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EXHIBIT (10)E
FIRST OF AMERICA BANK CORPORATION
SUPPLEMENTAL SAVINGS PLAN
AS AMENDED AND RESTATED JANUARY 1, 1994
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FIRST OF AMERICA BANK CORPORATION
SUPPLEMENTAL SAVINGS PLAN
TABLE OF CONTENTS
SECTION PAGE
SECTION 1. . . . . . . . . . . . . . . . . . . . . . . . . 2
PLAN. . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Plan . . . . . . . . . . . . . . . . . . . . 2
1.2 Purpose. . . . . . . . . . . . . . . . . . . 2
SECTION 2. . . . . . . . . . . . . . . . . . . . . . . . . 2
DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . 2
2.1 . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 3. . . . . . . . . . . . . . . . . . . . . . . . . 5
PLAN PARTICIPATION . . . . . . . . . . . . . . . . . . . 5
3.1 Participants . . . . . . . . . . . . . . . . 5
3.2 Timing of Elections . . . . . . . . . . . . 5
3.3 Method of Election . . . . . . . . . . . . . 6
3.4 Transferred Participants . . . . . . . . . . 6
3.5 Cessation of Participation . . . . . . . . . 6
SECTION 4. . . . . . . . . . . . . . . . . . . . . . . . . 6
EMPLOYEE DEFERRALS. . . . . . . . . . . . . . . . . . . 6
4.1 Employee Deferrals . . . . . . . . . . . . . 6
4.2 Effect of Deferral . . . . . . . . . . . . . 6
4.3 Change in Deferrals. . . . . . . . . . . . . 6
4.4 Voluntary Suspension of Deferrals . . . . . 7
4.5 Pre-existing Salary Deferral Plans
or Agreements . . . . . . . . . . . . . . . 7
SECTION 5. . . . . . . . . . . . . . . . . . . . . . . . . 7
EMPLOYER ALLOCATIONS. . . . . . . . . . . . . . . . . . 7
5.1 Employer Matching Allocations . . . . . . . 7
5.2 Suspension of Deferrals and Allocations . . 7
SECTION 6. . . . . . . . . . . . . . . . . . . . . . . . . 8
MAINTENANCE AND VALUATION OF ACCOUNTS . . . . . . . . . 8
6.1 Maintenance of Separate Accounts . . . . . . 8
6.2 Valuation of Accounts . . . . . . . . . . . 8
SECTION 7. . . . . . . . . . . . . . . . . . . . . . . . . 8
VESTING . . . . . . . . . . . . . . . . . . . . . . . . 8
7.1 Vesting . . . . . . . . . . . . . . . . . . 8
7.2 Vesting Upon Change of Control . . . . . . . 9
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SECTION 8. . . . . . . . . . . . . . . . . . . . . . . . 9
DISTRIBUTION. . . . . . . . . . . . . . . . . . . . . 9
8.1 Methods of Distribution. . . . . . . . . . 9
8.2 Hardship Distribution . . . . . . . . . . 9
8.3 Distribution Upon Severance from Service . 9
8.4 Distribution Upon Change in Control . . . 11
8.5 Distributions from Pre-Existing Salary
Deferral Plans or Agreements . . . . . . . 11
SECTION 9. . . . . . . . . . . . . . . . . . . . . . . . 11
BENEFICIARIES . . . . . . . . . . . . . . . . . . . . 11
9.1 Beneficiary Designation . . . . . . . . . 11
9.2 Alternate Payment of Benefits . . . . . . 11
SECTION 10 . . . . . . . . . . . . . . . . . . . . . . . 12
COMMITTEE . . . . . . . . . . . . . . . . . . . . . . 12
10.1 Committee . . . . . . . . . . . . . . . . 12
10.2 Power of Committee . . . . . . . . . . . . 12
SECTION 11 . . . . . . . . . . . . . . . . . . . . . . . 12
ADMINISTRATION AND INTERPRETATION OF PLAN . . . . . . 12
11.1 Administration . . . . . . . . . . . . . . 12
11.2 Expenses . . . . . . . . . . . . . . . . . 13
11.3 Amendments . . . . . . . . . . . . . . . . 13
11.4 Plan Termination . . . . . . . . . . . . . 13
11.5 Non-Alienation . . . . . . . . . . . . . . 13
11.6 Notices . . . . . . . . . . . . . . . . . 13
11.7 Applicable Law . . . . . . . . . . . . . . 13
11.8 Unsecured Creditors . . . . . . . . . . . 13
11.9 Tax Treatment . . . . . . . . . . . . . . 14
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SECTION 1 - PLAN
1.1 Plan. First of America Bank Corporation, a Michigan
corporation, established this Plan effective July 1, 1988. The Plan is being
amended and restated in its entirety effective January 1, 1994. Except as
specifically provided to the contrary, all amounts deferred and accrued under
this Plan will be unsecured liabilities of the Company and will not be funded
with specific assets of the Company or any Participating Company.
