EXHIBIT 10.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, made as of the 29th day of
November, 1999, by and between WACHOVIA CORPORATION (the "Corporation") and X.
X. Xxxxx, Xx. (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 shall 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 "Continuation Benefits" as set forth below should his employment be
terminated under circumstances described herein for which Continuation Benefits
are provided.
NOW, THEREFORE, the Corporation and the Executive hereby
mutually agree as follows:
1. a. Employment. The Executive shall devote his working time
exclusively to the performance of such senior management duties 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 duties
faithfully and to the best of his ability. Such duties shall be of a
type for which the Executive is suited by background, experience and
training, in the Corporation's sole discretion. References herein to
duties performed for the Corporation and compensation and benefits
payable or provided by the Corporation shall include duties performed
for and compensation and benefits payable or provided by any subsidiary
of the Corporation. The Executive may participate in other business
activities, such as service on corporate, civic or charitable boards or
committees, with the permission of the Corporation, and such activities
shall be subject to the obligations in Section 7 below. The Executive
agrees to use his best reasonable efforts to avoid unnecessary conflict
between the Executive's duties to the Corporation and his pursuit of
other business or civic or charitable interests.
b. Base Salary. During the employment of the Executive, the
Executive shall receive an annual base salary ("Base Salary") at least
equal to the annual base salary in effect for the Executive on the date
of this Agreement. Base Salary shall be paid in accordance with the
Corporation's normal payroll practices (but not less frequently than
monthly). The Executive's Base Salary will be reviewed in accordance
with the Corporation's standard procedures and may be increased from
time to time consistent with such procedures. Effective as of the date
of any such increase, the Base Salary as so increased shall be
considered the new Base Salary for purposes of this Agreement, and may
not thereafter be reduced except with the express written consent of
the Executive.
c. Expenses. During the employment of the Executive, the
Executive shall be entitled to receive prompt reimbursement for all
reasonable employment expenses incurred by the Executive in accordance
with the policies, practices and procedures of the Corporation at the
time the expense is incurred.
2. Term of Agreement. The term of this Agreement shall
commence on the date hereof and shall continue in effect until November
29, 2002; provided, however, that commencing on the first anniversary
of this Agreement, and each anniversary thereafter, the term of this
Agreement shall be automatically extended for one additional year
unless at least 90 days before any such anniversary date either party
shall notify the other in writing that it will not extend the term of
this Agreement beyond the then applicable expiration date. Notice by
the Corporation of its intention not to extend the term of this
Agreement and its expiration at the end of the term shall not
constitute termination of employment and the Executive shall not be
entitled to Continuation Benefits (as defined in Section 4 below). In
no event, however, may the term of this Agreement extend beyond the
Executive's sixty-second birthday. References herein to the "term"
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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 shall provide the Executive with Continuation Benefits
as set forth in Section 4 if the Executive's employment is
involuntarily terminated during the term of the Agreement. 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 because:
(a) his Base Salary is reduced without the
Executive's consent, or
(b) the Corporation amends the Senior Executive
Retirement Agreement between the Corporation and the Executive
(the "Retirement Agreement") without the Executive's consent,
and such amendment materially reduces the benefits to which
the Executive would have been entitled had such amendment not
been made, or
(c) the duties and responsibilities assigned to the
Executive as of the date of this Agreement are materially
reduced and the Executive does not consent to such material
reduction of duties.
In order for voluntary termination pursuant to (a), (b) and (c) of this
Section to be effective: (1) the Executive must give written notice to
the Corporation within sixty (60) days of an event specified in clauses
(a), (b) or (c) above indicating that the Executive intends to
terminate employment under this Section and which describes the reasons
for such termination, (2) the Executive's voluntary termination under
this Section must occur within ninety (90) days after an event
described in clause (a), (b) or (c) of this Section, or within ninety
(90) days after the last in a series of such events, and (3) the
Corporation must have failed to remedy the event described in clause
(a), (b) or (c) of this Section, as the case may be, within thirty (30)
days after receiving the Executive's written notice. If the Corporation
so remedies the event described in clause (a), (b) or (c) of this
Section, the Executive may not terminate employment under this Section
on account of the event specified in the Executive's notice.
