Exhibit 10(p)
R ETIREMENT I NCOME A SSURANCE P LAN F OR L EGACY F LEET
(A S A MENDED AND R ESTATED E FFECTIVE J ANUARY 1, 2009)
R
ETIREMENT I
NCOME A
SSURANCE P
LAN FOR L EGACY F LEET
(A S A
MENDED AND R ESTATED E FFECTIVE J ANUARY 1, 2009)
T ABLE
OF C ONTENTS
|
|
|
|
|
|
|
|
|
|
P AGE
|
|
|
|
ARTICLE I
DEFINITIONS
|
|
2
|
|
|
|
|
|
1.1 Basic Plan
|
|
2
|
|
|
|
|
|
1.2 Beneficiary
|
|
2
|
|
|
|
|
|
1.3 Benefit Commencement
Date
|
|
2
|
|
|
|
|
|
1.4 Cash Balance Participant
|
|
2
|
|
|
|
|
|
1.5 Code
|
|
2
|
|
|
|
|
|
1.6 Committee
|
|
2
|
|
|
|
|
|
1.7 Company
|
|
2
|
|
|
|
|
|
1.8 Delink Calculation Date
|
|
3
|
|
|
|
|
|
1.9 Global Human Resources
Group
|
|
3
|
|
|
|
|
|
1.10 Participant
|
|
3
|
|
|
|
|
|
1.11 Participating Employer
|
|
3
|
|
|
|
|
|
1.12 Plan
|
|
3
|
|
|
|
|
|
1.13 Plan Year
|
|
3
|
|
|
|
|
|
1.14 Post-2004 Benefit
|
|
3
|
|
|
|
|
|
1.15 Post-2004 Cash Balance Benefit
|
|
3
|
|
|
|
|
|
1.16 Post-2004 Traditional Benefit
|
|
3
|
|
|
|
|
|
1.17 Pre-2005 Benefit
|
|
4
|
|
|
|
|
|
1.18 Pre-2005 Cash Balance Benefit
|
|
4
|
|
|
|
|
|
1.19 Pre-2005 Traditional Benefit
|
|
4
|
|
|
|
|
|
1.20 Termination of Employment
|
|
4
|
|
|
|
|
|
1.21 Traditional Participant
|
|
4
|
|
|
|
|
|
1.22 Vesting Service
|
|
4
|
|
|
|
ARTICLE II SOURCE
OF BENEFIT PAYMENTS
|
|
5
|
|
|
|
|
|
2.1 Obligation of Company
|
|
5
|
i
|
|
|
|
|
|
|
2.2 No Funding Required
|
|
5
|
|
|
|
|
|
2.3 No Claim to Specific
Benefits
|
|
5
|
|
|
|
ARTICLE III
BENEFITS
|
|
6
|
|
|
|
|
|
3.1 Pre-2005 Traditional
Benefit
|
|
6
|
|
|
|
|
|
3.2 Post-2004 Traditional
Benefit
|
|
6
|
|
|
|
|
|
3.3 Pre-2005 Cash Balance
Benefit
|
|
7
|
|
|
|
|
|
3.4 Post-2004 Cash Balance
Benefit
|
|
8
|
|
|
|
|
|
3.5 Payment of Pre-2005 Benefits
to Participants
|
|
9
|
|
|
|
|
|
3.6 Payment of Post-2004
Benefits to Participants with a Post-2004 Benefit on
August 28, 2006
|
|
10
|
|
|
|
|
|
3.7 Payment of Post-2004
Benefits to New Participants after August 28, 2006
|
|
12
|
|
|
|
|
|
3.8 General Payment Provisions
for Post-2004 Benefits
|
|
12
|
|
|
|
|
|
3.9 Vesting
|
|
13
|
|
|
|
|
|
3.10 Other Payment Provisions
|
|
13
|
|
|
|
ARTICLE IV
ADMINISTRATION
|
|
14
|
|
|
|
|
|
4.1 Committee
|
|
14
|
|
|
|
ARTICLE V
AMENDMENT OR TERMINATION OF PLAN
|
|
15
|
|
|
|
|
|
5.1 Amendment and
Termination
|
|
15
|
|
|
|
ARTICLE VI
MISCELLANEOUS
|
|
16
|
|
|
|
|
|
6.1 Assignment or Alienation
|
|
16
|
|
|
|
|
|
6.2 Limitation of Rights
|
|
17
|
|
|
|
|
|
6.3 Receipt and Release
|
|
17
|
|
|
|
|
|
6.4 Governing Law
|
|
17
|
|
|
|
|
|
6.5 Status Under ERISA
|
|
17
|
|
|
|
|
|
6.6 Compliance with Section 409A
of the Code
|
|
17
|
|
|
|
|
|
6.7 Severability
|
|
17
|
|
|
|
|
|
6.8 Headings and Subheadings
|
|
18
|
|
|
|
|
|
6.9 Nonduplication of
Benefits
|
|
18
|
|
|
|
|
|
6.10 Social Security Tax
|
|
18
|
|
|
|
|
|
6.11 Claims Procedure
