WACHOVIA CORPORATION
EXECUTIVE DEFERRED COMPENSATION PLAN
AMENDED AND RESTATED
JANUARY 1, 2000
TABLE OF CONTENTS
EXECUTIVE DEFERRED COMPENSATION PLAN
Page
Section 1. Purpose:...........................................................1
Section 2. Definitions........................................................2
2.1 "Accrued benefit"....................................................2
2.2 "Active participant".................................................2
2.3 "Adjustment date"....................................................2
2.4 "Beneficiary"........................................................2
2.5 "Board"..............................................................2
2.6 "CFB Plan Account"...................................................2
2.7 "Committee"..........................................................2
2.8 "Compensation".......................................................3
2.9 "Deferred Compensation Account"......................................3
2.10 "Disability".........................................................3
2.11 "EDCP Account".......................................................3
2.12 "Effective date of the plan".........................................3
2.13 "Eligible employee"..................................................3
2.14 "Employee"...........................................................4
2.15 "Employer"...........................................................4
2.16 "IJL Plan Account"...................................................4
2.17 "Incentive compensation".............................................4
2.18 "Incentive Plan".....................................................4
2.19 "Normal retirement age"..............................................4
2.20 "Participant"........................................................4
2.21 "Plan"...............................................................5
2.22 "Plan year"..........................................................5
2.23 "Predecessor plan"...................................................5
2.24 "Retire" or "retirement".............................................5
2.25 "SERP Transfer Account"..............................................5
2.26 "Service"............................................................5
2.27 "Spouse".............................................................5
2.28 "Termination adjustment date"........................................5
2.29 "1934 Act"...........................................................5
Section 3. Credits to Participant Accounts....................................6
3.1 Deferred compensation credits........................................6
3.2 Incentive compensation credits.......................................6
3.3 Benefit equalization credits.........................................7
3.4 Predecessor plan credits.............................................8
Section 4. Retirement; Termination of Service; Death..........................9
4.1 Normal retirement....................................................9
4.2 Delayed retirement...................................................9
4.3 Disability retirement................................................9
4.4 Early retirement....................................................10
4.5 Termination of service..............................................10
4.6 Payment of benefit by reason of retirement or termination...........10
4.7 Payment of benefit by reason of death...............................11
4.8 Hardship............................................................11
4.9 Prepayment..........................................................12
Section 5. Vesting...........................................................13
Section 6. Account; Deemed Investment; Adjustment of Accounts................13
6.1 Deferred Compensation Account.......................................13
6.2 Deemed Investment...................................................13
6.3 Adjustments to Deferred Compensation Accounts.......................13
Section 7. Special Provisions Regarding EDCP Accounts........................14
7.1 Benefit payments at termination of employment.......................14
7.2 Benefit payment when termination of employment occurs
between age 60 and 65.............................................15
7.3 Benefit payments upon disability....................................15
7.4 Preretirement death benefits........................................16
7.5 Suicide.............................................................16
7.6 Noncompetition requirement..........................................16
Section 8. Administration by Committee.......................................17
8.1 Membership of Committee.............................................17
8.2 Committee officers; Subcommittee....................................17
8.3 Committee meetings..................................................17
8.4 Transaction of business.............................................17
8.5 Committee records...................................................17
8.6 Establishment of rules..............................................18
8.7 Conflicts of interest...............................................18
8.8 Correction of errors................................................18
8.9 Authority to interpret plan.........................................18
8.10 Third party advisors................................................18
8.11 Compensation of members.............................................19
8.12 Expense reimbursement...............................................19
8.13 Indemnification.....................................................19
Section 9. No Trust..........................................................19
Section 10. Benefits Not Assignable; Facility of Payments....................20
10.1 Benefits not assignable.............................................20
10.2 Payments to minors and others.......................................20
Section 11. Beneficiary......................................................20
Section 12. Amendment and Termination of Plan................................21
Section 13. Communication to Participants....................................21
Section 14. Claims Procedure.................................................21
14.1 Filing of a claim for benefits......................................21
14.2 Notification to claimant of decision................................21
14.3 Procedure for review................................................22
14.4 Decision on review..................................................22
14.5 Action by authorized representative of claimant.....................23
Section 15. Miscellaneous Provisions.........................................23
15.1 Set off.............................................................23
15.2 Notices.............................................................23
15.3 Lost distributees...................................................23
15.4 Reliance on data....................................................24
15.5 Receipt and release for payments....................................24
15.6 Headings............................................................24
15.7 Continuation of employment..........................................24
15.8 Merger or consolidation.............................................24
15.9 Compliance with Securities Laws.....................................25
15.10 Construction.....................................................25
WACHOVIA CORPORATION
EXECUTIVE DEFERRED COMPENSATION PLAN
SECTION 1. PURPOSE:
This Wachovia Corporation Executive Deferred Compensation Plan
(the "plan") is intended to be an unfunded plan maintained primarily for the
purpose of providing deferred compensation benefits for a select group of
management or highly compensated employees of Wachovia Corporation and its
affiliates (the "Employer") pursuant to Sections 201(2), 301(a)(3) and 401(a)(1)
of the Employee Retirement Income Security Act of 1974 ("ERISA"). The plan is
not intended to be a tax-qualified retirement plan under Section 401(a) of the
Internal Revenue Code of 1986, as amended (the "Code").
The plan amends and restates as of February 1, 1998, the
Wachovia Corporation Retirement Savings and Profit-Sharing Benefit Equalization
Plan (the "RSPSP Equalization Plan"), the South Carolina National Corporation
Deferred Compensation Plan (the "SCNC Plan") and the Central Fidelity Banks,
Inc. Amended and Restated Supplemental Stock and Thrift Plan (the "CFB Plan"),
which were established by the Employer and its affiliates to protect certain
highly compensated employees from the loss of benefits under tax-qualified
retirement plans as a result of the application of statutory restrictions on
benefits which are not applicable to other employees of the Employer. The plan
also amends and restates as of February 1, 1998, the Wachovia Corporation
Incentive Plan Deferral Arrangement (the "Deferral Arrangement") which was
established to permit certain highly compensated employees to defer receipt of a
portion of the incentive compensation payable by the Employer. The plan amends
and restates as of January 1, 2000, the Interstate/Johnson Lane Corporation
Voluntary Deferred Compensation Plan ("IJL Plan").
