Exhibit 10.19
2008 AMENDMENT
TO
2006 AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS 2008 AMENDMENT TO 2006 AMENDED
AND RESTATED EMPLOYMENT AGREEMENT (“ Amendment
”) is executed as of November 13, 2008, by and among
BB&T CORPORATION, a North Carolina corporation (“
BB&T ”), BRANCH BANKING AND TRUST COMPANY, a North
Carolina chartered commercial bank (“ BBTC ”)
(collectively, the “ Company ”), and JOHN A.
ALLISON IV, an individual (the “ Executive
”).
WHEREAS, the Company and Executive
previously entered into a 2006 Amended and Restated Employment
Agreement dated December 12, 2006 (the “ Employment
Agreement ”) that sets forth the terms and conditions of
Executive’s employment with the Company; and
WHEREAS, the Company and Executive
desire to amend the Employment Agreement to comply with the
requirements of Section 409A of the Internal Revenue Code of
1986, as amended, and the final regulations issued thereunder
(“ Section 409A ”); and
WHEREAS, the Company and Executive
also desire to amend the Employment Agreement to comply with the
executive compensation requirements of the United States Department
of the Treasury’s (“ Treasury ”) Capital
Purchase Program (“ CPP ”) under
Treasury’s Troubled Assets Relief Program (“
TARP ”) established by Treasury pursuant to the
Emergency Economic Stabilization Act of 2008 as implemented by
guidance and/or regulations issued by Treasury (“ EESA
”) in anticipation of the Company entering into a securities
purchase agreement with Treasury; and
WHEREAS, notwithstanding
Executive’s planned retirement on December 31, 2008, the
Company and Executive anticipate that Executive will become a
“senior executive officer” within the meaning of
Section 111(b)(3) of EESA prior to Executive’s
retirement; and
WHEREAS, Section 3.4 of the
Employment Agreement provides that the Employment Agreement may be
amended pursuant to a written agreement between the Company and
Executive; and
NOW, THEREFORE, the Company and
Executive hereby agree the Employment Agreement shall be amended as
follows:
1. D EFINED T ERMS .
Unless otherwise defined in this Amendment, including the recitals,
defined terms shall have the meanings ascribed to them in the
Employment Agreement.
2. S PECIFIED E MPLOYEE . Notwithstanding anything contained in the
Employment Agreement, as amended, to the contrary, if at the time
of Executive’s “separation from service” (as
defined in Section 409A) Executive is a “specified
employee” (within the meaning of Section 409A and the
Company’s specified employee identification policy) and if
any payment, reimbursement and/or in-kind benefit that constitutes
nonqualified deferred
compensation (within the meaning of
Section 409A) is deemed to be triggered by Executive’s
separation from service, then, to the extent one or more exceptions
to Section 409A are inapplicable (including, without
limitation, the exception under Treasury Regulation
Section 1.409A-1(b)(9)(iii) relating to separation pay due to
an involuntary separation from service and its requirement that
installments must be paid no later than the last day of the second
taxable year following the taxable year in which such an employee
incurs the involuntary separation from service), all payments,
reimbursements, and in-kind benefits that constitute nonqualified
deferred compensation (within the meaning of Section 409A) to
Executive shall not be paid or provided to Executive during the
six- (6-) month period following Executive’s separation from
service, and (i) such postponed payment and/or
reimbursement/in-kind amounts shall be paid to Executive in a lump
sum within thirty (30) days after the date that is six
(6) months following Executive’s separation from
service; (ii) any amounts payable to Executive after the
expiration of such six- (6-) month period shall continue to be paid
to Executive in accordance with the terms of the Employment
Agreement; and (iii) to the extent that any group
hospitalization plan, health care plan, dental care plan, life or
other insurance or death benefit plan, and any other present or
future similar group executive benefit plan or program or any lump
sum cash out thereof is nonqualified deferred compensation (within
the meaning of Section 409A), Executive shall pay for such
benefits from his Termination Date until the first day of the
seventh month following the month of Executive’s separation
from service, at which time the Company shall reimburse Executive
for such payments. If Executive dies during such six- (6-) month
period and prior to the payment of such postponed amounts of
nonqualified deferred compensation, only the amount of nonqualified
deferred compensation equal to the number of whole months that
Executive lived shall be paid in a lump sum to Executive’s
estate or, if applicable, to Executive’s designated
beneficiary within thirty (30) days after the date of
Executive’s death.
3. R EIMBURSEMENTS A ND I N -K IND B ENEFITS . Notwithstanding any other provision of the
applicable plans and programs, all reimbursements and in-kind
benefits provided under the Employment Agreement, as amended, shall
be made or provided in accordance with the requirements of
Section 409A, including, where applicable, the requirement
that (i) the amount of expenses eligible for reimbursement and
the provision of benefits in kind during a calendar year shall not
affect the expenses eligible for reimbursement or the provision of
in-kind benefits in any other calendar year; (ii) the
reimbursement for an eligible expense will be made on or before the
last day of the calendar year following the calendar year in which
the expense is incurred; (iii) the right to reimbursement or
right to in-kind benefit is not subject to liquidation or exchange
for another benefit; and (iv) each reimbursement payment or
provision of in-kind benefit shall be one of a series of separate
payments (and each shall be construed as a separate identified
payment) for purposes of Section 409A.
4. M ISCELLANEOUS S ECTION 409A C OMPLIANCE . All payments to be made to Executive upon a
termination of employment may only be made upon a “separation
from service” (within the meaning of Section 409A) of
Executive; and phrases in the Employment Agreement such as
“termination of employment,” “Executive’s
termination,” “terminated,” and similar phrases
shall mean a “separation from service” within the
meaning of Section 409A. For purposes of Section 409A,
(i) each payment made under the Employment Agreement shall be
treated as a separate payment; (ii) Executive may not,
directly or indirectly, designate the calendar year of payment; and
(iii) no acceleration of the time and form of payment of any
nonqualified deferred compensation to Executive or any portion
thereof, shall be permitted.
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5. S PECIFIC S ECTION 409A P ROVISIONS . The following additional Section 409A
amendments to the Employment Agreement shall be
applicable:
A. Section 1.7.5 is amended by the deletion of
1.7.5(i); the renumbering of 1.7.5(ii), (iii), and (iv) as
1.7.5(iii), (iv) and (v) respectively; and the insertion
of the following new 1.7.5(i) and (ii):
“(i) Executive shall receive
Termination Compensation each month during the Compensation
Continuance Period described in Section 1.7.5(ii)
below.
