Exhibit A
FIFTH AMENDMENT TO
THE NATIONSBANK PENSION PLAN
THIS AGREEMENT is made and entered into as of the 28th day
of June, 1995 by and between NATIONSBANK CORPORATION, a North
Carolina corporation ("NationsBank"), and NATIONSBANK, N.A.
(CAROLINAS), a national banking association (the "Trustee").
W I T N E S S E T H:
WHEREAS, NationsBank and certain of its subsidiary
corporations (collectively with NationsBank, the "Participating
Employers") maintain The NationsBank Pension Plan (the "Plan"); and
WHEREAS, NationsBank desires to amend the Plan to specify the
"lookback month" and the "stability period" for determining and
applying the "applicable interest rate" to the calculation of lump sum
benefit payments by the Plan, all in accordance with Section 417(e)(3)
of the Internal Revenue Code of 1986, as amended by the Retirement
Protection Act of 1994, and the regulations thereunder; and
WHEREAS, in Section 11.1 of the Plan, the Participating
Employers reserved the right to amend the Plan at any time, in whole or
in part, and have delegated to the Compensation Committee of the Board
of Directors of NationsBank the right to make the amendments set forth
below on behalf of all Participating Employers; and
WHEREAS, the amendments set forth below have been authorized
and approved by the Compensation Committee;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, NationsBank and the Trustee hereby
agree as follows:
1. Section 5.5(d)(2) of the Plan is amended effective as
of December 31, 1994 to read as follows:
"(2) Lump Sum Payments. The assumptions used for
purposes of computing lump sum payments under the Plan shall be
as follows:
(A) For lump sum payments made before Decem-
ber 31, 1994:
Mortality: A unisex rate that is fifty per-
cent (50%) male, fifty percent (50%) female,
taken from the 1971 Group Annuity Mortality
Table.
Interest: The rate(s) which would be used by
the Pension Benefit Guaranty Corporation as
of the first day of the Plan Year in which
the payment is made to determine the present
value of a lump sum distribution on plan
termination.
(B) For lump sum payments made on or after
December 31, 1994:
Mortality: The "applicable mortality table,"
as such term is defined in Section 417(e)(3)
of the Code, as amended by the Retirement
Protection Act of 1994.
Interest: The "applicable interest rate",
as such term is defined in Section 417(e)(3)
of the Code, as amended by the Retirement
Protection Act of 1994. The "lookback month"
(within the meaning of Treasury
Regulations ss. 1.417(e)-1T(d)(4)(iii))
for the determination of the applicable
interest rate for the calculation of lump
sum payments made on or after December 31,
1994 and prior to January 1, 1996 shall be
December. The "lookback month" for
the determination of the applicable interest
rate for the calculation of lump sum
payments made on or after January 1, 1996
shall be September; provided, however,
in no event shall the applicable interest
rate for the calculation of lump sum
payments made during the Plan Year beginning
January 1, 1996 exceed the applicable
interest rate for December 1995. The
"stability period" (within the meaning of
Treasury Regulations ss.
1.417(e)-1T(d)(4)(ii)) during which the
applicable interest rate remains constant
shall be the Plan Year immediately succeeding
the lookback month."
2. Except as expressly or by necessary implication amended
hereby, the Plan shall continue in full force and effect.
IN WITNESS WHEREOF, NationsBank Corporation, on behalf of the Participating
Employers, and the Trustee have caused this
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Agreement to be executed by their respective duly authorized officers,
all as of the day and year first above written.
NATIONSBANK CORPORATION
By: /s/ X. X. Xxxxxx
X. X. Xxxxxx, Executive
Vice President
NATIONSBANK, N.A. (CAROLINAS)
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
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SUPERSEDED IN ITS ENTIRETY BY THE SEVENTH AMENDMENT
SIXTH AMENDMENT TO
THE NATIONSBANK PENSION PLAN
THIS AGREEMENT is made and entered into as of the 5th day of July, 1995
by and between NATIONSBANK CORPORATION, a North Carolina corporation
("NationsBank"), and NATIONSBANK, N.A. (CAROLINAS), a national banking
association (the "Trustee").
Statement of Purpose
This amendment to The NationsBank Pension Plan (the "Plan") relates to
the First United Bancorporation Pension Trust (the "FUBI Plan"), which was
previously maintained by First United Bancorporation, Inc. ("FUBI") and certain
of its subsidiaries (collectively with FUBI, the "FUBI Plan participating
employers"). The FUBI Plan was merged into the InterFirst Corporation Pension
Plan (the "InterFirst Plan"), which was sponsored by InterFirst Corporation
("InterFirst"). Subsequently, the InterFirst Plan was merged into this Plan.
InterFirst acquired FUBI in 1983. InterFirst determined as part of a
corporate-wide benefits consolidation program to merge the FUBI Plan into the
InterFirst Plan effective January 1, 1985, after which time eligible employees
of the FUBI Plan participating employers would accrue benefits under the
InterFirst Plan rather than the FUBI Plan. During 1984 FUBI Plan participants
received written notices and attended employee meetings describing the January
1, 1985 plan merger and the InterFirst Plan. In the fall of 1984, FUBI Plan
participants also received a copy of the InterFirst Plan summary plan
description. The written notices, employee meetings and a special insert to the
InterFirst Plan summary plan description advised FUBI Plan participants that
they would never receive a benefit under the InterFirst Plan less than the
benefit they had earned under the FUBI Plan as of December 31, 1984. In
addition, on or before February 20, 1985 the respective boards of directors of
the FUBI Plan participating employers passed resolutions adopting the InterFirst
Plan. From and after January 1, 1985, former FUBI Plan participants accrued
benefits under the InterFirst Plan, taking into account for such purpose their
benefit service under the FUBI Plan. Each such participant's December 31, 1984
FUBI Plan benefit was maintained as a stand-alone alternative benefit under the
InterFirst Plan.
Prior to its merger into the InterFirst Plan, the terms of the FUBI
Plan provided a "basic retirement benefit" and a special unreduced early
retirement benefit known as the "agreed retirement benefit." The FUBI Plan
provided that both benefits would be subject to cost-of-living adjustments
following commencement of a participant's retirement benefit annuity payments
(the "FUBI Plan COLAs").
In August 1984, FUBI, in its capacity as sponsor of the FUBI Plan,
amended the FUBI Plan to limit eligibility for the FUBI Plan COLAs to
participants in the FUBI Plan who retired before January 1, 1985. Such amendment
was also included in a restated FUBI Plan document that was submitted to the
Internal Revenue Service and that subsequently received a favorable
determination letter from the Internal Revenue Service as to its qualified
status under Section 401 of the Internal Revenue Code. In addition, the "agreed
retirement benefit" ceased to be available to active plan participants effective
after December 31, 1984 in connection with the adoption of the InterFirst Plan.
As a result, the December 31, 1984 FUBI Plan benefit preserved under the
InterFirst Plan was administered without FUBI Plan COLAs or the "agreed
retirement benefit."
In 1987 a claim was brought by a former FUBI Plan participant related
to the elimination of the "agreed retirement benefit" under the FUBI Plan. As a
result of consideration of that claim, a plan amendment was made which restored
the "agreed retirement benefit" as an additional stand-alone alternative benefit
for former FUBI Plan participants who had not terminated employment before
January 1, 1985. The "agreed retirement benefit" was preserved effective as of
February 20, 1985, which was the latest date that any of the respective boards
of directors of the FUBI Plan participating employers adopted the resolutions
described above.
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Since the mid-1980s there have been two appealed claims and several
inquiries by former FUBI Plan participants as to whether the August 1984
amendment to the FUBI Plan was proper and whether FUBI Plan COLAs constituted a
"protected benefit" under the Employee Retirement Income Security Act of 1974
and the Internal Revenue Code with respect to the December 31, 1984 FUBI Plan
benefit preserved as a stand-alone alternative benefit under the InterFirst
Plan. In addition, a civil action has been brought in the United States District
Court for the Northern District of Texas, Fort Worth Division, (Civil Action No.