SECTION 2. DEFINITIONS:
As used in the plan, including this Section 2, references to
one gender shall include the other and, unless otherwise indicated by the
context:
2.1 "ACCRUED BENEFIT" shall mean, with respect to each
participant, the balance credited to his Deferred Compensation Account as of the
applicable adjustment date, following adjustment to such account as of such
adjustment date as provided in Section 6.
2.2 "ACTIVE PARTICIPANT" shall mean, with respect to any
day or date, a participant who is in service on such day or date; provided, that
a participant who is in service shall cease to be an active participant
immediately upon a determination by the Committee that the participant has
ceased to be an eligible employee.
2.3 "ADJUSTMENT DATE" shall mean the last day of each
month during a plan year, and such other dates as the Committee may select from
time to time. The adjustment date occurring on December 31 of each year shall be
referred to herein as the "year-end adjustment date."
2.4 "BENEFICIARY" shall mean the person, persons, entity
or entities designated or determined pursuant to the provisions of Section 11 of
the plan.
2.5 "BOARD" shall mean the Board of Directors of Wachovia
Corporation, or such committee of the Board to which the Board shall assign all
or part of its duties and powers under the plan.
2.6 "CFB PLAN ACCOUNT" shall mean an account subsidiary
to the Deferred Compensation Account of a participant who was a participant in
the CFB Plan immediately prior to the effective date of this plan to which shall
be credited the balance to the credit of such participant in the CFB Plan as
provided in Section 3.4.
2.7 "COMMITTEE" shall mean the Administrative Committee
appointed by the Board to administer the benefit plans of the Employer;
provided, that where necessary to comply with the requirements of Rule 16b-3 of
the 1934 Act, actions to be taken by the Committee shall be acted upon by the
Management Resources and Compensation Committee of the Board.
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2.8 "COMPENSATION" shall mean the base salary payable to
the participant by the Employer for services rendered during the plan year and
such other amounts of remuneration earned by the participant that is approved by
the Committee as compensation to be recognized for purposes of the plan.
2.9 "DEFERRED COMPENSATION ACCOUNT" shall mean the
separate account to be kept for each participant to which deferred compensation
credits, incentive compensation credits, benefit equalization credits and
certain predecessor plan credits shall be credited as described in Section 3.
The Deferred Compensation Account of a participant shall include the SERP
Transfer Account, CFB Plan Account and IJL Plan Account, if any, but not the
EDCP Account.
2.10 "DISABILITY" shall mean the inability of a
participant to perform his regular duties with the Employer or any other duties
which the Employer is willing to assign to him by reason of any medically
determinable physical or mental impairment that can be expected to result in
death or to be of long continued or indefinite duration. The determination of
the existence or nonexistence of disability shall be made by the Committee in a
nondiscriminatory manner pursuant to an examination by a medical doctor selected
or approved by the Committee.
2.11 "EDCP ACCOUNT" shall mean the separate account
established for a former participant in the SCNC Plan to reflect the benefit
amount payable under Article II of the SCNC Plan.
2.12 "EFFECTIVE DATE OF THE PLAN" shall be February 1,
1998. The plan was amended and restated as of January 1, 2000.
2.13 "ELIGIBLE EMPLOYEE" shall mean each employee who is
determined by the Committee to be a highly compensated or management employee
and who is selected by the Committee to participate in the plan. An employee
shall cease to be an eligible employee immediately upon the first to occur of
the following: (i) the employee's termination of service; (ii) determination by
the Committee that the employee no longer is a highly compensated or
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management employee; or (iii) determination by the Committee in its sole
discretion that the employee shall no longer be eligible to participate in the
plan.
2.14 "EMPLOYEE" shall mean an individual in the service of
the Employer if the relationship between the individual and the Employer is the
legal relationship of employer and employee.
2.15 "EMPLOYER" shall mean Wachovia Corporation, a North
Carolina corporation with its principal office at Winston-Salem, North Carolina,
and any affiliate thereof, or any successor thereto by merger, consolidation or
otherwise.
2.16 "IJL PLAN ACCOUNT" shall mean an account subsidiary
to the Deferred Compensation Account of a participant who was a participant in
the IJL Plan immediately prior to January 1, 2000, to which shall be credited
the balance to the credit of such participant in the IJL Plan as provided in
Section 3.4.
2.17 "INCENTIVE COMPENSATION" means any compensation
payable to a participant pursuant to the terms of an Incentive Plan.
2.18 "INCENTIVE PLAN" means any one or more of the
incentive compensation arrangements maintained by the Employer for the benefit
of employees, and which permits the deferral of compensation payments pursuant
to this plan. By way of illustration and not limitation, such plans include the
Wachovia Corporation Senior Management Incentive Plan, the Wachovia Corporation
Bond and Money Market Group Variable Compensation Plan, the Trust Investment
Management Incentive Plan, the South Carolina National Corporation Executive
Incentive Compensation Plan, and any other incentive compensation arrangement as
may be approved by the Committee for the deferral of compensation pursuant to
this plan.
2.19 "NORMAL RETIREMENT AGE" of a participant shall be age
sixty-five. The "normal retirement date" of a participant shall mean the first
day of the calendar month coincident with or next following attainment by the
participant of his normal retirement age.
2.20 "PARTICIPANT" shall mean with respect to any plan
year an eligible employee who has entered the plan and any other employee who
has an accrued benefit under
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the plan. An eligible employee who has not otherwise entered the plan shall
enter the plan and become a participant as of the date determined by the
Committee. A participant who separates from service with the Employer and who
later returns to service will not be eligible to defer compensation under the
plan except upon satisfaction of such terms and conditions as the Committee
shall establish upon the participant's return to service, whether or not the
participant shall have an accrued benefit remaining under the plan on the date
of his return to service.
2.21 "PLAN" shall mean the unfunded, nonqualified deferred
compensation plan as herein set out or as duly amended.
2.22 "PLAN YEAR" shall mean the twelve-month period ending
on December 31 of each year.
