Contract
Exhibit
(10)(qq)
Insurance Bonus Agreement (the “Agreement”), dated as of December 29, 2003,
among Wachovia Corporation, a North Carolina corporation, its subsidiaries and affiliates
(the “Company”), Xxxx X. Xxxxx (the “Insured”) and The Xxxx X. Xxxxx Irrevocable Living Trust dated
September 20, 2000 (the “Owner”).
W i t n e s s e t h:
Whereas, the Owner desires to purchase a life insurance policy insuring the life
of the Insured;
Whereas, the Company desires to provide the Insured with a special bonus for work
performed for the Company; and
Whereas, the Company, the Insured and the Owner desire to terminate the
Split-Dollar Life Insurance Agreement among them and this Agreement is a condition to the
termination;
Now, therefore, in consideration of the preceding and the mutual promises made
herein, the Company and the Insured agree as follows:
1. Purchase Of Policy. The Owner agrees that it shall apply to The Travelers
Insurance Company (together, the “Insurer”) for a policy of insurance having the terms set
forth in the attached Schedule (the “Policy”). The Insured agrees to provide any and all
information requested by the Insurer in order for the Insurer to underwrite the Policy,
including but not limited to a medical examination and completion of forms as requested by
the Insurer.
2. Policy Ownership. The Owner shall be the sole owner of the Policy and shall
have all incidents of ownership in and to the Policy.
3. Insurance Bonus. In addition to any and all compensation paid by the
Company to the Insured for the Insured’s services, the Company shall cause an annual
insurance bonus to be paid to the Insured (or after the Insured’s death, to his or her
surviving spouse) in the amount of Sixty Four Thousand, One Hundred Twenty-Five Dollars
($64,125.00) (the “Insurance Bonus”). While this Agreement is in force, the Insurance Bonus
will be paid during December each year, beginning 2003. The parties agree that the
Insurance Bonus is compensation for services and that the Company may withhold any taxes
that are required to be withheld under any law, rule or regulation.
4. Premium Payments. The Owner agrees to pay the annual premium on the
Policy (the “Annual Premium”) when due. As a convenience to the Insured and the Owner, the
Insured directs the Company (a) to pay the Insurance Bonus directly to the Insurer on behalf
of the Owner against the Annual Premium and (b) to the extent the Annual Premium exceeds the
amount of the Insurance Bonus after all applicable withholding, to pay the excess out of the
amount of any other compensation then owed to
the Insured. The Company shall notify the Insured of any amounts it has paid under
this Section 4, and the Owner shall pay any remainder of the Annual Premium when due. For
the avoidance of doubt, this Agreement in no way obligates the Company to extend or maintain
credit to or for the Insured or the Owner.
5. Termination. This Agreement shall terminate upon the earlier of:
(a) The later of the death of the Insured or the Insured’s spouse;
(b) Written notice by the Company to the Insured, if the Owner has failed to
pay any portion of the Annual Premium when due or either the Owner or the Insured
has failed to comply with any other provision of this Agreement (and, in each case,
such failure has not been cured within 30-days of the Company’s written notice to
the Insured);
(c) Mutual agreement by the Company and the Insured.
Termination of Insured’s employment with the Company and its subsidiaries shall not affect
the party’s obligations under this Agreement.
6. Certain Forbearances. Notwithstanding Section 2 of this Agreement, the
Owner agrees that during the term of this Agreement that the Owner will not (without the
prior written consent of the Company): (a) exchange or surrender any part of the Policy (for
its cash value or otherwise); (b) obtain a loan against the Policy from the Insurer; (c)
assign any part of the Policy as collateral security; (d) change the ownership of any part
of the Policy by endorsement or assignment; or (e) request a settlement of the proceeds of
the Policy under any method of settlement other than one which is in reference to the life
of the Insured. If applicable, the Owner shall enter into an agreement with the Insurer to
effect the foregoing.
7. Amendment Of Agreement. The Agreement shall not be amended, altered or
modified, and no term may be waived, without the written agreement of the Insured and the
Company. The agreement of the Owner shall not be required unless the amendment, alteration,
modification or waiver increases materially the obligations of the Owner under this
Agreement. The failure of the Company to enforce any of the provisions of this Agreement
shall in no way be construed to be a waiver of any such provision. No waiver of any breach
of this Agreement shall be held to be a waiver of any other or subsequent breach.
8. Death Benefits. The Owner shall designate the beneficiary or beneficiaries
of the Policy, and the Company shall have no rights or interest in the death proceeds
payable under the Policy or in the cash value of the Policy.
9. Miscellaneous. The Company and the Insured agree that (a) this Agreement is
not and shall not be construed as an employee benefit plan subject to the
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Employment Retirement Income Security Act of 1974, as amended (“ERISA”) and (b) the
value of the Insured’s Insurance Bonus shall not be considered as salary or compensation for
purposes of determining the Insured’s benefits under any of the Company’s or its affiliates’
plans, policies or arrangements, including, but not limited to, pension, retirement, profit
sharing, bonus or severance plans or under any agreement between the Insured and the Company
or one of its affiliates. Before making any claim under this Agreement, the Owner and the
Insured will comply with the Company’s claims procedures, which may be obtained from the
Company’s Executive Compensation Department. This agreement shall be subject to and
construed under the laws of the state of North Carolina.
10. Use of Certain Definitions. Capitalized terms used herein but not defined
herein shall have the meanings ascribed to such terms in the Employment Agreement, dated as
of November 1, 2001 (the “Employment Agreement”), by and between the Insured and the Company.
This Agreement does not constitute an amendment to the Employment Agreement.
11. Liability Of Insurer. The Insurer is not a party to this Agreement and
shall have no liability except as set forth in the Policy.
12. Liability Of the Company. The Company makes no representations to the
Insured and shall have no responsibility or liability for the tax effects of this Insurance
Bonus Agreement or any related payments under the Policy. The Insured is solely
responsible for any taxes owed as a result of the Insurance Bonus. The Owner and the
Insured represent that they have relied on their own tax and legal advisors with respect to
this Agreement, the Insurance Bonus and the Policy.
13. No Third Party Beneficiaries. This Agreement shall not confer any rights
or remedies on any person other than the Company, the Insured or the Owner.
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In witness whereof, the parties hereto have executed this Insurance Bonus Agreement
on the date first above written.
| WACHOVIA CORPORATION | ||||||||||
By: |
/s/ XXXXXXX X. XXXXXX | /s/ XXXX X. XXXXX | ||||||||
| Name: | Xxxxxxx X. Xxxxxx | Insured: Xxxx X. Xxxxx | ||||||||
Title:
|
Senior Vice President | |||||||||
| Date: | DECEMBER 29 | , | 2003 | |||||||
Date:
|
DECEMBER 29 | , | 2003 | |||||||
| /s/ WACHOVIA BANK, N.A., TRUSTEE | ||||||||||
| Trustee: Wachovia Bank, N.A. Owner: The Xxxx X. Xxxxx Irrevocable Living Trust dated September 20, 2000 |
||||||||||
| Date: | DECEMBER 29 | , | 2003 | |||||||
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