1.2 Purpose. The purpose of the First of America Bank Corporation
Supplemental Savings Plan is to provide a means for a select group of
management and highly compensated employees of the Company and Participating
Companies to build savings through compensation and incentive compensation
deferrals and Company allocations, without adverse tax consequences in order to
supplement the deferral opportunities available under the Qualified Plan.
SECTION 2 - DEFINITIONS
2.1 The following words and phrases have the respective meanings
stated below unless a different meaning is plainly required by the context:
(a) "Beneficiary" means any person who is entitled to receive
distributions under this Plan pursuant to Section 9.
(b) "Board" or "Board of Directors" means the Board of Directors of
the Company, or any other entity authorized to act on its
behalf.
(c) A "Change in Control" of the Company shall have occurred:
(i) on the fifth day preceding the scheduled expiration date of
a tender offer by, or exchange offer by any corporation,
person, other entity or group (other than the Company or
any of its wholly owned subsidiaries), to acquire Voting
Stock of the Company if:
(a) after giving effect to such offer such corporation,
person, other entity or group would own twenty-five
percent (25%) or more of the Voting Stock of the
Company;
(b) there shall have been filed documents with the
Securities and Exchange Commission ("SEC") in
connection therewith (or, if no such filing is
required, public evidence that the offer has already
commenced); and
(c) such corporation, person, other entity or group has
secured all required regulatory approvals to own or
control twenty-five percent (25%) or more of the
Voting Stock of the Company;
(ii) if the shareholders of the Company approve a definitive
agreement to merge or consolidate the Company with or into
another corporation in a transaction in which neither the
Company nor any of its wholly owned subsidiaries will be
the surviving corporation, or to sell or otherwise dispose
of all or substantially all of the Company's assets to any
corporation, person, other entity or group (other than the
Company or any of its wholly owned subsidiaries), and such
definitive agreement is consummated;
(iii) if any corporation, person, other entity or group
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(other than the Company or any of its wholly owned
subsidiaries) becomes the Beneficial Owner (as defined in
the Company's Articles of Incorporation) of stock
representing twenty-five percent (25%) or more of the
Voting Stock of the Company; or
(iv) if during any period of two (2) consecutive years
Continuing Directors cease to comprise a majority of the
Company's Board of Directors.
The term " Continuing Director" means:
(i) any member of the Board of Directors of the Company at the
beginning of any period of two (2) consecutive years; and
(ii) any person who subsequently becomes a member of the Board
of Directors of the Company; if
(a) such person's nomination for election or election to
the Board of Directors of the Company is recommended
or approved by resolution of a majority of the
Continuing Directors; or
(b) such person is included as a nominee in a proxy
statement of the Company distributed when a majority
of the Board of Directors of the Company consists of
Continuing Directors.
"Voting Stock" shall mean those shares of the Company entitled
to vote generally in the election of directors.
(d) "Committee" means the committee established by the Company to
operate on the Company's behalf in administering and
interpreting this Plan.
(e) "Company" means First of America Bank Corporation, a Michigan
corporation and its successor or successors.
