Exhibit 10.28
EXECUTIVE RETIREMENT AGREEMENT
THIS EXECUTIVE RETIREMENT AGREEMENT, made and entered into as of the
25th day of October, 1996, by and between WACHOVIA CORPORATION (the
"Corporation"), a North Carolina corporation, and XXXXXX X. DRY (the
"Executive"), a senior management employee of the Corporation;
R E C I T A L S
The Executive is a senior management employee of the Corporation, and as
such has rendered and is expected to continue to render valuable services in
behalf of the Corporation. The Management Resources and Compensation Committee
(the "Committee") of the Corporation desires for the Corporation to provide the
Executive with supplemental retirement benefits partially in recognition of such
services. In addition, the Committee has determined that providing such benefits
will make the Corporation's benefits package more competitive with packages
offered by many other employers and will facilitate management succession
planning for the Corporation.
NOW, THEREFORE, the Corporation and the Executive hereby mutually agree
as follows:
Section 1. Definitions. When used herein, the words and phrases below shall have
the meanings set forth, unless a different meaning is clearly required by the
context. Terms used but not defined herein, and which are defined in the
Retirement Plan, shall have the meaning assigned to them in the Retirement Plan.
Masculine pronouns include feminine pronouns wherever used and vice versa.
1.1 "Board of-Directors" means the Board of Directors of the
Corporation.
1.2 "Code" means the Internal Revenue Code of 1986, as it may be amended
from time to time.
1.3 "Effective Date" means October 25, 1996.
1.4 "Final Average Compensation" means the average of the annual
compensation of the Executive for the three full calendar years within the final
five full calendar years of his employment which will produce the highest
average. For this purpose, the compensation of the Executive shall mean his
total cash remuneration from the Corporation, including bonuses paid for each
year under the Corporation's Senior Management Incentive Plan, plus the sum of:
(a) any salary reduction amounts which the Executive elects to have contributed
with respect to him to a qualified cash or deferred arrangement under Section
401(k) of the Code, to a benefit enhancement plan in lieu of contributions to
such a qualified cash or deferred arrangement, to a cafeteria plan under Section
125 of the Code, or to any similar plan or arrangement, and (b) any amounts
deferred under any deferred compensation plan or contract. Amounts described in
(a) and (b) shall be deemed received at the time the Executive would have
received them but for the programs described in (a) and (b):
1.5 "Normal Retirement Date" means the first day of the month coincident
with or next following the date the Executive attains age sixty.
1.6 "Other Pension Plan" means any defined benefit pension plan, other
than the Retirement Plan, in which the Executive is a participant and which is
qualified under Section 401(a) of the Code and is maintained by the Corporation
or a subsidiary of the Corporation.
1.7 "Retirement Date" means the date the Executive retires under this on
account of early or normal retirement.
1.8 "Retirement Plan" means the Retirement Income Plan of Wachovia
Corporation and any successor thereto.
1.9 "Supplemental Benefit" means the monthly benefit payable to the
Executive under this Agreement.
Section 2. Normal Retirement. At his Normal Retirement Date, the Executive will
retire and wil1 be entitled to receive the Supplemental Benefit, computed in
the form of a single life annuity for his life. The monthly amount of the
Supplemental Benefit shall equal one-twelfth of the product of two and one-half
percent of the Executive's Final Average Compensation times the number of years
of his creditable service determined under the provisions of the Retirement Plan
(subject to a maximum of 62.5%), reduced by the monthly amount payable under
the Retirement Plan and any Other Pension Plan. The offset shall equal the
monthly amounts actually payable under the Retirement Plan and any Other
Pension Plan, based on the payment option elected by the Executive.
Section 3. Early Retirement. If the Executive has attained his fifty-fifth
birthday but has not attained his Normal Retirement Date, and has ten or more
years of service, he may elect early retirement as of the first day of any
calendar month following written notice of at least ninety days to the
Corporation and the Committee. The Supplemental Benefit of the Executive who
elects early retirement shall equal the benefit determined under Section 2 as of
such date, reduced by five percent for each year (with proportionate allowance
for complete months) by which the starting date of the benefit precedes
attainment of his sixtieth birthday. With the consent of the Committee, the
Supplemental Benefit shall be payable to the Executive pursuant to Section 2
commencing as of the first day of any calendar month on or after his early
retirement and before his Normal Retirement Date. The request for benefit
payment must be filed by the Executive in writing with the Committee at least
thirty days prior to the date payments are requested to commence.
