Exhibit 99.1
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
AGREEMENT by and between Regions Financial Corporation, a Delaware
corporation (the "Company") and Xxxxxxx X. Xxxxxxx ("Executive"), dated October
18, 2006 (the "Effective Date"), amending and restating the employment agreement
first entered into on September 1, 2001 and amended on March 1, 2005 and
December 20, 2005.
The Board of Directors of the Company (the "Board"), has determined that it
is in the best interests of the Company and its shareholders to assure that the
Company will have the continued dedication of Executive through the end of 2006,
notwithstanding the anticipated merger of the Company with AmSouth
Bancorporation. The Company also wishes to recognize that Executive had a right
to terminate with Good Reason under prior agreements and his long and valuable
service to the Company. Therefore, in order to accomplish these objectives, the
Board has caused the Company to enter into this Agreement.
The Company and Executive now also amend the Agreement to comply with
Section 409A of the Internal Revenue Code (the "Code"). In order to comply with
Section 409A and to take advantage of transition rules in the Treasury
Regulations under Section 409A, this amendment and restatement is effective
January 1, 2005, notwithstanding the fact that it is executed in 2006. The
Company and Executive agree that, in the event of ambiguity, this Agreement is
to be interpreted to comply with Section 409A (or alternatively, to take
advantage of any applicable exemption, exception, transition rule or mitigation,
or any definition which excludes a payment from being deferred compensation).
Further, strictly for purposes of clarity, the Company and Executive acknowledge
that a Change of Control (as defined in the Agreement prior to this amendment
and restatement) occurred on July 1, 2004 with the merger of the Company and
Union Planters Corporation.
Notwithstanding anything to the contrary herein, the sole purpose of the
Agreement is to amend and restate the employment agreement first entered into by
the Company and Executive on September 1, 2001 as amended, and including the
Career Award Agreement executed as of December 20, 2005 between the Company and
Executive. Except as specifically provided herein, the Agreement does not affect
the rights of Executive under any other agreements, plans or arrangements
between the Company and Executive including, but not limited to, deferred
compensation plans, and compensation and bonus arrangements.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Certain Definitions.
(a) The "409A Date" shall mean the date that is six months after the
date of Separation from Service.
(b) "Date of Termination" shall mean (i) if Executive's employment is
terminated other than by reason of death, the date of receipt of the Notice of
Termination or any later date
specified therein, as the case may be, or (ii) if Executive's employment is
terminated by reason of death, the Date of Termination shall be the date of
death.
(c) "Separation from Service" shall have the meaning given to it in
Section 409A(a)(2)(A)(i) of the Code and the regulations promulgated thereunder,
as such regulations may be changed from time to time.
(d) "Specified Employee" shall have the meaning given to it in Section
409A(a)(2)(B)(i) of the Code and the regulations promulgated thereunder, as such
regulations may be changed from time to time, with an identification date of
December 31.
2. Modifications and Clarifications to Other Plans and Agreements.
(a) Modification to SERP. Executive's benefit under the Regions
Financial Corporation Supplemental Executive Retirement Plan, as amended
("SERP"), shall be determined by including, in the calculation of "average
monthly compensation," 100% of bonuses paid or payable within the averaging
period. For this purpose, bonuses shall include any portion of a bonus that is
or was deferred, at Executive's election, into a qualified 401(k) plan or into a
non-qualified plan of deferred compensation.
(b) Amendment of Options. All of Executive's stock options outstanding
on the Effective Date, whether vested or unvested, if not previously exercised,
are hereby amended in the following two respects: (i) each option will remain
exercisable for the remainder of its original term, unless Executive is
terminated for Cause or resigns without Good Reason prior to December 31, 2006,
and (ii) the per-share exercise price of each such option is hereby increased,
if applicable, to the Fair Market Value (as defined in the stock option plan
under which such option was granted) as of October 18, 2006, the date on which
the Compensation Committee of the Company's Board of Directors approved the
amendment to the options.