(f) "Compensation" means "Compensation", as defined in the Company's
Qualified Plan, excluding awards payable pursuant to the
Company's Annual Incentive Compensation Plan for Key Corporate
Executives and Key Affiliate Executives. In addition,
"Compensation" for purposes of this Plan shall include
compensation in excess of the applicable compensation limitation
set forth in Section 401(a)(17) of the Internal Revenue Code of
1986, as amended.
(g) "Employee" or "Eligible Employee" means a salaried employee who
is a member of a select group of management or a highly
compensated employee, both as determined by the Company, and who
is employed by an Employer.
(h) "Employee Deferrals" means the deferrals made by an Employee
from his Compensation or Incentive Compensation pursuant to
Section 4.1.
(i) "Employee Incentive Compensation Deferrals" means the deferrals
made by an Employee from his Incentive Compensation pursuant to
Section 4.1.
(j) "Employer" means the Company or any Participating Company which
participates in the Plan.
(k) "Employer Matching Allocations" means the allocations made by an
Employer pursuant to Section 5.1.
(l) "Entry Date" means the date on which Employee Deferrals
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could begin for an Employee, pursuant to Section 3. The Entry
Date will be the first day of the calendar year or, if sooner,
the first day of the month, following the date as of which an
Employee is designated by the Company as a member of a select
group of a management or a highly compensated employee.
(m) "Incentive Compensation" means cash awards payable to Employees
under the Company's Annual Incentive Compensation Plan for Key
Corporate Executives and Key Affiliate Executives, and the First
of America Bank Corporation Long Term Incentive Compensation
Plan.
(n) "Long-Term Disability Benefits" means the payments made under
the Employer's Long-Term Total and Permanent Disability Program.
(o) "Nonvested Amounts" means, as of the date of determination, that
portion of Employer Matching Allocations not yet attributable to
the Participant's account according to the schedule set forth in
Section 7.
(p) "Participant" means an Employee who has met the requirements of
Section 3 for participating in the Plan and who has elected to
make or is making deferrals under the Plan, or a former Employee
who is entitled to receive benefits under the Plan.
(q) "Participating Company" means any other company designated by
the Board as a Participating Company and as such becomes an
Employer under this Plan. The Board may revoke the designation
at any time, but until such designation has been revoked, all of
the provisions of the Plan apply to Employees of the
Participating Companies.
(r) "Payroll Period" means the interval of employment for which a
Participant's periodic paychecks are normally issued.
(s) "Plan" means the First of America Bank Corporation Supplemental
Savings Plan.
(t) "Plan Year" means the 12 month period commencing January 1 and
ending on December 31 of each year.
(u) "Retirement" means termination of employment with the Company
and all Participating Companies after reaching age 55 and the
completion of 5 years of service.
(v) "Qualified Plan" means the First of America Bank Corporation
Reserve Plus Retirement Savings Plan.
(w) "Separation from Service" means the first day of an absence from
active service due to an unpaid leave of absence.
(x) "Severance from Service" means with respect to an Employee of
the Company or any Participating Company, the date on which the
Employee resigns, retires, is discharged, dies, or severs
employment due to divestiture of his Employer, or the first
anniversary of the Employee's Separation from Service if the
Employee has not returned to active service from a leave of
absence or extended disability by such date.
(y) "Valuation Date" shall mean such dates as are designated by the
Committee to value the accounts of Participants under this Plan.
SECTION 3 - PLAN PARTICIPATION
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3.1 Participants. Each Eligible Employee may become a Participant
as of the first Entry Date applicable to that Eligible Employee, or as of any
Subsequent Entry Date if the Eligible Employee declined participation at an
earlier entry date.
3.2 Timing of Elections. A Participant may elect to participate in
this Plan by giving prior written notice authorizing a deferral of Compensation
or Incentive Compensation in accordance with guidelines established by the
Committee. In no event shall such election be allowed later than the December
31st preceding the Plan Year for which such election is effective, or the
Participant's Entry Date, if later.