2.23 "PREDECESSOR PLAN" shall mean the RSPSP Equalization
Plan, SCNC Plan, CFB Plan, IJL Plan and Deferral Arrangement described in
Section 1.
2.24 "RETIRE" OR "RETIREMENT" shall mean retirement within
the meaning of Section 4.1, 4.2, 4.3 or 4.4.
2.25 "SERP TRANSFER ACCOUNT" shall mean an account
subsidiary to the Deferred Compensation Account of a participant who was a
Predecessor SERP Participant as defined in the RSPSP Equalization Plan
immediately prior to the effective date of this plan. The balance to the credit
of such participant in the SERP Transfer Account under the RSPSP Equalization
Plan shall be credited to the SERP Transfer Account of the participant under
this plan as provided in Section 3.4.
2.26 "SERVICE" shall mean employment by the Employer as an
employee.
2.27 "SPOUSE" or "surviving spouse" shall mean, except as
otherwise provided in the plan, the legally married spouse or surviving spouse
of a participant.
2.28 "TERMINATION ADJUSTMENT DATE" shall mean the
adjustment date coincident with or next following the date as of which a
participant terminates service with the Employer for any reason (including
retirement or death).
2.29 "1934 ACT" shall mean the Securities Exchange Act of
1934, as amended.
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SECTION 3. CREDITS TO PARTICIPANT ACCOUNTS:
3.1 DEFERRED COMPENSATION CREDITS: The Committee shall credit
to the Deferred Compensation Account of a participant the amount of any
compensation for which the participant has elected to defer receipt during the
plan year in excess of the amount of the elective deferral allocated to the
account of the participant under the Retirement Savings and Profit-Sharing Plan
of Wachovia Corporation, as amended from time to time (the "RSPSP"). A
participant may elect to defer receipt of a percentage (not to exceed 25%) of
the compensation to be earned by him during each calendar quarter of the plan
year. Such election shall be filed in writing with the Committee on a form
provided by the Committee prior to the first day of the calendar quarter for
which such election is to be effective. An election, once filed, shall continue
in effect until the first day of the calendar quarter next following receipt by
the Committee of a written revocation of such election, or until the
participant's earlier termination of employment or termination of participation
in the plan. No amount shall be deferred with respect to any eligible employee
for any calendar quarter for which there is no election in effect, and no
election for any calendar quarter may be revoked after the first day of such
calendar quarter. A participant who has revoked an earlier election to defer may
file a new election for any calendar quarter (including the first calendar
quarter for which such revocation would have been effective) at any time prior
to the first day of such calendar quarter. The compensation deferred by a
participant shall be credited to the Deferred Compensation Account of the
participant as of the adjustment date coincident with or next following the date
that such amounts would have been paid to the participant were it not for the
deferral.
3.2 INCENTIVE COMPENSATION CREDITS: The Committee shall
credit to the Deferred Compensation Account of a participant the amount of any
incentive compensation for which the participant has elected to defer receipt
during the plan year. Any participant who is eligible to earn incentive
compensation under an Incentive Plan of the Employer may elect to defer receipt
of a percentage (not to exceed 50%) of the incentive compensation, if any,
earned by him for such plan year under an Incentive Plan. Such election shall be
filed in writing with
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the Committee on a form provided by the Committee prior to the first day of the
plan year for which such election is to be effective. An election, once filed,
shall continue in effect until the first day of the plan year next following
receipt by the Committee of a written revocation of such election, or until the
participant's earlier termination of employment or termination of participation
in an Incentive Plan. No amount shall be deferred with respect to any eligible
employee for any plan year for which there is no election in effect, and no
election for any plan year may be revoked after the beginning of such plan year.
The amount of the incentive compensation which can be deferred for any plan year
pursuant to the plan shall not be less than $1,000. If the amount to be deferred
pursuant to any election for a plan year shall be less than $1,000, such
election shall be null and void and of no force and effect. A participant who
has revoked an earlier election to defer may file a new election for any plan
year (including the first plan year for which such election would have been
effective) at any time prior to such plan year. The incentive compensation
deferred by a participant shall be credited to the Deferred Compensation Account
of the participant as of the adjustment date coincident with or next following
the date that such amounts would have been paid to the participant were it not
for the deferral.
3.3 BENEFIT EQUALIZATION CREDITS: The Committee shall
credit to the Deferred Compensation Account of a participant the amount of any
Employer contribution not allocable to the participant under the RSPSP due to
the application of any statutory contribution restriction applicable to the
RSPSP under Section 401(a) of the Code. Such amount shall be referred to herein
as the participant's "restricted amount." By way of illustration and not
limitation, the statutory contribution restrictions to be taken into account in
determining the restricted amount of the participant shall include the
restrictions found in Sections 401(k), 401(m), and 415 of the Code, or any
successors thereto or similar statutory restrictions enacted in the future. In
the event a contribution is allocated to the RSPSP account of the participant
and is subsequently distributed to the participant or forfeited because of a
statutory contribution restriction, such distributed or forfeited amount shall
be treated for purposes of this plan as a restricted amount as
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of the adjustment date coincident with or next following such distribution or
forfeiture. The restricted amount of each participant shall be credited to his
Deferred Compensation Account as of the adjustment date coincident or next
following the date the restricted amount is determined by the Committee.
3.4 PREDECESSOR PLAN CREDITS:
3.4.1 Deferred Compensation Account: As of the effective
date of the plan, the Committee shall credit to the Deferred Compensation
Account of each participant who was a participant in the RSPSP Equalization Plan
or Deferral Arrangement an amount equal to the balance to the credit of such
participant as of January 31, 1998, in the Benefit Equalization Account under
the RSPSP Equalization Plan or under a Deferral Arrangement. Following such
credit to the Deferred Compensation Account of the participant under this plan,
the participant shall have no further rights to such amounts under such
predecessor plans.
3.4.2 SERP Transfer Account: As of the effective date of
the plan, the Committee shall credit to the SERP Transfer Account of each
participant who was a SERP Transfer Participant as defined in the RSPSP
Equalization Plan an amount equal to the balance to the credit of such
participant as of January 31, 1998, in the SERP Transfer Account under the RSPSP
Equalization Plan. Following such credit to the SERP Transfer Account of the
participant under this plan, the participant shall have no further rights to
such amount under the RSPSP Equalization Plan.