(c) Restricted Stock. Company granted to Executive 62,268 shares of
restricted stock pursuant to a Career Award Agreement effective December 20,
2005, and at various other times Company granted to Executive a total of 64,195
other shares of restricted stock (for a total of 126,463 shares).
Notwithstanding such prior agreements, such shares, if not previously vested,
will vest, and the restrictions lapse, on the earlier of December 31, 2006 or
the termination of Executive's employment due to death, termination by the
Company without Cause, or termination by Executive for Good Reason. Such shares,
if not previously vested, shall be forfeited upon the termination of Executive
by the Company for Cause prior to December 31, 2006, or termination by Executive
without Good Reason before December 31, 2006.
(d) Performance Shares. On December 20, 2005 the Company approved a
grant to Executive of 18,485 performance restricted shares of Company stock,
with actual issuance of restricted shares to be determined based on Company
financial performance for 2006 and 2007. In the event Company financial
performance for 2006 and/or 2007 is sufficient under such grant to result in the
issuance of restricted shares, such shares shall be issued to Executive but such
shares shall be issued as vested unrestricted shares, notwithstanding the fact
that Executive is no longer employed by Company on such date of issuance.
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(e) Bonus. Executive's annual bonus for 2006 shall be payable
notwithstanding the fact that he is no longer employed by Company on the payment
date.
(f) Medical Benefits. All medical, dental and prescription drug
benefits shall be continued for three years upon Executive's termination of
employment on or after December 31, 2006, or in the event of Executive's
termination for Good Reason or termination by the Company other than for Cause,
such benefits shall be continued until December 31, 2009. In the event of
Executive's death before December 31, 2009, Executive's spouse shall have the
right to continue such benefits for herself on the same basis as if Executive
were still alive. Such benefits shall be provided upon Separation from Service.
However, if Executive is a Specified Employee, the following provisions shall
apply until the 409A Date. To the extent such benefits are provided under a plan
to which the "continuation coverage" provisions of Section 601, et seq., of the
Employee Retirement Income Security Act of 1974, as amended, and Section 4980B
of the Code ("COBRA") apply, Executive shall elect COBRA continuation coverage
and shall pay COBRA premium payments as they come due from the Date of
Termination to the 409A Date. Executive will be reimbursed by the Company for
all such COBRA premium payments within 30 days after the 409A Date. To the
extent such benefits are not provided under a plan or arrangement to which COBRA
applies, Executive shall pay to the Company the value of such benefits and shall
be reimbursed for such payments within 30 days after the 409A Date.
(g) Within 30 days after the execution of this Agreement, the Company
shall pay to Executive an amount equal to the increase (if any) in the exercise
price of each option amended under subsection 2(b) above.
3. Employment Period. The Company hereby agrees to continue Executive in
its employ, and Executive hereby agrees to remain in the employ of the Company
subject to the terms and conditions of this Agreement, for the period through
and including December 31, 2006.
4. Terms of Employment.
(a) Position and Duties.
(i) During the Employment Period, (A) Executive's position
(including status, offices, titles and reporting requirements), authority,
duties and responsibilities shall be commensurate with those held, exercised and
assigned on the Effective Date, but taking into account his intention to retire
on December 31, 2006, and allowing for a transition of such authority, duties
and responsibilities to other individuals in an orderly manner before December
31, 2006, and (B) Executive's services shall be performed at the location where
Executive was employed immediately preceding the Effective Date or any office or
location less than 35 miles from such location.
(ii) During the Employment Period, and excluding any periods of
vacation and sick leave to which Executive is entitled, Executive agrees to
devote reasonable attention and time during normal business hours to the
business and affairs of the Company and, to the extent necessary to discharge
the responsibilities assigned to Executive hereunder, to use Executive's
reasonable best efforts to perform faithfully and efficiently such
responsibilities. During the Employment Period it shall not be a violation of
this Agreement for Executive to (A) serve on corporate, civic or charitable
boards or committees, (B) deliver lectures, fulfill speaking
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engagements or teach at educational institutions and (C) manage personal
investments, so long as such activities do not significantly interfere with the
performance of Executive's responsibilities as an employee of the Company in
accordance with this Agreement. It is expressly understood and agreed that to
the extent that any such activities have been conducted by Executive prior to
the Effective Date, the continued conduct of such activities (or the conduct of
activities similar in nature and scope thereto) subsequent to the Effective Date
shall not thereafter be deemed to interfere with the performance of Executive's
responsibilities to the Company.
