SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------
WACHOVIA CORPORATION
(Exact name of registrant as specified in its charter)
NORTH CAROLINA 56-1473727
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
100 NORTH MAIN STREET, P.O. BOX 3099, WINSTON-SALEM, NORTH CAROLINA 27150
191 PEACHTREE STREET, N.E., P.O. BOX 4148, ATLANTA, GEORGIA 30303
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(Address of principal executive offices, including zip code)
RETIREMENT SAVINGS AND PROFIT-SHARING PLAN
OF WACHOVIA CORPORATION
------------------------------------------
(Full title of the plan)
----------------
Kenneth W. McAllister
Senior Executive Vice President and General Counsel
Wachovia Corporation
100 North Main Street
Post Office Box 3099
Winston-Salem, North Carolina 27150
(336) 732-5141
---------------------------------------------------------
(Name, address and telephone number, including area code,
of agent for service)
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CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE OFFERING REGISTRATION
REGISTERED (1) REGISTERED PER SHARE (2) PRICE (2) FEE (2)
- -------------- ----------- ------------- ------------- -----------------
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Common
Stock, par value
$5.00 per share 10,000,000 shares $80.40625 $804,062,500 $223,529.38
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
as amended, this registration statement also covers an indeterminate
amount of plan interests to be offered or sold pursuant to the
Retirement Savings and Profit-Sharing Plan of Wachovia Corporation.
(2) Pursuant to Rule 457(c) and (h)(1), based on the average of the high
and low prices of the registrant's common stock on July 21, 1999, as
reported on the New York Stock Exchange.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Wachovia Corporation (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the year
ended December 31, 1998, filed on March 29, 1999 pursuant to Section 13
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the Annual Report on Form 11-K of the Retirement Savings and
Profit-Sharing Plan of Wachovia Corporation (the "Plan") for the fiscal
year ended December 31, 1998, filed with the Commission on June 29,
1999;
(b) The Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1999, filed with the Commission on May 13,
1999;
(c) The Company's Current Reports on Form 8-K, filed with the
Commission on January 21, 1999 and May 14, 1999;
(d) The description of the Company's Common Stock, par value
$5.00 per share, contained in the Company's Registration Statement on
Form 8-B filed pursuant to Section 12(b) of the Exchange Act, including
any amendment or report filed for the purpose of updating such
description; and
(e) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year referred to in
(a), above.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
the filing of such documents.
Pursuant to General Instruction E to Form S-8, the contents of
Registration Statement No. 33-54094 on Form S-8 are incorporated by reference in
this Registration Statement on Form S-8.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the securities offered hereby has been passed
upon by William M. Watson, Jr., Esquire, Senior Vice President, Corporate
Secretary and Counsel of the Company, who owns approximately 5,300 shares of
Common Stock and has been granted options to purchase 11,600 shares of Common
Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 55-8-50 through 55-8-58 of the North Carolina
Business Corporation Act contain specific provisions relating to indemnification
of directors and officers of North Carolina corporations. In general, the
statutes provide that (i) a corporation must indemnify a director or officer who
is wholly successful in his defense of a proceeding to which he is a party
because of his status as such, unless limited by the articles of incorporation,
and (ii) a corporation may indemnify a director or officer if he is not wholly
successful in such defense, if it is determined as provided by statute that the
director or officer meets certain standards of conduct, provided when a director
or officer is liable to the corporation or is adjudged liable on the basis that
personal benefit was improperly received by him, the corporation may not
indemnify him. A director or officer of a corporation who is a party to a
proceeding may also apply to the courts for indemnification, unless the articles
of incorporation provide otherwise, and the court may order
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indemnification under certain circumstances set forth in the statute. A
corporation may, in its articles of incorporation or bylaws or by contract or
resolution, provide indemnification in addition to that provided by statute,
subject to certain conditions.
The Company's bylaws provide for the indemnification of any
director or officer of the Company or any wholly owned subsidiary of the Company
against liabilities and litigation expenses arising out of his status as such,
excluding (i) that portion of any liabilities or litigation expenses with
respect to which such person is entitled to receive payment under any insurance
policy other than a directors' and officers' insurance policy maintained by the
Company or (ii) any liabilities or litigation expenses incurred on account of
any of such person's activities which were at the time taken known or believed
by such person to be clearly in conflict with the best interests of the Company.
The Company's articles of incorporation provide for the
elimination of the personal liability of each director of the Company to the
fullest extent permitted by law.
The Company has purchased a standard liability policy, which,
subject to any limitations set forth in the policy, would pay on behalf of the
Company's directors and officers for damages that they become legally obligated
to pay as a result of any actual or alleged act, error, omission, misstatement,
misleading statement or breach of duty committed while acting in their official
capacity or any matter asserted against an officer or director solely by reason
of his status as an officer or director.
ITEM 8. EXHIBITS.
The following exhibits are filed as a part of this
Registration Statement:
NUMBER DESCRIPTION
4.1 Amended and Restated Articles of Incorporation of the
Company, which are incorporated by reference to
Exhibit 3.1 to the Company's Annual Report on Form
10-K for the year ended December 31, 1993 (File No.
1-9021)
4.2 Bylaws of the Company, which are incorporated by
reference to Exhibit 3.2 of the Company's
Registration Statement on Form S-4 filed December 14,
1998 (File No. 333-68823)
5 Opinion of William M. Watson, Jr., Esq., as to the
legality of the Common Stock being registered
23.1 Consent of William M. Watson, Jr., Esq., which is
contained in his opinion filed as Exhibit 5
23.2 Consent of Ernst & Young LLP
23.3 Consent of KPMG LLP
24 Power of Attorney
99 Form of Retirement Savings and Profit-Sharing Plan of
Wachovia Corporation
The Company hereby undertakes that the Company will submit or
has submitted the Plan and any amendment thereto to the Internal Revenue Service
(the "IRS") in a timely manner and has made or will make all changes required by
the IRS in order to qualify the Plan.
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SIGNATURES
THE REGISTRANT
Pursuant to the requirements of the Securities Act of 1933,
Wachovia Corporation certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Winston-Salem, State of North Carolina, on this
23rd day of July, 1999.
WACHOVIA CORPORATION
By: /s/ Leslie M. Baker, Jr.
-------------------------------------------------
Leslie M. Baker, Jr.
Chairman of the Board and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities indicated on July 23, 1999.
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Leslie M. Baker, Jr.* James S. Balloun*
- ----------------------------------------- ----------------------------------------
Name: Leslie M. Baker, Jr. Name: James S. Balloun
Title: Chairman of the Board Title: Director
and Chief Executive Officer
(principal executive officer)
Peter C. Browning* John T. Casteen III*
- ----------------------------------------- ----------------------------------------
Name: Peter C. Browning Name: John T. Casteen III
Title: Director Title: Director
John L. Clendenin* Thomas K. Hearn, Jr.*
- ----------------------------------------- ----------------------------------------
Name: John L. Clendenin Name: Thomas K. Hearn, Jr.
Title: Director Title: Director
George W. Henderson III* W. Hayne Hipp*
- ----------------------------------------- ----------------------------------------
Name: George W. Henderson III Name: W. Hayne Hipp
Title: Director Title: Director
Robert A. Ingram* George R. Lewis*
- ----------------------------------------- ----------------------------------------
Name: Robert A. Ingram Name: George R. Lewis
Title: Director Title: Director
Elizabeth Valk Long*
- ----------------------------------------- ----------------------------------------
Name: Elizabeth Valk Long Name: John G. Medlin, Jr.
Title: Director Title: Director
Lloyd U. Noland, III* G. Joseph Prendergast*
- ----------------------------------------- ----------------------------------------
Name: Lloyd U. Noland, III Name: G. Joseph Prendergast
Title: Director Title: Director
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Sherwood H. Smith, Jr.* John C. Whitaker, Jr.*
- ----------------------------------------- ----------------------------------------------
Name: Sherwood H. Smith, Jr. Name: John C. Whitaker, Jr.
Title: Director Title: Director
/s/ Robert S. McCoy, Jr. /s/ Donald K. Truslow
- ---------------------------------------- ----------------------------------------------
Name: Robert S. McCoy, Jr. Name: Donald K. Truslow
Title: Vice Chairman and Title: Senior Executive Vice President,
Chief Financial Officer Treasurer and Comptroller
(principal financial officer) (principal accounting officer)
* By: /s/ William M. Watson, Jr.
- -----------------------------------------
Name: William M. Watson, Jr.
Attorney-in-Fact
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THE PLAN
Pursuant to the requirements of the Securities Act of 1933,
the Trustee has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of
Winston-Salem, State of North Carolina, on this 23rd day of July, 1999.
RETIREMENT SAVINGS PLAN AND PROFIT-SHARING PLAN OF
WACHOVIA CORPORATION
By: Wachovia Bank, N.A.
as Trustee
By: /s/ G. Joseph Prendergast
------------------------------
G. Joseph Prendergast
President
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EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8 OF
WACHOVIA CORPORATION
EXHIBIT NO. DESCRIPTION
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4.1 Amended and Restated Articles of Incorporation of the Company, which are incorporated by
reference to Exhibit 3.1 to the Company's Annual Report on Form 10-K for the year ended
December 31, 1993 (File No. 1-9021)*
4.2 Bylaws of the Company, which are incorporated by reference to Exhibit 3.2 of the Company's
Registration Statement on Form S-4 filed December 14, 1998 (File No. 333-68823)*
5 Opinion of William M. Watson, Jr., Esq., as to the legality of the Common Stock being registered
23.1 Consent of William M. Watson, Jr., Esq., which is contained in his opinion filed as Exhibit 5
23.2 Consent of Ernst & Young LLP
23.3 Consent of KPMG LLP
24 Power of Attorney
99 Form of Retirement Savings and Profit-Sharing Plan of Wachovia Corporation
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* Incorporated by reference.
EXHIBIT 5
July 23, 1999
Wachovia Corporation
100 North Main Street
Post Office Box 3099
Winston-Salem, North Carolina 27150
Re: Registration Statement on Form S-8 Relating to
Retirement Savings and Profit-Sharing Plan of Wachovia Corporation
Ladies and Gentlemen:
I am familiar with the proceedings taken by Wachovia
Corporation (the "Company") in connection with the preparation and filing with
the Securities and Exchange Commission (the "Commission") of a Registration
Statement on Form S-8 under the Securities Act of 1933, as amended, pertaining
to the offer and sale of up to 10,000,000 shares of the Company's Common Stock,
par value $5.00 per share (the "Shares"), and an indeterminate number of plan
interests pursuant to the terms of the Retirement Savings and Profit-Sharing
Plan of Wachovia Corporation, as amended (the "Plan").
As counsel for the Company, the Plan and the Registration
Statement have been reviewed under my direction, and I have examined and am
familiar with the records relating to the organization of the Company, including
its articles of incorporation, bylaws and all amendments thereto, and the
records of all proceedings taken by the Board of Directors of the Company
pertinent to the rendering of this opinion.
Based on the foregoing, and having regard for such legal
considerations as I have deemed relevant, I am of the opinion that the Shares
have been duly authorized and, upon issuance of the Shares and receipt by the
Company of the consideration therefor in accordance with the terms of the
Plan, the Shares will be validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion with the
Commission as Exhibit 5 to the Registration Statement. In giving this consent, I
do not admit that I am within the category of persons whose consent is required
by Section 7 of the Securities Act, or other rules and regulations of the
Commission thereunder.
Sincerely,
/s/ William M. Watson, Jr.
Senior Vice President, Counsel and
Corporate Secretary
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the
Registration Statement (Form S-8), pertaining to the Retirement Savings and
Profit-Sharing Plan of Wachovia Corporation, of our report dated January 14,
1999, with respect to the consolidated financial statements of Wachovia
Corporation incorporated by reference in its Annual Report (Form 10-K) for the
year ended December 31, 1998, filed with the Securities and Exchange Commission.
Ernst & Young LLP
Winston-Salem, North Carolina
July 21, 1999
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Wachovia Corporation:
We consent to the use of our reports with respect to Central Fidelity National
Bank and Central Fidelity Banks, Inc. incorporated herein by reference.
KPMG LLP
Richmond, Virginia
July 21, 1999
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
We, the undersigned directors of Wachovia Corporation, and each of us,
do hereby make, constitute and appoint Kenneth W. McAllister and William M.
Watson, Jr., and each of them (either of whom may act without the consent or
joinder of the other), our attorneys-in-fact and agents with full power of
substitution for us and in our name, place and stead, in any and all capacities,
to execute for us and in our behalf the Registration Statement under the
Securities Act of 1933 on Form S-8 for the Wachovia Corporation Retirement
Savings and Profit-Sharing Plan and any post-effective amendments thereto, and
to file the same, with all exhibits thereto and all documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as we might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents and/or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, we the undersigned have executed this Power of
Attorney this 23rd day July 1999.
/s/ L. M. Baker Jr. /s/ James S. Balloun
- ----------------------------- ----------------------------
L. M. Baker, Jr. James S. Balloun
/s/ Peter C. Browning /s/ John T. Casteen, III
- ----------------------------- ----------------------------
Peter C. Browning John T. Casteen, III
/s/ John. L. Clendenin /s/ Thomas K. Hearn, Jr.
- ----------------------------- ----------------------------
John L. Clendenin Thomas K. Hearn, Jr.
/s/ George W. Henderson, III /s/ W. Hayne Hipp
- ----------------------------- ----------------------------
George W. Henderson, III W. Hayne Hipp
/s/ Robert A. Ingram /s/ George R. Lewis
- ----------------------------- ----------------------------
Robert A. Ingram George R. Lewis
/s/ Elizabeth Valk Long
- ----------------------------- ----------------------------
Elizabeth Valk Long John G. Medlin, Jr.
/s/ Lloyd U. Noland, III /s/ G. Joseph Prendergast
- ----------------------------- ----------------------------
Lloyd U. Noland, III G. Joseph Prendergast
/s/ Sherwood H. Smith, Jr. /s/ John C. Whitaker, Jr.
- ----------------------------- ----------------------------
Sherwood H. Smith, Jr. John C. Whitaker, Jr.
EXHIBIT 99
RETIREMENT SAVINGS AND PROFIT-SHARING PLAN
OF
WACHOVIA CORPORATION
EFFECTIVE DATE: JANUARY 1, 1999
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TABLE OF CONTENTS
RETIREMENT SAVINGS AND PROFIT-SHARING PLAN OF
WACHOVIA CORPORATION
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Page
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Section 1. Definitions ......................................................................... 1
Section 2. Contributions to the Trust and Allocation Thereof ...................................10
2.1 Elective Contributions ..............................................................10
2.2 Participant Contributions ...........................................................14
2.3 Supplemental Contributions ..........................................................17
2.4 General Limitations .................................................................19
Section 3. Vesting .............................................................................19
Section 4. Withdrawals; Distributions ..........................................................20
4.1 Voluntary Withdrawals ...............................................................20
4.2 Hardship Distributions ..............................................................20
4.3 Distributions After Age 59 1/2 ......................................................22
4.4 Distribution Requirements ...........................................................22
4.5 Other Termination of Service ........................................................30
4.6 Loans ...............................................................................31
Section 5. Adjustment of Accounts ..............................................................33
Section 6. Participant Direction of Investments ................................................33
6.1 Participant Directed Investments ....................................................33
6.2 General .............................................................................35
6.3 Loan Accounts .......................................................................35
Section 7. Administration by Committee .........................................................36
7.1 Membership of Committee .............................................................36
7.2 Committee Officers; Subcommittee ....................................................36
7.3 Committee Meetings ..................................................................36
7.4 Transaction of Business .............................................................36
7.5 Committee Records ...................................................................37
7.6 Establishment of Rules 37
7.7 Conflicts of Interest ...............................................................37
7.8 Correction of Errors ................................................................37
7.9 Authority to Interpret Plan .........................................................37
7.10 Third Party Advisor .................................................................38
7.11 Compensation of Members .............................................................38
7.12 Committee Expenses ..................................................................38
7.13 Indemnification of Committee ........................................................38
Section 8. Management of Funds and Amendment of Plan ...........................................39
8.1 Fiduciary Duties ....................................................................39
8.2 Trust Agreement .....................................................................40
8.3 Authority to Amend ..................................................................40
8.4 Requirements of Writing .............................................................41
Section 9. Allocation of Responsibilities Among Named Fiduciaries ..............................41
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9.1 Duties of Named Fiduciaries .........................................................41
9.2 Co-fiduciary Liability ..............................................................42
Section 10. Benefits Not Assignable .............................................................42
Section 11. Termination of Plan and Trust; Merger or Consolidation of Plan ......................43
11.1 Complete Termination ................................................................43
11.2 Partial Termination .................................................................44
11.3 Merger or Consolidation .............................................................44
11.4 Protection of Benefits ..............................................................45
Section 12. Communication to Employees ..........................................................45
Section 13. Claims Procedure ....................................................................45
13.1 Filing of a Claim for Benefits ......................................................45
13.2 Notification to Claimant of Decision ................................................45
13.3 Procedure for Review ................................................................46
13.4 Decision on Review ..................................................................46
13.5 Action by Authorized Representative of Claimant .....................................47
Section 14. Portability of Participant Accounts .................................................47
14.1 Definitions .........................................................................47
14.2 Construction ........................................................................48
Section 15. Rollovers ...........................................................................48
15.1 Timing ..............................................................................48
15.2 Eligibility .........................................................................48
15.3 Maximum Amount ......................................................................49
15.4 Accounting ..........................................................................49
15.5 Transfers Prior to Becoming a Participant ...........................................49
Section 16. Special Top-Heavy Provisions ........................................................49
16.1 Definitions .........................................................................49
16.2 Top-Heavy Requirements ..............................................................52
Section 17. Limitations on Allocations ..........................................................52
17.1 Limitations .........................................................................52
17.2 Adjustments .........................................................................53
17.3 Participation in this Plan and a Defined Benefit Plan ...............................54
17.4 Definitions .........................................................................56
Section 18. Parties to the Plan .................................................................58
18.1 Application of Plan and Trust Agreement .............................................59
18.2 Service with an Employer-party ......................................................59
18.3 Contributions .......................................................................59
18.4 Authority of Board ..................................................................60
18.5 Merger with North Georgia Bank ......................................................60
18.6 Acquisition of North Wilkesboro Federal Savings and Loan Association ................60
18.7 Merger of First Bank & Trust Company ................................................60
18.8 Acquisition of Great Southern Federal Savings and Loan Association ..................62
18.9 Sale of Wachovia Student Financial Services, Inc. ...................................62
18.10 Merger with The First National Bank of Henry County .................................63
18.11 Acquisition of Macro*World Research Corporation .....................................63
18.12 Acquisition of Hunt, DuPree, Rhine & Associates, Inc. ...............................63
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Section 19. Special Provisions Applicable to Participants in the Savings Incentive Plan
of First Atlanta Corporation ........................................................64
Section 20. Special Provisions Applicable to Participants in the South Carolina National
Corporation Amended and Restated Savings, Thrift and Deferred Cash Plan .............66
Section 21. Special Provisions Relating to the Merger of the Wachovia Bank of
Georgia, N.A. Employee Stock Ownership Plan .........................................68
Section 22. Special Provisions Applicable to Participants in the Jefferson Bankshares, Inc.
Profit Sharing Plan .................................................................68
Section 23. Special Provisions Applicable to Participants in the Central Fidelity Banks, Inc.
Stock and Thrift Plan ...............................................................70
Section 24. Special Provisions Applicable to Participants in the 1st United Bank Savings
and Profit Sharing Plan .............................................................72
Section 25. Special Provisions Applicable to Participants in the American Bank of
Hollywood Employee Retirement Savings Plan ..........................................74
Section 26. Compliance with the Uniformed Services Employment and Reemployment
Rights Act of 1994 ..................................................................75
Section 27. Miscellaneous Provisions ............................................................77
27.1 Notices .............................................................................77
27.2 Lost Distributees ...................................................................77
27.3 Reliance on Data ....................................................................77
27.4 Bonding .............................................................................77
27.5 Receipt and Release for Payments ....................................................78
27.6 No Guarantee ........................................................................78
27.7 Headings ............................................................................78
27.8 Continuation of Employment ..........................................................78
27.9 Construction ........................................................................78
27.10 Compliance with Securities Laws .....................................................79
27.11 Effect of Divestitures ..............................................................79
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RETIREMENT SAVINGS AND PROFIT-SHARING PLAN
OF
WACHOVIA CORPORATION*
Section 1. Definitions:
As used in the plan, including this Section 1, and in the
trust agreement which is a part of the plan, references to one gender shall
include the other and, unless otherwise indicated by the context:
1.1 "Account" means the aggregate of the separate accounts
maintained by the Committee with respect to each participant. The separate
accounts so maintained shall include the following:
1.1.1 "Elective contributions account" means the subaccount of
the participant that is credited with elective contributions as
provided in Section 2.1.
