EXHIBIT 4.2
STATE OF NORTH CAROLINA CCB FINANCIAL CORPORATION
RETIREMENT SAVINGS PLAN
COUNTY OF DURHAM FIFTH AMENDMENT
THIS AGREEMENT is made and entered into by CCB Financial
Corporation, a corporation duly organized and existing under the
laws of the State of North Carolina.
WITNESSETH:
CCB Financial Corporation agrees that the CCB Financial
Corporation Retirement Savings Plan be hereby further amended,
generally effective April 1, 1997, or as indicated in the body of
the Amendment.
1. Delete Section 1.35 and substitute in lieu thereof the
following new Section:
Section 1.35 VALUATION DATE - The words "Valuation
Date" shall mean every business day the financial markets
are open.
2. Delete Section 3.03 and substitute in lieu thereof the
following:
Section 3.03 TIME OF PAYMENT OF CONTRIBUTION - Tax
deferred contributions for a Plan Year must be paid to the
Trust within fifteen (15) business days following the end
of the month in which such contributions are deferred.
Matching and profit sharing contributions by the Employer
for each taxable year may be made on any date or dates it
elects, but the total amount of its contribution for any
taxable year must be paid within the taxable year or
within such other applicable period, as is provided in
Section 404(a)(6) of the Code, or in any other statute of
similar import.
3. Delete Section 3.05 and substitute in lieu thereof the
following:
Section 3.05 ELECTION OF INVESTMENT FUND - The
Committee shall establish Investment Funds so that a
Participant may elect to utilize such available
Investments Funds for the investment of his Voluntary
Account, Tax Deferred Account, Rollover Account and, at
the discretion of the Committee, his Matching Account. The
Investment Funds established by the Committee shall be
evidenced by minutes of the Committee, and the Committee
may change the Investment Funds from time to time at its
discretion.
The Committee shall notify each eligible Employee of
the Investment Fund options prior to his Entry Date and
shall notify each Participant of changes in the available
Investment Fund options. Each eligible Employee shall
elect prior to his Entry Date, how Voluntary, Tax
Deferred, and Rollover contributions made on his behalf to
the Plan shall be invested. If the Committee establishes
procedures that allow an eligible Employee to elect to
invest his Matching contributions in the Investment Funds,
such eligible Employee shall elect prior to his Entry Date
how matching contributions made on his behalf to the Plan
shall be invested. The election of the percentage of
contributions to be placed in any one Investment Fund
shall be determined by the procedures to be established by
the Committee.
The Committee shall establish procedures for
Participant direction of the investment of contributions
into the Investment Funds, including the Matching
contributions if so determined by the Committee (other
than profit sharing contributions) made on behalf of the
Participant and the investment of Individual Accounts
(with the exception of the Profit Sharing Account and the
Merged Plan Account) amongst the Investment Funds.
The Committee shall direct the Trustee to invest in the
Investment Funds in accordance with the investment
directions of the Participants.
The Trustee, at the direction of the Committee, shall
establish one or more Investment Funds for investment of
all profit sharing contributions, Profit Sharing Accounts,
and Merged Plan Accounts and the matching contributions
and Matching Account if the Committee does not establish
procedures which allow a Participant to direct the
investment of this matching contributions and his Matching
Account.
4. Delete Section 3.06 and substitute in lieu thereof the
following:
Section 3.06 TRANSFERS OF INVESTMENTS - Each
Participant may make an election as of the date or dates
as the Committee shall determine (as provided in the
procedures to be established in accordance with Section
3.05) to change the manner in which the balances in his
Voluntary Account, Tax Deferred Account, and Rollover
Account shall be invested in the Investment Funds. If the
Committee establishes procedures that allow a Participant
to change the manner in which the balance in his Matching
Account shall be invested in the Investment Funds, each
Participant may make an election as of the date or dates
as the Committee shall determine (as provided in the
procedures to be established in accordance with Section
3.05) to change the manner in which the balance in his
Matching Account shall be invested in the Investment
Funds. Each election must be made prospectively in
accordance with the rules established by the Committee.
5. Delete Section 4.01 and substitute in lieu thereof the
following:
Section 4.01 ESTABLISHMENT AND ADMINISTRATION OF PROFIT
SHARING CONTRIBUTIONS FUNDS - The Committee shall
establish and maintain for purposes of administering the
Plan an account designated as the Profit Sharing
Contributions Fund and separate records shall be kept as
to all transactions affecting this Fund. All Employer
profit sharing contributions plus the proportionate part
of profits and losses properly attributable thereto and
withdrawals therefrom shall be credited to and debited
against the Profit Sharing Contributions Fund and shall be
invested in accordance with directions of the Committee.
