Exhibit 10.4
THE PNC FINANCIAL SERVICES GROUP,
INC.
ERISA EXCESS PENSION PLAN
Amended and Restated
(Effective as of January 1,
2009)
WHEREAS, The PNC Financial Services
Group, Inc. (the “Corporation”) previously adopted and
presently maintains The PNC Financial Services Group, Inc. ERISA
Excess Pension Plan (the “Plan”), originally effective
as of December 1, 1984, and amended and restated the Plan in
its entirety effective as of January 1, 1999 and effective as
of April 6, 2004, and subsequently amended the Plan by an
Amendment dated September 17, 2007;
WHEREAS, the Corporation desires to
amend and restate the Plan in its entirety, effective as of
January 1, 2009, to comply with Section 409A of the
Internal Revenue Code of 1986, as amended (“Internal Revenue
Code”); and
WHEREAS, deferrals made or first
vesting on or after January 1, 2005 are to be administered in
accordance with the Plan as amended and restated herein, and
deferrals made prior to January 1, 2005 and fully vested on
December 31, 2004 are to be administered in accordance with
Plan documents in effect at the time of deferral (and any
subsequent amendments made thereafter and specifically made
applicable thereto); and
WHEREAS, Section 8 of the Plan
authorizes the Corporation to amend the Plan at any
time.
NOW, THEREFORE, in consideration of
the foregoing, the Plan is hereby amended and restated in its
entirety to read as follows:
SECTION 1
DEFINITIONS
As used in the Plan, initially
capitalized terms that are not otherwise defined herein will have
the meaning given to them in the Pension Plan. The following words
and phrases will have the meanings assigned to them herein, unless
the context otherwise requires.
|
1.1
|
“Account” means the
bookkeeping record used under this Plan solely to communicate a
Participant’s or Beneficiary’s Accrued Benefit
expressed as a single dollar amount. An Account is established only
for purposes of determining benefits hereunder and not to segregate
assets or to identify assets that may or must be used to satisfy
benefits. An Account will be credited with the amounts set forth in
section 3 of the Plan. A Participant’s Account will also
include (i) amounts which were deferred under
|
|
|
the Plan and vested prior to
January 1, 2005, which will be accounted for separately from
amounts deferred or first vesting on or after January 1, 2005,
and (ii) amounts representing accounts merged into this Plan
from a prior excess pension plan, to the extent separate accounting
is determined by the Committee or its delegate to be necessary in
order to ensure compliance with Section 409A of the Code or
otherwise, including without limitation amounts included in this
Plan as the result of the merger of the Mercantile Plan into this
Plan.
|
|
1.2
|
“Affiliate” means any business
entity whose relationship with the Corporation is described in
subsection (b), (c) or (m) of Section 414 of the
Internal Revenue Code.
|
|
1.3
|
“Beneficiary” or
“Beneficiaries” means the individual or individuals
designated by the Participant to receive the balance of the
Participant’s Account upon the Participant’s death in
accordance with Section 6 of the Plan.
|
|
1.4
|
“Board” means the Board of Directors
of the Corporation.
|
|
1.5
|
“Change
in Control” means a change of control of the Corporation of a
nature that would be required to be reported in response to
Item 6(e) of Schedule 14A of Regulation 14A (or in
response to any similar item on any similar schedule or form)
promulgated under the Exchange Act, whether or not the Corporation
is then subject to such reporting requirement; provided, however,
that without limitation, a Change in Control will be deemed to have
occurred if:
|
|
|
(a)
|
any Person,
excluding employee benefits plans of the Corporation and its
subsidiaries, is or becomes the beneficial owner (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act or any successor
provisions thereto), directly or indirectly, of securities of the
Corporation representing 20% or more of the combined voting power
of the Corporation’s then outstanding securities; provided,
however, that such an acquisition of beneficial ownership
representing between 20% and 40%, inclusive, of such voting power
will not be considered a Change in Control if the Board approves
such acquisition either prior to or immediately after its
occurrence;
|
|
|
(b)
|
the Corporation
consummates a merger, consolidation, share exchange, division or
other reorganization or transaction of the Corporation (a
“Fundamental Transaction”) with any other corporation,
other than a Fundamental Transaction that results in the voting
securities of the Corporation outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) at
least 60% of the combined voting power immediately after such
Fundamental Transaction of (i) the Corporation’s
outstanding securities, (ii) the surviving entity’s
outstanding securities, or (iii) in the case of a division,
the outstanding securities of each entity resulting from the
division;
|
|
|
(c)
|
the
shareholders of the Corporation approve a plan of complete
liquidation or winding-up of the Corporation or an agreement for
the sale or disposition (in one transaction or a series of
transactions) of all or substantially all of the
Corporation’s assets;
|
|
|
(d)
|
as a result of
a proxy contest, individuals who prior to the conclusion thereof
constituted the Board (including for this purpose any new director
whose election or nomination for election by the
Corporation’s shareholders in connection with such proxy
contest was approved by a vote of at least two-thirds of the
directors then still in office who were directors prior to such
proxy contest) cease to constitute at least a majority of the Board
(excluding any Board seat that is vacant or otherwise
unoccupied);
|
|
|
(e)
|
during any
period of 24 consecutive months, individuals who at the beginning
of such period constituted the Board (including for this purpose
any new director whose election or nomination for election by the
Corporation’s shareholders was approved by a vote of at least
two-thirds of the directors then still in office who were directors
at the beginning of such period) cease for any reason to constitute
at least a majority of the Board (excluding any Board seat that is
vacant or otherwise unoccupied); or
|
|
|
(f)
|
the Board
determines that a Change in Control has occurred.