1.1.2 "Participant contributions account" means the subaccount
of the participant that is credited with participant contributions as
provided in Section 2.2.
1.1.3 "Supplemental contributions account" means the
subaccount of the participant that is credited with Company
contributions which are made in cash as provided in Section 2.3.
1.1.4 "Rollover account" means the subaccount of the
participant that is credited with rollover contributions as provided in
Section 15.
1.2 "Accrued benefit" means with respect to each participant
the balance in his account as of the applicable adjustment date following
adjustment thereof as provided in Section 5.
1.3 "Active participant" means a participant for whom, as of
the last day of the plan year, a salary reduction agreement for elective
contributions as provided in Section 2.1 is in effect or who is making
participant contributions to the plan as provided in Section 2.2.
- ---------------
* NOTE: This plan amends and supersedes as of January 1, 1999, the Retirement
Savings and Profit-Sharing Plan of Wachovia Corporation (such plan, as
previously amended, is referred to herein as the "predecessor plan") which was
last amended and restated effective January 1, 1994. Reference is made to the
Retirement Savings and Profit-Sharing Plan Trust Agreement of Wachovia
Corporation, of even date herewith, which is a part of the plan.
<PAGE>
1.4 "Adjustment date" means each day securities are traded on
a national stock exchange. The last day of December is sometimes referred to as
the "year-end adjustment date."
1.5 "Affiliated employer" means: (i) any corporation that is a
member of a controlled group of corporations (as defined in Section 414(b) of
the Code) which includes the Company; (ii) any trade or business (whether or not
incorporated) that is under common control (as defined in Section 414(c) of the
Code) with the Company; (iii) any organization (whether or not incorporated)
that is a member of an affiliated service group (as defined in Section 414(m) of
the Code) which includes the Company; and (iv) any other entity required to be
aggregated with the Company pursuant to Section 414(o) of the Code.
1.6 "Board" means the Board of Directors of the Company, or
the Management Resources and Compensation Committee of such Board when acting
for the Board.
1.7 "Code" means the Internal Revenue Code of 1986, as
amended, and rules and regulations issued thereunder.
1.8 "Committee" means the administrative Committee provided
for in Section 7.
1.9 "Company" means Wachovia Corporation, a North Carolina
corporation with its principal office at Winston-Salem, North Carolina, or any
affiliated employer that agrees to become a party to the plan.
1.10 "Compensation" means for any participant for any plan
year his base salary or wages paid by the Company, excluding bonuses, overtime
pay, fees, any amount paid as an allowance or reimbursement for travel or
relocation expenses, payment of deferred compensation, payments or benefits
under a stock option or restricted stock plan, amounts paid in a lump sum for
accrued but unused vacation, the cost or value of any benefit programs
(including but not limited to group insurance, disability, hospitalization, sick
or similar benefits), the cost of benefits under the plan, the value of job
perquisites treated as income, or any other payment or benefit not customarily
2
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regarded by the Company as being included in base salary or wages for services,
but including any amounts contributed by the Company pursuant to a salary
reduction agreement which are not includible in the gross income of the
participant under Section 125, 402(e)(3), 402(h) or 403(b) of the Code, if any.
Notwithstanding the foregoing, the following special provisions shall apply: (a)
with respect to an employee who is a mortgage loan originator, on-call
originator and affordable housing loan originator, compensation shall include
closed loan bonuses and related amounts paid to the employee, subject to a
maximum annual compensation of $80,000; (b) with respect to an employee who is a
mortgage sales officer or mortgage sales officer hybrid, compensation shall
include the draw plus commissions and bonuses paid to the employee, subject to a
maximum annual compensation of $80,000; and (c) with respect to an employee who
is a mortgage sales manager, compensation shall include override and bonuses
paid to the employee subject to a maximum annual compensation of $80,000. For
plan years beginning on and after January 1, 1994, in addition to other
applicable limitations set forth in the plan, and notwithstanding any other
provision of the plan to the contrary, the annual compensation of each employee
taken into account under the plan shall not exceed $150,000, as adjusted by the
Commissioner for increases in the cost of living in accordance with Section
401(a)(17)(B) of the Code (the "annual compensation limitation"). The
cost-of-living adjustment in effect for a calendar year applies to any period,
not exceeding 12 months, over which compensation is determined (the
"determination period") beginning in such calendar year. If a determination
period consists of fewer than 12 months, the annual compensation limitation
shall be multiplied by a fraction, the numerator of which is the number of
months in the determination period, and the denominator of which is 12.
1.11 "Contribution percentage" with respect to a participant
for a plan year means the ratio (expressed as a percentage and calculated to the
nearest hundredth of a percentage point) of: (i) the participant contributions
made to the trust under the plan on his behalf for the plan year other
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than participant contributions distributed to the participant pursuant to the
provisions of Section 17.2(i); to (ii) his testing compensation for that portion
of the plan year during which he was a participant. The contribution percentage
for a specified group of participants for a plan year shall be the average
(expressed as a percentage and calculated to the nearest hundredth of a
percentage point) of the contribution percentages calculated separately for each
participant in such group. The determination and treatment of the contribution
percentage of any participant shall satisfy such other requirements as may be
prescribed by the Secretary of the Treasury. The provisions of this Section 1.11
are effective for plan years beginning on and after January 1, 1997.
1.12 "Effective date" of the plan as amended and restated is
January 1, 1999. However, certain provisions of the plan shall have an earlier
effective date as specified in the plan in order to comply with amendments to
the Code taking effect prior to January 1, 1999.
1.13 "Elective contributions" means the contributions
described in Section 2.1 which are made to the plan by the Company on behalf of
a participant who has elected to defer a portion of his compensation.
1.14 "Elective deferral" or "elective deferrals" means, with
respect to any taxable year of a participant, the sum of:
(a) Any employer contribution under a qualified cash or
deferred arrangement (as defined in Section 401(k) of the Code) to the
extent not includible in the participant's gross income for the taxable
year under Section 402(e)(3) of the Code, including an elective
contribution under Section 2.1 of the plan;
(b) Any employer contribution under a simplified employee
pension plan (as defined in Section 408(k) of the Code) to the extent
not includible in the participant's gross income for the taxable year
under Section 402(h)(1)(B) of the Code;
(c) Any employer contribution made on behalf of the
participant to purchase an annuity contract under Section 403(b) of the
Code pursuant to a salary reduction agreement (within the meaning of
Section 3121(a)(5)(D) of the Code); and
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(d) Any elective employer contribution made on behalf of a
participant under Section 408(p)(2)(A)(i) of the Code.
Notwithstanding any provisions of this plan to the contrary, the elective
deferrals of any participant for any taxable year of the participant made under
this plan, and any other qualified plan maintained by the Company, shall not in
the aggregate exceed $7,000 (or such greater amount as may be permitted under
Section 402(g)(4), (5) or (8) of the Code). See Section 2.1.1 of the plan
permitting distribution of excess elective deferrals.
1.15 "Eligible employee" means each employee except the
following:
(a) An employee included in a unit of employees covered by a
bona fide collective bargaining agreement with the Company that does
not specifically provide for coverage of the employee under this plan;
provided, that retirement benefits were the subject of good faith
bargaining between the Company and employee representatives.
(b) An employee who is a nonresident alien and receives no
earned income (within the meaning of Section 911(d)(2) of the Code)
from the Company constituting income from sources within the United
States (within the meaning of Section 861(a)(3) of the Code).
(c) An individual who is deemed to be an employee solely
because he is a leased employee.
(d) An employee who is employed by an affiliated employer
which is not a party to the plan.
(e) An employee of Great Southern Federal Savings and Loan
Association (the "Association") who on June 22, 1990, became a
temporary contract employee of the Atlanta Bank following the
acquisition of the Association (a "contract employee"), as described in
Section 18.8, during his period of service as a contract employee.
(f) An employee of Central Fidelity Banks, Inc. ("Central
Fidelity") who on December 31, 1997, became a temporary contract
employee of the Company following the acquisition of Central Fidelity
(a "contract employee"), as described in Section 23, during his period
of service as a contract employee.
See Section 1.25 for provisions governing participation in the plan by an
eligible employee.
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1.16 "Employee" means, except as otherwise provided herein, an
individual in the service of the Company if the relationship between him and the
Company is the legal relationship of employer and employee. In determining who
is an employee for purposes of the plan, the following provisions shall apply:
1.16.1 All employees of an affiliated employer shall be
treated as employees of the Company.
1.16.2 All leased employees shall be treated as employees of
the Company.
See Sections 1.15 and 1.25 for provisions governing eligibility of an employee
to become a participant in the plan.
1.17 "Entry date" means the first day of each calendar month.
1.18 "ERISA" means the Employee Retirement Income Security Act
of 1974, as amended (including amendments of the Code affected thereby), and
rules and regulations issued thereunder.
1.19 "Excess aggregate contributions" means with respect to
any plan year the excess of:
(a) The aggregate amount of participant contributions actually
made to the trust on behalf of highly compensated participants for such
plan year; over
(b) The maximum amount of such contributions permitted under
the limitations described in Section 2.2.4.
1.20 "Excess elective deferral" for any taxable year of a
participant means the amount of the elective deferral on behalf of a participant
for any taxable year of such participant in excess of $7,000 (or such greater
amount as may be permitted pursuant to the provisions of Sections 402(g)(4), (5)
and (8) of the Code). Excess elective deferral also shall refer to the specific
amount of elective deferrals for the taxable year of the participant which the
participant allocates to this plan pursuant to the provisions of Section 2.1.1.
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1.21 "Highly compensated participant" means any participant
who is a highly compensated employee. Effective for plan years beginning on and
after January 1, 1997, "highly compensated employee" means any employee:
(a) During the plan year or preceding plan year was at any
time a 5 percent owner (as defined in Section 416(i)(l)(B) of the
Code); or
(b) During the preceding plan year received statutory
compensation from the Company and affiliated employers in excess of
$80,000 (as adjusted pursuant to Section 414(q)(1) of the Code) and was
in the top-paid group of employees for such preceding plan year.
For purposes of this Section 1.21, the following provisions shall
apply:
1.21.1 An employee who performs service for the Company at any
time during a plan year shall be in the top-paid group of employees for
such year if such employee is in the top 20 percent of the employees of
the Company ranked on the basis of statutory compensation paid during
such year.
1.21.2 A former employee shall be treated as a highly
compensated employee if he was a highly compensated employee when he
separated from service, or at any time after attaining age 55.
The determination of who is a highly compensated employee, including the
determination of the number and identity of employees in the top-paid group
shall be made in accordance with Section 414(q) of the Code.
1.22 "Leased employee" means any individual, other than an
employee of the Company or an affiliated employer (the "recipient employer"),
who, pursuant to an agreement between the recipient employer and any other
person (the "leasing organization") has performed services for the recipient
employer, or the recipient employer and related persons determined in accordance
with Section 414(n) of the Code, on a substantially full-time basis for a period
of at least one year, and such services are performed under the primary
direction or control of the recipient employer. Contributions or benefits
provided a leased employee by the leasing organization that are attributable to
services performed for the recipient employer shall be treated as provided by
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the recipient employer. A leased employee shall not be considered an employee of
the recipient employer if: (a) such individual is covered by a money purchase
pension plan providing (i) a nonintegrated employer contribution rate of at
least 10 percent of statutory compensation as defined in Section 1.32 of the
plan, (ii) immediate participation, and (iii) full and immediate vesting; and
(b) leased employees do not constitute more than 20 percent of the recipient
employer's nonhighly compensated work force as defined in Section
414(n)(5)(C)(ii) of the Code. The provisions of this Section 1.22 are effective
for plan years beginning on and after January 1, 1997.
1.23 "Nonhighly compensated participant" means a participant
who is not a highly compensated participant.
1.24 "Normal retirement age" of a participant means age 65.
The "normal retirement date" of a participant means the first day of the
calendar month coincident with or next following attainment of his normal
retirement age.
1.25 "Participant" means with respect to any plan year an
eligible employee who has entered the plan and any former employee who has an
accrued benefit under the plan. An employee or former employee on the effective
date who was a participant in the predecessor plan immediately preceding the
effective date shall be a participant in this plan as of the effective date. An
eligible employee who otherwise has not entered the plan shall become a
participant as of the entry date coincident with or next following the
completion of two full months of employment, not counting the month of hire. For
the purpose of applying the foregoing provisions of this Section 1.25, the
following provisions shall apply: (i) an eligible employee who is not in service
on the date he is eligible to enter the plan shall not enter the plan until he
reenters service as an eligible employee, whereupon he shall enter the plan as
of the entry date coincident with or next following the date he reenters
service; and (ii) a participant who terminates service and later reenters
service
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shall reenter the plan as of the entry date coincident with or next following
the date he reenters service as an eligible employee.
1.26 "Participant contributions" means the contributions
described in Section 2.2 which are made to the plan by the participant.
1.27 "Plan" means the Retirement Savings and Profit-Sharing
Plan of Wachovia Corporation as herein set out or as duly amended. For purposes
of Section 401(a)(27)(B) of the Code, the plan shall constitute a profit-sharing
plan.
1.28 "Plan year" means the 12-month period ending on December
31 of each year.
1.29 "Retire" or "retirement" means retirement as defined in
the Retirement Income Plan of Wachovia Corporation.
1.30 "Service" means employment by the Company as an employee.
1.31 "Spouse" or "surviving spouse" means, except as otherwise
provided in the plan, the legally married spouse or surviving spouse of a
participant; provided, that a former spouse shall be treated as the spouse or
surviving spouse to the extent provided under a qualified domestic relations
order described in Section 414(p) of the Code.
1.32 "Statutory compensation" means wages within the meaning
of Section 3401(a) of the Code and all other payments of compensation to an
employee by the Company (in the course of the Company's trade or business) for
which the Company is required to furnish the employee a written statement under
Sections 6041(d), 6051(a)(3) and 6052 of the Code, other than amounts paid or
reimbursed by the Company for moving expenses incurred by the employee to the
extent that at the time of the payment it is reasonable to believe that these
amounts are deductible by the employee under Section 217 of the Code.
Compensation must be determined for this purpose without regard to any rules
under Section 3401(a) of the Code that limit the remuneration included in wages
based on the nature or location of the employment or the services performed.
Effective for
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plan years beginning on and after January 1, 1998, the statutory compensation of
an employee shall include any elective deferral (as defined in Section 402(g)(3)
of the Code) and any other amount which is contributed or deferred by the
employer at the election of the employee and which is not includible in the
gross income of the employee by reason of Sections 125 or 457 of the Code. For
purposes of Section 16, the statutory compensation of any participant shall be
limited to the annual compensation limitation as described in Section 1.10.
1.33 "Supplemental contributions" means Company contributions
described in Section 2.3. "Supplemental matching contributions" means
supplemental contributions described in Section 2.3.1(i) and 2.3.1(ii).
1.34 "Testing compensation" means, for plan years beginning on
and after January 1, 1997, statutory compensation as defined in 1.32 or any
other definition of compensation designated by the Committee which satisfies the
requirements of Section 414(s) of the Code; provided, however, that such testing
compensation shall be limited to the annual compensation limitation as set forth
in Section 1.10.
1.35 "Trust" or "trust fund" means the trust fund held by the
Trustee under the plan.
1.36 "Trustee" means the entity or individuals appointed by
the Company to administer the Trust. If individuals are appointed to administer
the trust, they shall sometimes be referred to herein as "Trustees".
1.37 "Trust agreement" means the agreement between the Company
and the Trustee which shall be a part of the plan.
Section 2. Contributions to the Trust and Allocation Thereof:
2.1 Elective Contributions:
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2.1.1 Amount of elective contributions; Excess elective deferrals: Each
participant in service may elect in the manner provided by the Committee to
reduce his compensation earned during each payroll period by any whole
percentage point; provided, that such reduction may not exceed 15 percent of the
compensation earned during such payroll period. The amount of the participant's
salary reduction shall be contributed by the Company to the trust for each plan
year as an elective contribution in accordance with the provisions of Section
2.1.2. In no event shall the elective contribution made to this plan with
respect to a participant for any taxable year of the participant beginning on or
after January 1, 1999, exceed $10,000 (or such greater amount as may be
permitted pursuant to the provisions of Sections 402(g)(4), (5) and (8) of the
Code) (the "maximum dollar limit"). In the event of an excess elective deferral
(determined by taking into account only the plan and any other qualified plans
maintained by an affiliated employer), the Company shall notify the plan
administrator in writing on behalf of the participant of such excess elective
deferral and the amount thereof shall be adjusted for income and losses
allocable thereto and distributed to the participant (a "corrective
distribution") no later than the April 15 following the end of the taxable year
of the participant during which such excess elective deferral was made. The
income or loss allocable to an excess elective deferral under the plan for the
participant's taxable year of the excess elective deferral shall be determined
by multiplying the income or loss allocable to the participant's elective
contributions for such taxable year by a fraction the numerator of which is the
excess elective deferral made to the plan for such taxable year and the
denominator of which is the balance in the participant's elective contribution
account as of the year-end adjustment date for such taxable year, reduced by the
gain allocable to such account for such taxable year and increased by the loss
allocable to such account for such taxable year. Income or loss allocable to an
excess elective deferral for the taxable year shall not include income or loss
for the period between the end of the taxable year and the date of the
corrective distribution. The excess elective deferral which otherwise would be
distributed to the participant shall be reduced in accordance with regulations
prescribed by the Secretary of the Treasury by the amount of any excess
contributions previously distributed to the participant. If the participant is
also a participant in another plan or arrangement under which elective deferrals
were made and the elective deferrals made under such other plan or arrangement
and this plan in the aggregate exceed the maximum dollar limit for such
participant's taxable year, then not later than March 1 following the close of
the taxable year of the participant during which the excess elective deferral
was made, the participant may notify the Committee in writing that all or part
of the elective contribution made on his behalf under the plan represents an
excess elective deferral for his preceding taxable year and request that his
elective contribution under the plan be reduced by a specified amount. The
specified amount shall be adjusted for income and loss allocable thereto in the
same manner as heretofore provided in this Section 2.1.1. In no event may the
participant receive from the plan as a corrective distribution with respect to a
plan year an amount in excess of such participant's elective contributions under
the plan for the plan year. Distributions of excess elective deferrals to
participants may be made notwithstanding any other provision of the plan or
Code. The amount of any excess elective deferral distributed to the
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participant pursuant to this Section 2.1.1 shall not be treated as an annual
addition for purposes of Section 17.
2.1.2 Time for making elective contributions: A participant's
elective contributions shall be accumulated through payroll deduction and paid
by the Company to the Trustee as of the earliest date on which such
contributions can reasonably be segregated from the general assets of the
Company, but in no event later than the 15th business day of the month following
the month in which such amounts would otherwise have been payable to the
participant in cash.
2.1.3 Administrative rules governing elective contributions:
(i) An election pursuant to Section 2.1.1 shall be
made by the participant in accordance with such rules and
procedures as are adopted by the Committee from time to time.
Such election shall become effective as soon as practicable
following the date of receipt of the election by the
Committee, unless otherwise provided by the Committee. Unless
modified or revoked by the participant, such election shall
continue in effect until such time as he terminates service
with the Company. A new deferral election with respect to a
participant who terminates service and later reenters service
and becomes a participant shall become effective as soon as
practicable following the date such participant reenters the
plan.
(ii) A participant unilaterally may modify his
deferral election at any time to increase or decrease the
portion of his compensation subject to salary reduction within
the limits set forth in Section 2.1.1. Any such modification
shall be made in the manner provided by the Committee and
shall become effective as soon as practicable following the
date of receipt of the modified election by the Committee,
unless otherwise provided by the Committee.
(iii) A participant unilaterally may revoke his
deferral election at any time by providing notice to the
Committee in the manner provided by the Committee. The
revocation shall become effective as soon as practicable
following the date such notification is received by the
Committee. A participant may resume making elective
contributions at any time by making a new deferral election in
accordance with the provisions of 2.1.3(i).
(iv) The Committee may amend or revoke a deferral
election with a participant at any time if the Committee
determines that such amendment or revocation is necessary to
ensure that the annual additions (as defined in Section 17) to
the accounts of a participant do not exceed the annual
addition limitations (described in Section 17) for such
participant.
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(v) The Company shall establish a payroll deduction
system to assist it in making elective contributions. The
Committee from time to time may adopt policies or rules
governing the manner in which such contributions may be made
so that the plan may be administered conveniently.
