EMPLOYMENT AGREEMENT
AGREEMENT by and between SunTrust Banks, Inc., a
Georgia corporation (the "Company"), and Xxxxxxx X. Xxxxxxxx (the
"Executive"), dated as of July 20, 1998, but effective as of the
Effective Date (as hereinafter defined).
The Company has determined that it is in the best
interests of the Company and its stockholders to assure that it will
have the benefit of the valuable services and continued dedication of
the Executive following consummation of the merger (the "Merger") of
Crestar Financial Corporation ("Crestar") with the Company or a
subsidary of the Company pursuant to the Agreement and Plan of Merger
dated as of July 20, 1998, and the Executive has agreed to serve the
Company on the terms and conditions hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration,
the receipt of which is hereby acknowledged, the Company and the
Executive hereby agree as follows:
1. Effective Date. The "Effective Date" shall mean
the date of consummation of the Merger. In the event the Merger is not
consummated, this Agreement shall be null and void and of no force and
effect.
2. Employment Period. The Company on its behalf and
on behalf of Crestar Bank ("C Bank ") hereby agrees to employ the
Executive, and the Executive hereby agrees to be employed by Company
and C Bank, subject to the terms and conditions of this Agreement, for
the period commencing on the Effective Date and ending on December 31,
2000 (the "Employment Period").
3. Terms of Employment.
(a) Position; Duties; Place of Employment.
(i) During the Employment Period,
(A) the Executive shall serve as Vice Chairman and Executive Vice
President of the Company and as Chief Executive Officer of C Bank, (B)
the Executive's services under this Agreement shall be performed
principally in the same location or locations as the Executive's
services were performed for Crestar immediately prior to the Effective
Date, (C) Executive shall operate as a "State Head" of the Company with
the same authority normally associated with such status from time to
time to run the operations of the Company in the States of Virginia and
Maryland and in the District of Columbia, and (D) the Executive shall
report directly to the Chief Executive Officer of the Company and shall
perform such additional
duties not inconsistent with the Executive's position as a senior
executive of the Company as may reasonably be requested by such Chief
Executive Officer.
(ii) During the Employment Period,
and excluding any periods of vacation and sick leave to which the
Executive is entitled, the Executive agrees to devote substantially all
of his attention and time during normal business hours to the business
and affairs of the Company and to use the Executive's reasonable best
efforts to perform faithfully and efficiently the re sponsibilities
assigned to him under this Agreement. During the Employment Period, it
shall not be a violation of this Agreement for the Executive to (A)
serve on corporate, civic or charitable boards or committees, (B)
deliver lectures, fulfill speaking engagements or teach at educational
institutions and (C) manage personal investments, so long as such
activities do not unreasonably interfere with the performance of the
Executive's responsibilities as a senior executive of the Company in
accordance with this Agreement. It is expressly understood and agreed
that to the extent that any such activities have been conducted
regularly by the Executive prior to the Effective Date, the continued
conduct of such activities (or the conduct of activities similar in
nature and scope thereto) subsequent to the Effective Date shall not
thereafter be deemed to unreasonably interfere with the performance of
the Executive's responsibilities to the Company.
(b) Board Membership. As of the Effective Date, the
Board of Directors of the Company (the "Board") shall nominate the
Executive (and the Board shall elect the Executive) as a director of
the Company and the Company shall cause the Board of Directors of C
Bank (the "C Bank Board") to appoint the Executive as Chairman of the C
Bank Board. So long as the Executive serves as an employee of the
Company during the Employment Period, the Company shall cause the
Executive to be included in the slate of nominees recommended by the
Board to the Company's stockholders for election as directors at each
annual meeting of the stockholders of the Company at which his class of
directors is standing for election, and the Company shall use its best
efforts to cause the election of the Executive, including soliciting
proxies in favor of the election of the Executive, and the Company
shall cause the C Bank Board to maintain the Executive in the position
of Chairman of the C Bank Board. Executive shall resign from the
Company's Board of Directors and from the C Bank Board effective as of
the last day of his Employment Period, and his resignation shall be
accepted.
