Ex-(10)(jjj)



 



Exhibit
(10)(jjj)


First Union Corporation

Benefit Restoration Plan

(Effective December 31, 1993)

As amended and Restated April 20, 1999




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First Union Corporation

Benefit Restoration Plan

(Effective December 31, 1993)




Table of Contents




	 	 	 
	Section I. The Plan
	 	 
	 
	 	 
	1.1 Establishment of the Plan

	 	 
	1.2 Purpose of the Plan
	 	 
	1.3 Application of the Plan
	 	 
	 
	 	 
	Section II. Definitions
	 	 
	 
	 	 
	2.1 Actuarial Equivalent
	 	 
	2.2 Affiliate
	 	 
	2.3 Applicable Federal Rate
	 	 
	2.4 Beneficiary
	 	 
	2.5 Benefit Commencement Date
	 	 
	2.6 Board
	 	 
	2.7 Cause
	 	 
	2.8 Change of Control
	 	 
	2.9 Code
	 	 
	2.10 Company
	 	 
	2.11 Disability
	 	 
	2.12 Earliest Retirement Age
	 	 
	2.13 Employee
	 	 
	2.14 Employer
	 	 
	2.15 ERISA
	 	 
	2.16 Lump Sum Actuarial Equivalent
	 	 
	2.17 Normal Retirement Date
	 	 
	2.18 Participant
	 	 
	2.19 Pension Plan
	 	 
	2.20 Plan
	 	 
	2.21 Plan Administrator
	 	 
	2.22 Plan Change
	 	 
	2.23 Plan Termination
	 	 
	2.24 Plan Year
	 	 
	2.25 Present Value
	 	 
	2.26 Service
	 	 
	2.27 Termination of Service
	 	 
	2.28 Years of Service
	 	 
	 
	 	 
	Section III. Participation
	 	 
	 
	 	 
	3.1 Eligibility
	 	 
	3.2 Duration
	 	 






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First Union Corporation

Benefit Restoration Plan

(Effective December 31, 1993)




Table of Contents

(Continued)




	 	 	 
	Section IV. Benefits

	 	 
	 
	 	 
	4.1 Retirement Benefits
	 	 
	4.2 Disability Retirement Benefits
	 	 
	4.3 Termination Benefit
	 	 
	4.4 Form of Payment
	 	 
	4.5 Payments in the Event of Plan Termination, Plan Change or Change in Control
	 	 
	4.6 Payments upon a Participant’s Termination for Cause.
	 	 
	 
	 	 
	Section V. Preretirement Death Benefits
	 	 
	 
	 	 
	5.1 Eligibility
	 	 
	5.2 Amount
	 	 
	5.3 Commencement
	 	 
	 
	 	 
	Section VI. Financing
	 	 
	 
	 	 
	6.1 Financing
	 	 
	6.2 No Trust Created
	 	 
	6.3 Unsecured Interest
	 	 
	 
	 	 
	Section VII. Administration
	 	 
	 
	 	 
	7.1 Administration
	 	 
	7.2 Appeals from Denial of Claims
	 	 
	7.3 Tax Withholding
	 	 
	7.4 Expenses
	 	 
	7.5 Actuarial Equivalence
	 	 
	7.6 Liability of the Plan Administrators; Indemnification
	 	 
	 
	 	 
	Section VIII. Adoption of the Plan by Affiliate
	 	 
	 
	 	 
	8.1 Adoption of the Plan by Affiliate
	 	 
	8.2 Amendment and Termination of the Plan
	 	 
	 
	 	 
	Section IX. Miscellaneous Provisions
	 	 
	 
	 	 
	9.1 No Contract of Employment
	 	 
	9.2 Severability
	 	 
	9.3 Applicable Law
	 	 






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First Union Corporation

Benefit Restoration Plan

(Effective December 31, 1993)




Section I. Establishment and Purpose




     1.1 Establishment of the Plan. First Union Corporation (the “Company”) hereby
establishes this supplemental retirement plan for eligible employees of the Company and
participating Affiliates, effective as of December 31, 1993. This plan shall be known as the
“First Union Corporation Benefit Restoration Plan” (hereinafter called the “Plan”).



     1.2 Purpose of the Plan. The Plan is intended to restore benefits that are curtailed
as a result of legal limits that apply to the First Union Corporation Pension Plan and Trust.



