EXHIBIT 10-A
AMSOUTH BANCORPORATION
LIFE INSURANCE AGREEMENT
1. RECITALS
WHEREAS, X. Xxxx Xxxxxx (the "Participant) has been and continues to be a
valued key employee of AmSouth Bancorporation (the "Company"), and
WHEREAS, the Company has agreed to provide the Participant with an
insurance death benefit payable on the death of the last survivor of the
Participant and Xxxxx X. Xxxxxx, the Participant's spouse ("His Spouse");
and
WHEREAS, in exchange for such death benefit, the Participant has agreed to
waive his rights to participate in certain group term life insurance plans
maintained by the Company; and
WHEREAS, the Participant has agreed that he and His Spouse will provide
any medical history information to the insurance company or submit to any
medical exams or tests as required by the insurance company for the
coverage to be issued; and
WHEREAS, the Participant has agreed that the right to designate a
beneficiary for such insurance death benefit, as well as the ability to
assign such right, shall be irrevocably assigned from inception to Xxxxxxx
X. Xxxxxx and Xxxxxx X. Xxxxxx (the "Assignees").
NOW, THEREFORE, in consideration of the promises and representations of
the parties as herein recited, and in recognition of other good and
valuable consideration, the receipt and sufficiency of which is
acknowledged, the Participant, by and through his Assignees, and the
Company hereby agree as follows, effective April 1, 1998.
2. DEFINITIONS
For purposes of this Agreement, the following terms have the meanings set
forth below:
2.01 ALTERNATIVE DEATH BENEFIT means a Company-paid death benefit
paid by the Company to each Assignee's beneficiary(ies)
pursuant to an Alternative Death Benefit Election made by an
Assignee under Section 7 of this Agreement.
2.02 ALTERNATIVE DEATH BENEFIT AMOUNT means an amount that, after
subtracting any Company federal, state, and local income tax
savings resulting from the deductibility of the payment for
corporate tax purposes, is equal to the Participant's
Coverage Amount. The
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Alternative Death Benefit Amount shall be determined at the
time the payment is to be made, based on the Company's
federal, state and local income tax rate (calculated at the
highest marginal tax rate then applicable to the Company,
but net of any federal deduction for state and local taxes)
at the time of the payment.
2.03 Alternative Death Benefit Election means an election made by
the Assignees pursuant to Section 7 of the Agreement.
2.04 Assignee means, with respect to one-half of the
Participant's Coverage Amount, Xxxxxxx X. Xxxxxx, and with
respect to the other one-half of the Participant's Coverage
Amount, Xxxxxx X. Xxxxxx, or the person or entity to which
an Assignee assigns his or her interest under the Agreement.
2.05 Change in Control means a change in control of the Company,
as such term is defined in the AmSouth Bancorporation
Employment Agreement for X. Xxxx Xxxxxx, as in effect from
time to time, or if none is in effect, the last such
agreement in effect;
2.06 Company means AmSouth Bancorporation.
2.07 Company Death Benefit means the portion of the Policy's
death benefit payable to Company as provided in Section 6.
2.08 Effective Date means April 1, 1998.
2.09 His Spouse means Xxxxx X. Xxxxxx
2.10 Insurer means American General Life Insurance Company.
2.11 Participant means X. Xxxx Xxxxxx.
2.12 Participant's Coverage Amount means the portion of the
Policy's death benefit payable to the beneficiary(ies) of
the Assignees, which shall equal an aggregate of $3,339,795.
2.13 Policy means the life insurance policy acquired on the lives
of the Participant and the Participant's spouse which is
subject to the terms of this Agreement, which is American
General Life Insurance Company policy number A10170987L.
2.14 Policy Owner means the Company.
2.15 Premium means the amount the Company is obligated to pay to
the Insurer with respect to the Policy.
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3. AMOUNT AND TYPE OF COVERAGE
3.01 Type of Policy and Coverage Amount. The Policy shall provide
for a Participant Coverage Amount of $3,339,795. The Policy
shall insure the Participant and His Spouse, with the death
benefit payable at the death of the last survivor of the
Participant and His Spouse.