4. Continuation Benefits. 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, "Continuation Benefits")
for the period beginning with the date of such involuntary termination
and ending with the third anniversary of the date of such termination
(such period, is referred to herein as the "Compensation Period"). The
duration of the Compensation Period shall not be affected by the fact
that the term of this Agreement otherwise would end before such Period
expires. The Continuation 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 Base Salary from the Corporation in
effect during the 12-month period before his involuntary
termination, plus (ii) an amount equal to the average of the
annual incentive compensation paid to the Executive by the
Corporation, if any, for the three (3) full calendar years
within the final five full calendar years of his employment
which will produce the highest average (or shorter period if
the executive has been employed less than five years) (and
annualized for any partial calendar year); provided, that the
incentive compensation to be recognized for this purpose shall
be approved by the Management Resources and Compensation
Committee in good faith and in its sole discretion, plus (iii)
the average of any annual contributions by the Corporation
(excluding participant contributions) in
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behalf of the Executive under the Retirement Savings and
Profit-Sharing Plan of Wachovia Corporation and the Wachovia
Corporation Executive Deferred Compensation Plan (or any
successor or replacement plans) for the three (3) full
calendar years within the final five full calendar years of
his employment which will produce the highest average (or
shorter period if the executive has been employed less than
five years) (and annualized for any partial calendar year).
Notwithstanding the foregoing, if the Executive's termination
of employment occurs after his sixtieth birthday, the amounts
described in clauses (ii) and (iii) above shall not be less
than the amounts that would have been payable to the Executive
had his employment terminated on his sixtieth birthday. Each
monthly payment of such cash compensation shall have deducted
therefrom all payroll taxes and withholdings required by law.
Cash compensation shall not include any benefits or
compensation provided to the Executive under the Wachovia
Corporation Stock Plan, any similar plan or any successor or
replacement plan.
(b) Employee Benefits. During the Compensation Period
the Executive shall be deemed to be continuing in the
employment of the Corporation for the purpose of applying and
administering employee benefit plans of the Corporation (other
than any tax-qualified retirement plans) and individual
contracts, if any, 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 if applicable to the Executive:
(i) the Retirement Agreement; and (ii) the Wachovia
Corporation Executive Deferred Compensation Plan. The
Corporation shall have no obligation to the Executive to make
any change or improvement in the Retirement Agreement or the
Deferred Compensation Plan during the Compensation Period even
if the Corporation shall make changes or improvements during
such period in similar contracts or plans, if any, with or for
the benefit of other senior executives of the Corporation.
Notwithstanding the foregoing, if the Corporation reasonably
determines that providing continued coverage under one or more
of its welfare benefit plans could adversely affect the tax
treatment of other participants covered under the plans, or
would otherwise have adverse legal ramifications, the
Corporation may, in its discretion, either (1) provide other
coverage at least as valuable as the continued coverage
through insurance or otherwise, or (2) pay the Executive a
lump sum cash amount that reasonably approximates the
after-tax value to the Executive of the premiums for continued
coverage, in lieu of providing such continued coverage.
(c) Stock Options, Restricted Awards, etc. The
Management Resources and Compensation Committee has
determined, in the exercise of its administrative discretion
under the Wachovia Corporation Stock Plan (and any successor
or replacement plan thereto), that the termination of the
Executive's employment under this Agreement shall not
constitute either a "retirement" or a "displacement" of the
Executive (as those terms are defined in the Wachovia
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Corporation Stock Plan), and that the Executive shall be
deemed to continue in the employment of the Corporation during
the Compensation Period for purposes of all outstanding stock
options, restricted awards and other awards granted to the
Executive under the Wachovia Corporation Stock Plan. At the
end of the Compensation Period, and provided that the
Corporation has not terminated the Executive's Compensation
Period pursuant to Section 7 of this Agreement, the Executive
will be deemed to have retired from employment with the
Corporation for the purpose of establishing his rights under
the Wachovia Corporation Stock Plan (and any successor or
replacement plan thereto) and any applicable award agreement.
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 ninety (90) days 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 ninety (90) days 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 not be entitled to any form of Continuation
Benefits as a result of such voluntary termination, except in the event
of voluntary termination pursuant to Section 3 or Section 10 of this
Agreement.
6. Termination for Cause. This Agreement shall immediately
terminate and neither party shall have any further obligation hereunder
(including but not limited to any obligation of the Corporation to
provide Continuation Benefits) 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 an exclusive and
substantially 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 whether a termination
is for cause shall be made by the Management Resources and Compensation
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 Obligations; Early Termination of Compensation
Period.