(c) Compensation.
(i) Base Salary. With respect
to each full calendar year during the Employment Period, the
Executive shall be entitled to receive base salary ("Annual
Base Salary") equal to $900,000. Such Annual Base
Salary shall be paid in accordance with the Company's payroll policies
and practices for executive employees.
(ii) Annual Bonus. With respect
to each full calendar year during the Employment Period, the Executive
shall receive an annual cash bonus ("Annual Bonus") in an amount equal
to $600,000 for calendar year 1999 and $700,000 for calendar year 2000.
Such Annual Bonus shall be paid in accordance with the Company's
payroll policies and practices for executive employees.
(iii) Initial Equity-Based Awards.
As of the Effective Date, the Company shall grant to the Executive an
aggregate of 60,000 shares of restricted Company common stock (the
"Restricted Stock") and a ten-year nonqualified option (the "Option")
to acquire an aggregate of 180,000 shares of the Company's common stock
(the "Company Stock"). The Option shall have an exercise price per
share equal to the closing price per share of the Company Stock on the
New York Stock Exchange on the Effective Date and shall be subject to
anti-dilution adjustments set forth in the Company's 1995 stock option
plan under which the Option is granted . Except as otherwise provided
herein, the Option and the Restricted Stock shall vest in accordance
with the vesting schedule applicable to similarly situated executives
of the Company, but the Option and the Restricted Stock shall fully
vest in no event later than the earlier of (1) the end of the
Employment Period or (2) the occurrence of an event which fully vests
all options granted under the Company's 1995 stock option plan. The
Option and the Restricted Stock shall also become fully vested upon
Executive's death, Disability, termination of Executive's employment by
the Company without Cause and termination of Executive's employment by
the Executive for Good Reason. The Option shall have a ten (10) year
term and shall remain exercisable until the expiration of such term
unless the Executive's employment is terminated by the Company for
Cause or by the Executive without Good Reason; provided, however, that
in the event of a merger transaction involving the Company, the
foregoing shall not be construed as precluding the Option from being
treated in such transaction in the same manner as other outstanding
options held by Company employees. As promptly as practicable, and in
any event within six (6) months after the Effective Date, the Company
shall, at its expense, cause all shares of Restricted Stoc and all
shares of Company Stock subject to the Option (and the options referred
to in paragraph (iv) below) to be registered under the Securities Act
of 1933, as amended (the "Securities Act"), and registered or qualified
under applicable state laws, to be freely resold. The Company shall
maintain the effectiveness of such registration and qualification for
so long as the Executive or any member of the Executive's immediate
family owns the shares of Restricted Stock or holds any option describe
in this Agreement or owns the underlying shares of Company Stock or
until such earlier date as all such shares, without such registration
or qualification, may be freely sold without any restrictions under the
Securities Act.
(iv) Future Stock Options. At
the time the Company makes its option grant to other senior executives,
the Executive shall be granted an option to purchase 25,000 shares of
Company Stock in 1999 and in 2000. Each such option shall be granted
subject to the terms of the Company's stock option plan for a ten (10)
year term and shall be subject to the anti-dilution adjustments set
forth in such plan, provided, however, that (A) each such option shall
fully vest no late than the earlier of (1) the end of the Employment
Period or (2) the occurrence of an event which fully vests all options
granted under the Company's 1995 stock option plan, (B) each such
option shall fully vest upon Executive's death, Disability, termination
of employment by the Company without Cause and termination of
Executive's employment by the Executive for Good Reason, and (C) each
such option shall remain exercisable until the expiration of such term
unless Executive's employment is terminated by the Company for Cause or
by the Executive without Good Reason; provided, however, that in the
event of a merger transaction involving the Company, the foregoing
shall not be construed as precluding the option from being treated in
such transaction in the same manner as other outstanding options held
by Company employees. However, no options shall be granted to the
Executive under this clause (iv) if his employment by the Company
terminates before the date the option is granted; provided, however,
that any such options not theretofore granted shall be deemed to have
been granted immediately prior to the date as of which the Executive's
employment is terminated by the Company without Cause or by the
Executive for Good Reason.