3.02 Benefits Under Group Term Life Plan. In recognition of the
insurance coverage provided under this Agreement, the
Participant's coverage under the group term life plan
maintained by the Company shall be limited to $50,000, and
shall be paid for by the Company.
4. PAYMENT OF PREMIUMS
4.01 Company Payments. Within thirty (30) days after the initial
annual policy Premium is billed, the Company shall pay the
first annual Policy Premium of $40,887. Thereafter, the
Company shall pay an annual Policy Premium of $40,887 on
each of the next fourteen (14) Policy anniversary dates,
unless the Company's obligation to pay Premiums for the
Policy terminates pursuant to the provisions of this
Agreement; any such Premium shall be paid by the Company
within thirty (30) days of the Policy anniversary date. A
portion of the Policy Premium payable by the Company shall
be collected by the Company from the Participant, as
provided in Section 4.02.
4.02 Participant Payments. The Participant shall pay a portion of
the Policy Premium through semi-monthly payroll deducted
payments to the Company. For each pay period, the amount
payable by the Participant shall be determined by
multiplying the Participant's current annual base salary, as
then in effect, by 0.0003 and dividing the result by 2.
The Participant's semi-monthly contribution for the coverage
shall continue until the earliest to occur of: the
Participant's termination of employment with the Company;
the Participant's death; or, the termination of this
Agreement.
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4.03 Termination Events. The Company's obligation to pay Premiums
with respect to the Policy shall terminate:
a. Automatically upon the death of the last survivor of the
Participant and His Spouse; or
b. Upon the mutual written agreement of Company and the
Assignees.
5. POLICY OWNERSHIP
5.01 Ownership. The Company shall be the owner of the Policy and
shall be entitled to exercise the rights of ownership,
except that the following rights shall be exercisable by
each Assignee: (i) the right to designate the
beneficiary(ies) to receive payment of that portion of the
death benefit under such Policy equal to the Participant's
Coverage Amount unless there is an election for an
Alternative Death Benefit in effect; and (ii) the right to
assign any part or all of the Assignees' rights under the
policy to any person, entity or trust. The Company shall not
borrow from, hypothecate, withdraw cash value from,
surrender in whole or in part, cancel, or in any other
manner encumber the Policy without the prior written consent
of the Assignees. The Company shall not take any other
action with respect to the Policy that may reduce the
Participant's Coverage Amount without the prior written
consent of the Assignees.
5.02 Possession of Policy. The Company shall keep possession of
the Policy. The Company agrees to make the Policy available
to the Assignees or to the Insurer at such times, and on
such terms as the Company determines for the sole purposes
of endorsing or filing any change of beneficiary or
assignment on the Policy.
6. DEATH BENEFIT
Upon the death of the last survivor of the Participant and His Spouse, the
death benefit under the Policy shall be divided as follows:
a. The beneficiary(ies) of the Assignees shall be entitled to receive
the Participant's Coverage Amount.
b. The Company shall be entitled to receive as the Company Death
Benefit an amount equal to the excess, if any, of the Policy's death
benefit over the Participant's Coverage Amount.
The Company agrees to execute an endorsement to the Policy issued to it by
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the Insurer providing for the division of the Policy death benefit in
accordance with the provisions of this Section.
Notwithstanding the provisions of this Section, if the Policy death
benefit becomes payable while there is an Alternative Death Benefit
Election in effect pursuant to Section 7, then the entire Policy death
benefit shall be paid to the Company.
7. ALTERNATIVE DEATH BENEFIT ELECTION.
Each Assignee may elect an Alternative Death Benefit under this Agreement
in lieu of the insurance benefit provided under the Policy. Any such
election shall be filed with the Company in such form as may be prescribed
by the Company. The Alternative Death Benefit shall be paid by the Company
from the general funds of the Company, and shall not constitute an
insurance benefit. It shall be paid by the Company to each Assignee's
beneficiary(ies) at the time the Participant's insurance death benefit
would have been paid (at the death of the survivor of the Participant and
His Spouse). The amount of the payment shall be equal to the Alternative
Death Benefit Amount. As long as an Alternative Death Benefit Election is
in effect, the beneficiary(ies) of each Assignee shall receive only the
Alternative Death Benefit, and shall not be entitled to receive any
portion of any death benefits that would become payable under the Policy,
and the Assignees shall cooperate with Company in effecting a change of
beneficiary of the Policy to achieve such result. An Alternative Death
Benefit Election (or an election to revoke such an election) shall be
effective when any necessary documentation is submitted to and accepted by
the Insurer. The Company will promptly submit any required forms or
documents to the Insurer when an Alternative Death Benefit Election is
made or revoked.
