**EXHIBIT 10.3**

 

**AMSOUTH BANCORPORATION**

**SUPPLEMENTAL RETIREMENT PLAN**

**amended and restated as of January 1, 2004**

 

AmSouth Bancorporation, with its principal offices located at Birmingham, Alabama(“Sponsor”) is currently the sponsor of the AmSouth Bancorporation Retirement Plan (“Retirement Plan”) in order to provide retirement benefits to its employees and the employees of its participating subsidiaries. 

 

Effective January 1, 1983 and pursuant to Section 3(36) of the Employee Retirement IncomeSecurity Act of 1974 (“ERISA”), AmSouth Bank N.A., an Employer under the Retirement Plan, adopted a supplemental retirement benefit program solely for the purpose of providing benefits in excess of the limitations on benefits under theRetirement Plan imposed by Section 415 (“Section 415”) of the Internal Revenue Code of 1954, as amended at the date hereof and known as the Internal Revenue Code of 1986 (amended from time to time, the “Code”), to certainindividuals under the Retirement Plan whose benefits under the Retirement Plan are limited by Section 415. 

 

Effective January 1, 1989, Section 401(a)(17) (“Section 401(a)(17)”) of the Code limited the amount of compensation which may be taken into account in determining benefits from the Retirement Plan.Therefore, AmSouth Bank N.A. amended and restated this supplemental retirement plan effective January 1, 1989 so that it provided benefits in excess of the limitations on benefits under the Retirement Plan imposed not only by Section 415, but alsoby Section 401(a)(17), to a select group of management or highly compensated employees whose benefits under the Retirement Plan are limited by Section 415 and/or Section 401(a)(17). 

 

Effective January 1, 1991, additional persons were added to this select group of management or highly compensated employees, some of whomwere employees of subsidiaries of the Sponsor other than AmSouth Bank N.A. AmSouth Bank N.A. amended and restated its supplemental plan, AmSouth Bancorporation adopted the supplemental plan for itself and its subsidiaries who choose to have theireligible employees covered by the supplemental plan (“Electing Employers”), and AmSouth Bank N.A. became an Electing Employer under the supplemental plan. 

 

Effective January 1, 1994, additional persons were added to the select group of management or highly compensated employees. 

 

Effective January 1, 1995, the eligibility provisions of the plan were changed and a reviseddefinition of compensation was added to the plan for certain participants. 

 

Effective January 1, 2001, the First American Corporation Supplemental Executive Retirement Program (the “FAC Program”) was merged with and into this supplemental plan to coincide with the merger of the First American CorporationMaster Retirement Plan with and into the AmSouth Bancorporation Retirement Plan effective January 1, 2001. 

 

Effective January 1, 2002, section 7.07 of the Plan was re-numbered as section 7.08 and a new section 7.07 concerning the form of notification of denial of benefits and claimants’ right to appeal a decision todeny a claim was added. 

 

Effective January 1, 2004, section 3.04 of the Planwas amended. 

 

AmSouth Bancorporation hereby amends and restates thissupplemental plan as set forth below. 

 

**ARTICLE I**

 

**TITLE; DEFINITIONS**

 

*Section 1.01*.    The supplemental retirement plan set forth below shall be known as the AmSouth Bancorporation SupplementalRetirement Plan (“Supplemental Plan”). 

 

*Section1.02*.    The term “Member” shall refer to a person who is a member of (participant in) the Retirement Plan. 

 

*Section 1.03*.    The term “Plan Year” shall mean a calendar year. 

 

*Section 1.04*.    The term “Committee”shall mean the AmSouth Benefits Committee under the Retirement Plan. 

 

**ARTICLE II**

 

**PARTICIPATION IN THESUPPLEMENTAL PLAN**

 