3.3 Method of Election. Except as the Committee may otherwise
provide, a separate election will be required for Compensation or Incentive
Compensation which will be deferred in each Plan Year.
3.4 Transferred Participants. Transfer of a Participant between
Participating Companies will not affect the Participant's participation in the
Plan, provided that the Participant continues to be an Eligible Employee.
3.5 Cessation of Participation. An Eligible Employee who has become
a Participant shall continue as a Participant until such time as the full value
of the Participant's account in this Plan has been distributed or forfeited
pursuant to Section 8.
SECTION 4 - EMPLOYEE DEFERRALS
4.1 Employee Deferrals. Each Participant may elect percentage rate
deferrals of Compensation or Incentive Compensation in whole percentage
increments up to the following limits.
(a) Compensation -- up to 50%, and
(b) Incentive Compensation -- up to 100%
Employee Deferrals to this Plan shall be reduced by the amount of
Compensation and Incentive Compensation deferred by the Participant pursuant to
the Qualified Plan.
4.2 Effect of Deferral. To the extent possible, this Plan will be
administered in such a manner as not to affect employee benefits and payroll
deductions which are based upon Compensation or Incentive Compensation except
that (a) income tax withholding will be based upon the amount of Compensation
or Incentive Compensation paid net of Employee Deferrals; (b) payroll
deductions for Social Security and Medicare tax (FICA) will be based upon
Compensation and Incentive Compensation before any deferral. To the extent the
Company is required to withhold taxes or any other amounts from the
Participant's deferred Compensation or Incentive Compensation pursuant to any
federal, state or local law, such amounts will be withheld from the portion of
the Participant's Compensation or Incentive Compensation which is not deferred
under this Plan.
4.3 Change in Deferrals. A Participant may not change the rate of
Employee Deferral previously elected until a subsequent Entry Date, at which
time he or she may make an election in accordance with Section 3.
In the event of a change in the Compensation or Incentive
Compensation of a Participant, the Employee Deferral rate then in effect will
be applied as soon as practicable with respect to such changed Compensation or
Incentive Compensation, without action by the Participant.
4.4 Voluntary Suspension of Deferrals. A Participant wishing to
suspend deferrals may do so without Committee approval as of any January 1 in
accordance with procedures established by the Committee. In the event of
financial hardship, a Participant may request Committee approval of a
suspension of his deferrals as of any
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Payroll Period by giving notice as the Committee shall require.
Suspension of deferrals shall be made as soon as practicable following
Committee approval. A Participant who suspends the authorization of deferrals
may again authorize deferrals beginning as of any following January 1.
4.5 Pre-existing Salary Deferral Plans or Agreements. With
Committee approval, a Participant may elect to consolidate any accumulated
deferrals he or she may have under another non-qualified plan of deferred
compensation sponsored by his or her Employer with his or her account(s) in
this Plan. Such transferred amounts will be governed by the provisions of this
Plan for all purposes, except that the distribution option elected by a
Participant prior to July 1, 1988 pursuant to deferred compensation agreements
with an Employer, which are consolidated with this Plan as of July 1, 1988
shall be paid in accordance with Section 8.5. No cash payments or qualified
plan rollovers or transfers will be accepted under this Plan.
SECTION 5 - EMPLOYER ALLOCATIONS
5.1 Employer Matching Allocations. At the discretion of the Board,
the Company may credit to a Participant's account an Employer Matching
Allocation to match Employee Deferrals up to 4% of the sum of a Participant's
Compensation at the rate of 33-1/3% of such Participant's Employee Deferrals.
