COMPASS BANCSHARES, INC.
SMARTINVESTOR RETIREMENT BENEFIT RESTORATION PLAN
AS AMENDED AND RESTATED AS OF JANUARY 1, 2005
Purpose and Adoption of Plan
Compass Bancshares, Inc. (the Company) adopted and established the
Compass Bancshares, Inc. Smartlnvestor Retirement Restoration Plan (the Plan) effective as of
January 1, 2003. The Plan is an unfunded deferred compensation arrangement whose benefits shall be
paid solely from the general assets of the Employing Companies. This Plan as amended and restated
is adopted as of January 1, 2005.
1.2 Purpose: The Plan is designed to permit a select group of management or highly
compensated employees to receive benefits equal to the employer contributions that would have been
made for such employees under the Compass Bancshares, Inc. SmartInvestor Retirement Plan (the
SmartInvestor Retirement Plan), but for limitations imposed by the federal income tax laws.
1.3 Purpose of the 2005 Amendment and Restatement: The purpose of the amendment and
restatement of the Plan is to comply fully with Section 409A of the Code and the Treasury
regulations and other guidance issued with respect thereto.
For purposes of the Plan the following terms shall have the following meanings unless a
different meaning is plainly required by the context:
2.1 Account shall mean the hypothetical account or accounts established and maintained by
the Company for bookkeeping purposes to reflect the interest of a Participant in the Plan resulting
from Employer Contributions made on behalf of a Participant and adjustments thereto to reflect
deemed income, gains, losses, and other credits or charges less any distributions. This Account
shall be a bookkeeping entry only and shall be utilized solely as a device for the measurement and
determination of the amounts to be paid to a Participant under the Plan.
2.2 Administrative Committee shall mean the Compensation Committee of the Board of
2.3 Beneficiary shall mean any person, estate, trust, or organization entitled to receive
any payment under the Plan upon the death of a Participant. The Participant shall designate his
Beneficiary on a form provided by the Administrative Committee.
2.4 Board of Directors shall mean the Board of Directors of the Company or the Compensation
2.5 Change in Control shall mean a change in the ownership of the Company, a change in
effective control of the Company or a change in the ownership of a substantial portion of the
assets of the Company as provided under Code Section 409A and any Internal Revenue Service
guidance, including any Treasury regulations issued in connection with Code Section 409A.
2.6 Closing Price shall mean the closing price on any trading day of a share of the Common
Stock based on consolidated trading as defined by the Consolidated Tape Association and reported as
part of the consolidated trading prices of stock exchange on which the Common Stock is traded.
2.7 Code shall mean the Internal Revenue Code of 1986, as amended, including any successor
2.8 Common Stock shall mean the common stock of the Company.
2.9 Company shall mean Compass Bancshares, Inc.
2.10 Compensation shall mean the Employees base wages or salary paid by any Employing
Company to an Employee, including amounts contributed by an Employing Company to the Compass
Bancshares, Inc. Employee Stock Ownership Plan as salary deferral contributions pursuant to the
Employees exercise of his deferral option made in accordance with Section 401(k) of the Code,
amounts contributed by an Employing Company to the Compass Bancshares, Inc. Flexible Benefits Plan
(Superflex) on behalf of the Employee pursuant to his salary reduction election under such plan
and in accordance with Section 125 of the Code, amounts contributed to a qualified parking plan
under Section 132(1) of the Code, and any amounts contributed by the Employee on a pre-tax basis to
any other qualified or non-qualified deferred compensation plans of the Company; but disregarding
overtime, bonuses, other forms of incentive pay paid in cash and such amounts which are
reimbursements to an Employee paid by any Employing Company including, but not limited to,
reimbursement for such items as moving expenses, automobile expenses, tax preparation expenses,
travel and entertainment expenses, and health and life insurance premiums. Notwithstanding the
foregoing and solely in the case of Participants specified on Exhibit A hereto the term
Compensation shall also include bonuses and other forms of incentive pay paid in cash.
2.11 Effective Date shall mean the first day of the first payroll period the Administrative
Committee shall select an Employee for participation under the Plan and the Employee has agreed to
the terms for participation in the Plan.
2.12 Employee shall mean any person who is currently employed by an Employing Company.
2.13 Employer Contributions shall mean the amounts credited a Participants Account under
Article VI of the Plan.
2.14 Employing Company shall mean the Company or any affiliate or subsidiary (direct or
indirect) of the Company.
2.15 Enrollment Date shall mean the Effective Date, January 1, of each Plan Year and such
other dates as may be determined from time to time by the Administrative Committee.