(b) Compensation.
(i) Base Salary. During the Employment Period, Executive shall
receive an annual base salary ("Annual Base Salary") at a rate at least equal to
the rate of base salary in effect on the Effective Date, paid or payable
(including any base salary which has been earned but deferred) to Executive by
the Company and its affiliated companies.
(ii) Annual Bonus. In addition to Annual Base Salary, Executive
shall be awarded, for each fiscal year ending during the Employment Period, an
annual bonus (the "Annual Bonus") in cash at least equal to Executive's highest
bonus under the Company's Management Incentive Bonus Plan, or any comparable
bonus under any predecessor or successor plans, for the last three full fiscal
years prior to the Effective Date (annualized in the event that Executive was
not employed by the Company for the whole of such fiscal year) (the "Recent
Annual Bonus"). Each such Annual Bonus shall be paid no later than the end of
the third month of the fiscal year next following the fiscal year for which the
Annual Bonus is awarded, unless Executive shall elect to defer the receipt of
such Annual Bonus.
(iii) Incentive, Savings and Retirement Plans. During the
Employment Period, Executive shall be entitled to participate in all incentive,
savings and retirement plans, practices, policies and programs applicable
generally to other peer executives of the Company and its affiliated companies,
but in no event shall such plans, practices, policies and programs provide
Executive with incentive opportunities (measured with respect to both regular
and special incentive opportunities, to the extent, if any, that such
distinction is applicable), savings opportunities and retirement benefit
opportunities, in each case, less favorable, in the aggregate, than the most
favorable of those provided by the Company and its affiliated companies for
Executive under such plans, practices, policies and programs as in effect
immediately preceding the Effective Date.
(iv) Welfare Benefit Plans. During the Employment Period,
Executive and/or Executive's eligible dependents, as the case may be, shall be
eligible for participation in and shall receive all benefits under welfare
benefit plans, practices, policies and programs provided by the Company and its
affiliated companies (including, without limitation, medical, prescription,
dental, disability, employee life, group life, accidental death and travel
accident insurance plans and programs) to the extent applicable generally to
other peer executives of the Company and its affiliated companies, but in no
event shall such plans, practices, policies and programs provide Executive with
benefits which are less favorable, in the aggregate, than such plans, practices,
policies and programs in effect for Executive immediately preceding the
Effective Date.
(v) Expenses. During the Employment Period, Executive shall be
entitled to receive prompt reimbursement for all reasonable expenses incurred by
Executive in accordance
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with the policies, practices and procedures of the Company and its affiliated
companies in effect for Executive immediately preceding the Effective Date.
(vi) Fringe Benefits. During the Employment Period, Executive
shall be entitled to fringe benefits, including, without limitation, tax and
financial planning services, payment of club dues, and, if applicable, use of an
automobile and payment of related expenses, in accordance with the plans,
practices, programs and policies of the Company and its affiliated companies in
effect for Executive immediately preceding the Effective Date.
(vii) Office and Support Staff. During the Employment Period,
Executive shall be entitled to an office or offices of a size and with
furnishings and other appointments, and to exclusive personal secretarial and
other assistance, commensurate with the foregoing provided to Executive by the
Company and its affiliated companies immediately preceding the Effective Date.
Notwithstanding the above, if Executive's office is moved to a different
location at Executive's request, Executive's entitlement to office, furnishings,
appointments and secretarial services and other assistance shall be based on the
resources that can reasonably be made available at such other location.
(viii) Vacation. During the Employment Period, Executive shall be
entitled to paid vacation in accordance with the most favorable plans, policies,
programs and practices of the Company and its affiliated companies as in effect
for Executive immediately preceding the Effective Date.
