Exhibit 10.20
WHITNEY HOLDING CORPORATION
DEFERRED COMPENSATION PLAN
As
Amended and Restated Effective as of January 1,
2008
WHITNEY HOLDING CORPORATION
DEFERRED COMPENSATION PLAN
TABLE OF CONTENTS
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ARTICLE
I PURPOSE
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1
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ARTICLE
II DEFINITIONS
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1
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2.1
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Beneficiary
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1
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2.2
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Benefit Commencement Date
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1
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2.3
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Bonus
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2
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2.4
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Change in Control
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2
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2.5
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Class Year
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2
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2.6
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Compensation
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2
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2.7
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Deferral Election
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3
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2.8
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Deferred Benefit Account
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3
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2.9
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Determination Date
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3
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2.10
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Disabled or Disability
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3
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2.11
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Employer
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3
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2.12
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Employer Contributions
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3
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2.13
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Enrollment Period
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3
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2.14
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Financial Hardship
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3
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2.15
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Grandfathered Account
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3
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2.16
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Interest Earnings Rate
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4
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2.17
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On-Line Enrollment
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4
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2.18
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Participant
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4
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2.19
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Plan Committee
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4
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2.20
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Plan Year
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4
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2.21
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Retirement Date
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4
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2.22
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Savings Plus Plan
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4
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2.23
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Specified Employee
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4
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2.24
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Termination of Employment
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4
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2.25
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Unforeseeable Emergency
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4
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2.26
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Other Definitions
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5
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ARTICLE
III ELIGIBILITY AND PARTICIPATION
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5
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3.1
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Conditions of Eligibility
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5
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3.2
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Participation
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5
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3.3
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No Effect on Other Benefits
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5
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ARTICLE
IV COMPENSATION DEFERRALS AND OTHER CONTRIBUTIONS
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5
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4.1
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Limitations on Compensation Deferrals
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5
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4.2
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Deferral of Compensation or Bonus
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5
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4.3
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Employer Contributions
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6
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4.4
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Deferred Benefit Accounts
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6
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ARTICLE
V MAINTENANCE OF DEFERRED BENEFIT ACCOUNTS
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7
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5.1
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Status of Accounts
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7
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5.2
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Investment Policy
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7
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5.3
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Investment of Accounts
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7
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5.4
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Interest Earnings Rate
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8
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5.5
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Liability for Deferred Benefit Account
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8
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5.6
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Valuation of Accounts
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8
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5.7
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Valuation Notice
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9
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ARTICLE
VI RETIREMENT BENEFITS
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9
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6.1
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Special Definitions
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9
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6.2
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Time of Payment
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9
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6.3
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Disability Benefit
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9
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6.4
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Special Payment Election Rules
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10
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6.5
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Determination of Retirement Benefit
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10
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6.6
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Form of Retirement Benefit
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10
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6.7
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Cash Out of Small Benefits
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11
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ARTICLE
VII DEATH BENEFITS
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11
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7.1
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Special Definition
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11
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7.2
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Participant's Death Before Benefit Commencement
Date
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11
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7.3
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Participant's Death After Benefit Commencement
Date
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11
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7.4
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Death of Beneficiary
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11
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7.5
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Single-Sum Payment
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12
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ARTICLE
VIII HARDSHIP AND OTHER BENEFITS
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12
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8.1
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Withdrawals on Account of Financial Hardship or Unforeseeable
Emergency
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12
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8.2
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Benefit Payable on Termination for Cause
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13
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8.3
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Early Payments
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14
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ARTICLE
IX PLAN ADMINISTRATION
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14
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9.1
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Powers
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14
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9.2
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Payments
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14
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9.3
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Delegation of Administrative Authority
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14
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ARTICLE
X PARTICIPANTS' RIGHTS
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15
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10.1
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Spendthrift Provision
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15
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10.2
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Plan Not an Employment Agreement
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15
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10.3
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Offset
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15
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10.4
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Obligation for Benefit Payments
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15
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10.5
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Taxes
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15
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10.6
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Employer's Protection
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15
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ARTICLE
XI MISCELLANEOUS
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16
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11.1
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Termination of Plan
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16
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11.2
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Funding
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16
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11.3
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Change in Control
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17
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11.4
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Inurement
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17
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11.5
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Amendments
and Modifications
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17
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11.6
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Governing Law
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17
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WHITNEY HOLDING CORPORATION
DEFERRED COMPENSATION PLAN
This
Whitney Holding Corporation Deferred Compensation Plan (the
"Plan") is adopted by Whitney Holding Corporation, a
corporation organized and existing under the laws of the State
of Louisiana, and shall be first effective as of the date of
its adoption by the Compensation Committee of the Board of
Directors. The Plan was subsequently last amended
and restated effective as of January 1, 2008 in order to
comply with Section 409A of the Internal Revenue Code of 1986,
as amended, and any ambiguity hereunder shall be interpreted
in such a way as to comply, to the extent necessary, with
Section 409A of the Code and the regulations
thereunder.