|
|
18
|
|
|
|
|
|
6.12 Payment for Benefit of Incapacitated
Individual
|
|
18
|
ii
|
|
|
|
|
|
|
6.13 Limited Effect of Restatement
|
|
18
|
|
|
|
|
|
6.14 Binding Effect
|
|
19
|
iii
R ETIREMENT
I NCOME
A SSURANCE
P LAN F OR L EGACY F LEET
(A S A MENDED AND R ESTATED E FFECTIVE J ANUARY 1, 2009)
THIS INSTRUMENT OF AMENDMENT AND RESTATEMENT is executed by BANK OF
AMERICA CORPORATION, a Delaware corporation (the
“Corporation”);
Statement of Purpose
The Corporation sponsors the Retirement Income Assurance Plan for
Legacy Fleet (the “Plan”). The purpose of the Plan is
to provide benefits, on a non-qualified and unfunded basis, to
certain associates whose benefits under The Bank of America Pension
Plan for Legacy Fleet are adversely affected by the limitations of
Sections 401(a)(17) and 415 of the Internal Revenue Code, as well
as any other limitations that may be placed on highly compensated
participants under such plans.
The Corporation is amending and restating the Plan effective
January 1, 2009 as set forth herein to (i) reflect
certain design changes to the Plan, (ii) provide for the
Plan’s documentary compliance with the requirements of
Section 409A of the Code and (iii) otherwise meet current
needs.
NOW, THEREFORE, for the purposes aforesaid, the Corporation hereby
amends and restates the Plan effective January 1, 2009 to
consist of the following Articles I through VII:
ARTICLE
I
DEFINITIONS
Unless defined herein, any word, phrase or term used in the Plan
shall have the meaning given to it in the Basic Plan. However, the
following terms have the following meanings unless a different
meaning is clearly required by the context:
The Bank of America Pension Plan for Legacy Fleet, as amended and
in effect from time to time.
The “beneficiary” of a Participant under the Basic Plan
unless the Participant elects a different Beneficiary for purposes
of the Plan in accordance with such procedures as the Global Human
Resources Group may establish from time to time. If there is no
Beneficiary election in effect under the Basic Plan or the Plan at
the time of a Participant’s death, or if the designated
Beneficiary fails to survive the Participant, then the Beneficiary
shall be the Participant’s surviving spouse, or if there is
no surviving spouse, the Participant’s estate.
|
1.3
|
Benefit Commencement Date
|
The date that a Participant’s Pre-2005 Benefit and/or
Post-2004 Benefit, as applicable, is paid or begins to be paid.
|
1.4
|
Cash Balance Participant
|
A Participant who is a Cash Balance Participant under the Basic
Plan and whose benefits under the Basic Plan are limited by
Section 415 or 401(a)(17) of the Code.
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 authority issued
or rendered thereunder.
The Bank of America Corporate Benefits Committee.
