EXHIBIT 10.11
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, made as of the ______ day of ____________,
199_, by and between WACHOVIA CORPORATION (the "Corporation") and ___________
(the "Executive");
R E C I T A L S:
The Corporation desires to secure the services of the Executive in its
behalf or in behalf of one or more of its subsidiaries for which the
Executive may render services hereunder from time to time, in accordance with
the terms and conditions set forth herein. In addition, the Corporation desires
to provide the Executive with an incentive to remain in the service of the
Corporation or one or more of its subsidiaries by granting to the Executive
compensation security as set forth herein should his employment be terminated
by the Corporation without cause during the term of this Agreement.
NOW, THEREFORE, the Corporation and the Executive hereby mutually agree
as follows:
1. Employment. The Executive shall devote his working time exclusively to
the performance of such services for the Corporation or one or more of its
subsidiaries as may be assigned to him by the Corporation from time to time,
and shall perform such services faithfully and to the best of his ability.
Such services shall be rendered in a senior management or executive capacity
and shall be of a type for which the Executive is suited by background and
training. References herein to services rendered for the Corporation and
compensation and benefits payable or provided by the Corporation shall
include services rendered for and compensation and benefits payable or
provided by an subsidiary of the Corporation.
2. Term of Agreement. The term of this Agreement shall commence on the
date hereof and shall continue in effect until December 31, 199_; provided,
however, that commencing on the first anniversary of this Agreement, and each
anniversary thereafter, the term of this Agreement shall automatically be
extended for one additional year unless at least 90 days prior to any
such anniversary date either party shall notify the other in writing that it
does not wish to extend the term of this Agreement beyond the then applicable
expiration date. In no event, however, may the term of this Agreement extend
beyond the Executive's sixtieth birthday. References herein to the "term" of
this Agreement shall mean the original term plus any continuation as provided
in this Section 2. The "term" shall not be deemed to refer to the
Compensation Period described in Section 4.
3. Termination of Employment by the Corporation. The Corporation may
terminate the employment of the Executive at any time for any reason;
provided, that except as set forth in Sections 6 and 7, the Corporation will
provide the Executive with Compensation Continuance to the extent described
in Section 4 if the Executive's employment is involuntarily terminated. The
Executive's employment shall be deemed to be involuntarily terminated if he
is terminated by the Corporation for any reason other than for "cause" as
defined in Section 6, or if he voluntarily terminates employment within six
months after: (a) his base salary is reduced below its level in effect on the
date hereof without the Executive's consent, or (b) the Corporation amends
the [Executive or Supplemental] Retirement Agreement between the Corporation
and the Executive dated ________________ (the "Retirement Agreement")
without the Executive's consent, and such amendment reduces benefits to
which the Executive would have been entitled had such amendment not been
made, or (c) the duties assigned to the Executive are not of the status and
type described in Section 1 and the Executive has not consented thereto. The
Executive shall be deemed to have consented to any reduction described in
(a) or (b), [or assignment described in (c),] unless he shall object thereto
in writing within thirty days after he receives notice thereof.
4. Compensation Continuance. If the Executive's employment hereunder is
involuntarily terminated as described in Section 3, he will be entitled to
receive the cash compensation and benefits described in (a), (b) and (c)
below (herein, "Compensation Continuance") for the period beginning with the
date of such involuntary termination and ending with the earlier of (i) the
third anniversary of the date of such termination, or (ii) the Normal
Retirement Date of the Executive as defined in the Retirement Agreement (such
period is referred to herein as the "Compensation Period"). The duration of
the Compensation Period shall be affected by the fact that the term of this
Agreement otherwise would end before such Period expires. The cash
compensation and benefits are as follows:
(a) Cash Compensation. The amount of cash compensation to be received
monthly during the Compensation Period shall equal one-twelfth of the
sum of (i) the Executive's highest annual rate of salary from the
Corporation in effect during the 12-month period prior to his involuntary
termination, plus (ii) the amount equal to the average of the annual
amounts, if any, awarded to the Executive under the Corporation's Senior
Management Incentive Plan for the three consecutive calendar years
next preceding the year of such termination, plus (iii) the average of
any annual contributions by the Corporation (excluding participant
contributions) in behalf of the Executive under the Retirement Savings
and Profit-Sharing Plan of Wachovia Corporation and the Wachovia
Corporation Retirement Savings and Profit-Sharing Benefit Equalization
Plan for the three consecutive
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calendar years preceding the year of such termination. Each monthly
payment of such cash compensation shall have deducted therefrom all
payroll taxes and withholdings required by law.