     The portion of the Plan which restores benefits affected by the limits described in Code
section 415 is intended to be an “excess benefit plan” as defined in ERISA section 3 (36). The
portion of the Plan which restores benefits affected by the compensation limit described in Code
section 401 (a) (17) is intended to be a plan maintained for the purpose of providing deferred
compensation to a “select group of management or highly compensated employees.”



     1.3 Application of the Plan. The Plan applies only to eligible Employees who are in
the active employ of the Company or a participating Affiliate on or after December 31, 1993.



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Section II. Definitions




     Whenever used hereinafter, the following terms shall have the meanings set forth below unless
otherwise expressly provided. When the defined meaning is intended, the term is capitalized. The
definition of any term in the singular shall also include the plural and any masculine terminology
shall be deemed to refer to either a male or female.



     2.1 “Actuarial Equivalent” means a benefit having the same value as the benefit which
it replaces, computed on the bases of the actuarial equivalence assumptions in effect under the
Pension Plan.



     2.2 “Affiliate” means—




	 	(a)	 	any corporation while it is a member of the same “controlled group” of
corporations (within the meaning of Code section 414 (b)) as the Company;
	 
	 	(b)	 	any other trade or business (whether or not incorporated) while it is under
“common control” (within the meaning of Code section 414(c)) with the Company; and
	 
	 	(c)	 	any organization during any period in which it (along with the Company) is a
member of an “affiliated service group” (within the meaning of Code section 414 (m));
or any other entity during any period in which it is required to be aggregated with the
Company under Code section 414 (o).





     2.3 “Applicable Federal Rate” means the interest rate provided for under Section 1274
(d) of the Internal Revenue Code in effect as of (i) the date of a Change of Control, or if elected
in writing by the Company and a Participant, at the time a Participant becomes a Participant, (ii)
the later of (a) December 31, 1993 or (b) the date an individual becomes a Participant pursuant to
Section 3.2.



     2.4 “Beneficiary” means the individual designated by the Participant to receive any
death benefits payable on the Participant’s behalf under the Pension Plan.



     2.5 “Benefit Commencement Date” means the date on which a Participant’s benefits shall
commence under Section IV. Except as otherwise provided under section 4.2, a Participant’s Benefit
Commencement Date shall be the first day of the month next following the later of —




	 	(a)	 	the Participant’s Termination of Service; or
	 
	 	(b)	 	the date on which the Participant attains his or her Earliest Retirement Age.





     2.6 “Board” means the board of directors of the Company.




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2.7 “Cause” means an act or acts of a Participant’s personal dishonesty, incompetence,
willful misconduct, breach of fiduciary duty involving personal profit, intentional failure to
perform stated duties, willful violation of any law, rule, or regulation (other than traffic
violations or similar offenses) or final cease-and-desist order. For purposes of this definition,
no act, or failure to act, on a Participant’s part shall be considered “willful” unless done, or
omitted to be done, by him not in good faith and without reasonable belief that his action or
omission was in the best interest of the Company.




     2.8 “Change of Control” means a change in control of the Company of a nature that
would be required to be reported in response to item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934, as amended (“Exchange Act”); provided that,
without limitation, such a change in control shall be deemed to have occurred if (i) any one
person, or more than one person acting as a group, acquires ownership of stock of a corporation
that, together with stock held by such person or group, possesses more than 50 percent of the total
fair market value or total voting power of the stock of such corporation, or (ii) any one person,
or more than one person acting as a group, acquires (or has acquired during 12-month period ending
on the date of the most recent acquisition by such person or persons) ownership of stock of a
corporation possessing 20 percent or more of the total voting power of the stock of such
corporation, or (iii) a majority of members of the corporation’s board of directors is replaced
during any 12-month period by directors whose appointment or election is not endorsed by a majority
of the members of a corporation’s board of directors prior to the date of the appointment or
election.



     2.9 “Code” means the Internal Revenue Code of 1986, as amended, or as it may be
amended from time to time. A reference to a particular section of the Code shall also be deemed to
refer to any regulations under that section.



     2.10 “Company” means First Union Corporation and any successor thereto that agrees to
adopt and continue the Plan.



     2.11 “Disability” means any physical or mental condition which would result in the
Participant incurring a “Disability” under disability provisions contained in the Pension Plan.



     2.12 “Earliest Retirement Age” means the earliest date on which a Participant could
retire and elect to commence benefits under the Pension Plan.



     2.13 “Employee” means any person who is employed by an Employer.



     2.14 “Employer” means the Company and each Affiliate which has adopted the Plan for
the benefit of its eligible Employees.



     2.15 “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, or
as it may be amended from time to time. A reference to a particular section of ERISA shall also be
deemed to refer to the regulations under that section.