|
Notwithstanding anything to the
contrary herein, a divestiture or spin-off of a subsidiary or
division of the Corporation will not by itself constitute a Change
in Control.
|
1.6
|
“Committee” means the committee
appointed to administer the Pension Plan.
|
|
1.7
|
“Corporation” means The PNC
Financial Services Group, Inc. and any successors
thereto.
|
|
1.8
|
“Deferred
Compensation Plan” means The PNC Financial Services Group,
Inc. and Affiliates Deferred Compensation Plan as amended from time
to time.
|
|
1.9
|
“Employee” means any person employed
by an Employer.
|
|
1.10
|
“Employer” means the Corporation and
any Affiliate that has been designated to participate in the
Pension Plan.
|
|
1.11
|
“ERISA” means the Employee
Retirement Income Security Act of 1974, as amended.
|
|
1.12
|
“Excess
Benefits” means the difference between (A) the amount of
an Employee’s benefit under the Pension Plan computed without
taking into consideration the limitation on benefits contained in
Section 401(a)(17) and Section 415 of the Internal
Revenue Code and, effective January 1, 1999, computed as if
“Compensation” as defined in the Pension Plan included
bonus amounts deferred under the Deferred Compensation Plan and
(B) the amount of an Employee’s benefit actually
computed under the Pension Plan.
|
For a Participant who incurred a
Total Disability prior to 1999 and who, for purposes of The PNC
Financial Services Group, Inc. Supplemental Executive Retirement
Plan, was a “Participant” (as defined therein) as of
December 31, 1998, Excess Benefits will also include the
difference between (C) the aggregate amount of the
Participant’s benefit under the Pension Plan and this Plan
computed using Earnings Credits that reflect Compensation that, for
any period, is a pro rata portion of annual Compensation equal to
the sum of (i) the rate of base pay in effect at the time of
Total Disability and (ii) variable pay (limited as described
in the definition of Compensation in the Pension Plan) equal to the
annual bonus amount earned for the calendar year prior to such
Total Disability, and (D) the aggregate amount of the
Participant’s benefit otherwise computed under the Pension
Plan and this Plan.
|
1.13
|
“Exchange
Act” means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
|
|
1.14
|
“Internal
Revenue Code” means the Internal Revenue Code of 1986, as
amended. Any reference to a section of the Internal Revenue Code
shall be deemed to include any regulation, ruling, or other
guidance issued thereunder by the Department of the Treasury or the
Internal Revenue Service.
|
|
1.15
|
“Mercantile Plan” means The
Mercantile Bankshares Corporation and Participating Affiliates
Supplemental Cash Balance Plan, which was merged into the Plan
effective December 31, 2007
|
|
1.16
|
“Participant” means any Employee who
meets the eligibility criteria set forth in Section 2 of the
Plan.
|
|
1.17
|
“Pension
Plan” means The PNC Financial Services Group, Inc. Pension
Plan as in effect on January 1, 1999 and as amended from time
to time thereafter.
|
|
1.18
|
“Plan” means The PNC Financial
Services Group, Inc. ERISA Excess Pension Plan, which is the Plan
set forth in this document, as amended from time to
time.
|
|
1.19
|
“Plan
Manager” means any individual designated by the Committee to
manage the operation of the Plan as herein provided or to whom the
Committee has duly delegated any of its duties and obligations
hereunder.
|
|
1.20
|
“Separation From
Service” means separation from service within the meaning of
Section 409A of the Internal Revenue Code. For purposes of
this definition, a Participant shall be deemed to have a Separation
from Service on the date on which he and the Employer reasonably
anticipate that no further services would be performed after such
date or that the level of bona fide services he would perform after
such date would permanently decrease to no more than 20% of the
average level of bona fide services performed over the immediately
preceding 36-month period (or the full period of employment if less
than 36 months).
|
|
|
Notwithstanding the above, no
Separation from Service shall be deemed to occur while the
Participant is on military leave, sick leave or other bona fide
leave of absence until the latest of (i) six months after
commencement of the leave, other than for a Total Disability,
(ii) 29 months after commencement of leave as the result of a
Total Disability, or (iii) the date on which the Participant
ceases to have a legally protected right to reemployment under an
applicable statute or by contract.
|
|
1.21
|
“Severance From Service” means the
Participant’s Separation from Service with The PNC Financial
Services Group, Inc. and all of its Affiliates.
|
|
1.22
|
“Spouse” means the person to whom
the Participant is legally married on the relevant date (as
determined under the laws of the state in which the Participant is
a resident at the time of marriage).
|
|
1.23
|
“Total
Disability” means, except as may otherwise be required by
Internal Revenue Code Section 409A, a medically determinable
physical condition that can be expected to result in death or can
be expected to last for a continuous period of not less than twelve
months and which would entitle a Participant to receive disability
payments under a long-term disability income plan maintained by an
Employer with respect to that Participant. For Participants not
covered by such a plan, Total Disability means a determination by
the Social Security Administration that the Participant has a
disability. The definition of Total Disability contained in the
Plan shall have no impact or effect on any determination regarding
disability made under any other employee benefit plan of the
Employer.
|
|
1.24
|
“Trust” means the grantor trust
established by the Corporation to assist in funding its obligations
under the Plan.
|
SECTION 2
ELIGIBILITY FOR
PARTICIPATION
AND CESSATION OF
PARTICIPATION
An Employee who participates in the
Pension Plan is eligible to participate in this Plan if the
Employee has Excess Benefits. If an Employee ceases to participate
in the Pension Plan, the Employee is no longer eligible to
participate in this Plan. Such Participant’s Account will be
frozen as of the date he or
|