2.1.4 Limitations on elective contributions: This plan is
intended to satisfy the nondiscrimination requirements of Section
401(k)(3)(A)(ii) of the Code by compliance with the alternative methods
described in Section 401(k)(12) of the Code. Within a reasonable time
prior to the beginning of each plan year, each participant shall be
provided with written notice of the participant's rights and
obligations under the plan.
2.1.5 Allocation to elective contributions account: Elective
contributions made by the Company shall be allocated to the elective
contributions account of a participant. The elective contributions
account of each participant shall be accounted for separately from the
participant's other accounts under the plan.
2.1.6 Distributions from elective contributions account:
Notwithstanding anything to the contrary contained elsewhere in the
plan, a participant's elective contributions account and supplemental
matching contributions allocated to the participant's supplemental
contributions account after December 31, 1998, shall not be
distributable other than upon:
(i) The participant's separation from service or
death;
(ii) Termination of the plan without establishment or
maintenance of another defined contribution plan (other than
an employee stock ownership plan as defined in Section
4975(e)(7) of the Code);
(iii) The date of the sale or other disposition by
the Company to an unrelated entity of substantially all of the
assets (within the meaning of Section 409(d)(2) of the Code)
used by the Company in a trade or business of the Company,
where (i) the participant is employed by such trade or
business and continues employment with the entity acquiring
such assets, and (ii) the Company continues to maintain the
plan after the sale or other disposition. The sale of 85
percent of the assets used in the trade or business shall be
deemed a sale of "substantially all" of the assets used in
such trade or business;
(iv) The date of the sale or other disposition by the
Company of the Company's interest in a subsidiary (within the
meaning of Section 409(d)(3) of the Code) to an unrelated
entity, where (i) the participant is employed by such
subsidiary and continues employment with such subsidiary
following such sale or
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other disposition, and (ii) the Company continues to maintain
the plan after the sale or other disposition;
(v) The participant's attainment of age 59 1/2; or
(vi) The participant's hardship (as defined in
Section 4.2.1) solely with respect to the participant's
elective contributions account.
Notwithstanding anything to the contrary herein, an event shall not be
treated as described in clause (ii), (iii) or (iv) above with respect
to any participant unless the participant receives a lump sum
distribution (as defined in Section 401(k)(10)(B)(ii) of the Code) by
reason of the event.
2.2 Participant Contributions:
2.2.1 Amount of participant contributions: A participant in
service may elect to contribute a portion of his compensation earned
during each payroll period by any whole percentage point; provided,
that such participant contributions may not exceed 15 percent of the
compensation earned during such payroll period (reduced by the
percentage of compensation made as an elective contribution with
respect to such participant).
2.2.2 Time for making participant contributions: A
participant's contributions shall be accumulated through payroll
deduction and paid by the Company to the Trustee as of the earliest
date on which such contributions can reasonably be segregated from the
general assets of the Company, but in no event later than the 15th
business day of the month following the month in which such amounts
would otherwise have been payable to the participant in cash.
2.2.3 Administrative rules governing participant
contributions:
(i) An election pursuant to Section 2.2.1 shall be
made by the participant by delivering to the Committee a
participant contribution election in accordance with such
rules and procedures as the Committee adopts from time to
time. Such election shall become effective with respect to
such participant as soon as practicable following the date of
receipt by the Committee of such election. Unless it is
modified or revoked by the participant, such election shall
continue in effect until such time as he terminates his
service with the Company. A new election with respect to a
participant who terminates service and later reenters service
and becomes a participant shall become effective as soon as
practicable following the date such participant reenters the
plan.
(ii) A participant unilaterally may modify his
contribution election at any time to either increase or
decrease the portion of his
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compensation subject to withholding within the limits set
forth in Section 2.2.1. Any such modification shall be made by
delivering to the Committee an amended election, which shall
become effective as soon as practicable following the date of
receipt by the Committee of the amended election.
(iii) A participant unilaterally may revoke his
contribution election at any time by providing advance notice
to the Committee. The revocation shall become effective as
soon as practicable following the date such revocation is
received by the Committee. A participant may elect for
participant contributions to recommence as of any date
thereafter.
(iv) The Committee may amend or revoke a participant
contribution election with a participant at any time if the
Committee determines that such amendment or revocation is
necessary to ensure that the annual addition (as defined in
Section 17) to the accounts of a participant do not exceed the
annual addition limitations (described in Section 17) for such
participant or to ensure that the requirements of Section
2.2.4 are met for such plan year.
(v) The Company shall establish a payroll deduction
system to assist it in making participant contributions. The
Committee from time to time may adopt policies or rules
governing the manner in which such contributions may be made
so that the plan may be administered conveniently.
2.2.4 Limitations on participant contributions:
(i) For each plan year, the contribution percentage
for the group of highly compensated participants for such plan
year shall bear to the contribution percentage for all
nonhighly compensated participants for the plan year a
relationship that satisfies either of the following tests:
(a) The contribution percentage for the
group of highly compensated participants is not more
than the contribution percentage of the group of all
nonhighly compensated participants multiplied by
1.25; or
(b) The contribution percentage for the
group of highly compensated participants is not more
than the contribution percentage for the group of all
nonhighly compensated participants multiplied by 2,
and the excess of the contribution percentage for the
group of highly compensated participants over that of
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all nonhighly compensated participants is not more
than 2 percentage points.
For purposes of applying the provisions of this Section 2.2.4,
the following provisions shall apply:
(1) If 2 or more plans of the Company or an
affiliated employer are aggregated for purposes of
Section 410(b) of the Code (other than for purposes
of the average benefit percentage test), the
contribution percentage of each participant under the
plan shall be determined as if all such plans were a
single plan.
(2) If a highly compensated participant is a
participant in 2 or more plans described in Section
401(a) of the Code or cash or deferred arrangements
described in Section 401(k) of the Code which are
maintained by the Company or an affiliated employer
to which supplemental matching contributions,
participant contributions or elective deferrals are
made on behalf of such highly compensated
participant, all such plans and arrangements shall be
treated as a single plan for the purpose of
determining the contribution percentage of such
highly compensated participant. Notwithstanding the
foregoing, the provisions of this subparagraph (b)
shall not apply if the plans may not be aggregated
for purposes of Section 410(b) of the Code.
(3) The determination of who is a highly
compensated participant or a nonhighly compensated
participant shall include any employee who is
eligible to make participant contributions.
(4) The Company shall maintain records
sufficient to demonstrate satisfaction of the tests
set forth in Section 2.2.4(i) and the amount of
elective deferrals, if any, used in such tests.
(5) Notwithstanding anything to the contrary
in the plan, the determination and treatment of
participant contributions and the contribution
percentage of any participant shall satisfy such
other requirements as may be prescribed by the
Secretary of the Treasury.
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(ii) If at the end of any plan year neither of the
tests set forth in Section 2.2.4(i) is satisfied for such plan
year, the Committee shall reduce the participant contributions
(and supplemental matching contributions with respect thereto)
of the highly compensated participants on or before the March
15 next following the end of each plan year, but in no event
later than the year-end adjustment date following such March
15 (the "distribution date"). Reductions shall be made
pursuant to the following procedure: (a) the maximum amount of
participant contributions permitted for each highly
compensated participant shall be determined by reducing the
participant contributions of all highly compensated
participants on the basis of the aggregate dollar amount of
such participant contributions, beginning with the highly
compensated participant with the greatest aggregate dollar
amount of participant contributions; and (b) participant
contributions made for such year on behalf of a highly
compensated participant that exceed the new maximum amount
determined pursuant to clause (a) shall be reduced with
respect to each such highly compensated participant until the
participant contributions made on behalf of such participant
equal the new maximum amount. This procedure shall be repeated
until one of the tests set forth in Section 2.2.4(i) is
satisfied. All participant contributions so reduced, adjusted
for income and losses allocable thereto, shall be designated
by the Company as excess aggregate contributions and
distributed to the participant no later than the distribution
date. All supplemental matching contributions with respect to
the participant contributions so reduced shall be forfeited.
The income or loss allocable to the participant's share of the
excess aggregate contributions for the plan year of such
excess aggregate contributions shall be determined by
multiplying the amount of the income or loss allocable to the
participant's participant contributions for such plan year by
a fraction the numerator of which is the excess aggregate
contributions of the participant for such plan year, and the
denominator of which is equal to the sum of: (i) the balance
in the participant's account attributable to participant
contributions as of the beginning of such plan year; and (ii)
the participant contributions which were made on behalf of the
participant for such plan year. The income or loss allocable
to the participant's share of the excess aggregate
contributions for the plan year shall not include income or
loss for the period between the end of the plan year and the
date of distribution. Distributions to participants of excess
aggregate contributions may be made notwithstanding any other
provision of the plan or Code. The amount of any excess
aggregate contribution shall be treated as an annual addition
for purposes of Section 17 for the plan year in which such
excess aggregate contribution was made. Forfeitures of
supplemental matching contributions shall reduce the amount of
supplemental contributions which the Company is otherwise
obligated to make pursuant to Section 2.3.
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(iii) The provisions of this Section 2.2.4 are
effective for plan years beginning on and after January 1,
1997.
2.2.5 Allocation to participant contributions accounts:
Participant contributions shall be allocated to the participant
contributions account of a participant. The participant contributions
account of a participant shall be accounted for separately from the
participant's other accounts under the plan.
2.3 Supplemental Contributions:
2.3.1 Amount of supplemental contributions: The Company
contribution to the trust under the plan shall be made out of current
net income or earned surplus of the Company in the following amounts:
(i) The Company shall contribute a supplemental
matching contribution equal to: (a) 100 percent of the sum of
the participant contributions and the elective contributions
made with respect to the participant for the plan year that
does not exceed 3 percent of the compensation paid to the
participant for the plan year; plus (b) 50 percent of the sum
of the participant contributions and the elective
contributions made with respect to the participant for the
plan year that exceeds 3 percent but does not exceed 6 percent
of the compensation paid to the participant for the plan year.
(ii) The Company may contribute an additional
supplemental matching contribution not to exceed 50 percent of
the sum of the participant contributions and elective
contributions made with respect to the participant for the
plan year that exceeds 3 percent but does not exceed 6 percent
of the compensation of the participant. The amount of the
additional supplemental matching contribution will be
determined in accordance with a formula established by the
Management Resources and Compensation Committee of the Board
upon the recommendation of the Chief Executive Officer
providing for such additional supplemental matching
contribution to be made if the Company and its affiliates meet
certain consolidated performance goals. The contribution
formula will be established at the beginning of each plan year
and communicated to participants following the establishment
thereof.
(iii) The Company may contribute a special
discretionary contribution not to exceed 4 percent of the
compensation of the eligible participants for the plan year,
which special contribution shall be made only if recommended
by the Chief Executive Officer of the Company and approved by
the Management Resources and Compensation Committee of the
Board. The determination of whether or not such contribution
shall be made with respect to any plan year shall be solely
within the discretion of the Management
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Resources and Compensation Committee and shall be made only
with respect to a plan year during which the consolidated
performance of the Company and its affiliates is deemed by the
Management Resources and Compensation Committee to be truly
outstanding. For this purpose, "eligible participant" means
each employee who is eligible to participate in the plan at
any time during the plan year ending on the year-end
adjustment date for which such contribution is made, including
such an employee who elected not to become an active
participant with respect to all or any part of such plan year,
and who is in service on such year-end adjustment date or is
not in service because of death, disability or retirement
during such plan year.
All supplemental contributions shall be made subject to the conditions
of Section 8.1, to the extent such conditions shall be applicable. As
used in this Section 2.3, "net income" means the earnings of the
Company as determined in accordance with generally accepted accounting
principles consistently applied; provided, that taxes based upon income
and contributions under the plan shall not be deducted. No adjustments
affecting net income made subsequent to the filing of the federal
income tax return of the Company with respect to a fiscal year, whether
resulting from audit of the Company's tax return or otherwise, shall
change the amount of the Company's contribution under this Section 2.3
for the plan year.
2.3.2 Allocation of supplemental contributions: As of the last
day of each payroll period, the supplemental contributions account of
each active participant shall be credited with that proportion of the
supplemental contributions made with respect to him pursuant to Section
2.3.1(i) since the next preceding payroll period. As of the year-end
adjustment date for each plan year, the supplemental contributions
account of each active participant who is in service on such year-end
adjustment date, or is not in service because of death, disability or
retirement during such plan year, shall be credited with that
proportion of the supplemental contributions, if any, made with respect
to him for such plan year pursuant to Section 2.3.1(ii). As of the
year-end adjustment date for each plan year, the supplemental
contributions account of each eligible participant, as defined in
Section 2.3.1(iii), for such plan year shall be credited with that
proportion of the supplemental contributions made with respect to him
for such plan year pursuant to Section 2.3.1(iii). For purposes of
allocating the supplemental matching contributions described in
Sections 2.3.1(i) and (ii), the supplemental matching contributions
shall first be allocated with respect to elective contributions and
then with respect to participant contributions in the event the sum of
the elective contributions and participant contributions of a
participant exceed 6% of the compensation of the participant.
2.3.3 Limitations on supplemental contributions: This plan is
intended to satisfy the nondiscrimination requirements of Section
401(m)(2) of the Code by compliance with the alternative method
described in Section 401(m)(11) of the Code.
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2.4 General Limitations: In no event shall the Company
contribute an amount (including elective contributions and supplemental matching
contributions) for any limitation year (as defined in Section 17) which would
cause the annual addition limitations in Section 17 to be exceeded. Each
contribution to the plan by the Company shall be conditioned on being deductible
under Section 404 of the Code for the plan year for which such contribution is
made. The initial contribution to the plan shall be conditioned on the plan
being qualified under Section 401(a) of the Code.
Section 3. Vesting:
The accrued benefit of a participant who has one or more hours
of service after December 31, 1998, shall be fully vested at all times.
Section 4. Withdrawals; Distributions:
4.1 Voluntary Withdrawals: Any participant (including a
retired or former employee) may make a voluntary withdrawal in a single cash
distribution of all or any portion of the amount in his rollover account,
participant contributions account and supplemental contributions account, other
than amounts attributable to supplemental matching contributions allocated to
such account after December 31, 1998. In no event shall any withdrawal be less
than $500. A partial withdrawal from the supplemental contributions account or
participant contributions account shall be allocated proportionately among the
investment options described in Section 6.1. If a participant withdraws
supplemental contributions or participant contributions allocated to his account
during the 24 month period preceding the date of the withdrawal, his active
participation in the plan shall be suspended until the first entry date which is
at least 6 months following the date of the withdrawal. For the purpose of
federal income tax reporting of the withdrawal, a participant's accrued benefit
shall be treated as a single contract.
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4.2 Hardship Distributions: A participant (including a
participant receiving monthly payments pursuant to Section 4.4 or who has
terminated from service and has not commenced receiving his accrued benefit) may
file a written request with the Committee for a distribution on account of
hardship from his elective contributions account (excluding earnings credited to
the participant's elective contribution account after December 31, 1988). A
distribution will be on account of hardship only if the distribution is on
account of an immediate and heavy financial need of the participant and is
necessary to satisfy such financial need. The request must specify the nature of
the hardship, the total amount requested, and the total amount of the actual
expense incurred or to be incurred on account of the hardship. The Committee, in
its discretion, shall determine whether a hardship constitutes an immediate and
heavy financial need, and its decision to grant or deny a hardship distribution
shall be final; provided, that all participants who request such distributions
and are similarly situated shall be treated alike and in a nondiscriminatory
manner. The circumstances giving rise to hardship shall include, but shall not
be limited to:
(a) Expenses for medical care described in Section 213(d) of
the Code previously incurred by the participant, the participant's
spouse, or any dependent of the participant (as defined in Section 152
of the Code), or expenses necessary for such persons to obtain such
medical care;
(b) Costs directly related to the purchase (excluding mortgage
payments) of a principal residence of the participant;
(c) Payment of tuition, related educational fees and room and
board expenses, for the next 12 months of post-secondary education for
the participant, the participant's spouse or any dependent of the
participant; or
(d) The need to prevent eviction of the participant from his
principal residence, or foreclosure on the mortgage of the
participant's principal residence.
A distribution shall not be treated as necessary to satisfy an immediate and
heavy financial need to the extent the amount of the distribution is in excess
of the amount required to relieve such need or such need may be satisfied from
other resources reasonably available to the participant. The amount
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of the immediate and heavy financial need of the participant may include any
amounts necessary to pay any federal, state or local income taxes or penalties
reasonably anticipated to result from the receipt of the hardship distribution.
A distribution may be treated as necessary to satisfy a financial need if the
Committee relies on the participant's written representation, unless the
Committee has actual knowledge to the contrary, that the need cannot reasonably
be relieved:
(i) Through reimbursement or compensation by insurance or
otherwise;
(ii) By reasonable liquidation of the participant's assets,
including reasonably available assets of the participant's spouse and
minor children, to the extent such liquidation itself would not cause
an immediate and heavy financial need;
(iii) By cessation of elective contributions under the plan;
or
(iv) By other distributions or nontaxable loans from the plan
or any other qualified retirement plan maintained by the Company or an
affiliated employer, or by borrowing from commercial sources on
reasonable commercial terms.
A financial need cannot be reasonably relieved by one of the actions described
above if the effect would be to increase the amount of the financial need. A
partial distribution from the elective contributions account (and supplemental
contributions account, if any) shall be allocated among the investment funds
described in Section 6.1 as directed by the participant. If a participant's
termination of service occurs after a request for a hardship distribution is
approved in accordance with the provisions of this Section 4.2 but prior to
distribution, such approval shall be void, and the accrued benefit of such
participant shall be payable hereunder as if such approval had not been made.
The Committee from time to time may adopt additional policies or rules governing
the manner in which hardship distributions are made so that the plan may
conveniently be administered.
4.3 Distributions After Age 59 1/2: By written request to the
Committee, a participant who has attained age 59 1/2 may withdraw all or any
portion of his accrued benefit from
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the plan. The minimum amount of withdrawal under this Section 4.3 shall be the
lesser of: (i) $500, or (ii) the accrued benefit of the participant.
4.4 Distribution Requirements: Distributions on account of
retirement or death shall be subject to the following requirements:
4.4.1 Payment of retirement benefits: As of the date on which
a participant retires or terminates service, or as soon thereafter as
practicable, his vested accrued benefit shall be paid to him or applied
for his benefit under one of the following options, as elected by the
participant:
(i) Term certain: Subject to the provisions of
Section 4.4.1(h), payment to him of his vested accrued benefit
in approximately equal monthly, quarterly, semi-annual or
annual installments over a whole number of years not exceeding
the life expectancy of the participant or the joint life
expectancy of the participant and his designated beneficiary.
(ii) Lump sum: Payment to him of his vested accrued
benefit in cash in a single lump sum payment.
Such election must be made in writing and filed with the Committee on
or before the adjustment date as of which payment is to commence and
shall be irrevocable on or after such adjustment date, except as
otherwise provided in Section 4.4.1(f). The following provisions shall
apply for purposes of this Section 4.4.1:
(a) If a participant fails to elect one of the
foregoing options, the participant shall be deemed to have
elected for his vested accrued benefit to be held in the plan
for future payment in accordance with paragraph (b).
(b) Unless a participant files an election pursuant
to this paragraph (b) to defer payment of his vested accrued
benefit, such payment must commence within 60 days following
the latest of the year-end adjustment date for the plan year
in which the participant: (i) attains normal retirement age;
(ii) attains the 10th anniversary of the year in which he
commenced participation in the plan; or (iii) retires or
otherwise terminates service. If within the applicable 60-day
period the amount of the payment to be made cannot be
determined or the recipient thereof cannot be located after a
reasonable effort has been made to locate him, payment
retroactive to the close of such 60-day period shall be made
within 60 days after the amount has been determined or the
recipient has been located, whichever applies. Subject to the
provisions of Section 4.4.1(c), prior to the adjustment date
as of which payment of a participant's benefit
23
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is to commence, the participant may elect to defer
commencement thereof to a subsequent adjustment date,
including an adjustment date following the latest to occur of
(i), (ii) or (iii) above. Such election must be filed in
writing with the Committee prior to the adjustment date as of
which the participant's benefit otherwise would commence. Such
election may be revoked or changed as of any adjustment date
to which the benefit is deferred by filing a written
revocation or change with the Committee prior to the
adjustment date as of which the revocation or change is to be
effective.
(c) A participant's benefit must be distributed or
begin to be distributed no later than the participant's
required beginning date (as defined in Section 4.4.4(vi)).
