Exhibit 10(g)
BANK OF AMERICA 401(k) RESTORATION PLAN
(as amended and restated effective July 1, 2000)
BANK OF AMERICA 401(k) 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............................................... 4
Section 2.1 Committee............................................... 4
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ARTICLE III DEFERRED COMPENSATION PROVISIONS................................. 4
Section 3.1 Form and Time of Elections.............................. 4
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Section 3.2 Deferrals by Highly Compensated Associates.............. 4
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Section 3.3 Matching Contributions for Highly Compensated Associates 5
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Section 3.4 Deferrals by Key Associates............................. 6
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Section 3.6 Account Adjustments..................................... 7
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Section 3.7 Account Payments Following Termination of Employment.... 8
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Section 3.8 In-Service Withdrawals.................................. 12
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Section 3.9 Other Contributions..................................... 13
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ARTICLE IV AMENDMENT AND TERMINATION......................................... 13
Section 4.1 Amendment and Termination............................... 13
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ARTICLE V MISCELLANEOUS PROVISIONS........................................... 13
Section 5.1 Nature of Plan and Rights............................... 13
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Section 5.2 Termination of Employment............................... 14
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Section 5.3 Spendthrift Provision................................... 14
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Section 5.4 Employment Noncontractual............................... 14
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Section 5.5 Adoption by Other Participating Employers............... 14
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Section 5.6 Applicable Law.......................................... 14
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Section 5.7 Merged Plans............................................ 14
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Section 5.8 Status Under the Act.................................... 15
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Section 5.9 Claims Procedure........................................ 15
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BANK OF AMERICA 401(k) RESTORATION PLAN
(as amended and restated effective July 1, 2000)
THIS INSTRUMENT OF AMENDMENT AND RESTATEMENT is executed effective as of
the 1st day of July, 2000, by BANK OF AMERICA CORPORATION, a Delaware
corporation (the "Corporation");
Statement of Purpose
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The Corporation sponsors The NationsBank Corporation 401(k) Restoration
Plan (the "Restoration Plan"). The purpose of the Restoration Plan is to
provide benefits, on a non-qualified and unfunded basis, to certain associates
whose benefits under The NationsBank 401(k) Plan (the "401(k) Plan") are
adversely affected by the limitations of Sections 401(a)(17), 401(k)(3),
401(m), 402(g) and 415 of the Internal Revenue Code, as well as certain limits
placed on the contribution rates of highly compensated participants established
by the administrative committee under The NationsBank 401(k) Plan.
Effective July 1, 2000, a number of changes are being made to the
Corporation's employee benefit plans in connection with the combination of the
former NationsBank and BankAmerica benefit programs. By this Instrument, the
Corporation is amending and restating the Restoration Plan effective July 1,
2000 to (i) make a number of design changes to the Restoration Plan in
connection with those benefit program changes, (ii) rename the Restoration Plan
as the "Bank of America 401(k) Restoration Plan", and (iii) otherwise meet
current needs.
NOW, THEREFORE, for the purposes aforesaid, the Corporation hereby amends
and restates the Restoration Plan effective July 1, 2000 to consist of the
following Articles I through V:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Unless the context clearly indicates
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otherwise, when used in the Restoration Plan:
Account means, collectively, the Deferral Account and
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Matching Contribution Restoration Account.
Annual Incentive Award means, with respect to a Key Associate, any
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annual incentive award payable to such Key Associate pursuant to (i) the
Bank of America Executive Incentive Compensation Plan or (ii) any other
incentive compensation plan of the Corporation or any of its Subsidiaries
approved for purposes of this Plan by the Committee. Annual Incentive
Awards may be
payable annually, quarterly, or on such other basis as provided by the
applicable plan.
Associate means a common law employee of a Participating Employer
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who is identified as an employee in the personnel records of the
Participating Employer.
Beneficiary means the "Beneficiary" of a Covered Associate under the
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401(k) Plan, unless the Covered Associate elects a different Beneficiary
for purposes of the Restoration Plan in accordance with such procedures as
the Personnel Group may establish from time to time. If there is no
Beneficiary election in effect under the 401(k) Plan or the Restoration
Plan at the time of a Covered Associate's death, or if the designated
Beneficiary fails to survive the Covered Associate, then the Beneficiary
shall be the Covered Associate's surviving spouse, or if there is no
surviving spouse, the Covered Associate's estate.