At the discretion of the Board, the Company may credit to a Participant's
account an Employer Matching Allocation to match Employee Deferrals of 5% or
more of the sum of a Participant's Compensation at the rate of 50% of the first
5% of Compensation deferred. However, no Employer Matching Allocation will be
made on behalf of a Participant who is also a participant under the First of
America Bank Corporation Long-Term Incentive Plan. In addition, no Employer
Matching Allocation shall be made for Employee Deferrals made prior to a
Participant becoming eligible to participate in the Qualified Plan. Solely for
purposes of determining the amount of an Employer Matching Allocation, the term
"Compensation" shall include awards payable pursuant to the Company's Annual
Incentive Compensation Plan. Effective April 1, 1992, Employer Matching
Allocations will no longer be made on behalf of Participants in this Plan,
except to the extent that matching contributions made for a Plan Year by the
Company to the Qualified Plan are reduced due to the limitations of Sections
415, 401(k), 401(m), and 401(a)(17) of the Internal Revenue Code of 1986, as
amended.
5.2 Suspension of Deferrals and Allocations. Employee Deferrals and
Employer Matching Allocations under this Plan with respect to a Participant
will be suspended if the Participant continues to be employed by the Company or
a Participating Company but ceases to be an Employee, as defined in Section
2.1(g). Whenever Employee Deferrals are suspended by a Participant, Employer
Matching Allocations with respect to that Participant will also be suspended.
SECTION 6 - MAINTENANCE AND VALUATION OF ACCOUNTS
6.1 Maintenance of Separate Accounts. There shall be established
separate accounts on the books of the Company, held as book reserves according
to generally accepted accounting principals, for each Participant, which shall
reflect all deferrals and allocations on the Participant's behalf. Separate
accounting shall be established to reflect Employee Deferrals, Employer
Matching Allocations and amounts transferred from other compensation deferral
plans or agreements pursuant to Section 4.5. Each Participant will be
furnished a statement of his or her account(s) not less often than annually and
following any distribution or withdrawal.
6.2 Valuation of Accounts. The Participant shall direct the
allocation of his Employee Deferrals and any accumulated deferrals transferred
to the Plan as provided in Section 4.5 in such percentage increments and among
such investment options as are permitted and established under the Qualified
Plan. Although no specific assets will be invested under this Plan, investment
credits will be determined as if assets were invested in the options specified.
Participant bookkeeping account(s) will be valued and credited as
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follows:
(a) first, any Employee Deferrals and Employee Matching Allocations will
be added to the balance of the Participant's bookkeeping account(s);
(b) next, bookkeeping account balances based on Employee Deferrals and
amounts transferred from other non-qualified plans of deferred
compensation will be credited or debited based on the performance of
the investment options to which the Participant allocated such
deferrals. Bookkeeping account balances based on Employer Matching
Allocations will be credited or debited with investment returns
based on the performance of the First of America Bank Corporation
Common Stock Account as established under the Qualified Plan;
(c) next, bookkeeping account balances will be debited with distributions
and forfeitures.
Accounts shall be valued as of each Valuation Date which shall be no less
frequent than March 31st, June 30th, September 30th, and December 31st of each
Plan Year.
SECTION 7 - VESTING
7.1 Vesting. Participants will be 100 percent vested in their
accounts arising out of Employee Deferrals and amounts transferred from other
non-qualified plans of deferred compensation, and investment credits thereon at
all times. Participants will vest in their account balance attributable to
Employer Matching Allocations as follows:
Years of Service Vesting Percentages
Less and 1 year 0
1 but less than 2 years 25%
2 but less than 3 years 50%
3 but less than 4 years 75%
4 or more years 100%
Years of Service means the Participant's term of service, which begins on
the date last hired by the Company or any of the Participating Companies, as
well as any prior service that may be credited under the bridging of service
rules, as referenced in the Qualified Plan, and ends with the termination of
the Participant's employment.
7.2 Vesting Upon Change of Control. Should the Company undergo a
Change in Control, Participants will become fully and immediately vested in
their Employer Matching Allocations.
SECTION 8 - DISTRIBUTION
8.1 Methods of Distribution. Unless otherwise expressly provided
any distribution from a Participant's bookkeeping account will be paid in cash.
