SENIOR EXECUTIVE RETIREMENT AGREEMENT
THIS SENIOR EXECUTIVE RETIREMENT AGREEMENT, made and entered into as
of the 23rd day of April, 1999, 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 April 23, 1999.
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 means the sum of
the base salary paid to the Executive by the Corporation, plus any incentive
compensation paid to the Executive which is approved by the Committee as
compensation to be recognized for purposes of this Agreement. The compensation
of the Executive shall also include: (a) any salary reduction amounts which the
Executive elects to have contributed 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 with
the Corporation. 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 February 1, 2001.
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 Agreement 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 will 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 (2.5%) 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.
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
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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 last 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 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
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material 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.
(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
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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.
(l) 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,
January 27, 1995 and October 25, 1996.
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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: _______________________________________
Chief Executive Officer
Attest:
_________________________________
Secretary
[Corporate Seal]
_______________________________ (SEAL)
Xxxxxx X. Dry
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