(d) If a participant's benefit is to be distributed
pursuant to option (i), the distribution must satisfy the
following requirements:
(i) The amount required to be distributed
for each calendar year beginning with the first
distribution calendar year (as defined in Section
4.4.4(iii)), must at least equal the quotient
obtained by dividing the participant's benefit (as
defined in Section 4.4.4(v)) by the applicable life
expectancy (as defined in Section 4.4.4(i)).
(ii) For calendar years beginning before
January 1, 1989, if the participant's spouse is not
the designated beneficiary (as defined in Section
4.4.4(ii)), the term certain selected must assure
that at least 50 percent of the present value of the
amount available for distribution is paid within the
life expectancy of the participant.
(iii) For calendar years beginning after
December 31, 1988, the amount to be distributed each
year beginning with the distribution for the first
distribution calendar year shall not be less than the
quotient obtained by dividing the participant's
benefit by the lesser of the applicable life
expectancy or, if the participant's spouse is not the
designated beneficiary, the applicable divisor
determined from the table set forth in Q&A 4 of
Section 1.401(a)(9)-2 of the Treasury Regulations.
Distributions after the death of the participant
shall be made using the applicable life expectancy
determined for purposes of paragraph (i) above as the
relevant divisor without
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regard to Section 1.401(a)(9)-2 of the Treasury
Regulations.
(iv) The minimum distribution required for
the participant's first distribution calendar year
must be made on or before the participant's required
beginning date. The minimum distributions for other
calendar years, including the minimum distribution
for the distribution calendar year in which the
participant's required beginning date occurs, must be
made on or before December 31 of each such
distribution calendar year.
(e) Distributions from the plan shall be made in
cash; provided, that if a portion of a participant's vested
accrued benefit is invested in Wachovia stock, and he elects
to receive a distribution under option (ii), such participant
may direct the Committee to distribute such portion of his
accrued benefit in shares of Wachovia stock and further
provided, that if a portion of a participant's vested accrued
benefit is invested in units of a mutual fund or funds, as
provided in Section 6.1.1, and he elects to receive a
distribution under option (ii), such participant may direct
the Committee to distribute such portion of his accrued
benefit in units of the mutual fund or funds.
(f) Prior to any adjustment date, a participant
receiving benefit payments pursuant to option (i) may make a
written request to the Committee to receive an alternative
method of payment of the balance of his vested accrued benefit
commencing with the first payment following such adjustment
date. Such alternative method of payment shall be determined
in accordance with the provisions of option (i) or (ii) as of
the adjustment date as of which such alternative method
becomes effective (the "alternative adjustment date"). If a
participant marries or remarries following the adjustment date
as of which payments commenced under option (i), his "spouse"
for purposes of Section 4.4.1(d) shall be his spouse on the
alternative adjustment date.
(g) Notwithstanding the foregoing provisions of this
Section 4.4.1, if a participant receiving benefit payments
pursuant to option (i) reenters service prior to his normal
retirement date, such payments shall cease during the period
he is in service. When he subsequently retires, dies or
otherwise terminates service, his then vested accrued benefit
shall be payable to or with respect to him pursuant to the
applicable provisions of the plan.
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(h) If the accrued benefit of a participant is
payable to him pursuant to option (i), such participant shall
continue to be eligible to direct the Trustee as to the
investment and reinvestment of his accrued benefit pursuant to
the provisions of Section 6. His accrued benefit shall
continue to be adjusted as of each adjustment date pursuant to
Section 5 and the amount of the installment payments to him
shall be adjusted as of each adjustment date to reflect the
adjusted amount of his accrued benefit as of such adjustment
date.
(i) Notwithstanding any other provision hereof, if a
participant in the predecessor plan is receiving benefits
under the predecessor plan as of the effective date, the
amount of the benefit payable to such participant and the
manner and time for payment thereof shall be determined in
accordance with the provisions of the predecessor plan. If a
participant in a predecessor plan separated from service prior
to the effective date of this plan and is entitled to a
deferred benefit commencing after the effective date, the
amount of such benefit shall be determined in accordance with
the provisions of the predecessor plan, and the manner and
time of payment shall be determined under the plan.
4.4.2 Payment of death benefits: On the death of the
participant, the following provisions shall apply:
(i) Death after distribution has begun: If the
participant dies after distribution of his vested accrued
benefit has begun, the remaining portion of his vested accrued
benefit shall continue to be distributed to his beneficiary at
least as rapidly as under the method of distribution in effect
at his death.
(ii) Death before distribution has begun: If the
participant dies before distribution of his vested accrued
benefit begins, his entire vested accrued benefit shall be
distributed no later than December 31 of the calendar year
containing the 5th anniversary of the participant's death,
except to the extent that an election is made to receive
distributions under (a) or (b), as follows:
(a) If any portion of the participant's
vested accrued benefit is payable to a designated
beneficiary, distributions may be made in
substantially equal installments over the life or
over a term certain not greater than the life
expectancy of the designated beneficiary commencing
on or before December 31 of the calendar year
immediately following the calendar year in which the
participant died.
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(b) If the designated beneficiary is the
participant's surviving spouse, the date
distributions are required to begin in accordance
with (a) above shall not be before the later of
December 31 of the calendar year immediately
following the calendar year in which the participant
died, or December 31 of the calendar year in which
the participant would have attained age 70 1/2.
If the surviving spouse dies before payments begin, subsequent
distributions shall be made pursuant to this paragraph (ii),
except for paragraph (b) hereof, as if the spouse had been the
participant.
(iii) The vested accrued benefit of the participant
described in Section 4.4.2(i) or (ii) shall be payable in the
manner provided in option (i) or (ii) of Section 4.4.1,
treating the beneficiary for this purpose as the participant,
as elected by the participant before his death in writing to
the Committee, or, if the participant has not made such an
election, as elected by the beneficiary in writing to the
Committee no later than the first to occur of (a) December 31
of the calendar year in which distributions are required to
commence under Section 4.4.2(i) or (ii), or (b) December 31 of
the calendar year that contains the 5th anniversary of the
participant's death. If the participant has no beneficiary or
the beneficiary fails to elect a method of distribution,
distribution of the participant's vested accrued benefit must
be completed by December 31 of the calendar year containing
the 5th anniversary of the participant's death.
(iv) Any amount paid to a child of the participant
shall be treated as if paid to the surviving spouse pursuant
to Section 4.4.2(ii) if the amount becomes payable to the
surviving spouse when the child reaches the age of majority.
(v) A beneficiary receiving benefit payments pursuant
to this Section 4.4.2 may make a written request to the
Committee prior to any adjustment date to receive an
alternative method of payment of the balance of the
participant's vested accrued benefit commencing with the first
payment following such adjustment date; provided, that
distribution under any alternative method of payment must be
completed at least as rapidly as under the method of payment
in effect prior to such adjustment date.
(vi) For purposes of this Section 4.4.2, distribution
of a participant's vested accrued benefit shall be considered
to begin on the participant's required beginning date, or if
the last sentence in Section 4.4.2(ii) is applicable, the date
distribution is required to begin to the surviving spouse
pursuant to such section.
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4.4.3 Special provisions: The following provisions apply for
purposes of this Section 4.4:
(i) Small amount: Notwithstanding any other provision
of the plan, if the vested accrued benefit of a participant
does not exceed $5,000 as of the date of his termination of
service for any reason, including death, in a plan year
beginning on and after January 1, 1998, then such benefit
shall be paid in a lump sum to the person entitled thereto
without regard to any election made by the participant.
(ii) Designation of beneficiary: The designated
beneficiary or beneficiaries of a participant shall be
determined in accordance with the following provisions:
(a) Surviving spouse: If the participant
dies leaving a surviving spouse, the participant's
designated beneficiary shall be such spouse unless
the participant designates another beneficiary (which
may include more than one person, natural or
otherwise, and one or more contingent beneficiaries)
by filing a qualified election with the Committee. A
"qualified election" means a beneficiary designation
by the participant on a form provided the Committee,
which contains a consent and acknowledgment of the
effect of such consent executed by the surviving
spouse and witnessed by a representative of the
Committee or a notary public. Consent of the spouse
shall not be required if the spouse cannot be located
or if other circumstances exist which excuse
obtaining the consent under applicable law or
regulations. The qualified election of a participant
may be revoked at any time by action of the
participant alone, in which case the surviving spouse
shall be the beneficiary. Any other change in
beneficiary shall be made only by the filing of a
revised qualified election. If a beneficiary named in
a qualified election dies before receiving any
payment due him from the trust fund, the payment
shall be made to the contingent beneficiary, if any,
named in the qualified election. If there is no such
contingent beneficiary, the payment shall be made to
the surviving spouse. If the surviving spouse dies
before receiving all payments due under the plan, the
remaining payments shall be made to the estate of the
surviving spouse.
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(b) Other beneficiary: If a participant dies
without leaving a surviving spouse, the participant's
designated beneficiary (which may include more than
one person, natural or otherwise, and one or more
contingent beneficiaries) shall be the beneficiary
designated by the participant on the beneficiary
designation form filed with the Committee.
Designation of a beneficiary under this subparagraph
(b) shall be revocable by the participant at any time
prior to death. If the participant fails to designate
a beneficiary, the benefit of the participant shall
be payable to his estate. If a beneficiary is
entitled to receive payments from the trust fund and
dies before receiving all payments due him, remaining
payments shall be made to the contingent beneficiary,
if any. If there is no contingent beneficiary, such
payments shall be made to the estate of the
beneficiary.
(c) Disclaimer: Any beneficiary may disclaim
all or any part of the benefit to which such
beneficiary is entitled hereunder by filing a written
disclaimer with the Committee at least 10 days before
payment of such benefit is to commence. Such
disclaimer shall be made in form satisfactory to the
Committee and shall be irrevocable when filed. The
benefit disclaimed shall be payable from the trust
fund in the same manner as if the beneficiary who
filed the disclaimer dies on the date of such filing.
4.4.4 Definitions: The following definitions apply for
purposes of Section 4.4:
(i) "Applicable life expectancy" means the life
expectancy (or joint and last survivor expectancy) calculated
using the attained age of the participant (or designated
beneficiary) as of the participant's (or designated
beneficiary's) birthday in the applicable calendar year
reduced by one for each calendar year which has elapsed since
the date the life expectancy was calculated. If life
expectancy is being recalculated, the applicable life
expectancy is the life expectancy as so calculated. The
applicable calendar year is the first distribution calendar
year, and, if life expectancy is being recalculated, each
succeeding calendar year.
(ii) "Designated beneficiary" of a participant means
any beneficiary who is a natural person.
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(iii) "Distribution calendar year" means a calendar
year for which a distribution is required to satisfy the
requirements of Section 4.4.1. For distributions beginning
before the participant's death, the first distribution
calendar year shall be the calendar year immediately preceding
the calendar year containing the participant's required
beginning date. For distributions beginning after the
participant's death, the first distribution calendar year
shall be the calendar year in which distributions are required
to begin pursuant to Section 4.4.2.
(iv) "Life expectancy" means life expectancy and
joint and last survivor life expectancy computed by use of the
expected return multiples in Tables V and VI of Section 1.72-9
of the Treasury Regulations. Unless otherwise elected by the
participant, or spouse, in the case of distributions described
in Section 4.4.2(ii), by the time distributions are required
to begin, life expectancy shall be recalculated annually. Such
election shall be irrevocable as to the participant or spouse.
The life expectancy of a nonspouse beneficiary may not be
recalculated.
(v) "Participant's benefit" means his accrued benefit
as of the last adjustment date in the calendar year
immediately preceding the distribution calendar year (the
"valuation calendar year") increased by any contribution or
forfeiture allocated to the participant's account as of any
date in the valuation calendar year after such adjustment date
and decreased by any distribution made in the valuation
calendar year after such adjustment date. Notwithstanding the
foregoing, if any portion of the minimum distribution for the
first distribution calendar year is made in the second
distribution calendar year on or before the required beginning
date, the amount of the minimum distribution made in the
second distribution calendar year shall be treated as if it
had been made in the immediately preceding distribution
calendar year.
(vi) Effective with respect to plan years beginning
on and after January 1, 1997, "required beginning date" means
April 1 of the calendar year following the later of (A) the
calendar year in which the participant attains age 70 1/2, or
(B) the calendar year in which the participant retires.
Notwithstanding the foregoing, the required beginning date of
a participant who is a 5 percent owner (as defined in Section
416 of the Code) shall be April 1 of the calendar year
following the calendar year in which the participant attains
age 70 1/2, and any other participant who attains age 70 1/2
prior to January 1, 1999, may elect to treat April 1 of the
calendar year following the calendar year in which the
participant attains age 70 1/2 as his required beginning date.
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All distributions under this Section 4 shall be determined and made in
accordance with Section 401(a)(9) of the Code, including the minimum
distribution incidental benefit requirement of Section 1.401(a)(9)-2 of the
Treasury Regulations.
4.5 Other Termination of Service: The following provisions
shall apply if a participant terminates service for reasons other than
retirement or death:
4.5.1 Subject to Section 4.4.3(i), the participant may elect
to receive his vested accrued benefit as of the date of his termination
of service for any reason other than retirement or death (the
"termination adjustment date"). The participant's vested accrued
benefit shall be determined pursuant to the provisions of Section 3 as
of the termination adjustment date. The manner of distribution shall be
determined under Section 4.4.1 as if the termination adjustment date
were the normal retirement date of the participant. For purposes of
this Section 4.5, if the value of the participant's vested accrued
benefit is zero as of the termination adjustment date, he shall be
deemed to have received a distribution of such amount as of the
year-end adjustment date for the plan year in which he terminates
service. The plan administrator shall notify the participant of his
rights under this Section 4.5.1 as soon as practicable following
receipt by the plan administrator of notice that the participant has
terminated or has announced his intention to terminate, but in no event
more than 90 days before the termination adjustment date. The
participant's election shall be submitted in writing to the Committee
on or before the termination adjustment date. Such election shall be
disregarded if the participant is in service on the termination
adjustment date.
4.5.2 If the participant's vested accrued benefit is not
distributed pursuant to Section 4.5.1, it shall be held under the plan
until the earlier of his normal retirement date or the date of his
death, whereupon it shall be paid to him or his beneficiary in the same
manner as if the participant were then in service; provided, that if
the participant terminates service after completing at least the number
of years of service necessary to elect early retirement under the
Retirement Income Plan of Wachovia Corporation but before he attains
the requisite age to elect early retirement under said Retirement
Income Plan, he may elect to receive his vested accrued benefit in a
lump sum as of any adjustment date following attainment of such age and
preceding his normal retirement date. If the vested accrued benefit of
a participant is held in the plan for future payment, the participant
shall continue to be eligible to direct the investment and reinvestment
of his accrued benefit pursuant to the provisions of Section 6.
4.5.3 If a distribution is one to which Sections 401(a)(11)
and 417 of the Code do not apply, such distribution may commence less
than 30 days after the notice required under Section 1.411(a)-11(c) of
the Treasury Regulations is given, provided that:
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(i) the plan administrator clearly informs the
participant that the participant has a right to a period of at
least 30 days after receiving the notice to consider the
decision of whether or not to elect a distribution (and, if
applicable, a particular distribution option), and
(ii) the participant, after receiving the notice,
affirmatively elects a distribution.
If a distribution is made pursuant to this Section 4.5 to a participant before
he attains age 55, the Committee shall advise him that an additional income tax
may be imposed in an amount equal to 10 percent of the portion of the amount
that is includible in his gross income for such taxable year.
4.6 Loans: On the written application of any participant in
service or a participant or beneficiary who is a party-in-interest as defined in
Section 3(14) of ERISA (the "borrower"), the Committee in accordance with its
uniform, nondiscriminatory policy shall direct the Trustee to permit the
borrower to borrow from his rollover account, elective contributions account,
participant contributions account and supplemental contributions account,
subject to the following requirements:
4.6.1 Loans shall be made on a pro rata basis from the
investment funds of the borrower. Loans shall be available to all
borrowers on a reasonably equivalent basis. Loans shall not be
available to highly compensated participants in an amount greater than
to nonhighly compensated participants. The Committee may establish a
minimum loan amount not to exceed $1,000. A participant may have as
many as three loans outstanding at any time, one of which may be a
mortgage loan (as described in Section 4.6.4). A participant may not
refinance a loan.
4.6.2 The Trustee shall provide to each borrower who is
approved for a loan a statement of the charges involved in the loan
transaction, including the amount financed and the annual interest
rate. Each loan shall be evidenced by a negotiable promissory note (the
"note") in a form acceptable to the Trustee, payable to the order of
the Trustee, bearing interest at a reasonable rate as determined by the
Committee pursuant to Section 4.6.6, and, except for a mortgage loan,
payable in full not more than 5 years from the date thereof. The
borrower shall execute any additional document as the Committee deems
necessary or advisable to consummate the loan and provide reasonable
safeguards.
4.6.3 The principal amount of any loan made to a borrower,
when added to the outstanding balance of all loans from the plan, shall
not exceed the lesser of:
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(i) $50,000, reduced by the excess of: (a) the
highest outstanding balance of loans from the plan during the
one-year period ending on the day before the date such loan is
made, over (b) the outstanding balance of loans from the plan
on the date such loan is made; or
(ii) One-half the vested accrued benefit of the
borrower. The vested accrued benefit shall be determined as of
the adjustment date next preceding the date of the loan
application.
For the purpose of this limitation, the principal amounts of all loans
from all plans of the Company and affiliated employers shall be
aggregated.
4.6.4 Each loan shall require that payment of principal and
interest shall be amortized in level payments made at least quarterly
within 5 years from the date of the loan; provided, that such payment
may not exceed 15 years if the loan is to be used to acquire any
dwelling unit which will be used as the principal residence of the
participant. If so directed by the Committee, the Company shall
establish a procedure for withholding from the regular payroll checks
of a participant the amounts necessary to satisfy the repayment
obligation under the note. All amounts so withheld shall be transferred
immediately to the Trustee.
4.6.5 Each loan shall be secured by a pledge of up to 50
percent of the vested accrued benefit of the borrower, as determined on
the date of such loan, and such additional security as the Committee
deems necessary or desirable to assure repayment of principal and all
interest payable thereon in accordance with the terms of the loan.
4.6.6 A loan shall bear a reasonable rate of interest
determined as of the date of origination of the loan in the manner
established by the Committee. The principal amount of the loan shall be
an investment allocated solely to the account of the borrower, and the
interest paid thereon shall, except as provided in Section 4.6.7, be
allocated solely to the account of the borrower.
4.6.7 A default by a borrower under the terms of a loan shall
occur upon (i) failure to make any payment when due, whether by
acceleration, or otherwise; (ii) termination of service of a
participant who is not a party-in-interest as defined in Section 3(14)
of ERISA; (iii) bankruptcy or insolvency of the borrower; or (iv) death
of the borrower. Upon default, the unpaid balance of the note, together
with accrued interest, shall be due and payable without presentment,
demand, protest or notice of any kind. In the event of default of a
participant in service, foreclosure on the note and attachment of
security may not occur until such participant's accrued benefit is
payable as provided in Section 4.4. If the unpaid principal and
interest exceed the amount of the defaulting borrower's account that is
pledged as security, all or any part of any additional security pledged
to secure the loan, in the discretion of the Committee, may be sold at
public or private sale. The proceeds of such sale shall be applied
first to pay the expenses of conducting the sale, including reasonable
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attorneys' fees, then to accrued interest, and then to principal of the
loan. The borrower shall remain liable for any deficiency. Any surplus
shall be paid to the borrower. No distribution under the plan to or on
behalf of the borrower shall be made unless and until all unpaid loans,
including interest thereon, are satisfied.
Section 5. Adjustment of Accounts:
The Committee shall maintain a separate account with respect
to the accrued benefit of each participant. The account shall include to the
extent applicable the separate accounts described in Section 1.1. The account
shall reflect the amount of the accrued benefit of each participant as of each
adjustment date. As of each adjustment date, the value of each participant's
account shall be converted to units. Thereafter, any time that a participant
shall be credited with an allocation of a supplemental contribution, an elective
contribution or a participant contribution, the value of such contribution shall
be converted to units and added to his already outstanding units. At any time
that any amount shall be paid to a participant (or to any other person on his
behalf) the number of units equal in value to the amount paid shall be cancelled
and deducted from the outstanding units. For the purpose of converting dollars
to units or units to dollars, the value of units in each directed investment
fund shall be determined as of each adjustment date and shall equal the total
value of such directed investment fund as of such date divided by the total
units in such fund which are outstanding as of such date.