Benefit Determination Date means the last day of the calendar month
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following the calendar month in which a Covered Associate's employment
with the Participating Employers terminates, or the last day of a
subsequent calendar month if the Personnel Group determines to be
administratively necessary or appropriate (e.g., as a result of the timing
of notification to the Personnel Group of such termination of employment).
Code means the Internal Revenue Code of 1986. References to the Code
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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), 401(k)(3), 401(m), 402(g) and 415
of the Code place on the Pre-Tax Employee Contributions and Matching
Contributions for a Covered Associate under the 401(k) Plan. In addition,
Code Limitations also means and refers to any limitations on contributions
under the 401(k) Plan established by the 401(k) Plan administrative
committee with respect to highly compensated participants.
Committee means the committee designated pursuant to Section 2.1 of
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the Restoration Plan.
Corporation means Bank of America Corporation, a Delaware
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corporation, and any successor thereto.
Covered Associate means either a Highly Compensated Associate or a
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Key Associate.
DCP means the BankAmerica Corporation Deferred Compensation Plan.
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Deferral Account means the account established and maintained on the
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books of a Participating Employer to record a Covered Associate's interest
under the Restoration Plan attributable to amounts credited to the Covered
Associate pursuant to Section 3.2 or Section 3.4 of the Restoration Plan.
401(k) Plan means The Bank of America 401(k) Plan, as in effect from
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time to time.
Highly Compensated Associate means an Associate eligible to
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participate in the 401(k) Plan who the Personnel Group determines to be a
"highly compensated employee" (within the meaning of Section 414(q) of the
Code) under the 401(k) Plan for a Plan Year, but shall not include a Key
Associate.
Key Associate means a Covered Associate who is in Band 0, 1, 2 or 3,
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or who has annual base compensation of $100,000 or more as determined by
the Personnel Group in its discretion at such time or times as it may
select.
Matching Contribution Restoration Account means the account
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established and maintained on the books of a Participating Employer to
record a Covered Associate's interest under the Restoration Plan
attributable to amounts credited to the Covered Associate pursuant to
Section 3.3 or Section 3.5 of the Restoration Plan.
Participating Employer means (i) the Corporation, (ii) each other
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"Participating Employer" under (and as defined in) the 401(k) Plan on the
date hereof and (iii) any other incorporated or unincorporated trade or
business which may hereafter adopt both the 401(k) Plan and 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.
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 Plan means this plan: the Bank of America 401(k)
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Restoration Plan as in effect from time to time.
SRP means the BankAmerica Supplemental Retirement Plan, other than
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the portion of the SRP that restored benefits under the BankAmerica
Pension Plan.
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Any capitalized terms used in the Restoration Plan that are defined in the
documents comprising the 401(k) Plan have the meanings assigned to them in the
401(k) Plan, unless such terms are otherwise defined above in this Article or
unless the context clearly indicates otherwise.
ARTICLE II
PLAN ADMINISTRATION
Section 2.1 Committee. The Restoration Plan shall be administered by
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the "Committee" under (and as defined in) the 401(k) 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 an 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
DEFERRED COMPENSATION PROVISIONS
Section 3.1 Form and Time of Elections. Prior to January 1 of a Plan
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Year, or at such other times as may be established by the Personnel Group, a
Covered Associate for the Plan Year may elect to defer under the Restoration
Plan such amounts as provided by this Article III in accordance with the
procedures set forth in this Section 3.1. All elections made under this Section
3.1 shall be made in writing on a form, or pursuant to such other non-written
procedures, as may be prescribed from time to time by the Personnel Group and
shall be irrevocable for such Plan Year. An election by a Covered Associate
under this Section 3.1 shall continue in effect for all subsequent Plan Years
(during which the Covered Associate is a highly compensated employee) unless
and until changed or terminated by the Covered Associate in accordance with
procedures established from time to time by the Personnel Group. Any such
change in or termination of an election under this Section 3.1 shall be
effective as of the January 1 of the next succeeding Plan Year.