4-94CV-104A) as a class action entitled "Xxx X. Xxxx, Xx. et al. v. NationsBank
Corporation and The NationsBank Pension Plan" pursuant to which a claim has been
made to reinstate the FUBI Plan COLAs.
While NationsBank was not involved in the amendments to the FUBI Plan
which are the subject of the civil action described above, because the FUBI Plan
was previously merged into the InterFirst Plan and the InterFirst Plan was
merged into this Plan, this Plan is the successor to the rights and obligations
of the FUBI Plan.
While NationsBank believes that the August 1984 amendment was valid
prospectively with respect to benefits earned after December 31, 1984,
NationsBank has determined to reinstate the FUBI Plan COLAs in a manner
consistent with the 1984 employee communications, the post-1984 administration
of the InterFirst Plan and the determination previously made to reinstate the
FUBI Plan "agreed retirement benefit."
Accordingly, NationsBank desires to amend the Plan to (i) provide
certain Participants who formerly participated in the FUBI Plan a stand-alone
alternative benefit under the Plan that is subject to FUBI Plan COLAs, (ii)
provide the method by which such stand-alone alternative benefit shall be
calculated and thereafter adjusted from time to time for FUBI Plan COLAs, (iii)
set forth the effective date as of which such stand-alone alternative benefit
shall be calculated and (iv) provide such affected participants who are
currently in pay status a single
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cash payment equal to any additional benefits that would have been paid to such
participants in excess of the retirement benefit annuity payments already
received if the stand-alone alternative benefit provided for herein with FUBI
Plan COLAs had been in effect throughout their period of payment.
In Section 11.1 of the Plan the "Participating Employers" under the
Plan have reserved the right to amend the Plan at any time, in whole or in part,
and have delegated to the Compensation Committee of the Board of Directors of
NationsBank the right to make the amendments set forth below on behalf of all
Participating Employers. The undersigned has been authorized by the Compensation
Committee to make the amendments set forth below.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, NationsBank and the Trustee hereby agree as follows:
1. The following new Section 15.13 is added to the Plan
effective as of the date hereof:
"SECTION 15.13. FUBI PLAN PRESERVED BENEFITS.
(a) General. The Plan is the successor by way of plan merger
to the rights and obligations of the First United Bancorporation
Pension Trust (the "FUBI Plan"). The provisions of this Section 15.13
establish a stand-alone alternative benefit under the Plan for "former
FUBI Plan participants" (as defined below) which is subject to certain
post-retirement cost-of-living adjustments previously provided under
the FUBI Plan ("FUBI Plan COLAs"). The provisions of this Section 15.13
shall apply with respect to the former FUBI Plan participants
notwithstanding any provision of the Plan to the contrary.
(b) Former FUBI Plan Participants Defined. The
reinstatement of FUBI Plan COLAs as set forth herein
applies to the "FUBI Plan preserved benefit" (as
defined below) of Participants who were active
participants in the FUBI Plan as of December 31, 1984
or "transferred employees" (as defined below),
excluding (i) those former Participants who have
terminated employment under the Plan (or a predecessor
plan) and received a single sum payment of their
retirement benefit and (ii) those former Participants
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who have terminated employment under the Plan (or a predecessor plan)
with no vested interest in their retirement benefit at the time of
termination. For purposes of this subparagraph, a "transferred
employee" is an individual who (A) was an active participant in the
FUBI Plan as of June 30, 1982, and (B) transferred employment from FUBI
or a FUBI subsidiary or affiliate to InterFirst Corporation or an
InterFirst Corporation subsidiary or affiliate during the period
between June 30, 1982 and December 31, 1984, and (C) was an active
participant in the InterFirst Corporation Pension Plan as of December
31, 1984. The individuals to whom this Section 15.13 applies are
referred to herein as "former FUBI Plan participants."
(c) FUBI Plan Preserved Benefit Defined. The
"FUBI Plan preserved benefit" means the greater of:
(i) the FUBI Plan "basic retirement benefit"
(as reduced for payment commencement prior to age
sixty-five (65) as described in subparagraph (e)
below), or
(ii) the FUBI Plan "agreed retirement benefit," but only
with respect to former FUBI Plan participants who qualify in
accordance with the provisions of subparagraph (d) below.
The FUBI Plan preserved benefit shall be subject to the FUBI Plan COLAs
as provided in subparagraph (h) below. The amount of the FUBI Plan
"basic retirement benefit" for a former FUBI Plan participant (which
amount is subject to reduction for payment commencement prior to age
sixty-five (65) as described in subparagraph (e) below) shall be the
greater of such benefit determined as of December 31, 1984, or February
20, 1985, based on such Participant's "credited service," "pension
compensation base" and "social security benefit" (as those terms were
defined in the FUBI Plan) as of such dates. The amount of the FUBI Plan
"agreed retirement benefit" for a former FUBI Plan participant (which
amount is not subject to reduction for payment commencement prior to
age sixty-five (65)) shall be the greater of such benefit determined as
of December 31, 1984, or February 20, 1985, based on such Participant's
"credited service," "pension compensation base" and "social security
benefit" (as those terms were defined in the FUBI Plan) as of such
dates.
(d) Eligibility for FUBI Plan Agreed Retirement
Benefit. Former FUBI Plan participants shall be
eligible for the FUBI Plan "agreed retirement benefit"
5
upon both (i) completion of at least twenty (20) years of service
(within the meaning of the FUBI Plan) with NationsBank Corporation and
predecessor plan sponsors (or their respective subsidiaries and
affiliates) and (ii) attainment of age fifty (50) on or before
termination of employment with NationsBank Corporation and predecessor
plan sponsors (or their respective subsidiaries and affiliates).
(e) Reductions for Early Commencement. The amount of the FUBI
Plan "agreed retirement benefit" shall be determined with no reduction
for early commencement of retirement benefit annuity payments prior to
age sixty-five (65). The amount of the FUBI Plan "basic retirement
benefit" shall be reduced for early commencement prior to age
sixty-five (65) in accordance with the reduction factors in the FUBI
Plan applicable to benefits commencing at age fifty-five (55) or later.
The actuarial reduction factors under the Plan applicable to former
FUBI Plan participants shall apply to determine the additional amount
of early commencement reduction if benefits commence earlier than age
fifty-five (55).
(f) FUBI Plan Preserved Benefit as a Protected Benefit. From
and after the effective date of this Section 15.13, the FUBI Plan
preserved benefit (including the right to a single cash payment of
prior retirement benefit annuity payments as provided in subparagraph
(l) below) shall be a benefit protected by Section 411(d)(6) of the
Code and Section 204(g) of the Act, subject only to the right of the
Participating Employers to further amend this Section 15.13 in order to
secure a determination letter from the Internal Revenue Service that
the provisions of this Section 15.13 do not adversely affect the
continued qualification of the Plan under Section 401 of the Code.
(g) FUBI Plan Preserved Benefit as a Stand-Alone Alternative
Benefit. Following commencement of retirement benefit annuity payments,
each former FUBI Plan participant shall receive the greatest benefit
amount determined from time to time under the alternative benefit
formulae applicable to such former FUBI Plan participant under this
Plan. In that regard, the amount of the FUBI Plan preserved benefit for
each former FUBI Plan participant (as adjusted to reflect the form of
benefit payment and as adjusted pursuant to subparagraph (h) below)
shall be treated as a separate stand-alone alternative benefit formula
under this Plan.
