EXHIBIT NO. 10(r)
RETIREMENT AGREEMENT
This RETIREMENT AGREEMENT is made and entered into as of the 15th day
of October, 2003, by and between XXXXXX X. XXXXXX, an individual ("Executive"),
and SOUTHTRUST CORPORATION, a Delaware corporation (the "Company"), and
SOUTHTRUST BANK, an Alabama banking corporation and a subsidiary of the Company
(the "Bank").
WITNESSETH:
WHEREAS, the Executive has served the Company and the Bank in an
executive capacity for a number of years; and
WHEREAS, the Executive has served as the Chairman, Chief Executive
Officer and as a director of the Bank and is currently serving as the President
of the Company, and as a director of the Company; and
WHEREAS, the Executive has provided significant, outstanding and
superlative service to the Company and the Bank during his employment; and
WHEREAS, the Executive has determined to retire from active employment
with the Company and the Bank and the Company and the Bank have determined to
accept the Executive's decision to retire, and have determined further to
provide certain retirement and other benefits to Executive not otherwise
currently provided for, all as more particularly set forth herein.
NOW, THEREFORE, in consideration of the terms, conditions,
covenants and premises herein contained, it is mutually agreed by and between
the Executive, the Company and the Bank as follows:
1
1. Retirement. The Company, the Bank and the Executive
acknowledge and agree that the Executive, at the Executive's
election, has determined to retire prior to attaining age
sixty-five (65) ("Early Retirement"). For purposes of
determining the benefits to be paid to Executive from the
SouthTrust Corporation Retirement Income Plan, as amended (the
"Retirement Plan"), the SouthTrust Corporation Additional
Retirement Benefit Plan, as amended ("the Additional Plan"),
the SouthTrust Corporation Performance Incentive Retirement
Benefit Plan, as amended (the "Performance Incentive Plan"),
the SouthTrust Corporation Enhanced Retirement Benefit Plan,
as amended (the "Enhanced Plan"), and the SouthTrust
Corporation Executive Management Retirement Plan, as amended
(the "Executive Management Plan") (collectively, the "Plans"),
the Executive shall be deemed to have continued employment
with the Company as an "Eligible Employee," as defined in the
Retirement Plan until age sixty-five (65). Additionally,
Executive's rate of compensation as of October 15, 2003 shall
be deemed to have continued until age sixty-five (65). The
benefits due the Executive under the Plans shall not be
actuarially reduced due to commencement of benefit payment
prior to his attainment of age 65. The Company may, in its
sole discretion and to the extent allowed by law, amend the
Plans to provide the benefits provided for hereunder.
Alternatively, the Company may pay directly the difference
between the benefits under the Plans as calculated as provided
hereunder and the benefits that would have been paid from the
Plans in the absence of this Agreement. In the event the
Company elects not to amend the Plans, the Company shall
establish a trust, substantially in the form of Exhibit A
hereto, for the benefit of Executive and shall transfer to
such trust an amount equal to the actuarially determined
amount necessary to provide for the payments hereunder.
2. Additional Compensation. The Company shall establish a
bookkeeping account as of January 1, 2004 in the name of the
Executive and shall credit such account with the sum of
$500,000. Such account shall be credited with interest at a
rate equal to the interest rate at which accounts are credited
under the SouthTrust Deferred Compensation Plan. Beginning on
April 1, 2004 and as of the beginning
2
of each calendar quarter thereafter until January 1, 2015, the
Company shall pay to Executive an amount equal to the balance
of such bookkeeping account divided by the number of such
quarterly installments remaining. In the event of Executive's
death prior to January 1, 2015, the payments required
hereunder shall be paid to the Executive's designated
beneficiary. The Company shall establish a trust,
substantially in the form of Exhibit A hereto, for the benefit
of Executive and shall promptly transfer to such trust
$500,000 as well as any amounts required in the future to
provide for the interest accrued on the Deferred Compensation
Account. Such additional deposits for interest shall be made
to the Trust at least on an annual basis.
3. Split Dollar Life Insurance. Prior to December 31, 2003, the
Company and the Executive shall determine and effect a
mutually agreeable disposition of the Split Dollar Agreements
between the Company and Xxx XXX Trust with respect to policies
of life insurance on the last to die of the Executive and his
wife.
4. Medical Insurance Benefits. The Company agrees that it will
maintain, until the Executive attains age sixty-five (65),
medical and health insurance covering the Executive and the
Executive's dependents at the same level as such insurance is
maintained for a full-time employee of the Company occupying a
position comparable to that occupied by the Executive
immediately prior to Early Retirement. In the event the
Company shall cease to maintain medical or health insurance
for its full-time employees or shall cease to have full-time
employees at any time prior to the Executive's sixty-fifth
(65th) birthday, the Company shall maintain medical and health
insurance covering the Executive at the same level as such
insurance was maintained for a full-time employee of the
Company occupying a position comparable to that occupied by
the Executive immediately prior to Early Retirement at the
last point in time the Company so maintained medical and
health insurance for its full-time employees.
