EXHIBIT 10.22
UNION PLANTERS CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
This Supplemental Executive Retirement Agreement ("Agreement") has been adopted
by Union Planters Corporation ("Employer") and Jackson W. Moore ("Participant")
effective the 23rd day of February, 1995.
RECITALS
WHEREAS, Union Planters Corporation ("Employer") previously entered into a
Deferred Compensation Agreement ("Previous Agreement") with the Participant on
July 1, 1989;
WHEREAS, the Previous Agreement was amended from time to time to provide
additional benefits to the Participant and/or to clarify certain provisions of
the Previous Agreement, and
WHEREAS, the Board at its regular monthly meeting in February, 1995, approved
the adoption of the Union Planters Corporation Supplemental Executive Retirement
Plan ("Plan");
WHEREAS, in consideration of the Employer's desire to change the terms of the
Previous Agreement and the Participant's desire to participate in the Plan,
Employer and the Participant agree to terminate the Previous Agreement; and
WHEREAS, as consideration for the termination of the Previous Agreement, both
Employer and Participant agree to abide by the terms and conditions of the Plan,
which are evidenced through this Agreement.
NOW THEREFORE, Employer and Participant hereby adopt this Agreement pursuant to
the terms and provisions set forth below.
ARTICLE I
DEFINITIONS
Whenever used herein the following terms shall have the meanings hereinafter set
forth. Words in the masculine gender shall include the feminine and the singular
shall include the plural, and vice versa, unless qualified by the context. Any
headings used herein are included for ease of reference only, and are not to be
construed so as to alter the terms hereof.
1.1. "AGREEMENT" shall mean the Union Planters Corporation Supplemental
Executive
Retirement Agreement.
1.2. "APPLICABLE FEDERAL RATE" shall mean 120% of the applicable federal rate
(as calculated on a mid-term, monthly basis) pursuant to Code Section 1274, as
amended.
1.3. "AVERAGE BASE SALARY INCREASE RATE" shall mean the greater of the
following: (i) the average annual increase in base salary and bonus (calculated
using four (4) decimal places) received by the Participant or Eligible
Participant during the three complete calendar years preceding termination of
employment (for whatever reason), or (ii) Five Percent (5%).
1.4. "BENEFICIARY" shall mean the person or persons Participant has designated
in writing to Employer to receive benefits under the Agreement in the event of
the Participant's death. If the Participant has not specifically designated any
Beneficiary for purposes of the Agreement, then the Beneficiary shall become the
Participant's estate. In the case of the death of the Beneficiary before
completion of payments under the Agreement to the Beneficiary, then the
Beneficiary's estate shall become entitled to any remaining payments. In either
case, any remaining payments under the terms of the Agreement shall be made in
the form of a lump sum payment as follows: an amount equal to the present value
of any remaining payments to be made under the Agreement shall be paid on the
first business day of the second month following the Participant's (or if
appropriate, Beneficiary's) date of death, and for purposes of determining the
present value of the payments, the Discount Rate which exists on the
Participant's (or, if appropriate, Beneficiary's) date of the death shall be
used.
1.5. "BOARD" shall mean the Board of Directors of Union Planters Corporation.
1.6. "CHANGE IN CONTROL" shall mean the occurrence of the earliest of any of
the following events:
(a) the acquisition by any entity, person, or group (excluding any
entity, person or group owning Voting Stock at the effective date of
this Agreement) of beneficial ownership, as that term is defined in
Rule 13d-3 of the Securities Exchange Act of 1934, of Twenty Five
percent (25%) or more of the Voting Stock of Employer;
(b) The commencement and consummation by any entity, person or group
(other than Employer) of a tender offer or an exchange offer for more
than Twenty Five percent (25%) or more of the Voting Stock of Employer;
or
(c) the effective date of a (i) merger or consolidation of Employer
with one or more other corporations as a result of which the holders of
the Voting Stock of Employer immediately prior to such merger or
consolidation hold less than Eighty Percent (80%) of the Voting Stock
of the surviving or resulting corporation, or (ii) a sale of transfer
of a majority of the property of Employer, other than to an entity of
which Employer controls 80% or more of the Voting Stock.
1.7. "CODE" shall mean the Internal Revenue Code of 1986, as amended.
1.8. "DISABILITY" shall mean a physical or mental condition of the Participant,
determined in the sole discretion of the Board, which prohibits Participant from
carrying out his normal duties and responsibilities as an employee of Employer.
1.9. "DISCOUNT RATE" shall mean that immediate annuity interest rate used by the
Pension Benefit Guaranty Corporation ("PBGC") under Section 4062, Appendix B to
Part 2619, of the Employee Retirement Income Security Act ("ERISA").
1.10. "ELIGIBLE PARTICIPANT" shall Mean the Participant once he earns at least
10 Years of Service with the Employer and attains the following indicated ages,
based on the Participant's actual age as of January 1, 1995.
Age Participant Can
Participant Participant's Age as of January 1, 1995 Qualify as Eligible
--------------------------------------- -------------------
Less than Age 50 55
Age 50 through 54 57
Age 55 through 60 59
Age 61 or over 64
For purposes of the Agreement (where appropriate), the term "Participant" shall
include a reference to an Eligible Participant.
1.11. "EMPLOYER" shall mean the Union Planters Corporation, or to the extent
provided in Section 5.9, any successor corporation or other entity resulting
from a merger or consolidation into or with Employer or a transfer or sale of a
majority of the assets of Employer.