*Section2.01*.    A select group of management or highly compensated Members whose benefits under the Retirement Plan (whether payable by reason of the Member’s retirement, death, disability or other termination of employment)may be limited upon and after their commencement pursuant to Section 415 and/or Section 401(a)(17) shall be participants in the Supplemental Plan. The term “‘Participant” shall include persons who are selected to participate in theplan and fit one or more of the following categories: (i) Members who were employed by AmSouth Bancorporation or one of the Electing Employers on January 1, 1995 at an annual base salary, including amounts not currently includible in gross incomeunder Code Sections 125, 401(k) or 402(a)(8), but excluding special pay, bonuses or other incentive pay, reimbursement for expenses, special supplements for automobiles or club dues and the Prior Profit Sharing Plan Bonus, (such compensation beingreferred to herein as the “Eligibility Compensation”) on such date of $150,000 or more, and/or (ii) former Participants with an accrued Excess Benefit whose employment with AmSouth Bancorporation or one of the Electing Employers terminatedon or before January 1, 1995. In addition, after January 1, 1995, other employees of the Sponsor or an Electing Employer shall become Participants in this Supplemental Plan as of the first day of the month immediately following the date suchemployee’s Eligibility Compensation first equals or exceeds $150,000 and such employees are selected to participate in this plan. Participants in the FAC Program as of December 31, 2000, shall be participants in this Supplemental Plan. Acomplete list of Members eligible to participate in the Supplemental Plan pursuant to this Section 2.01 is maintained in the permanent records of the AmSouth Bancorporation Human Resources Division. 

 

**ARTICLE III**

 

**BENEFITS UNDER THE SUPPLEMENTAL PLAN**

 

*Section 3.01*.    Benefits payable under thisSupplemental Plan to or on behalf of a Participant who retires after January 1, 1995, shall be equal to the excess, if any, of (A) less (B) (the “Excess Benefits”) where (A) is such Participant’s benefits as a Member of the RetirementPlan calculated without reference to any provision of the Retirement Plan limiting the amount of benefits as provided by Section 415 of the Code or limiting the amount of compensation taken into account as provided by Section 401(a)(17) of the Codeand further calculated by substituting the definition of “Monthly Earnings” set forth in this Section 3.01 in place of the definition of such term in the Retirement Plan, and (B) is the amount of benefits actually payable under theRetirement Plan. For purposes of this Section 3.01 only, “Monthly Earnings” shall mean the sum of (i) the Participant’s regular basic monthly earnings prior to the effect of elections under any plan or plans maintained by the Sponsoror an 

 

Electing Employer which are within the scope of Sections 125 or 401(k) of the Code, and (ii) one-twelfth of the bonus earned by a Participant under theExecutive Incentive Plan, or other incentive plans maintained by Sponsor, for the particular Plan Year, including Plan Years prior to January 1, 1995 (regardless of whether the bonus is in fact paid in a subsequent year). If a Participant retires,dies or becomes permanently disabled prior to the time when the amount of the bonus for that Plan Year has been determined, Monthly Earnings for the months in such Plan Year shall be calculated using an estimate of such bonus determined by theAmSouth Bancorporation Compensation Committee based on information regarding the Sponsor’s and Participant’s performance as of the date of determination. Notwithstanding the foregoing, the AmSouth Bancorporation Compensation Committeeshall have the authority in its sole discretion to adjust the amount of the bonus taken into consideration in the definition of Monthly Earnings in this Section 3.01 for any and all Plan Years regardless of the fact that the adjusted bonus is higheror lower than the bonus actually paid a Participant under the Executive Incentive Plan or other incentive plans maintained by Sponsor. 

 

*Section 3.02*.    Except as provided in Section 3.01 above, a Participant’s Excess Benefits shall be calculated in the samemanner regularly applied by the Sponsor to all of the relevant terms and conditions of the Retirement Plan. 

 

*Section 3.03*.    A Participant’s Excess Benefits shall be paid at the time, in the manner and to the person when, as andto whom or which the benefits payable to or on behalf of the Participant as a Member of the Retirement Plan which give rise to Participant’s Excess Benefits are paid or in such manner otherwise approved by the Board of Directors of the Sponsor.Notwithstanding anything to the contrary herein, accrued benefits of five thousand dollars ($5000) or less shall be paid in a lump sum, and payments made due to termination as a result of a Change of Control as defined in Section 3.05 below, shallbe paid in a lump sum. 

