Exhibit 10(kk)
MBNA CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT
PLAN
(As Amended and Restated Effective
January 1, 2005)
ARTICLE I
Title and Effective
Date
1.01 This Plan shall be known as the MBNA Corporation
Supplemental Executive Retirement Plan (hereinafter referred to as
the “ Plan ”).
1.02 The initial effective date of the Plan was
January 29, 1991. The Plan was subsequently amended several
times. Bank of America Corporation is amending and restating the
Plan as set forth herein effective as of January 1, 2005
(unless otherwise provided herein) to (i) provide for the
Plan’s compliance with the requirements of Code
Section 409A and (ii) otherwise meet current needs.
ARTICLE II
Definitions
As used herein, the following capitalized terms shall have the
meanings specified below unless a different meaning is clearly
required by the context.
2.01 “ Administrator ” shall mean
the committee designated pursuant to Article VIII of the Plan. For
purposes of the Plan, for calendar years beginning prior to
January 1, 2006 the Administrator was the Corporation and for
purposes of Sections 2.15, 3.01(a) and 3.01(b), the Compensation
Committee of the Board of Directors was the Administrator.
2.02 “ Attained Age ” means the
Member’s age as of his last birthday, except to the extent
provided in Section 4.02(c).
2.03 “ Average Monthly Earnings ”
means the highest average monthly base salary paid to the relevant
Member for any 12-consecutive month period during the 144-month
period immediately preceding the termination of the Member’s
employment. A Member’s annual base salary for purposes of
determining Average Monthly Earnings shall be limited as set forth
in the applicable SERP Benefit Schedule.
2.04 “ Beneficiary ” means any
person, persons, trust, estate planning entity, or estate of a
Member entitled to receive any benefits under this Plan.
2.05 “ Cause ” means
(a) willful and continued failure by a Member to substantially
perform the Member’s duties with the Corporation as such
duties may be reasonably defined from time to time; (b) a
significant violation of the Corporation’s code of ethics; or
(c) a felony conviction or guilty plea that results in a
sentence that is not suspended of incarceration of 6 months or
more.
2.06 “ Change of Control ”
means:
(a) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the “ Exchange
Act ”)) (a “ Person ”) of
beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 40% or more of either (i) the then
outstanding shares of the common stock of the Corporation (the
“ Outstanding Corporation Common Stock ”)
or (ii) the combined voting power of the then outstanding
voting securities of the Corporation entitled to vote generally in
the election of directors (the “ Outstanding
Corporation Voting Securities ”);
provided , however , that for purposes
of this subsection (a), the following acquisitions shall not
constitute a Change of Control: (A) any acquisition directly
from the Corporation, (B) any acquisition by the Corporation
or any corporation or other entity controlled by the Corporation,
(C) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Corporation or any
corporation or other entity controlled by the Corporation,
(D) any acquisition pursuant to a transaction which complies
with clauses (i), (ii) and (iii) of subsection
(c) of this Section 2.06, or (E) any acquisition by
an underwriter temporarily holding securities pursuant to an
offering; or
(b) Individuals who, as of the effective date hereof, constitute
the Board of Directors of the Corporation (the “
Incumbent Board ”) cease for any reason to
constitute at least a majority of the Board of Directors of the
Corporation; provided , however , that
any individual becoming a director subsequent to the effective date
hereof whose election, or nomination for election by the
Corporation’s shareholders, was approved by a vote of at
least a majority of the directors then comprising the Incumbent
Board (either by specific vote or by approval, without prior
written notice to the Board of Directors objecting to the
nomination, of a proxy statement in which the individual was named
as nominee), shall be considered as though such individual were a
member of the Incumbent Board but excluding for this purpose any
such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to
the election or removal of directors or other actual or threatened
solicitation of proxies by or on behalf of a Person other than the
Board of Directors of the Corporation; or
(c) Consummation of a reorganization, merger or consolidation or
sale or other disposition of all or substantially all of the assets
of the Corporation (a “ Business Combination
”), in each case unless, following such Business Combination,
(i) all or substantially all of the individuals and entities