(a) During the Compensation Period, the Executive
shall provide consulting services to the Corporation at such
time 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 accordance with the
Corporation's current policy for expense reimbursement. 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 adjusted in
accordance with the requirements of such employment.
(b) The Executive shall not disclose to any other
person the Corporation's or any of its subsidiaries'
confidential information or trade secrets at any time during
or after the term of this Agreement or the Compensation
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Period. The Executive shall regard all material non-public
information as confidential. The Executive will at all times
refrain from taking any action or making any statements,
written or oral, which are intended to or which 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 owner, employee, officer,
director, consultant or otherwise, for himself or any employer
which conducts a business or enterprise in any area where the
Corporation or affiliate of the Corporation conducts business
that competes directly or indirectly with the Corporation or
affiliate of the Corporation.
(d) The Executive shall not, during the Compensation
Period, directly or indirectly, for himself or on behalf of
any other person, partnership, company or corporation, induce
or attempt to induce any employee of the Corporation to leave
the employ of the Corporation, or in any way interfere with
the relationship between the Corporation and an employee of
the Corporation except in the proper exercise of the
Executive's authority.
(e) In the event that the Executive shall refuse to
provide consulting services in accordance with paragraph (a)
of this Section, or shall materially violate the terms and
conditions of paragraph (b) or (c) of this Section, the
Corporation may, at its election, terminate the Compensation
Period and Continuation Benefits 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) of this Section.
(f) The Committee shall be responsible for
determining whether the Executive shall have violated this
Section 7, and all such determinations shall be final and
conclusive. Upon the request of the Executive, the Committee
will provide an advance opinion as to whether a proposed
activity would violate the provisions of paragraph (c) of this
Section.
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 any rights to Continuation
Benefits). All rights pertaining to stock options and restricted stock
awards held by the Executive as of the date of his death or disability
shall be governed by the terms of such stock options and restricted
stock awards (and applicable plans).
9. Other Severance Benefits. Except as provided in Section 4
of this Agreement, the Executive shall not be entitled to any other
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 benefits 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 employee benefit plans of the Corporation or
other individual written contracts with the Corporation.
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10. Change of Control.
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(a) Notwithstanding any other provision of this
Agreement, if the Executive voluntarily terminates his
employment for any reason, or he is involuntarily terminated,
except pursuant to Section 6 (Termination for Cause), during
the period beginning on the date of a Change of Control (as
defined in Section 10(b) herein) and ending on the third
anniversary of such date, then in either event the Executive
shall be entitled to receive the Continuation Benefits
described in Section 4 for a period of three years beginning
with the date of such termination (without regard to the
Executive's Normal Retirement Date or the last date this
Agreement could terminate) and all restrictions on the
restricted award made pursuant to Section 11(b) shall lapse
and the Restricted Shares (as defined in Section 11(b)) shall
be fully vested, nonforfeitable and freely transferable on the
date of such termination.
(b) For the purposes herein, a "Change of Control"
shall be deemed to have occurred on the earliest of the
following dates:
(i) The date any entity or person shall have
become the beneficial owner of, or shall have obtained voting
control over, thirty (30%) percent or more of the outstanding
common stock of the Corporation;
(ii) The date the shareholders of the
Corporation approve a definitive agreement (A) to merge or
consolidate the Corporation with or into another corporation,
in which the Corporation is not the continuing or surviving
corporation or pursuant to which any shares of common stock of
the Corporation would be converted into cash, securities or
other property of another corporation, other than a merger of
the Corporation in which holders of common stock immediately
prior to the merger have the same proportionate ownership of
common stock of the surviving corporation immediately after
the merger as immediately before, or (B) to sell or otherwise
dispose of substantially all the assets of the Corporation; or
(iii) The date there shall have been a
change in a majority of the Board of Directors of the
Corporation within a twelve month period unless the nomination
for election by the Corporation's shareholders of each new
director was approved by the vote of two-thirds of the
directors then still in office who were in office at the
beginning of the twelve month period.
For the purposes herein, the term "person" shall mean any individual,
corporation, partnership, group, association or other person, as such
term is defined in Section13(d)(3) or Section 14(d)(2) of the Exchange
Act, other than the Corporation, a subsidiary of the Corporation or any
employee benefit plan(s) sponsored or maintained by the Corporation or
any subsidiary thereof, and the term "beneficial owner" shall have the
meaning given the term in Rule 13d-3 under the Exchange Act.
