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EXHIBIT 10.1
EXECUTIVE RETIREMENT AGREEMENT
THIS EXECUTIVE RETIREMENT AGREEMENT, made and entered into as
of the _____ day of ______________, 199___, by and between Wachovia Corporation
(the "Corporation"), a North Carolina corporation, and _____________________
(the "Executive"), a senior management employee of the Corporation;
R E C I T A L S
The Executive is a senior management employee of the
Corporation, and as such has rendered and is expected to continue to render
valuable services in behalf of the Corporation. The Compensation, Nominating
and Organization Committee (the "Committee") of the Corporation desires for the
Corporation to provide the Executive with supplemental retirement benefits
partially in recognition of such services. In addition, the Committee has
determined that providing such benefits will make the Corporation's benefits
package more competitive with packages offered by many other employers and will
facilitate management succession planning for the Corporation.
NOW, THEREFORE, the Corporation and the Executive hereby mutually agree as
follows:
Section 1. Definitions. When used herein, the words and phrases below
shall have the meanings set forth, unless a different meaning is clearly
required by the context. Terms used but not defined herein, and which are
defined in the Retirement Plan, shall have the meaning assigned to them in the
Retirement Plan. Masculine pronouns include feminine pronouns wherever used
and vice versa.
1.1 "Board of Directors" means the Board of Directors of
the Corporation.
1.2 "Code" means the Internal Revenue Code of 1986, as it
may be amended from time to time.
1.3 "Effective Date" means ______________________.
1.4 "Final Average Compensation" means the average of the
annual compensation of the Executive for the three full calendar years within
the final five full calendar years of his employment which will produce the
highest average. For this purpose, the compensation of the Executive shall
mean his total cash remuneration from the Corporation, including bonuses paid
for each year under the Corporation's Senior Management Incentive Plan, plus
the sum of: (a) any salary reduction amounts which the Executive elects to
have contributed with respect to him to a qualified cash or deferred
arrangement under Section 401(k) of the Code, to a benefit equalization plan in
lieu of contributions to such a qualified cash or deferred arrangement, to a
cafeteria plan under Section 125 of the Code, or to any similar plan or
arrangement, and (b) any amounts deferred under any deferred compensation plan
or contract. Amounts described in (a) and (b) shall be deemed received at the
time the Executive would have received them but for the programs described in
(a) and (b).
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1.5 "Normal Retirement Date" means the first day of the
month coincident with or next following the date the Executive attains age
sixty.
1.6 "Other Pension Plan" means any defined benefit
pension plan, other than the Retirement Plan, in which the Executive is a
participant and which is qualified under Section 401(a) of the Code and is
maintained by the Corporation or a subsidiary of the Corporation.
1.7 "Retirement Date" means the date the Executive
retires under this Agreement on account of early or normal retirement.
1.8 "Retirement Plan" means the Retirement Income Plan of
Wachovia Corporation and any successor thereto.
1.9 "Supplemental Benefit" means the monthly benefit
payable to the Executive under this Agreement.
Section 2. Normal Retirement. At his Normal Retirement Date, the
Executive will retire and will be entitled to receive the Supplemental Benefit,
computed in the form of a single life annuity for his life. The monthly amount
of the Supplemental Benefit shall equal one-twelfth of the product of two and
one-half percent of the Executive's Final Average Compensation times the number
of years of his creditable service determined under the provisions of the
Retirement Plan (subject to a maximum of 62.5%), reduced by the monthly amount
payable under the Retirement Plan and any Other Pension Plan. The offset shall
equal the monthly amounts actually payable under the Retirement Plan and any
Other Pension Plan, based on the payment option elected by the Executive.
Section 3. Early Retirement. If the Executive has attained his
fifty-fifth birthday but has not attained his Normal Retirement Date, and has
ten or more years of service, he may elect early retirement as of the first day
of any calendar month following written notice of at least ninety days to the
Corporation and the Committee. The Supplemental Benefit of the Executive who
elects early retirement shall equal the benefit determined under Section 2 as
of such date, reduced by five percent for each year (with proportionate
allowance for complete months) by which the starting date of the benefit
precedes attainment of his sixtieth birthday. With the consent of the
Committee, the Supplemental Benefit shall be payable to the Executive pursuant
to Section 2 commencing as of the first day of any calendar month on or after
his early retirement and before his Normal Retirement Date. The request for
benefit payment must be filed by the Executive in writing with the Committee at
least thirty days prior to the date payments are requested to commence.
