Exhibit 10(ll)
Supplemental Executive Insurance Plan
(As Amended and
Restated Effective January 1, 2005)
Purpose
The purpose of the Supplemental Executive Insurance Plan (the
“Plan”) is to provide supplemental permanent life
insurance for senior executives and other participants (each, a
“Participant”) that provides protection for
Participants and their families. The Plan is sponsored by Bank of
America Corporation, a Delaware corporation (the
“Corporation”). For purposes of the Plan, for calendar
years beginning prior to January 1, 2006, MBNA Corporation,
collectively with MBNA America Bank, N.A. and their subsidiaries,
was the Corporation.
Effective Date
The initial effective date of the Plan was September 8, 2003.
The Corporation is amending and restating the Plan as set forth
herein effective as of January 1, 2005 (unless otherwise
provided herein) to (1) provide for the Plan’s
compliance with the requirements of Internal Revenue Code
(“Code”) Section 409A, to the extent applicable,
(2) reflect operational changes and (3) otherwise meet
current needs.
Administration; Named Fiduciary
Effective as of January 1, 2006, the Plan shall be
administered by the Bank of America Corporate Benefits Committee
(the “Committee”). The Committee shall be empowered to
interpret the provisions of the Plan and to perform and exercise
all of the duties and powers granted to it under the terms of the
Plan by action of a majority of its members in office from time to
time. The Committee may adopt such rules and regulations for the
administration of the Plan as are consistent with the terms hereof
and shall keep adequate records of its proceedings and acts. All
interpretations and decisions made (both as to law and fact) and
other action taken by the Committee with respect to the Plan shall
be conclusive and binding on all parties having or claiming to have
an interest under the Plan. Not in limitation of the foregoing, the
Committee shall have the discretion to decide any factual or
interpretive issues that may arise in connection with its
administration of the Plan (including, without limitation, any
determination as to claims for benefits hereunder), and the
Committee’s exercise of such discretion shall be conclusive
and binding on all affected parties as long as it is not arbitrary
or capricious. The Committee may delegate any of its duties and
powers hereunder to the extent permitted by applicable law. For
purposes of the Plan, for calendar years beginning prior to
January 1, 2006, the Committee was the Compensation Committee
of the Board of Directors of the Corporation.
Insurance Policies
The Corporation will use reasonable efforts to arrange for the
issuance of one or more whole life insurance policies on the life
of each Participant in the Plan on a guaranteed issue basis. Each
policy under this Plan will be issued by Northwestern Mutual Life
or another nationally recognized insurer (the
“Insurer”) selected by the Committee from time to time
in its sole discretion. The Committee will determine the type and
terms of each policy to be issued to a Participant pursuant to the
Plan, including, but not limited to, the amount of death benefits
and scheduled premiums under each policy.
Requirements of
Participant
Each Participant will, as a condition to participation, take all
actions reasonably necessary to apply for and acquire a policy on
the Participant, including, without limitation, providing such
information that the Insurer may require.
The Corporation may need information concerning policies in
connection with its administration of the Plan including
information concerning ownership, dividend elections and
performance. Each Participant, by participating in the Plan,
authorizes the Corporation or its agent to obtain from the Insurer
any information the Corporation deems appropriate concerning the
policies at any time.
The Corporation intends to purchase and hold insurance on the lives
of Participants to fund the costs of the Plan. The Corporation will
pay all premiums and will own and be the sole beneficiary of any
such policy. Each Participant, as a condition to participating in
the Plan, authorizes the Corporation to arrange to purchase
insurance on the life of the Participant and agrees to cooperate
with the Corporation in the issuance of the policy, including
completion of an application and providing such other information
as the Insurer may require, but will not be required to take a
physical examination.
Ownership
Each Participant will be the owner of such Participant’s
policy and may exercise all rights of ownership with respect to the
policy. The Corporation will have no right to or interest in any
policy issued pursuant to this Plan at any time.
Election of Dividends Option
Each Participant will elect that all dividends declared by an
Insurer on a policy shall be applied to purchase additional paid-up
insurance on the life of the Participant. The Participant will not
change the dividend election prior to payment of all scheduled
premiums on the policy.
Premiums and Taxes
Subject to the terms of the Plan, the Corporation shall pay the
full amount of the scheduled premiums for each Participant’s
policy on the dates such premiums are due according to the terms of
the policy but in no event later than the 60 th day of each calendar year. The
Corporation’s payment of insurance premiums for a Participant
under this Plan shall be treated as additional compensation for
such Participant in the calendar year in which they are paid. The
Corporation shall pay the premiums directly to the Insurer. The
Participant will be responsible for any premium payments not
scheduled at the time of issuance of the policy.
The Corporation may, in its sole and absolute discretion, also pay
an amount to a Participant to cover all or a portion of the
Participant’s income tax liability resulting from the
Corporation’s payment of insurance premiums pursuant to the
Plan. The Corporation shall include the amount of premiums and any
taxes it pays for a Participant in the Participant’s Form W-2
for the year in which such premium payments are made and taxes are
paid. The Corporation shall withhold taxes from Participants and
remit them to taxing authorities in accordance with applicable
law.
2
Termination of
Rights and Obligations
The right of a Participant to participate in the Plan and the
Corporation’s obligation to pay premiums for such
Participant’s policy as required under the Plan shall
automatically terminate upon termination of the Participant’s
employment with the Corporation for any reason, voluntary or
involuntary, other than (a) the Participant’s
Disability, as defined in the Corporation’s long term
disability or similar plan, (b) the Participant’s
retirement at or after age 65, or sooner with the approval of the
Committee, (c) termination of the Participant’s
employment with the Corporation at any time after a Change of
Control (as defined below) either (i) by the Corporation
without Cause (as defined below) or (ii) by the Participant
for Good Reason (as defined below), (d) termination of the
Participant’s employment by the Corporation without Cause or
by the Participant for Good Reason before a Change of Control, 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 (e) in the
case of a Participant who was a member of the Corporate Policy
Committee (or any successor committee) on the date immediately
preceding the Change of Control, termination of such
Participant’s employment with the Corporation for any reason
other than Cause, Disability or death, within the 30-day period
beginning one year after a Change of Control.
The Corporation will continue to make premium payments following
the termination of Participant’s employment in the
circumstances described in clauses (a), (b), (c), (d) and
(e) above, subject to the Corporation’s right to amend
or terminate the Plan as provided in this Plan.
In addition, the Corporation may cease paying for premiums on a
policy immediately if the Participant (a) changes the dividend
option elected under a policy prior to the payment of all scheduled
premiums on the policy without the Corporation’s prior
written consent, (b) files a petition for relief under the
bankruptcy laws, or (c) cancels the Participant’s policy
or assigns any rights in the policy to the Insurer or any other
third party without the Corporation’s consent, unless the
assignment is to one or more of the Participant’s immediate
family members or to a trust for the exclusive benefit of one or
more members of the Participant’s immediate family. This
paragraph shall apply to any assignee as it applies to the
Participant. For purposes o