6
(h) COLA Adjustments for FUBI Plan Preserved Benefit. The FUBI
Plan preserved benefit of a former FUBI Plan participant, regardless of
whether that benefit is the greatest benefit amount at the time of
commencement of retirement benefit annuity payments, shall be increased
or decreased for changes in the cost of living (the "COLA") as of
January 1 of each Plan Year following commencement of such payments by
such former FUBI Plan participant under this Plan (or any applicable
predecessor plan). The COLA amount shall be based on the percentage
increase or decrease in the cost of living, if any, based on a
comparison of the U. S. Consumer Price Index for the September 30 next
preceding the January of the determination, with such U. S. Consumer
Price Index for the September 30 one year earlier; provided, however,
that such yearly increase or decrease, if any, shall be limited to a
maximum of four percent (4%); and provided further, that such yearly
decrease, if any, shall not reduce the amount of the FUBI Plan
preserved benefit of such former FUBI Plan participant below the
initial amount of such former FUBI Plan participant's FUBI Plan
preserved benefit at the time of commencement of retirement benefit
annuity payments. The "Consumer Price Index for All Urban Wage Earners
and Clerical Workers" (or such other table determined to be acceptable
to the Administrator of the Plan) shall be used in determining the
percentage increases or decreases for each Plan Year.
(i) Payment of FUBI Plan Preserved Benefit. Each
former FUBI Plan participant shall receive the FUBI
Plan preserved benefit amount as such Participant's
retirement benefit when that amount (as adjusted each
Plan Year for COLA) is the greatest amount available to
such former FUBI Plan participant under the alternative
retirement benefit formulae under the Plan applicable
to such former FUBI Plan participant.
(j) Application of Other Alternative Benefit Formulae. Except
as provided in subparagraph (iii) below, the provisions of this Section
15.13 shall not in any manner change, modify or otherwise affect the
continued application of any other alternative benefit formulae under
the Plan applicable to former FUBI Plan participants, including without
limitation the Plan's basic retirement benefit formula and the Texas
Plan's hybrid formula. In such regard:
(i) Continued Credit for FUBI Plan Benefit
Service under the Plan's Basic Retirement Benefit
Formula. For any former FUBI Plan participant who
7
is eligible for a benefit determined under the Plan's basic
retirement benefit formula set forth in Articles V and VI,
such Participant shall continue to receive credit for such
Participant's benefit service under the FUBI Plan prior to
1985 for purposes of such benefit formula.
(ii) Texas Plan's Hybrid Formula. Section 15.1(b)(iii) of
the Plan provides in part that the benefit under the Plan for
a Texas Plan Participant who participated in the Texas Plan
(or any predecessor plan) before 1989 shall not be less than
the sum of (A) such Participant's "December 31st, 1988
Benefit" as defined in the Texas Plan and (B) such
Participant's benefit determined under the Plan's basic
retirement benefit formula set forth in Articles V and VI with
respect to Benefit Service earned after 0000 (xxx "xxxxxx
xxxxxxx"). For a former FUBI Plan participant, the December
31st, 1988 Benefit under the Texas Plan generally means the
greater of (x) the Participant's benefit as of such date
determined under the InterFirst Corporation Pension Plan's
"all-service" benefit formula (which was calculated taking
into account such former FUBI Plan participant's benefit
service under the FUBI Plan prior to 1985) or (y) the
Participant's "basic retirement benefit" determined as of
December 31, 1984 under the FUBI Plan benefit formula without
adjustment for the FUBI Plan COLAs. The provisions of this
Section 15.13 shall have no effect on the provisions of
Section 15.1(b)(iii) as described herein.
(iii) Agreed Retirement Benefit. In 1987, the FUBI Plan
"agreed retirement benefit" without adjustment for the FUBI
Plan COLAs was added as a stand-alone alternative benefit
formula under the InterFirst Corporation Pension Plan and has
been continued as a stand-alone alternative benefit formula
under this Plan for former FUBI Plan participants who qualify
as provided in subparagraph (d) above. Notwithstanding any
provision of this Section 15.13 to the contrary, such
stand-alone alternative benefit formula shall be replaced by
the stand-alone alternative benefit formula for FUBI Plan
preserved benefits as set forth in this Section 15.13 (which
includes the FUBI Plan "agreed retirement benefit" as adjusted
for the FUBI Plan COLAs) for former FUBI Plan participants who
qualify as provided in subparagraph (d) above.
8
(k) Application of Code Section 415. The provisions of Article
VII of the Plan that limit payment of annuity benefits in accordance
with the requirements of Section 415 of the Code shall be subject to
annual cost of living adjustments pursuant to Section 415(d) of the
Code with respect to the FUBI Plan preserved benefit. Notwithstanding
the foregoing, the FUBI Plan preserved benefit (as adjusted for the
FUBI Plan COLAs) of a former FUBI Plan participant shall not be paid to
the extent such annual annuity amount exceeds the greater of (i) the
amount of the limit referred to in the preceding sentence (as adjusted
pursuant to Code Section 415(d)), or (ii) the amount of the "current
accrued benefit" of the former FUBI Plan participant. In that regard, a
former FUBI Plan participant's "current accrued benefit" shall be
determined as a fixed dollar annual annuity amount as provided in
Section 1106(i)(3)(B) of the Tax Reform Act of 1986, without regard to
adjustments pursuant to Section 415(d) of the Code or the FUBI Plan
COLAs.
(l) Payment of Prior Benefits. The provisions of this Section
15.13 shall apply retroactively for all former FUBI Plan participants.
Accordingly, retirement benefit annuity payments for former FUBI Plan
participants who have been in pay status prior to the "determination
date" (defined below) shall be adjusted in accordance with the
provisions of this Section 15.13. Such adjustments shall be based on
the form of benefit payment previously elected, subject to reduction,
if any, pursuant to subparagraph (e) above. The adjustments shall be
made as of a date selected by NationsBank Corporation that is as soon
as practicable following receipt of a favorable determination letter
from the Internal Revenue Service with respect to this Section 15.13
(the "determination date"). As soon as practicable after the
determination date, any past benefit annuity amounts payable to each
affected former FUBI Plan participant as provided by this Section 15.13
in excess of the benefit annuity amounts actually received by each such
former FUBI Plan participant (whether from the Plan or a predecessor
plan) shall be calculated and paid, together with interest at the rate
of nine percent (9%), compounded annually, to each such former FUBI
Plan participant in a single cash payment (less any applicable
withholding amounts). For purposes of determining the amount of
interest to be paid, such interest shall accrue from the end of the
Plan Year to which such additional benefit annuity amounts relate
through the last day of the month immediately preceding the date of
such single cash payment."
9
2. The effective date of the amendment set forth herein is July 5,
1995, subject only to receipt from the Internal Revenue Service of a
determination letter that such amendment does not adversely affect the continued
qualification of the Plan under Section 401 of the Internal Revenue Code.
NationsBank shall apply for such determination letter as soon as practicable
after the date hereof, and NationsBank reserves the right to make such further
amendments to the Plan as may be necessary to secure such favorable
determination letter.
3. No payment shall be made by the Participating Employers or any
employee benefit plan maintained by the Participating Employers with respect to
the amount, if any, by which the "FUBI Plan preserved benefit" of a "former FUBI
Plan participant" as adjusted for the "FUBI Plan COLAs" (as those terms are
defined in this amendment) exceeds the applicable Internal Revenue Code Section
415 limitations as set forth in this amendment.
4. Except as expressly or by necessary implication amended
hereby, the Plan shall continue in full force and effect.
IN WITNESS WHEREOF, NationsBank Corporation, on behalf of the
Participating Employers, and the Trustee have caused this Agreement to be
executed by their respective duly authorized officers, all as of the day and
year first above written.
NATIONSBANK CORPORATION
By: /s/ X. X. Xxxxxx
X. X. Xxxxxx, Executive
Vice President
"NationsBank"
NATIONSBANK, N.A. (CAROLINAS)
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
"Trustee"
10
FOURTH AMENDMENT TO
THE NATIONSBANK PENSION PLAN
THIS AGREEMENT is made and entered into as of the 24th day of August,
1995 by and between NATIONSBANK CORPORATION, a North Carolina corporation
("NationsBank"), and NATIONSBANK, N.A. (CAROLINAS), a national banking
association (the "Trustee").