3.4.3 CFB Plan Account: As of the effective date of the
plan, the Committee shall credit to the CFB Plan Account of each participant who
was a participant in the CFB Plan an amount equal to the balance to the credit
of such participant pursuant to the terms of the CFB Plan as of January 31,
1998. Following such credit to the CFB Plan Account of the participant under
this plan, the participant shall have no further rights or benefits under the
CFB Plan.
3.4.4 EDCP Account: As of the effective date of the plan,
the Committee shall credit to the EDCP Account of each participant who was a
participant in the SCNC Plan an amount equal to the benefit payable to such
participant pursuant to the terms of Article II of the
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SCNC Plan as of January 31, 1998. Following such credit to the EDCP Account of
the participant under this plan, the participant shall have no further rights to
such amounts under the SCNC Plan.
3.4.5 IJL Plan Account: As of January 1, 2000, the
Committee shall credit to the IJL Plan Account of each participant who was a
participant in the IJL Plan an amount equal to the balance to the credit of such
participant pursuant to the terms of the IJL Plan as of December 31, 1999.
Following such credit to the IJL Plan Account of the participant under this
plan, the participant shall have no further rights or benefits under the IJL
Plan.
SECTION 4. RETIREMENT; TERMINATION OF SERVICE; DEATH:
4.1 NORMAL RETIREMENT: A participant who is in service
shall be eligible to retire from service at his normal retirement date and
commence receiving payment of his accrued benefit, determined as of his
termination adjustment date. Payment of such benefit shall be made by the
Employer pursuant to Section 4.6.
4.2 DELAYED RETIREMENT: If a participant shall remain in
service following his normal retirement date, his retirement date shall be the
date he actually terminates service for reasons other than death, whereupon he
shall commence receiving payment of his accrued benefit, determined as his
termination adjustment date. Payment of such benefit shall be made by the
Employer pursuant to Section 4.6. During the period that such participant
remains in service pursuant to this Section 4.2, he shall continue to be a
participant for and including each plan year in which he meets the requirements
therefor. If an employee not otherwise a participant becomes eligible to enter
the plan following his normal retirement date, the provisions of this Section
4.2 shall apply in determining his retirement date.
4.3 DISABILITY RETIREMENT: If a participant shall suffer
disability while in service prior to his normal retirement date, he shall retire
as of the date of establishment of his disability, whereupon he shall commence
receiving payment of his accrued benefit, determined as of his termination
adjustment date. Such benefit shall be paid by the Employer as provided in
Section 4.6.
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4.4 EARLY RETIREMENT: If a participant has attained at
least age fifty-five and completed ten or more years of service, he shall be
eligible to retire upon ninety days' prior written notice to the Employer and
the Committee, whereupon he shall commence receiving payment of his accrued
benefit determined as of his termination adjustment date. Such benefit shall be
paid by the Employer as provided in Section 4.6.
4.5 TERMINATION OF SERVICE: If the service of a
participant with the Employer shall be terminated for any reason other than
retirement or death, his accrued benefit, determined as of his termination
adjustment date, shall be paid to him by the Employer as provided in Section
4.6.
4.6 PAYMENT OF BENEFIT BY REASON OF RETIREMENT OR
TERMINATION: If a participant shall retire or terminate service, his accrued
benefit, determined as of his termination adjustment date, shall be paid by the
Employer as follows:
4.6.1 Accrued benefit less than $25,000: If the accrued
benefit of the participant as of the termination adjustment date is less than
$25,000, such accrued benefit shall be paid to the participant in a single lump
sum as soon as practicable following the end of the plan year in which occurs
the termination adjustment date.
4.6.2 Accrued benefit at least $25,000: If the accrued
benefit of the participant as of the termination adjustment date is at least
$25,000, such accrued benefit shall be paid to the participant in approximately
equal monthly installments over a term certain of ten years. Payment of such
benefit shall commence as of the first day of the plan year next following the
termination adjustment date, and shall continue on the first day of each month
thereafter for the remainder of the term certain. The amount of each monthly
installment shall be adjusted as of each year-end adjustment date during the
term certain to reflect credits and debits to the participant's Deferred
Compensation Account pursuant to Section 6. Such adjustment shall be made by
dividing the balance in his Deferred Compensation Account as of such date
(following adjustment as of such date) by the number of monthly installments
remaining to be paid
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hereunder; provided, that the last monthly installment due hereunder shall be
the entire amount credited to the participant's Deferred Compensation Account on
the date of payment.
4.6.3 CFB Plan Account: Notwithstanding the foregoing
provisions of this Section 4.6, the portion of the Deferred Compensation Account
of the participant consisting of the CFB Plan Account, if any, shall be
distributed as elected by the participant pursuant to the terms of the CFB Plan
as in effect immediately prior to the effective date of this plan.
4.7 PAYMENT OF BENEFIT BY REASON OF DEATH:
4.7.1 Death while in service: If the participant dies while
in service, the Employer shall pay a death benefit to the participant's
beneficiary in a single lump sum equal to the participant's accrued benefit
determined as of his termination adjustment date. Such death benefit shall be
paid to the beneficiary as soon as practicable following the end of the plan
year in which occurs the death of the participant.
4.7.2 Death following termination of service: If the
participant dies following his retirement or termination of service and before
all payments to him under the plan have been made, the remaining accrued benefit
of the participant, determined as of the adjustment date next following the
death of the participant, shall be paid to the participant's beneficiary in a
single lump sum as soon as practicable following such adjustment date.
4.8 HARDSHIP:
4.8.1 A participant may, at any time prior to his
termination of service, make application to the Committee to receive a
distribution in a lump sum of all or a portion of the total amount credited to
his Deferred Compensation Account (determined as of the adjustment date
coincident with or immediately preceding the date a request is made) because of
an unforeseeable emergency that results in severe financial hardship to the
participant. A distribution because of an unforeseeable emergency shall not
exceed the amount required to meet the immediate financial need created by the
unforeseeable emergency and not otherwise reasonably available from other
resources of the participant. Examples of an unforeseeable emergency shall
include but shall not be limited to those financial needs arising on account of
a
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sudden or unexpected illness or accident of the participant or of a dependent of
the participant, loss of the participant's property due to casualty, or other
similar extraordinary and unforeseeable circumstances arising as a result of
events beyond the control of the participant.