     2.16 “Lump Sum Actuarial Equivalent” means a single payment which is actuarially
equivalent to the annuity benefit due a Participant under the Plan computed using the most recent
Pension Benefit Guarantee Corporation discount rate in effect for the Company’s Pension Plan and
the mortality assumptions utilized in the most recent actuarial valuation for the Company’s Pension
Plan.



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     2.17 “Normal Retirement Date” means the first day of the month next following the
later of the—



     (a) Participant’s sixty-fifth birthday; or



     (b) the fifth anniversary of the date on which the Participant commenced participation under
the Pension Plan.



     2.18 “Participant” means an Employee who has met, and continues to meet, the
eligibility requirements of section 3.1.



     2.19 “Pension Plan” means the First Union Corporation Pension Plan and Trust, as
amended from time to time.



     2.20 “Plan” means this First Union Corporation Benefit Restoration Plan.



     2.21 “Plan Administrator” means the Company’s Chief Executive Officer and the
Company’s Human Resources Division Head.



     2.22 “Plan Change” means any modification to the Plan which would cause the actual or
projected benefit to be or being paid to any or all persons who were Participants, or beneficiaries
of Participants, on the day before the Plan Change, to be reduced.



     2.23 “Plan Termination” means any modification to the Plan which would cause no
benefit to be paid to any or all persons who were Participants, or beneficiaries of Participants,
on the day before the Plan Termination.



     2.24 “Plan Year” means the calendar year.



     2.25 “Present Value” means the present value of a payment or payments computed using
an interest rate equal to 1.2 times the Applicable Federal Rate (compounded semi-annually) and the
number of Years, including any fraction thereof, by which the date of a Plan Termination or Plan
Change precedes the Participant’s attainment of his Early Retirement Age.



     2.26 “Service” means a Participant’s aggregate elapsed time, in Years of Service, as
an Employee of the Company from his initial date of hire to the earlier to occur of his termination
of employment or his Normal Retirement Date.



     2.27 “Termination of Service” means an Employee’s death or resignation, discharge or
retirement from the Company and its Affiliates.



     2.28 “Year” means the 12 month period beginning January 1 and ending December 31.



     2.29 “Years of Service” shall have the same meaning assigned to such term in the
Corporation’s Pension Plan.



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Section III. Participation




     3.1 Eligibility. An Employee shall become a Participant as of the date he or she is
designated by the Plan Administrator, in its sole discretion, as eligible to participate in the
Plan. Participation in that part of the Plan which restores Pension Plan benefits that are
curtailed under the compensation limit in effect under Code section 401(a) (17) shall be limited to
Employees who are members of a “select group of management or highly compensated employees” within
the meaning of ERISA section 201(2); provided however, an Employee who participates in the First
Union Corporation Supplemental Retirement Plan shall not be eligible to participate in the Plan.



     3.2 Duration. An Employee who becomes a Participant under Section 3.1 shall remain an
active Participant until the earlier of —




(a) his or her termination of service; or




(b) a determination by the Plan Administrator that he or she is no longer eligible
to participate in the Plan.


An individual whose active participation is terminated under this section 3.2(a) shall continue to
be an inactive Participant until all benefits to which he or she is entitled to under the Plan have
been paid.




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Section IV. Benefits 




4.1 Retirement Benefits.



(a) Eligibility. A Participant who has a vested interest in a retirement benefit under the
Pension Plan shall be eligible for a retirement benefit under this section 4.1. Except as
otherwise provided in section 4.4, the normal retirement benefit shall be calculated as a single
life annuity commencing on the Participant’s Normal Retirement Date. However, if the Participants’
Benefit Commencement Date precedes his or her Normal Retirement Date, the benefit determined under
this section 4.1 shall be reduced in accordance with section 4.1 (b) (2).



(b) Amount.





	 	(1)	 	In General. Subject to paragraph (2) below, a Participant who is
eligible for a retirement benefit under subsection (a) shall be entitled to a monthly
benefit equal to the difference between

(A) and (B) where —






	 	(A)	 	is the benefit the Participant would be entitled to under the
Pension Plan of his or her Normal Retirement Date, calculated without regard to
—






	 	(i)	 	the compensation limit in effect under Code
section 401(a)(17); and
	 
	 	(ii)	 	the benefit limit in effect under Code section
415; and






	 	(B)	 	is the benefit payable to the Participant under the Pension
Plan as of his or her Normal Retirement Date.