Section 3.2 Deferrals by Highly Compensated Associates. If a Highly
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Compensated Associate makes an election to defer in accordance with Section 3.1
above for a Plan Year, the amount attributable to any Pre-Tax Employee
Contribution for a particular pay period during the Plan Year which cannot be
credited to the Highly Compensated Associate under the 401(k) Plan because of
the Code Limitations shall be credited to a Deferral Account established and
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maintained in the name of the Highly Compensated Associate on the books and
records of his or her Participating Employer. Such amount shall be credited to
the Deferral Account as of the date the amount would have otherwise been paid
to the Highly Compensated Associate.
Section 3.3 Matching Contributions for Highly Compensated Associates.
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A Participating Employer shall establish and maintain on its books a Matching
Contribution Restoration Account for each Highly Compensated Associate employed
by such Participating Employer whose Matching Contributions under the 401(k)
Plan shall have been limited, directly or indirectly, by the operation of the
Code Limitations. If a Highly Compensated Associate is a Match-Eligible
Participant for the Plan Year under the 401(k) Plan, the Highly Compensated
Associate's Matching Contribution Restoration Account shall be credited as of
the Valuation Date under the 401(k) Plan that occurs on the last day of the
Plan Year with an amount equal to the sum of Amount A and Amount B, where:
Amount A is one hundred percent (100%) of the sum of the portions (if any)
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of the amounts credited to the Highly Compensated Associate's Deferral
Account for the Plan Year pursuant to Section 3.2 above that would have
been Matchable Pre-Tax Employee Contributions for the Plan Year under the
401(k) Plan had such amounts been contributed to the 401(k) Plan as
Pre-Tax Employee Contributions for the Highly Compensated Associate and
the Code Limitations not applied to the 401(k) Plan.
Amount B is one hundred percent (100%) of the portion (if any) of the
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actual Matchable Pre-Tax Employee Contributions made to the 401(k) Plan
for the Highly Compensated Associate for the Plan Year with respect to
which Matching Contribution allocations were not made under Section 5.4 of
the 401(k) Plan or (if made) were forfeited under Section 5.4 of the
401(k) Plan because of the Code Limitations.
Notwithstanding the foregoing, no amount shall be credited to the Matching
Contribution Restoration Account of a Highly Compensated Associate for a Plan
Year to the extent it relates to bonus, incentive or commission compensation
payable to the Highly Compensated Associate for the Plan Year in excess of One
Million Dollars ($1,000,000); provided, however, that for a Highly Compensated
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Associate who first becomes eligible to participate in the Restoration Plan on
July 1, 2000 as a result of the merger of the DCP or SRP into the Restoration
Plan on that date, the foregoing limit shall apply only with respect to
bonuses, incentives or commissions earned and paid following July 1, 2000. In
addition, the Plan Administrator may determine, in its sole and exclusive
discretion, to deduct from the amount otherwise to be credited to the Matching
Contribution Restoration Account of a Highly Compensated Associate for a Plan
Year an amount necessary to pay any related payroll taxes.
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Section 3.4 Deferrals by Key Associates.
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(a) Deferral Accounts for Key Associates. A Participating Employer
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shall establish and maintain on its books a Deferral Account for each Key
Associate employed by such Participating Employer who elects pursuant to
Section 3.1 to defer the receipt of any amount of the Restoration Plan. Such
Deferral Account shall be designated by the name of the Key Associate for whom
established. The amount to be deferred under this Section 3.4 for a payroll
period shall be credited to such Deferral Account as of the date such amount
would have otherwise been paid to the Key Associate.
(b) Election to Defer Base Salary. A Key Associate may elect to defer,
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on a combined basis with the 401(k) Plan as hereinafter provided, up to thirty
percent (30%) of the Key Associate's base salary for a Plan Year; provided,
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however, that the Key Associate has elected to defer no less than the maximum
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percentage amount permissible under the 401(k) Plan for the Plan Year.