W I T N E S S E T H:
WHEREAS, NationsBank and certain of its subsidiary corporations
(collectively with NationsBank, the "Participating Employers") maintain The
NationsBank Pension Plan (the "Plan"); and
WHEREAS, NationsBank desires to amend the Plan to (i) incorporate
certain amendments requested by the Internal Revenue Service as a condition to
its issuance of a favorable determination of the Pension Plan's tax-qualified
status; and (ii) reflect the merger of the NationsSecurities Pension Plan into
the Plan; and
WHEREAS, in Section 11.1 of the Plan, the Participating Employers
reserved the right to amend the Plan at any time, in whole or in part, and have
delegated to the Compensation Committee of the Board of Directors of NationsBank
the right to make the amendments set forth below on behalf of all Participating
Employers; and
WHEREAS, the amendments set forth below have been authorized
and approved by the Compensation Committee;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, NationsBank and the Trustee hereby agree as follows:
1. Section 2.1(c)(14) of the Plan is amended effective as of
June 7, 1993 by deleting the first sentence of the last paragraph
thereof ("If a Participant is employed by NationsSecurities . . .
such employment.") and substituting the following sentence in lieu
thereof:
"Notwithstanding the preceding provisions of this Section
2.1(c)(14), if a Participant is employed by NationsSecurities, a Xxxx
Xxxxxx/NationsBank Company ("NationsSecurities"), "Compensation" of
such Participant
for a particular period of time shall mean the total remuneration
payable by NationsSecurities to the Participant for employment with
NationsSecurities during such period, including without limitation all
bonuses (contractual, discretionary or otherwise), overtime pay or any
extra or special remuneration of any kind (including commissions),
prior to any salary or wage reduction pursuant to Sections 125 or
401(k) of the Code, but excluding the items set forth in subparagraphs
(B) through (E) above."
2. Section 2.1(c)(17) of the Plan is amended
effective as of January 1, 1993 to read as follows:
"(17) Covered Employee means any Employee other
than:
(A) any Employee whose terms and conditions of
employment with the Participating Employers expressly preclude
such Employee's participation in the Plan; or
(B) any Employee who is regularly employed outside
the United States by any one or more of the Participating
Employers and who is on the payroll of a facility located
outside the United States."
3. Section 2.1(c)(38) of the Plan is amended effective as of
January 1, 1993 to read as follows:
"(38) Participating Employers means:
(A) NationsBank Corporation, a North Carolina
corporation;
(B) those Subsidiary Corporations which adopt
and participate in the Plan from time to time; and
(C) those successor corporations which,
pursuant to Section 11.5, continue the Plan as
provided in Section 11.5."
4. Section 15.6 of the Plan is amended effective as of June
7, 1993 to read as follows:
"SECTION 15.6. NATIONSSECURITIES.
(a) General. NationsBank Corporation and Xxxx
Xxxxxx Financial Services Group, Inc. entered into an
agreement to organize and operate a securities brokerage
and investment products business through a joint venture
to be known as "NationsSecurities, a Xxxx
Xxxxxx/NationsBank Company" ("NationsSecurities").
NationsBank Corporation and Xxxx Xxxxxx Financial
2
Services Group, Inc. will each own, directly or
indirectly, a fifty percent (50%) interest in
NationsSecurities.
In general, NationsSecurities will succeed to the brokerage
and investment operations of NationsBanc Securities, Inc., an indirect
wholly-owned subsidiary of NationsBank Corporation and a Participating
Employer under the Plan. In connection with the formation of the joint
venture, the account executives of NationsBanc Securities, Inc. and
certain other personnel of the Participating Employers will transfer
their employment to NationsSecurities.
As a result of its affiliation with NationsBank and for
convenience of administration, NationsSecurities will establish its own
defined benefit pension plan by adopting the terms and provisions of
the Plan as modified by this Section 15.6, and NationsBank Corporation
hereby consents to such adoption and use of the Plan by
NationsSecurities. Due to the level of ownership interest by
NationsBank Corporation in NationsSecurities, it is appropriate to
provide limited common service credit for employment with the
Participating Employers and NationsSecurities. The provisions of this
Section 15.6 are intended to contain the service crediting provisions
and to provide for the calculation of benefits under the Plan of
Participants with NationsSecurities Service and Service with the
Participating Employers.
(b) Service Credit and Separate Trust Provisions.
For purposes of applying the following provisions of the
Plan NationsSecurities shall be deemed a member of the
Affiliated Group notwithstanding any other provision of
the Plan to the contrary:
(A) the determination of whether a Covered
Employee has satisfied the eligibility requirements
of Article III;
(B) the determination of a Participant's Vesting
Service under Section 2.1(c)(53) and whether the Participant
is entitled to a benefit under Section 6.1; and
(C) the application of the benefit limitation
provisions of Article VII.
For purposes of applying all other provisions of the Plan, including
without limitation the minimum funding requirements of Section 412 of
the Code and Section 302 of the Act, NationsSecurities shall be treated
as
3
maintaining a separate plan known as the "NationsSecurities Pension
Plan". In such regard, the Committee shall maintain separate records
for benefits payable under the Plan attributable to Service and
Compensation earned with NationsSecurities and Service and Compensation
earned with the Participating Employers and shall cause the Trustee to
establish and maintain separate sub-accounts under the Trust for assets
and benefits paid with respect to NationsSecurities Service and
Compensation and assets and benefits paid with respect to Service and
Compensation with the Participating Employers under the Plan. Upon any
termination of the NationsSecurities Pension Plan, only the assets held
in the separate NationsSecurities sub-account under the Trust shall be
available to provide benefits attributable to NationsSecurities Service
and Compensation, and NationsSecurities shall have no right, power,
authority or discretion to any other Trust assets.
(c) Determination of Retirement Income for Participants with
NationsBank and NationsSecurities Service. Notwithstanding other
provisions of this Plan to the contrary, any Participant who has
periods of employment with NationsSecurities and any Participating
Employer shall have the Participant's retirement income hereunder
determined in two parts, which together shall comprise the
Participant's total retirement income under the Plan.
(1) Defined Terms. For this purpose, any Benefit
Service and any Compensation earned by a Participant during
employment with NationsSecurities shall be referred to as the
Participant's "NationsSecurities Service" and the
Participant's "NationsSecurities Compensation," respectively.
Any Benefit Service and any Compensation earned by a
Participant during the Participant's employment with the
Participating Employers other than NationsSecurities shall be
referred to as the Participant's "NationsBank Service" and
"NationsBank Compensation," respectively.
(2) NationsSecurities Part of Retirement Income. The
NationsSecurities part of such a Participant's retirement
income shall be determined in accordance with the usual
provisions of this Plan except that all NationsBank Service
and NationsBank Compensation shall be disregarded and only the
Participant's periods of NationsSecurities Service and
NationsSecurities Compensation shall be taken into account.
For purposes of applying the
4
five hundred forty (540) Benefit Service maximum in the
benefit formula to this part, the maximum number of months of
NationsSecurities Service shall be five hundred forty (540).
Covered Compensation for this part will be as in effect for
the Plan Year when the Participant was last employed in
NationsSecurities Service.
(3) NationsBank Part of Retirement Income. The second
part of such a Participant's retirement income shall also be
determined in accordance with the usual provisions of the
Plan, except that all NationsSecurities Service and
NationsSecurities Compensation shall be disregarded and only
the Participant's periods of NationsBank Service and
NationsBank Compensation shall be taken into account. For
purposes applying the five hundred forty (540) Benefit Service
maximum in the benefit formula to this part, the maximum
number of months of NationsBank Service shall be five hundred
forty (540) minus the Participant's months of
NationsSecurities Service. Covered Compensation for this part
will be as in effect for the Plan Year when Participant was
last employed in NationsBank Service.
