EXHIBIT 10(g)
STATE OF ALABAMA )
JEFFERSON COUNTY )
SOUTHTRUST CORPORATION
XXXXXXX X. XXXXXX, XX.
NONQUALIFIED DEFERRED COMPENSATION PLAN AND AGREEMENT
SOUTHTRUST CORPORATION, a Delaware corporation with its principal place
of business in Birmingham, Alabama ("SouthTrust") hereby adopts and publishes as
of the 1st day of February, 1998, the SouthTrust Corporation Xxxxxxx X. Xxxxxx,
Xx. Nonqualified Deferred Compensation Plan and Agreement (the "Plan"), as
follows:
W I T N E S S E T H:
WHEREAS, Xxxxxxx X. Xxxxxx, Xx. ("Xxxxxx") currently serves as chairman
of the Board and Chief Executive Officer of SouthTrust; and
WHEREAS, Xxxxxx is currently eligible to retire with full retirement
benefits pursuant to that certain Employment Agreement by and between Xxxxxx and
SouthTrust and in accordance with SouthTrust's other policies and compensation
plans; and
WHEREAS, SouthTrust desires to retain Xxxxxx as its Chief Executive
Officer for an additional five year period; and
WHEREAS, Xxxxxx and SouthTrust have agreed that, in addition to other
forms of compensation otherwise agreed to between them, as additional
compensation, consideration and inducement, SouthTrust shall provide as deferred
compensation for Xxxxxx 200,000 shares of SouthTrust Common Capital Stock (the
"Stock") to be transferred to Xxxxxx for his services to be performed on behalf
of SouthTrust during the five year period of time, and pursuant to the terms and
provisions set forth in this Plan, the rules and regulations of the Internal
Revenue Code of 1986, as amended, and the rules and regulations of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"); and
WHEREAS, it is intended that the Plan shall remain unfunded for
purposes of Title I of ERISA and for tax purposes;
NOW, THEREFORE, IN CONSIDERATION OF THE ABOVE PREMISES, and the mutual
covenants hereinafter set forth, faithfully to be kept by the parties hereto,
SouthTrust hereby establishes and adopts the SouthTrust Corporation Xxxxxxx X.
Xxxxxx, Xx. Nonqualified Deferred Compensation Plan and Agreement, as an
unfunded arrangement to provide the Benefit (as defined below) to Xxxxxx
pursuant to this Plan.
ARTICLE 1
PURPOSE
The Plan is intended to be an unfunded arrangement for purposes of
Sections 201(2), 301(a)(3) and 401(a)(1) of Title I of ERISA to provide a method
to encourage Xxxxxx, who is a highly compensated and key employee, to remain
employed for an additional five (5) years and to provide financial security for
Xxxxxx upon his retirement or Disability (as defined below) and for his
beneficiaries in the event of death by deferring payment to Xxxxxx of his
Benefit as provided herein and to enhance and promote the growth and success of
SouthTrust by providing an incentive to Xxxxxx to continue to contribute to
SouthTrust's growth and success and thereby benefit SouthTrust's shareholders.
ARTICLE 2
DEFINITIONS
2.1 "Administrator" means the Human Resource Committee of the
Board.
2.2 "Beneficiary" means the individual, individuals or entity
designated in writing by Xxxxxx on the Beneficiary Designation Form attached
hereto as Exhibit "A" and who is entitled to be paid the balance of the Benefit.
2.3 "Benefit" means 200,000 shares of Stock as of the Effective
Date and any and all earnings and dividends declared on such Stock, such
earnings and dividends to be reinvested in Stock as of the date of such payment.
In addition, if the Stock is changed after the Effective Date by reason of a
stock split, reverse stock split, stock dividend or recapitalization,
appropriate adjustments shall be made in the number and class of Stock subject
to the Plan; provided, however, that SouthTrust shall not be required to issue
fractional shares as a result of such adjustment.
2.4 "Board" means the Board of Directors of SouthTrust.