8.2 Hardship Distribution. The Committee may, in its sole
discretion, upon the request of a Participant and at any time prior to
termination of employment, authorize the distribution to the Participant of a
specified amount of cash from such Participant's Employee Deferrals for the
purposes set forth below and subject to the following rules:
(a) Each request for a distribution must be made by written application
to the Committee supported by such evidence as the Committee may
require to establish hardship.
(b) Amounts will be distributed to a Participant only in the event of the
Participant's extreme financial hardship. A distribution will be
deemed to be on account of hardship if it is necessary in the light
of immediate and heavy
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financial needs of the Participant. A distribution based upon
financial hardship cannot exceed the amount required to meet the
immediate financial need created by the hardship and not reasonably
available from other resources of the Participant. The determination
of the existence of financial hardship and the amount required to be
distributed to meet the need created by the hardship will be made by
the Committee in accordance with uniform and nondiscriminatory
standards.
(c) Within 30 days after the date the written request is given to the
Committee by the Participant, the Participant shall be advised in
writing whether the request for distribution has been approved or
denied. If the request is approved, distribution will be made as
soon as practicable thereafter.
8.3 Distribution Upon Severance from Service.
(a) General Rule. In the event of a Participant's Severance from
Service, the Participant's accounts shall be distributed in a single
lump-sum payment as soon as practicable following his Severance from
Service, unless the Participant is eligible to, and has made a timely
election to receive an alternative form of distribution. A
Participant shall only be eligible to receive an alternative form of
distribution if, as of the Participant's Severance from Service Date,
the fair market value of the Participant's accounts in the Plan
exceeds $3,500, and the Participant has, as of the Participant's
Severance from Service Date, become eligible for Retirement.
(b) Deferred Lump-Sum Option. A Participant may elect to receive a
distribution of his accounts in a single lump-sum payment on the 5th
or 10th anniversary of the Participant's Retirement. The lump-sum
payment will be made by the Employer within 30 days of the
anniversary date elected by the Participant. If a Participant makes
an election under this Section, and dies prior to receiving all
amounts payable under the Plan, the remaining amounts payable shall
be distributed to the Participant's Beneficiary in accordance with
the Participant's election.
(c) 5 or 10 Year Installments. A Participant may elect to receive a
distribution of his accounts in 5 or 10 annual installments
commencing within 30 days following the first anniversary of the
Participant's Retirement. The amount of each annual distribution
shall equal the total fair market value of the Participant's accounts
in the Plan as of the Valuation Date immediately preceding the
distribution divided by the number of payments remaining to be made
to the Participant. If a Participant makes an election under this
Section, and dies prior to receiving all amounts payable under the
Plan, the remaining amounts payable shall be distributed to the
Participant's Beneficiary in accordance with the Participant's
election.
(d) Timing of Election. Unless a timely election is made by the
Participant, the distribution of his accounts shall be made in
accordance with Section 8.3(a). An election to receive benefits in
the form or at the time described in Sections 8.3(b) or (c) shall be
timely if made by the Participant on a form supplied by the Employer
and delivered to the Employer no later than the earlier of:
(i) three months prior to the Participant's Retirement; or
(ii) the last day of the calendar year preceding the calendar year in
which the Participant's Retirement date occurs.
Notwithstanding the above provisions, a Participant whose Retirement
date is on or before March 1, 1995 may make an
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election under this Section until December 1, 1994.
(e) Post-Retirement Election. Notwithstanding the Participant's prior
election to the contrary, after a Retirement occurs, the Participant
or in the event of the Participant's death, the Participant's
beneficiary, may elect to receive an immediate payment of the
remaining benefits payable under the Plan in a single lump-sum
payment. The lump-sum payment shall be determined in accordance with
the following formula:
Total Account Balance multiplied by (1.0 - Penalty Rate)
"Penalty Rate" shall mean the greater of .06 or two-thirds of the
interest rate, expressed as a decimal, that would be used (as of the
first day of the Plan Year in which the distribution occurs) by the
First of America Bank Corporation Employee's Plan (the "Pension
Plan") for purposes of valuing a lump-sum distribution under $3,500,
as described in Code Section 417(e)(3)(A)(ii)(II).