(4) Disability. The above provisions will apply for
purposes of determining benefits upon death or Disability, as
well as for purposes of determining benefits upon retirement
or other termination of Service. For purposes of Disability
benefits, a Participant's last employment status (i.e.,
NationsBank or NationsSecurities) shall be taken into account
when imputing service credit and compensation during
Disability."
5. The following new Section 15.12 is added to the end of
Article XV of the Plan effective as of March 31, 1995:
"SECTION 15.12. MERGER OF THE NATIONSSECURITIES
PENSION PLAN.
(a) General. In October 1994, a Subsidiary of NationsBank
Corporation purchased the interest of Xxxx Xxxxxx Financial Services
Group, Inc. in NationsSecurities. As the result of said purchase
transaction, NationsSecurities became a member of the Affiliated Group,
and it was determined that NationsSecurities no longer needed to
maintain a separate defined benefit pension plan for its eligible
employees. Therefore, effective as of March 31, 1995, the
NationsSecurities Pension Plan maintained in accordance
5
with the provisions of Section 15.6 was merged with and into the Plan
and the assets and liabilities of the separate sub-account maintained
under the Trust for the NationsSecurities Pension Plan merged with the
separate sub-account maintained under the Trust for the Plan. In
addition, NationsSecurities adopted the terms and provisions of the
Plan and became a Participating Employer hereunder effective April 1,
1995.
(b) Determination of Retirement Income for Participants with
NationsBank and NationsSecurities Service. Notwithstanding the merger
of the NationsSecurities Pension Plan with the Plan and the adoption of
the Plan by NationsSecurities, NationsSecurities wishes to continue to
maintain the methodology of Section 15.6 for determining the Plan
benefit for a Participant who has Service with NationsSecurities and
any Participating Employer other than NationsSecurities. Therefore,
notwithstanding any other provision of this Plan to the contrary, any
Participant who has periods of employment with NationsSecurities and a
Participating Employer other than NationsSecurities shall have the
Participant's retirement income hereunder determined in two parts,
which together shall comprise the Participant's total retirement income
under the Plan.
(1) Defined Terms. For purposes of this
Section 15.12, the terms "NationsSecurities Service,"
"NationsSecurities Compensation," "NationsBank Service" and
"NationsBank Compensation" shall have the meanings set forth
in Section 15.6(c)(1).
(2) NationsSecurities Part of Retirement Income. The
NationsSecurities part of such a Participant's retirement
income shall be determined in accordance with the usual
provisions of this Plan except that all NationsBank Service
and NationsBank Compensation shall be disregarded and only the
Participant's periods of NationsSecurities Service and
NationsSecurities Compensation shall be taken into account.
For purposes of applying the five hundred forty (540) Benefit
Service maximum in the benefit formula to this part, the
maximum number of months of NationsSecurities Service shall be
five hundred forty (540). Covered Compensation for this part
will be as in effect for the Plan Year when the Participant
was last employed in NationsSecurities Service.
6
(3) NationsBank Part of Retirement Income. The second
part of such a Participant's retirement income shall also be
determined in accordance with the usual provisions of the
Plan, except that all NationsSecurities Service and
NationsSecurities Compensation shall be disregarded and only
the Participant's periods of NationsBank Service and
NationsBank Compensation shall be taken into account. For
purposes applying the five hundred forty (540) Benefit Service
maximum in the benefit formula to this part, the maximum
number of months of NationsBank Service shall be five hundred
forty (540) minus the Participant's months of
NationsSecurities Service. Covered Compensation for this part
will be as in effect for the Plan Year when Participant was
last employed in NationsBank Service.
(4) Disability. The above provisions will apply for
purposes of determining benefits upon death or Disability, as
well as for purposes of determining benefits upon retirement
or other termination of Service. For purposes of Disability
benefits, a Participant's last employment status (i.e.,
NationsBank or NationsSecurities) shall be taken into account
when imputing service credit and compensation during
Disability."
6. Except as expressly or by necessary implication amended
hereby, the Plan shall continue in full force and effect.
IN WITNESS WHEREOF, NationsBank Corporation, on behalf of the
Participating Employers, and the Trustee have caused this Agreement to be
executed by their respective duly authorized officers, all as of the day and
year first above written.
NATIONSBANK CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxxx
Vice President
7
NATIONSBANK, N.A. (CAROLINAS)
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
8
SEVENTH AMENDMENT TO
THE NATIONSBANK PENSION PLAN
THIS AGREEMENT is made and entered into as of the 28th day of
September , 1995 by and between NATIONSBANK CORPORATION, a North
Carolina corporation ("NationsBank"), and NATIONSBANK, N.A.
(CAROLINAS), a national banking association (the "Trustee").
Statement of Purpose
This amendment to The NationsBank Pension Plan (the "Plan") relates to
the First United Bancorporation Pension Trust (the "FUBI Plan"),
which was previously maintained by First United Bancorporation, Inc.
("FUBI") and certain of its subsidiaries. The FUBI Plan was merged
into the InterFirst Corporation Pension Plan (the "InterFirst Plan"),
which was sponsored by InterFirst Corporation. Subsequently, the
InterFirst Plan was merged into this Plan.
Prior to its merger into the InterFirst Plan, the terms of the FUBI
Plan provided a "basic retirement benefit" and a special unreduced
early retirement benefit known as the "agreed retirement benefit."
The FUBI Plan provided that both benefits would be subject to
cost-of-living adjustments following commencement of a participant's
retirement benefit annuity payments (the "FUBI Plan COLAs").
When the FUBI Plan was merged into the InterFirst Plan, the FUBI Plan
"basic retirement benefit" was preserved as a stand-alone alternative
benefit under the InterFirst Plan. However, the FUBI Plan COLAs
and the "agreed retirement benefit" were not also preserved at that
time. The "agreed retirement benefit" was later restored by an amendment
to the InterFirst Plan, but without the FUBI Plan COLAs.
In 1994 a civil action was brought in the United States District Court
for the Northern District of Texas, Fort Worth Division, (Civil Action
No. 4-94CV-104A) as a class action entitled "Xxx X. Xxxx, Xx. et al. v.
NationsBank Corporation and The NationsBank Pension Plan" regarding the
FUBI Plan COLAs and the merger of the FUBI Plan into the InterFirst
Plan. NationsBank amended the Plan in response to such civil suit to
reinstate the FUBI Plan COLAs. NationsBank now desires to further amend
the Plan in order to effect the settlement of such civil suit.
Accordingly, NationsBank desires to amend the Plan to (i) provide
certain Participants who were formerly employed by a participating employer in
the FUBI Plan with a stand-alone alternative benefit under the Plan that is
subject, in part, to the FUBI Plan COLAs, (ii) provide the method by which such
stand-alone alternative benefit shall be calculated and thereafter adjusted from
time to time for the FUBI Plan COLAs, (iii) set forth the effective date as of
which such stand-alone alternative benefit shall be calculated and (iv) provide
such affected Participants who are currently in pay status a single cash payment
equal to any additional retirement benefit annuity payments that would have been
paid to such Participants in excess of the retirement benefit annuity payments
already received if the stand-alone alternative benefit provided for herein with
the FUBI Plan COLAs had been in effect throughout their period of payment, all
in a manner consistent with the Plan's status as a tax-qualified plan under
Section 401(a) of the Internal Revenue Code.