Section 4. Spouse's Supplemental Benefit. If the Executive shall be married on
his Retirement Date, and shall die thereafter survived by such spouse, or if the
Executive shall die prior to his Retirement Date and shall be married on the
date of his death, such spouse shall be entitled to a monthly supplemental
benefit (herein the "Spouse's Supplemental Benefit") payable for life and equal
to 60% of the monthly amount of the Supplemental Benefit payable to the
Executive (assuming, for an Executive who shall die prior to his Retirement
Date, that the Executive had retired on the date immediately preceding the date
of his death and that the years of his creditable service included the years and
fractions thereof from the date of death to his Normal Retirement Date), before
applying the reduction for the monthly amount payable to the Executive under the
Retirement Plan and any Other Pension Plan, but reduced by the monthly amount,
if any, payable to the spouse under the Retirement Plan and any Other Pension
Plan in the calendar month next following the death of the Executive.
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Notwithstanding the provisions of this Section 4 or Section 7(k), in no event
shall the Spouse's Supplemental Benefit be less than the amount payable with
respect to the Executive under the Enhancement Plan discussed in Section 7(k).
The monthly amount of the Spouse's Supplemental Benefit shall be payable on the
first day of each calendar month following the death of the Executive and
preceding the death of such spouse.
Section 5. Optional Forms of Payment. Notwithstanding the provisions of Sections
2 through 4, the present value of the sum of the Supplemental Benefit and the
Spouse's Supplemental Benefit (if any) may, at the request of the Executive and
with the consent of the Executive's spouse (if any) and the Committee, be
payable in cash in a lump sum within thirty days following the Retirement Date
of the Executive. Such present value shall be the actuarial equivalent (as
defined in the Retirement Plan) of the Supplemental Benefit and Spouse's
Supplemental Benefit (if any). The request for a lump sum distribution, and the
consent of the Executive's spouse, must be filed by the Executive with the
Committee at least sixty days prior to the Retirement Date. Such consent shall
be in writing on a form provided by the Committee.
Section 6. Disability. In the event the Executive suffers a disability (as
defined in the Retirement Plan) prior to the Retirement Date, the Executive
shall continue to accrue a Supplemental Benefit under this Agreement based upon
the Final Average Compensation of the Executive as of the 1ast date the
Executive was paid by the Corporation (including sick pay) and taking into
account the period from the disability of the Executive to the Normal Retirement
Date as creditable service for purposes of this Agreement. The Supplemental
Benefit of the Executive who is disabled shall be determined and payable as of
the Normal Retirement Date of the Executive.
Section 7. Miscellaneous.
(a) The Executive shall forfeit any right to the Supplemental
Benefit or any other rights hereunder (including the Spouse's
Supplemental Benefit) if he (i) declines to retire at his Normal
Retirement Date, (ii) terminates employment with the Corporation prior
to his Retirement Date without written consent of the Committee, or
(iii) is terminated for "cause." Termination for cause shall arise if
the Executive's employment by the Corporation is terminated because of
or arising out of: (A) criminal dishonesty, (B) refusal to perform his
employment duties for the Corporation on substantially a full-time
basis, (C) refusal to act in accordance with any specific substantive
instructions of the Corporation's Chief Executive Officer or Board of
Directors, or (D) engaging in conduct which could be materially damaging
to the Corporation without a reasonable good faith belief by the
Executive that such conduct was in the best interest of the Corporation.
Notwithstanding the foregoing provisions of this Section 7(a), in the
event of a change of control of the Corporation, the Executive shall be
vested in the right to receive payment of the Supplemental Benefit
under this Agreement, which right shall not be forfeited upon the
termination of the Executive for any reason other than for cause as
defined in this Section 7(a). In the event the employment of the
Executive is terminated at any time following a change in control of the
Corporation, the Supplemental Benefit and Spouse's Supplemental Benefit
(if any) shall be paid commencing as of the later of the date of the
termination
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of the Executive or the date the Executive attains (or would have
attained but for death) the age of fifty-five. For the purposes herein,
the term "change of control" shall have the meaning given such term in
the Wachovia Corporation Stock Plan, as it may be hereafter amended.
(b) The Supplemental Benefit shall cease to be paid to the
Executive (and rights to the Spouse's Supplemental Benefit shall
terminate) if he shall disclose materia1 confidential information or
trade secrets concerning the Corporation or any of its subsidiaries
without the Corporation's consent, or shall engage in any activity that
is materially damaging to the Corporation including, but not limited to,
engaging in competitive employment at any time. The Executive shall be
deemed to engage in competitive employment if he shall render services
as a employee, officer, director, consultant or otherwise, for any
employer which conducts a principal business or enterprise that competes
directly with the Corporation or any subsidiary or affiliate of the
Corporation. The Committee shall have authority to cease payments under
this paragraph (b), and the determination of the Committee shall be
final and conclusive. Upon the request of the Executive, the Committee
may grant an advance opinion as to whether a proposed activity would
violate the provisions of this paragraph (b).
