EXHIBIT 10.65
MORGAN KEEGAN &
COMPANY
AMENDED AND
RESTATED
DEFERRED COMPENSATION
PLAN
Article 1. Plan Establishment
and Purpose
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1.1
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Background
of Plan . Morgan
Keegan & Company, successor to Morgan Keegan, Inc. for
purposes of this plan (the “Company”) established,
effective January 1, 2000, a deferred compensation plan that
is now known as the Morgan Keegan & Company Deferred
Compensation Plan (the “Plan”). The Plan became
effective for Base Salary earned in 2000 and thereafter, and
Incentive Awards earned in 2000 and thereafter. The Plan was most
recently amended effective as of July 1, 2001, except as
specifically provided otherwise (the “Prior Plan”).
Effective as of January 1, 2009, the Prior Plan is amended and
restated as set forth in this document to comply with
Section 409A of the Code and for certain other purposes.
Amounts earned and vested as of December 31, 2004 under the
Prior Plan (“Grandfathered Amounts”) shall, except as
otherwise expressly stated herein, remain subject to the terms and
conditions of the Prior Plan. Amounts earned and vested under this
Plan or the Prior Plan after December 31, 2004
(“Nongrandfathered Amounts”) shall be subject to the
terms and conditions of this Plan as hereby amended and
restated.
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1.2
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Status of
Plan . The Plan is
intended to be an unfunded plan under the Internal Revenue Code of
1986, as amended, although the Company may establish a trust under
Revenue Procedure 92-64 to provide benefits under the Plan, as
described in Article 13.
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1.3
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Purpose . The purpose of the Plan is to permit
Participants to defer Base Salary and Incentive Awards they receive
from the Company and to further align the objectives of key
employees with the interests of the Company’s
shareholders.
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1.4
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Interpretation . The Plan is intended to comply with §
409A, and any ambiguity hereunder shall be interpreted in such a
way as to comply, to the extent necessary, with § 409A or to
qualify for an exemption from § 409A.
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Article 2.
Definitions
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2.1
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Definitions . The following terms shall have their
respective meanings set forth below:
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“ § 409A ”
means Section 409A of the Code and shall include any
amendments thereto or successor provisions as well as any
applicable current and future regulations, rulings, IRS notices and
other binding legal authority interpreting or modifying the legal
requirements under Section 409A.
“ Account ” means
the account established on behalf of the Participant pursuant to
Section 5.9.
“ Base Salary ”
means, with respect to a Participant, cash base salary payable by
the Company to the Participant for service with the Company.
Notwithstanding any provision in this Plan to the contrary, Base
Salary shall not include bonuses or other incentive awards, but
shall include any amount which would have been included in cash
base salary but for the Participant’s election to defer
payment of such amount under any provision of the Code.
“ Code ” means
the Internal Revenue Code of 1986, as amended.
“ Committee ”
means Regions Financial Corporation Benefits Management
Committee.
“ Common Stock ”
means the common stock of Morgan Keegan, Inc. until March 31,
2001, as of which date “Common Stock” means the common
stock of Regions Financial Corporation.
“ Company ” means
Morgan Keegan & Company.
“ Compensation ”
means a Participant’s Base Salary and Incentive Award with
respect to a given Plan Year.
“ Compensation Conversion
Date ” means (i) with respect to an Incentive Award,
the date as of which the value of such Incentive Award is
calculated and payable; and (ii) with respect to Base Salary,
the date as of which the Base Salary is payable.
“Controlled Group” means
the Company and any other business entity (including any parent
company, subsidiary or sister company) that is aggregated with the
Company under Sections 414(b), (c), (m) or (o) of the
Code.
“ Deferral Election
” means an annual, irrevocable written election, made in
accordance with Section 5.1(b) on the form provided by the
Committee, to defer the receipt of a stipulated amount of:
(i) Incentive Awards (“Incentive Award Deferral
Election”); and/or (ii) Base Salary, subject to the
provisions of Sections 5.1 and 5.2 (“Base Salary Deferral
Election”).
“ Deferred Amount
Shares ” has the meaning assigned in
Section 5.3.
“ Disability ”
means a disability for which the Participant has qualified for and
is receiving benefits under a long term disability plan sponsored
by the Controlled Group for the benefit of employees of the
Company.
“ Dividend ”
means the dividend paid on a share of Common Stock for the relevant
period ending on the Dividend Date.
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“ Dividend Date ”
means the date on which a dividend is paid on a share of Common
Stock for the relevant period.