The Committee, in its discretion, may charge the Fund for
part or all of its proportionate part, according to its
value, of the expenses incurred in investing the Fund and
in the administration of the Plan.
The Profit Sharing Contributions Fund shall be
administered and allocated among the Participants in the
Plan in the following manner:
a. Any profit sharing contributions to be made
following the end of the Plan Year in accordance with
Article III shall be allocated as of the date such
contributions are actually received by the Trustee for
the Plan Year. Such contributions shall be allocated
proportionately among Employees who have met the
eligibility requirements for participation under
Article II (whether or not they have agreed to make tax
deferred contributions to the Plan) in an amount equal
to the proportion that such Employee's Compensation for
such year bears to the total Compensation of all such
Employees for such year. For purposes of the
allocation of any profit sharing contribution, such
Employees: (1) who do not receive credit for a year of
Vesting Service for the Plan Year, or (2) who are not
employed by the Employer on the Accounting Date, shall
be excluded. Notwithstanding the proceeding sentence,
such Employees who retire, die or become disabled
during the Plan Year shall share in the allocation of
the profit sharing contribution.
b. The Trustee shall compute the fair market value of
the Profit Sharing Contributions Fund on each Valuation
Date.
c. The Committee shall establish and maintain a
Profit Sharing Account for each Participant. Profit
sharing contributions shall be allocated to the Profit
Sharing Account. The Committee shall keep all necessary
records concerning each Account except such investment
income and expense records as may be kept by the
Trustee.
d. The Committee shall adjust each Participant's
Profit Sharing Account each Valuation Date to reflect
the profit sharing contributions made on behalf of the
Participant and the effect of any income received,
realized and unrealized profits and losses, expenses
and all other transactions of the period. These
adjustments shall be reflected in a statement furnished
to each Participant each quarter (or more often at the
Committee's discretion) by the Committee.
e. The determination of the Committee as to the
proportion of any contribution, or net increase or
decrease in the value of the Profit Sharing
Contributions Fund to be allocated among the
Participants shall be conclusive. The Committee shall
incur no liability for any determination required
hereunder if made by it in good faith.
f. The fact that allocations shall be made and
credited to the Profit Sharing Account of a Participant
shall not vest in such Participant any right, title or
interest in and to any assets except at the time or
times and upon the terms and conditions expressly set
forth in this Plan.
g. Forfeitures, as provided for in Article VI,
shall be applied as soon as possible to reduce the
matching contribution hereunder and shall be considered
for allocation purposes as a matching contribution.
h. There shall be no distribution or withdrawal
from the Profit Sharing Account of a Participant except
in accordance with the provisions of this Article IV
and Articles VI, VII, and XIII of the Plan. In
addition, there shall be no forfeiture of any portion
of the Profit Sharing Account of a Participant unless
and until the Participant terminates employment, in
accordance with Article VI of the Plan.
6. Delete Section 4.02 and substitute the following:
Section 4.02 ESTABLISHMENT AND ADMINISTRATION OF TAX
DEFERRED AND MATCHING CONTRIBUTIONS FUNDS - The Committee
shall establish and maintain, for purposes of
administering the Plan, accounts within the Investment
Funds available to Participants for investment purposes in
accordance with Sections 3.05 and 3.06 designated as the
Tax Deferred Contributions Fund and the Matching
Contributions Fund. Separate records shall be kept as to
all transactions affecting these Funds within each such
Investment Fund. All tax deferred contributions to each
Investment Fund plus the proportionate part of profits and
losses properly attributed thereto and withdrawals
therefrom shall be credited and debited against the Tax
Deferred Contributions Fund within each Investment Fund.
All matching contributions to each Investment Fund plus
the proportionate part of profits and losses properly
attributed thereto and withdrawals therefrom shall be
credited and debited against the Matching Contributions
Fund within each Investment Fund.
The Trustee, following each Valuation Date, shall value
the Tax Deferred Contributions Fund and the Matching
Contributions Fund as of that Valuation Date in the
following manner:
a. The Trustee shall first compute the fair market
value of each Investment Fund in which the assets in
the Tax Deferred Contributions Fund and the Matching
Contributions Fund have been invested.
b. The Trustee shall account for any additions or
withdrawals made to or from an Investment Fund by any
Participant, including allocations of tax deferred and
matching contributions. With respect to withdrawals
from an Investment Fund, adjustment in the amounts
credited to each Participant's Individual Account shall
be made as of the close of the business day in which
the Participant's withdrawal was paid. With respect to
additions to an Investment Fund, allocations of
contributions shall take place on the dates such
contributions are actually received by the Trustee.
c. The determination of the Committee as to the
proportion of any contribution, or net increase or
decrease in the value of the Tax Deferred Contributions
Fund and the Matching Contributions Fund to be
allocated among the Participants shall be conclusive.