(v) Supplemental Retirement
Benefit. The Company agrees that, upon the Executive's ceasing to be
employed by the Company for any reason on or before the end of the
Employment Period, the Executive shall have the right to receive, at
his election (or, in the event of his death, at the election of his
surviving spouse) either (A) the benefit payable to or in respect of
Executive under the terms of the supplemental retirement plan of
Crestar as in effect on July 20, 1998 treating all service and
compensation (salary and bonus) earned by the Executive with the
Company on and after the Effective Date as service and compensation
with Crestar or (B) the benefit payable to or in respect of the
Executive under the terms of the Company's supplemental retirement plan
as in effect on July 20, 1998, treating all service with and
compensation from Crestar prior to the Effective Date as service with,
and compensation from, the Company to the extent such service and
compensation would have been taken into account under such plan if such
service had been performed for the Company and such compensation had
been paid by the Company. No compensation under Crestar's value share
program shall be taken into account under this Section 3(c)(v).
(vi) Other Employee Benefit
Plans; Perquisites. During the Employment Period, the Executive shall
be provided with employee benefits (including, but not limited to,
medical benefits and life insurance, but excluding benefits which are
like the benefits described in Section 3(c)(i) through section 3(c)(iv)
of this Agreement) and fringe benefits and other perquisites, at a
level not less favorable than that provided to the Executive by Crestar
immediately prior to the Effective Date.
(vii) Expenses. During the
Employment Period, the Executive shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the Executive in
accordance with the Company's policies.
(viii) Office and Support Staff.
During the Employment Period, the Executive shall be entitled to an
office or offices of a size and with furnishings and to administrative
and other support services as are provided generally to other senior
executives of the Company.
(ix) Vacation. During the
Employment Period, the Executive shall be entitled to paid vacation in
accordance with the plans, policies, programs and practices of the
Company with respect to other senior executives of the Company.
4. Termination of Employment.
(a) Death or Disability. The Executive's employment
shall terminate automatically upon the Executive's death during the
Employment Period. If the Company determines in good faith that the
Disability of the Executive has occurred during the Employment Period
(pursuant to the definition of Disability set forth below), it may give
to the Executive written notice in accordance with Section 12(b) of
this Agreement of its intention to terminate the Executive's
employment. In suc event, the Executive's employment with the Company
shall terminate effective on the 30th day after receipt of such notice
by the Executive (the "Disability Effective Date"), provided that,
within the 30 days after such receipt, the Executive shall not have
returned to full-time performance of the Executive's duties. For
purposes of this Agreement, "Disability" shall mean the absence of the
Executive from the Executive's duties with the Company on a full-time
basis for 180 consecutive business day as a result of incapacity due to
mental or physical illness which is determined to be total and
permanent by a physician selected by the Company or its insurers and
acceptable to the Executive or the Executive's legal representative.
(b) Cause. The Company may terminate the Executive's
employment during the Employment Period for Cause. For purposes of this
Agreement, "Cause" shall mean:
(i) the continued failure of the
Executive to perform substantially the Executive's duties with the
Company and its affiliates (other than any such failure resulting from
incapacity due to physical or mental illness), after a written demand
for substantial performance is delivered to the Executive by the Board
which specifically identifies the manner in which the Board believes
that the Executive has not substantially performed the Executive's
duties, or
(ii) the willful engaging by the
Executive in illegal conduct or gross misconduct, which is
materially and demonstrably injurious to the Company, or
(iii) conviction of a felony or
guilty or nolo contendere plea by the Executive with respect thereto,
which is materially and demonstrably injurious to the Company.