4.8.2 The participant's request for a distribution on
account of financial hardship must be made in writing to the Committee. The
request must specify the nature of the financial hardship, the total amount
requested to be distributed from the Deferred Compensation Account, and the
total amount of the actual expense incurred or to be incurred on account of
hardship.
4.8.3 If a distribution under this Section 4.8 is approved
by the Committee, such distribution will be made as of the next following
adjustment date. The processing of the request shall be completed as soon as
practicable from the date on which the Committee receives the properly completed
written request for a distribution on account of a financial hardship. If a
participant's termination of service occurs after a request is approved in
accordance with this Section 4.8, but prior to distribution of the full amount
approved, the approval of the request shall be automatically null and void and
the benefits which the participant is entitled to receive under the plan shall
be distributed in accordance with the applicable distribution provisions of the
plan. Only one hardship distribution shall be made within any plan year.
4.8.4 The Committee may from time to time adopt additional
policies or rules governing the manner in which such distributions may be made
so that the plan may be conveniently administered.
4.9 PREPAYMENT: Notwithstanding any other provisions of
this plan, if a participant or any other person (a "recipient") is entitled to
receive payments under the plan, upon receipt of a request in writing from the
recipient, the Committee in its sole discretion may direct the Employer to
prepay of all or any part of the payments remaining to be made to or in behalf
of the recipient, or to shorten the payment period. The amount of such
prepayment shall be in full satisfaction of the Employer's obligations hereunder
to the recipient and to all persons claiming under or through the recipient with
respect to the payments being prepaid. In the event of a partial prepayment, the
Committee shall designate which installments are being prepaid and,
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if applicable, the accounts of the participant from which such prepayments shall
be debited. The Committee's determinations under this Section 4.9 shall be final
and conclusive upon all parties claiming benefits under this plan.
SECTION 5. VESTING:
The accrued benefit of each participant shall be fully vested
(that is, nonforfeitable) at all times.
SECTION 6. ACCOUNT; DEEMED INVESTMENT; ADJUSTMENT OF ACCOUNTS:
6.1 DEFERRED COMPENSATION ACCOUNT: The Committee shall
establish a book reserve account, entitled the "Deferred Compensation Account,"
in behalf of each participant. Such account shall be adjusted as of each
adjustment date pursuant to the provisions of Section 6.3. This Section 6 shall
not apply to the participant's EDCP Account, if any.
6.2 DEEMED INVESTMENT: The Deferred Compensation Account
of a participant shall be credited with an investment rate of return determined
as if the account were invested in one or more investment funds made available
by the Committee from time to time. The participant shall elect the investment
funds in which his Deferred Compensation Account shall be deemed invested in the
manner prescribed by the Committee, and such election shall take effect upon the
entry of the participant into the plan. The investment election of the
participant shall remain in effect until the adjustment date next following the
date a new election is made by the participant. In the event the participant
fails for any reason to make an effective election of the investment return to
be credited to his account, the investment return shall be determined by the
Committee. Notwithstanding the foregoing, if a participant is subject to Section
16 of the 1934 Act, then such participant's investment elections shall be
subject to such additional rules or bylaws as may be established by the
Committee pursuant to Section 15.9 herein.
6.3 ADJUSTMENTS TO DEFERRED COMPENSATION ACCOUNTS: With
respect to each participant who has a Deferred Compensation Account under the
plan, the amount credited
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to such account as of each adjustment date shall be adjusted as of each
succeeding adjustment date by the following debits and credits, in the order
stated:
6.3.1 The Deferred Compensation Account shall be debited with
the total amount of any payments made from such account since the last preceding
adjustment date to him or for his benefit.
6.3.2 The Deferred Compensation Account shall be credited with
the total amount of any credits to such account since the last preceding
adjustment date.
6.3.3 The Deferred Compensation Account shall be credited or
debited with the amount of deemed investment gain or loss resulting from the
performance of the investment funds elected by the participant in accordance
with Section 6.2. The amount of such deemed investment gain or loss shall be
determined by the Committee and such determination shall be final and conclusive
upon all concerned.
SECTION 7. SPECIAL PROVISIONS REGARDING EDCP ACCOUNTS:
Notwithstanding any other provision of the plan, the following
special provisions shall apply with respect to a participant having an EDCP
Account:
7.1 BENEFIT PAYMENTS AT TERMINATION OF EMPLOYMENT: Upon
the termination of service by the participant for any reason other than death,
the participant shall be entitled to receive the benefit credited to his EDCP
Account (the "EDCP benefit"), determined in accordance with the terms of the
SCNC Plan as in effect immediately prior to the effective date of this plan. The
participant may elect to receive the EDCP benefit in either (i) a lump sum, or
(ii) equal monthly payments over a fifteen year period; with the amount of
payments under either method determined in accordance with the schedule of
benefits provided to the participant under the SCNC Plan. Payments of the EDCP
benefit shall be made to a participant (in the case of a lump sum), or commence
(in the case of installment payments) during the January immediately following
the participant's termination of service. Any election as to the form of the
payment of benefits under this Plan shall be made in the manner and on the form
provided by the Committee
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for such purpose, and in no event shall such election be made after the date
which is two years prior to the date on which the participant becomes entitled
to benefits under this Section 7.1. In the event that such an election is made
within the two year period described in the preceding sentence (unless the
election is made at the time of the original deferral election under the SCNC
Plan), or if no election is made, benefits payable under this Plan shall be paid
in equal monthly installments over a fifteen year period.
7.2 BENEFIT PAYMENT WHEN TERMINATION OF EMPLOYMENT OCCURS
BETWEEN AGE 60 AND 65: If the participant terminates service after attaining age
60, but prior to age sixty-five 65, the participant may elect to delay the
payment, or commencement of payments in the event installments are elected, of
his EDCP benefit until the January immediately following the date on which he
attains age 65. A participant's election to delay the commencement of his
benefits under this Section 7.2 must be made at least two years prior to the
participant's termination of service. If a participant makes a valid election to
delay the commencement of his benefits until the January immediately following
the date he attains age 65 and dies prior to attaining such age, his date of
death shall be deemed to be the date of his termination of service and his
benefits shall be paid in the form elected by the participant.