ARTICLE I
PURPOSE
This
Plan is intended to be an unfunded deferred compensation
arrangement for the benefit of certain key management
employees of Whitney Holding Corporation and its corporate
subsidiaries within the meaning of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"). As such,
this Plan is not intended to constitute an employee benefit
plan under ERISA which is subject to the provisions of Parts
2, 3 and 4 of Title I of ERISA. In accordance with such
intent, any obligation of the Employer to pay benefits
hereunder shall be deemed to be an unsecured promise, and any
right of a Participant or Beneficiary to enforce such
obligation shall be solely as a general creditor of the
Employer. Further, the Plan is not intended to constitute a
qualified employee benefit plan within the meaning of Section
401(a) of the Internal Revenue Code of 1986, as amended (the
"Code").
ARTICLE II
DEFINITIONS
The
following words and phrases shall have the meanings and
applications set forth below:
2.1
Beneficiary . The
person, persons, entity or entities designated by a
Participant, during On-Line Enrollment, to receive Death
Benefits payable under the Plan. If no Beneficiary survives
the Participant, such benefits shall be payable to the
Participant's estate, and the estate shall be deemed to be the
Beneficiary under this Plan. A Participant shall be entitled
to amend the designation of a Beneficiary at any time, and any
such amendment shall be effective when it is received by the
Plan Committee.
2.2
Benefit Commencement Date . The
date on which the payment of a Participant's Retirement
Benefit under the Plan is paid or first commences. Such date
will be designated by each Participant during the On-Line
Enrollment process. If more than one Deferred Benefit Account
is maintained for a Participant hereunder, a separate Benefit
Commencement Date shall be designated with respect to each
such account.
2.3
Bonus . The
amount payable to a Participant, determined by the committee
on an annual basis, under the Whitney Holding Corporation
Executive Incentive Compensation Plan. The deferral of a
Bonus hereunder shall be in lieu of any form of deferral
permitted under the Whitney Holding Corporation Executive
Incentive Compensation Plan.
2.4
Change in Control . Change
in Control means that:
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a.
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Any
"person," including any "group," determined in accordance with
Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended, becomes the beneficial owner, directly or indirectly, of
securities of the Whitney Holding Corporation representing 20% or
more of the combined voting power of the Holding Corporation's then
outstanding securities, without the approval, recommendation, or
support of the Board of Directors of the Whitney Holding
Corporation as constituted immediately prior to such
acquisition;
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b.
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The
Federal Deposit Insurance Corporation or any other regulatory
agency negotiates and implements a plan for the merger, transfer of
assets and liabilities, reorganization, and/or liquidation of the
Whitney National Bank;
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c.
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Either
of the Whitney Holding Corporation or the Whitney National Bank is
merged into another corporate entity or consolidated with one or
more corporations, other than a wholly-owned subsidiary of the
Whitney Holding Corporation;
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d.
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A
change in the members of the Board of Directors of the Whitney
Holding Corporation which results in the exclusion of a majority of
the "continuing board." For this purpose, the term "continuing
board" means the members of the Board of Directors of the Whitney
Holding Corporation, determined as of the date on which this Plan
is executed, and subsequent members of such board who are elected
by or on the recommendation of a majority of such "continuing
board"; or
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e.