2.5 "Change in Control" means any one or more of the following: 1)
when any person, or group of persons, directly or indirectly, becomes the
beneficial owner, or obtains the right to acquire securities of SouthTrust
representing fifty percent (50%) or more of the combined voting power of
SouthTrust's outstanding voting stock; 2) when there is a change in the majority
of the members of the Board within any twenty-four month period; 3) when there
is consummated any merger or consolidation which would result in a Change in
Control of SouthTrust; 4) upon the adoption of any plan or proposal for the
liquidation or dissolution of SouthTrust; or 5) upon the sale of substantially
all of the assets of SouthTrust to any person, or group of persons.
2.6 "Code" means the Internal Revenue Code of 1986, as amended.
2.7 "Director" means a member of the Board of Directors of
SouthTrust.
2.8 "Disability" and "Disabled" mean a total and permanent injury
or illness that prevents Xxxxxx from performing substantially all of the
material duties of his position for a continuous period of twelve (12) months.
2.9 "Earned" means the portion of Xxxxxx'x Benefit that is
nonforfeitable.
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2.10 "Effective Date" of the Plan means the 1st day of February,
1998.
2.11 "ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
2.12 "Xxxxxx" means Xxxxxxx X. Xxxxxx, Xx.
2.13 "Plan" means the SouthTrust Corporation Xxxxxxx X. Xxxxxx, Xx.
Nonqualified Deferred Compensation Plan and Agreement established by this
document and any related documents executed by Xxxxxx.
2.14 "Plan Year" means the period of twelve (12) consecutive months
beginning on the Effective Date and ending on the last day of January, both
dates inclusive.
2.15 "Potential Change in Control" means SouthTrust entering into
an agreement, the consummation of which would result in a Change in Control.
2.16 "SouthTrust" means SouthTrust Corporation, a corporation
organized and existing under the laws of the State of Delaware, with its
principal place of business in Birmingham, Alabama, and any corporate successor
thereto, whether by merger, consolidation, liquidation, or otherwise.
2.17 "Stock" means shares of SouthTrust Corporation common capital
stock.
2.18 "Trust" means the trust created simultaneously herewith to
contribute assets to be held therein, subject to the claims of SouthTrust's
creditors until paid to Xxxxxx or his Beneficiaries.
ARTICLE 3
ELIGIBILITY
Xxxxxx, as an individual employee of SouthTrust, who is a highly
compensated employee as defined in Section 414(q) of the Code, shall be the only
individual eligible to participate in the Plan.
ARTICLE 4
ESTABLISHMENT AND OWNERSHIP OF THE BENEFIT
4.1 Establishment of Accounts. SouthTrust shall establish a
special bookkeeping account for Xxxxxx which shall be credited as of the
Effective Date with an amount equal to the Benefit as provided under Section
4.2.
4.2 Funding. Xxxxxx'x account shall be credited with the Benefit
as of the Effective Date and any earnings and dividends that relate to the Stock
credited to Xxxxxx'x account as the Benefit, as well as any adjustment of the
Benefit by reason of a stock split, reverse stock split, stock dividend or
recapitalization which shall be credited as of the Effective Date to Xxxxxx'x
account. SouthTrust shall transfer to the trustee of the Trust a sufficient
number of shares of Stock or sufficient cash to purchase
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Stock equal to the Benefit as of the Effective Date and at any time thereafter
to fund the Benefit. In the event cash is transferred, the Trustee shall be
directed to promptly purchase and hold Stock.
4.3 Ownership Of Benefit. Until paid to Xxxxxx or his Beneficiary,
all assets allocated to Xxxxxx'x account, including all property and rights
purchased with such amounts, and all income attributable to such amounts,
property, or rights, shall remain solely the property and rights of SouthTrust,
subject only to the claims of any general creditors of SouthTrust.
4.4 Forfeiture of Benefits. Benefits shall be forfeited upon a
termination of employment for any reason whatsoever, either voluntary or
involuntary, prior to January 31, 2003, except for a termination of employment
as a result of a Disability or upon the death of Xxxxxx or upon a Change in
Control.