 

*Section3.04*.    Notwithstanding anything to the contrary herein, all benefits accrued to Participants in the FAC Program through December 31, 2000, shall be calculated using the FAC Program terms and conditions as in effect December31, 2000 and such benefits shall be subject to the terms and conditions of the FAC Program, including but not limited to the terms and conditions governing the distribution of such benefits; provided, however, that accrued benefits of five thousanddollars ($5000) or less shall be paid in a lump sum, and payments made due to termination as a result of a Change of Control as defined in Section 3.05 below, shall be paid in a lump sum Effective December 31, 2000 benefit accruals under the termsof the FAC Program shall cease. The FAC Program benefits shall not be less than the accrued benefits under the terms of the FAC Program immediately preceding the merger of the FAC Program into the Plan. A copy of the FAC Program as of December 31,2000 is attached hereto as Exhibit A. Effective January 1, 2001, all benefits will be calculated under the terms and conditions of the Supplemental Plan from January 1, 2001 forward. Notwithstanding the foregoing or anything to the contrary herein,any Participant who has an accrued benefit under the FAC Program and who terminates employment on and after January 1, 2001, shall be entitled to receive pre-retirement survivor benefits with regard to the accrued benefit under the FAC Program underthe terms provided in Section 3.03 applicable to other benefits under this Supplemental Plan. 

 

*Section 3.05*.    Notwithstanding anything in the Supplemental Plan to the contrary, in the event that a Participant is employed by the Sponsor (or any entity that must be treated as a singleemployer with the Sponsor pursuant to Section 414(b), (c), (m) or (o) of the Code) at the time of a Change in Control (as defined herein), the Participant shall (regardless of whether he has become a Retiree or attained age fifty-five (55) on thedate of his termination of employment) be entitled to a lump sum payment of a retirement benefit under the Supplemental Plan (determined as if he were to become a Retiree upon termination of employment) if the Participant’s employment with theSponsor (or any entity that must be treated as a single employer with the Sponsor pursuant to Section 414(b), (c), (m) or (o) of the Code) terminates within two (2) years after a Change in Control has occurred. 

 

For purposes of this Plan, a “Change in Control” shall mean:

 

(a)  The acquisition by any individual, entity orgroup (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) (a ”Person”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under theExchange Act) of twenty percent (20%) or more of either (i) the then outstanding shares of common stock of the Sponsor (the “Outstanding Company Common 

 

Stock”) or (ii) the combined voting power of the then outstanding voting securities of the Sponsor entitled to vote generally in the election ofdirectors (the “Outstanding Company Voting Securities”); provided, however, that for purposes of this subsection (a), the following acquisitions shall not constitute a Change in Control: (i) any acquisition directly from the Sponsor, (ii)any acquisition by the Sponsor, (iii) any acquisition by any employee benefit plan (or related trust) sponsored, maintained by the Sponsor or any corporation controlled by the Sponsor or (iv) any acquisition by any corporation pursuant to atransaction which complies with clauses (i), (ii) and (iii) of subsection (c) of this section; or 

 

(b)  Individuals who, as of the date hereof, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at leasta majority of the Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Sponsor’s shareholders, was approved by a vote of at least a majority of thedirectors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actualor threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board; or 

 

(c)  Consummation of a reorganization, merger or consolidation orsale or other disposition of all or substantially all of the assets of the Sponsor (a “Business Combination”), in each case, unless, following such Business Combination, (i) all or substantially all of the individuals and entities who werethe beneficial owners, respectively, of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than sixty percent (60%) of,respectively, the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from suchBusiness Combination (including, without limitation, a corporation which as a result of such transaction owns the Sponsor or all or substantially all of the Sponsor’s assets either directly or through one or more subsidiaries) in substantiallythe same proportions as their ownership, immediately prior to such Business Combination of the Outstanding Company Common Stock and Outstanding Company Voting Securities, as the case may be, (ii) no Person (excluding any corporation resulting fromsuch Business Combination or any employee benefit plan or related trust of the Sponsor or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, twenty (20%) or more of, respectively, the thenoutstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the then outstanding voting securities of such corporation except to the extent that the such ownership existed prior tothe Business Combination and (iii) at least a majority of the members of the board of directors of the corporation resulting from such Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement, orthe action of the Board, providing for such Business Combination; or 

 

(d)  Approval by the shareholders of the Sponsor of a complete liquidation or dissolution of the Sponsor. 

 

*Section 3.06*.    The Sponsor may establish a rabbi trust (“Trust”) which may be used to pay benefits arising underthe Supplemental Plan and all costs, charges and expenses relating thereto; except that, to the extent that the funds held in the Trust are insufficient to pay such benefits, costs, charges and expenses, the Sponsor shall pay such benefits, costs,charges and expenses. 