Bank of America Corporation, a Delaware corporation, and any
successor thereto.
2
|
1.8
|
Delink Calculation Date
|
The date determined by the Global Human Resources Group that is no
more than 75 days after the Participant’s Termination of
Employment.
|
1.9
|
Global Human Resources Group
|
The Global Human Resources Group of the Company.
(a) A Cash Balance Participant;
and
(b) A Traditional
Participant.
|
1.11
|
Participating Employer
|
The Company, each subsidiary or affiliate that adopts and
participates in the Plan and each successor corporation that
continues the Plan.
The Retirement Income Assurance Plan for Legacy Fleet as in effect
from time to time.
The 12-month period commencing January 1 and ending the
following December 31.
(a) For a Cash Balance
Participant, the Post-2004 Cash Balance Benefit; and
(b) For a Traditional
Participant, the Post-2004 Traditional Benefit.
|
1.15
|
Post-2004 Cash Balance Benefit
|
The benefit payable under the Plan to a Cash Balance Participant
(or the Cash Balance Participant’s Beneficiary) with respect
to amounts that become earned or vested after December 31,
2004, determined as of the Cash Balance Participant’s Benefit
Commencement Date in accordance with Section 3.4.
|
1.16
|
Post-2004 Traditional Benefit
|
The benefit payable under the Plan to a Traditional Participant (or
the Traditional Participant’s Beneficiary) with respect to
amounts that become earned or vested after December 31, 2004,
determined as of the Traditional Participant’s Benefit
Commencement Date in accordance with Section 3.2.
3
(a) For a Cash Balance
Participant, the Pre-2005 Cash Balance Benefit; and
(b) For a Traditional
Participant, the Pre-2005 Traditional Benefit.
|
1.18
|
Pre-2005 Cash Balance Benefit
|
The benefit payable under the Plan to a Cash Balance Participant
(or the Cash Balance Participant’s Beneficiary) with respect
to amounts earned and vested as of December 31, 2004,
determined as of the Cash Balance Participant’s Benefit
Commencement Date in accordance with Section 3.3.
|
1.19
|
Pre-2005 Traditional Benefit
|
The benefit payable under the Plan to a Traditional Participant (or
the Traditional Participant’s Beneficiary) with respect to
amounts earned and vested as of December 31, 2004, determined
as of the Traditional Participant’s Benefit Commencement Date
in accordance with Section 3.1.
|
1.20
|
Termination of Employment
|
For purposes of the Plan whether a “Termination of
Employment” has occurred shall be determined consistent with
the requirements of Section 409A of the Code and the Bank of
America 409A Policy to the extent applicable.
|
1.21
|
Traditional Participant
|
A Participant who is a Traditional Participant under the Basic Plan
and whose benefits under the Basic Plan are limited by
Section 415 or 401(a)(17) of the Code.
Vesting Service as defined under the Basic Plan.
4
ARTICLE
II
SOURCE OF BENEFIT PAYMENTS
|
2.1
|
Obligation of Company
|
The Company will establish on its books a liability with respect to
its obligation for benefits payable under the Plan to Participants
(and their Beneficiaries). Each Participant and Beneficiary will be
an unsecured general creditor of the Company with respect to all
benefits payable under the Plan.
Nothing in the Plan will be construed to obligate the Company to
fund the Plan. However, the Company may but shall not be required
to establish a trust of which the Company is treated as the owner
under Subpart E of Subchapter J, Chapter 1 of the Code (a
“grantor trust”) and may deposit funds with the trustee
of the trust sufficient to satisfy the benefits provided under the
Plan. If the Company establishes such a grantor trust and, if at
the time of a “change of control” as defined in the
trust, the trust has not been fully funded, the Company shall,
within the time and manner specified under such trust, deposit in
such trust amounts sufficient to satisfy all obligations under the
Plan as of the date of deposit. In all events the Company shall
remain ultimately liable for the benefits payable under the Plan,
and, to the extent the assets at the disposal of the trustee are
insufficient to enable the trustee to satisfy all benefits, the
Company shall pay all such benefits necessary to meet its
obligations under the Plan.
|
2.3
|
No Claim to Specific Benefits
|
Nothing in the Plan will be construed to give any individual rights
to any specific assets of the Company, or any other person or
entity.