2.16 ERISA shall mean the Employee Retirement Income Security Act of 1974, as amended.
2.17 Investment Request shall mean the Participants written request to have his Account
invested pursuant to Section 7.1 or Section 7.2 and which is accepted by the Administrative
2.18 Key Employee shall mean, for purposes of this Plan and in accordance with Section 409A
of the Code, a key employee as defined in Section 416(i) of the Code, without regard to paragraph
2.19 Participant shall mean an Employee or former Employee of an Employing Company who is
eligible to receive benefits under the Plan.
2.20 Plan shall mean Compass Bancshares, Inc. Smartlnvestor Retirement Benefit Restoration
Plan as amended from time to time.
Plan Year shall mean the twelve (12) month period
commencing January 1st and ending on
the last day of December.
2.22 Separation from Service shall mean a Participants separation from service as an
Employee with the Company for purposes of Section 409A of the Code other than for death or leave of
absence. A transfer of employment within or among the Company and any member of a controlled group,
as provided in Code Section 409A(d)(6) shall not be deemed a Separation from Service.
2.23 Unforeseeable Emergency shall mean (a) a severe financial hardship to the Participant
resulting from an illness or accident of the Participant, the Participants spouse or a dependent
(as defined in Code Section 152(a)) of the Participant, (b) loss of the Participants property due
to casualty, or (c) other similar extraordinary and unforeseeable circumstances arising as a result
of events beyond the control of the Participant, each as determined to exist by the Administrative
Committee, in its sole and absolute discretion as defined by Section 409A of the Code and the
Treasury regulations and other guidance thereunder.
The words in the masculine gender shall include the feminine and neuter genders and words in
the singular shall include the plural and words in the plural shall include the singular.
Administration of Plan
3.1 The Administrative Committee shall be responsible for the general administration of the
Plan. The Administrative Committee may select a chairman and may select a secretary (who may, but
need not, be a member of the Administrative Committee) to keep its records or to assist it in the
discharge of its duties. A majority of the members of the Administrative Committee shall constitute
a quorum for the transaction of business at any meeting. Any
determination or action of the Administrative Committee may be made or taken by a majority of the
members present at my meeting thereof, or without a meeting by resolution or written memorandum
concurred in by a majority of the members.
3.2 No member of the Administrative Committee shall receive any compensation from the Plan for
3.3 The Administrative Committee shall administer the Plan in accordance with its terms and
shall have all powers necessary to carry out the provisions of the Plan more particularly set forth
herein. It shall have the full discretion to interpret the Plan and determine all questions arising
in the administration, interpretation and application of the Plan. Any such determination by it
shall be conclusive and binding on all persons. It may adopt such regulations as it deems desirable
for the conduct of its affairs. It may appoint such accountants, counsel, actuaries, specialists
and other persons as it deems necessary or desirable in connection with the administration of this
Plan, and shall be the agent for the service of process.
3.4 The Administrative Committee shall be reimbursed by the Company for all reasonable
expenses incurred by it in the fulfillment of its duties. Such expenses shall include any expenses
incident to its functioning, including, but not limited to, fees of accountants, counsel,
actuaries, and other specialists, and other costs of administering the Plan.
3.5 (a) The Administrative Committee is responsible for the daily administration of the Plan.
It may appoint other persons or entities to perform any of its fiduciary and/or administrative
functions. The Administrative Committee and any such appointee may employ advisors and other
persons necessary or convenient to help it carry out its duties, including its fiduciary duties.
The Administrative Committee shall have the right to review the work and performance of each such
appointee as it deems necessary or appropriate, and shall have the right to remove any such
appointee from his position. Any person, group of persons or entity may serve in more than one
(b) The Administrative Committee shall maintain accurate and detailed records and accounts of
Participants and of their rights under the Plan and of all receipts, disbursements, transfers and
other transactions concerning the Plan. Such accounts, books and records relating thereto shall be
open at all reasonable times to inspection and audit by the Board of Directors and by persons
(c) The Administrative Committee shall take all steps necessary to ensure that the Plan
complies with the law at all times. These steps shall include such items as the preparation and
filing of all documents and forms required by any governmental agency; maintaining of adequate
Participants records; withholding of applicable taxes and filing of all required tax forms and
returns; recording and transmission of all notices required to be given to Participants and their
Beneficiaries; the receipt and dissemination, if required, of all reports and information received
from an Employing Company; and doing such other acts necessary for the proper administration of the
Plan. The Administrative Committee shall keep a record of all of its proceedings and acts, and
shall keep all such books of account, records and other data as may be necessary for proper
administration of the Plan. The Administrative Committee shall notify the
Company upon its request of any action taken by it, and when required, shall notify any other
interested person or persons.