7.3 BENEFIT PAYMENTS UPON DISABILITY: If a participant
becomes disabled, the participant will continue to participate in this plan, and
his benefits will be payable on his retirement under Section 7.1 (or Section 7.2
if a valid election has been made) or on his death under Section 7.4. For this
purpose, a disabled participant's retirement date shall be deemed to be the
earlier of (i) the date on which he attains age 65, or (ii) the date on which
the participant is no longer disabled and does not return to service. In the
case of a participant with a valid election in effect under Section 7.2, the
preceding sentence will be applied by substituting age 60 for age sixty-five 65.
The Committee may from time to time request that a participant who becomes
disabled while in service submit to a medical examination or related series of
examinations by a physician or physicians acceptable to the Committee to
determine whether he continues to be disabled. A participant's refusal to submit
to such an examination or related
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series of examinations shall be deemed an admission by him that he is no longer
disabled. All examinations requested by the Committee pursuant to this provision
shall be at the expense of the Employer.
7.4 PRERETIREMENT DEATH BENEFITS: Subject to Section 7.5,
if the participant dies while in service or while disabled as provided in
Section 7.4, the participant's beneficiary shall receive a benefit, based on the
deferral elections of the participant under the SCNC Plan for each calendar year
for which the participant was deemed insurable under the SCNC Plan, in an amount
determined with reference to the schedule of benefits provided to the
participant under the SCNC Plan (the "preretirement death benefit"), which
benefit shall be in lieu of all other benefits with respect to the EDCP Account
of the participant. The preretirement death benefit shall be paid, or commence
to be paid in the case of installment payments, as soon as is practicable after
the death of the participant.
7.5 SUICIDE: Notwithstanding any provision of this plan
to the contrary, if an insurable participant as described in Section 7.4 dies as
a result of suicide prior to the April 1 of the third calendar year following
the calendar year for which the participant made a deferral election under the
SCNC Plan, no preretirement death benefit under Section 7.4 shall be payable
with respect to that deferral election of the participant; instead, the
participant's benefits resulting from such deferral election shall be determined
under this Section 7, as applicable, on the basis of the assumption that the
participant terminated service on the day immediately preceding his date of
death.
7.6 NONCOMPETITION REQUIREMENT: If any participant
terminates service for any reason and later accepts employment with, or assumes
any other position with, any national bank, state bank, savings and loan
association, or any other similar financial institution with one or more
branches in South Carolina, and which competes with the Employer, the Committee
may at its discretion cause any remaining amounts due to the participant to be
paid in one lump sum with the amount of the lump sum payment being equal to the
present value at the date of payment of such remaining payments calculated using
the present value monthly discount rate
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stated on the schedule of benefits attached to the participant's various
deferral elections under the SCNC Plan.
SECTION 8. ADMINISTRATION BY COMMITTEE:
8.1 MEMBERSHIP OF COMMITTEE: The Committee shall be
responsible for the general administration and interpretation of the plan and
for carrying out its provisions, except to the extent all or any of such
obligations are specifically imposed on the Board.
8.2 COMMITTEE OFFICERS; SUBCOMMITTEE: The members of the
Committee shall elect a Chairman and may elect an acting Chairman. The Committee
may appoint from its membership such subcommittees with such powers as the
Committee shall determine, and may authorize one or more of its members or any
agent to execute or deliver any instruments or to make any payment in behalf of
the Committee. The Committee shall appoint the plan administrator, or may itself
act as plan administrator.
8.3 COMMITTEE MEETINGS: The Committee shall hold such
meetings upon such notice, at such places and at such intervals as it may from
time to time determine. Notice of meetings shall not be required if notice is
waived in writing by all the members of the Committee at the time in office, or
if all such members are present at the meeting.
8.4 TRANSACTION OF BUSINESS: A majority of the members of
the Committee at the time in office shall constitute a quorum for the
transaction of business. All resolutions or other actions taken by the Committee
at any meeting shall be by vote of a majority of those present at any such
meeting and entitled to vote. Resolutions may be adopted or other action taken
without a meeting upon written consent thereto signed by all of the members of
the Committee.
8.5 COMMITTEE RECORDS: The Committee shall maintain full
and complete records of its deliberations and decisions. The minutes of its
proceedings shall be conclusive proof of the facts of the operation of the plan.
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8.6 ESTABLISHMENT OF RULES: Subject to the limitations of
the plan, the Committee may from time to time establish rules or by-laws for the
administration of the plan and the transaction of its business.
8.7 CONFLICTS OF INTEREST: No individual member of the
Committee shall have any right to vote or decide upon any matter relating solely
to himself or to any of his rights or benefits under the plan (except that such
member may sign unanimous written consent to resolutions adopted or other action
taken without a meeting), except relating to the terms of his salary reduction
agreement.
8.8 CORRECTION OF ERRORS: The Committee may correct
errors and, so far as practicable, may adjust any benefit or credit or payment
accordingly. The Committee may in its discretion waive any notice requirements
in the plan; provided, that a waiver of notice in one or more cases shall not be
deemed to constitute a waiver of notice in any other case. With respect to any
power or authority which the Committee has discretion to exercise under the
plan, such discretion shall be exercised in a nondiscriminatory manner.
8.9 AUTHORITY TO INTERPRET PLAN: Subject to the claims
procedure set forth in Section 14, the plan administrator and the Committee
shall have the duty and discretionary authority to interpret and construe the
provisions of the plan and to decide any dispute which may arise regarding the
rights of participants hereunder, including the discretionary authority to
construe the plan and to make determinations as to eligibility and benefits
under the plan. Determinations by the plan administrator and the Committee shall
apply uniformly to all persons similarly situated and shall be binding and
conclusive upon all interested persons.
8.10 THIRD PARTY ADVISORS: The Committee may engage an
attorney, accountant, actuary or any other technical advisor on matters
regarding the operation of the plan and to perform such other duties as shall be
required in connection therewith, and may employ such clerical and related
personnel as the Committee shall deem requisite or desirable in carrying out the
provisions of the plan. The Committee shall from time to time, but no less
frequently than annually, review the financial condition of the plan and
determine the financial and liquidity
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needs of the plan. The Committee shall communicate such needs to the Employer so
that its policies may be appropriately coordinated to meet such needs.