5
ARTICLE
III
BENEFITS
|
3.1
|
Pre-2005 Traditional Benefit
|
|
|
(a)
|
Amount of Pre-2005 Traditional Benefit:
The amount of the Pre-2005 Traditional
Benefit payable under the Plan to a Traditional Participant (or to
the Traditional Participant’s Beneficiary, in the event of
the Traditional Participant’s death) is the Traditional
Participant’s accrued benefit as of December 31, 2004
determined in accordance with subsection (b) of this Section,
valued as a single life annuity at the Traditional
Participant’s Benefit Commencement Date using Basic Plan
assumptions in effect at the Traditional Participant’s Delink
Calculation Date.
|
|
|
(b)
|
Traditional Participant’s Accrued Benefit as of
December 31, 2004: A Traditional
Participant’s accrued benefit as of December 31, 2004 is
equal to Amount A minus Amount B, assuming benefits commence on
January 1, 2005 as a single life annuity and based on the
Traditional Participant’s Vesting Service through
December 31, 2004 and age as of January 1, 2005,
where:
|
|
|
(i)
|
Amount A is the amount of the accrued benefit the
Traditional Participant (or Beneficiary) would have been entitled
to receive under the Basic Plan as of December 31, 2004 if
“earnings” under the Basic Plan included deferrals of
base pay, commissions or non-discretionary incentive pay made under
the Bank of America 401(k) Restoration Plan; provided, however,
that if the limits of Section 1.14(iv) of the Basic Plan apply
to the Traditional Participant, such deferrals will be taken into
account under this Section only to the extent the deferrals, when
added to the commissions, non-discretionary incentive pay and
actual base pay previously counted under the Basic Plan in the same
year, do not exceed the limit described in Section 1.14(iv) of
the Basic Plan, and the limitations of Sections 401(a)(17) and 415
of the Code (and the provisions of the Basic Plan applying those
limitations) did not exist; and
|
|
|
(ii)
|
Amount B is the amount of the accrued benefit payable to
the Traditional Participant (or Beneficiary) under the Basic Plan
as of December 31, 2004.
|
|
3.2
|
Post-2004 Traditional Benefit
|
|
|
(a)
|
Amount of Post-2004 Traditional Benefit:
The amount of the Post-2004 Traditional
Benefit payable under the Plan to a Traditional Participant (or to
the Traditional Participant’s Beneficiary, in the event of
the Traditional Participant’s death) is the difference
between (i) the lump sum value of the total accrued benefit
payable to the Traditional Participant at the Traditional
Participant’s Delink Calculation Date determined in
accordance with subsection (b) of this
|
6
|
|
Section and (ii) the lump sum value of the Traditional
Participant’s accrued benefit as of December 31, 2004
(determined in accordance with Section 3.1(b)) as of the first
day of the month on or after the Traditional Participant’s
Delink Calculation Date using the Basic Plan assumptions in effect
on the first day of the month on or after the Traditional
Participant’s Delink Calculation Date (but not less than
zero). The Post-2004 Traditional Benefit is valued as of the
Traditional Participant’s Benefit Commencement Date using
Basic Plan assumptions.