3.6 The procedures for filing claims for payments under the Plan are described below:
(a) Submission of Claim. It is the intent of the Company to make payments under the Plan
without the Participant having to complete or submit any claim forms. However, any Participant
or Beneficiary or a duly authorized representative thereof (claimant) who believes he or she
is entitled to a payment under the Plan may submit a claim for payment to the Administrative
Committee. Any claim for payments under the Plan must be made by the claimant in writing and
state the claimants name and nature of benefits payable under
the Plan. The claimants claim
shall be deemed to be filed when delivered to a member of the Administrative Committee which
shall make all determinations as to the right of any person to benefits hereunder.
(b) Notice of Denial of Claim. If the claim is wholly or partially denied, the
Administrative Committee shall provide written or electronic notice thereof to the claimant
within a reasonable period of time, but not later than ninety (90) days after receipt of the
claim. An extension of time for processing the claim for benefits is allowable if special
circumstances require an extension, but such an extension shall not extend beyond one hundred
eighty (180) days from the date the claim for benefits is received by the Administrative
Committee. Written notice of any extension of time shall be delivered or mailed within ninety
(90) days after receipt of the claim and shall include an explanation of the special
circumstances requiring the extension and the date by which the Administrative Committee expects
to render the final decision.
The notice of adverse benefit determination shall (i) specify the reason for the denial; (ii)
reference the provisions of this Plan on which the denial is based; (iii) describe the additional
material or information, if any, necessary for the claimant to receive benefits and explain why
such information is necessary; (iv) indicate the steps to be taken by the claimant if a review of
the denial is desired, including the time limits applicable thereto; and (v) contain a statement of
the claimants right to bring a chit action under ERISA in the event of an adverse benefit
determination on review. If notice of the adverse benefit determination is not furnished in
accordance with the preceding provisions of this Section, the claim shall be deemed denied and the
claimant shall be permitted to exercise his right to review as set forth below.
(c) Review of Denied Claim. If a claim is denied and a review is desired, the claimant shall
notify the Administrative Committee in writing within sixty (60) days after receipt of written
notice of a denial of a claim. In requesting a review, the claimant may submit any written
comments, documents, records, and other information relating to the claim, the claimant feels are
appropriate. The claimant shall, upon request and free of charge, be provided reasonable access to,
and copies of, all documents, records and other information relevant to the claimants claim for
benefits. The Administrative Committee shall review the claim taking into account all comments,
documents, records and other information submitted by the claimant, without regard to whether such
information was submitted or considered in the initial benefit determination.
(d) Decision on Review. The Administrative Committee shall provide the
claimant with written notice of its decision on review within a reasonable period
of time, but not later than sixty (60) days after receipt of request upon review.
An extension of time for making the decision on the request for review is allowable
if special circumstances shall occur, but such an extension shall not extend beyond
one hundred twenty (120) days from the date the request for review is received by
the Administrative Committee. Written notice of the extension of time shall be
delivered or mailed within sixty (60) days after receipt of the request for review,
indicating the special circumstances requiring an extension and the date by which
the Administrative Committee expects to render a determination.
In the event of an adverse benefit determination on review, the notice thereof shall (i)
specify the reason or reasons for the adverse benefit determination; (ii) reference the specific
provisions of this Plan on which the benefit determination is based; (iii) contain a statement
that the claimant is entitled to receive, upon request and free of charge, reasonable access to,
and copies of all documents, records and other information relevant to the claimants claim for
benefits; and (iv) inform the claimant of the right to bring a civil action under the provisions
For purposes hereof, any document, record and item of information shall be considered
relevant to the claimants claim if it (i) was relied upon in making the benefit determination,
(ii) was submitted, considered, or generated in the course of making the benefit determination,
whether or not actually relied upon in making the determination; or (iii) demonstrates compliance
with the administrative processes and safeguards of this claims procedure.
(e) Preservation of Remedies. After exhaustion of the claims procedure as
provided herein, nothing shall prevent the claimant from pursuing any other legal or
equitable remedy otherwise available, including the right to bring a civil action
under Section 502(a) of ERISA, if applicable. Notwithstanding the foregoing, no
legal action may be commenced or maintained against the Company, any Employing
Company or the Administrative Committee more than ninety (90) days after the
claimant has exhausted the administrative remedies set forth in this Section 3.6.
4A Any controversy relating to a claim arising out of or relating to this Plan, including,
but not limited to claims for benefits due under this Plan, claims for the enforcement of ERISA,
claims based on the federal common law of ERISA, claims alleging discriminatory discharge under
ERISA, claims based on state law, and assigned claims relating to this Plan shall be settled by
arbitration in accordance with the then current Employee Benefit Claims Arbitration Rules of the
American Arbitration Association (AAA) or any successor rules which are hereby incorporated into
the Plan by this reference; provided, however, both the Company and the Participant shall have the
right at any time to seek equitable relief in court without submitting the issue to arbitration.