(c) (i) In the event it shall be determined that any
payment, benefit or distribution (or combination thereof) by
the Corporation or one or more trusts established by the
Corporation for the benefit of its employees, to or for the
benefit of the Executive (whether paid or payable or
distributed or distributable pursuant to the terms of this
Agreement, or otherwise) (a "Payment") would be subject to the
excise tax imposed by Section 4999 of the Internal Revenue
Code of 1996, as amended (the "Code"), or any interest or
penalties are incurred by the Executive with respect to such
excise tax (such excise tax, together with any such interest
and penalties, hereinafter collectively referred to as the
"Excise Tax"), the Executive shall be entitled to receive an
additional payment (a "Gross-Up Payment") in an amount such
that after payment by the 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 the
Excise Tax imposed upon the Gross-Up Payment, the Executive
retains
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an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.
(ii) Subject to the provisions of Section
10(c)(iii), 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 utilized in arriving at such determination,
shall be made by a nationally recognized certified public
accounting firm designated by the Executive (the "Accounting
Firm") which shall provide detailed supporting calculations
both to the Corporation and the Executive within fifteen
business days of the receipt of notice from the Executive that
there has been a Payment, or such earlier time as is requested
by the Corporation. In the event that the Accounting Firm is
serving as accountant or auditor for an individual, entity or
group effecting the change in ownership or effective control
(within the meaning of Section 280G of the Code), the
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 Corporation. Any
Gross-Up Payment, as determined pursuant to this Section 10,
shall be paid by the Corporation to the Executive within five
days after the receipt of the Accounting Firm's determination.
If the Accounting Firm determines that no Excise Tax is
payable by the Executive, it shall so indicate to the
Executive in writing. Any determination by the Accounting Firm
shall be binding upon the Corporation and the 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 Corporation
should have been made ("Underpayment"), consistent with the
calculations required to be made hereunder. In the event that
the Corporation exhausts its remedies pursuant to Section
10(c)(iii) and the 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 Corporation to or
for the benefit of the Executive.
(iii) The Executive shall notify the
Corporation in writing of any claim by the Internal Revenue
Service that, if successful, would require the payment by the
Corporation of the Gross-Up Payment. Such notification shall
be given as soon as practicable but no later than ten business
days after the Executive is informed in writing of such claim
and shall apprise the Corporation of the nature of such claim
and the date on which such claim is requested to be paid. The
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 Corporation (or such shorter period ending on
the date that any payment of taxes with respect to such claim
is due). If the Corporation notifies the Executive in writing
prior to the expiration of such period that it desires to
contest such claim, the Executive shall:
(A) give the Corporation
any information reasonably requested by the
Corporation relating to such claim;
(B) take such action in
connection with contesting such claim as the
Corporation shall reasonably request in writing from
time to time, including, without limitation,
accepting legal representation with respect to such
claim by an attorney reasonably selected by the
Corporation;
(C) cooperate with the
Corporation in good faith in order to effectively
contest such claim; and
(D) permit the Corporation
to participate in any proceedings relating to such
claim; provided,
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however, that the Corporation 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 the
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 on the foregoing
provisions of this Section 10(c)(iii), the
Corporation shall control all proceedings taken in
connection with such contest and, at its sole option,
may pursue or forego 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 the Executive
to pay the tax claimed and xxx for a refund or
contest the claim in any permissible manner, and the
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 Corporation shall determine;
provided, however, that if the Corporation directs
the Executive to pay such claim and xxx for a refund,
the Corporation shall advance the amount of such
payment to the Executive, on an interest-free basis,
and shall indemnify and hold the 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 provided, further, that if the Executive
is required to extend the statute of limitations to
enable the Corporation to contest such claim, the
Executive may limit this extension solely to such
contested amount. The Corporation's control of the
contest shall be limited to issues with respect to
which a Gross-Up Payment would be payable hereunder
and the 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.
(iv) If, after the receipt by the Executive
of an amount advanced by the Corporation pursuant to Section
10(c)(iii), the Executive becomes entitled to receive any
refund with respect to such claim, the Executive shall
(subject to the Corporation's complying with the requirements
of Section 10(c)(iii)) promptly pay to the Corporation the
amount of such refund (together with any interest paid or
credited thereon after taxes applicable thereto). If, after
the receipt by the Executive of an amount advanced by Company
pursuant to Section 10(c)(iii), a determination is made that
the Executive shall not be entitled to any refund with
respect to such claim and the Corporation does not notify the
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. Retention Benefits.