8.4 Distribution Upon Change in Control. If a Change in Control
occurs, all accounts under this Plan shall become immediately payable to
Participants. In addition to the elections specified above, a Participant, or
beneficiary of a deceased Participant, may elect not to receive a lump sum
payment of benefits in the event of a Change in Control. If no such election
is made by the Participant, or a Beneficiary, then the distribution of the
Participant's Plan account shall be made in a single lump-sum payment. An
election pursuant to this Section 8.4 must be delivered to the Employer prior
to the earlier of:
(i) three months prior to a Change in Control; or
(ii) the last day of the calendar year preceding the calendar year in
which a Change in Control occurs.
8.5 Distributions from Pre-Existing Salary Deferral Plans or
Agreements. Participants, who have existing salary deferral agreement balances
as of July 1, 1988, and who, pursuant to Section 4.5 of the Plan, elected to
consolidate such balances with this Plan as of July 1, 1988, shall receive a
distribution of such amounts and earnings or losses attributable to such
amounts pursuant to the distribution elections in effect immediately prior to
July 1, 1988, unless such a Participant makes a later election pursuant to
Sections 8.3 or 8.4 of this Plan.
SECTION 9 - BENEFICIARIES
9.1 Beneficiary Designation. A Participant may designate, by
written notice delivered to the Committee or its designee prior to the
Participant's death, a Beneficiary or Beneficiaries to receive all or part of
the amount of the Participant's account(s) in case of the Participant's death.
A designation of Beneficiary may be replaced by a new designation or may be
revoked by the Participant at any time by written notice delivered prior to the
Participant's death. Unless a Participant designates, by written notice
delivered to the Committee or its designee prior to the Participant's death,
the beneficiary designation in effect for the Qualified Plan shall also apply
for purposes of this Plan.
9.2 Alternate Payment of Benefits. If no beneficiary designation is
in effect at the time of a Participant's death, or if no designated beneficiary
survives the Participant, or such designation conflicts with law, payment of
the amount, if any, payable under the Plan upon his death shall be made to the
Participant's estate.
If the Committee is in doubt as to the right of any person who receives
such amount, the Committee may retain such amount without liability for any
interest thereon, until the rights to such amount
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are determined or the Committee may pay such amount into any court of
appropriate jurisdiction and such payment shall be a complete
discharge of the liability of the Company, the Company's affiliates,
the Plan and the Committee. Every person receiving or claiming
benefits under this Plan shall be presumed to be mentally competent
and of full legal age until the date on which the Committee receives a written
notice, that such person is incompetent or a minor for whom a guardian or other
person legally vested with the care of his person or estate has been appointed;
provided, however, that if the Committee shall find that any person to whom a
benefit is payable is unable to care for his affairs because of incompetency or
the person is a minor, any payment due (unless a prior claim therefore shall
have been made by a duly appointed legal representative) may be paid to the
spouse, child, parent, brother, or sister of such person, or to any person or
institution deemed by the Committee to have incurred expense for such person
otherwise entitled to payment. To the extent permitted by law, any such
payment so made shall be a complete discharge of liability therefor under this
Plan.
In the event a guardian of the estate of any person receiving or claiming
benefits under this Plan shall be appointed by a court of competent
jurisdiction, benefit payments may be made to such guardian provided that
proper proof of appointment and continuing qualification is furnished to the
Company. To the extent permitted by law, any such payment so made shall be a
complete discharge of any liability therefor under the Plan.
SECTION 10 - COMMITTEE
10.1 Committee. This Plan will be administered the Company's
Retirement Committee (the "Committee"), as defined in the Pension Plan.