5. Termination of Employment.
(a) Death. Executive's employment shall terminate automatically upon
Executive's death during the Employment Period.
(b) Cause. The Company may terminate Executive's employment during the
Employment Period for Cause. For purposes of this Agreement, "Cause" shall mean:
(i) the willful and continued failure of Executive to perform
substantially Executive's reasonably assigned duties with the Company or one of
its affiliates (other than any such failure resulting from incapacity due to
physical or mental illness or from the assignment to Executive of duties that
would constitute Good Reason under Section 5(c)(i), and specifically excluding
any failure by Executive, after reasonable efforts, to meet performance
expectations), which failure continues for a period of at least 30 days after a
written demand for substantial performance, signed by a duly authorized officer
of the Company, has been delivered to Executive which specifically identifies
the manner in which Executive has failed to substantially performed his duties;
provided, however, that no failure to perform by Executive after a Notice of
Termination is given to the Company by Executive shall constitute Cause for
purposes of this Agreement, or
(ii) the willful engaging by Executive in illegal conduct or
gross misconduct which is materially and demonstrably injurious to the Company.
For purposes of this provision, no act or failure to act, on the part of
Executive, shall be considered "willful" unless it is done, or omitted to be
done, by Executive in bad faith or without reasonable belief that Executive's
action or omission was in the best interests of the Company. Any
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act, or failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board or upon the instructions of a senior officer of the Company
or based upon the advice of counsel for the Company shall be conclusively
presumed to be done, or omitted to be done, by Executive in good faith and in
the best interests of the Company. The cessation of employment of Executive
shall not be deemed to be for Cause unless and until there shall have been
delivered to Executive a copy of a resolution duly adopted by the affirmative
vote of not less than three-quarters of the entire membership of the Board at a
meeting of the Board called and held for such purpose (after reasonable notice
is provided to Executive and Executive is given an opportunity, together with
counsel, to be heard before the Board), finding that, in the good faith opinion
of the Board, Executive is guilty of the conduct described in subparagraph (i)
or (ii) above, and specifying the particulars thereof in detail.
(c) Good Reason. Executive's employment may be terminated by Executive
for Good Reason. For purposes of this Agreement, "Good Reason" shall mean:
(i) Any termination by Executive as a result of a reduction of
annual base salary or bonus.
(ii) Any termination by Executive as a result of a required
relocation of the Executive's principal employment location to a location more
than thirty-five (35) miles from Executive's principal employment location.
(d) Notice of Termination. Any termination by the Company or Executive
shall be communicated by Notice of Termination to the other party hereto given
in accordance with Section 13(b) of this Agreement.
For purposes of this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon, (ii) to the extent applicable, sets forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of Executive's
employment under the provision so indicated, and (iii) if the Date of
Termination (as defined below) is other than the date of receipt of such notice,
specifies the termination date. If a dispute exists concerning the provisions of
this Agreement that apply to Executive's termination of employment, the parties
shall pursue the resolution of such dispute with reasonable diligence. Within
five (5) days of such a resolution, any party owing any payments pursuant to the
provisions of this Agreement shall make all such payments together with interest
accrued thereon at the rate provided in Section 1274(b)(2)(B) of the Code. The
failure by Executive or the Company to set forth in the Notice of Termination
any fact or circumstance which contributes to a showing of Good Reason or Cause
shall not waive any right of Executive or the Company, respectively, hereunder
or preclude Executive or the Company, respectively, from asserting such fact or
circumstance in enforcing Executive's or the Company's rights hereunder.
6. Obligations of the Company upon Termination.
(a) Termination by Executive for Good Reason; Termination by the
Company Other Than for Cause. If, during the Employment Period, the Company
shall terminate Executive's employment other than for Cause, or Executive shall
terminate employment for Good Reason, the Company shall pay to Executive in a
lump sum in cash within 30 days after the Date of
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Termination the aggregate of the following amounts (which shall be hereinafter
be referred to as the "Accrued Obligations"):
(i) The Executive's Base Salary through the Date of Termination
to the extent not theretofore paid.
