
/s/ Michael D. Rose Director May 13, 2003
--------------------------------------
Michael D. Rose
/s/ William B. Sansom Director May 13, 2003
--------------------------------------
William B. Sansom
/s/ Jonathan P. Ward Director May 13, 2003
--------------------------------------
Jonathan P. Ward
/s/ Luke Yancy, III Director May 13, 2003
--------------------------------------
Luke Yancy, III
Exhibit 24 - 2