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The
sale or other disposition of all or substantially all of the stock
or the assets of the Whitney National Bank or the Whitney Holding
Corporation (or any successor corporation thereto).
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The
Plan Committee shall determine whether a Change in Control has
occurred under this Paragraph 2.3. Notwithstanding
the foregoing, in the event the Plan Committee determines that
a Change in Control has occurred, the Plan shall be terminated
in accordance with Section 11.3 in a manner that complies with
Code Section 409A and the Final Regulations
thereunder.
2.5
Class Year
. Each calendar
year. Notwithstanding the foregoing, the “2004
Class Year” includes all amounts deferred into the Plan in
2004 and in any calendar years prior to 2004.
2.6
Compensation . The
base salary paid by the Employer to a Participant for services
rendered during a calendar year, but determined before
reduction for compensation deferred pursuant to this Plan or
any other plan maintained by the Employer. For this purpose,
"Compensation" shall not include the amount of any long-term
disability benefit or any form of
retirement
or deferred compensation payment distributed from a plan
sponsored by the Employer.
2.7
Deferral Election . An
election by a Participant to defer a specific amount or
percentage of (a) Compensation, or (b) any Bonus, as the case
may be, for each Class Year which election shall be made in
writing in accordance with the provisions of Article IV
hereof.
2.8
Deferred Benefit Account . An
account maintained on the books of the Employer with respect
to each Participant's Deferral Election. Each such account
shall relate to deferrals made for each Class Year as
designated by such Participant.
2.9
Determination Date . The
last day of each Plan Year, and such other dates as may be
designated, from time to time, by the Plan
Committee.
2.10
Disabled or
Disability . A
Participant shall be deemed to be Disabled if the Participant
(i) is, by reason of any medically determinable physical or
mental impairment that can be expected to result in death or
can be expected to last for a continuous period of not less
than 12 months, receiving income replacement benefits for a
period of not less than 6 months under an accident and health
plan covering employee’s of the Employer, or (ii) is
unable to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment
that can be expected to result in death or can be expected to
last for a continuous period of not less than 12
months. The Plan Committee shall determine whether
a Participant is Disabled according to the above
criteria.
2.11
Employer . Whitney
Holding Corporation, a corporation organized and existing
under the laws of the State of Louisiana, and any corporate
subsidiary of Whitney Holding Corporation.
2.12
Employer Contributions . The
amount credited to a Participant's Deferred Benefit Account,
if any, in accordance with Section 4.4 hereof for each Class
Year.
2.13
Enrollment Period . The
period designated by Employer’s Corporate Human Resource
Department each year, provided however, that such period shall
end on or before the last business day of each
year.
2.14
Financial Hardship .
The occurrence of a severe financial hardship resulting from
extraordinary and unforeseeable circumstances beyond the
control of a Participant, including a
Disability. Any distribution for Hardship shall be
limited to amounts in a Participant’s Grandfathered
Account.
2.15
Grandfathered Account . The
value of the Deferred Benefit Account of each Participant on
December 31, 2004 including (i) the amount of any Employer
Contribution for 2004, if any, even if such amount had not
been credited to a Participant’s Deferred Benefit
Account as of December 31, 2004, and (ii) any earnings
accruing to the Participant’s Grandfathered
Account. For purposes of this Plan, no part
of the Participant’s Grandfathered Deferred Benefit
Account shall be subject to Code Section 409A, including the 6
month delay for payments to Specified Employees under Section
6.2 of this Plan. For purposes of this Plan, the
“Non-Grandfathered Account” shall equal the
Participant’s Deferred Benefit Account
balance
on the date of the Participant’s Termination of
Employment, minus the amount of the Participant’s
Grandfathered Account. The Non-Grandfathered
Account shall be subject to Code Section 409A.
2.16
Interest Earnings Rate .
The interest rate designated, from time to time, by the Plan
Committee in accordance with Article V hereof. The initial
Interest Earnings Rate shall be two percentage points greater
than the monthly average of the Moody's Corporate Bond Yield
Average - Monthly Average Corporate, as published by Moody's
Investor's Service, Inc. or a successor thereto.