(ii) The Executive's Base Salary for the period of time from the
Date of Termination to December 31, 2006.
(iii) The higher of (I) the Recent Annual Bonus or (II) the
Annual Bonus payable for 2006 (computed as if Executive were employed through
the end of the Employment Period), including any bonus or portion thereof which
has been earned but deferred.
(iv) Any accrued vacation pay to the extent not theretofore paid.
(v) Unless Executive has elected a different payout date in a
prior deferral election, any compensation previously deferred by Executive
(together with any accrued interest or earnings thereon) to the extent not
theretofore paid.
(vi) To the extent not theretofore paid or provided, the Company
shall timely pay or provide to Executive any other amounts or benefits required
to be paid or provided or which Executive is eligible to receive under any plan,
program, policy or practice or contract or agreement of the Company and its
affiliated companies (such other amounts and benefits shall be hereinafter
referred to as the "Other Benefits").
(b) Death. If Executive's employment is terminated by reason of
Executive's death during the Employment Period, except as otherwise specifically
provided herein, Executive's estate or beneficiaries shall be entitled to all
payments (other than base salary) and benefits that would accrue to Executive if
he remained alive and retired on December 31, 2006. Notwithstanding the above,
any life insurance or other death benefits shall be payable under the terms of
the applicable benefit plan, and no benefits provided under this subsection
shall be duplicative. (As an example of the foregoing, death benefits under the
Company's 401(k) plan, equal to the Executive's account balance, shall be
payable, but the Executive's estate or beneficiary shall not be entitled to
collect the account balance a second time as if Executive were still alive.)
This subsection shall not apply to the SERP, the Company's qualified defined
benefit pension plan, or any similar plan that has a death benefit.
Notwithstanding the above, benefits payable upon death shall not be delayed for
six months merely because such benefit would be delayed for a specified employee
if Executive were alive.
(c) Cause; Other than for Good Reason. If Executive's employment shall
be terminated before the end of the Employment Period, by the Company for Cause
or by the Executive other than for Good Reason, this Agreement shall terminate
without further obligations to Executive other than the obligation to pay to
Executive (i) his Annual Base Salary through the Date of Termination, (ii) the
amount of any compensation previously deferred by Executive, and (iii) Other
Benefits, in each case to the extent theretofore unpaid. All obligations under
this subsection shall be paid to Executive in a lump sum in cash within 30 days
of the Date of Termination.
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(d) Modifications to comply with Code Section 409A. Effective January
1, 2005, the portion of the Accrued Obligations listed in Section 6(a)(v), if
payable under Subsections 6(a) or (c) above, shall not be payable within 30 days
of the Date of Termination, but rather shall be payable in accordance with the
terms of the applicable plans or agreements giving rise to the obligations,
provided however that if such plans or agreements do not specify a time and
manner of payment, then such obligations shall be paid in a lump sum in cash
within 30 days after Separation from Service (or, if Executive is a Specified
Employee, within 30 days after the 409A Date).
7. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or
limit Executive's continuing or future participation in any plan, program,
policy or practice provided by the Company or any of its affiliated companies
and for which Executive may qualify, nor, subject to Section 13(f), shall
anything herein limit or otherwise affect such rights as Executive may have
under any contract or agreement with the Company or any of its affiliated
companies. Amounts which are vested benefits or which Executive is otherwise
entitled to receive under any plan, policy, practice or program of or any
contract or agreement with the Company or any of its affiliated companies at or
subsequent to the Date of Termination shall be payable in accordance with such
plan, policy, practice or program or contract or agreement except as explicitly
modified by this Agreement.
8. Full Settlement; No Mitigation. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against
Executive or others. In no event shall Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to Executive under any of the provisions of this Agreement and such amounts
shall not be reduced whether or not Executive obtains other employment.