who were the beneficial owners, respectively, of the Outstanding
Corporation Common Stock and Outstanding Corporation Voting
Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 50% of,
respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, as the
case may be, of the corporation or other entity resulting from such
Business Combination (or a corporation or other entity which as a
result of such transaction owns the Corporation or all or
substantially all of the Corporation’s assets either directly
or through one or more subsidiaries (either corporation or entity,
a “ Resulting Corporation ”)) in
substantially the same proportions as their ownership,
immediately
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prior to such Business Combination, of the Outstanding Corporation
Common Stock and Outstanding Corporation Voting Securities, as the
case may be, (ii) no Person (excluding any Resulting
Corporation or any employee benefit plan (or related trust) of the
Corporation, such Resulting Corporation or any corporation
controlled by either) beneficially owns, directly or indirectly,
40% or more of, respectively, the then outstanding shares of common
stock of the Resulting Corporation or the combined voting power of
the then outstanding voting securities of such corporation or other
entity except to the extent that such ownership existed prior to
the Business Combination and (iii) at least a majority of the
members of the board of directors of the corporation or other
entity resulting from such Business Combination were members of the
Incumbent Board at the time of the execution of the initial
agreement, or of the action of the board, providing for such
Business Combination; or
(d) Approval by the shareholders of the Corporation of a complete
liquidation or dissolution of the Corporation.
Without in any way broadening the definition of “beneficial
owner,” for purposes of this definition, no Person will be
the “beneficial owner” of any security solely
(1) because the security has been tendered into a tender or
exchange offer until the tendered security is accepted for
payment or exchange or (2) because of the power to vote or
direct the voting of the security pursuant to a revocable proxy
given in response to a public proxy or consent solicitation that
was made to more than 10 holders of a class of security that is
then registered under Section 12 of the Exchange Act. In
addition, a Change of Control shall not be deemed to occur solely
because any Person acquires beneficial ownership of more than 40%
of the Outstanding Corporation Common Stock or Outstanding
Corporation Voting Securities as a result of the acquisition of
securities by the Corporation or any corporation or other entity
controlled by the Corporation; provided that, if after such
acquisition by the Corporation or corporation or other entity such
Person becomes the beneficial owner of additional Outstanding
Corporation Common Stock or Outstanding Corporation Voting
Securities that increases the percentage beneficially owned by such
Person and the percentage continues to be above 40%, a Change of
Control of the Corporation shall then occur.
2.07 “Code” means the Internal
Revenue Code of 1986, as amended. References to the Code shall
include the valid and binding governmental regulations, court
decisions and other regulatory and judicial guidance issued or
rendered thereunder.
2.08 “ Competition ” means
obtaining a position as director, trustee, officer or employee, or
acting as a consultant or advisor to, or acquiring an ownership
interest in excess of 5% in any corporation, partnership, firm or
other business entity that engages in any business which competes
with the business of the Corporation.
2.09 “ Corporation ” means Bank of
America Corporation, a Delaware corporation, and any successor
thereto. In addition, as the context may require, (a) when
such term is used herein in connection with or in reference to the
employment of any Member or the compensation paid or benefits
provided to any Member, such term shall include any direct or
indirect subsidiary of Bank of America Corporation which employs
such Member or pays compensation or provides benefits to such
Member, and (b) when used in connection with the termination
of any Member’s
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employment or
competition with the Corporation, such term shall include all
direct and indirect subsidiaries of Bank of America Corporation.
For purposes of the Plan, MBNA Corporation was the predecessor the
Bank of America Corporation for calendar years beginning prior to
January 1, 2006.
2.10 “ Disability Retirement Date
” means the first day of the first calendar month commencing
on or after the date a Disabled Member becomes Disabled.