Section 4. Spouse's Supplemental Benefit. If the Executive shall be
married on his Retirement Date, and shall die thereafter survived by such
spouse, or if the Executive shall die prior to his Retirement Date and shall be
married on the date of his death, such spouse shall be entitled to a monthly
supplemental benefit (herein the "Spouse's Supplemental Benefit") payable for
life and equal to 60% of the monthly amount of the Supplemental Benefit payable
to the Executive (assuming, for an Executive who shall die prior to his
Retirement Date, that the Executive had retired on the date immediately
preceding the date of his death and that the years
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of his creditable service included the years and fractions thereof from the
date of death to his Normal Retirement Date), before applying the reduction for
the monthly amount payable to the Executive under the Retirement Plan and any
Other Pension Plan, but reduced by the monthly amount, if any, payable to the
spouse under the Retirement Plan and any Other Pension Plan in the calendar
month next following the death of the Executive. Notwithstanding the
provisions of this Section 4 or Section 7(k), in no event shall the Spouse's
Supplemental Benefit be less than the amount payable with respect to the
Executive under the Equalization Plan discussed in Section 7(k). The monthly
amount of the Spouse's Supplemental Benefit shall be payable on the first day
of each calendar month following the death of the Executive and preceding the
death of such spouse.
Section 5. Optional Forms of Payment. Notwithstanding the provisions of
Sections 2 through 4, the present value of the sum of the Supplemental Benefit
and the Spouse's Supplemental Benefit (if any) may, at the request of the
Executive and with the consent of the Executive's spouse (if any) and the
Committee, be payable in cash in a lump sum within thirty days following the
Retirement Date of the Executive. Such present value shall be the actuarial
equivalent (as defined in the Retirement Plan) of the Supplemental Benefit and
Spouse's Supplemental Benefit (if any). The request for a lump sum
distribution, and the consent of the Executive's spouse, must be filed by the
Executive with the Committee at least sixty days prior to the Retirement Date.
Such consent shall be in writing on a form provided by the Committee.
Section 6. Disability. In the event the Executive suffers a disability
(as defined in the Retirement Plan) prior to the Retirement Date, the Executive
shall continue to accrue a Supplemental Benefit under this Agreement based upon
the Final Average Compensation of the Executive as of the last date the
Executive was paid by the Corporation (including sick pay) and taking into
account the period from the disability of the Executive to the Normal
Retirement Date as creditable service for purposes of this Agreement. The
Supplemental Benefit of the Executive who is disabled shall be determined and
payable as of the Normal Retirement Date of the Executive.
Section 7. Miscellaneous.
(a) The Executive shall forfeit any right to the
Supplemental Benefit or any other rights hereunder (including the
Spouse's Supplemental Benefit) if he (i) declines to retire at his
Normal Retirement Date, (ii) terminates employment with the
Corporation prior to his Retirement Date without written consent of
the Committee, or (iii) is terminated for "cause." Termination for
cause shall arise if the Executive's employment by the Corporation is
terminated because of or arising out of: (A) criminal dishonesty, (B)
refusal to perform his employment duties for the Corporation on
substantially a full-time basis, (C) refusal to act in accordance with
any specific substantive instructions of the Corporation's Chief
Executive Officer or Board of Directors, or (D) engaging in conduct
which could be materially damaging to the Corporation without a
reasonable good faith belief by the Executive that such conduct was in
the best interest of the Corporation.
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(b) The Supplemental Benefit shall cease to be paid to
the Executive (and rights to the Spouse's Supplemental Benefit shall
terminate) if he shall disclose material confidential information or
trade secrets concerning the Corporation or any of its subsidiaries
without the Corporation's consent, or shall engage in any activity
that is materially damaging to the Corporation including, but not
limited to, engaging in competitive employment at any time. The
Executive shall be deemed to engage in competitive employment if he
shall render services as a employee, officer, director, consultant or
otherwise, for any employer which conducts a principal business or
enterprise that competes directly with the Corporation or any
subsidiary or affiliate of the Corporation. The Committee shall have
authority to cease payments under this paragraph (b), and the
determination of the Committee shall be final and conclusive. Upon the
request of the Executive, the Committee may grant an advance opinion
as to whether a proposed activity would violate the provisions of this
paragraph (b).