9. Costs of Enforcement. The Company agrees to pay as incurred, to the full
extent permitted by law, all legal fees and expenses which Executive may
reasonably incur as a result of any contest (regardless of the outcome thereof)
by the Company, Executive or others of the validity or enforceability of, or
liability under, any provision of this Agreement or any guarantee of performance
thereof (including as a result of any contest by 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 Code. Executive shall also be entitled to be paid all
reasonable legal fees and expenses, if any, incurred in connection with any tax
audit or proceeding to the extent attributable to the application of Section
4999 of the Code to any payment or benefit hereunder. Such payments shall be
made within five (5) business days after delivery of Executive's respective
written requests for payment accompanied with such evidence of fees and expenses
incurred as the Company reasonably may require.
10. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary notwithstanding and
except as set forth below, in the event it shall be determined that any payment
or distribution by the Company to or for the benefit of Executive (whether paid
or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise, but determined without regard to any additional payments
required under this Section 10) (a "Payment") would be subject to the excise tax
imposed by Section 4999 of the Code or any interest or penalties are incurred by
Executive with respect to
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such excise tax (such excise tax, together with any such interest and penalties,
are hereinafter collectively referred to as the "Excise Tax"), then Executive
shall be entitled to receive an additional payment (a "Gross-Up Payment") in an
amount such that after payment by Executive of all taxes (including any interest
or penalties imposed with respect to such taxes), including, without limitation,
any income taxes (and any interest and penalties imposed with respect thereto)
and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of
the Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
(b) Subject to the provisions of Section 10(c), all determinations
required to be made under this Section 10, including whether and when a Gross-Up
Payment is required and the amount of such Gross-Up Payment and the assumptions
to be used in arriving at such determination, shall be made by Ernst & Young LLP
or such other certified public accounting firm as may be designated by Executive
(the "Accounting Firm") which shall provide detailed supporting calculations
both to the Company and Executive within 15 business days of the receipt of
notice from Executive that there has been a Payment, or such earlier time as is
requested by the Company. In the event that the Accounting Firm is serving as
accountant or auditor for the individual, entity or group effecting the Change
of Control, Executive shall appoint another nationally recognized accounting
firm to make the determinations required hereunder (which accounting firm shall
then be referred to as the Accounting Firm hereunder). All fees and expenses of
the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment,
as determined pursuant to this Section 10, shall-be paid by the Company to
Executive within five days of the receipt of the Accounting Firm's
determination. Notwithstanding the above, in no event will any Gross-Up Payment
be made before Separation from Service (or, if Executive is a Specified
Employee, the 409A Date). Any determination by the Accounting Firm shall be
binding upon the Company and Executive. As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the initial determination
by the Accounting Firm hereunder, it is possible that Gross-Up Payments which
will not have been made by the Company should have been made ("Underpayment"),
consistent with the calculations required to be made hereunder. In the event
that the Company exhausts its remedies pursuant to Section 10(c) and Executive
thereafter is required to make a payment of any Excise Tax, the Accounting Firm
shall determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to or for the benefit of
Executive.
(c) Executive shall notify the Company in writing of any claim by the
Internal Revenue Service that, if successful, would require the payment by the
Company of the Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than ten business days after Executive is informed in
writing of such claim and shall apprise the Company of the nature of such claim
and the date on which such claim is requested to be paid. Executive shall not
pay such claim prior to the expiration of the 30-day period following the date
on which it gives such notice to the Company (or such shorter period ending on
the date that any payment of taxes with respect to such claim is due). If the
Company notifies Executive in writing prior to the expiration of such period
that it desires to contest such claim, Executive shall:
(i) give the Company any information reasonably requested by the
Company relating to such claim,
(ii) take such action in connection with contesting such claim as
the Company shall reasonably request in writing from time to time, including,
without limitation,
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accepting legal representation with respect to such claim by an attorney
reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order
effectively to contest such claim, and
(iv) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation of the foregoing provisions of
this Section 10(c), the Company shall control all proceedings taken in
connection with such contest and, at its sole option, may pursue or forgo any
and all administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim and may, at its sole option, either
direct Executive to pay the tax claimed and xxx for a refund or contest the
claim in any permissible manner, and Executive agrees to prosecute such contest
to a determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs Executive to pay such
claim and xxx for a refund, the Company shall advance the amount of such payment
to Executive, on an interest-free basis and shall indemnify and hold Executive
harmless, on an after-tax basis, from any Excise Tax or income tax (including
interest or penalties with respect thereto) imposed with respect to such advance
or with respect to any imputed income with respect to such advance; and further
provided that any extension of the statute of limitations relating to payment of
taxes for the taxable year of Executive with respect to which such contested
amount is claimed to be due is limited solely to such contested amount.