In Section 11.1 of the Plan the "Participating Employers" under the
Plan have reserved the right to amend the Plan at any time, in whole or in part,
and have delegated to the Compensation Committee of the Board of Directors of
NationsBank the right to make the amendments set forth below on behalf of all
Participating Employers. The undersigned has been authorized by the Compensation
Committee to make the amendments set forth below.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, NationsBank and the Trustee hereby agree as follows:
1. Section 15.13 of the Plan, which was previously added
to the Plan effective as of July 5, 1995 by the Sixth Amendment
2
to the Plan, is hereby amended and restated in its entirety to
read as follows:
"SECTION 15.13. FUBI PLAN SPECIAL BENEFIT.
(a) General. The Plan is the successor by way of
plan merger to the rights and obligations of the First
United Bancorporation Pension Trust which was last amended
and restated by an instrument dated August 30, 1985 and
effective January 1, 1984, as further amended by an instrument
dated July 1, 1986 (collectively, the "FUBI Plan"). The
provisions of this Section 15.13 establish a
stand-alone alternative benefit under the Plan for "Eligible
Former FUBI Plan Participants" (as defined below), a portion
of which shall be subject to certain post-retirement
cost-of-living adjustments previously provided under the
FUBI Plan ("FUBI Plan COLAs"). The provisions of this
Section 15.13 shall apply with respect to the Eligible Former
FUBI Plan Participants notwithstanding any provision of
the Plan to the contrary.
(b) Eligible Former FUBI Plan Participants
Defined. The provisions of this Section 15.13 shall apply to
each of the following:
(i) any Participant who was an active
participant in the FUBI Plan as of December 31, 1984;
(ii) any "Transferred FUBI Employee" (as
defined below);
(iii) any Participant who was employed by one of
the FUBI Plan participating employers and who would
have first become a participant in the FUBI Plan
during the period from January 1, 1985 through July 1,
1986, inclusive, in accordance with the terms and
provisions of the FUBI Plan assuming for such
purpose that the FUBI Plan had remained in effect
during such period; and
(iv) the Beneficiary of any deceased
individual described in clauses (i), (ii) and (iii)
above;
provided, however, that the provisions of this Section 15.13
shall not apply to any of the following:
(A) a former Participant who terminated
employment under the Plan (or a predecessor plan)
and received on or before June 28, 1995 a single
3
cash payment of such Participant's retirement benefit;
or
(B) a former Participant who terminated
employment under the Plan (or a predecessor plan) with
no vested interest in such Participant's retirement
benefit at the time of termination.
For purposes of this Section 15.13, a "Transferred FUBI
Employee" is an individual who (x) was an active participant
in the FUBI Plan as of June 30, 1982, (y) transferred
employment from FUBI or a FUBI subsidiary or affiliate to
InterFirst Corporation or an InterFirst Corporation
subsidiary or affiliate during the period between June 30, 1982
and December 31, 1984, and (z) was an active participant in
the InterFirst Corporation Pension Plan (the "InterFirst
Plan") as of December 31, 1984.
The individuals to whom this Section 15.13 applies are
referred to herein as the "Eligible Former FUBI Plan
Participants."
(c) FUBI Plan Special Benefit Defined. The "FUBI
Plan Special Benefit" means, with respect to an Eligible Former
FUBI Plan Participant, the sum of (A) plus (B) plus (C), where:
(A) is the "FUBI Portion" of such
Eligible Former FUBI Plan
Participant's FUBI Plan Special
Benefit (as defined in subparagraph
(d) below);
(B) is the "InterFirst Portion," if any,
of such Eligible Former FUBI Plan
Participant's FUBI Plan Special
Benefit (as defined in
subparagraph (e) below); and
(C) is the "NationsBank Portion," if
any, of such Eligible Former FUBI
Plan Participant's FUBI Plan Special
Benefit (as defined in
subparagraph (f) below).
The FUBI Portion of an Eligible Former FUBI Plan
Participant's FUBI Plan Special Benefit shall be subject
to the FUBI Plan COLAs as provided in subparagraph (k)
below. For purposes of determining the FUBI Plan Special
Benefit for an Eligible Former FUBI Plan Participant, both the
FUBI Portion and the InterFirst Portion, if any, of such FUBI
Plan Special Benefit shall be converted to a single life
annuity as
4
provided below. An Eligible Former FUBI Plan Participant's
Special FUBI Plan Benefit shall be stated as a monthly
benefit and may be paid pursuant to any optional form of
benefit set forth in Section 5.4 which such Participant elects
(to the extent eligible) in accordance with the terms and
provisions of the Plan other than this Section 15.13.
(d) FUBI Portion Defined. The FUBI Portion of an
Eligible Former FUBI Plan Participant's FUBI Plan Special
Benefit means the greater of (A) or (B), multiplied by (C),
where:
(A) is such Participant's FUBI Plan
"basic retirement benefit," as
defined below;
(B) is such Participant's FUBI Plan
"agreed retirement benefit," if
any, as defined below, if such
Participant is eligible for such
"agreed retirement benefit"
in accordance with subparagraph (g)
below; and
(C) is a factor for converting the
applicable benefit amount from a
five year certain and life annuity
to a single life annuity of
equivalent actuarial value. Such
factor shall be determined using the
actuarial equivalence assumptions
preserved from the FUBI Plan.
The amount of the FUBI Plan "basic retirement benefit" for an
Eligible Former FUBI Plan Participant (which amount is subject
to reduction for payment commencement prior to age sixty-five
(65) as described in subparagraph (h) below) shall be such
benefit determined under Article VII or, to the extent
applicable, Article VIII of the FUBI Plan as of the earliest
of
(i) such Participant's termination of
employment,
(ii) the date of such Participant's transfer of
employment from FUBI or a FUBI subsidiary or
affiliate to InterFirst Corporation or an
InterFirst Corporation subsidiary or affiliate,
or
(iii) July 1, 1986,
5
based on such Participant's "credited service"
attributable to employment with a FUBI Plan participating
employer, "pension compensation base" and "social security
benefit" (as those terms were defined in the FUBI Plan) as of
such determination date assuming for such purpose that the
FUBI Plan had continued in effect through such date.
The amount, if any, of the FUBI Plan "agreed retirement
benefit" for an Eligible Former FUBI Plan Participant (which
amount is not subject to reduction for payment commencement
prior to age sixty-five (65)) shall be such benefit determined
under Article VII of the FUBI Plan as of the earliest of
(i) such Participant's termination of
employment,
(ii) the date of such Participant's transfer of
employment from FUBI or a FUBI subsidiary or
affiliate to InterFirst Corporation or an
InterFirst Corporation subsidiary or affiliate,
or
(iii) July 1, 1986,
based on such Participant's "credited service"
attributable to employment with a FUBI Plan participating
employer, "pension compensation base" and "social security
benefit" (as those terms were defined in the FUBI Plan) as of
such determination date assuming for such purpose that the
FUBI Plan had continued in effect through such date. Whether
an Eligible Former FUBI Plan Participant is eligible for the
FUBI Plan "agreed retirement benefit" shall be determined
in accordance with subparagraph (g) below.
(e) InterFirst Portion Defined. The InterFirst
Portion of an Eligible Former FUBI Plan Participant's FUBI Plan
Special Benefit, if any, means the product of (A), (B) and (C),
where:
(A) is such Participant's "December
31st, 1988 Benefit," if any, as
defined in the Texas Plan (i.e., the
"(A)" portion of the Texas Plan
"hybrid formula" set forth in
Section 15.1(b)(iii) of this Plan);
(B) is a fraction, the numerator of
which is the difference between (x)
such Participant's "Years of
Benefit Service" as defined under
the InterFirst Plan
6
(which definition includes
fractional years) taken into
account for purposes of
determining such Participant's
"December 31st, 1988 Benefit" minus
(y) the portion of such years
included for purposes of
determining the FUBI Portion
of such Participant's FUBI Plan
Special Benefit, and the denominator
of which is such Participant's
"Years of Benefit Service" taken
into account for purposes of
determining such Participant's
"December 31st, 1988 Benefit"; and
(C) is a factor for converting the
product of (A) and (B) from a ten
year certain and life annuity to a
single life annuity of
equivalent actuarial value. Such
factor shall be determined using
the actuarial equivalence
assumptions preserved from the
InterFirst Plan.