4.5 Reports. As of the close of each Plan Year, SouthTrust shall
issue to Xxxxxx a report reflecting the current number of shares of Stock
credited to his account.
ARTICLE 5
PAYMENT OF BENEFITS
5.1 Payment of Benefit. If Xxxxxx terminates his employment with
SouthTrust at the end of business on January 31, 2003, which is the date that
the Benefit is Earned, then Xxxxxx shall receive payment in one lump sum in
Stock as soon as administratively possible in the year following the year of
such termination. If Xxxxxx remains employed by SouthTrust in any capacity after
January 31, 2003, then Xxxxxx shall receive payment in one lump sum in Stock no
later than March 15 of the year following the year of termination.
5.2 Death, Disability or Change in Control Benefit. If Xxxxxx
becomes Disabled, dies or there is a Change in Control, Xxxxxx shall have Earned
the Benefit, and the Benefit shall be paid, in the case of his Disability or
Change in Control, either to Xxxxxx or to his designated Beneficiary, as
provided in his Beneficiary Designation Form attached hereto as Exhibit "A,"
and, in the case of his death, either to the estate of Xxxxxx or to his
designated Beneficiary, as provided in his Beneficiary Designation Form attached
hereto as Exhibit "A." Payment under Section 5.2 shall be made in one lump sum
in Stock. With regard to the Benefit payable either upon the death or Disability
only of Xxxxxx, the Benefit shall be payable to Xxxxxx or his Beneficiary in the
year following the year of termination. In the case of a Change in Control,
payment of the Benefit shall commence not later than the first day of the
calendar month next following the date after there is a Change in Control.
5.3 Termination of Plan. This Plan may not be terminated.
5.4 Beneficiary Designations. Xxxxxx may designate one or more
individuals or entities as his Beneficiary or change any prior designation, such
designation or change in designation to be (i) in writing, (ii) in such form as
SouthTrust shall prescribe, and (iii) retained by the Board. In the absence of a
valid Beneficiary designation by Xxxxxx, payment of death benefits will be paid
to the estate of Xxxxxx. Xxxxxx may change his designated Beneficiary, at any
time, and without the consent of the former designated Beneficiary. A
Beneficiary Designation Form is attached hereto as Exhibit "A."
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ARTICLE 6
ADMINISTRATION
6.1 Administrator. This Plan shall be administered by the
Administrator.
6.2 Administrator's Powers and Duties. The Administrator shall
have the powers and duties to:
(a) construe and interpret the provisions of the Plan;
(b) adopt, amend, or revoke rules and regulations for the
administration of the Plan, provided they are not inconsistent with the
provisions of the Plan;
(c) provide appropriate parties with such returns,
reports, descriptions and statements as may be required by law, within the times
prescribed by law and to make them available for examination by Xxxxxx and his
Beneficiaries when required by law;
(d) take such other action as may reasonably be required
to administer the Plan in accordance with its terms or as may be provided for or
required by law;
(e) withhold applicable taxes and file with the Internal
Revenue Service appropriate information returns, with respect to distributions
made from the Plan; and
(f) appoint and retain such persons, including a trustee
of the Trust, as may be necessary to carry out the functions of the
Administrator.
ARTICLE 7
MISCELLANEOUS
7.1 Amendment of Plan. This Plan may be modified or amended, in
whole or in part, only in writing signed by the parties hereto. No amendment or
modification to the Plan shall reduce or impair Xxxxxx'x or his Beneficiary's
Benefit which is attributable to services performed prior to the amendment.
7.2 Unsecured Promise. SouthTrust and Xxxxxx acknowledge that this
Plan shall create only an unsecured promise by SouthTrust to Xxxxxx to pay the
Benefit provided herein. Until the occurrence of a distribution event, at which
point Xxxxxx shall be entitled to receive amounts provided hereunder, all such
amounts shall remain solely the property of SouthTrust, subject only to the
claims of SouthTrust's general creditors.
7.3 Assignment of Rights to Benefits. Xxxxxx'x rights to the
Benefit under the Plan shall not be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment or
garnishment by Xxxxxx, by creditors of Xxxxxx or Xxxxxx'x Beneficiary.