Deferrals shall be made on a payroll period basis. The deferral of base salary
for a payroll period shall be made after any Pre-Tax Employee Contributions
under the 401(k) Plan for the payroll period related to such base salary such
that the total percentage of base salary deferred for the payroll period on a
combined basis with the percentage of base salary deferred under the 401(k)
Plan for the payroll period shall equal the percentage elected by the Key
Associate without any regard to the Code Limitations.
(c) Election to Defer Covered Annual Incentive Award. Each Key
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Associate for a Plan Year may elect pursuant to Section 3.1 above to defer for
the Plan Year up to ninety percent (90%) of any Annual Incentive Award
otherwise payable to the Key Associate for the Plan Year. Such deferral shall
be made without regard to the Code Limitations. Any portion of an Annual
Incentive Award not deferred under the Restoration Plan shall be excluded from
the Key Associate's Compensation in accordance with, and subject to, the terms
and provisions of the 401(k) Plan (and therefore shall not be included in
determining the amount of the Key Associate's Pre-Tax Employee Contributions
under the 401(k) Plan).
Section 3.5 Matching Contributions for Key Associates.
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(a) Matching Contribution Restoration Account for Key Associates. A
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Participating Employer shall establish and maiftain on its books a Matching
Cgntribution Restoration Account for each Key Associate employed by such
Participating Employer who is credited with a matching contribution under this
Section 3.5. Such Matching Contribution Restoration Account shall be designated
by the name of the Key Associate for whom established.
(b) Matching Contributions for Base Salary Deferrals. If a Key
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Associate is a Match-Eligible Participant for the Plan Year under the 401(k)
Plan, the Key Associate's Matching Contribution Restoration Account shall be
credited as of the Valuation Date under the 401(k) Plan that occurs on the last
day of the Plan Year with an amount determined consistent with the provisions
of Section 3.3 above with respect to any base salary deferrals for the Plan
Year pursuant to Section 3.4(b) above.
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(c) Matching Contributions for Annual Incentive Awards. If a Key
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Associate is a Match-Eligible Participant for a Plan Year under the 401(k) Plan
and has deferred any portion of the Key Associate's Annual Incentive Award
under Section 3.4(c) that would have otherwise been paid during the Plan Year,
then the Matching Contribution Restoration Account of the Key Associate shall
be credited as of the Valuation Date under the 401(k) Plan that occurs on the
last day of the Plan Year with a matching contribution equal to the amount of
the Annual Incentive Award otherwise payable during the Plan Year that is
deferred by the Key Associate pursuant to Section 3.4(c) above, but excluding
any such deferrals that exceed five percent (5%) of the Key Associate's total
Annual Incentive Award. Notwithstanding the foregoing, the maximum amount of
such matching contribution for a Plan Year shall equal Fifty Thousand Dollars
($50,000) (i.e., the matching contribution shall not be based on the portion of
an Annual Incentive Award exceeding $1,000,000).
(d) Payroll Taxes. The Plan Administrator may determine, in its sole
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and exclusive discretion, to deduct from the amount otherwise to be credited to
the Matching Contribution Restoration Account of a Key Associate for a Plan
Year an amount necessary to pay any related payroll taxes.
Section 3.6 Account Adjustments.
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(a) Account Adjustments for Deemed Investments. The Committee shall
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from time to time designate one or more investment vehicle(s) in which the
Accounts of Covered Associates 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 401(k) Plan).
Each Covered Associate shall designate the investment vehicle(s) in which his
or her 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 designating
investments) the following:
(i) Nations LifeGoal Income & Growth Portfolio;
(ii) Nations LifeGoal Balanced Growth Portfolio;
(iii) Nations LifeGoal Growth Portfolio;
(iv) Nations LargeCap Index;
(v) Nations MidCap Index Fund;
(vi) Nations SmallCap Index Fund;
(vii) Stable Capital Fund;
(viii) Nations Bond Fund;
(ix) Nations Value Fund;
(x) Nations Interfational Equity Fund;
(xi) Nations Marsico Focused Equities Fund; and
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(xii) Bank of America Corporation Common Stock Fund.