4.2 Neither the Participant (or his beneficiary) nor the Plan may be required to submit any
such claim or controversy to arbitration until the Participant (or his beneficiary) has first
exhausted the Plans internal appeals procedures set forth in Section 3.6. However, if the
Participant (or his beneficiary) and the Company agree to do so, they may submit the claim or
controversy to arbitration at any point during the processing of the dispute.
4.3 The Company will bear all costs of arbitration, except that the Participant will pay the
filing fee set by the AAA and the arbitrator shall have the power to apportion among the parties
expenses such as pre-hearing discovery, travel, experts fees, accountants fees, and attorneys
fees and except as otherwise provided herein. The decision of the arbitrator shall be final and
binding on all parties, and judgment on the arbitrators award may be entered in any court of
4.4 If there is a dispute as to whether a claim is subject to arbitration, the arbitrator
shall decide that issue. The claim must be filed with the AAA within the applicable statute of
limitations period. The arbitrator shall issue a written determination sufficient to ensure
consistent application of the Plan in the future.
4.5 Any arbitration will be conducted in accordance with the following provisions, not
withstanding the Rules of the AAA. The arbitration will take place in a neutral location within the
metropolitan area in which the Participant was or is employed by an Employing Company. The
arbitrator will be selected from the attorney members of the Commercial Panel of the AAA who reside
in the metropolitan area where the arbitration will take place and have at least 5 years of ERISA
experience. If an arbitrator meeting such qualifications is unavailable, the arbitrator will be
selected from the attorney members of the National Panel of Employee Benefit Claims Arbitrators established by the AAA.
4.6 In any such arbitration, each party shall be entitled to discovery of any other party as
provided by the Federal Rules of Civil Procedure then in effect; provided, however, that discovery
shall be limited to a period of 60 days. The arbitrator may make orders and issue subpoenas as
necessary. The arbitrator shall apply ERISA, as construed in the federal Circuit in which the
arbitration takes place, to the interpretation of the Plan and the Federal Arbitration Act to the
interpretation of this arbitration provision. To the extent that state law is not preempted by
ERISA, then the law of Alabama
4.7 Any party has the right to arrange for a stenographic record to be made of the
proceedings, which stenographic record shall be the official record. Either party may make an offer
of judgment at any time in accordance with the procedures of Rule 68 (or its successor) of the
Federal Rules of Civil Procedure. The existence of such an offer is not admissible in any
proceeding. If the monetary award of the arbitrator to a party is less than any monetary offer to
that party plus 20 percent of such offer, then that party receiving such award shall pay the other
party his reasonable attorneys fees, experts fees, accountants fees and other costs incurred
with respect to the arbitration following the date of the offer of judgment. Such amount is to be
deducted from the award prior to payment. Arbitration is the exclusive remedy for any dispute
between the parties other than equitable relief which either party may seek through the court
5.1 Any Employee who is a member of a select group of management or highly compensated
Employees, is eligible to participate in the SmartInvestor Retirement Plan, and is selected for
participation in the Plan by the Administrative Committee in its sole discretion, shall be eligible
to participate in the Plan. An Employee who is selected to participate shall be designated on
Exhibit B hereto. An Employee shall become a Participant by agreeing to be bound by the terms of
this Plan, including the non-competition provisions of Article IX.
5.2 Notwithstanding the above, the Administrative Committee shall be authorized to modify the
eligibility requirements and rescind the eligibility of any Participant if necessary to insure that
the Plan is maintained primarily for the purpose of providing deferred compensation to a select
group of management or highly compensated employees under ERISA.
5.3 If the Administrative Committee determines that a Participant is no longer eligible to
participate in the Plan no additional Employer Contributions shall be made on such Participants
behalf until it is again determined he is eligible to participate. The Account of such a
Participant shall continue to be adjusted by the provisions of Article VII until the Account is
distributed under Article VIII.
6.1 Subject to compliance with the provisions of Article IX, the Account of each Participant
shall be credited, as soon as administratively possible but no later than as of the close of the
Plan Year, with an amount specified under 6.1(a) less the amount specified under 6.1(b) as follows:
(a) An amount equal to the employer contribution the Company would have made to the
Smartlnvestor Retirement Plan on behalf of the Participant if the Compensation of the
Participant for the Plan Year were not subject to restrictions under Section 401(a)(17) of the
Code and if employer contributions to the Smartlnvestor Retirement Plan were not subject to
limitations under Section 415 of the Code.