1.12. "FINAL AVERAGE EARNINGS" shall mean the average base salary plus bonus
earned by the Participant or Eligible Participant during the three complete
calendar years preceding termination of employment (for whatever reason).
1.13. "FORMER ELIGIBLE PARTICIPANT" shall mean Participant who, after becoming
an Eligible Participant, terminates service with the Employer and who, under the
terms of the Agreement, is then entitled to payment of a benefit. For purposes
of the Agreement (where appropriate), the term "Participant" shall include a
reference to a Former Eligible Participant.
1.14. "GOOD REASON" shall mean a termination of employment with the Employer if,
without the Participant's express written consent:
(i) Employer shall assign to Participant duties of a nonexecutive nature
or for which Participant is not reasonably equipped by his skills and
experience; or
(ii) Employer shall reduce the salary of the Participant, or materially
reduce the amount of paid vacations to which he is entitled, or reduce his
fringe benefits and perquisites; or
(iii) Employer shall fail to provide office facilities, secretarial
services, and other administrative services to the Participant which are
substantially equivalent to the facilities and services provided to the
Participant at the Initial date of the Participant's participation in the
Agreement; or
(iv) Employer shall terminate incentive and benefit plans or arrangements,
or reduce or limit the Participant's participation therein, relative to
the level of participation of other executives of similar rank, to such an
extent as to materially reduce the aggregate value of the Participant's
incentive compensation and benefits below their aggregate value as of the
initial date of the Participant's participation in the Agreement.
1.15. "INSTALLMENT PAYMENT ACCOUNT" shall mean that account created pursuant to
the terms of Article II of the Agreement to facilitate payment of benefits under
the Agreement to the Participant in the form of installment payments.
1.16. "NORMAL RETIREMENT AGE" shall mean the following indicated ages based on
the Participant's actual age as of January 1, 1995:
Participant's
Participant's Age as of January 1, 1995 Normal Retirement Age
--------------------------------------- ---------------------
Less than Age 60 62
Age 60 or over 65
1.17. "NORMAL RETIREMENT BENEFIT" shall mean an annual sum equal to 65% of the
Participant's Final Average Earnings, payable each year for the remaining
actuarially-determined life of the Participant in accordance with the provisions
of Article II of the Agreement. For purposes of determining the Participant's
remaining actuarially-determined life, Table V ("Ordinary Life Annuities, One
Life - Expected Return") of Code Regulation 1.72-9, as amended, shall be used,
with the assumption that the Participant terminated employment on the first day
of the first year of the Participant's Normal Retirement Age (regardless of the
Participant's actual age at termination of employment).
1.18. "PARTICIPANT" shall mean Jackson W. Moore, who is an employee of Employer
and to whom or with respect to whom a benefit may be payable under the
Agreement. For purposes of the Agreement, the term "Participant" shall include a
reference to the Participant once he becomes an Eligible Participant or Former
Eligible Participant.
1.19. "REDUCED RETIREMENT BENEFIT" shall mean the following percentages of the
Participant's Normal Retirement Benefit, payable to an Eligible Participant in
accordance with the provisions of Section 2.3 of the Agreement if the Eligible
Participant terminates employment before attaining Normal Retirement Age
("NRA").
Years Employment
Terminates Prior to NRA Reduced Retirement Benefit
----------------------- --------------------------
More than 7 Years 0% of Normal Retirement Benefit
From 6 to 7 Years 58% of Normal Retirement Benefit
From 5 to 6 Years 64% of Normal Retirement Benefit
From 4 to 5 Years 70% of Normal Retirement Benefit
From 3 to 4 Years 75% of Normal Retirement Benefit
From 2 to 3 Year 82% of Normal Retirement Benefit
From 1 to 2 Years 88% of Normal Retirement Benefit
Up to 1 Year 94% of Normal Retirement Benefit
1.20. "VOTING STOCK" shall mean that class (or classes) of common stock of the
Employer entitled to vote in the election of the Employer's directors.
1.21. "YEAR OF SERVICE" shall mean any calendar year of employment by the
Participant with Employer in which the Participant accumulates at least 1000
hours of service. For these purposes, the provisions of Department of Labor
Regulations 2530.200-2(b) and (c) are incorporated herein by reference as they
relate to the determination of "hour of service."
ARTICLE II
BENEFITS UNDER THE AGREEMENT
2.1. BENEFITS. Either a Normal Retirement Benefit or Reduced Retirement Benefit
shall be paid under the terms of the Agreement as set forth in this Article II.
2.2. VOLUNTARY TERMINATION OF EMPLOYMENT BEFORE BECOMING ELIGIBLE PARTICIPANT.
Should Participant voluntarily terminate employment with the Employer before
becoming an Eligible Participant, then the Participant (and any person claiming
benefits for or on behalf of the Participant) will forfeit all rights to
benefits under this Agreement; provided, however, that a termination of
employment for Good Reason or in accordance with Sections 2.4, 2.5, or 2.6 of
the Agreement will not be considered a voluntary termination of employment
subject to this Section 2.2 of the Agreement.
2.3. VOLUNTARY TERMINATION OF EMPLOYMENT AFTER BECOMING AN ELIGIBLE PARTICIPANT
BUT BEFORE NORMAL RETIREMENT AGE. Should the Participant, once becoming an
Eligible Participant, voluntarily terminate service with the Employer before
Normal Retirement Age (i.e., for reasons other than Good Reason or those
described in Sections 2.4, 2.5 or 2.6 of the Agreement), he will be entitled to
the Reduced Retirement Benefit payable at his election in either of the
following forms. Should Participant fail to specifically elect a form of benefit
payment, a Lump Sum Distribution will be made to the Participant.