The Committee shall also establish from time to time a default Fund into which
a Covered Associate's Account shall be deemed to be invested if the Covered
Associate fails to provide investment instructions pursuant to this Section
3.6(a). Effective July 1, 2000, such default Fund shall be the Stable Capital
Fund.
(b) Periodic Account Adjustments. Each Account shall be adjusted from
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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 Covered Associate's Account would have earned (or lost) for the
period since the last adjustment had the Account actually been invested in the
401(k) Plan in the deemed investment vehicle(s) designated by the Covered
Associate for such period pursuant to Section 3.6(a).
Section 3.7 Account Payments Following Termination of Employment.
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(a) Payment Options.
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(i) A Covered Associate may 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 (as determined by the
Personnel Group in its discretion) or (B) the date the Covered Associate
attains age fifty-five (55).
(ii) The payment options from which a Covered Associate 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) Any election made under this Section 3.7(a) 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 Covered
Associate may not have more than two (2) payment elections pending under
this Section 3.7(a) at any one time.
(iv) For a Covered Associate who dges not yet have an election
in effect under this Section 3.7(a) or for a Covered Associate who fails
to elect a payment option under this Section 3.7(a), the method of payment
shall be the single cash payment.
(b) Single Cash Payments. The following provisions shall apply with
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respect to single cash payments under the Restoration Plan:
(i) If a Covered Associate terminates employment with the
Participating Employers either (A) before attainment of age fifty-five
(55) or (B)
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with a vested Account balance (determined as of the Benefit Determination
Date) that is Fifty Thousand Dollars ($50,000) or less (even if the
Covered Associate has elected and is otherwise eligible for installment
payments), then the Covered Associate's Account, to the extent vested,
shall be determined as of the Benefit Determination Date, and such final
vested Account balance shall be paid in a single cash payment to the
Covered Associate (or to the Covered Associate's Beneficiary in the case
of the Covered Associate's death) as soon as administratively practicable
after the Benefit Determination Date.
(ii) If a Covered Associate terminates employment with the
Participating Employers after attainment of age fifty-five (55) with a
vested Account balance (determined as of the Benefit Determination Date)
exceeding Fifty Thousand Dollars ($50,000) and with a single cash payment
election in effect under Section 3.7(a), then such Covered Associate's
Account, to the extent vested, shall continue to be credited with
adjustments under Section 3.6 through the last day of the Plan Year in
which such termination of employment occurs. The final vested Account
balance as of the last day of such Plan Year shall be paid in a single
cash payment to the Covered Associate (or to the Covered Associate's
Beneficiary in the case of the Covered Associate's death) within ninety
(90) days following the end of such Plan Year. Notwithstanding the
foregoing, if the applicable Benefit Determination Date occurs in the Plan
Year after the Plan Year in which termination of employment occurs, then
the single cash payment shall be in the amount of the Account Balance
determined as of the Benefit Determination Date and shall be payable as
soon as administratively practicable after the Benefit Determination Date.
(c) Annual Installments. If a Covered Associate terminates employment
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with the Participating Employers after attainment of age fifty-five (55) with a
vested Account balance (determined as of the Benefit Determination Date)
exceeding Fifty Thousand Dollars ($50,000) and with an installment payment
election in effect under Section 3.7(a), then the amount of the annual
installments shall be calculated and paid pursuant to the following provisions:
(i) Timing of Payments. The first installment shall be paid
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within ninety (90) days following the end of the Plan Year in which the
Covered Associate's employment with the Participating Employers
terminates; provided, however, that if the applicable Benefit
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Determination Date occurs in the Plan Year after the Plan Year in which
termination of employment occurs, then the first installment shall be paid
as soon as administratively practicable after the Benefit Determination
Date. Each subsequent installment shall be paid within ninety (90) days
following the end of each subsequent Plan Year during the selected payment
period.
(ii) Amount of Installments. The amount payable for each
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installment shall equal the Account balance as of the end of the
applicable Plan Year divided by the number of remaining installments
(including the installment then payable); provided, however, that if the
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applicable Benefit Determination Date occurs in the
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Plan Year after the Plan Year in which termination of employment occurs,
then the amount of the first installment shall be based on the amount of
the Account balance as of such Benefit Determination Date.