Furthermore, the Company's control of the contest shall be limited to issues
with respect to which a Gross-Up Payment would be payable hereunder and
Executive shall be entitled to settle or contest, as the case may be, any other
issue raised by the Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by Executive of an amount advanced by the
Company pursuant to Section 10(c), Executive becomes entitled to receive any
refund with respect to such claim, Executive shall (subject to the Company's
complying with the requirements of Section 10(c)) promptly pay to the Company
the amount of such refund (together with any interest paid or credited thereon
after taxes applicable thereto). If, after the receipt by Executive of an amount
advanced by the Company pursuant to Section 10(c), a determination is made that-
Executive shall not be entitled to any refund with respect to such claim and the
Company does not notify Executive in writing of its intent to contest such
denial of refund prior to the expiration of 30 days after such determination,
then such advance shall-be forgiven and shall not be required to be repaid and
the amount of such advance shall offset, to the extent thereof, the amount of
Gross-Up Payment required to be paid.
11. Confidential Information. Executive shall hold in a fiduciary capacity
for the benefit of the Company all secret or confidential information, knowledge
or data relating to the Company or any of its affiliated companies, and their
respective businesses, which shall have been obtained by Executive during
Executive's employment by the Company or any of its affiliated companies
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and which shall not be or become public knowledge (other than by acts by
Executive or representatives of Executive in violation of this Agreement). After
termination of Executive's employment with the Company, Executive shall not,
without the prior written consent of the Company or as may otherwise be required
by law or legal process, communicate or divulge any such information, knowledge
or data to anyone other than the Company and those designated by it. In no event
shall an asserted violation of the provisions of this Section 11 constitute a
basis for deferring or withholding any amounts otherwise payable to Executive
under this Agreement.
12. Successors.
(a) This Agreement is personal to Executive and without the prior
written consent of the Company shall not be assignable by Executive otherwise
than by will or the laws of descent and distribution. This Agreement shall inure
to the benefit of and be enforceable by Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
13. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of Alabama, without reference to principles of
conflict of laws. The captions of this Agreement are not part of the provisions
hereof and shall have no force or effect. This Agreement may not be amended or
modified otherwise than-by a written agreement executed by the parties hereto or
their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in writing
and shall be given by hand delivery to the other party or by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to Executive: [omitted]
If to the Company: Regions Financial Corporation
P. O. Xxx 00000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
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Any notice provided in electronic form, such as e mail or fax, shall be valid
notice if actually received.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(d) The Company may withhold from any amounts payable under this
Agreement such Federal, state, local or foreign taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(e) Executive's or the Company's failure to insist upon strict
compliance with any provision of this Agreement or the failure to assert any
right Executive or the Company may have hereunder, including, without
limitation, the right of Executive to terminate employment for Good Reason
pursuant to Section 5(c)(i)-(v) of this Agreement, shall not be deemed to be a
waiver of such provision or right or any other provision or right of this
Agreement.
(f) Executive and the Company acknowledge that, except as may
otherwise be provided under any other written agreement between Executive and
the Company, the employment of Executive by the Company is "at will." From and
after the Effective Date this Agreement shall supersede any other agreement
between the parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, Executive has hereunto set Executive's hand and,
pursuant to the authorization from its Board of Directors, the Company has
caused these presents to be executed in its name on its behalf, all as of the
day and year first above written.
XXXXXXX X. XXXXXXX
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Date: October 24, 2006
REGIONS FINANCIAL CORPORATION
By: /s/ Xxxxx Xxxxxx
------------------------------------
Its: EVP & Director of Corporate
-----------------------------------
Human Resources
-----------------------------------
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