2.17
On-Line Enrollment . The
annual process completed by each Participant using Fidelity
Investment’s Net-Benefits internet site which allows a
Participant to electronically provide for the
deferral of Compensation or Bonus amounts under this Plan, the
designation of a Benefit Commencement Date for each Class
Year, the election of the form of benefit payment for each
Class Year, and the designation of a Beneficiary using the
electronic format provided by Net Benefits.
2.18
Participant .
An executive or officer of the Employer who is eligible and
elects to participate in this Plan in accordance with Article
III.
2.19
Plan Committee . The
Plan Committee is the administrator of this Plan, the members
of which are the members of the Compensation and Human
Resource Committee of the Board of Directors of the Whitney
Holding Corporation.
2.20
Plan Year . The
twelve-month period beginning each January 1 st and
ending each December 31 st ; the
first Plan Year shall be a short period commencing as of the
date on which this Plan is adopted by the Board of Directors
of Whitney Holding Corporation and ending as of December 31,
1993.
2.21
Retirement Date . The
date the Participant reaches age 65.
2.22
Savings Plus Plan . A
qualified employee benefit plan maintained by Whitney National
Bank known as the Whitney National Bank Savings Plus Plan,
last amended and restated as of January 1, 2004.
2.23
Specified Employee . A
Participant who falls within the meaning of such term in Code
Section 409A and the final regulations thereunder
(“Final 409A Regulations”), provided, however,
that as permitted in the Final 409A Regulations, the
Employer’s Specified Employees and its application of
the six-month delay rule of Code Section 409A(a)(2)(B)(i)
shall be determined in accordance with a policy adopted by the
Compensation and Human Resource Committee of the Board of
Directors, which shall be applied consistently with respect to
all nonqualified deferred compensation arrangements of the
Employer, including this Plan.
2.24
Termination of Employment . A
separation from service under Code Section 409A and the Final
409A Regulations.
2.25
Unforeseeable Emergency . A
severe financial hardship of the Participant resulting from an
illness or accident of the Participant, the
Participant’s spouse, the
Participant’s
Beneficiary
or a dependent (as defined in Section 152 of the Code without
regard to Section 152(b)(1), (b)(2), and (d)(1)(B)), loss of
the Participant’s property due to casualty (including
the need to rebuild a home not otherwise covered by
insurance), or other similar extraordinary and unforeseeable
circumstances arising as a result of events beyond the control
of the Participant. Except as otherwise provided
herein, the purchase of a home and the payment of college
tuition are not unforeseeable emergencies. Any distribution
for an Unforeseeable Emergency shall be limited to amounts in
a Participant’s Non-Grandfathered Account.
2.26
Other Definitions . The
terms "Retirement Benefit," "Retirement Date," "Termination
Benefit," and "Death Benefit" shall have the respective
meanings set forth below.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
3.1
Conditions of Eligibility . Eligibility
to become a Participant in this Plan shall be determined by
the Plan Committee, in its sole discretion, from time to time.
Participants hereunder shall be executives or officers of the
Employer, who may be designated individually or by groups or
categories, in the discretion of the Plan Committee. Any such
determination shall be conclusive and binding upon all
persons.
3.2
Participation . The
Employer or the Plan Committee, as the case may be, shall
notify each executive or officer of his or her eligibility to
participate in this Plan. Eligible executives or officers may
elect to participate in this Plan by completing the On-Line
Enrollment process during the Enrollment
Period. The initial Enrollment Period for an
individual who is newly employed by the Employer is the period
beginning on his or her first day of employment and ending 30
days after the initial date of employment.
3.3
No Effect on Other Benefits
. Any
other compensation paid or benefits provided to a Participant
shall be in addition to and not in lieu of the benefits
provided to such Participant under this Plan. Except as
otherwise provided herein, nothing in this Plan shall be
construed as limiting, varying or reducing the provision of
any benefit available to a Participant, such Participant's
estate or Beneficiary pursuant to any employment agreement,
retirement plan, including any qualified pension or
profit-sharing plan, health, disability or life insurance plan
or any other form of agreement or arrangement between the
Employer and a Participant.
