Exhibit 10(d)
BANK OF AMERICA PENSION RESTORATION PLAN
(as amended and restated effective July 1, 1998)
BANK OF AMERICA PENSION RESTORATION PLAN
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS..................................................... 1
Section 1.1 Definitions.......................................... 1
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ARTICLE II PLAN ADMINISTRATION............................................ 6
Section 2.1 Committee............................................ 6
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ARTICLE III PENSION RESTORATION BENEFITS.................................. 6
Section 3.1 Eligibility for Benefits............................. 6
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Section 3.2 Restoration Accounts................................. 6
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Section 3.3 Account Adjustments.................................. 7
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Section 3.4 Time and Method of Benefit Payments.................. 8
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Section 3.5 Minimum and Special Benefits......................... 13
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Section 3.6 Participants Without Restoration Accounts............ 14
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Section 3.7 Coordination with SERP Payments...................... 14
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ARTICLE IV AMENDMENT AND TERMINATION...................................... 14
Section 4.1 Amendment and Termination............................ 14
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Section 4.2 Change of Control.................................... 15
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ARTICLE V MISCELLANEOUS PROVISIONS........................................ 15
Section 5.1 Nature of Plan and Rights............................ 15
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Section 5.2 Termination of Employment............................ 15
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Section 5.3 Spendthrift Provision................................ 16
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Section 5.4 Employment Noncontractual............................ 16
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Section 5.5 Adoption by Other Participating Employers............ 16
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Section 5.6 Applicable Law....................................... 16
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Section 5.7 Merged Plans......................................... 16
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Section 5.8 Status Under the Act................................. 17
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Section 5.9 Claims Procedure..................................... 17
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Section 5.10 Limited Effect of Restatement........................ 17
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Section 5.11 Binding Effect....................................... 17
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BANK OF AMERICA PENSION RESTORATION PLAN
(as amended and restated effective July 1, 1998)
THIS INSTRUMENT OF AMENDMENT AND RESTATEMENT is executed effective as of
the 1st day of July, 1998, by BANK OF AMERICA CORPORATION, a Delaware
corporation (the "Corporation");
Statement of Purpose
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Prior to July 1, 1998, the Corporation and certain of its affiliates
(collectively with the Corporation, the "Participating Employers") maintained
the NationsBank Corporation and Designated Subsidiaries Supplemental Retirement
Plan (the "Restoration Plan"). The Restoration Plan provided benefits which
would have accrued to participants in The NationsBank Pension Plan (the
"Pension Plan") but for certain benefit limitations imposed by the Internal
Revenue Code.
Effective July 1, 1998, the Pension Plan was amended to convert it to a
defined benefit cash balance plan, and the Participating Employers desire to
amend and restate the Restoration Plan in its entirety effective as of that
date to reflect the amendments to the Pension Plan and to meet other current
needs.
In addition, effective July 1, 2000, a number of changes were made to the
Corporation's employee benefit plans in connection with the combination of the
former NationsBank and BankAmerica benefit programs. The Participating
Employers desire to further provide herein for a number of design changes to
the Restoration Plan in connection with those benefit program changes, as well
as to rename the Restoration Plan as the "Bank of America Pension Restoration
Plan".
The Participating Employers have reserved the right to amend the Plan at
any time and have delegated to the Corporation the right to amend the Plan on
behalf of all Participating Employers.
NOW, THEREFORE, for the purposes aforesaid, the Corporation, on behalf of
the Participating Employers, hereby amends and restates the Restoration Plan
effective July 1, 1998 to consist of the following Articles I through V:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Unless the context clearly indicates otherwise,
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when used in the Restoration Plan:
Amendment or Termination Date means the date on which an amendment to
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or termination of the Restoration Plan is adopted by the Corporation or,
if later, the effective date of such amendment or termination.
Applicable Minimum Benefits Provisions means:
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(A) for the period from July 1, 1998 through June 30, 2000,
Section 6.4(b) of the Pension Plan; and
(B) for periods from and after July 1, 2000, (i) if Pension Plan
benefits are payable in a single cash payment, Section 6.5(b)(1) of the
Pension Plan, and (ii) if Pension Plan benefits are payable in an
annuity method, Section 6.5(b)(2) of the Pension Plan.
Beneficiary means the "Beneficiary" of a Participant under the Pension
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Plan.