Section 6. Participant Direction of Investments:
6.1 Participant Directed Investments: Notwithstanding any
other provision of the plan, each participant may direct the Trustee as to the
investment or reinvestment of the amounts credited to his rollover account,
elective contributions account, participant contributions account and
supplemental contributions account, subject to the following provisions:
6.1.1 Directed investment funds; investment accounts: The
Committee shall determine from time to time the investment options
("directed investment funds") available to participants. Each
participant shall be entitled to direct the Trustee as to the
investment of contributions made on his behalf and the amount
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credited to his account among the directed investment funds. The
Committee shall keep accounts subsidiary to each participant's separate
accounts described in Sections 1.1.1, 1.1.2, 1.1.3 and 1.1.4 with
respect to the amount to his credit in each directed investment fund,
the "investment accounts."
6.1.2 Adjustment of investment accounts: Each investment
account shall be adjusted as of each adjustment date as provided in
Section 5 as if it were the entire account of the participant to which
it is subsidiary, with respect to distributions and transfers, and with
respect to the net income or net loss of the directed investment fund
of which it is a part. The Committee shall maintain such records and
accounts as are necessary to properly identify and adjust the accounts
of a participant.
6.1.3 Investment of contributions: In accordance with
procedures adopted by the Committee, a participant may direct the
investment of any contribution allocable to him among the directed
investment funds in any whole percentage. Such direction shall remain
in effect unless and until the participant provides for a different
designation. If for any reason a participant fails to direct the
investment of the entire contribution allocable to his account, the
contribution for which no direction is made shall be invested by the
Trustee in the short-term savings fund or such other similar fund as
directed by the Committee.
6.1.4 Investment of account: In accordance with procedures
adopted by the Committee, a participant may direct investment of the
amount credited to his account, or transfer amounts credited to his
account, among the directed investment funds in any whole percentage.
6.1.5 Notice requirements: In accordance with procedures
adopted by the Committee and the Trustee, the participants shall notify
the Trustee of all directions made in accordance with this Section 6.1.
6.1.6 Distributions from accounts: Distributions from a
participant's account shall be allocated by the Trustee among the
appropriate directed investment funds in the same manner as any Company
contribution would be allocable among such investment accounts.
6.1.7 Rights in directed investment funds: Notwithstanding the
fact that all or a portion of a participant's account may be invested
in a directed investment fund and may be expressed in units in a
particular directed investment fund, such references shall mean the
aggregate of the dollar amount which is credited to the participant's
account at any point in time. Except as otherwise provided in this
Section 6, a participant shall not be deemed to have any interest in
any specific property in any directed investment fund or any interest
in the plan, other than the right to receive payments or distributions
in accordance with the plan or to exercise any other right specifically
granted to the participant under the plan.
6.1.8 Investment in Wachovia Stock: Notwithstanding anything
to the contrary in the plan, a participant with an amount to his credit
in a directed
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investment fund invested in shares of common stock of Wachovia
Corporation ("Wachovia stock") shall be entitled to direct the Trustee
as to the manner in which shares of the Wachovia stock allocated as of
a record date to his investment account shall be voted, or shall be
tendered in the event of a tender offer for such shares. The Trustee
shall vote or tender such shares of Wachovia stock as directed by the
participant. If the participant instructions are not received with
respect to such shares, the Trustee shall vote or tender such shares in
its discretion. The Committee shall provide for the solicitation and
tabulation of voting or tender instructions from participants in a
confidential manner. Prior to the voting or tendering of such shares,
the Committee shall distribute to each participant with a Wachovia
stock investment account the same information as is furnished to the
shareholders of Wachovia Corporation in a proxy statement. Fractional
shares shall be aggregated and voted or tendered by the Trustee to the
extent possible to reflect the directions of the respective
participants to whose investment accounts such fractional shares are
allocated.
6.2 General: The Committee may establish any rules or
resolutions necessary to implement the provisions of this Section 6. The Trustee
shall have and may exercise all powers necessary or advisable in order to
implement the provisions of this Section 6. If the Trustee cannot transfer funds
among the directed investment funds on an adjustment date as provided in this
Section 6, the Trustee shall effect such transfer as soon as possible
thereafter.
6.3 Loan Accounts: Notwithstanding the foregoing provisions of
this Section 6, the portion of account of a participant evidenced by a note
described in Section 4.6.2 shall be held in a special loan account on behalf of
the participant. A loan account shall be established under each of the
participant's elective contributions account, participant contributions account
and supplemental contributions account. Any payment of principal or interest
(other than the excess interest paid in the event of default pursuant to Section
4.6.7) made with respect to said note shall be credited pro rata to the loan
accounts. As of the close of business on each adjustment date, any cash balance
in the loan accounts shall be debited to the loan accounts and allocated pro
rata to the investment account or accounts with respect to the participant in
the same manner as elective contributions, participant contributions and
supplemental contributions are allocable to said investment option or options.
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Section 7. Administration by Committee:
7.1 Membership of Committee: The Committee shall consist of
not less than 3 nor more than 7 individuals appointed by the Board to serve at
the pleasure of the Board. Any member of the Committee may resign, and his
successor, if any, shall be appointed by the Board. 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 specifically are imposed on the Trustee or the Board. The chairman
of the Committee shall be the plan administrator and agent for service of legal
process on the plan.
7.2 Committee Officers; Subcommittee: The members of the
Committee shall elect a chairman and may elect an acting chairman. They also
shall elect a secretary and may elect an acting secretary, either of whom may
but need not be a member of the Committee. The Committee may appoint from its
membership such subcommittees with such powers as the Committee determines and
may authorize one or more of its members or any agent to execute or deliver any
instrument or make any payment on behalf of the Committee.
7.3 Committee Meetings: The Committee shall hold such meetings
upon such notice and at such places and intervals as it from time to time
determines. Notice of meetings shall not be required if waived in writing by all
members of the Committee at the time in office or if all such members are
present at the meeting.
7.4 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 and entitled to vote at any such
meeting. Resolutions may be adopted or other action taken without a meeting upon
written consent thereto signed by all members of the Committee.
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7.5 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.
The records of the Committee shall contain all relevant data pertaining to
individual participants and their rights under the plan and in the trust fund.
7.6 Establishment of Rules: Subject to the limitations of the
plan and ERISA, the Committee from time to time may establish rules or bylaws
for administration of the plan and transaction of its business.
7.7 Conflicts of Interest: No individual member of the
Committee shall have any right to vote or decide on any matter relating solely
to himself or 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 for elections as to payment of benefits pursuant to
Section 4.4.
7.8 Correction of Errors: The Committee may correct errors
and, so far as practicable, may adjust any benefit or credit or payment
accordingly. The Committee in its discretion may waive any notice requirement in
the plan; provided, that a waiver of a requirement to notify the Trustee shall
be made only with the consent of the Trustee. A waiver of notice in one case
shall not be a waiver of notice in any other case. Any power or authority the
Committee has discretion to exercise under the plan shall be exercised in a
nondiscriminatory manner.
7.9 Authority to Interpret Plan: Subject to objective plan
terms and the claims procedure set forth in Section 13, the Committee shall have
the duty and discretionary authority to interpret and construe the provisions of
the plan and decide any dispute which may arise regarding the rights of
participants hereunder, including the discretionary authority to make
determinations as to eligibility for participation and benefits under the plan.
Determinations by the Committee shall apply uniformly to all persons similarly
situated and shall be binding and conclusive upon all interested persons.
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7.10 Third Party Advisor: The Committee may engage an
attorney, accountant or any other technical adviser on matters regarding the
operation of the plan and to perform such other duties as may be required in
connection therewith. The Committee may employ such clerical and related
personnel as it deems requisite or desirable in carrying out the provisions of
the plan. From time to time, but no less frequently than annually, the Committee
shall review the financial condition of the plan and determine the financial and
liquidity needs of the plan as required by ERISA. The Committee shall
communicate such needs to the Company and Trustee so that the funding policy and
investment policy may be coordinated appropriately to meet such needs.
7.11 Compensation of Members: No member of the Committee, who
receives compensation from the Company for services as a full-time employee,
shall receive any fee or compensation for his services as such.
7.12 Committee Expenses: The Committee shall be entitled to
reimbursement out of the trust fund for its reasonable expenses properly and
actually incurred in the performance of its duties in the administration of the
plan; provided, that the Company, in the discretion of the Board, may pay such
expenses.
7.13 Indemnification of Committee: To the maximum extent
permitted by ERISA, no member of the Committee personally shall be liable by
reason of any contract or other instrument executed by him or on his behalf as a
member of the Committee or for any mistake of judgment made in good faith. The
Company 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 Company's own assets), each member of the Committee and each other
officer, employee, or director of the Company to whom any duty or power relating
to the administration or interpretation of the plan is 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
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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 8. Management of Funds and Amendment of Plan:
8.1 Fiduciary Duties: All assets of the plan shall be held in
the trust for the exclusive benefit of participants and their beneficiaries.
Such assets shall be administered as a trust fund to provide for the payment of
benefits as provided in the plan to participants or their successors in interest
out of the income and principal of the trust. All fiduciaries with respect to
the plan (as defined in ERISA) shall discharge their duties as such solely in
the interest of the participants and their successors in interest and (i) for
the exclusive purposes of providing benefits to participants and their
successors in interest and defraying reasonable expenses of administering the
plan as provided in Section 7.12 of the plan and Section 2.8 of the trust
agreement, (ii) with the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent person acting in a like capacity
and familiar with such matters would use in the conduct of an enterprise of like
character and with like aims, and (iii) in accordance with the plan and trust
agreement, except to the extent such documents may be inconsistent with the then
applicable federal laws relating to fiduciary responsibility. The trust fund
shall be used for the exclusive benefit of participants and their beneficiaries
and to pay administrative expenses of the plan and trust to the extent not paid
by the Company. No portion of the trust fund shall ever revert to or inure to
the benefit of the Company (except as otherwise provided in Sections 17 and
8.1.1). Notwithstanding the foregoing provisions of this Section 8.1, the
following provisions shall apply:
8.1.1 If the plan receives an adverse determination with
respect to the initial qualification of the plan under Section 401(a)
of the Code, on written request of the Company, the Trustee shall
return to the Company the amount of such contribution (increased by
earnings attributable thereto and reduced by losses attributable
thereto) within one calendar year after the date that qualification of
the plan is denied; provided, that the application for the
determination is made by the time prescribed by law for filing the
Company's federal income tax return for the
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taxable year in which the plan is adopted or such later date as the
Secretary of the Treasury may prescribe;
8.1.2 On written request of the Company, the Trustee shall
return a disallowed contribution to the extent the deduction is
disallowed under Section 404 of the Code (reduced by losses
attributable thereto, but not increased by earnings attributable
thereto) to the Company within one year after the date the deduction is
disallowed; and
8.1.3 If a contribution or any portion thereof is made by the
Company by mistake of fact, on written request of the Company, the
Trustee shall return the contribution or such portion (reduced by
losses attributable thereto, but not increased by earnings attributable
thereto) to the Company within one year after the date of payment to
the Trustee.
8.2 Trust Agreement: The Company, on behalf of each
employer-party to the plan, and the Trustee shall enter into an appropriate
trust agreement for the administration of the trust. The trust agreement shall
contain such powers and reservations as to investment, reinvestment, control and
disbursement of the funds of the trust, and such other provisions not
inconsistent with the provisions of the plan and its nature and purposes, as
shall be agreed on and set forth therein. Such agreement shall provide that the
Board may remove the Trustee at any time upon reasonable notice, the Trustee may
resign at any time upon reasonable notice, and on such removal or resignation
the Board shall designate a successor trustee.
8.3 Authority to Amend: The Board of Wachovia Corporation,
acting on behalf of the Company and all employer-parties to the plan, shall have
the right at any time and from time to time to amend or terminate the plan and
the trust agreement; provided, that (i) except as provided in Section 8.1, no
such amendment shall have the effect of diverting the trust fund to purposes
other than the exclusive benefit of participants, and (ii) no such amendment
that alters the duties, responsibilities or liabilities of the Trustee shall be
made unless the Trustee consents thereto in writing. No amendment to the plan
shall decrease a participant's accrued benefit as of the date of such amendment.
A plan amendment which has the effect of (a) eliminating a retirement-type
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subsidy or (b) eliminating an optional form of distribution shall be treated as
reducing accrued benefits. See Section 11 for provisions regarding termination
of the plan.
8.4 Requirements of Writing: All requests, directions,
requisitions and instructions of the Committee to the Trustee shall be in
writing, signed by such person or persons as designated by the Committee.
Section 9. Allocation of Responsibilities Among Named
Fiduciaries:
9.1 Duties of Named Fiduciaries: The named fiduciaries with
respect to the plan and the fiduciary duties and other responsibilities
allocated to each, which shall be carried out in accordance with the other
applicable terms and provisions of the plan, shall be as follows:
9.1.1 Board:
(i) To appoint and remove members of the Committee;
(ii) To appoint and remove trustees under the plan;
and
(iii) To determine the amount to be contributed to
the plan each year by the Company.
9.1.2 Committee:
(i) To interpret the provisions of the plan and
determine the rights of participants under the plan, except to
the extent otherwise provided in Section 13 relating to the
claims procedure;
(ii) To administer the plan in accordance with its
terms, except to the extent powers to administer the plan
specifically are delegated to another named fiduciary or other
person or persons as provided in the plan;
(iii) To account for the interests of participants in
the plan; and
(iv) To direct the Trustee in the distribution of
trust assets.
9.1.3 Plan administrator:
(i) To file such reports as may be required with the
United States Department of Labor, the Internal Revenue
Service and
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any other government agency to which reports may
be required to be submitted from time to time;
(ii) To comply with requirements of the law for
disclosure of plan provisions and other information relating
to the plan to participants and other interested parties; and
(iii) To administer the claims procedure to the
extent provided in Section 13.
9.1.4 Trustee:
(i) To invest and reinvest trust assets subject to
directions of the Committee, and the directions of the
investment manager, if any, appointed pursuant to the
provisions of the trust agreement;
(ii) To make distributions to participants as
directed by the Committee;
(iii) To render annual accountings to the Company as
provided in the trust agreement; and
(iv) Otherwise to hold, administer and control the
assets of the trust as provided in the plan and trust
agreement.
9.1.5 Investment manager: In the event the Trustee appoints an
investment manager to manage (including the power to acquire and
dispose of) assets of the trust under the plan, the duties of the
investment manager shall be to manage, acquire and dispose of assets of
the trust, or to direct the Trustee in the management, acquisition and
disposition of assets of the trust.
9.2 Co-fiduciary Liability: Except as otherwise provided in
ERISA, a named fiduciary shall not be responsible or liable for any act or
omission of another named fiduciary with respect to fiduciary responsibilities
allocated to such other named fiduciaries. A named fiduciary of the plan shall
be responsible and liable only for its own acts or omissions with respect to
fiduciary duties specifically allocated to it and designated as its
responsibility.
Section 10. Benefits Not Assignable:
No portion of the accrued benefit of any participant shall be
subject in any manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance or charge. Any attempt so
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to anticipate, alienate, sell, transfer, assign, pledge, encumber or charge the
same shall be void. No portion of such accrued benefit shall be payable in any
manner to any assignee, receiver or trustee, liable for the participant's debts,
contracts, liabilities, engagements or torts, or be subject to any legal process
to levy upon or attach. Notwithstanding any other provisions of the plan, the
accounts of any participant shall be subject to and payable in accordance with
the applicable requirements of any qualified domestic relations order, as
defined in Section 414(p) of the Code, and the plan administrator shall direct
the Trustee to provide for payment from a participant's accounts in accordance
with such order and with the provisions of Section 414(p) of the Code and any
regulations promulgated thereunder. Payments from a participant's accounts may
be made to an alternate payee (as defined in Section 414(p)(8) of the Code)
prior to the date the participant attains his earliest retirement age (as
defined in Section 414(p)(4)(B) of the Code) if such payments are made pursuant
to a qualified domestic relations order. All such payments pursuant to a
qualified domestic relations order shall be subject to reasonable rules and
regulations promulgated by the plan administrator respecting the time of payment
pursuant to such order and the valuation of the participant's accounts from
which payments are made; provided, that all such payments are made in accordance
with such order and Section 414(p) of the Code. The balance of each account of
the participant that is subject to any qualified domestic relations order shall
be reduced by the amount of any payment pursuant to such order. Notwithstanding
any provision of this Section 10 to the contrary, an offset to a participant's
accrued benefit against an amount that the participant is ordered or required to
pay the plan with respect to a judgment, order, or decree issued, or a
settlement entered into, on or after August 5, 1997, shall be permitted in
accordance with Sections 401(a)(13)(C) and (D) of the Code.
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Section 11. Termination of Plan and Trust; Merger or
Consolidation of Plan:
11.1 Complete Termination: In the event of a termination of
the plan (including a cessation of contributions which results in a termination
of the plan), all supplemental contributions shall cease and no additional
participants shall enter the plan. The assets under the plan shall thereupon
vest in the participants, beneficiaries or other successors in interest, as
their interests may appear. Such vested benefit of each such individual shall be
held in the plan for distribution in accordance with the provisions of Section
4; provided, that the Committee in its discretion may provide at any time for
liquidation of the trust and distribution to the participants of their accrued
benefits as provided in Section 4. If upon termination the plan does not offer
an annuity option (purchased from a commercial provider) and neither the Company
nor any affiliated employer maintains another defined contribution plan (other
than an employee stock ownership plan defined in Section 4975(e)(7) of the
Code), the participant's accrued benefit may, without the participant's consent,
be distributed to the participant. However, if the Company or any affiliated
employer maintains another defined contribution plan (other than an employee
stock ownership plan defined in Section 4975(e)(7) of the Code), the
participant's accrued benefit may, without the participant's consent, be
transferred to such other plan if the participant does not consent to an
immediate distribution. Notwithstanding the foregoing, all distributions upon
termination of the plan shall be subject to the limitations set forth in Section
4.4 of the plan. For purposes of the plan, a termination of supplemental
contributions or a suspension or reduction of such contributions amounting in
effect to a termination of contributions shall be a termination of the plan.
11.2 Partial Termination: In the event of a partial
termination of the plan, the provisions of Section 11.1 regarding a complete
termination shall apply in determining interests and rights of the participants
and their beneficiaries with respect to whom the partial termination occurs and
to the portion of the trust fund allocable to such participants and
beneficiaries.
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11.3 Merger or Consolidation: In the event of any merger or
consolidation of the plan with any other plan, or a transfer of assets or
liabilities of the plan to any other plan (which merged, consolidated or
transferee plan is referred to in this Section 11.3 as the "successor plan"),
the amount each participant would receive if the successor plan (and this plan,
if he has any interest remaining therein) were terminated immediately after the
merger, consolidation or transfer shall equal or be greater than the amount he
would have received if this plan (and the successor plan, if he had any interest
therein immediately prior to the merger, consolidation or transfer) were
terminated immediately preceding the merger, consolidation or transfer.
11.4 Protection of Benefits: No termination, partial
termination, merger or consolidation or transfer of assets of the plan shall
reduce a participant's accrued benefit or eliminate an optional form of
distribution. For purposes of this Section 11.4, a termination, partial
termination, merger or consolidation of the plan that has the effect of
decreasing a participant's accrued benefit or eliminating an optional form of
benefit with respect to benefits attributable to service before the amendment
shall be treated as reducing an accrued benefit.
Section 12. Communication to Employees:
The Company shall communicate the principal terms of the plan
to the participants and beneficiaries in accordance with the requirements of
ERISA. The Company shall make available for inspection by participants and their
beneficiaries, during reasonable hours at the principal office of the Company
and at such other places as may be required by ERISA, a copy of the plan, trust
agreement and such other documents as may be required by ERISA.
Section 13. Claims Procedure:
The following claims procedure shall apply with respect to the
plan:
13.1 Filing of a Claim for Benefits: If a participant or
beneficiary (the "claimant") believes he is entitled to benefits under the plan
that are not being paid to him or accrued for his
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benefit, he may file a written claim therefor with the plan administrator. If
the plan administrator is the claimant, all actions required to be taken by the
plan administrator pursuant to this Section 13 shall be taken instead by another
member of the Committee designated by the Committee.
13.2 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. If special
circumstances require an extension of time, a written notice of the extension
shall be furnished to the claimant prior to commencement of the extension
setting forth the special circumstances and the date by which the decision will
be furnished. If such claim is wholly or partially denied, notice thereof shall
be written 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 plan provisions 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 extension period, if applicable).
13.3 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
is not given, within 60 days following the latest date on which such notice
timely could have been given, the claimant may 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 submit issues and
comments in writing.