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(a) The Management Resources and Compensation
Committee has determined, in the exercise of its
administrative discretion under the Wachovia Corporation Stock
Plan (and any successor or replacement plan thereto), that
upon the Executive attaining age sixty, and without regard to
the Executive's Normal Retirement Date:
(i) All outstanding stock options shall
become immediately vested and fully exercisable, and
shall remain exercisable in accordance with the
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terms of such grants or for at least one (1) year
after the date the Executive actually retires;
(ii) All outstanding restricted awards shall
become immediately vested, nonforfeitable and freely
transferable; and
(iii) All other amounts shall become
immediately vested and, to the extent applicable,
fully vested and nonforfeitable.
(b) In further consideration of the Executive's
agreement to perform his duties hereunder until age sixty-two,
the Corporation agrees to take all action necessary to grant
to the Executive pursuant to the Wachovia Corporation Stock
Plan upon his attaining age sixty, a restricted award covering
60,000 shares of common stock of the Corporation (the
"Restricted Shares"). One-half (1/2) of the Restricted Shares
shall become vested, nonforfeitable and freely transferable on
the Executive's sixty-first and sixty-second birthdays,
respectively, unless the Executive voluntarily resigns
pursuant to Section 5 prior to such dates, in which case the
Restricted Shares that have not yet vested shall be forfeited
by the Executive. If the Executive's employment with the
Corporation terminates due to his death or disability during
the period from his sixtieth to his sixty-second birthday (the
"Restriction Period"), the Executive (or his spouse or
beneficiaries, as applicable) shall become immediately vested
in that percentage of the Restricted Shares equal to the
number of full months of continuous employment then completed
by the Executive during the Restriction Period, divided by
twenty-four. All other terms of the award shall be consistent
with the Corporation's regular restricted awards.
(c) If a Change of Control occurs prior to the
Executive's sixtieth birthday, the Corporation shall transfer
to the Executive immediately prior to the date on which the
Change of Control will occur 60,000 shares of common stock of
the Corporation. Such shares shall be fully vested,
nonforfeitable and freely transferable by the Executive on the
date they are transferred. The Corporation shall not be
required to grant the restricted award described in Section
11(b) above if the 60,000 shares of common stock are
transferred to the Executive pursuant to this Section 11(c).
(d) With respect to any restricted award that vests
and becomes nonforfeitable pursuant to this Section 11, the
Executive may elect to defer the receipt of some or all of the
restricted award by completing a deferral election. The
deferral election must be in writing and be delivered to the
Corporation (i) during the calendar year before the Executive
attains age sixty; and (ii) at least six months before his
sixtieth birthday. The deferral election shall be irrevocable,
shall specify the applicable number of shares of stock or the
amount of cash, as applicable, that the Executive wishes to
defer, and shall elect a date for payment of the stock or cash
that is not later than the Executive's termination of
employment with the Corporation.
12. Release and Waiver of Claims. In consideration of any
Continuation Benefits the Corporation provides to the Executive under
this Agreement, the Executive upon termination of employment with the
Corporation shall execute a separate release and waiver of claims in a
form acceptable to the Corporation. The Executive shall not be eligible
for any Continuation Benefits until he has executed such release and
waiver of claims.
13. 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 Corporation's General Counsel. Notices to the
Executive shall be directed to his last known address. Notice may not
be provided by e-mail.
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14. Miscellaneous.
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(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) Words used in this Agreement in the singular
shall include the plural, and the plural shall include the
singular and words in the feminine or masculine shall include
the masculine and feminine, respectively, and the neuter.
(e) 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.
(f) This Agreement shall be binding upon and inure to
the benefit of the Executive and the Corporation, and their
respective heirs, successors and assigns.
(g) 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 creditor of the
Corporation in seeking satisfaction of such benefits or
promises.
(h) This Agreement shall be governed by the construed
in accordance with the laws of the State of North Carolina.
(i) This Agreement sets forth the entire agreement
and understanding of the parties hereto with respect to the
matters covered hereby, and replaces any predecessor
employment agreement between the parties hereto, and any such
predecessor agreement shall be deemed terminated and neither
party thereto shall have any rights or obligations thereunder.
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: _______________________________________
Chairman-Management Resources and
Compensation Committee
Attest:
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Secretary
[Corporate Seal]
_________________________________ (Seal)
X. X. Xxxxx, Xx.
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