Change of Control means, and shall be deemed to have occurred upon,
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any of the following events:
(A) The acquisition by any person, individual, entity or "group"
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) (collectively,
a "Person") of Beneficial Ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of twenty-five percent (25%) or
more of either:
(i) The then-outstanding shares of common stock of the
Corporation (the "Outstanding Shares"); or
(ii) The combined votifg power of the then-outstanding
voting securities of the Corporation entitled to vote
generally in the election of directors of the Corporation (the
"Outstanding Voting Securities");
provided, however, that the following acquisitions shall not
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constitute a Change of Control for purposes of this subparagraph (A):
(a) any acquisition directly from the Corporation, (b) any acquisition
by the Corporation or any of its subsidiaries, (c) any acquisition by
any employee benefit plan (or related trust) sponsored or maintained
by the Corporation or any of its subsidiaries, or (d) any acquisition
by any corporation pursuant to a transaction which complies with
clauses (i), (ii) and (iii) of subparagraph (C) below; or
(B) Individuals who, as of September 30, 1998, constitute the
Board of Directors of the Corporation (the "Incumbent Board") cease
for
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any reason to constitute at least a majority of the Board of
Directors of the Corporation; provided, however, that any individual
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who becomes a director subsequent to September 30, 1998 and whose
election, or whose nomination for election by the Corporation's
shareholders, to the Board of Directors of the Corporation was either
(i) approved by a vote of at least a majority of the directors then
comprising the Incumbent Board or (ii) recommended by a nominating
committee comprised entirely of directors who are then Incumbent Board
members 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
either an actual or threatened election contest (as such terms are
used in Rule 14a-11 of Regulation 14A promulgated under the Exchange
Act), other actual or threatened solicitation of proxies or consents
or an actual or threatened tender offer; or
(C) Approval by the Corporation's shareholders of a
reorganization, merger, or consolidation or sale or other disposition
of all or substantially all of the assets of the Corporation (a
"Business Combination"), in each case, unless following such Business
Combination, (i) all or substantially all of the Persons who were the
Beneficial Owners (within the meaning of Rule 13d-3 promulgated under
the Exchange Act), respectively, of the Outstanding Shares and
Outstanding Voting Securities immediately prior to such Business
Combination own, directly or indirectly, more than fifty percent (50%)
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 the Business Combination
(including, without limitation, a corporation which as a result of
such transaction owns the Corporation or all or substantially all of
the Corporation's assets either directly or through one or more
subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Business Combination, of the
Outstanding Shares and Outstanding Voting Securities, as the case may
be (provided, however, that for purposes of this clause (i), any
shares of common stock or voting securities of such resulting
corporation received by such Beneficial Owners in such Business
Combination other than as the result of such Beneficial Owners'
ownership of Outstanding Shares or Outstanding Voting Securities
immediately prior to such Business Combination shall not be considered
to be owned by such Beneficial Owners for the purposes of calculating
their percentage of ownership of the outstanding common stock and
voting power of the resulting corporation), (ii) no Person (excluding
any corporation resulting from such Business Combination or any
employee benefit plan (or related trust) of the Corporation or such
corporation resulting from the Business Combination) beneficially
owns, directly or indirectly, twenty-five percent (25%) or more of,
respectively, the then
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outstanding shares of common stock of the corporation resulting from
the Business Combination or the combined voting power of the then
outstanding voting securities of such corporation unless such Person
owned twenty-five percent (25%) or more of, respectively, the
Outstanding Shares or Outstanding Voting Securities immediately prior
to the 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, or the action of the
Board of Directors of the Corporation, providing for such Business
Combination; or
(D) Approval by the Corporation's shareholders of a complete
liquidation or dissolution of the Corporation.
Notwithstanding the foregoing, a Change of Control shall not be deemed
to have occurred for purposes of this Plan as a result of the transactions
contemplated by that certain Agreement and Plan of Reorganization between
the Corporation and BankAmerica Corporation dated April 10, 1998.
Code means the Internal Revenue Code of 1986. References to the
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Code shall include the valid and binding governmental regulations, court
decisions and other regulatory and judicial authority issued or
rendered thereunder.
Code Limitations means any one or more of the limitations and
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restrictions that Sections 401(a)(17) and 415 of the Code place on the
accrual of benefits under the Pension Plan.
Committee means the committee designated pursuant to Section 2.1
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of the Restoration Plan.
Conversion Date means July 1, 1998.
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Corporation means Bank of America Corporation, a Delaware
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corporation, and any successor thereto. Prior to September 30, 1998, the
Corporation was named "NationsBank Corporation", and from September 30,
1998 through April 28, 1999 the Corporation was named "BankAmerica
Corporation".
Lump Sum Benefit of a Participant means the Participant's
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Restoration Plan benefits expressed as a single lump sum amount. If a
Participant's Restoration Plan benefits are not determined under Section
3.5, then the Participant's Lump Sum Benefit shall equal the amount
credited to the Participant's Restoration Account from time to time.
However, if a Participant's Restoration Plan benefits are determined under
Section 3.5, then the Participant's Lump Sum Benefit shall equal the
Actuarial Equivalent lump sum value of the Participant's Restoration Plan
benefits determined under Section 3.5.
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Participant means a "Participant" as defined in the Pension Plan.
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Participating Employer means each "Participating Employer" under
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(and as defined in) the Pension Plan which have adopted the Restoration
Plan. In addition, the Personnel Group, in its sole and exclusive
discretion, may designate certain other entities as "Participating
Employers" under the Restoration Plan for such purposes as the Personnel
Group may determine from time to time.
Pension Plan means The Bank of America Pension Plan, as in effect
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from time to time. From July 1, 1998 through July 1, 2000 the Pension
Plan was named "The NationsBank Cash Balance Plan", and prior to July 1,
1998 the Pension Plan was named "The NationsBank Pension Plan."
Personnel Group means the Personnel Group of the Corporation.
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Plan Year means the twelve-month period commencing January 1 and
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ending the following December 31.
Restoration Account means the bookkeeping account established and
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maintained on the books and records of the Restoration Plan for a
Participant pursuant to Article III.
Restoration Credit means the amount credited to a Participant's
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Restoration Account as of the end of a pay period pursuant to Section
3.2(c).