 

**ARTICLE IV**

 

**PLAN ADMINISTRATOR**

 

*Section 4.01*.    The plan administrator(“‘Plan Administrator”) for the Retirement Plan shall also administer the Supplemental Plan. In doing so, the Plan Administrator shall apply to the Participants’ claims for Excess Benefits hereunder the same procedures as are setforth in the Retirement Plan governing claims for benefits and appeals to the Committee from denials of claims for benefits. 

 

**ARTICLE V**

 

**NATURE OF EMPLOYER OBLIGATION AND PARTICIPANT INTEREST**

 

*Section 5.01*.    The interest of the Participant and/or any person claiming by or through him under the Supplemental Planshall be solely that of an unsecured general creditor of the Sponsor and the Electing Employers. The Excess Benefits payable under the Supplemental Plan shall be payable from the general assets of the Sponsor and the Electing Employers (includingassets held in the Trust), and neither the Participant nor any person claiming by or through him shall have any right to look to any specific property separate from such general assets in satisfaction of any claim for payment of Excess Benefits.

 

*Section 5.02*.    In all respectsany Excess Benefits shall be independent of, and in addition to, any other benefits or compensation of any sort, payable to or on behalf of the Participant under any other arrangement sponsored by the Sponsor or Electing Employers or any otheragreement between the Sponsor or Electing Employer and the Participant in any capacity. 

 

**ARTICLE VI**

 

**ADDITIONOR WITHDRAWAL OF ELECTING EMPLOYERS**

 

*Section6.01*.    Every subsidiary or affiliate of the Sponsor shall become an Electing Employer hereunder without further action as of January 1, 1991 or its later date of eighty percent (80%) ownership, directly or indirectly, bythe Sponsor. 

 

*Section 6.02*.    AnElecting Employer who wishes to withdraw from the Supplemental Plan shall deliver to the Sponsor a resolution from its Board of Directors which authorizes its withdrawal as an Electing Employer and which indicates the reason or reasons for suchwithdrawal. Withdrawal may only take place upon the approval of the Board of Directors of the Sponsor and with such amendments to the Supplemental Plan as the Sponsor shall deem necessary or desirable. Withdrawal shall be subject to the provisionsof Section 7.02 below. 

 

**ARTICLE VII**

 

**MISCELLANEOUS**

 

*Section 7.01*.    The Supplemental Plan may beamended or discontinued by the Sponsor, and may be amended by the Committee at any time except as provided in Section 7.02 below. The Sponsor may designate additional Participants under the Supplemental Plan or remove persons as Participants underthe Supplemental Plan at any time except as provided in Section 7.02 below. 

 

*Section 7.02*.    Notwithstanding the provisions of Sections 6.02 or 7.01: 

 

(a)  Excess Benefits which are in pay status shall not be discontinued under any circumstances prior to their natural termination pursuant tothe terms of the Supplemental Plan at the time of the relevant amendment or discontinuance of the Supplemental Plan, the removal of Participants or the withdrawal by an Electing Employer. 

 

(b)  Excess Benefits hereunder which have been accrued prior to the date of any amendment or discontinuation ofthe Supplemental Plan, the removal of a Participant or the withdrawal of an Electing Employer shall remain a binding obligation of the Sponsor and Electing Employer or any successor in interest to either of them, and no amendment or discontinuationof the Supplemental Plan, removal of a Participant or withdrawal by an Electing Employer shall deprive a Participant of said accrued Excess Benefit. 

 

*Section 7.03*.    The Supplemental Plan shall not be deemed to constitute acontract between the Sponsor or the Electing Employer and any Participant or employee, or to be a consideration or an inducement for the employment of any Participant or employee. Nothing contained in the Supplemental Plan shall be deemed to giveany Participant or employee the right to be retained in the service of the Sponsor or Electing Employer or to interfere with the right of the Sponsor or Electing Employer to discharge any Participant or employee at any time regardless of the effectwhich such discharge shall or may have upon him under the Supplemental Plan. 

 

*Section 7.04*.    None of the Participant’s rights to Excess Benefits under the Supplemental Plan are subject to the claims of creditors of a Participant or any person claiming by orthrough him and will not be subject to attachment, garnishment or any other legal process. Neither a Participant nor any person claiming by or through him may assign, sell, borrow on or otherwise encumber any of his beneficial interest under theSupplemental Plan nor shall any such interest be in any manner liable for or subject to the deeds, contracts, liabilities, engagements or torts of a Participant or any person claiming by or through him. 