(b) Employee Benefits. During the Compensation Period the Executive
shall be carried on the payroll of the Corporation, and shall be deemed
to be continuing in the employment of the Corporation for the purpose of
applying and administering employee benefit plans for the Corporation
(other than any tax-qualified retirement plans) and individual contracts
between the Corporation and the Executive providing supplemental or
equalization payments or benefits with respect to the Executive. The
Executive shall participate in any changes during the Compensation
Period in benefit plans or programs applicable generally to employees of
the Corporation, or to a class of employees which includes senior
executives of the Corporation, but shall not have any right or option to
participate in any such plan or program in which he was not a
participant immediately prior to his involuntary termination of
employment. Any individual contract between the Corporation and the
Executive in effect at the time of his involuntary termination of
employment may be terminated or amended by the Corporation to the extent
permitted by the terms of such contract; provided, that during the
Compensation Period the Corporation shall not, without the written
consent of the Executive or except to the extent required by law, make
any amendment to or terminate any one or more of the following
individual contracts or plans as applied to the Executive: (i) the
Retirement Agreement; (ii) the Wachovia Corporation Retirement Savings
and Profit-Sharing Benefit Equalization Plan; and (iii) the Wachovia
Corporation Retirement Income Benefit Enhancement Plan. The Corporation
shall have no obligation to the Executive to make any change or
improvement in any such contract during the Compensation Period even if
the Corporation shall make changes or improvements during such period in
similar contracts, if any, with other senior executives of the
Corporation.
(c) Acceleration of Stock Options and Restricted Awards. Immediately
upon termination of the Executive's employment, all options previously
granted to the Executive and outstanding on the date of termination to
acquire shares of common stock of the Corporation shall become fully
vested and exercisable (or subject to surrender) in full and all
restricted awards shall be deemed to be earned in full; provided, that
restricted awards based upon performance criteria or a combination
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of performance criteria and continued service shall be deemed to be
earned in accordance with the terms, conditions and procedures of the
plan or plans pursuant to which any such restricted awards were granted.
In the event that the Executive shall engage in full-time employment permitted
hereunder for another employer or on a self-employed basis during the
Compensation Period, his employment with the Corporation shall be deemed to
have terminated for purposes of Section 4(b) as of the date he begins such full-
time employment, but the payments in Section 4(a) shall continue for the
remainder of the Compensation Period and the rights under Section 4(c) shall be
applicable, in each case subject to the provisions of Section 7.
5. Voluntary Termination of Employment by the Executive. The Executive
reserves the right to terminate his employment voluntarily at any time for any
reason following at least six months' notice to the Corporation. If such notice
shall be given, this Agreement shall terminate as of the effective date of
termination as set forth in such notice (or the date six months from the date of
receipt by the Corporation of such notice, if no effective date shall be set
forth therein), unless sooner terminated as provided in Section 3, 6 or 8. The
Executive shall be entitled to any form of Compensation Continuance as a
result of such voluntary termination.
6. Termination for Cause. This Agreement shall immediately be terminated
and neither party shall have any obligation hereunder (including but not limited
to any obligation on the part of the Corporation to provide Compensation
Continuance) if the Executive's employment is terminated for "cause."
Termination for cause shall occur when termination results from the
Executive's (a) criminal dishonesty, (b) refusal to perform his duties
hereunder on substantially a full-time basis, (c) refusal to act in accordance
with any specific substantive instructions of the Chief Executive Officer
or the Board of Directors of the Corporation, or (d) engaging in conduct which
could be materially damaging to the Corporation without a reasonable good faith
belief that such conduct was in the best interests of the Corporation. The
determination of whether a termination is for cause shall be made by the
Compensation, Nominating and Organization Committee of the Board of Directors
of the Corporation (the "Committee"), and such determination shall be final
and conclusive on the Executive and all other persons affected thereby.
7. Executive's Obligation; Early Termination of Compensation Period.
(a) During the Compensation Period, the Executive shall provide
consulting services to the Corporation at such time
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or times as the Corporation shall reasonably request, subject to
appropriate notice and to reimbursement by the Corporation of all
reasonable travel and other expenses incurred and paid by the Executive.
In the event the Executive shall engage in full-time employment
permitted hereunder during the Compensation Period for another
employer or on a self-employed basis, his obligation to provide the
consulting services hereunder shall be limited by the requirements of
such employment.