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13.4 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:
13.4.1 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. If special
circumstances require 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 extension period, if applicable).
13.4.2 The decision on review of a claim that is denied in
whole or in part shall set forth specific reasons for the decision
written in a manner calculated to be understood by the claimant and
shall cite the pertinent plan provisions on which the decision is
based.
13.4.3 The decision of the Committee shall be final and
conclusive.
13.5 Action by Authorized Representative of Claimant: All
actions set forth in this Section 13 to be taken by the claimant may be taken by
a representative of the claimant duly authorized by him to act on his behalf on
such matters. The plan administrator and the Committee may require such evidence
as either reasonably deems necessary or advisable of the authority of any such
representative to act.
Section 14. Portability of Participant Accounts:
Notwithstanding any provision of the plan to the contrary that
would otherwise limit a distributee's election under this Section 14, a
distributee may elect, at the time and in the manner prescribed by the plan
administrator, to have any portion of an eligible rollover distribution paid
directly to an eligible retirement plan specified by the distributee in a direct
rollover.
14.1 Definitions: The following definitions shall apply for
purposes of this
Section 14:
14.1.1. Eligible rollover distribution: An eligible rollover
distribution is any distribution of all or any portion of the balance
to the credit of the distributee, except that an eligible rollover
distribution does not include: any distribution that is one of a
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series of substantially equal periodic payments (not less frequently
than annually) made for the life (or life expectancy) of the
distributee or the joint lives (or joint life expectancies) of the
distributee and the distributee's designated beneficiary, or for a
specified period of ten years or more; any distribution to the extent
such distribution is required under Section 401(a)(9) of the Code; and
the portion of any distribution that is not includible in gross income
(determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities).
14.1.2 Eligible retirement plan: An eligible retirement plan
is an individual retirement account described in Section 408(a) of the
Code, an individual retirement annuity described in Section 408(b) of
the Code, an annuity plan described in Section 403(a) of the Code, or a
qualified trust described in Section 401(a) of the Code, that accepts
the distributee's eligible rollover distribution. However, in the case
of an eligible rollover distribution to the surviving spouse, an
eligible retirement plan is an individual retirement account or
individual retirement annuity.
14.1.3 Distributee: A distributee includes an employee or
former employee. In addition, the employee's or former employee's
surviving spouse and the employee's or former employee's spouse or
former spouse who is the alternate payee under a qualified domestic
relations order, as defined in Section 414(p) of the Code, are
distributees with regard to the interest of the spouse or former
spouse.
14.1.4 Direct rollover: A direct rollover is a payment by the
plan to the eligible retirement plan specified by the distributee.
14.2 Construction: Notwithstanding anything contained in this
Section 14 to the contrary, the provisions of this Section 14 shall at all times
be construed and enforced according to the requirements of Section 401(a)(31) of
the Code and the Treasury Regulations thereunder, as the same may be amended
from time to time.
Section 15. Rollovers:
An employee who receives a distribution from another
retirement plan which is qualified under Section 401(a) of the Code on the date
of such distribution may, with the written consent of the Committee in
accordance with procedures adopted by the Committee, transfer all or a part of
such distribution to the Trustee under this plan. The amount so transferred may
include cash or shares of common stock of Wachovia Corporation. In applying the
provisions of this Section 15, the following provisions shall apply:
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15.1 Timing: The transfer to the Trustee must occur on or
before the 60th day following the receipt by the employee of such distribution
or if such distribution has previously been deposited in an individual
retirement account or individual retirement annuity (as defined in Section 408
of the Code), the transfer must occur on or before the 60th day following the
receipt by the employee of the balance to his credit under such individual
retirement account or individual retirement annuity.
15.2 Eligibility: The distribution made to the employee must
be an eligible rollover distribution within the meaning of Section 402(c)(4) of
the Code.
15.3 Maximum Amount: The amount transferred to the trustee
shall not exceed the amount that would otherwise be includible in the gross
income of the participant if not transferred as provided in this Section 15.
15.4 Accounting: The amount transferred to the Trustee shall
be credited to the rollover account of the participant and shall be fully
vested. The transferred assets shall be administered by the Trustee in the same
manner as other trust assets.
15.5 Transfers Prior to Becoming a Participant: If an eligible
employee who makes such a transfer has not completed the participation
requirements of Section 1.25, the rollover account shall represent his sole
interest in the plan until he becomes a participant.
Section 16. Special Top-Heavy Provisions:
The following special provisions shall apply and supersede any
conflicting provision in the plan with respect to any plan year in which the
plan is determined to be top-heavy (as described in Section 16.1.6):
16.1 Definitions: The following definitions shall apply for
purposes of this
Section 16:
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16.1.1 "Company contributions" for purposes of Section 16.2.1
may include supplemental matching contributions made prior to January
1, 1999, to the extent permitted under Section 416 of the Code and the
regulations issued thereunder. Company contributions with respect to
any participant who is not a key employee shall not include elective
contributions.
16.1.2 "Determination date" means for any plan year, the last
day of the preceding plan year.
16.1.3 "Key employee" means any employee or former employee
(and the beneficiaries of such employee) who at any time during the
determination period is an officer of the Company if such individual's
annual statutory compensation exceeds 50 percent of the dollar
limitation under Section 415(b)(1)(A) of the Code, an owner (or
considered an owner under Section 318 of the Code) of one of the 10
largest interests in the Company if such individual's statutory
compensation exceeds 100 percent of the dollar limitation under Section
415(c)(1)(A) of the Code, a 5 percent owner of the Company, or a 1
percent owner of the Company who has an annual statutory compensation
of more than $150,000. Annual statutory compensation means statutory
compensation as defined in Section 1.37 of the plan. The determination
period shall be the plan year containing the determination date and the
preceding 4 plan years. The determination of who is a key employee will
be made in accordance with Section 416(i)(1) of the Code.
16.1.4 "Permissive aggregation group" means the required
aggregation group and any other plan or plans of the Company which,
when considered as a group with the required aggregation group, would
continue to satisfy the requirements of Sections 401(a)(4) and 410 of
the Code.
16.1.5 "Required aggregation group" means (i) each qualified
plan of the Company in which at least one key employee participates or
participated at any time during the determination period (regardless of
whether the plan has terminated), and (ii) any other qualified plan of
the Company which enables a plan described in (i) to meet the
requirements of Section 401(a)(4) or 410 of the Code.
16.1.6 "Top-heavy plan" means, for any plan year beginning
after December 31, 1983, the plan if any of the following conditions
exists:
(i) The top-heavy ratio for the plan exceeds 60
percent and the plan is not part of any required aggregation
group or permissive aggregation group.
(ii) This plan is a part of a required aggregation
group but not part of a permissive aggregation group and the
top-heavy ratio for such group exceeds 60 percent.
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(iii) This plan is a part of a required aggregation
group and part of a permissive aggregation group and the
top-heavy ratio for the permissive aggregation group exceeds
60 percent.
16.1.7 "Top-heavy ratio" means the following:
(i) If the Company maintains one or more defined
contribution plans (including any simplified employee pension
plan) and has not maintained any defined benefit plan which
during the 5 year period ending on the determination date(s)
has or has had accrued benefits, the top-heavy ratio for this
plan alone or for the required or permissive aggregation
group, as appropriate, shall be a fraction, the numerator of
which is the sum of the accrued benefits of all key employees
as of the determination date(s) including any part of any
accrued benefit distributed in the 5 year period ending on the
determination date(s), and the denominator of which is the sum
of all accrued benefits including any part of any accrued
benefit distributed in the 5 year period ending on the
determination date(s), both computed in accordance with
Section 416 of the Code. Both the numerator and denominator of
the top-heavy ratio are increased to reflect any contribution
not actually made as of the determination date, but which is
required to be taken into account on that date under Section
416 of the Code.
(ii) If the Company maintains one or more defined
contribution plans (including any simplified employee pension
plan) and the Company maintains or has maintained one or more
defined benefit plans which during the 5 year period ending on
the determination date(s) has or has had any accrued benefits,
the top-heavy ratio for any required or permissive aggregation
group as appropriate is a fraction, the numerator of which is
the sum of accrued benefits under the aggregated defined
contribution plan or plans for all key employees, determined
in accordance with paragraph (i) above, and the present value
of accrued benefits under the aggregated defined benefit plan
or plans for all key employees as of the determination
date(s), and the denominator of which is the sum of the
accrued benefits under the aggregated defined contribution
plan or plans for all participants, determined in accordance
with paragraph (i) above, and the present value of accrued
benefits under the defined benefit plan or plans for all
participants as of the determination date(s), all determined
in accordance with Section 416 of the Code. The accrued
benefits under a defined benefit plan in both the numerator
and denominator of the top-heavy ratio are increased for any
distribution of an accrued benefit made in the 5 year period
ending on the determination date.
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(iii) For purposes of paragraphs (i) and (ii) above,
the value of account balances and the present value of accrued
benefits will be determined as of the most recent valuation
date that falls within or ends with the 12-month period ending
on the determination date, except as provided in Section 416
of the Code for the first and second plan years of a defined
benefit plan. The account balances and accrued benefits of a
participant who (a) is not a key employee but who was a key
employee in a prior year, or (b) is not credited with at least
one hour of service with any employer maintaining the plan at
any time during the 5 year period ending on the determination
date will be disregarded. Calculation of the top-heavy ratio,
and the extent to which distributions, rollovers, and
transfers are taken into account shall be made in accordance
with Section 416 of the Code. Deductible employee
contributions will not be taken into account for purposes of
computing the top-heavy ratio. When aggregating plans, the
value of account balances and accrued benefits will be
calculated with reference to the determination dates that fall
within the same calendar year. The accrued benefit of a
participant other than a key employee shall be determined
under (a) the method, if any, that uniformly applies for
accrual purposes under all defined benefit plans maintained by
the Company, or (b) if there is no such method, as if such
benefit accrued not more rapidly than the slowest accrual rate
permitted under the fractional rule of Section 411(b)(1)(C) of
the Code.
16.1.8 "Valuation date" means the year-end adjustment date as
defined in Section 1.5.
16.2 Top-Heavy Requirements: Notwithstanding any other
provisions of the plan, the plan must satisfy the following requirements for any
plan year in which the plan is a top-heavy plan:
16.2.1 Minimum allocation requirements: Except as otherwise
provided in (a) and (b) below, the Company contributions allocated to
his account on behalf of any participant who is not a key employee
shall not be less than the lesser of 3 percent of such participant's
statutory compensation or, if the Company has no defined benefit plan
which designates this plan to satisfy Section 416 of the Code, the
largest percentage of Company contributions allocated on behalf of any
key employee for that year. The minimum allocation shall be determined
without regard to any Social Security contribution. This minimum
allocation shall be made even though, under other plan provisions, the
participant otherwise is not entitled to receive an allocation, or
would have received a lesser allocation for the year, because of (i)
the participant's failure to complete 1,000 hours of service (or any
equivalent provided in the plan), (ii) the participant's failure to
make mandatory employee contributions to the plan, or (iii) statutory
compensation less than a stated amount.
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The provisions of this Section 16.2.1 shall not apply: (a) to any
participant who was not employed by the Company on the last day of the
plan year, or (b) to any participant to the extent the participant is
covered under any other plan or plans of the Company that provide that
the minimum allocation or benefit requirement applicable to top-heavy
plans shall be met in the other plan or plans. The minimum allocation
required (to the extent required to be nonforfeitable under Section
416(b) of the Code) shall not be forfeited under Section 411(a)(3)(B)
or 411(a)(3)(D) of the Code. If any additional Company contribution is
required to be made on behalf of a participant to satisfy the
provisions of this Section 16.2.1, such Company contribution shall be
allocated to the supplemental contribution account of the participant.
Notwithstanding the foregoing, if the Company maintains any other
defined contribution plan, the Company shall provide a minimum
allocation under one such plan equal to 3 percent of statutory
compensation for each non-key employee who is entitled to a minimum
allocation under each of the plans.
16.2.2 Minimum vesting requirements: For any plan year in
which the plan is top-heavy, each participant shall remain fully vested
in his accrued benefit.
Section 17. Limitations on Allocations:
17.1 Limitations: Subject to the provisions of Sections 17.3
and 17.4, in no event shall the sum of the annual additions to the account of a
participant for any limitation year beginning on or after January 1, 1987, under
this plan and any other defined contribution plan (as defined in Section 17.4)
of the Company, exceed in the aggregate the lesser of: (a) $30,000, referred to
herein as the "dollar limitation," or (b) 25 percent of such participant's
statutory compensation received during the limitation year, referred to herein
as the "statutory compensation limitation." The amount of the dollar limitation
shall be adjusted in accordance with the Code to reflect increases in the cost
of living. If the limitations provided in this Section 17.1 would be exceeded
for any limitation year with respect to any participant, any required reduction
in the annual additions to his account shall be made as provided in Section
17.2. The provisions of this Section 17.1 are effective for plan years beginning
on and after January 1, 1995.
17.2 Adjustments: If, as a result of the allocation of
forfeitures, a reasonable error in estimating a participant's statutory
compensation, a reasonable error in determining the amount of elective
contributions that may be made by a participant under the limitations of this
Section 17, or
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other limited facts and circumstances, the dollar limitation or statutory
compensation limitation set forth in Section 17.1 would be exceeded for any
limitation year, such excess with respect to a participant for such limitation
year shall be disposed of as follows:
(i) First, any participant contributions, and any gains
attributable thereto, to the extent of such excess shall be returned to
the participant.
(ii) Second, any elective contributions, and any gains
attributable thereto, to the extent of such excess shall be returned to
the participant.
(iii) If further reductions are necessary, then such
participant's share of the supplemental contributions for the
limitation year shall be reduced to the extent of any such remaining
excess. The amount of the reduction shall be reallocated among the
remaining participants in the ratio that each such participant's
statutory compensation during the limitation year in question bears to
the aggregate statutory compensation of all such participants during
such limitation year and before any participant contributions, elective
contributions or supplemental contributions for such limitation year
are allocated. If all of the amount of such reduction with respect to
the participant and the amount of any reduction with respect to any
other participant cannot be reallocated without causing the account of
each other participant to exceed the dollar limitation or the statutory
compensation limitation, then such amount shall be credited to a
separate account, designated as the "allocation suspense account."
(iv) The allocation suspense account shall contain the excess
amounts of supplemental contributions from all limitation years. Such
excess amounts shall be allocated for each succeeding limitation year
among the accounts of participants in the ratio that each such
participant's statutory compensation for the limitation year in
question bears to the aggregate statutory compensation of all such
participants during such limitation year and before any participant
contributions, supplemental contributions or elective contributions for
such year are allocated. The allocation suspense account shall not
share in the valuation of the accounts and the allocation of earnings.
Any earnings attributable to the allocation suspense account shall be
treated as earnings of the trust and allocated to the accounts as
provided in Section 5. The allocation suspense account shall be
adjusted annually for additions thereto and distributions therefrom. If
the plan is terminated, any balance in the allocation suspense account
shall be returned to the Company.
Notwithstanding anything to the contrary in the plan, if all or part of a
participant's elective contribution or participant contribution is distributed
to the participant pursuant to the provisions of paragraph (i) and (ii) of this
Section 17.2, the supplemental matching contribution made with respect to such
elective contribution or participant contribution, adjusted for income and
losses allocable
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thereto, shall be forfeited by the participant on or before the March 15 next
following the end of the plan year for which the supplemental matching
contribution was made (the "forfeiture date"). The income or loss allocable to
the forfeited supplemental matching contribution for the plan year of such
supplemental matching contribution shall be determined by multiplying the amount
of the income or loss allocable to the participant's share of the supplemental
contributions made in cash for such plan year by a fraction, the numerator of
which is the forfeited contribution for such plan year, and the denominator of
which is equal to the sum of (i) the balance in the participant's supplemental
contributions account as of the beginning of such plan year; and (ii) the
participant's share of the supplemental contributions made in cash for such plan
year. Forfeitures of supplemental matching contributions (including income and
losses allocable thereto) shall reduce the amount of supplemental contributions
which the Company otherwise is obligated to make pursuant to Section 2.3, if
any.
17.3 Participation in this Plan and a Defined Benefit Plan: This
Section 17.3 shall apply with respect to limitation years beginning prior to
January 1, 2000. If at any time a participant is a participant in the plan and
in a defined benefit plan of the Company, in no event shall the sum of the
defined benefit fraction (as defined in this Section 17.3) and the defined
contribution fraction (as defined in this Section 17.3) for any limitation year
exceed 1.0; provided, that if the limitations of Section 415 of the Code as in
effect for the last limitation year beginning before January 1, 1987, were not
exceeded for such limitation year, but the limitation of this Section 17.3 would
be exceeded for any subsequent year, the defined contribution fraction computed
for the limitation year beginning before January 1, 1987, shall be adjusted
permanently by subtracting from the numerator an amount equal to the product of
(i) and (ii), where (i) is the amount by which the sum of the defined benefit
fraction and the defined contribution fraction exceeds 1.0, and (ii) is the
denominator of the defined contribution fraction determined as of the day next
preceding the first limitation year beginning after
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December 31, 1986. For purposes of this Section 17.3, and except as otherwise
provided in this Section 17, the "defined benefit fraction" for any limitation
year of a defined benefit plan shall be a fraction the numerator of which is the
projected annual benefit of the participant under all defined benefit plans (as
determined as of the close of such limitation year), and the denominator of
which is the lesser of (i) the product of 1.25 and the dollar limitation in
effect for defined benefit plans for such limitation year (referred to herein as
the "defined benefit dollar limitation"), and (ii) the product of 1.4 and 100
percent of the participant's average annual statutory compensation for the
period of 3 consecutive calendar years (or the actual number of consecutive
years of employment with the Company if the participant was employed by the
Company for less than 3 consecutive years) which will produce the highest
average (referred to herein as the "defined benefit statutory compensation
limitation"); provided, that in the case of an individual who was a participant
in a defined benefit plan before January 1, 1983, if such participant's current
accrued benefit under such plan exceeds the defined benefit dollar limitation,
the denominator of the defined benefit fraction shall be the product of 1.25 and
the amount of such participant's current accrued benefit. The "defined
contribution fraction" for any limitation year of the plan shall be a fraction
the numerator of which is the sum of the annual additions to the participant's
accounts under the plan and all other defined contribution plans maintained by
the Company through the close of such limitation year, and the denominator of
which is the sum of the lesser of (A) or (B) for such limitation year and each
prior limitation year during which the participant was an employee of the
Company (regardless of whether a plan was in existence during those years),
where (A) is the product of 1.25 and the dollar limitation in effect for such
limitation year (determined without regard to Section 415(c)(6) of the Code),
and (B) is the product of 1.4 and the statutory compensation limitation for the
limitation year. If the limitation provided in this Section 17.3 would be
exceeded for any limitation year, the reduction in the sum
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of the defined benefit fraction and the defined contribution fraction necessary
to comply with the limitation shall be made in the defined benefit fraction.