	 	(2)	 	Early Commencement. In the case of a Participant whose Benefit
Commencement Date precedes his or her Normal Retirement Date, the monthly benefit
determined under paragraph (1) shall be reduced for early commencement in the same
manner and amount as an early retirement benefit payable under the Pension Plan.
	 
	 	(3)	 	Other Benefits. If a Participant is due a benefit under a plan listed
on Schedule A which is maintained by the Employer the benefit hereunder will be
decreased by the benefit provided under the plan listed on Schedule A.





4.2 Disability Retirement Benefits.






(a)
Eligibility. A Participant who incurs a Termination of Service on account of
Disability, and who is eligible for a disability retirement benefit under the Pension Plan,
shall be eligible for a disability retirement benefit under the Plan. Except as otherwise
provided in Section 4.4, the disability benefit shall be calculated and paid as a single
life annuity commencing on the Participant’s Normal Retirement Date.






b) Amount. A disabled Participant who is eligible for a disability retirement benefit
under subsection (a) shall be entitled to a monthly retirement benefit equal to the difference



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	 	 	between (1) and (2) where —






	 	(1)	 	is the disability retirement benefit the Participant is entitled to under the
Pension
Plan at his or her Normal Retirement Date, but calculated without regard to the
limits described in section 4.1 (b) (1) (A); and
	 
	 	(2)	 	is the disability benefit actually payable to the Participant under the Pension
Plan as of his or her Normal Retirement Date.






	(c)	 	Other Benefits. If a Participant is due a benefit under a plan listed on Schedule A
which is maintained by the Employer the benefit hereunder will be decreased by the benefit
provided under the plan listed on Schedule A.




4.3 Termination Benefit.





(a) Eligibility. A participant whose employment with the Company terminates (for
reasons other than Cause, death or long-term disability) on or after he has completed ten
Years of Service and before his Earliest Retirement Age shall be eligible for a termination
benefit under the Plan.




(b) Amount. A Participant who is eligible pursuant to (a) above shall be entitled
to a monthly termination benefit computed in the same manner as an early retirement benefit
under section 4.1(b) (2) hereof, based upon his Service at termination and assuming that he
attained his Earliest Retirement Age on the day before his termination; provided, however,
such amount shall be actuarially reduced for early payment.




(c) Commencement and Duration. Monthly termination benefit payments shall commence
upon a Participant’s attainment of his Earliest Retirement Age. When payments begin, they
shall be paid monthly thereafter as one of the scheduled paydays of each succeeding month
during his lifetime.




(d) Other Benefits. If a Participant is due a benefit under a plan listed on
Schedule A which is maintained by the Employer the benefit hereunder will be decreased by
the benefit provided under the plan listed on Schedule A.


4.4 Form of Payment.





	(a)	 	Unmarried Participant. The form of payment for a Participant who is not married on
his or her Benefit Commencement Date shall be a single life annuity.






	(b)	 	Married Participant. The form of payment for a Participant who is married on his or
her Benefit Commencement Date shall be a joint and 50 percent surviving spouse annuity. A
joint and 50 percent surviving spouse annuity provides—






	 	(1)	 	a monthly benefit to the Participant for life; and
	 
	 	(2)	 	upon the Participant’s death, a monthly benefit to the Participant’s surviving
spouse for life equal to 50 percent of the amount payable during the Participant’s
lifetime.





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	(c)	 	Optional Payment Forms. The Plan Administrator may, in the Plan Administrators sole
and absolute discretion, direct that payment be made in a form other than that described in
Subsection (a) or (b). In that event, the benefit payable under the optional payment form
shall be the Actuarial Equivalent of the single life annuity described in subsection (a).




4.5 Payments in the Event of Plan Termination, Plan Change or Change of Control.




     In the event of Plan Termination, Plan Change or Change of Control, Plan benefits will be paid
to the Participants in accordance with this Subsection 4.5.



     In the event of a Change of Control, it is intended that any payment made under this
Subsection 4.5 shall not constitute a “parachute payment” within the meaning of Section 280G (b)
(2) (A) of the Code and that the Plan shall be construed to effectuate such intent. The aggregate
payments to be made under the Plan to “disqualified individuals” as defined in Section 280G(c) of
the Code, shall be reduced by an amount so that the Present Value of the payments which are
contingent upon a Change of Control do not equal or exceed three times the Participant’s average
annual taxable compensation from the Company for the most recent five taxable years ending before
the Change of Control.