For purposes of this provision, no act or failure to act, on the part
of the Executive, shall be considered "willful" unless it is done, or
omitted to be done, by the Executive in bad faith or without reasonable
belief that the Executive's action or omission was in the best
interests of the Company. Any act, or failure to act, based upon
authority given pursuant to a resolution duly adopted by the Board or
upon the instructions of the Chief Executive Officer of the Company or
based upon the advic of counsel for the Company shall be conclusively
presumed to be done, or omitted to be done, by the Executive in good
faith and in the best interests of the Company. The cessation of
employment of the Executive shall not be deemed to be for Cause unless
and until there shall have been delivered to the Executive a copy of a
resolution duly adopted by the affirmative vote of not less than
two-thirds of the entire membership of the Board at a meeting of the
Board called and held for such purpose (after reasonable notice is
provided to the Executive and the Executive is given an opportunity,
together with counsel, to be heard before the Board), finding that, in
the good faith opinion of the Board, the Executive is guilty of the
conduct described in subparagraph (i), (ii) or (iii) above and
specifying the particulars thereof in detail.
(c) Good Reason. The Executive's employment may be
terminated by the Executive for Good Reason. For purposes of this
Agreement, "Good Reason" shall occur upon a good faith determination by
the Executive that the Company has materially breached any of its
obligations under this Agreement, which breach is not cured within 20
days of the receipt of written notice of such breach by the Company from
the Executive.
(d) Notice of Termination. Any termination by the
Company for Cause, or by the Executive for Good Reason, shall be
communicated by Notice of Termination to the other party hereto given
in accordance with Section 12(b) of this Agreement. For purposes of
this Agreement, a "Notice of Termination" shall mean a written notice
which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in
reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision
so indicated and (iii) if the Date of Termination (as defined below) is
other than the date of receipt of such notice, specifies the
termination date (which date shall be not more than thirty days after
the giving of such notice).
(e) Date of Termination. "Date of Termination" shall
mean (i) if the Executive's employment is terminated by the Company for
Cause, or by the Executive for Good Reason, the date of receipt of the
Notice of Termination or any later date specified therein in accordance
with this Agreement, (ii) if the Executive's employment is terminated
by the Company other than for Cause or Disability, the Date of
Termination shall be the date on which the Company notifies the
Executive of such termination and (iii) if the Executive's employment
is terminated by reason of death or Disability, the Date of Termination
shall be the date of death of the Executive or the Disability Effective
Date, as the case may be.
5. Obligations of the Company upon Termination.
(a) Good Reason; Other Than for Cause or Disability.
If, during the Employment Period, the Company shall
terminate the Executive's employment other than for
Cause or Disability or the Executive shall terminate
employment for Good Reason:
(i) the Company shall pay to the
Executive, in addition to any earned but unpaid portion of the Executive's
Annual Base Salary and Annual Bonus through the Date of Termination (the
"Accrued Obligations"), a lump sum cash payment, within 10 days after the Date
of Termination, in an amount equal to the Annual Base Salary and Annual Bonus
which would have been paid to the Executive for the remainder of the Employment
Period absent such termination;
(ii) for the remainder of the
Employment Period, the Company shall continue to provide to the Executive (and,
to the extent applicable, his spouse) medical and dental benefits (collectively
"Medical Benefits") and other welfare benefits, fringe benefits and perquisites
on the same basis as such benefits and perquisites were provided to the
Executive immediately prior to the Date of Termination;
(iii) the Option and the
Restricted Stock awards, as well as the options referred to in Section 3(c)(iv)
hereof, shall vest immediately;
(iv) the Company shall pay to the
Executive a lump sum cash payment, within 30 days after the Date of Termination,
in an amount equal to the amount the Company would have contributed on the
Executive's behalf to any qualified or supplemental defined contribution plan
for the period from the Date of Termination through and including the end of the
Employment Period, had the Executive's employment not terminated hereunder;
(v) to the extent not
theretofore paid or provided, the Company shall timely pay or provide to the
Executive any other amounts or benefits required to be paid or provided or which
the Executive is eligible to receive under any plan, program, policy or practice
or contract or agreement of the Company and its affiliated companies through the
Date of Termination, including retiree medical and dental benefits and executive
life insurance benefits in accordance with Crestar's current practice with
respect to its "grandfathered" executives (such other amounts and benefits shall
be hereinafter referred to as the "Other Benefits"); and
(vi) the Company shall pay to
Executive (and, after his death, his surviving spouse) the supplemental
retirement benefit hereunder.