17.4 Definitions: For the purpose of applying the rules of this Section
17, the following provisions shall apply: (a) the "limitation year" shall be the
plan year; (b) "Social Security retirement age" means the age at which a
participant is eligible to retire and receive an unreduced benefit under the
Social Security Act; (c) all defined benefit plans of the Company shall be
considered as a single plan, and all defined contribution plans of the Company
shall be considered as a single plan; (d) "projected annual benefit" means the
annual normal retirement benefit payable in the form of a single life annuity
(with no ancillary benefits) to which a participant would be entitled under the
terms of the defined benefit plan if the following factors are assumed: (i) the
participant will continue employment with the Company until he reaches Social
Security retirement age (or until his then current age, if he has previously
reached Social Security retirement age); (ii) the participant's statutory
compensation for the limitation year will remain the same until the date the
participant attains Social Security retirement age; and (iii) all other relevant
factors used to determine benefits under the defined benefit plan for the
limitation year will remain constant for all future limitation years; (e) the
"annual addition" with respect to any limitation year of the plan beginning on
or after January 1, 1987, means the sum of the following items allocated on
behalf of a participant: (i) Company contributions, including, without
limitation, excess contributions, excess aggregate contributions; (ii) all
forfeitures; (iii) the amount of the participant's nondeductible employee
contributions for the limitation year (nondeductible employee contributions
shall be considered made with respect to a particular plan year if such
contributions actually are made by the participant during such plan year or
within 30 days after the close of such plan year); (iv) amounts allocated after
March 31, 1984, to an individual medical account, as defined in Section 415(l)
of the Code, which is part of a defined benefit plan maintained by the Company;
and (v) amounts derived
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from contributions paid or accrued after December 31, 1985, in taxable years
ending after such date, which are attributable to post-retirement medical
benefits allocated to the separate account of a key employee, as defined in
Section 419A(d) of the Code, under a welfare benefit fund, as defined in Section
419(e) of the Code, maintained by the Company; provided, that the following are
not "annual additions": (1) transfers of funds from one qualified plan to
another; (2) rollover contributions (as defined in Sections 402(a)(5), 403(a)(4)
and 408(d)(3) of the Code); (3) repayments of loans made to a participant from
the plan; (4) repayments of distributions received by an employee pursuant to
Section 411(a)(7)(B) of the Code; (5) repayments of distributions received by an
employee pursuant to Section 411(a)(3)(D) of the Code (mandatory contributions);
(6) employee contributions to a simplified employee pension allowed as a
deduction under Section 219(a) of the Code; (7) deductible employee
contributions to a qualified plan; and (8) excess elective deferrals distributed
to a participant pursuant to Section 2.1.1 of the plan; (f) "defined
contribution plan" means a plan, including this plan, that provides for an
individual account for each participant and for benefits based solely on the
amount contributed to the participant's account and any income, expenses, gains
and losses, and forfeitures of accounts of other participants that may be
allocated to such participant's account; and "defined benefit plan" means any
plan that is not a defined contribution plan; provided, that only plans which
are described in Section 415(k)(1) of the Code shall be included within the
definition of a defined contribution plan or a defined benefit plan, as the case
may be; (g) any affiliated employer shall be considered to be the Company;
provided that for the purposes of this Section 17, determination of the members
of a controlled group of employers and employers under common control pursuant
to Sections 414(b) and (c) of the Code shall be made by substituting the phrase
"more than 50 percent" for the phrase "at least 80 percent" each place it
appears in Section 1563(a)(1) of the Code; and (h) notwithstanding anything in
this Section 17 to the
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contrary, the limitations, adjustments and other requirements prescribed in this
Section 17 shall comply with Section 415 of the Code.
Section 18. Parties to the Plan:
As of the effective date, the following employers, in addition to
Wachovia Corporation, are parties to the plan and trust agreement:
Wachovia Bank, N.A.
Wachovia Corporate Services, Inc
Wachovia Investments, Inc.
Wachovia Operational Services Corporation
Wachovia Trust Services, Inc.
Wachovia Mortgage Company
Wachovia International Banking Corporation
Wachovia Leasing Corporation
Wachovia Auto Leasing Company of North Carolina
Wachovia Bank Card Services, Inc.
Wachovia Auto Leasing Company of Georgia
Atlantic Savings Bank, FSB
Wachovia Insurance Services, Inc.
Wachovia Insurance Services of South Carolina, Inc.
Wachovia International Services Limitadae
Wachovia Capital Investments, Inc.
Wachovia Community Development Corporation
Wachovia Capital Associates
Macro*World Research Corporation
Central Fidelity Banks, Inc.
Jefferson Bankshares, Inc.
1st United Bancorp
Hunt, DuPree, Rhine & Associates, Inc.
Retirement Plan Securities, Inc.
Wachovia Capital Markets, Inc.
By separate agreement with Wachovia Corporation and the Trustee, one or more
additional employers may become parties to the plan and trust agreement. The
following provisions shall apply to all parties to the plan except as otherwise
expressly provided herein or in such separate agreement:
18.1 Application of Plan and Trust Agreement: As used in the
plan and trust agreement, the term "Company" means collectively all parties to
the plan. The plan and trust agreement shall apply separately to each party in
all respects as if it alone were a party to the plan,
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except that the funds of the several parties may be commingled for the purpose
of investment. Contributions to be made under the plan with respect to each
party to the plan shall be determined and paid separately by each party, and the
benefits payable under the plan of each party shall be determined and paid
separately by each party.
18.2 Service with an Employer-party: Service for purposes of the plan
shall be interchangeable among employer-parties to the plan and shall not be
deemed interrupted or terminated by the transfer at any time of an employee from
the service of one employer-party to service of another employer-party. Except
to the extent otherwise specifically provided herein, service with any
employer-party prior to the date such employer became an affiliated employer
shall be disregarded for all purposes of the plan other than for determining the
eligibility of an employee to become a participant in the plan as applied to
such employer-party and the vested interest of such employee in his benefit
under the plan. In the event of a transfer of service, the account maintained
under the plan and the interest in the trust fund of the transferred employee
shall remain under the plan and in the trust fund of the employer-party from
which such employee transferred, subject to continued adjustment. Such account
shall be disposed of in accordance with the applicable terms of the plan upon
the retirement, death or other termination of service of the transferred
employee.
18.3 Contributions: Notwithstanding the foregoing, any supplemental
contributions made by a party pursuant to Section 2.3 shall be allocated as if
such contribution were the sole supplemental contributions made with respect to
the plan and as if the participants employed by such party were the only
participants in the plan.
18.4 Authority of Board: The Board of Directors of Wachovia Corporation
shall have the power to amend or terminate the plan and trust agreement as
applied to each employer-party to the plan and the proper officers of each party
to the plan shall be authorized to execute all
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documents and take all other actions as shall be deemed necessary or advisable
to effectuate and carry out any such amendment as applied to such party.
18.5 Merger with North Georgia Bank: Effective April 1, 1988, North
Georgia Bank was merged into Wachovia Bank of Georgia, N.A., formerly The First
National Bank of Atlanta ("Atlanta Bank"). Notwithstanding any other provision
of the plan to the contrary, an employee of North Georgia Bank prior to April 1,
1988, who became an employee of Atlanta Bank as a result of such merger, shall
receive credit for purposes of participation and vesting under the plan for his
service with North Georgia Bank prior to April 1, 1988.
18.6 Acquisition of North Wilkesboro Federal Savings and Loan
Association: Effective September 9, 1988, the assets and liabilities of North
Wilkesboro Federal Savings and Loan Association (the "Association") were
acquired by Wachovia Bank of North Carolina, N.A., formerly Wachovia Bank and
Trust Company, N.A. ("Wachovia Bank"). Notwithstanding any other provision of
the plan to the contrary, an employee of the Association prior to September 9,
1988, who became an employee of Wachovia Bank as a result of such acquisition,
shall receive credit for purposes of participation and vesting under the plan
for his service with the Association prior to September 9, 1988.
18.7 Merger of First Bank & Trust Company: Effective September 15,
1989, First Bank & Trust Company ("First Bank") was merged into Atlanta Bank.
Notwithstanding any other provision of the plan to the contrary, the following
provisions shall apply:
18.7.1 An employee of First Bank prior to September 15, 1989,
who became an employee of Atlanta Bank as a result of such merger,
shall receive credit for purposes of his participation and vesting
under the plan for his service with First Bank prior to September 15,
1989. Prior to such merger, First Bank maintained the First Bank &
Trust Company Section 401(k) Profit Sharing Plan (the "First Bank
Plan"). A participant in the First Bank Plan who became an employee of
Atlanta Bank as a result of the merger shall become a participant in
the plan on September 15, 1989 (such participants are referred to
herein as "plan merger participants").
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18.7.2 The assets of the First Bank Plan shall be merged with
the assets of the plan effective as of the close of business of the
plan on December 31, 1989, subject to the following provisions:
(i) The elective account of a plan merger participant
under the First Bank Plan shall become part of his elective
contributions account under the plan.
(ii) If a plan merger participant had 3 or more years
of service under the First Bank Plan on December 31, 1989, his
matching account and nonelective account under the First Bank
Plan shall become part of his supplemental contributions
account under the plan. Such supplemental contributions
account shall be fully vested after December 31, 1989.
(iii) If a plan merger participant had less than 3
years of service under the First Bank Plan on December 31,
1989, his matching account and nonelective account under the
First Bank Plan shall be maintained as separate accounts under
the plan subject to the following vesting schedule:
Years of Service Vested Percentage
----------------- -----------------
Less than 1 0%
1 50%
2 75%
3 or more 100%
As of the adjustment date coincident with or next following
the date on which the plan merger participant becomes fully
vested in his supplemental contributions account under the
plan, such matching account and nonelective account shall
become part of his supplemental contributions account.
For purposes of this Section 18.7.2, a "year of service" shall mean a
twelve consecutive month period beginning on the date a plan merger
participant first completed an hour of service and each anniversary
thereof during which such participant completes at least 1,000 hours of
service.
18.8 Acquisition of Great Southern Federal Savings and Loan
Association: Effective June 22, 1990, certain of the assets and liabilities of
Great Southern Federal Savings and Loan Association (the "Association") were
acquired from the Resolution Trust Corporation, Receiver of the Association, by
a wholly-owned subsidiary of First Atlanta Corporation, and the
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employees of the Association became temporary contract employees ("contract
employees") of Atlanta Bank. Following their period of service as contract
employees, certain of the contract employees became employees of the Atlanta
Bank or of another subsidiary or affiliate of the Company ("non-contract
employees"). Notwithstanding any other provision of the plan to the contrary, an
employee of the Association prior to June 22, 1990, who became a non-contract
employee of the Atlanta Bank or of any other subsidiary or affiliate of the
Company as a result of such acquisition and after a period of service as a
contract employee, shall receive credit for purposes of participation and
vesting under the plan for his service with the Association prior to June 22,
1990 and for his service as a contract employee of the Atlanta Bank on and after
June 22, 1990. A contract employee who becomes a non-contract employee on or
before October 1, 1990, shall enter the plan on October 1, 1990, provided such
individual meets all other eligibility requirements of the plan. A contract
employee who becomes a non-contract employee after October 1, 1990, or who is
not otherwise eligible to enter the plan on October 1, 1990, shall enter the
plan of the entry date next following the date he fulfills all eligibility
requirements of the plan.
18.9 Sale of Wachovia Student Financial Services, Inc.: Pursuant to the
Stock Purchase Agreement (the "Agreement"), dated February 2, 1993 (the "Closing
Date"), by and among Wachovia Corporation of North Carolina (the "Seller"),
Wachovia Student Financial Services, Inc. ("WSFS") and EduServ Technologies,
Inc. (the "Buyer"), the Seller sold all of the outstanding capital stock of WSFS
to the Buyer. As a result of such sale, WSFS is not an affiliated employer with
the Company after the Closing Date and service and compensation with WSFS after
the Closing Date shall not be taken into account for purposes of the plan. Each
employee of WSFS who is a participant in the plan on the Closing Date (a "WSFS
Participant") shall be fully vested in his account under the plan as of the
Closing Date. Each WSFS Participant who continues in service with the Buyer
after the Closing Date shall be treated as a vested terminated participant for
purposes
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of the plan and may elect to receive his vested account balance
pursuant to Section 4.4 as soon as practical following the Closing Date.
18.10 Merger with The First National Bank of Henry County: The
following special provisions shall apply with respect to the merger of The First
National Bank of Henry County Savings and Investment Plan (the "Henry County
Plan") into this plan:
18.10.1 Each employee of The First National Bank of Henry
County (the "Henry County Bank") who becomes an employee of the Company
(a "former Henry County Employee") as a result of the merger of the
Henry County Bank into Wachovia Bank of Georgia, N.A. (the "Bank
Merger") shall be credited with service with Henry County Bank for
purposes of participation and vesting under this plan.
18.10.2 Each former Henry County Employee who was eligible to
participate in the Henry County Plan as of the effective date of the
Bank Merger shall become a participant in this plan on such date (a
"former Henry County Participant").
18.10.3 Upon the merger of the Henry County Plan into this
Plan, the account balance under the Henry County Plan of each former
Henry County Participant shall be credited to the elective contribution
account of such participant under this plan.
18.10.4 Notwithstanding the provisions of this plan to the
contrary, the Committee may establish such additional rules and
guidelines as shall be necessary to prevent the reduction or
elimination of a protected benefit right of a former Henry County
Participant under the Henry County Plan.
18.11 Acquisition of Macro*World Research Corporation:
Effective June 19, 1997, Macro*World Research Corporation ("MWRC") became an
affiliate of the Company. Each employee of MWRC on June 19, 1997, shall be
credited with service prior to June 19, 1997, with MWRC for purposes of
participation and vesting under this plan.
18.12 Acquisition of Hunt, DuPree, Rhine & Associates, Inc.:
The Hunt, DuPree, Rhine & Associates, Inc. 401(k) Profit-Sharing Plan (the "HDR
Plan") will be merged into this plan effective as of the close of business of
the HDR Plan on September 30, 1998. Notwithstanding any other provision of the
plan to the contrary, the following provisions shall apply:
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18.12.1 Participants in the HDR Plan as of July 1, 1998, and
employees of Hunt, DuPree, Rhine & Associates, Inc. ("HDR") or
Retirement Plan Securities, Inc. ("RPS") who would have been eligible
to enter the HDR Plan on July 1, 1998, shall become participants in
this plan on such date (such participants are referred to herein as
"Plan Merger Participants").
18.12.2 Each employee of HDR or RPS shall receive credit for
purposes of participation and vesting under the plan for his service
with HDR or RPS prior to July 1, 1998; provided, that no credit shall
be given for more than one year of service with respect to any calendar
year.
18.12.3 The accrued benefit of each Plan Merger Participant in
the HDR Plan ("HDR Account") shall be transferred to the account
maintained under this plan for the Plan Merger Participant. The HDR
Account of each Plan Merger Participant under this plan shall be
invested and adjusted in the same manner as the other accounts under
this plan. Each Plan Merger Participant shall be fully vested in his
HDR Account.
18.12.4 The HDR Account of a Plan Merger Participant who is
married shall be distributable in the form of a qualified joint and
survivor annuity, and the HDR Account of a Plan Merger Participant who
is not married shall be distributable in the form of a life annuity,
unless the Plan Merger Participant makes a qualified election as
described in Section 11 of the HDR Plan for the HDR Account to be
distributed pursuant to the provisions of Section 4 of this plan.
18.12.5 The HDR Account of a Plan Merger Participant who dies
prior to the commencement of benefit payments shall be distributable to
his surviving spouse in the form of a qualified preretirement survivor
annuity unless an optional form of benefit has been selected during the
election period pursuant to a qualified election as described in
Section 11 of the HDR Plan.
18.12.6 Notwithstanding the provisions of this plan to the
contrary, the Committee may establish such additional rules and
guidelines as shall be necessary to prevent the reduction or
elimination of a protected benefit right of a Plan Merger Participant.
Section 19. Special Provisions Applicable to Participants
in the Savings Incentive Plan of First Atlanta
Corporation:
Pursuant to the Savings Incentive Plan Merger Agreement (the
"Agreement") dated November 1, 1988, by and among First Wachovia Corporation,
The Wachovia Corporation, Wachovia Bank and Trust Company, N.A., First Atlanta
Corporation, and The First National Bank of Atlanta, the Savings Incentive Plan
of First Atlanta Corporation, (the "Atlanta Plan") was merged into the Savings
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Incentive Plan of The Wachovia Corporation ("the Wachovia Plan") effective as of
the close of business of the Atlanta Plan on December 31, 1988 (the "Merger
Date"). The Wachovia Plan was amended and restated by the Savings Incentive Plan
of First Wachovia Corporation (the "First Wachovia Plan") effective January 1,
1989. The First Wachovia Plan was subsequently amended and restated by the
Retirement Savings and Profit-Sharing Plan of Wachovia Corporation effective
January 1, 1990. Incident to the Agreement, participants in the Atlanta Plan and
the Wachovia Plan became participants in the First Wachovia Plan as of January
1, 1989. In administering the plan with respect to those employees who were
participants in the Wachovia Plan and Atlanta Plan as of the Merger Date, the
following rules shall apply:
19.1 Accounts: The accrued benefit of each participant in the Wachovia
Plan and Atlanta Plan as of the Merger Date was valued as of such date. The
accrued benefit of each such participant was credited to his account under the
First Wachovia Plan as of January 1, 1989, as follows:
(i) The elective contributions account of a participant in the
Wachovia Plan prior to January 1, 1989, was credited with his elective
accounts and matured elective account under the Wachovia Plan as of
December 31, 1986. The elective contributions account of a participant
in the Atlanta Plan prior to January 1, 1989, was credited with his
pre-tax employee basic and supplemental contributions, and all earnings
with respect thereto, under the Atlanta Plan as of December 31, 1986.
(ii) The participant contributions account of a participant in
the Wachovia Plan prior to January 1, 1989, was credited with the
portion of his vested account under the Wachovia Plan as of December
31, 1986, attributable to participant contributions and his participant
contribution accounts under the Wachovia Plan as of December 31, 1986.
The participant contributions account of a participant in the Atlanta
Plan prior to January 1, 1989, was credited with his after-tax employee
basic and supplemental contributions, and all earnings with respect
thereto, under the Atlanta Plan as of December 31, 1986.
(iii) The supplemental contributions account of a participant
in the Wachovia Plan prior to January 1, 1989, was credited with the
portion of his vested account under the Wachovia Plan as of December
31, 1986, attributable to supplemental contributions and his class year
accounts under the Wachovia Plan as of December 31, 1986. The
supplemental contributions account of a participant in the Atlanta Plan
prior to January 1, 1989, was credited with his profit-sharing account
and employer
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contributions with respect to him, and all earnings with
respect thereto, under the Atlanta Plan as of December 31, 1986.
19.2 Vesting: In no event shall the vested percentage of the
accrued benefit under this plan of each participant in the plan who was a
participant in the Atlanta Plan or Wachovia Plan as of the Merger Date be less
than the vested percentage of the accrued benefit of such participant had the
Atlanta Plan or Wachovia Plan continued in effect through the date on which such
vested percentage is determined.
Section 20. Special Provisions Applicable to Participants
in the South Carolina National Corporation
Amended and Restated Savings, Thrift and Deferred
Cash Plan:
Pursuant to a Plan Asset Transfer Agreement dated as of
October 23, 1992, certain assets of the South Carolina National Corporation
Amended and Restated Savings Thrift and Deferred Cash Plan (the "South Carolina
Plan") were transferred to this plan as of the close of business of the South
Carolina Plan on December 30, 1992. In administering the plan with respect to
those employees who were participants in the South Carolina Plan as of December
30, 1992, the following rules shall apply:
20.1 Service Crediting: Employees of South Carolina National
Corporation or its affiliates prior to December 30, 1992, shall receive credit
for their service under the South Carolina Plan prior to December 31, 1992, for
purposes of participation and vesting under this plan. A participant in the
South Carolina Plan shall become a participant in this plan on December 30, 1992
(such participants are referred to herein as "SCNC participants").
20.2 Accounting: The assets transferred from the South
Carolina Plan with respect to a SCNC participant shall, as of December 31, 1992,
be allocated to his account under this plan as follows:
(i) The amounts attributable to participant nondeductible
contributions and earnings thereon under the South Carolina Plan shall
be credited to his participant contributions account, and shall remain
fully vested.
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(ii) The amounts attributable to deferred cash contributions
and earnings thereon under the South Carolina Plan shall be credited to
his elective contributions account, and shall remain fully vested.
(iii) The amounts attributable to company PNC and DDC
contributions made under the South Carolina Plan before January 1,
1992, and earnings thereon shall be credited to his supplemental
contributions account under the plan, and shall remain fully vested.
(iv) The amounts attributable to company PNC and DDC
contributions made under the South Carolina Plan after December 31,
1991, and earnings thereon shall be credited to his supplemental
contributions account under the plan, and shall be subject to the
vesting schedule described in Section 3.
20.3 QVEC Accounts: Pursuant to the Plan Termination and
Merger Agreement (the "Agreement") dated as of July 22, 1994, by and among South
Carolina National Corporation, Wachovia Bank of South Carolina, N.A., Wachovia
Corporation and Wachovia Bank of North Carolina, N.A., the QVEC account of each
participant in the South Carolina Plan shall be distributable as of July 31,
1994. In the event a participant does not consent to a distribution of the QVEC
account pursuant to the Agreement, the QVEC account shall be transferred in cash
to this plan; provided, that the portion of the QVEC account that is invested in
Investment Fund A representing shares of Wachovia Corporation common stock shall
be transferred to this plan in kind. Such transferred amounts shall be held in a
separate account for the participant in this plan (which account shall be
referred to herein as the "QVEC Account"). The QVEC account shall be invested in
accordance with Section 6 of this plan and shall be adjusted in accordance with
Section 5 of this plan as if the QVEC account represented the entire account of
the participant. A participant having a QVEC account under this plan shall be
entitled to any benefit rights under the South Carolina Plan which are required
to be protected under Section 411(d)(6) of the Code.