8.11 COMPENSATION OF MEMBERS: No fee or compensation shall be
paid to any member of the Committee for his service as such.
8.12 EXPENSE REIMBURSEMENT: The Committee shall be
entitled to reimbursement by the Employer for its reasonable expenses properly
and actually incurred in the performance of its duties in the administration of
the plan.
8.13 INDEMNIFICATION: No member of the Committee shall be
personally liable by reason of any contract or other instrument executed by him
or on his behalf as a member of the Committee nor for any mistake of judgment
made in good faith, and the Employer shall indemnify and hold harmless, directly
from its own assets (including the proceeds of any insurance policy the premiums
for which are paid from the Employer's own assets), each member of the Committee
and each other officer, employee, or director of the Employer to whom any duty
or power relating to the administration or interpretation of the plan may be
delegated or allocated, against any unreimbursed or uninsured cost or expense
(including any sum paid in settlement of a claim with the prior written approval
of the Board) arising out of any act or omission to act in connection with the
plan unless arising out of such person's own fraud, bad faith, willful
misconduct or gross negligence.
SECTION 9. NO TRUST:
The obligation of the Employer to make payments hereunder
shall constitute a contractual liability of the Employer to the participant.
Such payments shall be made from the general funds of the Employer. The Employer
may but shall not be required to establish or maintain any special or separate
fund, or otherwise to segregate assets to assure that such payments shall be
made, and the participant shall not have any interest in any particular assets
of the Employer by reason of its obligations hereunder. Nothing contained in
this plan shall create or be construed as creating a trust of any kind or any
other fiduciary relationship between the Employer and the participant or any
other person. To the extent that any person acquires a right
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to receive payment from the Employer, such right shall be no greater than the
right of an unsecured creditor of the Employer.
SECTION 10. BENEFITS NOT ASSIGNABLE; FACILITY OF PAYMENTS:
10.1 BENEFITS NOT ASSIGNABLE: No portion of any benefit
credited or paid under the plan with respect to any participant shall be subject
in any manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance or charge, and any attempt so to anticipate, alienate, sell,
transfer, assign, pledge, encumber or charge the same shall be void, nor shall
any portion of such benefit be in any manner payable to any assignee, receiver
or any one trustee, or be liable for his debts, contracts, liabilities,
engagements or torts.
10.2 PAYMENTS TO MINORS AND OTHERS: If any individual
entitled to receive a payment under the plan shall be physically, mentally or
legally incapable of receiving or acknowledging receipt of such payment, the
Committee, upon the receipt of satisfactory evidence of his incapacity and
satisfactory evidence that another person or institution is maintaining him and
that no guardian or committee has been appointed for him, may cause any payment
otherwise payable to him to be made to such person or institution so maintaining
him. Payment to such person or institution shall be in full satisfaction of all
claims by or through the participant to the extent of the amount thereof.
SECTION 11. BENEFICIARY:
The participant's beneficiary shall be the person or persons
designated by the participant on the beneficiary designation form provided by
and filed with the Committee or its designee. If the participant does not
designate a beneficiary, the beneficiary shall be his surviving spouse. If the
participant does not designate a beneficiary and has no surviving spouse, the
beneficiary shall be the participant's estate. The designation of a beneficiary
may be changed or revoked only by filing a new beneficiary designation form with
the Committee or its designee. If a beneficiary (the "primary beneficiary") is
receiving or is entitled to receive payments under the plan and dies before
receiving all of the payments due him, the balance to which he is entitled shall
be paid to the contingent beneficiary, if any, named in the participant's
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current beneficiary designation form. If there is no contingent beneficiary, the
balance shall be paid to the estate of the primary beneficiary. Any beneficiary
may disclaim all or any part of any benefit to which such beneficiary shall be
entitled hereunder by filing a written disclaimer with the Committee before
payment of such benefit is to be made. Such a disclaimer shall be made in form
satisfactory to the Committee and shall be irrevocable when filed. Any benefit
disclaimed shall be payable from the plan in the same manner as if the
beneficiary who filed the disclaimer had died on the date of such filing.
SECTION 12. AMENDMENT AND TERMINATION OF PLAN:
The Committee may amend any provision of the plan or terminate
the plan at any time; provided, that in no event shall such amendment or
termination reduce any participant's benefit as of the date of such amendment or
termination without such participant's written consent, nor shall any such
amendment or termination affect the terms of the plan relating to the payment of
such benefit.
SECTION 13. COMMUNICATION TO PARTICIPANTS:
The Employer shall make a copy of the plan available for
inspection by participants and their beneficiaries during reasonable hours at
the principal office of the Employer.
SECTION 14. CLAIMS PROCEDURE:
The following claims procedure shall apply with respect to the
plan:
14.1 FILING OF A CLAIM FOR BENEFITS: If a participant or
beneficiary (the "claimant") believes that he is entitled to benefits under the
plan which are not being paid to him or which are not being accrued for his
benefit, he shall file a written claim therefor with the plan administrator. In
the event the plan administrator shall be the claimant, all actions which are
required to be taken by the plan administrator pursuant to this Section 14 shall
be taken instead by another member of the Committee designated by the Committee.
14.2 NOTIFICATION TO CLAIMANT OF DECISION: Within 90 days
after receipt of a claim by the plan administrator (or within 180 days if
special circumstances require an extension of time), the plan administrator
shall notify the claimant of his decision with regard to the claim.
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In the event of such special circumstances requiring an extension of time, there
shall be furnished to the claimant prior to expiration of the initial 90-day
period written notice of the extension, which notice shall set forth the special
circumstances and the date by which the decision shall be furnished. If such
claim shall be wholly or partially denied, notice thereof shall be in writing
and worded in a manner calculated to be understood by the claimant, and shall
set forth: (i) the specific reason or reasons for the denial; (ii) specific
reference to pertinent provisions of the plan on which the denial is based;
(iii) a description of any additional material or information necessary for the
claimant to perfect the claim and an explanation of why such material or
information is necessary; and (iv) an explanation of the procedure for review of
the denial. If the plan administrator fails to notify the claimant of the
decision in timely manner, the claim shall be deemed denied as of the close of
the initial 90-day period (or the close of the extension period, if applicable).