(b) The amount equal to the Companys employer contribution on behalf of the Participant to
the Smartlnvestor Retirement Plan for the Plan Year.
6.2 The amount credited under Section 6.1 shall be subject to vesting under the same vesting
schedule and subject to the same terms and conditions applicable to the vesting of employer
contributions under the Smartinvestor Retirement Plan.
Investment of Accounts
7.1 The Account of each Participant shall be credited as of the last day of each calendar
quarter with investment earnings and losses based upon the assets in the Account or on such more
frequent basis as shall be authorized by the Administrative Committee. Upon
becoming eligible to participate and before the beginning of each Plan Year, Participants may
request how the Employer Contributions are to be invested. The investment preference shall be made
in writing on a form prescribed by the Company and shall be delivered to the Company at least ten
(10) days prior to such Enrollment Date and shall be effective as of such Enrollment Date. The
Investment Request made in accordance with this Article VII shall continue from Plan Year to Plan
Year unless the Participant changes the Investment Request by submitting a written request to the
Company on a form prescribed by the Company not later than the tenth (10th) day prior to the next
succeeding Plan Year. Any such change shall become effective as of the first day of the Plan Year
next following the Plan Year in which such request is submitted to the Company. The Administrative
Committee shall be authorized to permit more frequent changes in investment preferences to be
effective on such dates as it shall specify. The Administrative Committee shall consider the
Investment Request but is not obligated to follow such requests.
7.2 Participants shall be permitted to request from among such investment options as the
Administrative Committee may permit and can allocate their Accounts among such options for the Plan
Year. Dividends, interest and other distributions received with respect to any Investment Request
shall be deemed to be reinvested in the same investment option on such valuation system as shall be
approved by the Administrative Committee. No Participant shall be entitled to any voting rights
with respect to any shares of Common Stock credited to his Account.
7.3 At the end of each Plan Year (or on a more frequent basis as determined by the
Administrative Committee), a report shall be issued to each Participant who has an Account and said
report will set forth the value in such Account.
7.4 The Accounts under the Plan shall be hypothetical in nature and shall be maintained for
bookkeeping purposes only. Neither the Plan nor any Account shall be required to hold any actual
fund or asset.
Distribution of Accounts
8.1 Subject to compliance with the provisions of Article IX, when a Participant has a
Separation from Service with an Employing Company, said Participant shall be entitled to receive
the vested balance of his Account in cash in a lump sum or in equal monthly, quarterly or annual
installments not to exceed a fifteen (15) year period as specified on the Participants election
form. The portion of a Participants Account which is not fully vested on the date of his
Separation from Service with an Employing Company shall be forfeited and the Participant shall have
no further rights with respect thereto.
In the event the value of a Participants vested Account balance at the time distribution is
to commence is $10,000 or less, the Account shall be distributed in a lump sum notwithstanding a
Participants election to have his Account distributed in installments under the Plan. All payments
due under this Section 8.1 shall be made or commence as soon as reasonably feasible following a
Participants Separation from Service. Any amounts deemed to be invested in a Common Stock fund
shall be equal to the market value of any shares of Common Stock reported in a Participants
Account, based on the Closing Price of such Common Stock during
the day on which the distribution is processed immediately preceding the date of any lump sum or
installment distribution. No portion of a Participants Account shall be distributed in Common
Stock. The portion of an Account attributable to investments other than Common Stock shall be
valued on the date a distribution is processed. The transfer by a Participant between Employing
Companies shall not be deemed to be a Separation from Service with an Employing Company.
Notwithstanding the foregoing, distributions to a Key Employee as a result of Separation from
Service, whether the distribution is made in the form of a lump sum or installments, shall not be
made or the payments may not begin before the date which is six (6) months following the date of
the Separation from Service, or, if earlier, the date of death of the Key Employee.
8.2 On the Effective Date, a Participant shall elect the form of payment to be received upon
his death, Separation from Service or upon a Change in Control, such form to be either (a) a lump
sum, or (b) monthly, quarterly, or annual installments over a period not to exceed fifteen (15)
years. The initial payment election with respect to the form of payment shall govern the
distribution of such Participants Account, except as provided in Section 8.3. If a Participant
fails to specify a form of payment, his Account shall be distributed in a lump sum.
8.3 With the approval of the Administrative Committee, a Participant may amend a prior payment
election on a form provided by the Administrative Committee in order to change the form of
distribution of his Account. Any such amendment to a prior payment election shall be given effect
by the Administrative Committee only if the election to change the form of payment (i) does not
take effect until at least twelve (12) months after the date on which the payment election form is
filed with the Administrative Committee and (ii) the first payment with respect to such change in
election is made is deferred for a period of not less than five (5) years after the date such
payment would otherwise have been made except in the event of death or Unforeseeable Emergency.