Restoration Plan means this plan: the Bank of America Pension
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Restoration Plan as in effect from time to time. From July 1, 1998
through June 30, 2000, the Restoration Plan was named "The NationsBank
Cash Balance Restoration Plan", and prior to July 1, 1998 the Restoration
Plan was named the "NationsBank Corporation and Designated Subsidiaries
Supplemental Retirement Plan".
SERP means either the Bank of America Supplemental Executive
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Retirement Plan (sometimes more commonly referred to as "SERP I") or the
Bank of America Supplemental Executive Retirement Plan for Senior
Management Employees (sometimes more commonly referred to as "SERP II").
SRP means the BankAmerica Supplemental Retirement Plan, but only
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to the extent that the SRP restored benefits under the BankAmerica Pension
Plan.
Any capitalized terms used in the Restoration Plan that are defined in the
documents comprising the Pension Plan have the meanings assigned to them in the
Pension Plan, unless such terms are otherwise defined above in this Article or
unless the context clearly indicates otherwise.
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ARTICLE II
PLAN ADMINISTRATION
Section 2.1 Committee. The Restoration Plan shall be administered by the
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"Committee" under (and as defined in) the Pension Plan (although certain
provisions of the Restoration Plan shall be administered by the Personnel Group
as specified herein). The Committee shall be empowered to interpret the
provisions of the Restoration Plan and to perform and exercise all of the
duties and powers granted to it under the terms of the Restoration Plan by
action of a majority of its members in office from time to time. The Committee
may adopt such rules and regulations for the administration of the Restoration
Plan as are consistent with the terms hereof and shall keep adequate records of
its proceedings and acts. All interpretations and decisions made (both as to
law and fact) and other action taken by the Committee with respect to the
Restoration Plan shall be conclusive and binding upon all parties having or
claiming to have an interest under the Restoration Plan. Not in limitation of
the foregoing, the Committee shall have the discretion to decide any factual or
interpretative issues that may arise in connection with its administration of
the Restoration Plan (including without limitation any determination as to
claims for benefits hereunder), and the Committee's exercise of such discretion
shall be conclusive and binding on all affected parties as long as it is not
arbitrary or capricious. The Committee may delegate any of its duties and
powers hereunder to the extent permitted by applicable law.
ARTICLE III
PENSION RESTORATION BENEFITS
Section 3.1 Eligibility for Benefits. Subject to Section 5.10, any
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Participant who is paid a benefit under the Pension Plan on or after the
Conversion Date shall be eligible to receive benefits under this Restoration
Plan. Subject to Sections 3.5 and 3.6 below, the amount of a Participant's
Restoration Plan benefits shall equal the amount (if any) credited to the
Participant's Restoration Account from time to time, which such benefits shall
become payable as provided in Section 3.4 below.
Section 3.2 Restoration Accounts.
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(a) General. A Restoration Account shall be established and maintained
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on the books and records of the Restoration Plan for each Participant who has an
amount credited in accordance with the provisions of this Section 3.2.
(b) Initial Restoration Account Balance. The Restoration Account
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established for a Participant shall be credited with an initial balance equal
to the excess (if any) of Amount A over Amount B, where:
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Amount A equals the initial balance that would have been credited to the
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Participant's pension account under the Pension Plan as of the Conversion
Date if (i) the Code Limitations did not apply to the Pension Plan and
(ii) the Participant's compensation under the Pension Plan included any
amounts which were disregarded because of the Participant's deferral of
such amounts pursuant to an election under
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the Bank of America 401(k) Restoration Plan or any other nonqualified
deferred compensation plan designated by the Personnel Group; and
Amount B equals the initial balance actually credited to the
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Participant's pension account under the Pension Plan as of the Conversion
Date.
(c) Restoration Credits. At the end of each pay period, the Restoration
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Account of each Participant shall be credited with a Restoration Credit the
amount of which shall be equal to the excess (if any) of Amount A over Amount B,
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where:
Amount A equals the compensation credit that would have been allocated to
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the Participant's pension account under the Pension Plan as of such date
af (i) the Code Limitations did fot apply to the Pension Plan and (ii) the
Participant's compensation under the Pension Plan included the amounts, if
any, deferred by the Participant under the Bank of America 401(k)
Restoration Plan or any other nonqualified deferred compensation plan
designated by the Personnel Group; and
Amount B equals the compensation credit actually allocated to the
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Participant's pension account under the Pension Plan as of such date.
(d) Limit on Certain Incentive Compensation. Notwithstanding any
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provision of the Restoration Plan to the contrary, in no event shall an amount
be credited to a Participant's Restoration Account or otherwise accrued
hereunder with respect to any portion of the Participant's bonuses, commissions
or other incentive compensation payable for a Plan Year (regardless of the year
earned and regardless of whether such bonus, commission or other incentive
compensation is paid currently to the Participant or deferred pursuant to the
Bank of America 401(k) Restoration Plan or any other non-qualified deferred
compensation plan) in excess of One Million Dollars ($1,000,000).