The Committee shall incur no liability for any
determination required hereunder if made by it in good
faith.
d. The Committee shall establish and maintain a Tax
Deferred Account for each Participant. The Committee
shall adjust each Participant's Tax Deferred Account on
each Valuation Date to reflect the effect of tax
deferred contributions, the effect of any increases or
decreases in the value of the Investment Funds in which
the Participant's Tax Deferred Account has been
invested, the effect of expenses allocated to the
Account, and the effect of withdrawals from the
Account.
e. The Committee shall establish and maintain a
Matching Account for each Participant. The Committee
shall adjust each Participant's Matching Account on
each Valuation Date to reflect the effect of matching
contributions, the effect of any increases or decreases
in the value of the Investment Funds in which the
Participant's Matching Account has been invested, the
effect of expenses allocated to the Account, and the
effect of withdrawals from the Account.
f. There shall be no distribution or withdrawal from
the Tax Deferred Account or from the Matching Account
of a Participant except in accordance with the
provisions of this Article IV and Articles VI, VII, and
XIII of the Plan. In addition, there shall be no
forfeiture of the Matching Account of a Participant
unless and until the Participant terminates employment,
in accordance with Article VI of the Plan.
g. The fact that allocations shall be made and
credited to the Tax Deferred Account and the Matching
Account of a Participant shall not vest in such
Participant any right, title or interest in and to any
assets except at the time or times and upon the terms
and conditions expressly set forth in this Plan.
h. If the Committee determines that the Matching
Account and matching contributions will not be
available for Participant direction into the Investment
Funds that are available for investments by
Participants, the Matching Contributions Fund shall be
valued in the same manner as the Profit Sharing
Contributions Fund in accordance with Section 4.01.
i. Forfeitures, as provided for in Article VI,
shall be applied as soon as possible to reduce the
matching contribution hereunder and shall be considered
for allocation purposes as a matching contribution.
j. The adjustments to the Individual Accounts of
Participants shall be reflected in a statement
furnished to each Participant each quarter (or more
often at the Committee's discretion ) by the Committee.
7. Delete the first paragraph of Section 4.04 and substitute in
lieu thereof the following:
Section 4.04 WITHDRAWALS - A Participant may
request to withdraw his Tax Deferred Account, Rollover
Account, and the vested portion of his Matching Account,
Profit Sharing Account, and Merged Plan Account as of a
future Valuation Date by making written application to the
Committee at least fifteen (15) days prior to the date on
which he wishes to receive the withdrawal. Payment will
made as soon as practical after receipt of the completed
Withdrawal Form by the recordkeeper. The value of any Tax
Deferred Account, Rollover Account, Matching Account,
Profit Sharing Account and Merged Plan Account from which
a withdrawal is made shall be reduced by the amount of the
withdrawal. The Committee shall establish procedures
regarding withdrawals.
8.Delete the third paragraph and subparagraphs (a) and (b) of
Section 5.01 and substitute in lieu thereof the following:
The Trustee, following a Valuation Date, shall value
the Voluntary Contributions Fund as of the Valuation Date,
in the following manner:
a. The Trustee shall first compute the fair market
value of each Investment Fund in which the assets in
the Voluntary Contributions Fund have been invested.
b. The Trustee shall then account for any additions
or withdrawals to or from an Investment Fund by any
Participant, including additional voluntary
contributions of a Participant made as of the Valuation
Date and received by the Trustee prior to the stated
deadline. With respect to withdrawals from an
Investment Fund, adjustments in the amount credited to
each Participant's Voluntary Account shall be made as
of the close of each business day in which the
Participant's withdrawal was paid. With respect to
additions to an Investment Fund, allocations of
contributions shall take place on the date such
contributions are actually received by the Trustee.
9. Delete paragraph (a) of Section 5.02 substitute in lieu
thereof the following:
a. The Committee shall establish and maintain
separate accounts for each Participant within the
Investment Funds available to the Participants for
investment purposes, designated as the Voluntary
Account, and separate records shall be kept as to all
transactions affecting the Voluntary Contributions Fund
within each Investment Fund. This account shall
reflect basic contributions made prior to January 1,
1985, and all voluntary contributions made by the
Participant, the amount of the appreciation or
depreciation in value of the Voluntary Contributions
Fund within each Investment Fund allocated to the
Participant, and withdrawals by the Participant. The
Committee shall adjust each Participant's Voluntary
Account on each Valuation Date which shall be reflected
in a statement furnished to each Participant each
quarter (or more often at the Committee's discretion)
by the Committee.