The amount of the InterFirst Portion for an Eligible Former
FUBI Plan Participant shall be subject to reduction for
payment commencement prior to age sixty-five (65) as described
in subparagraph (h) below.
(f) NationsBank Portion Defined. The NationsBank
Portion of an Eligible Former FUBI Plan Participant's FUBI
Plan Special Benefit, if any, means the "(B)" portion of the
Texas Plan "hybrid formula" set forth in Section 15.1(b)(iii)
of this Plan, that is, the amount of such Participant's benefit
determined under the Plan other than this Section 15.13, but
using only Benefit Service earned after December 31, 1988 not
in excess of three hundred sixty (360) months, subject to
the limitations of Section 15.1(b)(iii) of this Plan. The
amount of the NationsBank Portion for an Eligible Former FUBI
Plan Participant shall be subject to reduction for payment
commencement prior to age sixty-five (65) as described in
subparagraph (h) below.
(g) Eligibility for FUBI Plan Agreed Retirement
Benefit. Prior to January 1, 1989, any Eligible Former FUBI
Plan Participant who had terminated employment and received
the FUBI Plan "agreed retirement benefit" shall be eligible
for the FUBI Plan "agreed retirement benefit" for purposes
of determining such Participant's FUBI Plan Special Benefit
hereunder. From and after January 1, 1989, an Eligible Former
FUBI Plan Participant shall be eligible for the FUBI Plan
"agreed retirement benefit" upon both (i) completion of at
least twenty (20) years of service (within the meaning
7
of the FUBI Plan) with NationsBank Corporation and
predecessor plan sponsors (or their respective subsidiaries
and affiliates) and (ii) attainment of age fifty (50) on or
before termination of employment with NationsBank
Corporation and predecessor plan sponsors (or their respective
subsidiaries and affiliates).
(h) Reductions for Early Commencement. Each
portion of an Eligible Former FUBI Plan Participant's FUBI Plan
Special Benefit shall be reduced for early commencement as
follows:
(i) With respect to the FUBI Portion of
such Participant's FUBI Plan Special Benefit, each of
the following shall apply:
(A) The amount of the FUBI Plan
"agreed retirement benefit" shall be
determined with no reduction for
early commencement of retirement
benefit annuity payments prior to
age sixty-five (65); and
(B) The amount of the FUBI Plan "basic
retirement benefit" shall be reduced
for early commencement prior to age
sixty- five (65) in accordance with
the reduction factors in the FUBI
Plan applicable to benefits
commencing at age fifty-five (55) or
later. The actuarial reduction
factors applicable to Eligible
Former FUBI Plan Participants to
determine the additional amount of
early commencement reduction if
benefits commence earlier than age
fifty-five (55) shall be based on
the actuarial reduction factors
preserved from the FUBI Plan.
(ii) With respect to the InterFirst Portion
of such Participant's FUBI Plan Special Benefit,
the amount of such InterFirst Portion shall be
reduced for early commencement prior to age
sixty-five (65) in accordance with the reduction
factors in the InterFirst Plan applicable to
benefits commencing at age fifty-five (55) or
later. The actuarial reduction factors applicable
to Eligible Former FUBI Plan Participants to
determine the additional amount of early
commencement reduction if benefits commence earlier
than age fifty-five (55) shall be based on the
actuarial reduction factors preserved from the
InterFirst Plan.
8
(iii) With respect to the NationsBank Portion
of such Participant's FUBI Plan Special Benefit, the
amount of such NationsBank Portion shall be reduced
for early commencement prior to age sixty-five (65)
in accordance with the terms of the Plan other than
this Section 15.13.
(i) FUBI Plan Special Benefit as a Protected Benefit.
From and after (i) receipt by the Participating Employers of
a determination letter from the Internal Revenue Service
that the provisions of this Section 15.13 do not adversely
affect the continued qualification of the Plan under Section
401 of the Code and (ii) the entering of an "Order of
Dismissal with Prejudice" which has become final and
nonappealable in accordance with the terms of that certain
"First Amended Compromise Settlement Agreement & Release"
dated August 16, 1995 to which this Plan is a party, the
FUBI Plan Special Benefit (including the right to a single
cash payment with respect to prior retirement benefit
annuity payments as provided in subparagraph (o) below)
shall be a benefit protected by Section 411(d)(6) of the
Code and Section 204(g) of the Act.
(j) FUBI Plan Special Benefit as a Stand-Alone
Alternative Benefit. Following commencement of retirement
benefit annuity payments, each Eligible Former FUBI Plan
Participant shall receive the greatest benefit amount
determined from time to time under the alternative benefit
formulas applicable to such Eligible Former FUBI Plan
Participant under this Plan. In that regard, the amount of
the FUBI Plan Special Benefit for each Eligible Former FUBI
Plan Participant (as adjusted to reflect the form of
benefit payment and as adjusted pursuant to subparagraph
(k) below) shall be treated as a separate stand-alone
alternative benefit formula under this Plan.
(k) COLA Adjustments for FUBI Portion. The FUBI
Portion of an Eligible Former FUBI Plan Participant's FUBI
Plan Special Benefit, regardless of whether such
Participant's FUBI Plan Special Benefit is the greatest
benefit amount at the time of commencement of retirement
benefit annuity payments, shall be increased or decreased for
changes in the cost of living (the "COLA") as of January 1
of each Plan Year following commencement of such payments by
such Eligible Former FUBI Plan Participant under this Plan (or
any applicable predecessor plan). The COLA amount shall be
based on the percentage increase or decrease in the cost of
living, if any, based on a comparison of the
9
U. S. Consumer Price Index for the September 30 next
preceding the January of the determination, with such U. S.
Consumer Price Index for the September 30 one year earlier;
provided, however, that such yearly increase or decrease, if
any, shall be limited to a maximum of four percent (4%); and
provided further, that such yearly decrease, if any, shall not
reduce the amount of the FUBI Portion of such Eligible Former
FUBI Plan Participant's FUBI Plan Special Benefit below the
initial amount of such FUBI Portion at the time of commencement
of retirement benefit annuity payments. The "Consumer Price
Index for All Urban Wage Earners and Clerical Workers" (or the
appropriate replacement table that is published by the Bureau
of Labor Statistics, or its successor, or if there is none,
then such other table determined to be acceptable to the
Administrator of the Plan) shall be used in determining the
percentage increases or decreases for each Plan Year.
(l) Payment of FUBI Plan Special Benefit. Each
Eligible Former FUBI Plan Participant shall
receive the FUBI Plan Special Benefit amount as
such Participant's retirement benefit when that
amount (as adjusted from time to time as
provided in subparagraph (k) above) is the
greatest amount available to such Eligible
Former FUBI Plan Participant under the
alternative retirement benefit formulas under
the Plan applicable to such Eligible Former
FUBI Plan Participant.
(m) Application of Other Alternative Benefit
Formulas. The provisions of this Section 15.13 shall not in
any manner change, modify or otherwise affect the continued
application of any other alternative benefit formulas under the
Plan applicable to Eligible Former FUBI Plan Participants,
including without limitation the Plan's basic retirement
benefit formula and the Texas Plan's hybrid formula. In such
regard:
(i) Continued Credit for FUBI Plan and
InterFirst Plan Benefit Service under this Plan's
Basic Retirement Benefit Formula. For any Eligible
Former FUBI Plan Participant who is eligible for a
benefit determined under this Plan's basic
"all-service" retirement benefit formula set forth
in Articles V and VI, such Participant shall continue
to receive credit under such benefit formula
(pursuant to the terms and provisions of the Plan
other than this Section 15.13) for all of such
Participant's benefit service under (i) the FUBI Plan
prior to its merger into the InterFirst Plan and (ii)
the
10
InterFirst Plan prior to its merger into this Plan.