(b) The Executive shall not disclose to any other person any material
information or trade secrets concerning the Corporation or any of its
subsidiaries at any time during or after the Compensation Period. The
Executive will at all times refrain from taking any action or making any
statements, written or oral, which are intended to and do disparage the
business, goodwill or reputation of the Corporation or any of its
subsidiaries, or their respective directors, officers, executives or
other employees, or which could adversely affect the morale of employees
of the Corporation or any subsidiaries.
(c) The Executive shall not, without the Corporation's written consent,
engage in competitive employment at any time during the Compensation
Period. The Executive shall be deemed to engage in competitive
employment if he shall render services as an employee, officer,
director, consultant or otherwise, for any employer which conducts
a principal business or enterprise that competes directly with the
Corporation or affiliate of the Corporation.
(d) In the event that the Executive shall refuse to provide consulting
services in accordance with paragraph (a), or shall materially violate
terms and conditions of paragraph (b) or (c), the Corporation may, at
its election, terminate the Compensation Period and Compensation
Continuance to the Executive. The Corporation may also initiate any
form of legal action it may deem appropriate seeking damages or
injunctive relief with respect to any material violations of
paragraph (a), (b) or (c).
(e) The Committee shall be responsible for determining whether the
Executive shall have violated this Section 7, and all such determinations
of the Executive, the Committee will provide an advance
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opinion as to whether a proposed activity would violate the provisions
of paragraph (c).
8. Death and Disability. In the event that, during the term of this
Agreement or during the Compensation Period, the Executive shall die or shall
become entitled to benefits under the Corporation's Long-Term Disability Plan,
this Agreement shall thereupon terminate and neither the Executive nor any other
Person shall have any further rights or benefits hereunder (including anyrights
to Compensation Continuance).
9. Other Severance Benefits. Except as otherwise provided in this
Agreement, the Executive shall not be entitled to any form of severance
benefits, including benefits otherwise payable under any of the Corporation's
regular severance plans or policies, irrespective of the circumstances of his
termination of employment. The Executive agrees that the payments and benefit
provided hereunder, subject to the terms and conditions hereof, shall be in full
satisfaction of any rights which he might otherwise have or claim by operation
of law, by implied contract or otherwise, except for rights which he may have
under the Corporation.
10. Waiver of Claims. In consideration of the obligations of the
Corporation hereunder, the Executive unconditionally releases the Corporation,
its 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, including but not limited to (a) any
claims under federal, state or local laws prohibiting discrimination, including
without limitation the Age Discrimination in Employment Act of 1967, as
amended, or (b) 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 executive hereof,
and that he may revoke this Agreement at any time within seven days following
the execution hereof.
11. Notices. All notices hereunder shall be in writing and deemed properly
given if delivered by hand and receipted or if mailed by registered mail,
return receipt requested. Notices to the Corporation shall be directed to the
Secretary of the Corporation with a copy directed to the Chief Executive
Officer. Notices to the Executive shall be directed to his last known address.
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12. Miscellaneous.
(a) The waiver, whether express or implied, by either party of a
violation of any of the provisions of this Agreement shall not operate or
be construed as a waiver of any subsequent violation of any such provision.
(b) No right, benefit or interest hereunder shall be subject to
assignment, encumbrance, charge, pledge, hypothecation or set off in
respect of any claim, debt or obligation, or similar process.
(c) This Agreement may not be amended, modified or canceled except
by written agreement of the parties.
(d) In the event that any provision or portion of this Agreement shall
be determined to be invalid or unenforceable for any reason, the remaining
provisions of this Agreement shall remain in full force and effect to the
fullest extent permitted by law.
(e) This Agreement shall be binding upon and inure to the benefit of
the Executive and the Corporation, and their respective heirs, successorsand
assigns.
(f) No benefit or promise hereunder shall be secured by any specific
assets of the Corporation. The Executive shall have only the rights of an
unsecured general credit of the Corporation in seeking satisfaction of such
benefits or promises.
(g) This Agreement shall be governed by the construed in accordance
with the laws of the State of North Carolina.
(h) This Agreement sets forth the entire agreement and understanding
of the parties hereto with respect to the matters covered hereby.
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IN WITNESS WHEREOF, this Agreement has been executed by or in behalf
of the parties hereto as of the date first above written.
WACHOVIA CORPORATION
By: _______________________________
Chief Executive Officer
Attest:
----------------------------
Secretary
[Corporate Seal]
______________________________(Seal)
Executive
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