(c) The Executive acknowledges that he has entered into this
Agreement of his own free will and without duress. In consideration of
the mutual obligations and covenants hereunder, the Executive
unconditionally releases the Corporation and its subsidiaries, and their
respective directors, officers, employees and shareholders, from any and
all claims, liabilities and obligations of any nature pertaining to
termination of the Executive's employment by the Corporation or any of
its subsidiaries, including but not limited to (i) any claims under
federal, state or local laws prohibiting discrimination including
without limitation the Age Discrimination in Employment Act of 1967, as
amended, or (ii) any claims growing out of any alleged legal
restrictions on the Corporation's right to terminate the Executive's
employment, such as any alleged implied contract of employment or
termination contrary to public policy. The Executive acknowledges that
he has been advised to consult with an attorney prior to signing this
Agreement, that he has had no less than twenty-one days to consider this
Agreement prior to the execution hereof, and that he may revoke this
Agreement at any time within seven days following execution hereof.
(d) This Agreement shall be administered and interpreted by the
Committee or its duly authorized designee, whose decisions shall be
final. Wherever applicable, interpretation of this Agreement shall be
consistent with the terms of the Retirement Plan.
(e) Nothing in this Agreement shall be construed as giving the
Executive the right to be retained in the employ of the Corporation or
any subsidiary of the Corporation at all or for any specified period in
any particular position, or any right to any payment whatsoever except
to the extent provided for by this Agreement.
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(f) Notwithstanding any other provisions hereof, if any person
entitled to receive payments hereunder (the "recipient") shall be
physically or mentally or legally incapable of receiving or
acknowledging receipt of such payment, the Corporation, upon the receipt
of satisfactory evidence that another person or institution is
maintaining the recipient and that no guardian or committee has been
appointed for the recipient, may cause such payment to be made to such
person or institution so maintaining the recipient.
(g) Nothing in this Agreement and no action taken pursuant to
the provisions of this Agreement shall create or shall be construed as
creating a trust of any kind, or a fiduciary relationship between the
Corporation and the Executive or any other person. Any amounts which are
or may be set aside hereunder shall continue for all purposes to be a
part of the general funds of the Corporation, and no person other than
the Corporation shall, by virtue of the provisions of this Agreement,
have any interest in such funds. To the extent that any person acquires
a right to receive payments from the Corporation hereunder, such right
shall be no greater than the right of any unsecured general creditor of
the Corporation.
(h) The benefits payable under this Agreement may not be
assigned by the Executive or any other person nor anticipated in any
way.
(i) The Committee may, in its sole discretion, terminate,
suspend or amend this Agreement at any time or from time to time, in
whole or in part; provided, that except as otherwise specifically
provided herein no such termination, suspension or amendment made
following the date that payments commence hereunder will affect the
right of any person to receive benefits earned hereunder. Upon a change
of control of the Corporation as defined in Section 7(a), this Agreement
may not be amended or terminated without the express written consent of
the Executive.
(j) This Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina.
(k) In the event the Executive shall qualify to receive payments
under this Agreement and under the Wachovia Corporation Retirement
Income Benefit Enhancement Plan (the "Enhancement Plan"), payments shall
be made hereunder rather than and in lieu of payments under the
Enhancement Plan, and neither the Executive nor any other person
claiming under or through him shall thereupon have any further rights or
be entitled to any benefits under the Enhancement Plan. The execution of
this Agreement by the Executive constitutes a release by the Executive
of all rights and benefits under the Enhancement Plan.
(1) This Agreement amends, replaces and supersedes the prior
Executive Retirement Agreement between the Executive and the Corporation
dated October 27, 1989, as amended October 25, 1991, July 23, 1993 and
January 27, 1995.
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IN WITNESS WHEREOF, this Agreement has been executed in behalf of the
Corporation by its duly authorized officers and by the Executive as of the day
and year first above stated.
WACHOVIA CORPORATION
By: X.X. Xxxxx Xx.
________________________
Chief Executive Officer
Attest:
XXXXX XXXXXXXXXX XXXXX
-----------------------------
Secretary
[Corporate Seal]
XXXXXX X. DRY (SEAL)
-------------------------------
Xxxxxx X. Dry
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