10.2 Power of Committee. Except as otherwise expressly provided in
this Plan, the Committee shall have full power and authority, within the limits
provided by this Plan:
(a) to have sole and exclusive authority to interpret this Plan,
resolving ambiguities that arise under the Plan and make equitable
adjustment for any mistakes or errors made in the administration of
this Plan;
(b) to determine all questions arising in the administration of this
Plan, including the power to determine the rights of Participants and
their Beneficiaries and the amount of Participant's respective
interest;
(c) to adopt such rules and regulations as it may deem reasonably
necessary for the proper and efficient administration of this Plan
consistent with its purposes;
(d) to enforce this Plan in accordance with its terms and with the rules
and regulations adopted by the Committee; and
(e) to do all other acts which in its judgment are necessary or desirable
for the proper and advantageous administration of this Plan.
SECTION 11 - ADMINISTRATION AND INTERPRETATION OF PLAN
11.1 Administration. The general administration of the Plan and the
responsibility for carrying out its provisions on behalf of the Company and
each Employer will be vested in a Committee as set forth in Section 10.
11.2 Expenses. Expenses of administering the Plan, will be borne by
the Company and Participating Companies.
11.3 Amendments. The Board may amend the Plan in its sole
discretion. Any such amendment will be effective at such date as the Board may
determine.
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11.4 Plan Termination. The Board may terminate this Plan at any
time. In addition, the Board may at any time terminate the making of Employee
Deferrals or Employer Matching Allocations. If an Employer ceases to be a
Participating Company, Employee Deferrals with respect to Participants of such
Employer and Employer Matching Allocations for Participants of such Employer
will be terminated.
11.5 Non-Alienation. No right or benefit under this Plan shall be
subject to anticipation, alienation, sale, assignment, pledge, encumbrance or
charge, and any attempt to anticipate, alienate, sell, assign, pledge, encumber
or charge the same shall be void. No right or benefit under this Plan shall in
any manner be liable for or subject to the debts, contracts, liabilities or
torts of the person entitled to such benefits except such claims as may be made
by the Company or any Participating Company.
11.6 Notices. Notices, reports and statements to be given, made or
delivered to an Employee or a Participant will be deemed duly given, made or
delivered, when addressed to the Employee or Participant, and delivered by
ordinary mail, or by Employer mail, to such Employee's or Participant's last
known residence or business address. All notices required to be given by an
Employee or a Participant will be given on a form provided for the purpose and
will be deemed received when delivered to such Employee's or Participant's
personnel department.
11.7 Applicable Law. This Plan shall be governed by the law of the
State of Michigan.
11.8 Unsecured Creditors. Nothing contained herein, and no action
taken pursuant to the provisions of this Plan shall create or be construed to
create a trust of any kind, or a fiduciary relationship between the Company,
its affiliates, Participants or any other person. To the extent that a
Participant or any other person acquires a right to receive payments under the
terms of this Plan, such rights shall be no greater than the rights of an
unsecured general creditor of the Company or its affiliates. Except for
payments following a Change in Control, all payments made under the terms of
this Plan shall be made from the general funds of the Company, or its
affiliates, and no other segregation of assets shall be made for the payment
of any benefits under the terms of this Plan to any Participant or beneficiary
thereof. Notwithstanding the foregoing, the Company may establish an
irrevocable Rabbi Trust to provide funding of benefits payable under the Plan.
At all times, the assets of such trust shall remain subject to the claims of
the Company's creditors and Participants' claims to such assets shall be no
greater than those of an unsecured, general creditor of the Company.
11.9 Tax Treatment. Any deferred compensation payable under this
Plan shall not be deemed salary or other compensation and shall not be included
in a Participant's taxable income nor deductible by the Company under federal
or state law until actually received by the Participant. For this reason, any
rights, powers, privileges or duties in connection with the establishment and
administration of this Plan shall not be effective if and to the extent that
the same, if effective, would result in the compensation deferred under this
Plan to be subject to taxation before actual receipt by the Participant.
Accordingly, all provisions of this Plan shall be subordinate to this
requirement and any interpretations or constructions to be given to this Plan
shall be made in such a manner as to carry out this intention.
Executed this 20th of May, 1996
FIRST OF AMERICA BANK CORPORATION
By: /S/ RICHARD V. WASHBURN
Richard V. Washburn
Its: Senior Vice President -
Human Resources