(ii) Texas Plan's Hybrid Formula. Section
15.1(b)(iii) of this Plan provides in part that the
benefit under the Plan for a Texas Plan Participant
who participated in the Texas Plan (or any
predecessor plan) before 1989 shall not be less than
the sum of (A) such Participant's "December
31st, 1988 Benefit" as defined in the Texas
Plan and (B) such Participant's benefit
determined under the Plan's basic retirement
benefit formula set forth in Articles V and VI with
respect to Benefit Service earned after 0000 (xxx
"xxxxxx xxxxxxx"). For an Eligible Former FUBI Plan
Participant, the December 31st, 1988 Benefit under
the Texas Plan generally means the greater of (x) the
Participant's benefit as of such date determined
under the InterFirst Plan's "all-service" benefit
formula (which was calculated taking into account such
Eligible Former FUBI Plan Participant's benefit
service under the FUBI Plan prior to 1985) or (y) the
Participant's "basic retirement benefit" determined
as of December 31, 1984 under the FUBI Plan benefit
formula without adjustment for the FUBI Plan COLAs.
In addition, for certain Eligible Former FUBI Plan
Participants who, as of January 1, 1985, were age 55
or older and who, as of December 31, 1984, were
employed by a FUBI Plan participating employer, the
December 31st, 1988 Benefit is (under the terms of
the Texas Plan) not less than such Participant's
benefit determined as of December 31, 1988 using the
FUBI Plan's "basic retirement benefit" formula as
adopted under and provided in the InterFirst Plan
without adjustment for the FUBI Plan COLAs. The
provisions of this Section 15.13 shall have no effect
on the provisions of Section 15.1(b)(iii) of this Plan
as described herein.
(n) Application of Code Section 415. The provisions of
Article VII of the Plan that limit payment of annuity benefits
in accordance with the requirements of Section 415 of the
Code (including without limitation the "stated dollar"
limitation set forth in Section 7.1(a)(i) of the Plan and
the "compensation-based" limitation set forth in Section
7.1(a)(ii) of the Plan) shall be subject to annual cost of
living adjustments pursuant to Section 415(d) of the Code with
respect to the FUBI Plan Special Benefit. Notwithstanding the
foregoing, the FUBI Plan Special
11
Benefit (as adjusted from time to time as provided in
subparagraph (k) above) of an Eligible Former FUBI Plan
Participant shall not be paid to the extent such annual annuity
amount exceeds the greater of (i) the amount of the limit
referred to in the preceding sentence (as adjusted pursuant to
Code Section 415(d)), or (ii) the amount of the "current
accrued benefit" of the Eligible Former FUBI Plan Participant.
In that regard, an Eligible Former FUBI Plan Participant's
"current accrued benefit" shall be determined as a fixed
dollar annual annuity amount as provided in Section
1106(i)(3)(B) of the Tax Reform Act of 1986, without regard
to adjustments pursuant to Section 415(d) of the Code or the
FUBI Plan COLAs. For this purpose, the "current accrued
benefit" of an Eligible Former FUBI Plan Participant shall
equal the sum of (A) the FUBI Portion of such Participant's
FUBI Plan Special Benefit (without adjustment for the FUBI
Plan COLAs) plus (B) the portion of the InterFirst Portion
of such Participant's FUBI Plan Special Benefit, if any,
earned through December 31, 1986. No provision of
this subparagraph shall affect an Eligible Former FUBI Plan
Participant's "current accrued benefit" within the meaning of
Section 235(g)(4) of the Tax Equity and Fiscal
Responsibility Act of 1982, which such "current accrued
benefit" is also determined as a fixed dollar annual annuity
amount without regard to adjustments pursuant to Section 415(d)
of the Code or the FUBI Plan COLAs.
(o) Payment of Prior Benefits. The provisions of this
Section 15.13 shall apply retroactively for all Eligible
Former FUBI Plan Participants. Accordingly, retirement
benefit annuity payments for Eligible Former FUBI Plan
Participants who have been in pay status prior to the
"determination date" (defined below) shall be adjusted in
accordance with the provisions of this Section 15.13. Such
adjustments shall be based on the form of benefit payment
previously elected, subject to reduction, if any, pursuant
to subparagraph (h) above. The adjustments shall be made as
of a date selected by NationsBank Corporation (the
"determination date") that is as soon as practicable following
both (i) receipt of a favorable determination letter from the
Internal Revenue Service with respect to this Section 15.13
and (ii) the entering of an "Order of Dismissal with Prejudice"
which has become final and nonappealable in accordance with
the terms of that certain "First Amended Compromise Settlement
Agreement & Release" dated August 16, 1995 to which this Plan
is a party. As soon as practicable after the determination
date, any past benefit annuity amounts payable to each
12
affected Eligible Former FUBI Plan Participant as provided
by this Section 15.13 in excess of the benefit annuity
amounts actually received by each such Eligible Former FUBI
Plan Participant (whether from the Plan or a predecessor
plan) shall be calculated and paid, together with interest
at the rate of nine percent (9%), compounded annually, to
each such Eligible Former FUBI Plan Participant in a
single cash payment (less any applicable withholding
amounts). For purposes of determining the amount of
interest to be paid, such interest shall accrue from the
end of the Plan Year to which such additional benefit
annuity amounts relate through the last day of the month
immediately preceding the date of such single cash payment.
(p) Death and Disability Benefits. The FUBI Plan
Special Benefit of an Eligible Former FUBI Plan Participant
shall be applicable in determining any death or disability
benefits that may be payable to or with respect to such
Participant under the Plan or any applicable predecessor plan."
2. The effective date of the amendment set forth
herein shall be July 5, 1995, subject, however, to both (i) receipt
from the Internal Revenue Service of a determination letter that such
amendment does not adversely affect the continued qualification of the
Plan under Section 401 of the Internal Revenue Code and (ii) the
entering of an "Order of Dismissal with Prejudice" which has become
final and nonappealable in accordance with the terms of that certain
"First Amended Compromise Settlement Agreement & Release" dated August
16, 1995 to which this Plan is a party (the "Settlement
Agreement"). In addition, the timing of the implementation of the
provisions of the amendment set forth herein shall be subject to the
terms and provisions of the Settlement Agreement. NationsBank shall
submit the amendment set forth herein for such a determination letter
as soon as practicable following the execution of this Agreement. If
such a determination letter is not received or if such "Order of
Dismissal with Prejudice" is not entered or does not become
final and nonappealable, the amendment set forth herein shall be null
and void.
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3. No payment shall be made by the Participating Employers
or any employee benefit plan maintained by the Participating Employers
with respect to the amount, if any, by which the "FUBI Plan Special
Benefit" of an "Eligible Former FUBI Plan Participant" as adjusted
for the "FUBI Plan COLAs" (as those terms are defined in this amendment)
exceeds either (i) the applicable Internal Revenue Code Section 415
limitations as set forth in this amendment or (ii) the benefit amount
that results from application of the compensation limitation of
Internal Revenue Code Section 401(a)(17) as set forth in the Plan
(as such compensation limitation is periodically adjusted pursuant to
Section 401(a)(17) of the Internal Revenue Code).
4. Except as expressly or by necessary implication amended
hereby, the Plan shall continue in full force and effect.
IN WITNESS WHEREOF, NationsBank Corporation, on behalf
of the Participating Employers, and the Trustee have caused this
Agreement to be executed by their respective duly authorized officers,
all as of the day and year first above written.
NATIONSBANK CORPORATION
By: /s/ X. X. Xxxxxx
X. X. Xxxxxx, Executive
Vice President
"NationsBank"
NATIONSBANK, N.A. (CAROLINAS)
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
"Trustee"
14