Notwithstanding the foregoing, a Participant may elect to make a new payment election by
filing a new election form with the Administrative Committee on or before December 31, 2007;
provided that any such election applies only to amounts that would not otherwise be payable in the
year such new election is made and does not cause an amount to be paid in the year such new
election is made that would not otherwise be payable in such year.
8.4 Subject to compliance with the provisions of Article IX, upon the death of a Participant
prior to the payment of his Account, the vested balance of his Account shall be paid to the
Participants Beneficiary in a lump sum or in equal monthly, quarterly or annual installments not
to exceed a fifteen (15) year period as specified on the Participants payment election form with
such payment to be made or payments to commence in the case of installment distributions within
sixty (60) days following the close of the calendar quarter in which the Administrative Committee
is provided evidence of the Participants death (or as soon as reasonably practicable thereafter);
provided, however, if the value of a Participants Account at the time an installment distribution
is to commence is $10,000 or less, the Account shall be distributed in a lump sum. In the event a
Beneficiary designation is not on file or the designated Beneficiary is deceased or cannot be
located, payment will be made to the estate of the Participant. The market value of any shares of
Common Stock credited to a Participants
Account shall be based on the Closing Price of such Common Stock during the day on which the
distribution is processed immediately preceding the date of any lump sum or installment
distribution. No portion of a Participants Account shall be distributed in Common Stock. The
portion of an Account attributable to investments other than Common Stock shall be valued on the
date a distribution is processed. In the event of the death of a Participant subsequent to the
commencement of installment payments but prior to the completion of the payments, the installments
shall continue and shall be paid to the Beneficiary as if the Participant had not died.
8.5 The Beneficiary designation may be changed by the Participant or former Participant at any
time without the consent of the prior Beneficiary.
8.6 A Participant may request a distribution due to an Unforeseeable Emergency by submitting a
written request to the Administrative Committee accompanied by evidence to demonstrate that the
circumstances being experienced qualify as an Unforeseeable Emergency. The Administrative Committee
shall have the authority to require such evidence as it deems necessary to determine if a
distribution is warranted. If an application for a hardship distribution due to an Unforeseeable
Emergency is approved, the distribution is limited to an amount sufficient to meet the emergency.
The allowed distribution shall be payable in a method determined by the Administrative Committee as
soon as possible after approval of such distribution.
8.7 Upon a Change in Control, and subject to compliance with the provisions of Article IX, a
Participant shall be paid the vested balance of his Account in a lump sum within sixty (60) days
following the close of the calendar quarter in which such event occurs
8.8 Notwithstanding any provision of this Plan to the contrary, pursuant to Code Section
409A(a)(2), a Participants Account may not be distributed earlier than: (a) a Participants
Separation from Service, (b) the Participants death, (c) a Change in Control or (d) the occurrence
of an Unforeseeable Emergency.
Covenant Not to Compete, Non-Solicitation,
Non-Disclosure and Forfeiture
9.1 As a condition of participation in the Plan, Employee agrees with the Company and his
Employing Company as follows:
(a) While Employee is employed by any Employing Company, Employee will devote his or her
entire time, energy and skills to the service of the Employing Company. Such employment shall be at
the will and at the pleasure of the board of directors of each Employing Company.
(b} Employee will not, during the term of his or her employment with an Employing Company, and
after termination for any reason of his or her employment with an Employing Company, directly or
indirectly, either individually or as a stockholder, director, officer, consultant, independent
contractor, employee, agent, member or otherwise of or through any corporation, partnership,
association, joint venture, firm, individual or otherwise (hereinafter Finn), or in any other
(i) Carry on or engage in a business like or similar to any business engaged in
by the Employing Company in any territory in which the Employing Company has been or
is conducting business;
(ii) Solicit or do business with any customer of the Employing Company; or
(iii) Solicit, directly or indirectly, any employee of any Employing Company to
leave their employment with the Employing Company for any reason. For purposes of
this Agreement, the Employing Company and Employee agree that Employee shall be
deemed to have solicited an employee in violation of this Agreement if such employee
is hired by Employee or his or her Firm within six (6) months of Employees last
employment date with any Employing Company.
(c) During the term of his or her employment with an Employing Company and thereafter,
Employee shall not divulge, or furnish or make accessible to any third party, company, corporation
or other organization (including, but not limited to, customers, competitors or governmental
agencies), without the Companys prior written consent, any trade secrets, customer lists,
information regarding customers, or other confidential information concerning any Employing Company
or its business, including without limitation confidential methods of operation and organization,
trade secrets, confidential matters related to pricing, markups, commissions and customer lists.