Section 3.3 Account Adjustments
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(a) Account Adjustments for Deemed Investments. The Committee shall from
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time to time designate one or more investment vehicle(s) in which the
Restoration Accounts of Participants shall be deemed to be invested. The
investment vehicle(s) may be designated by reference to the investments
available under other plans sponsored by a Participating Employer (including
the "Investment Measures" under the Pension Plan). Each Participant shall
designate the investment vehicle(s) in which his or her Restoration Account
shall be deemed to be invested according to the procedures developed by the
Personnel Group, except as otherwise required by the terms of the Restoration
Plan. No Participating Employer shall be under an obligation to acquire or
invest in any of the deemed investment vehicle(s) under this subparagraph, and
any acquisition of or investment in a deemed investment vehicle by a
Participating Employer shall be made in the name of the Participating Employer
and shall remain the sole property of the Participating Employer. Effective
July 1, 2000, the designated investment vehicles shall be (and shall remain
until such time as changed by the Committee in its sole discretion from time to
time according to its procedures for designatang investments) the following:
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(i) Nations LifeGgal Income & Growth Portfolio;
(ii) Nations LifeGoal Balanced Growth Portfolio;
(iii) Nations LifeGoal Growth Portfolio;
(iv) Nations LargeCap Index Fund;
(v) Nations MidCap Index Fund;
(vi) Nations SmallCap Index Fund;
(vii) Stable Capital Fund;
(viii) Nations Bond Fund;
(ix) Nations Value Fund;
(x) Nations International Equity Fund;
(xi) Nations Marsico Focused Equities Fund; and
(xii) Bank of America Corporation Common Stock Fund.
The Committee shall also establish from time to time a default fund into which
a Participant's Restoration Account shall be deemed to be invested if the
Participant fails to provide investment instructions pursuant to this Section
3.3(a). Effective July 1, 2000, such default fund shall be the Stable Capital
Fund.
(b) Periodic Account Adjustments. Each Restoration Account shall be
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adjusted from time to time at such intervals as determined by the Personnel
Group. The Personnel Group may determine the frequency of account adjustments
by reference to the frequency of account adjustments under another plan
sponsored by a Participating Employer. The amount of the adjustment shall equal
the amount that each Participant's Restoration Account wguld have earned (or
lost) for the period since the last adjustment had the Restoration Account
actually been invested in the Pension Plan in the deemed investment vehicle(s)
designated by the Participant for such period pursuant to Section 3.3(a).
(c) Account Adjustments in Connection With Benefit Commencement Date.
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Notwithstanding any provision of the Restoration Plan to the contrary, the
Personnel Group may cause a Participant's Restoration Account to be adjusted in
a manner other than based on the Participant's investment election as the
Personnel Group may in its discretion determine from time to time in order to
calculate the amount of the Participant's Restoration Plan benefits that become
payable on or after the Participant's Benefit Commencement Date (including in
connection with determining the amount of installment payments as provided
under Section 3.4(e) below).
Section 3.4 Time and Method of Benefit Payments.
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(a) Applicable Provisions. The provisions of this Section 3.4 shall apply
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to the payment of Restoration Plan benefits for Benefit Commencement Dates from
and after July 1, 2000. Exhibit A attached hereto and made a part hereof
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contains the applicable payment provisions that apply to the payment of
Restoration Plan benefits for Benefit Commencement Dates from July 1, 1998
through June 30, 2000.
(b) Coordination with Pension Plan Payments. Except as otherwise provided
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for in this Section 3.4 or in Section 3.6 below, a Participant's vested
Restoration Plan benefits shall be payable at the same time and in the same
form as the Participant's Pension Plan benefits. If a
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Participant's Pension Plan benefits are payable in part as an annuity and in
part as a lump sum or other non-annuity form, then the Participant's entire
Restoration Plan benefits shall be payable as an annuity (in the same annuity
form as applicable in part to the Participant's Pension Plan benefits). Any
payment of Restoration Plan benefits in a form different than the form in which
such benefits are otherwise stated shall be determined by the Personnel Group
based on the applicable actuarial equivalency factors in effect from time to
time under the Pension Plan. Notwithstanding any provision of the Restoration
Plan to the contrary, if the amount of a Participant's vested Lump Sum Benefit
is less than or equal to Fifty Thousand Dollars ($50,000) as of the
Participant's Benefit Commencement Date, then such vested Restoration Plan
benefits shall be payable to the Participant as soon as administratively
practicable after the Benefit Commencement Date in a single cash payment
(consistent with the provisions of Section 3.4(d)(i) below). In addition and
notwithstanding any provision of the Restoration Plan to the contrary, if a
Participant's Pension Plan benefits are payable pursuant to a non-annuity
installment payment method (e.g., as a result of having transferred amounts to
the Pension Plan from the Bank of America 401(k) Plan), then the Participant's
vested Restoration Plan benefits shall be payable in a single cash payment in
accordance with the provisions of Section 3.4(d) below.
(c) Other Payment Methods. Notwithstanding the provisions of Section
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3.4(b) to the contrary, if a Participant's entire Pension Plan benefits are
payable in a single cash payment, then the Participant's vested Restoration
Plan benefits shall be payable in a payment method described in this Section
3.4(c) if elected in accordance with, and subject to, the following terms and
provisions (except to the extent that the provisions of Section 3.4(h) may
apply):
(i) Timing of Elections. A Participant who is in active service may
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make or change a payment option election among any of the payment options
described in subparagraph (ii) below, subject to the provisions of
subparagraph (iii) below. The election shall not become effective until
the later of (A) the date that is twelve (12) months after the date that
the election is made if the Participant remains in active service
throughout that period (as determined by the Personnel Group in its
discretion) or (B) the date the Participant attains age fifty-five (55).
(ii) Payment Methods. The payment options from which a
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Participant may elect are as follows: (A) single cash payment, (B) five
(5) annual installments or (C) ten (10) annual installments, as such
methods are more fully described below.