20.4 Merger of the South Carolina Plan: Pursuant to the
Agreement referred to in Section 20.3, the assets of the South Carolina Plan
shall be transferred to this plan as of the close of the business of the South
Carolina Plan on December 30, 1994. The balance in the ESOP account of each
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participant in the South Carolina Plan as of December 30, 1994, shall be
credited to the supplemental contributions account of such participant under
this plan and shall be fully vested. Such amount transferred from the South
Carolina Plan shall be initially invested in the Wachovia stock fund.
Thereafter, the transferred amounts shall be administered in the same manner as
the supplemental contributions account of the participant.
Section 21. Special Provisions Relating to the Merger of
the Wachovia Bank of Georgia, N.A. Employee Stock
Ownership Plan:
Pursuant to the Plan Merger Agreement (the "Agreement") dated
July 22, 1994, by and among Wachovia Bank of Georgia, N.A., Wachovia Corporation
and Wachovia Bank of North Carolina, N.A., the Wachovia Bank of Georgia, N.A.
Employee Stock Ownership Plan (the "Georgia Plan") was merged into this plan
effective as of the close of business of the Georgia Plan on December 31, 1994
(the "Merger Date"). In accordance with such Agreement, the assets of the
Georgia Plan were transferred to this plan as of the Merger Date. The balance in
the account of each participant in the Georgia Plan as of the Merger Date shall
be credited to the supplemental contributions account of such participant under
this plan and shall be fully vested. Such amount transferred from the Georgia
Plan shall be initially invested in the Wachovia stock fund. Thereafter, the
transferred amounts shall be administered in the same manner as the supplemental
contributions account of the participant.
Section 22. Special Provisions Applicable to Participants
in the Jefferson Bankshares, Inc. Profit Sharing
Plan:
The Jefferson Bankshares, Inc. Profit Sharing Plan (the
"Jefferson Plan") will be merged into this plan effective as of the close of
business of the Jefferson Plan on the later of December 31, 1997, or the last
day of the month following the effective date of the merger of Jefferson
Bankshares, Inc. ("Jefferson") with the Company or an affiliate thereof (the
"Merger Date"). The following special provisions shall apply with respect to the
merger of the Jefferson Plan into this plan:
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22.1 Participants in the Jefferson Plan as of the Merger Date,
and employees of Jefferson who would have been eligible to enter the Jefferson
Plan on the first day of the month following the Merger Date (the "Entry Date"),
shall become participants in this plan on the Entry Date (such participants are
referred to herein as "Plan Merger Participants").
22.2 Service credited under the Jefferson Plan with respect to
each Plan Merger Participant who was employed by Jefferson on the Merger Date,
and service by a Plan Merger Participant prior to the Merger Date with
Jefferson, Central Fidelity Banks, Inc., 1st United Bancorp, or the Company (or
any combination thereof), shall be taken into account as service under this
plan; provided, that no credit shall be given for more than one year of service
with respect to any calendar year.
22.3 If a Plan Merger Participant is displaced within one year
following the merger of Jefferson with the Company, and the Plan Merger
Participant is eligible for severance benefits from the Company in a form other
than a lump sum payment as a result of being displaced, the service and
compensation of the Plan Merger Participant shall be recognized for purposes of
this plan to the extent provided under the terms of the applicable severance
arrangement.
22.4 The account balance of each Plan Merger Participant in
the Jefferson Plan as of the Merger Date shall be his accrued benefit under this
plan with respect to service before the Entry Date. In no event shall the vested
percentage of the accrued benefit of each Plan Merger Participant under the plan
as of the Entry Date be less than the vested percentage of the Plan Merger
Participant under the Jefferson Plan determined as of the Merger Date.
22.5 Amounts allocated to the account of a Plan Merger
Participant under the Jefferson Plan as of the Merger Date shall be allocated
under this plan as follows:
(i) Amounts allocated to the Restricted Employer Contributions
Account, Non-Restricted Employer Contributions Account, Transferred
Employer Contributions Account and Rollover Account (other than amounts
attributable to voluntary after-tax
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contributions) shall be allocated to the supplemental contributions
account of the Plan Merger Participant, and shall remain fully vested.
(ii) Amounts allocated to the Transferred Elective
Contributions Account shall be allocated to the elective contributions
account of the Plan Merger Participant, and shall remain fully vested.
(iii) Amounts allocated to the Transferred Non-Elective
Contributions Account and amounts attributable to voluntary after-tax
contributions credited to the Rollover Account shall be allocated to
the participant contributions account of the Plan Merger Participant,
and shall remain fully vested.
22.6 The Committee shall apply provisions similar to those set
forth in this Section 22 to the extent applicable to the merger into this plan
of the Peoples Bank of Front Royal Profit Sharing Plan and the Virginia Bankers
Association Defined Contribution Plan for the Bank of Loudoun, which shall occur
as soon as practicable on or after the merger of Jefferson with the Company.
Section 23. Special Provisions Applicable to Participants in
the Central Fidelity Banks, Inc. Stock and
Thrift Plan:
The Central Fidelity Banks, Inc. Stock and Thrift Plan (the
"Central Fidelity Plan") will be merged into this plan effective as of the close
of business of the Central Fidelity Plan on the later of December 31, 1997, or
the last day of the month following the effective date of the merger of Central
Fidelity Banks, Inc. ("Central Fidelity") with the Company or an affiliate
thereof (the "Merger Date"). The following special provisions shall apply with
respect to the merger of the Central Fidelity Plan into this plan:
23.1 Participants in the Central Fidelity Plan as of the
Merger Date, and employees of Central Fidelity who would have been eligible to
enter the Central Fidelity Plan on the first day of the month following the
Merger Date (the "Entry Date"), shall become participants in this plan on the
Entry Date (such participants are referred to herein as "Plan Merger
Participants").
23.2 Service credited under the Central Fidelity Plan with
respect to each Plan Merger Participant who was employed by Central Fidelity on
the Merger Date, and service by a Plan Merger
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Participant prior to the Merger Date with Central Fidelity, Jefferson
Bankshares, Inc., 1st United Bancorp or the Company (or any combination
thereof), shall be taken into account as service under this plan; provided, that
no credit shall be given for more than one year of service with respect to any
calendar year.
23.3 If a Plan Merger Participant is displaced within one year
following the merger of Central Fidelity with the Company, and the Plan Merger
Participant is eligible for severance benefits from the Company in a form other
than a lump sum payment as a result of being displaced, the service and
compensation of the Plan Merger Participant shall be recognized for purposes of
this plan to the extent provided under the terms of the applicable severance
arrangement.
23.4 The account balance of each Plan Merger Participant in the Central
Fidelity Plan as of the Merger Date shall be his accrued benefit under this plan
with respect to service before the Entry Date. In no event shall the vested
percentage of the accrued benefit of each Plan Merger Participant under the plan
as of the Entry Date be less than the vested percentage of the Plan Merger
Participant under the Central Fidelity Plan determined as of the Merger Date.
23.5 Notwithstanding the provisions of Section 4.5.1, if a Plan Merger
Participant has more than one loan outstanding under the Central Fidelity Plan
as of the Merger Date, such loans shall be transferred in kind to the loan
account of the Plan Merger Participant under this plan, and shall remain
outstanding in accordance with their terms.
23.6 Amounts allocated to the account of a Plan Merger Participant
under the Central Fidelity Plan as of the Merger Date shall be allocated under
this plan as follows:
(i) Amounts allocated to the Employer Account and Rollover
Account shall be allocated to the supplemental contributions account of
the Plan Merger Participant, and shall remain fully vested.
(ii) Amounts allocated to the Savings Account attributable to
Tax Saver Contributions shall be allocated to the elective
contributions account of the Plan Merger Participant, and shall remain
fully vested.
(iii) Amounts allocated to the Savings Account attributable to
Standard Saver Contributions shall be allocated to the participant
contributions account of the Plan Merger Participant, and shall remain
fully vested.
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(iv) Amounts allocated to the Deductible Contribution Account,
if any, shall be maintained under this plan as a part of the account of
the Plan Merger Participant, and shall remain fully vested.
Section 24. Special Provisions Applicable to Participants in
the 1st United Bank Savings and Profit Sharing
Plan:
The 1st United Bank Savings and Profit Sharing Plan (the "1st
United Plan") will be merged into this plan effective as of the close of
business of the 1st United Plan on the later of December 31, 1997, or the last
day of the month following the effective date of the merger of 1st United
Bancorp ("1st United") with the Company or an affiliate thereof (the "Merger
Date"). The following special provisions shall apply with respect to the merger
of the 1st United Plan into this plan:
24.1 Participants in the 1st United Plan as of the Merger
Date, and employees of 1st United who would have been eligible to enter the 1st
United Plan on the first day of the month following the Merger Date (the "Entry
Date"), shall become participants in this plan on the Entry Date (such
participants are referred to herein as "Plan Merger Participants").
24.2 Service credited under the 1st United Plan with respect
to each Plan Merger Participant who was employed by 1st United on the Merger
Date, and service by a Plan Merger Participant prior to the Merger Date with 1st
United, Central Fidelity Banks, Inc., Jefferson Bankshares, Inc. or the Company
(or any combination thereof), shall be taken into account as service under this
plan; provided, that no credit shall be given for more than one year of service
with respect to any calendar year.
24.3 If a Plan Merger Participant is displaced within one year
following the merger of 1st United with the Company, and the Plan Merger
Participant is eligible for severance benefits from the Company in a form other
than a lump sum payment as a result of being displaced, the service and
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compensation of the Plan Merger Participant shall be recognized for purposes of
this plan to the extent provided under the terms of the applicable severance
arrangement.
24.4 The account balance of each Plan Merger Participant in
the 1st United Plan as of the Merger Date shall be his accrued benefit under
this plan with respect to service before the Entry Date. In no event shall the
vested percentage of the accrued benefit of each Plan Merger Participant under
the plan as of the Entry Date be less than the vested percentage of the Plan
Merger Participant under the 1st United Plan determined as of the Merger Date.
24.5 Amounts allocated to the account of a Plan Merger
Participant under the 1st United Plan as of the Merger Date shall be allocated
under this plan as follows:
(i) Employer elective contributions, and earnings with respect
thereto, shall be allocated to the elective contributions account of
the Plan Merger Participant and shall remain fully vested.
(ii) Employer matching contributions and Employer non-elective
contributions, and earnings with respect thereto, allocated to the
account of a Plan Merger Participant who had completed five or more
years of service under the 1st United Plan shall be allocated to the
supplemental contributions account of the Plan Merger Participant and
shall remain fully vested.
(iii) Employer matching contributions and Employer
non-elective contributions, and earnings with respect thereto,
allocated to the account of a Plan Merger Participant who had completed
fewer than five years of service under the 1st United Plan shall be
maintained as separate accounts under the plan subject to the following
vesting schedule:
Years of Service Vested Percentage
---------------- -----------------
Less than 1 0%
1 33 1/3%
2 66 2/3%
3 or more 100%
As of the adjustment date coincident with or next following the date on
which the Plan Merger Participant becomes fully vested in his
supplemental contributions account under the plan, such Employer
matching contributions and Employer non-elective contributions made
under the 1st United Plan, and earnings with respect thereto, shall
become part of his supplemental contributions account.
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Section 25. Special Provisions Applicable to Participants in
the American Bank of Hollywood Employee Retirement
Savings Plan:
The American Bank of Hollywood Employee Retirement Savings
Plan (the "American Bank Plan") will be merged into this plan effective as of
the close of business of the American Bank Plan on December 31, 1999 ("Merger
Date"). Notwithstanding any other provision of the plan to the contrary, the
following special provisions shall apply with respect to the merger of the
American Bank Plan into this plan:
25.1 Each employee of the Company who is in service as of
April 1, 1998, who was a participant in the American Bank Plan immediately prior
to such date, shall become a participant in this plan on April 1, 1998 (such
participants are referred to herein as "Plan Merger Participants"). Each
employee of American Bank of Hollywood ("American Bank") shall receive credit
for purposes of participation and vesting under the plan for his service with
American Bank prior to April 1, 1998; provided, that no credit shall be given
for more than one year of service with respect to any calendar year.
25.2 As of the Merger Date, the vested accrued benefit of each
Plan Merger Participant in the American Bank Plan shall be credited to his
accrued benefit maintained under this plan and shall be fully vested. The
accrued benefit of each Plan Merger Participant under this plan shall be
invested and adjusted in the same manner as the other accounts under this plan.
25.3 The accrued benefit of a Plan Merger Participant who is
married shall be distributable in the form of a qualified joint and survivor
annuity, and the accrued benefit of a Plan Merger Participant who is not married
shall be distributable in the form of a life annuity, unless the Plan Merger
Participant makes a qualified election as described in Article XIV of the
American Bank Plan for his accrued benefit to be distributed pursuant to the
provisions of Section 4 of this plan.
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25.4 The accrued benefit of a Plan Merger Participant who dies
prior to the commencement of benefit payments shall be distributable to his
surviving spouse in the form of a qualified preretirement survivor annuity
unless an optional form of benefit has been selected during the election period
pursuant to a qualified election as described in Article XIV of the American
Bank Plan.
25.5 Notwithstanding the provisions of this plan to the
contrary, the Committee may establish such additional rules and guidelines as
shall be necessary to prevent the reduction or elimination of a protected
benefit right of a Plan Merger Participant.
Section 26. Compliance with the Uniformed Services Employment
and Reemployment Rights Act of 1994:
Notwithstanding any provision of the plan to the contrary, the
following special provisions shall apply with respect to a participant's
reemployment rights under the Uniformed Services Employment and Reemployment
Rights Act of 1994 ("USERRA"):
26.1 Treatment of USERRA Contributions: Any contributions (the
"USERRA contributions ") made to the plan by the Company or a participant by
reason of such participant's reemployment rights under USERRA, shall not be
subject to the maximum dollar limit in Section 2.1.1 or the annual addition
limitations in Section 17, and shall not be taken into account in applying such
limitations to other contributions under the plan or any other plan, with
respect to the plan year in which such USERRA contributions are made. USERRA
contributions shall, however, be subject to such limitations with respect to the
plan year to which the USERRA contributions relate. The plan shall not be
treated as failing to meet the requirements of Sections 401(a)(4), 401(k)(3),
401(k)(11), 401(k)(12), 401(m), 410(b) or 416 of the Code by reason of the
USERRA contributions.
26.2 Rights With Respect to Elective Contributions and
Participant Contributions:
26.2.1 A participant who is entitled to reemployment rights
under USERRA may elect to make additional elective contributions and
participant contributions (the "make-up contributions") to the plan
during the period which begins on the date such participant reenters
service with the Company and has the same length as the lesser of
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(i) the product of 3 and the period of the participant's qualified
military service which resulted in such rights, and (ii) 5 years. The
maximum amount of the make-up contributions a participant may make to
the plan pursuant to this Section 26.2 shall be the maximum amount that
the participant could have made to the plan during the period of the
participant's qualified military service if the participant had
continued in service during such period and continued to receive his
compensation from the Company. Proper adjustment shall be made to the
amount determined under the preceding sentence for any elective
contributions and participant contributions actually made by the
participant during his period of qualified military service.
26.2.2 With respect to each participant who actually makes
make-up contributions to the plan, the Company shall contribute to the
trust under the plan the supplemental contributions with respect to
such make-up contributions that would have been required by Section 2.3
had such make-up contributions been made during the period of the
participant's qualified military service.
26.2.3 Earnings shall not be credited to any contributions
made pursuant to this Section 26 until such contributions are actually
received by the plan.
26.3 Special Service Crediting Rules: A participant entitled
to reemployment rights under USERRA shall not be treated as having
incurred a break in service by reason of such participant's period of
qualified military service. Each period of qualified military service
shall be treated as service for purposes of determining such
participant's vested accrued benefit.
26.4 Definitions: The following definitions shall apply for
purposes of this Section
26:
26.4.1 "Qualified military service" means any service in the
uniformed services (as defined in USERRA) by any participant if such
participant is entitled to reemployment rights under USERRA with
respect to such service.
26.4.2 "Compensation" means the compensation the participant
would have received during his period of qualified military service if
the participant were not in qualified military service, determined
based on the rate of pay the participant would have received from the
Company but for his absence during his period of qualified military
service. If the compensation the participant would have received during
such period is not reasonably certain, compensation shall mean the
participant's average compensation from the Company during the 12-month
period immediately preceding his qualified military service (or, if
shorter, the period of service immediately preceding his qualified
military service).
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26.5 Construction: Notwithstanding anything contained in this
Section 26 to the contrary, the provisions of this Section 26 are effective
October 13, 1996, and shall at all times be construed and enforced according to
the requirements of USERRA and Section 414(u) of the Code.
Section 27. Miscellaneous Provisions:
27.1 Notices: Each participant who is not in service and each
beneficiary shall be responsible for furnishing the plan administrator with his
current address for mailing notices, reports, 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 first class mail. If any
check mailed to such address is returned as undeliverable to the addressee,
mailing of checks shall be suspended until the participant or beneficiary
furnishes the proper address. This provision shall not require the mailing of
any notice or notification otherwise permitted to be given by posting or other
publication.
27.2 Lost Distributees: A benefit shall be deemed forfeited if
the plan administrator is unable after a reasonable period of time to locate the
participant or beneficiary to whom payment is due; provided, that such benefit
shall be reinstated if a claim is made by or on behalf of the participant or
beneficiary for the forfeited benefit.
27.3 Reliance on Data: The Company, Committee, Trustee, and
plan administrator may rely on any data provided by a participant or
beneficiary, including representations as to age, health, and marital status.
Such representations shall be binding on any party seeking to claim a benefit
through a participant, and the Company, Committee, Trustee and plan
administrator shall have no obligation to inquire into the accuracy of any
representation made at any time by a participant or beneficiary.
27.4 Bonding: Every fiduciary, except a bank or an insurance
company, shall be bonded for each plan year to the extent required by ERISA. The
bond shall provide protection to the plan against any loss by reason of acts of
fraud or dishonesty by the fiduciary alone or in connivance
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with others. The cost of the bond shall be an expense of the trust and shall be
paid by the Trustee subject to the provisions of Section 7.12 of the plan and
Section 2.2 of the trust agreement.
27.5 Receipt and Release for Payments: Each participant by
participating in the plan conclusively shall be deemed to agree to look solely
to the assets held under the trust for payment of any benefit to which such
participant may be entitled by reason of such participation. Any payment made
from the plan to or with respect to any participant or beneficiary, or pursuant
to a disclaimer by a beneficiary, shall be in full satisfaction of all claims
hereunder against the plan, Company and all fiduciaries with respect to the plan
to the extent of such payment. As a condition precedent to payment, the
recipient of any payment from the plan may be required by the Committee to
execute a receipt and release with respect thereto in such form as is acceptable
to the Committee.
27.6 No Guarantee: The Trustee, Committee and Company in no
way guarantee the trust fund from loss or depreciation, nor do they guarantee
the payment of any money or other assets from the trust fund that may be or
become due to any person. Nothing herein contained shall give any participant or
beneficiary an interest in any specific part of the trust fund or any other
interest except the right to receive benefits from the trust fund in accordance
with the provisions of the plan and trust.
27.7 Headings: The headings and subheadings of the plan are
inserted for convenience of reference and shall be ignored in any construction
of the provisions hereof.
27.8 Continuation of Employment: The establishment of the plan
shall not confer any legal or other right upon any employee or person for
continuation of employment, nor shall it interfere with the right of the Company
to discharge any employee or to deal with him without regard to the effect
thereof under the plan.
27.9 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 such laws are superseded by the provisions of ERISA.
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27.10 Compliance with Securities Laws: 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 the plan complies with
Rule 16b-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934 (or any successor rule).
27.11 Effect of Divestitures: If the service of a participant
is terminated on account of the sale of the branch where the participant is
employed or other divestiture or displacement affecting the participant (a
"Displaced Participant"), the following special provisions shall apply:
27.11.1 The Displaced Participant shall be fully vested in his
accrued benefit without regard to the years of service completed by the
Displaced Participant.
27.11.2 The Displaced Participant shall be eligible for
supplemental contributions pursuant to Section 2.3 based on the service
and compensation of the Displaced Participant prior his termination
date, notwithstanding the fact that the Displaced Employee is not in
service on the last day of the plan year in which such termination
occurs.
IN WITNESS WHEREOF, the Retirement Savings and Profit-Sharing
Plan of Wachovia Corporation is, by authority of the Board of Directors of the
Company, executedin behalf of the Company, as of the 16th day of March, 1999.
WACHOVIA CORPORATION
By: /s/ Leslie M. Baker, Jr.
-----------------------------
President
Attest:
/s/ William M. Watson, Jr.
- ------------------------------
Secretary
[Corporate Seal]
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