“ Fair Market Value
” means, on any date, (i) if the Common Stock is listed
on a securities exchange or is traded over the NASDAQ National
Market, the closing sales price on such exchange or over such
system on such date or, in the absence of reported sales on such
date, the closing sales price on the immediately preceding date on
which sales were reported, or (ii) if the Common Stock is not
listed on a securities exchange or traded over the NASDAQ National
Market, the mean between the bid and offered prices as quoted by
NASDAQ for such date; provided, however, that if it is determined
that the fair market value is not properly reflected by such NASDAQ
quotations, Fair Market Value will be determined by such other
method as the Committee determines in good faith to be
reasonable.
“Forfeiture
Period ” means,
with respect to any Matching Contribution, the period of time
designated by the Committee which follows the last day of the Plan
Year as of which the Matching Contribution is initially credited to
a Participant’s Account.
“Grandfathered Amount”
means any benefit hereunder that was earned and no longer subject
to a substantial risk of forfeiture on or before December 31,
2004, provided however that if there is a material modification
with respect to a Grandfathered Amount that causes it to become
subject to § 409A, such amount shall be a Nongrandfathered
Amount.
“ Incentive Award
” means, with respect to a Participant, the annual incentive
bonus earned by the Participant.
“ Matching Contribution
” has the meaning assigned in Section 5.5 and shall
include any Matching Contributions made in cash, in Matching
Contribution Shares, or otherwise.
“ Matching Contribution
Shares ” has the meaning assigned in
Section 5.5.
“Nongrandfathered
Amount” means any benefit hereunder that is not a
Grandfathered Amount.
“ Normal Retirement
Date ” means the date on which a Participant reaches age
sixty-five (65) while in the employment of the Controlled
Group.
“ Participant ”
means any individual designated to participate in the Plan pursuant
to Section 4.1.
“ Performance Shares
” means the number of shares determined in accordance with
Sections 5.3 and 5.5 (as the case may be), and shall in the
aggregate equal the number of Deferred Amount Shares and Matching
Contribution Shares, if any, computed with
respect to an Incentive Award or
Base Salary deferral, in accordance with Sections 5.3 and 5.5 (as
the case may be).
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“ Plan ” means
the Morgan Keegan & Company Deferred Compensation
Plan.
“ Plan Year ”
means the calendar year.
“Separation from
Service” shall mean a separation from service as defined in
§ 409A.
“Specified Employee”
means a ‘specified employee’ as defined in § 409A
and shall be determined in accordance with Regions’ general
policy for determining specified employees under § 409A, as
such policy may be amended from time to time.
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2.2
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Gender and
Number . Except when
otherwise indicated by the context, words in the masculine gender
when used in the Plan shall include the feminine gender, the
singular shall include the plural, and the plural shall include the
singular.
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Article 3.
Administration
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3.1
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Administration . The Committee shall have the exclusive
responsibility for the general administration of the Plan
(including Grandfathered Amounts) according to the terms and
provisions of the Plan and shall have all the powers necessary to
accomplish these purposes, including but not by way of limitation,
the right, power and authority:
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(a)
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To make rules
and regulations for the administration of the Plan;
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(b)
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To construe all
terms, provisions, conditions, and limitations of the
Plan;
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(c)
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To correct any
defects, supply any omissions or reconcile any inconsistencies that
may appear in the Plan in the manner and to the extent deemed
expedient;
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(d)
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To determine
all controversies relating to the administration of the Plan,
including but not limited to differences of opinion which may arise
between the Company or the Committee and a Participant;
and
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(e)
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To resolve any
questions necessary to promote the uniform administration of the
Plan.
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3.2
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Committee’s Discretion
. The Committee, in exercising any
power or authority granted under this Plan, or in making any
determination under this Plan, shall perform or refrain from
performing those acts in its sole and absolute discretion and
judgment. Any decision made by the Committee, or any refraining to
act or any act taken by the Committee, in good faith shall be final
and binding on all parties. Except where the provisions of the Plan
specifically grant the Committee the right to exercise discretion,
the Committee shall be bound by the terms of the Plan.
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3.3
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Liability
and Indemnity of Committee . The members of the Committee shall not be
liable for any act done or any determination made in good faith.
The Company shall, to the fullest extent permitted by law,
indemnify and hold the members of the Committee harmless from any
and all claims, causes of action, damages and expenses (including
reasonable attorneys’ fees and expenses) incurred by the
members of the Committee in connection with or otherwise related to
his or her service in such capacity.
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3.4
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Nature of
Interest . The granting
of rights to Participants under the provisions of the Plan
represents only a contracted right to receive deferred
compensation. Accordingly, the Plan grants no right to, or interest
in, either express or implied, any equity position or ownership in
Regions Financial Corporation.
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Article 4. Eligibility and
Participation
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4.1
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Eligibility
and Participation .