(iii) Investment of Account During Payment Period. The Covered
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Associate's Account, to the extent vested, shall continue to be credited
with adjustments under Section 3.6 through the end of the Plan Year in
which the Covered Associate's employment with the Participating Employers
terminates (or through the applicable Benefit Determination Date if the
Benefit Determination Date occurs in the Plan Year after the Plan Year in
which termination of employment occurs). If the Covered Associate has
elected to receive payment through five (5) annual installments, then the
Covered Associate shall be permitted to continue to direct the investment
of the Covered Associate's unpaid Account balance in accordance with
Section 3.6 during the payment period (i.e., through the last day of the
fourth Plan Year after the Plan Year in which the Covered Associate's
employment with the Participating Employers terminates). If the Covered
Associate has elected to receive payment through ten (10) annual
installments, then the Covered Associate's unpaid Account balance shall be
deemed invested in the Stable Capital Fund during the payment period
(i.e., through the last day of the ninth Plan Year after the Plan Year in
which the Covered Associate's employment with the Participating Employers
terminates).
(iv) Death of Covered Associate. If a Covered Associate covered
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by this Section 3.7(c) dies, then the annual installments (or remaining
annual installments in the case of death after commencement of payment)
shall be paid to the Covered Associate's Beneficiary as and when such
installments would have otherwise been paid to the Covered Associate had
the Covered Associate not died.
(d) Vesting of Matching Accounts. Notwithstanding any provision of the
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Restoration Plan to the contrary, if a Covered Associate is not fully (100%)
vested in the amount credited tg the Associate's Matching Contribution Account
under the 401(k) Plan at the time of the Associate's termination of employment
with the Participating Employers, then the amount credited to the Covered
Associate's Matching Contribution Restoration Account shall be reduced as of
the applicable Benefit Determination Date to an amount equal to the product of
(i) the amount then credited to said Matching Contribution Restoration Account
multiplied by (ii) the vested percentage applicable to the Associate's Matching
Contribution Account and Pre-1993 Stock/Thrift Plan Matching Contribution
Account under the 401(k) Plan as of the date of such termination of employment.
The amount by which the Associate's Matching Contribution Restoration Account
is reduced by application of the preceding sentence shall be forfeited as of
the applicable Benefit Determination Date.
(e) Other Payment Provisions. Subject to the provisions of Section
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3.8, a Covered Associate shall not be paid any portion of the Associate's
Account prior to the Associate's termination of employment with the
Participating Employers. Any deferral or payment hereunder shall be subject to
applicable payroll and withholding taxes. For purposes of the Restoration Plan,
a Covered Associate shall be deemed to have terminated employment with the
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Participating Employers upon eligibility for benefits under the Long-Term
Disability Plan in which the Covered Associate participates as in effect from
time to time; provided, however, that the Personnel Group may in its discretion
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determine that a Covered Associate who is eligible to receive Long-Term
Disability Plan benefits has not terminated employment if the Personnel Group
concludes that the Covered Associate is likely to return to work. In the event
any amount becomes payable under the provisions of the Restoration Plan to a
Covered Associate, 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.
(f) Former DCP and SRP Participants. Notwithstanding any other
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provisions in this Restoration Plan to the contrary, the following provisions
shall apply to a Covered Associate who was participating in the DCP or SRP as
of June 30, 2000:
(i) If the Covered Associate has in effect as of June 30, 2000
an installment payment election (but not including an annuity payment
election based on the Covered Associate's life or the joint life of the
Covered Associate and his or her Beneficiary) under the DCP or (if no
installment payment election is in effect under the DCP) the SRP (a "Prior
Plan Installment Election"), then the Covered Associate's vested Account
balance shall be payable in the number of installments provided by such
Prior Plan Installment Election (even if the Covered Associate has not
attained age fifty-five (55) upon termination of employment) unless either
(A) the Covered Associate changes such election in accordance with the
provisions of Section 3.7(a)(ii) above or this Section 3.7(f) or (B) the
Covered Associate's vested Account balance is Fifty Thousand Dollars
($50,000) or less as of the applicable Benefit Determination Date (in
which case the Account shall be payable in a single cash payment in
accordance with Section 3.7(b)(i) above).