(iii) Form of Elections. Any election made under this Section
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3.4(c) shall be made on such form, at such time and pursuant to such
procedures as determined by the Personnel Group in its sole discretion
from time to time. A Participant may not have more than two (2) payment
elections pending under this Section 3.4(c) at any one time.
(iv) Failure to Elect. For a Participant who does not yet have
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an election in effect under this Section 3.4(c) or for a Participant who
fails to elect a payment option under this Section 3.4(c) (and assuming
the Participant's entire
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Pension Plan benefits are otherwise payable in a single cash payment), the
method of payment shall be the single cash payment.
(d) Single Cash Payments. The following provisions shall apply with
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respect to single cash payments under the Restoration Plan for a Participant
whose entire Pension Plan benefits are payable in a single cash payment:
(i) Pre-Age 55 or Lump Sum Benefit Under $50,000. If a Participant
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terminates employment with the Participating Employers either (A) before
attainment of age fifty-five (55) or (B) with a vested Lump Sum Benefit
(determined as of the Participant's Benefit Commencement Date) that is
Fifty Thousand Dollars ($50,000) or less (even if the Participant has
elected and is otherwise eligible for installment payments), then the
Participant's vested Lump Sum Benefit shall be determined as of the
Participant's Benefit Commencement Date, and such final vested Lump Sum
Benefit shall be paid in a single cash payment to the Participant (or to
the Participant's Beneficiary in the case of the Participant's death) as
soon as administratively practicable after the Benefit Commencement Date.
(ii) After Age 55 and Lump Sum Benefit Over $50,000. If a
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Participant terminates employment with the Participating Employers after
attainment of age fifty-five (55) with a vested Lump Sum Benefit
(determined as of the Participant's Benefit Commencement Date) exceeding
Fifty Thousand Dollars ($50,000) and with a single cash payment election
in effect under Section 3.4(c), then such Participant's vested Lump Sum
Benefit shall be paid in a single cash payment to the Participant (or to
the Participant's Beneficiary in the case of the Participant's death)
either (A) within ninety (90) days following the end of the Plan Year in
which the termination of employment occurs if the Benefit Commencement
Date is in the same Plan Year or (B) as soon as administratively
practicable after the Benefit Commencement Date if the Benefit
Commencement Date is in any subsequent Plan Year. In the case of payment
in accordance with clause (A), the Personnel Group shall in its discretion
establish procedures from time to time to cause the amount of such Lump
Sum Benefit to be adjusted for the period between the Benefit Commencement
Date and the applicable payment date.
(e) Annual Installments. If a Participant (whose entire Pension Plan
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benefits are payable in a single cash payment) terminates employment with the
Participating Employers after attainment of age fifty-five (55) with a vested
Lump Sum Benefit (determined as of the Participant's Benefit Commencement Date)
exceeding Fifty Thousand Dollars ($50,000) and with an installment payment
election in effect under Section 3.4(c), then the amount of the annual
installments shall be calculated and paid pursuant to the following provisions:
(i) Timing of Payments. If the Participant's Benefit Commencement
------------------
Date occurs in the same Plan Year as the Participant's termination of
employment, then the first installment shall be paid within ninety (90)
days
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following the end of the Plan Year in which the Participant's Benefit
Commencement Date occurs, and each subsequent installment shall be paid
within ninety (90) days following the end of each subsequent Plan Year
during the selected payment period. If, however, the Participant's Benefit
Commencement Date occurs in a Plan Year after the Plan Year in which the
Participant's termination of employment occurs, then the first installment
shall be paid as soon as administratively practicable after the Benefit
Commencement Date, the second installment shall be paid within ninety (90)
days following the end of the Plan Year in which the Participant's Benefit
Commencement Date occurs, and each subsequent installment shall be paid
within ninety (90) days following the end of each subsequent Plan Year
during the selected payment period.
(ii) Special Adjustment to Restoration Account. If a Participant's
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Lump Sum Benefit to be payable as annual installments is determined under
the provisions of Section 3.5 (rather than based on the amount credited to
the Participant's Restoration Account), then in order to administer the
payment of annual installments of such Lump Sum Benefit the Participant's
Restoration Account shall be adjusted (either up or down, as applicable)
as of the Benefit Commencement Date to equal the amount of such Lump Sum
Benefit.
(iii) Amount of Installments. The amount payable for each
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installment shall equal the Restoration Account balance as of either:
(A) the Benefit Commencement Date (in the case of the first
installment payment made for a Benefit Commencement Date that
occurs in a Plan Year after the Plan Year in which the Participant's
termination of employment occurs), or
(B) the end of the applicable Plan Year (in the case of any
other installment payment made within ninety (90) days following
the end of a Plan Year)
divided by the number of remaining installments (including the
installment then payable).
(iv) Investment of Account During Payment Period. The Participant's
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Restoration Account, to the extent vested, shall continue to be credited
with adjustments under Section 3.3 during the installment payment period
as follows:
(A) if the Participant has elected to receive payment through
five (5) annual installments, then the Participant shall be
permitted to continue to direct the investment of the Participant's
unpaid Restoration Account balance in accordance with Section 3.3
during the payment period (i.e., from the Participant's Benefit
Commencement Date through the last day of the Plan Year preceding
the last installment payment); and
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(B) if the Participant has elected to receive payment through
ten (10) annual installments, then the Participant's unpaid
Restoration Account balance shall be deemed invested in the Stable
Capital Fund during the payment period (i.e., from the Participant's
Benefit Commencement Date through the last day of the Plan Year
preceding the last installment payment).