(a) LUMP SUM DISTRIBUTION. An amount equal to the present value of the
Participant's total Reduced Retirement Benefit shall be paid to the
Participant in one lump sum distribution on the first business day of
the second month following the Participant's termination of employment.
For purposes of determining the present value of the Participant's
total Reduced Retirement Benefit, the Discount Rate which exists on the
date of the Participant's termination of employment shall be used.
(b) PERIODIC DISTRIBUTION. An amount equal to the present value of the
Participant's total Reduced Retirement Benefit shall be credited to an
Installment Payment Account and shall be payable in up to 180
successive monthly installments. The first payment shall commence on
the first business day of the second month following the date of
termination of employment, and each successive payment shall occur
monthly in succeeding months on the first business day of such months.
In order for Participant to elect a Periodic Distribution under the
terms of this Section 2.3(b), the Participant must elect, in the
taxable year (or years) prior to the Participant's termination of
employment with the Employer, both the Periodic Distribution option and
the number of monthly installments to be made (up to a maximum of 180).
For purposes of determining the present value of the Participant's
total Reduced Retirement Benefit, the Discount Rate which exists on the
date of the Participant's termination of employment shall be used. To
determine the amount of each installment payment, a fraction shall be
applied to the Participant's Installment Payment Account on each
payment date. The numerator shall consist of one (1) and the
denominator shall consist of the total number of installment payments
remaining (including the current payment). During the installment
payment period, interest shall be credited to the Participant's
Installment Payment Account on a monthly basis using the Applicable
Federal Rate in existence on the first business day of each month
during which payments are made.
2.4. TERMINATION OF EMPLOYMENT PRIOR TO NORMAL RETIREMENT AGE DUE TO DEATH OR
DISABILITY. Should Participant, before or after becoming an Eligible
Participant, terminate service with the Employer prior to Normal Retirement Age
because of death or disability, he will be entitled to the Normal Retirement
Benefit following termination of employment, payable in one of the distribution
forms described in Sections 2.7(a) and (b) of the Agreement.
2.5. INVOLUNTARY TERMINATION OF EMPLOYMENT PRIOR TO NORMAL RETIREMENT AGE.
Should Participant, before or after becoming an Eligible Participant,
involuntarily terminate service with the Employer (or voluntarily terminate
service with Good Reason) prior to Normal Retirement Age (for reasons other than
those described in Section 2.4 and 2.6), he will he entitled to the Normal
Retirement Benefit, without regard to the Participant's age or years of service
at the time of involuntary termination of employment. The Normal Retirement
Benefit will be payable in one of the distribution forms described in Sections
2.3(a) and (b) of the Agreement.
For purposes of calculating the Normal Retirement Benefit under this Section
2.5, Participant's Final Average Earnings shall be that amount at the date of
termination of employment increased at the Average Base Salary Increase Rate,
compounded annually, for the number of years (carried to two (2) decimal places)
needed to reach the Participant's age 65 birthday.
2.6. INVOLUNTARY TERMINATION OF EMPLOYMENT FOLLOWING A CHANGE IN CONTROL. Should
a Change in Control occur, Participant will be entitled to the Normal Retirement
Benefit following termination of employment (for whatever reason), without
regard to the Participant's age or years of service at the time of involuntary
termination of employment and without regard to whether the Participant has
become an Eligible Participant. The Normal Retirement Benefit will be payable in
accordance with the distribution forms described in Sections 2.7(a) and (b) of
the Agreement.
For purposes of calculating the Normal Retirement Benefit under this Section
2.6, Participant's Final Average Earnings shall be that amount at the date of
termination of employment increased at the Average Base Salary Increase Rate,
compounded annually, for the number of years (carried to two (2) decimal places)
needed to reach the Participant's age 65 birthday.
2.7. TERMINATION OF EMPLOYMENT AT OR AFTER NORMAL RETIREMENT AGE. Should
Participant become an Eligible Participant and subsequently terminate service
with the Employer (for whatever reason) at or after Normal Retirement Age, he
(or, if appropriate, his Beneficiary) will be entitled to the Normal Retirement
Benefit, payable at his election in either of the following forms. Should
Participant fail to specifically elect a form of benefit payment, a Lump Sum
Distribution will be made to the Participant (or, if appropriate, to his
Beneficiary).
(a) LUMP SUM DISTRIBUTION. An amount equal to the present value of the
Participant's total Normal Retirement Benefit shall be paid to the
Participant in one lump sum distribution on the first business day of
the second month following the Participant's termination of employment.
For purposes of determining the present value of the Participant's
total Normal Retirement Benefit, the Discount Rate which exists on the
date of the Participant's termination of employment shall be used.
(b) PERIODIC DISTRIBUTION. An amount equal to the present value of the
Participant's total Normal Retirement Benefit shall be credited to an
Installment Payment Account and shall be payable in up to 180
successive monthly installments. The first payment shall commence on
the first business day of the second month following the date of
termination of employment, and each successive payment shall occur
monthly in succeeding months on the first business day of such months.
In order for Participant to elect a Periodic Distribution under the
terms of this Section 2.7(b), the Participant must elect, in this
taxable year (or years) prior to the Participant's termination of
employment with the Employer, both the Periodic Distribution option and
the number of monthly installments to be made (up to a maximum of 180).