5. Office and Support. The Executive shall be furnished office
space in Birmingham, Alabama at a location mutually agreeable
to the Company and the
3
Executive. The Executive shall be furnished with secretarial
and office support at a level mutually acceptable to Executive
and the Company. The office space and secretarial and office
support shall be provided to the Executive until the earlier
of the date of the Executive's 65th birthday or the date the
Executive notifies the Company that Executive no longer
requires such office space and secretarial support.
6. Certain Additional Benefits.
(a) Automobile Transfer. The Company and the Executive
agree that the Company will, without charge to the
Executive, permit the Executive to retain any
automobile owned by the Company which the Executive
may be using at Early Retirement, and the Company
agrees to execute a xxxx of sale, or such other
instrument and documentation as may be necessary,
vesting title to such automobile in the Executive.
(b) Club Membership. The Company also agrees, until the
Executive attains age sixty-five (65), to pay, on
behalf of the Executive, all dues and other charges
necessary in order to enable the Executive to be a
member of the Mountain Brook Country Club in
Birmingham, Alabama.
(c) Financial Advisory Services. The Company agrees,
until the Executive attains age seventy (70), to pay,
on behalf of Executive, financial planning and
advisory fees to AYCO.
7. Taxes. Executive shall be responsible for and pay any income
taxes due or owing by Executive as the result of the Company's
providing hereunder any of the benefits or services to the
Executive or Executive's dependents.
8. Resignation as Director and Trustee. Executive has previously
resigned, effective as of October 14, 2003, as Chairman of the
Board and as a director of the Bank and has relinquished his
duties as Chief Executive Officer of the Bank. In addition,
Executive hereby resigns, effective as of December 31, 2003,
as President of the Company and as a director of the Company.
4
9. Certain Fees and Expenses. The Company agrees to pay promptly,
as incurred, and to the full extent permitted by law, all
legal fees and expenses which the Executive may reasonably
incur as a result of any contest (regardless of the outcome
thereof) by the Company, the Executive or others of the
validity or enforceability of, or liability under, any
provision of this Agreement or any guarantee or performance
thereof (including as a result of any contest by the Executive
about the amount of any payment pursuant to this Agreement),
plus in each case interest on any delayed payment at the
applicable Federal rate provided for in Section 7872(f)(2)(A)
of the Internal Revenue Code.
10. Severability. If any term, provision, covenant or restriction
contained in this Agreement is held by any court of competent
jurisdiction or other competent authority to be invalid, void
or unenforceable or against public or regulatory policy, it is
the intention of the Company and the Executive that such
provision shall be appropriately altered by such court or
other authority to render such provision valid and enforceable
to the fullest extent possible, and, in any event, that the
remainder of the terms, provisions, covenants, and
restrictions contained in this Agreement shall remain in force
and effect and shall be in no way affected or invalidated by
the invalidity or unenforceability of any other term,
provision, amendment or restriction.
11. Entire Agreement. This entire Agreement between the Company,
the Bank and the Executive with respect to the subject matter
contemplated in this Agreement supersedes all prior
arrangements understandings with respect thereto, whether
written or oral.
12. Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto, and as
to each of the Company and the Bank, this Agreement shall be
binding upon and shall inure to the benefit of the successors
and assigns of each of the Company and the Bank, including any
successor or assign of the Company or the Bank resulting from
any merger, consolidation or reorganization of the Company or
the Bank, any sale of assets of the Company or
5
the Bank or any other business combination involving the
Company or the Bank, and as to the Executive, this Agreement,
unless otherwise specified to the contrary, shall be binding
upon and shall inure to the benefit of the Executive's heirs,
executors, administrators and personal representatives.
13. Modifications. This Agreement may not be changed or modified,
nor may any provision hereof be waived, except by an agreement
in writing executed by the party against whom enforcement of
the change, modification or waiver is asserted.
14. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Alabama,
except to the extent that the laws of the United States may be
applicable to this Agreement.
15. Unfunded Status. Despite the establishment of a trust as
provided for in Section 1 or 2 hereof, it is intended that the
provisions of Sections 1 and 2 hereof shall be unfunded for
purposes of Title I of ERISA and that the right of the
Executive or the Executive's beneficiary to receive the
benefits provided in Sections 1 and 2 hereof, shall be no
greater than that of an unsecured creditor of the Company or
the Bank.
6
IN WITNESS WHEREOF, each of the Company and the Bank has hereunto
caused its signature and seal to be affixed to this Agreement and the Executive
has hereunto set his hand and seal, on the date and year set forth above.
SOUTHTRUST CORPORATION
By /s/ Xxxxxxx X. Xxxxxx, Xx.
--------------------------------------
Its
-------------------------------------
ATTEST:
/s/ Xxxx X. Xxxxxxxx
---------------------
Secretary
/s/ Xxxxxx X. Xxxxxx (L.S.)
-----------------------------------
Xxxxxx X. Xxxxxx
Executive
WITNESS:
/s/ Xxx X. Xxxxxxx
---------------------
7
