EXHIBIT 10.2
AMENDMENT TO
SUPPLEMENTAL RETIREMENT AGREEMENTS
THIS AMENDMENT TO SUPPLEMENTAL RETIREMENT AGREEMENTS, dated and effective as of
September 27, 2006 (this "Amendment"), is adopted by Golden West Financial
Corporation, a Delaware corporation ("GDW"), for the benefit of those
individuals who are party to a supplemental retirement agreement with GDW (each
an "Employee").
RECITALS
A. GDW and each of the Employees are parties to a supplemental retirement
agreement, as may have been amended prior to the date of this Amendment (the
"Agreements").
B. On May 7, 2006, GDW entered into an Agreement and Plan of Merger (the "Merger
Agreement") with Wachovia Corporation ("WB"), pursuant to which agreement it is
contemplated that GDW and a subsidiary of WB will merge (the "Merger"). The time
the Merger becomes effective (as determined in accordance with Section 2.03 of
the Merger Agreement) is referred to herein as the "Effective Time."
C. The Merger Agreement expressly contemplates that GDW may amend the Agreements
as set forth below, and the successors to GDW shall remain obligated under and
be bound by the terms of the Agreement as amended herein.
AMENDED TERMS
NOW, THEREFORE, in consideration of the foregoing and other good and valuable
consideration, GDW hereby amends the terms of each of the outstanding Agreements
as follows:
1. DEFINITIONS. For purposes of this Amendment:
(a) "Cause" shall mean: (i) the continued failure of the Employee to
perform substantially his or her duties with the employer (other than
any such failure resulting from incapacity due to disability); (ii)
the engaging by the Employee in illegal conduct or gross misconduct in
connection with the performance of his or here duties with Wachovia
(as defined below); or (iii) the conviction of or plea of guilty or
nolo contendere to a charge of commission of a felony; provided, that,
in the case of an event described in clause (i), Wachovia has provided
the Employee with written notice and the Employee has not cured such
event within a reasonable time period after receipt of such notice.
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(b) "Disabled" shall mean the Employee being unable to perform his or her
duties with Wachovia on a full-time basis for 130 business days during
any consecutive twelve month period as a result of incapacity due to
mental or physical illness which is determined to be total and
permanent by a physician selected by Wachovia and acceptable to the
Employee or the Employee's legal representative.
(c) "Good Reason" shall mean any of the following events, in the absence
of written consent of the Employee: (i) a diminution of the Employee's
position, duties or responsibilities from the Employee's position,
duties or responsibilities (other than immaterial changes after the
Effective Time) as in effect immediately prior to the Effective Time,
excluding for this purpose an isolated, insubstantial and inadvertent
action not taken in bad faith and which is remedied by Wachovia
promptly after receipt of written notice thereof given by the
Employee; (ii) a reduction in the Employee's base salary or bonus
(including commission based compensation) opportunity from that which
is in effect immediately prior to the Effective Time; or (iii) the
relocation of the Employee's principal place of employment to any
location more than 35 miles from the Employee's principal place of
employment immediately prior to the Effective Time.
(d) "Wachovia" shall mean WB or any of its subsidiaries, including without
limitation any former subsidiary of GDW, employing, without any break
in the Employee's service after the Merger, the Employee.
2. AMENDED VESTING PERCENTAGES. Commencing at the Effective Time, the vesting
schedule(s) of then unvested portion(s) of the Principal Sum (as set forth in
the applicable Agreement) shall be amended such that vesting shall occur at a
rate that is at least 2.5 times faster than the originally specified vesting
schedule(s) such that the unvested portion at the Effective Time of an
Employee's Principal Sum that otherwise would have taken five years to vest will
vest in two years.
3. IMMEDIATE VESTING UPON DISABILITY. If, at any time after the Effective Time,
the Employee becomes Disabled, then any remaining unvested portion(s) of the
Principal Sum shall vest in full effective immediately as of such date the
Employee becomes Disabled.
4. IMMEDIATE VESTING UPON TERMINATION OTHER THAN FOR CAUSE OR FOR GOOD REASON.
If, during the four-year period after the Effective Time, Employee's employment
with Wachovia is terminated (i) by Wachovia for a reason other than for Cause,
or (ii) by the Employee for Good Reason, then any remaining unvested portion(s)
of the Principal Sum shall vest in full effective immediately as of such date of
termination.
5. WITHHOLDING. All distributions made pursuant to the Agreement shall be
subject to withholding of all required federal, state and local income and
employment/payroll taxes (including FICA taxes), and all such distributions
shall be net of such tax withholding. In addition, amounts vesting pursuant to
the Agreement, as amended hereby, shall be subject to withholding of all
required employment/payroll taxes
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(including FICA taxes) in the year in which such amounts vest. Any required
withholding will be collected from "other earnings" of the Employee. In the
absence of "other earnings" sufficient to satisfy such withholding, the Employee
shall remit such amounts required to satisfy such withholding obligations to GDW
or its successor within 10 business days of the Employee's receipt of any such
notice and request for payment.
6. NO OTHER CHANGES. Except as expressly provided above, this Amendment does not
amend, modify or alter any other term or condition set forth in the Agreement,
which shall remain in full force and effect. Except to the extent necessary to
comply with final regulations implementing Section 409A of the Internal Revenue
Code of 1986, as amended, no provision of this Amendment shall be modified,
waived, discharged or amended unless the modification, waiver, discharge or
amendment is agreed to in writing and signed by the Employee and by an
authorized officer of GDW or its successor.
7. ENFORCEABILITY. This Amendment shall constitute a binding and enforceable
agreement between GDW and its successors and each of the Employees as if they
were a party hereto. This Amendment shall inure to the benefit of and be
enforceable by the Employees and their respective successors and assigns.
8. CONTINGENT EFFECT/TERMINATION OF THIS AMENDMENT. The provisions set forth in
this Amendment are contingent upon the Merger becoming effective. In the event
that the Merger is not completed, this Amendment shall be of no further force
and effect and shall automatically terminate. This Amendment shall not apply to
a supplemental retirement agreement between GDW and an individual whose
employment with GDW or one of its affiliates terminates prior to the Effective
Time.
GOLDEN WEST FINANCIAL CORPORATION
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Chief Executive Officer
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