10. Delete the first sentence of Section 5.04 and substitute in
lieu thereof the following:
A Participant may request to withdraw his Voluntary
Account as provided in the procedures to be established by
the Committee in accordance with Section 4.04 by making
written application to the Committee at least fifteen (15)
days prior to the date on which he wishes to receive the
withdrawal.
11.Delete Section 6.01 in its entirety and substitute in lieu
thereof the following:
Section 6.01 PAYMENT OF BENEFITS -
a. Payment of all benefits under the Plan shall be
subject to written application by the Participant or
Beneficiary, as the case may be, submitted in such form
as the Committee may direct from time to time. Payment
shall be in the form provided in Section 6.02.
b. All benefits due a Participant in accordance with
Section 6.03 (Normal Retirement Benefit), 6.04 (Delayed
Retirement Benefit), 6.05 (Early Retirement Benefit),
or 6.06 (Disability Benefit) shall commence as soon
after the day on which the Participant retires or
becomes disabled as the adjustments to accounts
provided for in Articles IV and V can be made.
c. All benefits due a Beneficiary in accordance with
Section 6.07 (Death Benefit) shall commence as soon
after the day on which the Participant died as the
adjustments to accounts provided for in Articles IV and
V can be made.
d. All benefits due a Participant in accordance with
Section 6.08 (Termination Benefit) shall commence as
soon after the day on which the Participant attains his
Normal Retirement Date as the adjustment to accounts
provided for in Articles IV and V can be made. However,
payment of such benefits shall be made as soon as
possible after the Participant terminates employment
with the Employer as adjustments to accounts provided
in Articles IV and V can be made if either of the
following events occurs:
1. The value of the Participant's vested
Individual Account does not exceed $3,500, or
2. The value of the Participant's vested
Individual Account exceeds $3,500, and the
Participant consents to the immediate payment. Such
consent must be in writing, and it must be made
within 90 days of the scheduled payment date.
Further, at least 30 days before the scheduled
payment date (but not more than 90 days before the
Annuity Starting Date) the Committee shall provide
to the Participant a notice explaining the right to
defer payment, and describing the optional forms of
payment available under the Plan. The Participant
may waive the 30 day notice and receive payment
within 30 days after receiving the notice if the
Participant elects an earlier payment.
If, in accordance with the rules of the preceding
paragraph, the payment of benefits is delayed, the
Participant's Individual Account balance shall remain
invested with the Plan and the Participant may
continue to make investment directions with respect to
accounts that are invested in the Investment Funds.
If, in accordance with the rules of the preceding
paragraph, the payment of benefits is delayed and, in
the interim before payment the Participant dies, the
Participant's Beneficiary shall be paid a death benefit
in accordance with this Section and Section 6.07. If
during the interim before payment begins, the
Participant becomes Disabled, or meets the requirements
for Early Retirement, the Participant may request that
payment be made of his vested benefits as soon after he
is determined to be Disabled or he meets the Early
Retirement conditions as the adjustments to accounts
provided for in Articles IV and V can be made.
e. When a Participant who has terminated
employment is entitled to distribution of his
Individual Account, the Committee shall send to the
Participant by registered mail, directed to his last
known address, a notice informing him as to his rights
with respect to his benefits. If he is not found at his
last known address and his whereabouts are unknown to
the Committee at the expiration of one year, his
benefit shall be distributed in accordance with the
provisions of the Act and any regulations issued
thereunder.
f. Notwithstanding the provisions of this Section,
payments shall be made to Participants and
Beneficiaries in accordance with Article VII as
required to meet the minimum distribution requirements
of Code Section 401(a)(9).
12. Delete paragraph a. of Section 6.09 and substitute in
lieu thereof the following:
a. If a Participant terminates employment for
reasons other than Retirement, Disability, or Death,
and he is not fully vested in his Individual Account
balance, the nonvested part of his Individual Account
balance shall be forfeited on the earlier of: the
Valuation Date coinciding with or following the date he
is paid the entire vested part of his Individual
Account, or the Accounting Date for the Plan Year in
which he has his fifth consecutive Break in Service.
13.Delete the last sentence of Section 11.02 and substitute in
lieu thereof the following
sentence:
Rollover contributions and the Rollover Account of a
Participant shall be invested pursuant to the election of
the Participant made as provided in Article III.
14. Add a paragraph at the end of Section 11.07 to read as
follows:
All Participants' Merged Plan Accounts shall be
invested in the Investment Fund designated by the
Committee.
IN WITNESS WHEREOF, the Employer has caused this Amendment to
be signed and adopted this 27th day of May, 1997.
CCB FINANCIAL CORPORATION
By: /s/ XXXXXX X. XXXXXXXX
President
ATTEST:
/s/ XXXXXXXX X. XXXXXX
Asst. Secretary