2.11 “ Disability ” or “
Disabled ” means the Member is, by reason of
any medically determinable physical or mental impairment that can
be expected to result in death or can be expected to last for a
continuous period of not less than 12 months, receiving disability
benefits for a period of not less than 3 months under the
Corporation’s long-term disability plan in effect at the time
the Member becomes disabled. Notwithstanding anything in this
Section to the contrary, the definition of “Disability”
or “Disabled” shall be construed consistently with the
provisions of Code Section 409A and the related regulations
and guidance issued thereunder.
2.12 “ Good Reason ” means
(a) any reduction in the salary or annual bonus potential or
any significant reduction in aggregate compensation and benefits
(other than salary and bonus potential), other than (i) an
isolated, insubstantial and inadvertent reduction not occurring in
bad faith and which is remedied by the Corporation promptly after
receipt of notice thereof given by the affected Member, or
(ii) a reduction in aggregate compensation and benefits (other
than salary and bonus potential) to a level which is applicable to
all similarly-situated associates of the Corporation; or
(b) the Corporation’s requiring the Member to be based
at any office or location more than 60 miles from that at which he
was based immediately before a Change of Control.
2.13 “ Member ” means an associate
of the Corporation who is part of a select group of management or
highly compensated employees and who has become a Member as
provided in Article III hereof.
2.14 “ Qualified Plan ” means the
Bank of America Pension Plan for Legacy MBNA or any successor plan
thereto. For purposes of the Plan, for calendar years beginning
prior to January 1, 2007 the “Qualified Plan” was
referred to as the MBNA Corporation Pension Plan.
2.15 “ Retired Member ” means any
Member who has terminated employment with the Corporation for any
reason other than Cause, death or Disability, and who is receiving
retirement income under Section 4.01 of this Plan. The term
“Retired Member” shall not include any Member who has
received a lump sum payment pursuant to Article VII.
2.16 “ SERP Benefit Schedule ”
means the schedule specified by the Administrator, in its sole
discretion, which prescribes the percentage of Average Monthly
Earnings as of any particular Attained Age and the maximum annual
base salary used to calculate Average Monthly Earnings.
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ARTICLE III
Membership in the
Plan
3.01 Membership.
(a) Selection of Members . The Administrator, in its sole
discretion, shall select the associates of the Corporation who
shall be Members. At the time the Administrator selects an
individual for membership in the Plan, the Administrator shall
specify a SERP Benefit Schedule applicable to such Member.
Notwithstanding anything in this Section to the contrary, no
associate shall become eligible to participate in the Plan after
December 31, 2005.
(b) Removal of Members. The Administrator shall also have
the right to remove a Member from the Plan, or reduce the amounts
or percentages specified on the SERP Benefits Schedule applicable
to such Member, at any time in its sole discretion and for any
reason; provided , however , that with
respect to a person who has been a Member for a period of 5 or more
years or with respect to any Member following a Change of Control,
the Administrator may not remove such Member from the Plan or
modify the applicable SERP Benefits Schedule so as to reduce the
percentage of Average Monthly Earnings or the maximum annual base
salary used to calculate the Member’s Plan benefits.
(c) Removal for Cause. Notwithstanding anything in the Plan
to the contrary, a Member whose employment with the Corporation is
terminated for Cause shall be removed from the Plan and immediately
shall forfeit all rights and entitlements under the Plan.
3.02 Removal of Retired Members. All benefits payable
under the Plan to a Retired Member shall terminate, and the Retired
Member and his Beneficiaries shall not receive any further benefits
under the Plan, if:
(a) the Retired Member engages in Competition unless (i) the
Retired Member has received written consent to engage in
Competition from the Administrator, or (ii) the Retired
Member’s employment terminated under the circumstances
described in Section 4.02; or
(b) the Retired Member is convicted of a felony that would, if the
Retired Member were employed by the Corporation, constitute
Cause.