For purposes of determining the present value of the Participant's
total Normal Retirement Benefit the Discount Rate which exists on the
date of the Participant's termination of employment shall be used. To
determine the amount of each installment payment, a fraction shall be
applied to the Participant's Installment Payment Account on each
payment date. The numerator shall consist of one (1) and the
denominator shall consist of the total number of installment payments
remaining (including the current payment). During the installment
payment period, interest shall be credited to the Participant's
Installment Payment Account on a monthly basis using the Applicable
Federal Rate in existence on the first business day of each month
during which payments are made.
2.8. DEATH WHILE BENEFIT PAYMENTS BEING MADE. Should Participant die after
becoming a Former Eligible Participant and after the commencement of Normal
Retirement or Reduced Retirement Benefit payments to the Participant, then any
remaining payments will be made to the Participant's Beneficiary in the same
form being made to the Participant at the date of his death. Alternatively, at
the Beneficiaries election (with the consent of the Employer), payment may be
made in a lump sum payment as follows: an amount equal to the present value of
the remaining payments shall be paid on the first business day of the second
month following the Participant's date of death, and for purposes of determining
the present value of the remaining payments, the Discount Rate which exists on
the date of the Participant's date of death shall be used.
ARTICLE III
ADMINISTRATION OF THE AGREEMENT
3.1. ADMINISTRATION BY EMPLOYER. Employer shall be responsible for the general
operation and administration of the Agreement and for carrying out the
provisions thereof. The Board or Employer may engage the services of outside
counsel, accountants, financial advisors and other such professional to assist
it in its administrative duties.
3.2. GENERAL POWERS OF ADMINISTRATION. Employer is hereby designated as a
fiduciary under the Agreement Employer, as fiduciary, shall have authority to
control, interpret and manage the operation and administration of the
Agreement.
Any decision by Employer or the Board denying a claim by Participant or a
Beneficiary for benefits under the Agreement shall be stated in writing and
shall be delivered or mailed to the Participant or Beneficiary. Such statement
shall set forth the specific reasons for the denial, written to the best of the
Employer's ability in a manner that may be understood without legal counsel. In
addition, Employer shall afford a reasonable opportunity to the Participant or
Beneficiary for a full and fair review of the decision denying such claim.
Notwithstanding the above provisions of Section 3.2, to the extent that the
Employee Retirement Income Security Act ("ERISA") may require specific
procedures to be followed in the event of a denial of a claim, such provisions
of ERISA will be followed.
ARTICLE IV
AMENDMENT OR TERMINATION OF AGREEMENT
4.1. AMENDMENT OR TERMINATION OF AGREEMENT. Any amendment to this Agreement
shall be made pursuant to a resolution of the Board and, if such amendment
directly or indirectly affects the benefits payable under the Agreement, such
amendment must be mutually agreed to in writing by Participant (or, in the event
that the Participant is deceased at the date of amendment, the Participant's
Beneficiary).
ARTICLE V
GENERAL PROVISIONS
5.1. PARTICIPANT'S RIGHTS UNSECURED. The Agreement at all times shall be
unfunded as defined under provisions of the Code. The right of Participant or
any Beneficiary to receive a distribution hereunder shall be an uninsured claim
against the general assets of Employer in the event of the Employer's
insolvency or bankruptcy.
Employer shall implement a form of trust arrangement (known generally as a
"rabbi trust") to hold employer assets which will be used to make payments to
the Participant (or the Participant's Beneficiary) under the terms of the
Agreement. Such trust arrangement will not be a "funded" arrangement under the
provisions of the Code, and a copy of such trust arrangement shall be included
with this Agreement as Exhibit A.
5.2. INDEPENDENCE OF OTHER BENEFIT AGREEMENTS. Participation in the Agreement
shall in no way restrict or otherwise impact Participant's participation in any
other welfare benefit plan, employment or other contract, deferred compensation
agreement, equity participation plan or any other form of retirement benefit
plan sponsored by Employer.
5.3. NO SECURED GUARANTEE OF BENEFITS. In the event of the insolvency or
bankruptcy of Employer, Participant shall remain a general creditor of the
Employer with respect to any benefits payable under the Agreement and nothing
contained in the Agreement shall constitute a secured guaranty by Employer or
any other person or entity that the assets of Employer will be sufficient to pay
any benefit hereunder in the event of the Employer's insolvency or bankruptcy.
5.4. NO ENLARGEMENT OF EMPLOYEE RIGHTS. No Participant shall have any right to
receive a distribution of any benefits under the Agreement except in accordance
with the terms of the Agreement. Establishment of the Agreement shall not be
construed to give any Participant the right to be retained in the service of
Employer.
5.5. SPENDTHRIFT PROVISION. No Interest of any person or entity in, or right to
receive a distribution under, the Agreement shall be subject in any manner to
sale, transfer, assignment, pledge, attachment, garnishment or other alienation
or encumbrance of any kind; nor may such interest or right to receive a
distribution be taken, either voluntarily or involuntarily for the satisfaction
of the debts of, or other obligations or claims against, such person or entity,
including claims for alimony, support, separate maintenance and claims in
bankruptcy proceedings.
5.6. APPLICABLE LAW. The Agreement shall be construed and administered under
the laws of the State of Tennessee.
5.7. SEVERABILITY. In the event that any of the provisions of the Agreement are
held to be inoperative or invalid by any court of competent jurisdiction, then:
(i) insofar as is reasonable, effect will be given to the intent manifested in
the provision held invalid or inoperative, and (ii) the validity and
enforceability of the remaining provisions of the Agreement will not be
affected thereby.