(ii) Notwithstanding any provision of the Prior Plan
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
3.7(c)(i) and (ii) above.
(iii) Notwithstanding any provision of the Prior Plan
Installment Election to the contrary, if the Prior Plan Installment
Election had been made under the SRP with a payment period of five (5)
years or less or under the DCP (regardless of the payment period), then
the Account may continue to be invested during the payment period in
accordance with the Covered Associate's investment election as provided in
Section 3.6 (consistent with the provisions of Section 3.7(c)(iii)
applicable to five (5) annual installments). However, if the Prior Plan
Installment Election had been made under the SRP with a payment period in
excess of five (5) years, then the Account shall be deemed invested in the
Stable
11
Capital Fund during the payment period (consistent with the provisions of
Section 3.7(c)(iii) applicable to ten (10) annual installments).
(iv) If a Covered Associate to which this Section 3.7(f)
applies is under age fifty-five (55), then (A) the Covered Associate may
at any time elect to change the method of payment to a single cash payment
and (B) the Covered Associate may elect on or before August 31, 2000 to
change the method of payment to either a single cash payment or 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 (as determined by the Personnel Group in
its discretion).
(v) In the case of a former DCP or SRP participant who is not
employed by the Participating Employers as of July 1, 2000, payments of
DCP and SRP balances shall be made in accordance with the provisions of
the DCP and SRP, as applicable, except that any participant-directed
investment of DCP accounts shall be made in accordance with the provisions
of Section 3.6 above.
Section 3.8 In-Service Withdrawals.
----------------------
(a) Withdrawals on Demand. A Covered Associate who is in the active
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service of a Participating Employer may elect to receive an unscheduled payment
of up to one hundred percent (100%) of his or her vested Account balance at any
time; provided, however, that (i) ten percent (10%) of the amount requested
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shall be forfeited from the Covered Associate's Account and (ii) the Covered
Associate shall be ineligible to participate in the Restoration Plan for the
remainder of the Plan Year in which the withdrawal is made and one (1) Plan
Year thereafter.
(b) Withdrawals on Account of an Unforeseeable Emergency. A Covered
----------------------------------------------------
Associate who is in active service of a Participating Employer may, in the
Committee's sole discretion, receive a refund of all or any part of the amounts
previously credited to the Covered Associate's Accounts (to the extent vested)
in the case of an "unforeseeable emergency". A Covered Associate requesting a
payment pursuant to this Section shall have the burden of proof of establishing,
to the Committee's satisfaction, the existence of such "unforeseeable
emergency", and the amount of the payment needed to satisfy the same. In that
regard, the Covered Associate shall provide the Committee with such financial
data and information as the Committee may request. If the Committee determines
that a payment should be made to a Covered Associate under this Section such
payment shall be made within a reasonable time after the Committee's
determination of the existence of such "unforeseeable emergency" and the amount
of payment so needed. The Committee may in its discretion establish the order in
which amounts shall be withdrawn under this Section from a Covered Associate's
Accounts. As used herein, the term "unforeseeable emergency" means a severe
financial hardship to a Covered Associate resulting from a sudden and unexpected
illness or accident of the Covered Associate or of a dependent of the Covered
Associate, loss of the Covered Associate's property due to casualty, or other
similar extraordinary and unforeseeable circumstances arising as a result of
events beyond the control of the Covered Associate. The circumstances that shall
constitute an "unforeseeable emergency" shall depend upon the facts of each
case, but, in any case, payment may not be made to the extent
12
that such hardship is or may be relieved (i) through reimbursement or
compensation by insurance or otherwise, or (ii) by liquidation of the Covered
Associate's assets, to the extent the liquidation of such assets would not
itself cause severe financial hardship. Examples of what are not considered to
be "unforeseeable emergencies" include the need to send a Covered Associate's
child to college or the purchase of a home. Withdrawals of amounts because of
an "unforeseeable emergency" shall not exceed an amount reasonably needed to
satisfy the emergency need. If any withdrawal is permitted pursuant to this
Section during a Plan Year, no further deferral of compensation shall be made
during the Plan Year from and after the effective date of the withdrawal.