3.03 Continuous Employment Requirement. The payment
of benefits to the Member or his Beneficiary under this Plan is
conditioned upon the continuous employment of the Member by the
Corporation (including periods of disability and authorized leaves
of absence) from the date the Member becomes a Member in the Plan
until the earliest of (a) entitlement to Regular Retirement
Benefits as described in Section 4.01(a), (b) termination
of the Member’s employment under circumstances described in
Section 4.02, (c) Disability or (d) death.
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ARTICLE IV
Retirement
Benefits
4.01 Regular Retirement Benefits.
(a) Entitlement to Regular Retirement Benefits. A Member
shall be entitled to receive regular retirement benefits as
specified in this Section 4.01 if (i) such Member has
been in the employ of the Corporation until the Member has either
(I) attained age 65 or (II) attained age 60 and been employed
by the Corporation for at least 10 years, and (ii) such
Member’s employment with the Corporation terminates for any
reason other than Cause, death, Disability or as provided in
Section 4.02.
(b) Amount of Regular Retirement Benefits. A Member’s
regular retirement benefits under this Section 4.01 shall be a
monthly amount payable to the Member, commencing on the first day
of the first calendar month commencing on or after the
Member’s termination of employment with the Corporation and
continuing for the life of the Member, equal to (i) the
Regular Percentage of such Member’s Average Monthly Earnings
specified in the applicable SERP Benefits Schedule based on the
Member’s Attained Age as of the effective date of the
Member’s termination of employment, reduced by (ii) the
sum of the amounts set forth in Section 4.03. Notwithstanding
anything in this subsection to the contrary, to the extent
applicable, in no event shall any payment hereunder be made to a
“specified employee” within the meaning of Code
Section 409A earlier than six months after the date of the
Participant’s termination of employment with the Corporation,
except in connection with the Participant’s death or
Disability.
4.02 Change of Control Retirement Benefits.
(a) Entitlement to Change of Control Retirement Benefits. A
Member shall be entitled to receive Change of Control retirement
benefits as specified in this Section 4.02 if (i) the
Member’s employment with the Corporation is terminated at any
time after a Change of Control either (I) by the Corporation
without Cause or (II) by the Member for Good Reason, (ii) the
Member’s employment with the Corporation is terminated by the
Corporation without Cause before a Change of Control or is
terminated by the Member for Good Reason, in either case if
(I) the Change of Control actually occurs, (II) the
termination of employment occurred within 12 months before the
Change of Control, and (III) it is reasonably demonstrated that
such termination of employment for Cause, or the actions underlying
the Good Reason, as applicable, were at the request of a
third-party who has taken steps reasonably calculated to effect the
Change of Control or otherwise occurred in connection with or in
anticipation of, a Change of Control, or, (iii) in the case of
a Member who was a member of the Corporate Policy Committee (or any
successor committee) on the date immediately preceding the Change
of Control, the Member’s employment with the Corporation is
terminated for any reason other than Cause, Disability or death,
within the 30-day period beginning one year after a Change of
Control.
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(b) Amount of Change of Control Retirement Benefits. A
Member’s Change of Control retirement benefits shall be in
lieu of any amounts that may be payable under Section 4.01 and
shall be a monthly amount payable to the Member, commencing on the
first day of the first calendar month following the later of
(i) the Member’s 60th birthday or (ii) the date the
Member terminates employment with the Corporation as described in
Section 4.02(a), and continuing for the life of the Member,
equal to (x) the Change of Control Percentage of such
Member’s Average Monthly Earnings specified in the applicable
SERP Benefits Schedule based on the Member’s Attained Age
under Section 4.02(c) as of the effective date of termination
of employment with the Corporation, reduced by (y) the sum of
the amounts set forth in Section 4.03. Notwithstanding
anything in this subsection to the contrary, to the extent
applicable, in no event shall any payment hereunder be made to a
“specified employee” within the meaning of Code
Section 409A earlier than six months after the date of the
Participant’s termination of employment with the Corporation,
except in connection with the Participant’s death or
Disability.