5.8. INCAPACITY OF RECIPIENT. If any person entitled to a distribution under the
Agreement is deemed by Employer to be incapable (physically or mentally) of
personally receiving and giving a valid receipt for any payment pursuant to the
Agreement, then, unless and until claim therefore shall have been made by a duly
appointed guardian or other legal representative of such person, Employer may
provide for such payment or any part thereof to be made to any other person or
institution then contributing toward or providing for the care and maintenance
of such person. Any such payment shall be a payment for the account of such
person and a complete discharge of any liability of Employer end the Agreement
with respect to such payment.
5.9. SUCCESSORS. The terms and conditions of the Agreement will be binding on
the Employer's and Participant's successors, heirs and assigns (herein,
"Participant Successors" and "Employer Successors").
5.10. UNCLAIMED BENEFITS. Participant shall keep Employer informed of his or her
current address and the current address of his or her Beneficiary. Employer
shall not be obligated to search for the whereabouts of any person. If the
location of Participant is not made known to Employer within a one (1) year
period after the date on which payment of the Participant's Normal Retirement or
Reduced Retirement Benefit is first to be made, then payment may be made by the
Employer to the Beneficiary instead. If, within one (1) additional year after
such initial one (1) year period, Employer is unable to locate any designated
Beneficiary of the Participant, then Employer shall have no further obligation
to pay any benefit under the Agreement to such Participant or designated
Beneficiary and any such "benefit shall be irrevocably forfeited.
5.11. LIMITATIONS ON LIABILITY. Participant and any other person claiming
benefits under the Agreement shall be entitled under this Agreement only to
those payments provided in accordance with the provisions of the Agreement
("Payment Claims"). With the exception of the provisions of Section 5.13 of the
Agreement, neither Employer, Employer Successor nor any individual acting as
employee or agent of Employer or Employer Successor shall be liable to
Participant or any other person for any other claim, loss, liability or expense
under this Agreement not directly related to a Payment Claim.
5.12. FORFEITURE OF BENEFITS. Notwithstanding any other provision of the
Agreement, should Participant engage in theft, fraud, embezzlement or willful
misconduct causing significant property damage to Employer, then any benefits
payable to such Participant under the Agreement will automatically be
forfeited. The determination of theft, embezzlement or willful misconduct will
be made by the Board in good faith, but such determination does not require an
actual criminal indictment or conviction prior to or after such decision. In any
determination of forfeiture pursuant to this Section 5.12, Participant will be
given the opportunity to refute any such decision by the Board, but the Board's
decision on the matter will be considered final and binding on Participant and
all other parties.
5.13. PAYMENT OF ATTORNEY'S FEES, COURT COSTS, AND LOSS OF BENEFITS. Should
either the Employer or Employer Successor (for these purposes, "Employer") or
Participant bring an action at law (or through arbitration) in order that the
Agreement's terms be enforced, then the party prevailing in the action at law
(or through arbitration) shall be entitled to reimbursement from the losing
party for reasonable attorney's fees, court costs and other similar amounts
expended in the enforcement of the Agreement. In addition, should the prevailing
party be Participant, he shall also be entitled to interest on any delayed
payments, with such interest computed at the Applicable Rate.
5.14. PAYMENT OF TAXES. Should the payment of any benefits under this Agreement
be classified as payment of an excess parachute payment under the provisions of
Code Sections 280G and 4999, then an additional payment will be made to the
Participant based on the amount of excise tax or penalty payable by the
Participant because of such classification. Such payment will be made within two
(2) months following Participant's termination of employment, once a good faith
determination is made by either Employer or Participant that the payment of any
benefit under the Agreement will constitute an excess parachute payment. The
amount payable to the Participant will be calculated as follows: (amount of
excise tax or penalty payable by Participant) divided by (one (1) minus the
highest marginal income tax rate under the Code for individuals).
ARTICLE VI
CONTINUATION OF MEDICAL PLAN COVERAGE
6.1. CONTINUATION OF MEDICAL COVERAGE. Following termination of employment with
the Employer, if Participant is entitled to payment of the Normal or Reduced
Retirement Benefit under the terms of the Agreement, then Participant, his
spouse and dependents will continue to be covered under the Employer's health
insurance program ("Health Plan") to the same extent as was present immediately
prior to the date of termination of employment. Employer shall continue to pay
Health Plan coverage costs of the Participant, his spouse and other dependents
under the Health Plan on the same basis as was applicable to active Employer
employees covered at the time of termination of employment.
6.2. PERIOD OF CONTINUED COVERAGE. Such coverage will continue for the period
equal to the shortest of the following: (1) for the number of years required for
the Participant to reach age 65, (2) until the Participant obtains employment
with another employer (who provides substantially similar coverage under its
health plan as was provided by Employer), or (3) until the death of the
Participant.
6.3. ALTERNATIVE COVERAGE. If continued participation in the Health Plan by
Participant, his spouse and any dependents is; not possible under the terms of
the Health Plan, Employer will either: (1) provide substantially identical
benefits through another health insurance plan, or will (2) provide an annual
cash payment to Participant sufficient to permit Participant to obtain
substantially equivalent individual, spouse and dependent coverage under a
health insurance plan of his choosing. If any cash payment is made to
Participant, the amount of cash payment will be "grossed up" for income tax
purposes (using the maximum individual income lax rate under the Code at the
time of payment) to insure no net out of pocket costs to the Participant in
obtaining such additional coverage.