(c) The Executive acknowledges that he has entered into
this Agreement of his own free will and without duress. In
consideration of the mutual obligations and covenants hereunder, the
Executive unconditionally releases the Corporation and its
subsidiaries, and their respective directors, officers, employees and
shareholders, from any and all claims, liabilities and obligations of
any nature pertaining to termination of the Executive's employment by
the Corporation or any of its subsidiaries, including but not limited
to (i) any claims under federal, state or local laws prohibiting
discrimination including without limitation the Age Discrimination in
Employment Act of 1967, as amended, or (ii) any claims growing out of
any alleged legal restrictions on the Corporation's right to terminate
the Executive's employment, such as any alleged implied contract of
employment or termination contrary to public policy. The Executive
acknowledges that he has been advised to consult with an attorney
prior to signing this Agreement, that he has had no less than
twenty-one days to consider this Agreement prior to the execution
hereof, and that he may revoke this Agreement at any time within seven
days following execution hereof.
(d) This Agreement shall be administered and interpreted
by the Committee or its duly authorized designee, whose decisions
shall be final. Wherever applicable, interpretation of this Agreement
shall be consistent with the terms of the Retirement Plan.
(e) Nothing in this Agreement shall be construed as
giving the Executive the right to be retained in the employ of the
Corporation or any subsidiary of the Corporation at all or for any
specified period in any particular position, or any right to any
payment whatsoever except to the extent provided for by this
Agreement.
(f) Notwithstanding any other provisions hereof, if any
person entitled to receive payments hereunder (the "recipient") shall
be physically or mentally or legally incapable of receiving or
acknowledging receipt of such payment, the
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Corporation, upon the receipt of satisfactory evidence that another
person or institution is maintaining the recipient and that no
guardian or committee has been appointed for the recipient, may cause
such payment to be made to such person or institution so maintaining
the recipient.
(g) Nothing in this Agreement and no action taken
pursuant to the provisions of this Agreement shall create or shall be
construed as creating a trust of any kind, or a fiduciary relationship
between the Corporation and the Executive or any other person. Any
amounts which are or may be set aside hereunder shall continue for all
purposes to be a part of the general funds of the Corporation, and no
person other than the Corporation shall, by virtue of the provisions
of this Agreement, have any interest in such funds. To the extent
that any person acquires a right to receive payments from the
Corporation hereunder, such right shall be no greater than the right
of any unsecured general creditor of the Corporation.
(h) The benefits payable under this Agreement may not be
assigned by the Executive or any other person nor anticipated in any
way.
(i) The Committee may, in its sole discretion, terminate,
suspend or amend this Agreement at any time or from time to time, in
whole or in part; provided, that except as otherwise specifically
provided herein no such termination, suspension or amendment made
following the date that payments commence hereunder will affect the
right of any person to receive benefits earned hereunder.
(j) This Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina.
(k) In the event the Executive shall qualify to receive
payments under this Agreement and under the Wachovia Corporation
Retirement Income Benefit Equalization Plan (the "Equalization Plan"),
payments shall be made hereunder rather than and in lieu of payments
under the Equalization Plan, and neither the Executive nor any other
person claiming under or through him shall thereupon have any further
rights or be entitled to any benefits under the Equalization Plan.
The execution of this Agreement by the Executive constitutes a release
by the Executive of all rights and benefits under the Equalization
Plan.
(l) [OPTIONAL]If the Executive [was a participant in the
South Carolina National Corporation Supplemental Executive Retirement
Plan] OR [was a party to a Supplemental Retirement Agreement between
the Executive and First Atlanta Corporation] (referred to herein as
the "Predecessor SERP"), in no event shall the Supplemental Benefit or
Spouse's Supplemental Benefit payable under this Agreement be less
than the benefit determined pursuant to the Predecessor SERP had such
Predecessor SERP remained in effect until the Retirement Date of the
Executive. The execution of this Agreement by the
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Executive constitutes a release by the Executive of all rights and
benefits under the Predecessor SERP.
(l) [OPTIONAL]This Agreement amends, replaces and supersedes the prior
Executive Retirement Agreement between the Executive and the
Corporation dated ___________________________.
IN WITNESS WHEREOF, this Agreement has been executed in behalf
of the Corporation by its duly authorized officers and by the Executive as of
the day and year first above stated.
WACHOVIA CORPORATION
By:
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Chief Executive Officer
Attest:
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Secretary
[Corporate Seal]
(SEAL)
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Executive
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