 

*Section 7.05*.    The Supplemental Plan shall beconstrued in accordance with the laws of the State of Alabama, except where such laws are superseded by ERISA, in which case ERISA shall control. 

 

*Section 7.06*.    In making any distribution to or for the benefit of any minor or incompetent person, the Plan Administrator,in its sole, absolute and uncontrolled discretion, may, but need not, direct such distribution to a legal or natural guardian or other relative of such minor or court appointed committee of such incompetent, or to any adult with whom such minor orincompetent temporarily or permanently resides, and any such guardian, committee, relative or other person shall have full authority and discretion to expend such distribution for the use and benefit of such minor or incompetent. The receipt of suchguardian, committee, relative or other person shall be a complete discharge to the Sponsor and Electing Employer without any responsibility on its part or on the part of the Plan Administrator to see to the application thereof. 

 

*Section 7.07*.    Any participant may file a claimfor benefits. If the claim is denied, the claimant shall be provided written notice within 90 days with: 

 
 • Specific reasons for the denial 
 
 • Specific references to the Plan provisions on which the denial is based 
 
 • A description of any additional information needed and why it is needed; and 
 
 • An explanation of (1) the procedures and time limits for an appeal, (2) the right to obtain information about the procedures and (3) the right to sue in federal court.
 

If there are special circumstances delaying thedetermination of the claim, the claimant may be notified within the 90 day period explaining the special circumstances and stating that an answer will be provided within 90 more days. If an answer is not received within the 90 days (or 180 days ifan extension notice has been provided) the claim shall be deemed denied. 

 

Any claimant for a benefit (or, as applicable, his or her estate or other representative or beneficiary) may, within sixty (60) days after receipt of a letter of denial appeal to the Claims Review Committee, bywriting to the Head of Human Resources of the plan sponsor and may request a review of the denial of the benefit, with opportunity to submit his or her position in writing. Appeals not timely filed shall be barred. The claimant is entitled to:

 
 • receive, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to his or her claim 
 
 • submit written comments, documents, records, and other information relating to the claim, which will be considered without regard to whether such information was submitted orconsidered in the initial determination 
 

The Claims Review Committee shall meet quarterly on the third Thursday in the months of February, May,August, and November or such other time as the Claims Review Committee shall determine, provided that a claim is pending. If a claim is received by the Claims Review Committee at least thirty (30) days before a quarterly meeting, such appeal will beconsidered at that meeting; otherwise, such appeal will be considered at the first subsequent quarterly meeting. If there are special circumstances, the decision may be delayed until the third meeting following receipt of the request. If specialcircumstances require an extension, the claimant will be notified. 

 

The Claims Review Committee will render a written decision, written in a manner calculated to be understood by the claimant, and mail the written decision to the claimant at the claimant’s last address known to the plan sponsor,specifying by reference to the Plan the reasons for denial of such part or all of the claimed benefit as it denies upon review. Such letter shall state the claimant is entitled to receive, upon request and free of charge, reasonable access to, andcopies of all documents, records and other information relevant to the claim; describe the Plan’s voluntary appeal procedures, if any, and notify the claimant of his or her right to bring an action under Section 502(a) of ERISA. 

 

*Section 7.08*.    In case any provision of theSupplemental Plan shall be held illegal or invalid for any reason or in any particular circumstance or instance, such illegality or invalidity shall not affect its remaining parts in such circumstance or instance nor the enforceability of suchprovision in any other circumstance or instance and the Supplemental Plan shall be construed and enforced as if such illegal and invalid provision had never been inserted herein for application to the particular circumstance or instance. 

 

IN WITNESS WHEREOF, AmSouth Bancorporation has caused this amended andrestated Supplemental Plan to be executed this 29th day of December, 2003, effective as of January 1, 2004.

 

AMSOUTH BANCORPORATION

By:
 
/S/    C. DOWD RITTER

Its:
 
Chairman, President and

Chief Executive Officer

 

ATTEST: 

By:
 
/S/    MICHELLE BRIDGES

Its:
 
Assistant Secretary