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(a)
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First Plan
Year . For the Plan Year
beginning January 1, 2000 (the “Initial Plan
Year”), employees eligible to participate in the Plan include
those executive officers and broker/employees of the Company whose
anticipated Compensation for the Initial Plan Year will meet or
exceed the limit on compensation set forth in
Section 401(a)(17) of the Code and whose prior year elective
deferrals into the 401(k) plan sponsored by the Company were
selected by the Participant to be the maximum amount permitted for
such year by the Code, regardless of whether the actual amount of
elective deferrals for such Participant was limited as a result of
the application of the non-discrimination testing rules that apply
to 401(k) plans and elective deferrals.
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(b)
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Subsequent
Plan Years . For each
Plan Year commencing after the Initial Plan Year, employees
eligible to participate in the Plan include (i) executive
officers and broker/employees of the Company who were eligible to
participate in the Plan in any prior Plan Year and who actually
participated in the Plan in any prior Plan Year; and
(ii) executive officers and broker/employees of the Company
who have not been eligible to participate in the Plan in any prior
Plan Year in accordance with this Section 4.1, whose
anticipated Compensation for the applicable Plan Year will meet or
exceed $180,000 (the “Compensation Minimum”). The
Committee retains the discretion to modify the Compensation Minimum
provided in this Section 4.1(b) for future Plan
Years.
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(c)
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Committee
Discretion .
Notwithstanding the provisions of subsections (a) and
(b) of this Section, the Committee retains the discretion to
determine whether an individual executive or broker/employee shall
be permitted to participate, or continue to participate, in the
Plan. Any revocation of eligibility shall have no effect on a
Participant’s current year Deferral Elections which are
irrevocable upon the commencement of such calendar year.
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(d)
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Duration of
Participation . A
Participant shall continue to be a Participant until the date the
Participant is no longer entitled to a benefit under this Plan.
However, the Committee may, in its sole and absolute discretion,
determine that a Participant will cease to be eligible to make
subsequent year Base Salary or Bonus Deferral Elections as provided
in Subsection (c) above.
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Article 5. Deferrals and
Performance Shares
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5.1
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Voluntary
Deferral of Incentive Award or Base Salary .
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(a)
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Deferral
Election . A Participant
may make an annual, irrevocable election in a Deferral Election to
defer any portion of an Incentive Award or Base Salary payable with
respect to a Plan Year in accordance with this Section 5.1.
Notwithstanding the preceding sentence, the Deferral Election
(i) shall apply only to Base Salary and Incentive Awards that,
in the aggregate, exceed the Compensation Minimum, and
(ii) shall not exceed ninety percent (90%) of a
Participant’s Compensation that would otherwise be payable in
cash to the Participant absent the Participant’s Deferral
Election.
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(b)
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Timing of
Deferral Election . The
Committee, in the exercise of its discretion, may decide with
respect to each Plan Year whether to offer eligible executives or
broker/employees the option of making a Base Salary Deferral
Election and/or an Incentive Award Deferral Election. The
Participant shall make this election on a form prescribed by the
Committee, and such completed form shall be returned to the
appropriate individual in Human Resources and available to the
Committee. For each Plan Year with respect to which Deferral
Elections are permitted, the following procedures shall
apply:
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(i)
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First Year
of Participation . An
executive or broker/employee shall have thirty (30) days
following the date the executive or broker/employee first becomes
eligible to participate in this Plan in which to execute and
deliver to the Committee a Base Salary Deferral Election and/or an
Incentive Award Deferral Election by which he or she elects to
defer a stipulated percentage of Base Salary or Incentive Award to
be earned during the portion of the Plan Year remaining after the
Base Salary Deferral Election and/or Incentive Award Deferral
Election is made and which, but for such deferral election, would
be paid to the Participant. If an employee is already eligible to
participate in a different defined compensation plan of the same
type as determined under the plan aggregation rules in Treasury
Regulation 1.409A-1(c)(2), the employee shall not be eligible to
make a Base Salary Deferral Election or an Incentive Award Deferral
Election until the next Plan Year in accordance with subparagraph
(ii) below.
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(ii)
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Subsequent Years of
Participation . Unless a
longer period authorized under paragraph (i) above applies, an
eligible executive or broker/employee
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Page 6
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shall have until December 31
of each Plan Year to execute and deliver to the Committee a Base
Salary Deferral Election and/or an Incentive Award Deferral
Election providing for the deferral of a stipulated percentage of
Base Salary and/or Incentive Award to be earned during the next
Plan Year and which, but for such deferral election, would be paid
to the Participant. If the Participant fails to deliver a new Base
Salary Deferral Election prior to the commencement of the new Plan
Year, no Base Salary Deferral will be in effect during the new Plan
Year.
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(c)
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Investment
Election Prior to July 1, 2001 . A Participant shall select whether the amounts
to be deferred in accordance with subsection (a) above shall
be invested in shares of Common Stock or shall be invested in an
interest-b
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