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7.4 Unfunded Plan. It is the intention of SouthTrust and Xxxxxx
that the Plan be unfunded for tax purposes and for purposes of Title I of ERISA.
7.5 Right to Employment. This Plan shall not be construed as
giving Xxxxxx any right to continued employment with SouthTrust.
7.6 Binding Nature of the Plan. The Plan shall be binding upon and
inure to the benefit of SouthTrust, its successors and assigns, Xxxxxx, his
Beneficiary and their heirs and legal representatives.
7.7 Written Notice. Any notice or other communication required or
permitted under the Plan shall be in writing. If directed to SouthTrust, the
notice or communication shall be sent to the Board of SouthTrust at the
principal executive offices of SouthTrust. If directed to Xxxxxx, it shall be
sent to Xxxxxx at the last known address as it appears on SouthTrust's records
or, if Xxxxxx is employed by SouthTrust, at the work site, at SouthTrust's
option. If directed to a Beneficiary, it shall be sent to such Beneficiary at
the last known address as it appears on SouthTrust's records.
7.8 Entire Plan. This Plan, as completed and executed by
SouthTrust and Xxxxxx, and the Beneficiary Designation shall constitute the
entire Plan between SouthTrust and Xxxxxx.
7.9 Controlling Law. This Plan shall be construed in accordance
with the laws of the State of Alabama.
7.10 Expenses. The costs of administering the Plan will be paid by
SouthTrust.
7.11 Captions. The captions or headings in this Plan are made for
convenience and general reference only and shall not be construed to describe,
define or limit the scope or intent of the provisions of this Plan.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, SouthTrust Corporation by and through its duly
authorized officers and Xxxxxx have caused this instrument to be executed under
seal on the day of July, 1999.
SOUTHTRUST CORPORATION
By: /s/ Xxxxxxx Xxxxxxxxx, Jr.
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Its Senior Vice President
ATTEST:
/s/ Xxxxx X. Xxxxxx
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Its Secretary
[CORPORATE SEAL]
/s/ Xxxxx Xxxxxxxx /s/ Xxxxxxx X. Xxxxxx, Xx.
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Witness Xxxxxxx X. Xxxxxx, Xx.
EXHIBIT A
BENEFICIARY DESIGNATION FORM
BENEFICIARY DESIGNATION
I hereby designate Xxxxxxx X. Xxxxxx, III, Xxxxxxxxx X. Xxxxxx, and
Xxxxxx X. Xxxxxx as my Beneficiaries under the Plan to receive all amounts held
for me under the Plan which have not been paid to me at the date of my death.
Each of the above-named Beneficiaries should receive an equal share of the
proceeds. In the event any of the above-named Beneficiaries does not survive me,
then such deceased Beneficiary's share shall be apportioned among his or her
lineal descendants, per stirpes, and such lineal descendants(s) shall be
designated in place of such deceased individual as my Beneficiary(ies) under the
Plan. If any of the six (6) Beneficiaries first named above shall not be living
at the time of my death, and shall have left no descendants of him or her living
at the time of my death, then such Beneficiary's share of the Plan
proceeds shall be divided among the remaining Beneficiaries named above, per
stirpes. If any individual to whom Plan proceeds shall be paid under this
Beneficiary Designation shall not have attained the age of twenty-one (21) years
at the time of distribution of the Plan proceeds to him or her, then his
share of the proceeds shall be distributed to my Executor, as custodian for such
Beneficiary under the Alabama Uniform Transfers to Minors Act. The receipt of my
Executor as such custodian shall constitute complete and final acquittance of
the Plan Administrator hereunder.
Date: 1/25/2000
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/s/ Xxxxxxx X. Xxxxxx, Xx.
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Witness Xxxxxxx X. Xxxxxx, Xx.
ACCEPTED: SOUTHTRUST CORPORATION
Date: January 25, 2000 By: /s/ Xxxxxxx Xxxxxxxxx, Jr.
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Its Sr. Vice President
/s/ Xxxxx Xxxxxxxx
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Witness