(b) Death. If the Executive's employment is
terminated by reason of the Executive's death during the Employment
Period, this Agreement shall terminate without further obligations to
the Executive's legal representatives under this Agreement, other than
the payment of Accrued Obligations, the timely payment or provision of
Other Benefits to or in respect of the Executive and the payment to the
Executive's surviving spouse of the supplemental retirement benefits
hereunder. I addition, the Option and the Restricted Stock, as well as
the options referred to in Section 3(c)(iv) hereof, shall vest
immediately. Accrued Obligations shall be paid to the Executive's
estate or beneficiary, as applicable, in a lump sum in cash within 30
days of the Date of Termination.
(c) Disability. If the Executive's employment is
terminated by reason of the Executive's Disability during the
Employment Period, this Agreement shall terminate without further
obligations to the Executive, other than for payment of Accrued
Obligations, the timely payment or provision of Other Benefits and the
payment of the supplemental retirement benefit hereunder. In addition,
the Option and the Restricted Stock, as well as the options referred to
in Section 3 (c)(iv), shall vest immediately. Accrued Obligations shall
be paid to the Executive in a lump sum in cash within 30 days of the
Date of Termination.
(d) Cause; other than for Good Reason. If the
Executive's employment shall be terminated for Cause or the Executive
terminates his employment without Good Reason during the Employment
Period, this Agreement shall terminate without further obligations to
the Executive other than the obligation to pay or provide to the
Executive the Accrued Obligations and Other Benefits, in each case to
the extent theretofore unpaid or not provided, and the payment of the
supplemental retirement benefit hereunder.
(e) Effect. Any termination of the Executive's
employment shall have no effect on the continuing operation of this
Section 5.
6. Non-exclusivity of Rights. Except as specifically
provided, nothing in this Agreement shall prevent or limit the
Executive's continuing or future participation in any plan, program,
policy or practice provided by the Company or any of its affiliated
companies and for which the Executive may qualify, nor, subject to
Section 12(f), shall anything herein limit or otherwise affect such
rights as the Executive may have under any contract or agreement with
the Company or any of its affiliated companies. Amounts which are
vested benefits or which the Executive is otherwise entitled to receive
under any plan, policy, practice or program of or any contract or
agreement with the Company or any of its affiliated companies at or
subsequent to the Date of Termination shall be payable in accordance
with such plan, policy, practice or program or contract or agreement
except as explicitly modified by this Agreement.
7. No Mitigation, etc. The Company's obligation to
make the payments provided for in this Agreement and otherwise to
perform its obligations hereunder shall not be affected by any set-off,
counterclaim, recoupment, defense or other claim, right or action which
the Company may have against the Executive or others. In no event shall
the Executive be obligated to seek other employment or take any other
action by way of mitigation of the amounts payable to the Executive
under any of the provisions of this Agreement and, such amounts shall
not be reduced whether or not the Executive obtains other employment.
The Company agrees to pay or promptly reimburse the Executive for all
reasonable costs and expenses (including all reasonable legal fees and
expenses) which the Executive may reasonably incur in connection with
any dispute hereunder (regardless of the outcome thereof) relating to
the validity or enforceability of, or liability under, any provision of
this Agreemen (including as a result of any claim by the Executive
regarding the amount of any payment pursuant to this Agreement), plus
in each case interest on any delayed payment at the applicable Federal
rate provided for in Section 7872(f)(2)(A) of the Internal Revenue Code
of 1986, as amended (the "Code"); provided, however, that the foregoing
obligation shall not apply with respect to any claim by the Executive
which is determined not to have been brought in good faith.