(v) Death of Participant. If a Participant covered by this Section
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3.4(e) dies, then the annual installments (or remaining annual
installments in the case of death after commencement of payment) shall be
paid to the Participant's Beneficiary as and when such installments would
have otherwise been paid to the Participant had the Participant not died.
(f) Vesting of Restoration Accounts. Notwithstanding any provision of the
-------------------------------
Restoration Plan to the contrary, a Participant's Restoration Plan benefits
shall be vested if, and to the same extent, that the Participant's Pension Plan
benefits are vested. If, and to the extent that, a Participant's Restoration
Plan benefits are not vested on the date that the Participant terminates
employment with the Participating Employers, such benefits shall be forfeited
as of such date. However, if a Participant whose Restoration Plan benefits are
forfeited subsequently returns to service with any Participating Employer, any
such forfeitures shall be restored (adjusted for earnings on the same basis as
restored forfeitures under the Pension Plan) as soon as administratively
practicable after the date of such return to service (such restored benefits
shall remain subject to the vesting requirements of this Section 3.4(f)).
(g) Other Payment Provisions. A Participant shall not be paid any portion
------------------------
of the Participant's Restoration Account prior to the Participant's termination
of employment with the Participating Employers. Any Restoration Plan benefit or
payment hereunder shall be subject to applicable payroll and withholding taxes.
In the event any amount becomes payable under the provisions of the Restoration
Plan to a Participant, Beneficiary or other person who is a minor or an
incompetent, whether or not declared incompetent by a court, such amount may be
paid directly to the minor or incompetent person or to such person's fiduciary
(or attorney-in-fact in the case of an incompetent) as the Personnel Group, in
its sole discretion, may decide, and the Personnel Group shall not be liable to
any person for any such decision or any payment pursuant thereto.
(h) Former SRP Participants. Notwithstanding any other provisions in this
-----------------------
Restoration Plan to the contrary, the following provisions shall apply to a
Participant who was participating in the SRP as of June 30, 2000:
(i) SRP Installment Elections. If (A) the Participant has in
-------------------------
effect as of June 30, 2000 an installment payment election (but not
including an annuity payment election based on the Participant's life or
the joint life of the Participant and his or her Beneficiary) under the
SRP (an "SRP Installment Election") and (B) the Participant's entire
Pension Plan benefits are payable in a single cash payment, then the
Participant's vested Restoration Plan benefits shall be payable
12
in the number of installments provided by such SRP Installment Election
(even if the Participant has not attained age fifty-five (55) upon
termination of employment) unless either (X) the Participant changes such
election in accordance with the provisions of Section 3.4(c)(i) above or
this Section 3.4(h) or (Y) the Participant's vested Lump Sum Benefit is
Fifty Thousand Dollars ($50,000) or less as of the Participant's Benefit
Commencement Date (in which case payment of such Lump Sum Benefit shall be
in the form of a single cash payment in accordance with the provisions of
Section 3.4(d)(i) above).
(ii) Timing and Amount of Installment Payments. Notwithstanding any
-----------------------------------------
provision of the SRP Installment Election to the contrary, the timing of
the installment payments and the method for determining the amount of each
installment payment shall be determined in accordance with the provisions
of Section 3.4(e)(i), (ii) and (iii) above.
(iii) Investments During Installment Payment Period.
---------------------------------------------
Notwithstanding any provision of the SRP Installment Election to the
contrary, if the SRP Installment Election had a payment period of five (5)
years or less, then the Restoration Account may continue to be invested
during the payment period in accordance with the Participant's investment
election as provided in Section 3.3 (consistent with the provisions of
Section 3.4(e)(iv) applicable to five (5) annual installments). However,
if the SRP Installment Election had a payment period in excess of five (5)
years, then the Restoration Account shall be deemed invested in the Stable
Capital Fund during the payment period (consistent with the provisions of
Section 3.4(e)(iv) applicable to ten (10) annual installments).
(iv) Special Right to Change Election. If a Participant to which
--------------------------------
this Section 3.4(h) applies is under age fifty-five (55), then (A) the
Participant may at any time elect to change the method of payment to a
single cash payment (in accordance with Section 3.4(d) above) and (B) the
Participant may elect on or before August 31, 2000 to change the method of
payment to either five (5) or ten (10) year annual installments. In either
case, such election shall not become effective until the date that is
twelve (12) months after the date that the election is made if the
Participant remains in active service throughout that period (as
determined by the Personnel Group in its discretion).
Section 3.5 Minimum and Special Benefits. Notwithstanding any provision
----------------------------
of the Restoration Plan to the contrary, if the Actuarial Equivalent single sum
value of Amount A described below as of a Participant's Benefit Commencement
--------
Date exceeds the sum of the Participant's Restoration Account and Pension Plan
Accounts as of such date, then the Participant's Restoration Plan benefits
shall equal the excess (if any) of Amount A over Amount B, where:
-------- --------
Amount A equals the Pension Plan benefits determined in accordance with
--------
the Applicable Minimum Benefits Provisions of the Pension Plan if (i) the
Code Limitations did not apply to the Pension Plan and (ii) the
Participant's compensation
13
under the Pension Plan included any amounts which were disregarded because
of the Participant's deferral of such amounts pursuant to an election under
the Bank of America 401(k) Restoration Plan or any other nonqualified
deferred compensation plan designated by the Personnel Group; and
Amount B equals the Participant's actual Pension Plan benefits.