(c) Special Rule for Determining Attained Age. Solely for
purposes of determining the Change of Control Percentage of the
Member’s Average Monthly Earnings under the applicable SERP
Benefits Schedule for purposes of this Section 4.02, the
Member’s Attained Age as of the effective date of any
termination of employment described in this Section 4.02 shall
be increased by the greater of (i) 3 years in the case of any
Member who is not a member of the Corporate Policy Committee (or
any successor committee) on the date immediately preceding a Change
of Control or 5 years in the case of any Member who is a member of
the Corporate Policy Committee (or any successor committee) on such
date, or (ii) the number of years (if any) by which 50 exceeds
the Member’s actual Attained Age as of such date of
termination.
4.03 Reductions. The monthly retirement benefits
determined under Section 4.01 or 4.02, as applicable, and
payable for any calendar month shall be reduced by the sum of the
following amounts with respect to such calendar month:
(a) 100% of the monthly old age insurance benefit payable under the
Social Security Act to the Member, assuming commencement on the
earliest date following termination of the Member’s
employment on which such Social Security benefit payments may
commence, as determined under the Social Security law in effect on
that date and without regard to any cost-of-living adjustments.
(b) 100% of the monthly benefits payable to the Member under the
Qualified Plan assuming the Member elected to receive payment of
such benefits in the form of a straight life annuity in the case of
an unmarried Member or in the form of a joint and 50% survivor
spouse annuity in the case of a married Member, and assuming
commencement of such benefits on the earliest date on which
retirement benefits are payable to the Member under the Qualified
Plan.
(c) 100% of the Member’s monthly benefits under any other
defined benefit pension plan, whether tax-qualified, governmental
or nonqualified, sponsored or maintained by any prior employer. If
payment of benefits under any other plan begins
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before the date payment of retirement benefits under this Plan
begins, then the reduction for benefits under that other plan will
begin immediately based on the amount of benefits actually received
by the Member under that other plan for the first calendar month
for which benefits are paid under this Plan. However, if payment of
benefits under any other plan does not begin before the date
payment of retirement benefits under this Plan begins, then the
reduction for benefits under that other plan will be equal to the
amount of benefits that would be payable to the Member under that
other plan assuming the Member elected to receive payment of
benefits under that plan in the form of a straight life annuity in
the case of an unmarried Member or in the form of a joint and 50%
survivor spouse annuity in the case of a married Member, and
assuming that payment of benefits under that other plan will begin
on or after commencement of payments under this Plan but on the
earliest date on which retirement benefits are payable to the
Member under that other plan.
ARTICLE V
Death Benefits
5.01 Death of a Member. In the event of the death of
a Member who is not a Retired Member or a Disabled Member, the
Member’s Beneficiary shall be entitled to receive a Death
Benefit equal to (a) a monthly payment equal to 100% of the
Member’s Average Monthly Earnings as of the date of death,
commencing on the first day of the first calendar month following
the Member’s death and continuing for 120 consecutive months,
and (b) if the Member died before attaining age 50, monthly
payments equal to 50% of the Member’s Average Monthly
Earnings for a period commencing after the end of such 120 month
period and ending on the first day of the calendar month in which
the Member would have attained age 60, provided ,
however , that if Member’s Beneficiary is the
Member’s surviving spouse or a trust or other estate planning
entity with the Member’s surviving spouse as the sole
designated beneficiary, as determined by the Administrator, then,
regardless of the Member’s age upon death, after the
completion of the 120 payments described in clause (a) of this
Section 5.01, the Member’s surviving spouse or the trust
or other estate planning entity, as applicable, shall receive
monthly payments equal to 50% of the Member’s Average Monthly
Earnings until the death of the surviving spouse.
5.02 Death of a Retired Member or a Disabled Member.
In the event of the death of a Retired Member or a Disabled Member
who is receiving benefits under Article IV or Article