     In certain circumstances payments made as a result of a Plan Termination or Plan Change that
are made within one year of a Change of Control may be deemed, for income tax purposes, to be
payments which are contingent on a Change of Control for purposes of Section 280G of the Code.
Notwithstanding any subsequent provisions in this section 4.5 to the contrary, where any payments
are to be made on account of a Plan Termination or Plan Change, all computations of such payments
under this subsection 4.5 shall be made as if there were a Change of Control. In the event that a
Change of Control does not occur within such one year period, such payments will be recomputed
under the Plan Termination or Plan Change provisions of this subsection 4.5 and any amounts which
are in excess of such payments as a result of such recomputation, plus interest at the most recent
Pension Benefit Guaranty Corporation interest rate in effect for the Company’s qualified pension
plan, shall be paid to the Participant or the Participant’s beneficiary, as applicable, within ten
business days after the end of such one year period.




	 	(a)	 	Payments to Terminated or Retired Participants.






	 	(1)	 	Eligibility. A terminated or retired
Participant, or if he is deceased, the terminated or retired
Participant’s beneficiary, who is receiving benefits pursuant to
subsection 4.1, 4.2 or 4.3 as of the date of a Plan Termination, Plan
Change or Change of Control, as applicable.
	 
	 	(2)	 	Amount. A terminated or retired Participant, or if he is
deceased, the retired Participant’s beneficiary, who is eligible
pursuant to (1) above, shall be paid the Lump Sum Actuarial Equivalent
of the remaining payments to be made under the Plan to the terminated
or retired Participant, or if he is deceased, the terminated or retired
Participant’s beneficiary.
	 
	 	(3)	 	Commencement and Duration. The Lump
Sum Actuarial Equivalent payable pursuant to (2) above shall be paid
within ten




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	 	 	 	business days of the Plan Termination, Plan Change or Change
of Control, as applicable.






	 	(b)	 	Payments upon Plan Termination or Plan Change to
Participants Who Have Attained Their Normal Retirement Age.






	 	(1)	 	Eligibility. A Participant who has ten
Years of Service and who has attained his Normal Retirement Age as of
the date of a Plan Termination or Plan Change.
	 
	 	(2)	 	Amount. A Participant who is eligible
pursuant to (1) above shall be paid the Lump Sum Actuarial Equivalent
of his normal retirement benefit payable pursuant to Subsection 4.1 (b)
assuming that he retired on the date of the Plan Termination or Plan
Change.
	 
	 	(3)	 	Commencement and Duration. The Lump
Sum Actuarial Equivalent payable pursuant to (2) above shall be paid
within ten business days of the Plan Termination or Plan Change.






	 	(c)	 	Payments upon Plan Termination or Plan Change to
Participants Who Have Attained Their Early Retirement Age






	 	(1)	 	Eligibility. A Participant who has ten
Years of Service and who has attained his Earliest Retirement Age, but
not his Normal Retirement Age, as of the date of a Plan Termination or
Plan Change.
	 
	 	(2)	 	Amount. A Participant who is eligible
pursuant to (1) above shall be paid the Lump Sum Actuarial Equivalent
of his early retirement benefit payable pursuant to subsection
4.1(b)(2) assuming that he retired on the date of the Plan Termination
or Plan Change.
	 
	 	(3)	 	Commencement and Duration. The Lump
Sum Actuarial Equivalent payable pursuant to (2) above shall be paid
within ten business days of the Plan Termination or Plan Change.






	 	(d)	 	Payments upon Plan Termination or Plan Change to
Participants Who Have Not Attained Their Early Retirement Age.






	 	(1)	 	Eligibility. A Participant who has ten
Years of Service and who has not attained his Early Retirement Age as
of the date of a Plan Termination or Plan Change.




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	 	(2)	 	Amount. A Participant who is eligible pursuant to (1)
above shall be paid the Lump Sum Actuarial Equivalent of his early
retirement benefit payable pursuant to subsection 4.1(b)(2) assuming
that he retired at his Earliest Retirement Age on the date of the
Plan Termination or Plan Change and is credited with his actual
number of Years of Service, actuarially adjusted to reflect his
actual age on the date of the Plan Termination or Plan Change.
	 
	 	(3)	 	Commencement and Duration. The Lump
Sum Actuarial Equivalent payable pursuant to (2) above shall be paid
within ten business days of the Plan Termination or Plan Change.






	 	(e)	 	Payments upon a Participant’s Termination for a Reason other than Cause
Following a Change of Control.