--------
Restoration Plan benefits determined in accordance with the provisions of this
Section 3.5 are subject to the limitation on certain incentive compensation set
forth in Section 3.2(d) and shall be payable in accordance with the provisions
of Section 3.4.
Section 3.6 Participants Without Restoration Accounts. Notwithstanding
----------------------------------------
any provision of the Restoration Plan to the contrary, if a Participant does
not have a Restoration Account (for example, because the Participant commenced
benefit payments under the Restoration Plan prior to conversion of the Pension
Plan to a cash balance plan, because the Participant was in a "deferred vested"
status prior to such date, or because the Participant was in pay status or was
a deferred vested participant under a prior plan that was merged into the
Restoration Plan as described in Section 5.7 below), the Participant's
Restoration Plan benefits shall be determined and paid in accordance with the
provisions of the Restoration Plan as in effect prior to July 1, 1998 (or the
provisions of any prior plan, if applicable); provided, however, that the
-------- -------
Personnel Group may in its discretion (i) determine to pay out in a single cash
payment any such benefits that as of a given determination date have an
Actuarial Equivalent single sum value less than or equal to Fifty Thousand
Dollars ($50,000), or (ii) otherwise modify the date(s) and/or form(s) of
payment so long as the effect of any such modification does not further defer
the date of payment(s).
Section 3.7 Coordination with SERP Payments. In the event that a Covered
-------------------------------
Associate is eligible to receive SERP benefits, the Personnel Group may make
such changes as it deems necessary or advisable to the payment and benefit
calculation procedures described in this Article III in order to have the
Covered Associate's vested Restoration Plan benefits paid at the same time(s)
and in the same form as the Covered Associate's SERP benefits, so long as any
such change does not otherwise reduce the Actuarial Equivalent amount of the
Covered Associate's vested Restoration Plan benefits.
ARTICLE IV
AMENDMENT AND TERMINATION
Section 4.1 Amendment and Termination. The Corporation shall have the
-------------------------
right and power at any time and from time to time to amend the Restoration Plan
in whole or in part, on behalf of all Participating Employers, and at any time
to terminate the Restoration Plan or any Participating Employer's participation
hereunder; provided, however, that no such amendment or termination shall
-------- -------
reduce the amount of a Participant's Restoration Plan benefits on the date of
such amendment or termination, or further defer the due dates for the payment
of such benefits, without the consent of the affected person. In connection
with any termination of the Restoration Plan, the Corporation shall have the
authority to cause the Restoration Plan benefits of all current and former
Participants (and Beneficiary of any deceased Participants) to be paid in a
single sum
14
payment as of a date determined by the Corporation or to otherwise accelerate
the payment of all Restoration Plan benefits in such manner as the Corporation
shall determine in its discretion.
Section 4.2 Change of Control.
-----------------
(a) General. Notwithstanding any provisions of the Restoration Plan to
-------
the contrary, on and after the date of a Change of Control (i) the provisions
of the Restoration Plan may not be terminated, amended or modified if the
Amendment or Termination Date is prior to the date immediately following the
date of the Change of Control and (ii) with respect to any amendment to the
Restoration Plan otherwise permissible under clause (i), the provisions of the
Restoration Plan may not be terminated, amended or modified to reduce,
eliminate or otherwise adversely affect in any manner the total amount of
benefits that would have been payable to a Participant, or the method and
timing by which such benefits would have been payable to the Participant, from
time to time under the Restoration Plan, assuming for this purpose that the
Participant had separated from service (as such term is defined in the Pension
Plan) on the date immediately preceding the Amendment or Termination Date of
any such amendment or termination; provided, however, the Corporation may
-------- -------
terminate, amend or modify the Restoration Plan at any time prior to the date
of a Change of Control in accordance with, and subject to, the provisions of
Section 4.1.
(b) Certain Benefits Disregarded. In determining after a Change of
----------------------------
Control the total amount of benefits payable under the Restoration Plan to or
with respect to a Participant who is also a participant in either the
NationsBank Supplemental Executive Retirement Plan or the NationsBank
Supplemental Executive Retirement Plan for Senior Management Employees, the
Participating Employers shall disregard the effect of any increase in the
accrued benefit (as such term is defined in the Pension Plan) of such
Participant as a result of Section 17.3 of the Pension Plan.
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.1 Nature of Plan and Rights. The Restoration Plan is unfunded
-------------------------
and intended to constitute an incentive and deferred cgmpensation plan for a
select group of officers and key management employees of the Participating
Employers. If necessary to preserve the above intended plan status, the
Committee, in its sole discretion, reserves the right to limit or reduce the
number of actual Participants and otherwise to take any remedial or curative
action that the Committee deems necessary or advisable. The Restoration
Accounts established and maintained under the Restoration Plan by a
Participating Employer are for accounting purposes only and shall not be deemed
or construed to create a trust fund of any kind or to grant a property interest
of any kind to any Participant, designated beneficiary or estate. The amounts
credited by a Participating Employer to such Restoration Accounts are and for
all purposes shall continue to be a part of the general assets of such
Participating Employer, and to the extent that a Participant, beneficiary or
estate acquires a right to receive payments from such Participating Employer
pursuant to the Restoration Plan, such right shall be no greater than the right
of any unsecured general creditor of such Participating Employer.