IN WITNESSES WHEREOF, the undersigned Employer and Participant do hereby execute
this Agreement effective the date first stated above.
UNION PLANTERS CORPORATION
By: /s/ Benjamin W. Rawlins, Jr. /s/ Jackson W. Moore
---------------------------- --------------------
Benjamin W. Rawlins, Jr. Jackson W. Moore
Chairman and CEO
AMENDMENT TO
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
THIS AMENDMENT, dated as of April 17, 1997 by and between Union Planters
Corporation ("Employer") and Jackson W. Moore ("Participant"), amends that
certain Supplemental Executive Retirement Agreement, dated as of February 23,
1995, by and between Employer and Participant (the "SERP").
WHEREAS, Employer and Participant desire to amend the SERP as provided
herein;
NOW, THEREFORE, in consideration, of the foregoing and of the mutual
covenants and agreements set forth herein and for other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
parties hereto agree as follows:
1. Definition of "Change in Control". The current definition of the term
"Change in Control" in Section 1.6 of the SERP is hereby deleted in its
entirety and the following is substituted in lieu thereof.
"Change in Control" shall mean the occurrence of any of the following
events:
(i) The acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")) (a "Person") of
beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Securities Exchange Act of 1934, as amended) of 25% or more
of either (A) the then outstanding shares of common stock of Employer
(the "Outstanding Company Common Stock") or (B) the combined voting
power of the then outstanding voting securities of Employer entitled to
vote generally in the election of directors (the "Outstanding Company
Voting Securities; provided, however, that for purposes of this
subsection (1), the following acquisition shall not constitute a Change
in Control: (w) any acquisition directly from Employer, (x) any
acquisition by Employer, (y) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by Employer or any
corporation controlled by Employer, or (z) any acquisition by any
Person pursuant to a transaction which complies with clauses (A), (B)
and (C) of subsection (iii) of this Section 1.6; or
(ii) Individuals who, as of the date hereof, constitute
the Board of Directors of Employer (the "Incumbent Board") cease for
any reason to constitute at least a majority of the Board, provided,
however, that any individual becoming a director subsequent to the date
hereof whose election, or nomination for election by Employer's
shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors
or other actual of threatened solicitation of proxies or consents by or
on behalf of a Person other than the Board, or
(iii) Consummation of a reorganization merger or consolidation
or sale or other disposition of all or substantially all
of the assets of Employer (a "Business Combination"), in each case,
unless, following such Business Combination,
(A) all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and outstanding Company
Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more
than 65% of, respectively, the then outstanding shares of
common stock and the combined voting power of the then
outstanding voting securities entitled to vote generally in
the election of directors, as the case may be of the
corporation resulting from such Business Combination
(including, without limitation, a corporation which as a
result of such transaction owns Employer or all or
substantially all of Employer's assets either directly of
through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such
Business Combination of the Outstanding Company Common Stock
and Outstanding Company Voting Securities, as the case may be,
and
(B) no Person (excluding any corporation resulting
from such Business Combination or any employee benefit plan
(or related trust) of Employer or such corporation resulting
from such Business Combination) beneficially owns, directly or
indirectly, 25% or more of, respectively, the then outstanding
shares of common stock of the corporation resulting from such
Business Combination or the combined voting power of the then
outstanding voting securities of such corporation except to
the extent that such ownership existed prior to the Business
Combination, and
(C) at least a majority of the members of the board
of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at that time
of the execution of the initial agreement, or of the action of
the Board, providing for such Business Combination,
2. Definition of "Disability". The current definition of the term
"Disability" in Section 1.8 of the SERP is hereby deleted in its entirety and
the following is substituted in lieu thereof:
"Disability" shall mean a mental or physical disability as determined
by the Board in accordance with standards and procedures similar to
those under Employer's employee long-term disability plan, if any. At
any time that Employer does not maintain such a long-term disability
plan, Disability shall mean the inability of Participant, as determined
by the Board, to substantially perform his regular duties and
responsibility due to a medically determinable physical or mental
illness which has lasted (or can reasonably be expected to last) for a
period of six consecutive months.
3. Definition of "Final Average Earnings". The current definition of the
term "Final Average Earnings" in Section 1.12 of the SERP is hereby deleted in
its entirety and the following is substituted in lieu thereof:
"Final Average Earnings" shall mean the sum of (i) the Participant's or
Eligible Participant's highest base salary in effect during any
calendar year preceding his termination of employment, including the
year in which such termination occurs, and (ii) the Participant's or
Eligible Participant's highest annual bonus payable with respect to any
calendar year preceding his termination of employment, including the
year in which such termination occurs.
4. Excise Tax Provision. Section 5.14 of the SERP, relating to the excise
tax imposed by Section 4999 of the Internal revenue code of 1986, as amended,
is hereby deleted in its entirety.
**************************************************************
The terms of the SERP not hereby amended shall be and remain in full force
and effect and are not affected by this Amendment.
IN WITNESS WHEREOF, Participant and Employer have duly executed this
Amendment as of the day and year first above written.
/s/ Jackson W. Moore
--------------------
Jackson W. Moore
Participant
UNION PLANTERS CORPORATION
By: /s/ M. Kirk Walters
-------------------
AMENDMENT NO. 2 TO
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
THIS AMENDMENT, dated as of August 31, 1999, by and between Union Planters
Corporation ("Employer") and Jackson W. Moore ("Participant"), amends that
certain Supplemental Retirement Agreement, dated as of February 23, 1995, as
previously amended April 17, 1997, by and between Employer and Participant (the
"SERP").