9.2 In the event of a breach by Employee of all or any part of the provisions of subdivisions
(b) or (c) of Section 9.1, the Employee shall immediately forfeit all rights to any benefits under
this Plan attributable to Employer Contributions and the Company shall be entitled to receive from
the Employee an amount equal to all benefits previously paid to Employee attributable to Employer
9.3 In the event of a breach or threatened breach by Employee of all or any part of the
provisions of subdivisions (b) of Section 9.1 within the two-year period following his termination
of employment or (c) of this Section 9.1 at any time, the Company shall in addition to any remedies
that may be applicable under Section 9.2, be entitled to a preliminary and permanent injunction
restraining Employee from such breach without limiting any other rights or remedies available to
the Company for such breach or threatened breach. The two-year period during which the Company
shall be entitled to an injunction for a breach or threatened breach of subdivision (b) of Section
9.1 shall be extended by any period of time during which Employee is in default of the covenants
contained in this Article IX.
9.4 Employee specifically recognizes and affirms that each of the covenants contained in
subdivisions (b) and (c) of this Section 9.1 is a material and important term of this Plan which
has induced the Company to permit Employee to participate in this Plan, and Employee further agrees
that should all or any part or application of subdivisions (b) or (c) of Section 9.1 of this Plan
be held or found invalid or unenforceable for any reason whatsoever by a court of competent
jurisdiction in an action between Employee and the Company, such invalidity or unenforceability
shall not affect any other provisions of the Plan, and the Company shall be entitled to rescind
(but not obligated to do so) all benefits attributable to Employer Contributions
under Article VII granted to Employee under this Plan. If Employee has been paid benefits under
this Plan, the Company shall be entitled to receive from Employee an amount equal to all benefits
paid to Employee attributable to Employer Contributions.
9.5 Notwithstanding any provision to the contrary herein contained, Section 9.1(b) shall not
(a) Upon the involuntary termination of the Employees employment by an Employing Company
other than for Cause within one (1) year following a Change in Control; or
(b) Upon the voluntary termination of employment by the Employee for any reason within the
thirty (30) day period immediately after the one (1) year period following a Change in Control.
For purposes of this Agreement, Cause shall mean (i) a willful and material violation of
applicable banking laws and regulations, (ii) dishonesty, (iii) theft, (iv) fraud, (v)
embezzlement, (vi) commission of a felony or a crime involving moral turpitude, (vii) substantial
dependence or addiction to alcohol or any drug, (viii) conduct disloyal to an Employing Company or
its affiliates, or (ix) willful dereliction of duties or disregard of lawful instructions or
directions of the officers of directors of an Employing company or its affiliates relating to a
For purposes of this Article, Change in Control shall have the meaning set forth in Section 2.5.
Nature of Employer Obligation and Participant Interest
10.1 A Participant, his Beneficiary, and any other person or persons having or claiming a
right to payments under this Plan shall rely solely on the unsecured promise of the Company set
forth herein, and nothing in this Plan shall be construed to give a Participant, Beneficiary, or
any other person or persons any right, title, interest, or claim in or to any specific assets,
fund, reserve, account, or property of any kind whatsoever owned by the Company or in which it may
have any right, title, or interest now or in the future; but a Participant shall have the right to
enforce his or her claim against the Company in the same manner as any =secured creditor.
10.2 All amounts paid under this Plan shall be paid in cash from the general assets of the
Company. Benefits shall be reflected on the accounting records of the Company but shall not be
construed to create, or require the creation of, a trust, custodial or escrow account. Nothing
contained in this Plan, and no action taken pursuant to its provisions, shall create or be
construed to create a trust or a fiduciary relationship of any kind between the Company and an
employee or any other person. Neither the employee nor a Beneficiary of an employee shall acquire
any interest greater than that of an unsecured creditor.
10.3 Any Benefits payable under this Plan shall be independent of, and in addition to, any
other benefits or compensation of any sort, payable to or on behalf of the Participant under or
pursuant to any other arrangement sponsored by the Company or any other agreement between the
Company and the Participant.
11.1 Neither the Participant, his Beneficiary, nor his legal representative shall have any
rights to commute, sell, assign, transfer or otherwise convey the right to receive any payments
hereunder, which payments and the rights thereto are expressly declared to be nonassignable and
Any attempt to assign or transfer the right to payments of this Plan shall be void and have no effect.