Section 5.2 Termination of Employment. For the purposes of the
-------------------------
Restoration Plan, a Participant's employment with a Participating Employer
shall not be considered to have
15
terminated so long as the Participant is in the employ of any Participating
Employer, other member of the Affiliated Group or any other entity as the
Personnel Group may designate.
Section 5.3 Spendthrift Provision. No Restoration Plan benefits or other
---------------------
right or interest under the Restoration Plan of a Participant or Beneficiary
may be assigned, transferred or alienated, in whole or in part, either directly
or by operation of law, and no such balance, right or interest shall be liable
for or subject to any debt, obligation or liability of the Participant or
Beneficiary. Notwithstanding the foregoing, the Participating Employers shall
have the right to offset from a Participant's unpaid benefits under the
Restoration Plan any amounts due and owing from the Participant to the extent
permitted by law.
Section 5.4 Employment Noncontractual. The establishment of the
-------------------------
Restoration Plan shall not enlarge or otherwise affect the terms of any
Participant's employment with his Participating Employer, and such
Participating Employer may terminate the employment of the Participant as
freely and with the same effect as if the Restoration Plan had not been
established.
Section 5.5 Adoption by Other Participating Employers. The Restoration
-----------------------------------------
Plan may be adopted by any Participating Employer participating under the
Pension Plan, such adoption to be effective as of the date specified by such
Participating Employer at the time of adoption.
Section 5.6 Applicable Law. The Restoration Plan shall be governed and
--------------
construed in accordance with the laws of the State of North Carolina, except to
the extent such laws are preempted by the laws of the United States of America.
Section 5.7 Merged Plans. From time to time the Participating Employers
------------
may cause other nonqualified plans to be merged into the Restoration Plan.
Schedule 5.7 attached hereto sets forth the names of the plans that merged into
the Restoration Plan by July 1, 2000 and their respective merger dates.
Schedule 5.7 shall be updated from time to time to reflect mergers after July
1, 2000.
Upon such a merger, the accrued benefits immediately prior to the date of
merger of each participant in the merged plan shall be transferred and credited
as of the merger date to a Restoration Account established under the
Restoration Plan for such participant. From and after the merger date, the
participant's rights shall be determined under the Restoration Plan, and the
participant shall be subject to all of the restrictions, limitations and other
terms and provisions of the Restoration Plan. Not in limitation of the
foregoing, the Restoration Account established for the participant as a result
of the merger shall be periodically adjusted when and as provided in Section
3.3 hereof as in effect from time to time and shall be paid at such time and in
such manner as provided in Section 3.4 hereof, except to the extent otherwise
provided on Schedule 5.7. Notwithstanding any provision of this Section 5.7 to
the contrary and subject to the provisions of Section 3.6, a participant in a
merged plan that is in pay status or is a terminated employee in a deferred
vested status as of the plan merger date shall continue to be eligible to
receive benefits as and when provided under the terms of the merged plan as in
effect immediately prior to such merger. The Personnel Group shall, in its
discretion, establish any procedures it deems necessary or advisable in order
to administer any such plan mergers,
16
including without limitation procedures for transitioning from the method of
account adjustments under the prior plan to the methods provided for under the
Restoration Plan.
Section 5.8 Status Under the Act. The Restoration Plan is maintained for
--------------------
purposes of providing deferred compensation for a select group of management or
highly compensated employees. In addition, to the extent that the Restoration
Plan makes up benefits limited under the Pension Plan as a result of Section
415 of the Code, the Restoration Plan shall be considered an "excess benefit
plan" within the meaning of the Act.
Section 5.9 Claims Procedure. Any claim for benefits under the
----------------
Restoration Plan by a Participant or Beneficiary shall be made in accordance
with the claims procedures set forth in the Pension Plan.
Section 5.10 Limited Effect of Restatement. Notwithstanding anything to
-----------------------------
the contrary contained in the Plan, to the extent permitted by the Act and the
Code, this instrument shall not affect the availability, amount, form or method
of payment of benefits being paid before the Conversion Date, or to be paid on
or after the Conversion Date, to any Participant or former Participant (or a
Beneficiary of either) in the Restoration Plan who is not an active Participant
on or after the Conversion Date, said availability, amount, form or method of
payment of benefits, if any, to be determined in accordance with the applicable
provisions of the Restoration Plan as in effect prior to the Conversion Date.
Section 5.11 Binding Effect. The Restoration Plan (including any and all
--------------
amendments thereto) shall be binding upon the Participating Employers, their
respective successors and assigns, and upon the Participants and their
Beneficiaries and their respective heirs, executors, administrators, personal
representatives and all other persons claiming by, under or through any of them.
IN WITNESS WHEREOF, this instrument has been executed by the Corporation
effective as of July 1, 1998.
BANK OF AMERICA CORPORATION
By: /s/ J. Steele Alphin
----------------------------------------
Title: Corporate Personnel Executive
` ----------------------------------
17
SCHEDULE 5.7
MERGED PLANS AS OF JULY 1, 2000
-------------------------------
Plan Name Date of Merger
- --------- --------------
BankAmerica Supplemental Retirement Plan July 1, 2000
(but only as to BankAmerica Pension Plan
restored benefits)