ARTICLE IV
COMPENSATION DEFERRALS AND OTHER
CONTRIBUTIONS
4.1
Limitations on Compensation Deferrals
. The
Plan Committee, in its discretion, may limit the amount of
Compensation deferred by any Participant hereunder. The Plan
Committee shall notify all Participants, in writing, of any
such limitation. Any such limitation shall be effective as of
the effective date hereof and thereafter as of the January 1
st which
coincides with or immediately follows the date on which any
such limitation is adopted by the Plan Committee.
4.2
Deferral of Compensation or Bonus
. The
Employer shall defer from the Compensation or Bonus otherwise
payable to a Participant the amount, if any, specified by such
Participant. A Participant who wishes to defer compensation
must irrevocably elect to do so
during
the applicable Enrollment Period for the next Class Year. The
Enrollment Period shall end prior to the first day of the
service year with respect to the applicable deferrable amount.
The “service year” is the Participant’s
taxable year in which the services related to the deferrable
amount will be performed by the
Participant. Elections shall be made annually for
each Class Year.
After
the initial Plan Year hereunder, a Participant is required to
complete the On-Line Enrollment process for each succeeding
Class Year. Any such Deferral Elections made during
the Enrollment Period shall apply solely to Compensation
payable or to a Bonus earned after January 1 st of the
immediately following Class Year.
4.3
Employer Contributions . The
Employer, in its discretion, may allocate to a Deferred
Benefit Account hereunder contributions made on behalf of one
or more Participants. Any such allocation shall be subject to
the following rules:
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a.
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Amount . The Plan Committee, in its sole discretion,
shall determine the amount of any such contribution. Any such
contribution need not be uniform with respect to all Participants
hereunder, but may be made with respect to any Participant or group
of Participants designated by the Plan Committee.
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b.
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Allocation . The amount of any such contribution
shall be allocated to the Deferred Benefit Account of each affected
Participant in accordance with the instructions of the Plan
Committee, as a matching contribution or otherwise. Any such
allocation shall be made with respect to the calendar year in which
the contributions were declared.
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4.4
Deferred Benefit Accounts . The
amount of Compensation deferred under each Deferral Election
for each Class Year shall be credited by the Employer to a
Deferred Benefit Account established for the Participant with
respect to such election. Compensation deferred
under this Plan prior to January 1, 2005 shall be part of a
Participant’s Grandfathered Account and 2004 Class
Year.
Each
Deferred Benefit Account shall be credited with amounts
deferred by the Participant for a separate Class
Year. Each such Participant may:
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a.
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Beneficiary . Designate a separate Beneficiary with
respect to each such account; and
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b.
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Time and Method of Payment . Designate separately
the time and method of payment with respect to each such
account.
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Once
a deferral hereunder is credited to a specific Deferred
Benefit Account, in no event shall such deferral (or earnings
or losses allocated thereto) be allocated to another Deferred
Benefit Account maintained for the same Participant
hereunder.
ARTICLE V
MAINTENANCE OF DEFERRED BENEFIT ACCOUNTS
5.1
Status of Accounts . A
Deferred Benefit Account established in accordance with the
terms of this Plan shall be a bookkeeping entry only. The
establishment and maintenance of any such account in
accordance with the terms of this Plan shall not be deemed to
constitute a trust, create any other form of fiduciary
relationship between the Employer and any Participant or
Beneficiary or otherwise create, for the benefit of any
Participant or Beneficiary, an ownership interest in or
expectation of any specific asset of the
Employer.
5.2
Investment Policy . The
Plan Committee shall direct the investment of amounts credited
to accounts hereunder. Such direction may provide for the
aggregation of all accounts or for the investment of such
accounts in accordance with the instructions of each
Participant. Such determination shall be made in the sole
discretion of the Plan Committee and need not be uniform as to
all Deferred Benefit Accounts maintained
hereunder.
If
the Plan Committee permits a Participant to specify the manner
in which his or her accou
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