|
|
|
(b)
|
Lump Sum Value of Total Accrued Benefit:
The lump sum value of the total accrued
benefit payable under the Plan to a Traditional Participant (or to
the Traditional Participant’s Beneficiary, in the event of
the Traditional Participant’s death) at the Traditional
Participant’s Delink Calculation Date is equal to Amount A
minus Amount B, assuming that benefits commence as of the first day
of the month on or after the Traditional Participant’s Delink
Calculation Date as a single life annuity and based on the
Traditional Participant’s Vesting Service and age as of the
Traditional Participant’s Delink Calculation Date, valued as
a lump sum using the Basic Plan assumptions in effect on the first
day of the month on or after the Traditional Participant’s
Delink Calculation Date where:
|
|
|
(i)
|
Amount A is the amount of the accrued benefit the
Traditional Participant (or Beneficiary) would have been entitled
to receive under the Basic Plan as of the first day of the month on
or after the Traditional Participant’s Delink Calculation
Date if “earnings” under the Basic Plan included
deferrals of base pay, commissions or non-discretionary incentive
pay made under the Bank of America 401(k) Restoration Plan;
provided, however, that if the limits of Section 1.14(iv) of
the Basic Plan apply to the Traditional Participant, such deferrals
will be taken into account under this Section 3.2(b) only to
the extent the deferrals, when added to the commissions,
non-discretionary incentive pay and actual base pay previously
counted under the Basic Plan in the same year, do not exceed the
limit described in Section 1.14(iv) of the Basic Plan, and the
limitations of Sections 401(a)(17) and 415 of the Code (and the
provisions of the Basic Plan applying those limitations) did not
exist; and
|
|
|
(ii)
|
Amount B is the amount of the accrued benefit payable to
the Traditional Participant (or Beneficiary) under the Basic Plan
as of the first day of the month on or after the Traditional
Participant’s Delink Calculation Date.
|
|
3.3
|
Pre-2005 Cash Balance Benefit
|
|
|
(a)
|
Amount of Pre-2005 Cash Balance Benefit:
The amount of the Pre-2005 Cash Balance
Benefit payable under the Plan to a Cash Balance Participant (or to
the Cash Balance Participant’s Beneficiary, in the event of
the Cash Balance Participant’s death) is the Cash Balance
Participant’s account balance as of December 31, 2004
determined in accordance with subsection (b) of this Section,
increased with interest credits from December 31, 2004 to the
Benefit Commencement Date using the Basic Plan’s interest
crediting rates.
|
7
|
|
(b)
|
Pre-2005 Account Balance at December 31, 2004:
The Cash Balance Participant’s
pre-2005 account balance at December 31, 2004 is determined as
Amount A minus Amount B, based on the Basic Plan assumptions and
the Cash Balance Participant’s Vesting Service and age as of
December 31, 2004 where:
|
|
|
(i)
|
Amount A is the amount of the benefit the Cash Balance
Participant (or Beneficiary) would have been entitled to receive
under the Basic Plan as of December 31, 2004 (expressed as a
lump sum if not otherwise a lump sum) if “earnings”
under the Basic Plan included deferrals of base pay, commissions or
non-discretionary incentive pay made under the Bank of America
401(k) Restoration Plan; provided, however, that if the limits of
Section 1.14(iv) of the Basic Plan apply to the Cash Balance
Participant, such deferrals will be taken into account under this
Section only to the extent the deferrals, when added to the
commissions, non-discretionary incentive pay and actual base pay
previously counted under the Basic Plan in the same year, do not
exceed the limit described in Section 1.14(iv) of the Basic
Plan, and “earnings” under the Basic Plan were not
limited by Section 401(a)(17) of the Code, and the limitations
of Section 415 of the Code (and provisions of the Basic Plan
applying those limitations) did not exist; and
|
|
|
(ii)
|
Amount B is the amount of the benefit payable to the Cash
Balance Participant (or Beneficiary) under the Basic Plan as of
December 31, 2004 (expressed as a lump sum if not otherwise a
lump sum).
|
|
3.4
|
Post-2004 Cash Balance Benefit
|
|
|
(a)
|
Amount of Post-2004 Cash Balance Benefit:
The amount of the Post-2004 Cash Balance
Benefit payable under the Plan to a Cash Balance Participant (or to
the Cash Balance Participant’s Beneficiary, in the event of
the Cash Balance Participant’s death) is the difference
between (i) the Cash Balance Participant’s total account
balance at the Cash Balance Particip
|