The assets from which Participants benefits shall be paid shall at
all times be subject to the claims of the creditors of the Employing Companies and a Participant shall have no
right, claim or interest in any assets as to which account is deemed to be invested or credited
under the Plan.
11.3 The Plan may be amended, modified, or terminated by the Board of Directors in its sole
discretion at any time and from time to time; provided, however, that no such amendment,
modification, or termination shall impair any rights to benefits under the Plan prior to such
amendment, modification, or termination. The Plan may also be amended or modified by the
Administrative Committee if such amendment or modification does not involve a substantial increase
in cost to the Employing Companies.
11.4 It is expressly understood and agreed that the payments made in accordance with the Plan
are in addition to any other benefits or compensation to which a Participant may be entitled or for
which he may be eligible, whether funded or unfunded, by reason of his employment by an Employing
11.5 The Company shall deduct from each payment under the Plan the amount of any tax (whether
federal, state or local income taxes, Social Security taxes or Medicare taxes) required by any
governmental authority to be withheld and paid over by the Employing
Company to such governmental
authority for the account of the person entitled to such distribution.
11.6 Any Employer Contributions credited to a Participants Account while employed by an
Employing Company shall not be considered compensation earned currently for purposes of any
tax-qualified retirement plan sponsored by Compass. Distributions from a Participants Account
shall not be considered wages, salaries or compensation under any other employee benefit plan.
11.7 No provision of this Plan shall be construed to affect in any manner the existing rights
of an Employing Company to suspend, terminate, alter, modify, whether or not for cause, the
employment relationship of the Participant and an Employing Company.
11.8 Except to the extent pre-empted by federal law, this Plan, and all its rights under it,
shall be governed by and construed in accordance with the laws of the State of Alabama
11.9 This Plan shall be binding upon the Company, its assigns, and any successor which shall
succeed to substantially all of its assets and business through merger, consolidation or
11.10 Compliance with the AJCA. Code Section 409A, as added by the American Jobs Creation Act
of 2004 (AJCA), substantially revised the requirements applicable to certain deferred compensation
arrangements. This Plan is intended to comply, and to be operated in all respects in compliance,
with the requirements of Code Section 409A and all Internal Revenue Service rulings, Treasury
regulations or other pronouncements or guidance implementing or interpreting its provisions. All
provisions of this Plan shall be interpreted or construed so as to meet the requirements of Code
Section 409A and all regulations, rulings and other pronouncements or guidance thereunder and no
action, amendment or termination of the Plan shall be effective to the extent it would cause the
Plan to violate the requirements of Code Section 409A.
In the event subsequent Treasury regulations, Internal Revenue Service rulings or
other pronouncements or guidance interpreting or implementing the provisions of Code Section 409A
affect any provisions of this Plan or any election or other administrative form used for the Plan,
this Plan and any election or other administrative form used for the Plan shall be amended, as
necessary, to comply with such regulation, ruling or other pronouncement or guidance; and, until
adoption of any such amendment, the provisions hereof shall be construed and interpreted to comply
with the applicable provisions of such regulation, ruling or other pronouncement or guidance. No
such amendment to the Plan or to any administrative form shall be considered prejudicial to any
interest of a Participant or Beneficiary hereunder.
11.11 It is intended that Plan transactions and elections made by Participants who are
subject to Section 16 of the Exchange Act meet applicable requirements for exemption pursuant to
Rule 16b-3 under the Exchange Act and that this Plan be operated and interpreted in all respects
in compliance therewith. Accordingly, notwithstanding anything in this Plan to the contrary, all
transactions, elections, amendments, applications or other actions or determinations in connection
with the Plan (including without limitation elections and amendments under Article VIII, hardship
distribution applications under Section 8.6, and amendments to the Plan) with respect to or
affecting any Participant subject to Section 16 of the Exchange Act shall be subject to the prior
approval of the Board of Directors (or the Compensation Committee thereof}. Notwithstanding
anything in this Plan to the contrary, the Administrative Committee may restrict, rescind or deem
void any Plan transaction or election, or impose other restrictions, rules or procedures with
respect to the Plan or participation therein, to the extent deemed necessary or appropriate by the
Administrative Committee in furtherance of this Section 11.11.
IN WITNESS WHEREOF, the Plan as amended and restated
as of January 1, 2005, has been executed
pursuant to approval of the Administrative Committee, this 18th
||COMPASS BANCSHARES, INC.
||/s/ Joseph B. Cartee
||/s/ Garrett R. Hegel
||Associate General Counsel
||Chief Financial Officer
Compass Bancshares, Inc.
Smartlnvestor Retirement Restoration Plan
Compass Bancshares, Inc.
SmartInvestor Retirement Restoration Plan
William C. Helms