8. Certain Additional Payments by the
Company.
(a) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any payment,
distribution or other benefit provided by the Company or Crestar or any
of their affiliates to or for the benefit of the Executive (whether
paid or payable or distributed or distributable pursuant to the terms
of this Agreement or otherwise, but determined without regard to any
additional payments required under this Section 8) (a "Payment") would
be subject to the excise tax imposed by Section 4999 of the Code or any
interest or penalties are incurred by the Executive with respect to
such excise tax (such excise tax, together with any such interest and
penalties, are hereinafter collectively referred to as the "Excise
Tax"), then the Executive shall be entitled to receive an additional
payment (a "Gross-Up Payment") in an amount such that after payment by
the Executive of all taxes (including any interest or penalties imposed
with respect to such taxes), including, without limitation, any income
taxes, employment taxes and Excise Tax imposed upon the Gross-Up
Payment, the Executive retains an amount of the Gross-Up Payment equal
to the Excise Tax imposed upon the Payments.
(b) Subject to the provisions of Section 8(c), all
determinations required to be made under this Section 8, including
whether and when a Gross-Up Payment is required and the amount of such
Gross-Up Payment and the assumptions to be utilized in arriving at such
determination, shall be made by KPMG Peat Marwick LLP or such other
certified public accounting firm reasonably acceptable to the Company
as may be designated by the Executive (the "Accounting Firm"), which
shall provide detailed supporting calculations both to the Company and
the Executive within 15 business days of the receipt of notice from the
Executive that there has been a Payment, or such earlier time as is
requested by the Company. All fees and expenses of the Accounting Firm
shall be borne solely by the Company. Any Gross-Up Payment, as
determined pursuant to this Section 8, shall be paid by the Company to
the Executive within five days of the later of (i) the due date for the
payment of any Excise Tax, and (ii) the receipt of the Accounting
Firm's determination. Any determination by the Accounting Firm shall be
binding upon the Company and the Executive. As a result of the
uncertainty in the application of Section 4999 of the Code at the time
of the initial determination by the Accounting Firm hereunder, it is
possible that Gross-Up Payments which will not have been made by the
Company should have been made ("Underpayment"), consistent with the
calculations required to be made hereunder. In the event that the
Company exhausts its remedies pursuant to Section 8(c) and the
Executive thereafter is required to make a payment of any Excise Tax,
the Accounting Firm shall determine the amount of the Underpayment that
has occurred and any such Underpayment shall be promptly paid by the
Company to or for the benefit of the Executive.
