SUPPLEMENTAL RETIREMENT AGREEMENT
THIS SUPPLEMENTAL RETIREMENT AGREEMENT (the "Agreement") is made and
entered into as of January 31, 1996 by and between NATIONSBANK CORPORATION, a
North Carolina corporation ("NationsBank"), and XXXXX X. XXXXXXXX ("Executive").
W I T N E S S E T H:
WHEREAS, as of the date hereof, Executive is retiring from
NationsBank; and
WHEREAS, Executive has been employed by NationsBank or its subsidiaries
for over thirty-two years and has contributed materially to the success which
NationsBank has enjoyed during his period of employment; and
WHEREAS, contemporaneously with the execution of this Agreement
NationsBank and Executive are entering into a Noncompetition Agreement pursuant
to which Executive has agreed to certain restrictions on his business activities
between the date hereof and June 30, 2001; and
WHEREAS, in consideration of Executive's prior service to NationsBank
and his entering into the Noncompetition Agreement, NationsBank desires to
provide Executive with certain supplemental retirement benefits in accordance
with the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the parties hereto agree as follows:
1. Enhanced Retirement Benefits. In consideration of
Executive's prior services to NationsBank and Executive's
compliance with the terms and conditions of the Noncompetition
Agreement, NationsBank shall pay to Executive the following
enhanced retirement benefits subject to the provisions of paragraph
2 below:
(a) A monthly benefit in the amount of Thirty-Five Thousand
Five Hundred Dollars ($35,500) for the remainder of Executive's life
commencing on July 31, 2001 and continuing on the last day of each
calendar month thereafter through the last day of the calendar month in
which the death of Executive occurs. In addition, upon Executive's
death (whether such death occurs before or after July 31, 2001), in the
event Executive is survived by Executive's spouse on the date of this
Agreement, NationsBank shall pay to Executive's surviving spouse a
monthly benefit in the amount of Twenty-Six Thousand Five Hundred
Dollars ($26,500) commencing on the last day of the calendar month
following the calendar month in which Executive dies and continuing on
the last day of each
subsequent calendar month thereafter through the last day of the
calendar month in which such spouse dies.
(b) A monthly benefit in the amount of Six Thousand Three
Hundred Dollars ($6,300) beginning on January 31, 1997 and continuing
on the last day of each month thereafter for a period of fifteen (15)
years. If Executive dies prior to the end of such fifteen (15) year
period, NationsBank shall continue to pay any remaining unpaid monthly
installments to the "beneficiary" of Executive designated under the
NationsBank Corporation Deferred Compensation Plan for Key Employees.
2. Compliance With Noncompetition Agreement. The payment to Executive
and his spouse or other beneficiary of enhanced retirement benefits under this
Agreement is conditioned on and subject to Executive's compliance with the
Noncompetition Agreement and the covenant set forth in paragraph 3 below. In the
event Executive breaches the Noncompetition Agreement or the covenant set forth
in paragraph 3 below, Executive and his spouse or other beneficiary shall
forfeit and have no right to receive any benefits under this Agreement from and
after the date of such breach.
3. Noncompetition Covenant. During the period that Executive is
receiving payments under this Agreement, Executive agrees not to engage in any
manner, whether as an officer, employee, owner, partner, stockholder, director,
consultant or otherwise -- directly or indirectly -- in any business which is
(i) a bank holding company, (ii) an operating commercial bank or (iii) a member
of a group of trades or businesses under common control that includes a bank
holding company or an operating commercial bank, all as determined by
NationsBank in its reasonable discretion; provided, however, that Executive may
(A) acquire an interest in a business entity so long as such interest is a
passive investment of Executive not exceeding five percent (5%) of the total
ownership interest in such entity or (B) engage in any other activities as
approved in writing in advance by NationsBank. Executive agrees that he will
refrain from (x) authorizing any Affiliate to perform or (y) assisting in any
manner any Affiliate in performing any activities that would be prohibited by
the terms of this paragraph 3 if they were performed by Executive. For purposes
of this paragraph, "Affiliate" means (i) any entity directly or indirectly
controlling (including without limitation an entity for which Executive serves
as an officer, director, employee, consultant or other agent), controlled by, or
under common control with Executive, and (ii) each other entity in which
Executive, directly or indirectly, owns any controlling interest or of which
Executive serves as a general partner.
4. Withholding. Any payments to Executive hereunder shall
be less any applicable payroll or withholding taxes.
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5. Miscellaneous Provisions.
(a) Binding Effect. Subject to any provisions hereof
restricting assignment, all covenants and agreements in this Agreement
by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors, assigns, heirs, and personal
representatives. None of the parties hereto may assign any of its
rights under this Agreement or attempt to have any other person or
entity assume any of its obligations hereunder.
(b) Severability. If fulfillment of any provision of this
Agreement, at the time such fulfillment shall be due, shall transcend
the limit of validity prescribed by law, then the obligation to be
fulfilled shall be reduced to the limit of such validity; and if any
clause or provision contained in this Agreement operates or would
operate to invalidate this Agreement, in whole or in part, then such
clause or provision only shall be held ineffective, as though not
herein contained, and the remainder of this Agreement shall remain
operative and in full force and effect.
(c) Governing Law. This Agreement, the rights and obligations
of the parties hereto, and any claims or disputes relating thereto
shall be governed by and construed in accordance with the laws of the
State of North Carolina, not including the choice-of-law rules thereof.
(d) Amendment; Waiver. Except as otherwise expressly provided
in this Agreement, no amendment, modification or discharge of this
Agreement shall be valid or binding unless set forth in writing and
duly executed by each of the parties hereto. Any waiver by any party or
consent by any party to any variation from any provision of this
Agreement shall be valid only if in writing and only in the specific
instance in which it is given, and such waiver or consent shall not be
construed as a waiver of any other provision or as a consent with
respect to any similar instance or circumstance.
(e) Headings. Paragraph and subparagraph headings contained in
this Agreement are inserted for convenience of reference only, shall
not be deemed to be a part of this Agreement for any purpose, and shall
not in any way define or affect the meaning, construction or scope of
any of the provisions hereof.
(f) Pronouns. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular or plural,
as the identity of the person or entity may require.
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(g) Execution in Counterparts. This Agreement may be executed
in two or more counterparts, none of which need contain the signatures
of all parties hereto and each of which shall be deemed an original.
IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement, or caused this Agreement to be duly executed on its behalf, as of the
date first set forth above.
NATIONSBANK CORPORATION
By: /s/ X. X. Xxxxxx
Name: X. X. Xxxxxx
Title: Executive Vice Pres.
"NationsBank"
/s/ Xxxxx X. Xxxxxxxx [SEAL]
Xxxxx X. Xxxxxxxx
"Executive"
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