Section 3.9 Other Contributions. The Participating Employers may from
-------------------
time to time, in their sole and exclusive discretion, elect to credit a Covered
Associate's Account with additional amounts not otherwise contemplated by this
Article III.
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 actually credited to the Account(s) of any current or former
Covered Associate (or beneficiary of a deceased Covered Associate) on the date
of such amendment or termination, or further defer the due dates for the
payment of such amounts, 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 Accounts of all current and former Covered
Associates (and beneficiary of any deceased Covered Associates) to be paid in a
single sum payment as of a date determined by the Corporation or to otherwise
accelerate the payment of all Accounts in such manner as the Corporation shall
determine in its discretion.
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 compensation 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 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 Associate, designated beneficiary or estate. The amounts credited by a
Participating Employer to such 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 an Associate, beneficiary or estate acquires a right to receive
payments from such Participating Employer pursuant to the
13
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, an Associate's employment with a Participating Employer shall
not be considered to have terminated so long as the Associate is in the employ
of any Participating Employer, other member of the Controlled Group or any
other entity as the Personnel Group may designate.
Section 5.3 Spendthrift Provision. No Account balance or other right
---------------------
or interest under the Restoration Plan of an Associate, beneficiary or estate
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 Associate,
designated beneficiary or estate. Notwithstanding the foregoing, the
Participating Employers shall have the right to offset from a Covered
Associate's unpaid benefits under the Restoration Plan any amounts due and
owing from the Covered Associate 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
Associate's employment with his Participating Employer, and such Participating
Employer may terminate the employment of the Associate 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
401(k) 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 account balance(s) 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 one or more accounts 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, each Restoration Plan Account established for the participant as a
result of the merger shall be periodically adjusted when and as provided in
Section 3.6 hereof as in effect from time to time and shall be paid at such
time and in such manner as provided in Section 3.7 and Section 3.8 hereof,
except to the extent otherwise provided on Schedule 5.7. The Personnel Group
shall, in its discretion, establish any procedures it deems necessary or
advisable in order to administer any such plan mergers, including without
14
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 401(k) 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 Covered Associate or Beneficiary shall be made in
accordance with the claims procedures set forth in the 401(k) Plan.
IN WITNESS WHEREOF, this instrument has been executed by the Corporation
as of the day and year first above written.
BANK OF AMERICA CORPORATION
By: /s/ J. Steele Alphin
---------------------------------------
Title: Corporate Personnel Executive
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15
SCHEDULE 5.7
MERGED PLANS AS OF JULY 1, 2000
-------------------------------
Plan Name Date of Merger
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C&S Policy Committee Supplemental December 31, 1992
Savings Plan
C&S Key Executive Supplemental December 31, 1992
Savings Plan
C&S/Sovran Supplemental Retirement December 31, 1992
Plan for Former Sovran Executives
(Thrift Restoration Benefits)
First & Merchants Corporation Deferred March 31, 1993
Management Incentive Compensation
Plan
Sovran Deferred Compensation Plan March 31, 1993
NationsBank of Texas, N.A. Profit March 31, 1993
Sharing Restoration Plan
Thrift Plan Reserve Account Maintained March 31, 1993
Under the NationsBank Corporation
and Designated Subsidiaries
Supplemental Executive Retirement Plan
Bank South Executive Bonus Deferral Plan July 1, 1996
Boatmen's Bancshares, Inc. Executive Deferred December 31, 1997
Compensation Plan
Fourth Financial Corporation Executive Deferred December 31, 1997
Compensation Plan
NationsBank Corporation Key Employee Deferral Plan April 1, 1998
Deferred compensation components of the NationsBank April 1, 1998
Corporation Executive Incentive Compensation Plan
Management Excess Savings Plan of Barnett Banks, Inc. December 31, 1998
and its Affiliates
BankAmerica Deferred Compensation Plan June 30, 2000
BankAmerica Supplemental Retirement Plan June 30, 2000