WHEREAS, Employer and Participant desire to amend the SERP as provided
herein;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein and for other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
parties hereto agrees as follows:
1. Reduction of Benefits to Reflect "Cost of Funds" under Split Dollar
Insurance Program. There is hereby added a new Section 2.9 to the SERP to read
as follows:
"2.9 REDUCTION OF BENEFITS TO REFLECT "COST OF FUNDS" UNDER SPLIT
DOLLAR INSURANCE PROGRAM. Employer and Participant have entered into a
Split Dollar Agreement dated August 31, 1999 ("Split Dollar
Agreement"), pursuant to which certain life insurance coverage will be
provided on the joint lives of Participant and his spouse, Elizabeth W.
Moore. Under the Split Dollar Agreement, on August 31, 1999, Employer
paid a premium of $3,608,280 for the life insurance policy providing
second to die coverage on Participant and his said spouse ("Policy"),
and Employer will pay four additional premiums of $3,608,010,
$3,607,740, $3,607,740 and $3,607,200 on the Policies on the next four
respective anniversaries of such initial premium payment date. Under
paragraph 8 of the Split Dollar Agreement, when Participant and his
said spouse are no longer living or certain other events earlier occur,
Employer will be reimbursed for the cumulative amount of premiums paid
under the split dollar program (without interest).
In order to insure that Employer will also be reimbursed for the
opportunity cost of making the premium payments under the split dollar
program, the present value of the amount payable under this Article II
shall be reduced (but not below zero) by an amount to be referred to as
the "Cost of Funds Reimbursement." The Cost of Funds Reimbursement
shall be determined (and the reduction described in the immediately
preceding sentence shall be made) as of Participant's termination of
employment for any reason (hereafter referred to as the "Cost of Funds
Settlement Date"). The Cost of Funds Reimbursement shall be the sum of
(a) plus (b), determined as follows:
(a) There shall first be calculated the interest expense on each
premium payment under the Program, determined as though Employer had
borrowed the premium payment at an interest rate determined under
Section 7520(a)(2) of the Internal Revenue Code of 1986, as amended
("Applicable Federal Rate" or "AFR"). The interest expense for the
first twelve months after a premium payment is made shall be determined
using the AFR as in effect for the month such premium
payment is made, and shall remain in effect until the one-year
anniversary of the date such premium payment was made. As of such
one-year anniversary, the interest expense with respect to such premium
for the next twelve months shall be determined using the AFR in effect
for the month which includes such one-year anniversary, and so forth
until the Cost of Funds Settlement Date occurs. The aggregate interest
expense for all premiums under the Program for all years from the date
the first premium payment is made until the Cost of Funds Settlement
Date occurs shall be the amount under this paragraph (a).
(b) There shall next be determined as of the Cost of Funds Settlement
Date the present value of all future interest expense of all premiums
under the Program, including both premiums paid and premiums not yet
accrued or paid as of the Cost of Funds Settlement Date. The future
interest expense shall run from the Cost of Funds Settlement Date to
the earliest date on which Employer is entitled to reimbursement under
paragraph 8 of the Split Dollar Agreement of the cumulative premiums
paid by Employer under the Policy. For this purpose, (i) all future
interest expense shall be determined using the AFR in effect for the
month in which the Cost of Funds Settlement Date occurs, rather than
the AFR which was in effect at the time the most recent premium payment
was made, (ii) no future interest expense shall accrue for a future
premium payment until the date such premium is due, and (iii) the
future interest expense shall be discounted to present value using the
AFR in effect for the month in which the Cost of Funds Settlement Date
occurs. The present value of all future interest expense as determined
under this paragraph shall be the amount determined under this
paragraph (b).
(c) If prior to the 15th anniversary of the date the initial premium
payment was made under the Split Dollar Program, the Employer is
reimbursed under the Split Dollar Agreement for all amounts that would
be owed to the Employer under the Split Dollar Agreement upon the death
of the survivor of the Participant and his spouse named in paragraph
(a) above (such date to be referred to herein as the "Premium
Reimbursement Date"), then an additional amount shall be paid under
this Section 2.9 determined as follows: (i) the future interest expense
under paragraph (b) immediately above shall be re-calculated as of the
Cost of Funds Settlement Date as though it was known as of such date
that the future interest expense for premiums under the Split Dollar
Program would run only until the actual Premium Reimbursement Date,
using the AFR in effect for the Cost of Funds Settlement Date; (ii)
there shall be subtracted from the actual amount determined under
paragraph (b) immediately above the amount determined under clause
(c)(i) immediately preceding; and (iii) the remainder determined under
clause (c)(ii) immediately preceding shall be credited with interest
using the AFR as of the Cost of Funds Settlement Date, such interest to
run from the Cost of Funds Settlement Date to the Premium Reimbursement
Date. The additional payment determined under this paragraph (c) shall
be made to the Participant if he is then living, and if he is not then
living, then to the Participant's Beneficiary. Such payment shall be
made in the same form being under this Agreement as of the Premium
Reimbursement Date. If no payments are being made under this Agreement
as of such date, or, alternatively, at the Participant's or
Beneficiary's election, as applicable (with the consent of the
Employer), payment shall be made to the Participant or Beneficiary, as
applicable, in a
lump sump payment as soon as practicable after the Premium
Reimbursement Date."
**************************************************
The terms of the SERP not hereby amended shall be and remain in full force
and effect and are not affected by this Amendment.