14.3 PROCEDURE FOR REVIEW: Within 60 days following
receipt by the claimant of notice denying his claim, in whole or in part, or, if
such notice shall not be given, within 60 days following the latest date on
which such notice could have been timely given, the claimant shall appeal denial
of the claim by filing a written application for review with the Committee.
Following such request for review, the Committee shall fully and fairly review
the decision denying the claim. Prior to the decision of the Committee, the
claimant shall be given an opportunity to review pertinent documents and to
submit issues and comments in writing.
14.4 DECISION ON REVIEW: The decision on review of a claim
denied in whole or in part by the plan administrator shall be made in the
following manner:
14.4.1 Within 60 days following receipt by
the Committee of the request for review (or within 120 days if
special circumstances require an extension of time), the
Committee shall notify the claimant in writing of its decision
with regard to the claim. In the event of such special
circumstances requiring an extension of time, written notice
of the extension shall be furnished to the claimant prior to
the commencement of the extension. If the decision on review
is not furnished in a timely manner, the claim shall be deemed
denied as of the close of the initial 60-day period (or the
close of the extension period, if applicable).
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14.4.2 With respect to a claim that is
denied in whole or in part, the decision on review shall set
forth specific reasons for the decision, shall be written in a
manner calculated to be understood by the claimant, and shall
cite specific references to the pertinent plan provisions on
which the decision is based.
14.4.3 The decision of the Committee shall
be final and conclusive.
14.5 ACTION BY AUTHORIZED REPRESENTATIVE OF CLAIMANT: All
actions set forth in this Section 14 to be taken by the claimant may likewise be
taken by a representative of the claimant duly authorized by him to act in his
behalf on such matters. The plan administrator and the Committee may require
such evidence as either may reasonably deem necessary or advisable of the
authority to act of any such representative.
SECTION 15. MISCELLANEOUS PROVISIONS:
15.1 SET OFF: Notwithstanding any other provision of this
plan, the Employer may reduce the amount of any payment otherwise payable to or
in behalf of a participant hereunder by the amount of any loan, cash advance,
extension of credit or other obligation of the participant to the Employer that
is then due and payable, and the participant shall be deemed to have consented
to such reduction.
15.2 NOTICES: Each participant who is not in service and
each beneficiary shall be responsible for furnishing the Committee or its
designee with his current address for the mailing of notices and benefit
payments. Any notice required or permitted to be given to such participant or
beneficiary shall be deemed given if directed to such address and mailed by
regular United States mail, first class, postage prepaid. If any check mailed to
such address is returned as undeliverable to the addressee, mailing of checks
will be suspended until the participant or beneficiary furnishes the proper
address. This provision shall not be construed as requiring the mailing of any
notice or notification otherwise permitted to be given by posting or by other
publication.
15.3 LOST DISTRIBUTEES: A benefit shall be deemed
forfeited if the plan administrator is unable to locate the participant or
beneficiary to whom payment is due on or before the fifth anniversary of the
date payment is to be made or commence; provided, that the
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adjustment rate shall cease to be applied to the participant's accounts
following the first anniversary of such date; provided further, however, that
such benefit shall be reinstated if a valid claim is made by or on behalf of the
participant or beneficiary for all or part of the forfeited benefit.
15.4 RELIANCE ON DATA: The Employer, the Committee and the
plan administrator shall have the right to rely on any data provided by the
participant or by any beneficiary. Representations of such data shall be binding
upon any party seeking to claim a benefit through a participant, and the
Employer, the Committee and the plan administrator shall have no obligation to
inquire into the accuracy of any representation made at any time by a
participant or beneficiary.
15.5 RECEIPT AND RELEASE FOR PAYMENTS: Subject to the
provisions of Section 15.1, any payment made from the plan to or with respect to
any participant or beneficiary, or pursuant to a disclaimer by a beneficiary,
shall, to the extent thereof, be in full satisfaction of all claims hereunder
against the plan and the Employer with respect to the plan. The recipient of any
payment from the plan may be required by the Committee, as a condition precedent
to such payment, to execute a receipt and release with respect thereto in such
form as shall be acceptable to the Committee.
15.6 HEADINGS: The headings and subheadings of the plan
have been inserted for convenience of reference and are to be ignored in any
construction of the provisions hereof.
15.7 CONTINUATION OF EMPLOYMENT: The establishment of the
plan shall not be construed as conferring any legal or other rights upon any
employee or any persons for continuation of employment, nor shall it interfere
with the right of the Employer to discharge any employee or to deal with him
without regard to the effect thereof under the plan.
15.8 MERGER OR CONSOLIDATION: The Employer shall not
consolidate or merge into or with another corporation or entity, or transfer all
or substantially all of its assets to another corporation, partnership, trust or
other entity (a "Successor Entity") unless such Successor Entity shall assume
the rights, obligations and liabilities of the employer-party under
- 24 -
the plan and upon such assumption, the Successor Entity shall become obligated
to perform the terms and conditions of the plan.
15.9 COMPLIANCE WITH SECURITIES LAWS: Transactions under
the plan are intended to be structured in accordance with the federal securities
laws, and the allocation and distribution of benefits pursuant to the plan shall
be subject to, and conditional upon compliance with, all applicable securities
laws, rules and regulations. Notwithstanding any other provision of the plan,
the Committee shall have the authority to establish such rules or bylaws as it
deems necessary to ensure that transactions under the plan by persons subject to
Section 16 of the 1934 Act comply with Rule 16b-3 of the 1934 Act (or any
successor rule).
15.10 CONSTRUCTION: The provisions of the plan shall be
construed and enforced according to the laws of the State of North Carolina
except to the extent that such laws are superseded by ERISA.
IN WITNESS WHEREOF, this nonqualified deferred compensation plan is
executed in behalf of the Employer as of the ____ day of ____________, 1999.
WACHOVIA CORPORATION
By: ________________________________
Chief Executive Officer
Attest:
________________________________
Secretary
[Corporate Seal]
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