8. CHANGE IN CONTROL
If there is Change in Control:
a. this Agreement and the Company's obligation to pay Policy Premiums
hereunder shall become irrevocable at the time of the Change in
Control;
b. the Company immediately shall transfer the ownership of the Policy to
an irrevocable trust to: (i) pay any Premiums projected to be payable
on the Policy after the Change in Control and (ii) pay any
Alternative Death Benefit that becomes payable under Section 7 of
this Agreement;
c. the Company immediately shall fund such irrevocable trust with an
amount sufficient to pay all necessary projected future Premiums for
the Policy; and
d. the provisions of Sections 4.02 and 4.03 shall continue to apply as
if there had been no Change in Control.
The occurrence of a Change in Control shall not preclude an Assignee from
thereafter making (or
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revoking) an Alternative Death Benefit Election pursuant to Section 7.
Notwithstanding the creation and funding of an irrevocable trust in
accordance with the provisions of this Section, the Company or its
successor shall continue to be responsible for the Premium costs
associated with the Policy and any Alternative Death Benefits payable
under Section 7, if such amounts are not paid by the trust for any reason,
or if the trust's assets become insufficient to pay any required amounts.
9. COMPANY DEFAULT
9.01 Company Default. A Company Default shall be deemed to have occurred
with respect to the Policy if the Company fails to pay a Premium on
the Policy as required under the terms of the Agreement within sixty
(60) days after the due date for such Premium, or if the Company
processes or attempts to process a policy loan, or a complete or
partial surrender, or a cash value withdrawal without prior written
approval from the Assignees.
9.02 Rights Under Company Default. In the event of a Company Default as
described in Section 9.01, the Assignees shall have the right to
require the Company to cure the Company Default by notifying the
Company in writing within sixty (60) days after the Company Default
occurs, or if later, within thirty (30) days after the Assignees
become aware of the Company Default. If the Company fails to cure
the Company Default within sixty (60) days after being notified by
the Assignees of the Company Default, the Assignees shall have the
right to require the Company to transfer its interest in the
Participant's Policy to the Assignees. The Assignees may exercise
this right by notifying the Company, in writing, within sixty (60)
days after the end of the sixty (60) day period following the
Assignees' notification to the Company of the Company Default. Upon
receipt of such notice, the Company shall immediately transfer its
rights in the Policy to the Assignees and the Company shall
thereafter have no rights with respect to such Policy. The
Assignees' failure to exercise their rights under this Section shall
not be deemed to release the Company from any of its obligations
under the Agreement, and shall not preclude the Assignees from
seeking other remedies with respect to the Company Default. Also,
the Assignees' failure to exercise their rights under this Section
will not preclude the Assignees from exercising such rights upon a
later Company Default.
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10. GOVERNING LAWS AND NOTICES
10.01 Governing Law. This Agreement shall be governed by and construed in
accordance with the substantive law of Alabama without giving effect
to the choice of law rules of Alabama.
10.02 Notices. All notices hereunder shall be in writing and sent by first
class mail with postage prepaid. Any notice to the Company shall be
addressed to the attention of the Human Resources Director, AmSouth
Bancorporation at the principal office of the Company at 0000 0xx
Xxxxxx Xxxxx, 0xx Xxxxx, Xxxxxxxxxx, XX 00000. Any notice to an
Assignee shall be addressed to the Assignee at the address following
such party's signature on this Agreement. Any party may change its
address by giving written notice of such change to the other parties
pursuant to this Section.