(c) The Executive shall notify the Company in writing
of any claim by the Internal Revenue Service that, if successful, would
require the payment by the Company of the Gross-Up Payment. Such
notification shall be given as soon as practicable but no later than
ten business days after the Executive is informed in writing of such
claim and shall apprise the Company of the nature of such claim and the
date on which such claim is requested to be paid. The Executive shall
not pay such claim prior to the expiration of the 30-day period
following the date on which it gives such notice to the Company (or
such shorter period ending on the date that any payment of taxes with
respect to such claim is due). If the Company notifies the Executive in
writing prior to the expiration of such period that it desires to
contest such claim, the Executive shall:
(i) give the Company any
information reasonably requested by the Company relating to such claim,
(ii) take such action in
connection with contesting such claim as the Company shall reasonably request in
writing from time to time, including, without limitation, accepting legal
representation with respect to such claim by an attorney reasonably selected by
the Company,
(iii) cooperate with the Company
in good faith in order effectively to contest such claim, and
(iv) permit the Company to
participate in any proceedings relating to such claim;
provided, however, that the Company shall bear and pay directly all
costs and expenses (including additional interest and penalties)
incurred in connection with such contest and shall indemnify and hold
the Executive harmless, on an after-tax basis, for any Excise Tax or
income tax (including interest and penalties with respect thereto)
imposed as a result of such representation and payment of costs and
expenses. Without limitation on the foregoing provisions of this
Section 8(c), the Company shall control all proceedings taken in
connection with such contest and, at its sole option, may pursue or
forgo any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may,
at its sole option, either direct the Executive to pay the tax claimed
and xxx for a refund or contest the claim in any permissible manner,
and the Executive agrees to prosecute such contest to a determination
before any administrative tribunal, in a court of initial jurisdiction
and in one or more appellate courts as the Company shall determine;
provided, however, that if the Company directs the Executive to pay
such claim and xxx for a refund, the Company shall advance the amount
of such payment to the Executive, on an interest-free loan basis and
shall indemnify and hold the Executive harmless, on an after-tax basis,
from any Excise Tax or income tax (including interest or penalties with
respect thereto) imposed with respect to such advanc or with respect to
any imputed income with respect to such advance; and further provided
that any extension of the statute of limitations relating to payment of
taxes for the taxable year of the Executive with respect to which such
contested amount is claimed to be due is limited solely to such
contested amount. Furthermore, the Company's control of the contest
shall be limited to issues with respect to which a Gross-Up Payment
would be payable hereunder and the Executive shall be entitled to
settle or contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by the Executive of an
amount advanced by the Company pursuant to section 8(c), the Executive
becomes entitled to receive any refund with respect to such claim, the
Executive shall (subject to the Company's complying with the
requirements of Section 8(c)) promptly pay to the Company the amount of
such refund (together with any interest paid or credited thereon after
taxes applicable thereto). If, after the receipt by the Executive of an
amount advanced as an interest free loan by the Company pursuant to
Section 8(c), a determination is made that the Executive shall not be
entitled to any refund with respect to such claim and the Company does
not notify the Executive in writing of its intent to contest such
denial of refund prior to the expiration of 30 days after such
determination, then such loan shall be forgiven and shall not be
required to be repaid and the amount of such loan shall offset, to the
extent thereof, the amount of Gross-Up Payment required to be paid.
9. Confidential Information.
(a) The Executive shall hold in a fiduciary capacity
for the benefit of the Company all secret or confidential information,
knowledge or data relating to the Company or any of its affiliated
companies, and their respective businesses, which shall have been
obtained by the Executive during the Executive's employment by the
Company or any of its affiliated companies and which shall not be or
become public knowledge (other than by acts by the Executive or
representatives of the Executive in violation of this Agreement). After
termination of the Executive's employment with the Company, the
Executive shall not, without the prior written consent of the Company
or as may otherwise be required by law or legal process, communicate or
divulge any such information, knowledge or data to anyone other than
the Company and those designated by it. In no event shall an asserted
violation of the provisions of this Section 9 constitute a basis for
deferring or withholding any amounts otherwise payable to the Executive
under this Agreement.
(b) In the event of a breach or threatened
breach of this Section 9, the Executive agrees that the Company shall (in
addition to any other remedy available to the Company) be entitled to injunctive
relief in a court of appropriate jurisdiction to remedy any such breach or
threatened breach, the Executive hereby acknowledging that damages would be
inadequate and insufficient.
(c) Any termination of the Executive's employment or
of this Agreement shall have no effect on the continuing operation of this
Section 9.
10. Anti-Pirating.
(a) The Executive shall not, during the one year
period following his termination of employment for any reason under
this Agreement, seek to employ on his own behalf or on behalf of any
other person, firm, or corporation which engages, directly or
indirectly, in the same business as the Company or Crestar, any person
who was employed as an employee by the Company or Crestar in an
executive, managerial or supervisory capacity at any time during the
Executive's employment by the Company or Crestar and who has not
thereafter ceased to be employed in such capacity by the Company or
Crestar for a period of at least one (1) year.