IN WITNESS WHEREOF, Participant and Employer have duly executed this
Amendment as of the day and year first above written.
/s/ Jackson W. Moore
----------------------------------------
Jackson W. Moore
Participant
UNION PLANTERS CORPORATION
By: /s/ M. Kirk Walters
------------------------------------
Its: Senior Vice President and Treasurer
-----------------------------------
AMENDMENT NO. THREE TO SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
THIS AMENDMENT, dated as of January 22, 2004, by and between Union Planters
Corporation ("Employer") and Jackson W. Moore ("Participant"), amends that
certain Supplemental Executive Retirement Agreement, dated as of February 23,
1995, as previously amended April 17, 1997, and August 31, 1999, by and between
Employer and Participant (the "SERP").
WHEREAS, Employer and Participant desire to amend the SERP as provided herein;
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants
and agreements set forth herein and for other good and valuable consideration,
the receipt and adequacy of which is hereby acknowledged, the parties hereto
agrees as follows:
1. There is hereby added to the end of Section 2.1 following sentence:
"Notwithstanding anything to the contrary in Article II or any other
provision of this Agreement, the Normal Retirement Benefit or Reduced
Retirement Benefit determined under any Section of this Article II
shall be subject to the limitation provided for in Section 2.10 of this
Agreement."
2. There is hereby added a new Section 2.10 to the SERP to read as
follows:
"2.10 MAXIMUM SERP PRESENT VALUE UNDER ANY CIRCUMSTANCES.
Notwithstanding anything to the contrary in Article II or any other
provision of this Agreement, the maximum present value that may be paid
to the Participant or his beneficiary under any Section of this Article
II, and regardless of the circumstances that cause such payment, shall
be Twenty Five Million Dollars ($25,000,000). For this purpose, (i)
"maximum present value" shall mean the present value of the payment or
payments to the Participant or his beneficiary, as determined under the
applicable section of this Article II; (ii) the Cost of Funds
Reimbursement under Section 2.9 shall not be subtracted from the
maximum present value; instead, the maximum present value shall be
determined after application of the Cost of Funds Reimbursement, if
any, under Section 2.9, and (iii) any payments or benefits under this
Agreement, other than payments under this Article II (such as payment
of attorney's fees, court costs and loss of benefits under Section
5.13, payment of taxes under Section 5.14, and continuation of medical
plan coverage under Article VI), shall be in addition to the maximum
present value provided for in this Section 2.10."
The terms of the SERP not hereby amended shall be and remain in full force and
effect and are not affected by this Amendment.
IN WITNESS WHEREOF, Participant and Employer have duly executed this Amendment
as of the day and year first above written.
/s/ Jackson W. Moore
- -------------------------
Jackson W. Moore
Participant
UNION PLANTERS CORPORATION
By: Bobby L. Doxey
Its: Chief Financial Officer
January 22, 2004
The Board of Directors
Union Planters Corporation
6200 Poplar Ave.
Memphis, TN 38119
RE: MODIFICATION OF MY RIGHTS UNDER THE SERP
Dear Sirs:
Reference is hereby made to that certain Agreement and Plan of Merger by and
among Union Planters Corporation ("Union Planters") and Regions Financial
Corporation ("Regions") dated as of the date of this letter (the "Merger
Agreement"). Capitalized terms used herein and not otherwise defined have the
meanings set forth in the Employment Agreement Amended and Restated as of April
17, 1997, as amended as of September 26, 2000, and as of the date hereof, among
me, Regions and Union Planters (the "Employment Agreement").
The effectiveness of this letter agreement is subject to the consummation of the
transactions contemplated by the Merger Agreement, and shall be effective on the
Effective Date.
This will confirm that, notwithstanding anything to the contrary in the
Supplemental Executive Retirement Agreement, dated as of February 23, 1995, as
amended April 17, 1999, August 31, 1999 and as of the date hereof, by and
between the Company and me (the "SERP Agreement"), I agree that I will not be
entitled to receive benefits under Section 2.6 of the SERP Agreement unless: (i)
there occurs a Change in Control of Union Planters (or its successor, including
the Company) other than the Merger, or (ii) other than as a result of
termination of my employment by the Company for Cause as defined under Section
4.1 of the Employment Agreement or due to my death or Disability as defined in
Section 4.2(c) of the Employment Agreement or my termination of employment as
contemplated by Section 4.4 of the Employment Agreement, (A) the Company fails
to appoint me to the position of Chief Executive Officer of the Company upon the
expiration of the Initial Period, (B) the Company removes me from the position
of Chief Executive Officer before commencement of the Third Period, or (C) I
fail to become the Chairman of the Board of Directors and Chief Executive
Officer upon the expiration of the Second Period (with respect to clause (ii)
hereof, the date of the "Change in Control" under the SERP Agreement will be
deemed to be the date I receive notice of either such failure or removal). For
purposes of clarity, this letter modifies only my entitlement to benefits in
certain circumstances under Section 2.6 of the SERP Agreement, and has no impact
on my rights to receive benefits under other Sections of the SERP Agreement, or
any other plan or agreement."
Please indicate your agreement with the foregoing by signing as indicated below.
Sincerely,
JACKSON W. MOORE
/s/ Jackson W. Moore
- ------------------------------
ACCEPTED AND AGREED:
UNION PLANTERS CORPORATION
/s/ Bobby L. Doxey
- ------------------------------
By: Bobby L. Doxey
Title: Chief Financial Officer