11. MISCELLANEOUS PROVISIONS
11.01 This Agreement shall not be deemed to constitute a contract of
employment between the Participant and the Company, nor shall any
provision restrict the right of the Company to discharge the
Participant, or to restrict the right of the Participant to
terminate services.
11.02 The masculine pronoun includes the feminine and the singular
includes the plural where appropriate for valid construction.
11.03 If the Participant or His Spouse commits suicide within two years of
the Policy issue, or if the Participant or His Spouse made any
material misstatement of information or nondisclosure of medical
history pertaining to the Policy issue and dies within two years of
the Policy issue, then no benefits shall be payable to the
beneficiary(ies) of the Assignees.
11.04 In the event of any inconsistency between the terms of this
Agreement and the terms of the Policy purchased hereunder, the terms
of the Policy shall be controlling as to the Participant, the
Assignees, a successor-in-interest (if any), and the beneficiary or
beneficiaries.
11.05 The terms and conditions of this Agreement shall inure to the
benefit of and bind the Company, the Participant, the Assignees and
their successors and representatives. The Company shall have the
right to absolutely and irrevocably assign its rights, title and
interest in a Policy without the consent of the Assignees.
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11.06 In the event that this Agreement is considered to be a welfare
benefit plan under the Employee Retirement Income Security Act of
1974, as amended, the named fiduciary responsible for administering
the Agreement shall be the Human Resources Division of AmSouth Bank
(the "Administrator").
11.07 Any claim for benefits under this Agreement shall be made to the
Administrator. If the Administrator denies the claim in whole or in
part, the Administrator shall, within thirty (30) days of receipt of
the claim, write a letter to the claimant setting forth the reasons
for denial with specific reference to provisions of the Agreement,
describing any additional material or information necessary for the
claimant to perfect the claim (explaining why such is needed), and
explaining the necessary steps for appeal. In the event there are
special circumstances delaying the Administrator's determination of
a claim, the Administrator shall notify the claimant in writing
within thirty (30) days explaining the special circumstances and
stating that an answer will be provided within thirty (30) days from
the date of such letter. If the claimant does not receive an answer
to his or her claim within thirty (30) days of filing or receipt of
such extension notice, whichever is later, the claim will be deemed
to have been denied and the claimant shall be entitled to proceed
with an appeal as if the claim was denied and such letter of denial
was received on such 30th day.
Any claimant may within sixty (60) days after receipt of the letter
referred to in the immediately preceding paragraph, appeal to the
Administrator and request a review of the denial of benefit with
opportunity to appear in person or, at claimant's option, to submit
his or her position in writing only. Appeals not timely filed shall
be barred. The claimant shall have the opportunity to submit written
or oral evidence and arguments in support of his or her claim. At
the hearing (or prior thereto upon five (5) business days written
notice to the Plan Administrator) the claimant or his or her
representative shall have an opportunity to review all documents in
the possession of the Administrator that are pertinent to the claim
at issue and to disallowance of the claim. The Administrator's
decision shall be made promptly, and shall not ordinarily be made
later than 60 days after the receipt of the request for review by
the Administrator. However, if special circumstances exist (such as
the need to hold a hearing) such decision shall be rendered as soon
as possible, but not later than 120 days after receipt of the
request for review. If a claimant does not receive a written
decision by such time, the claim, the denial of which was the basis
of the appeal, shall be deemed to have been finally denied.
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_______________________ ________________________
Signature Signature
Xxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxx
000 Xxx Xxxx Xxxx 000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
AMSOUTH BANCORPORATION
By:
__________________________________
Signature
Xxxxx X. Xxxxxx
----------------------------------
Name
SVP, Human Resources Administration
-----------------------------------
Title
Consent and Acknowledgment of Participant:
The undersigned Participant has read and understands the terms of this
Agreement, consents to the terms of this Agreement and agrees to be bound by and
subject to the terms of this Agreement to the same extent as if Participant had
been a party to this Agreement. Further, the Participant agrees that the
insurance benefits provided under this Agreement satisfy the Company's
obligation to provide insurance benefits pursuant to Section 4.5 of the
Employment Agreement between the Participant and the Company.
__________________________
X. Xxxx Xxxxxx
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