(b) In the event of a breach or
threatened breach of this Section 10, the Executive agrees that the Company
shall (in addition to any other remedy available to the Company) be entitled to
injunctive relief in a court of appropriate jurisdiction to remedy any such
breach or threatened breach, the Executive hereby acknowledging that damages
would be inadequate and insufficient.
11. Successors.
(a) This Agreement is personal to the
Executive and without the prior written consent of the Company shall not be
assignable by the Executive otherwise than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable by
the Executive's legal representatives.
(b) This Agreement shall inure to the
benefit of and be binding upon the Company and its successors and
assigns.
(c) The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the Company
to assume expressly and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to
perform it if no such succession had taken place. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and
any successor to its business and/or assets as aforesaid which assumes
and agrees to perform this Agreement by operation of law, or otherwise.
12. Miscellaneous.
(a) This Agreement shall be governed by and construed
in accordance with the laws of the State of Virginia, without reference
to principles of conflict of laws. The captions of this Agreement are
not part of the provisions hereof and shall have no force or effect.
This Agreement may not be amended or modified otherwise than by a
written agreement executed by the parties hereto or their respective
successors and legal representatives.
(b) All notices and other communications hereunder
shall be in writing and shall be given by hand delivery to the other
party or by registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:
If to the Executive:
Xxxxxxx X. Xxxxxxxx
Crestar Financial Corporation
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
If to the Company:
SunTrust Banks, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: General Counsel
or to such other address as either party shall have furnished to the
other in writing in accordance herewith. Notice and communications shall be
effective when actually received by the addressee.
(c) The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement.
(d) The Company may withhold from any amounts payable
under this Agreement such federal, state, local or foreign taxes as
shall be required to be withheld pursuant to any applicable law or
regulation.
(e) The Executive's or the Company's failure to
insist upon strict compliance with any provision of this Agreement or
the failure to assert any right the Executive or the Company may have
hereunder, including, without limitation, the right of the Executive to
terminate employment for Good Reason pursuant to Section 4(c) of this
Agreement, shall not be deemed to be a waiver of such provision or
right or any other provision or right of this Agreement.
(f) From and after the Effective Date, this Agreement
shall supersede any other employment, severance or change in control
agreement between the parties hereto or between the Executive and
Crestar, including Crestar's Executive Severance Plan as in effect for
Executive immediately prior to the Effective Date (the "Severance
Agreement") and no such employment, severance or change in control
agreement, including the Severance Agreement, shall have any further
force or effect whatsoever.
13. Dispute Resolution. In the event of any dispute
or controversy arising under or in connection with this Agreement, the
parties shall settle such dispute or controversy exclusively by
arbitration in Richmond, Virginia, in accordance with the rules of the
American Arbitration Association then in effect. Judgment may be entered
on the arbitrator's award in any court having jurisdiction.
14. Indemnification. To the fullest extent permitted
by law, the Company shall indemnify the Executive (including the
advancement of expenses) for any judgments, fines, amounts paid in
settlement and reasonable expenses, including attorneys' fees, incurred
by the Executive in connection with the defense of any lawsuit or other
claim to which he is made a party by reason of being an officer,
director or employee of the Company or any of its affiliates during the
Employment period and for at least three (3) years thereafter, the
Company shall make every reasonable effort to maintain customary
director and officer liability insurance covering the Executive for
acts and omissions during the Employment Period. Any termination of the
Executive's employment or of this Agreement shall have no effect on the
continuing operation of this Section 14.
IN WITNESS WHEREOF, the parties have executed this
Agreement on the date and year first above written.
SunTrust Banks, Inc.
By:___________________________
Name: L. Xxxxxxx Xxxxxx
Title: Chairman of the Board and
Chief Executive Officer
-----------------------------
Xxxxxxx X. Xxxxxxxx