	 	(1)	 	Eligibility. A Participant who has ten
Years of Service whose employment is terminated for any reason other
than for Cause, early retirement, normal retirement, death or long-term
disability after a Change of Control.
	 
	 	(2)	 	Amount. A Participant who is eligible
pursuant to (1) above shall be paid the Lump Sum Actuarial Equivalent
of his early retirement benefit payable pursuant to subsection 4.3(b)
based upon his service at termination and assuming that he retired at
his Earliest Retirement Age on the Participant’s date of termination.
	 
	 	(3)	 	Commencement and Duration. The Lump
Sum Actuarial Equivalent payable pursuant to (2) above shall be paid
within ten business days of the Participant’s date of termination.






	 	(f)	 	Normal Retirement Benefit After a Change of Control.






	 	(1)	 	Eligibility. A Participant who meets the eligibility
requirements set forth in Subsection 4.1(a) after a Change of Control has
occurred.
	 
	 	(2)	 	Amount. A Participant who is eligible pursuant to (1)
above shall be paid
the Lump Sum Actuarial Equivalent of his normal retirement
benefit payable pursuant to subsection 4.1(b).
	 
	 	(3)	 	Commencement and Duration. The Lump Sum Actuarial
Equivalent payable pursuant to (2) above shall be paid within ten business days
of the date the Participant’s employment with the Company terminates.






	 	(g)	 	Early Retirement Benefit after a Change of Control.






	 	(1)	 	Eligibility. A Participant who meets the eligibility
requirements set forth in subsection 4.1(b)(2) after a Change of Control has
occurred.
	 
	 	(2)	 	Amount. A Participant who is eligible pursuant to (1)
above shall be paid




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	 	 	 	the Lump Sum Actuarial Equivalent of his early retirement benefit payable
pursuant to subsection 4.1(b)(2).
	 
	 	(3)	 	Commencement and Duration. The Lump Sum Actuarial
Equivalent payable pursuant to (2) above shall be paid within ten business days
of the date the Participant’s employment with the Company terminates.






	 	(h)	 	Disability Retirement Benefit After a Change of Control.






	 	(1)	 	Eligibility. A Participant who is or has been
determined to be totally disabled (either before or after a Change of Control)
as defined by the Company’s Long-Term Disability Plan on or after he has
completed ten Years of Service, after a Change of Control has occurred.
	 
	 	(2)	 	Amount. A Participant who is eligible pursuant to
(1) above shall be paid the Lump Sum Actuarial Equivalent of his disability
retirement benefit payable pursuant to subsection 4.2(b), assuming Service
through his Normal Retirement Age. The Lump Sum Actuarial Equivalent shall be
actuarially adjusted to reflect his actual age on the date of payment.
	 
	 	(3)	 	Commencement and Duration. The Lump Sum Actuarial
Equivalent payable pursuant to (2) above shall be paid within ten business days
of the later of the date the Participant is determined to be totally disabled
or the date of Change of Control.






	 	(i)	 	Death Benefit after a Change of Control.






	 	(1)	 	Eligibility. A beneficiary of a Participant who meets
the eligibility requirements set forth in subsection 5.1(a) or (b), after a
Change of Control has occurred.
	 
	 	(2)	 	Amount. A beneficiary who is eligible pursuant to (1)
above shall be paid the Lump Sum Actuarial Equivalent of his monthly benefit
payable pursuant to subsection 5.2 (a) or (b).
	 
	 	(3)	 	Commencement and Duration. The Lump Sum Actuarial
Equivalent payable pursuant to (2) above shall be paid within ten business days
of the Participant’s death.




4.6 No Payments upon a Participant’s Termination for Cause



Notwithstanding another provision of the Plan, if a Participant is terminated for Cause, no benefit
will be due or payable under the Plan.





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Section V. Preretirement Death Benefits



5.1 Eligibility.





	(a)	 	Active Employees. In the case of a Participant who has a vested interest in his
accrued benefit under the Pension Plan, and who dies while actively employed by the Company or
an Affiliate, there shall be payable to his or her Beneficiary a lump sum preretirement death
benefit equal to the amount determined under subsection 5.2 (a).






	(b)	 	Former Employees. In the case of a former Participant who has a vested interest in
his accrued benefit under the Pension Plan, and who dies after his Termination of Service but
before his Benefit Commencement Date, there shall be payable to such Participants’ surviving
spouse a preretirement survivor annuity equal to the amount determined under subsection 5.2
(b).






	(c)	 	No other Death Benefits. If a Participant dies before earning a vested interest in
his or her accrued benefit under the Pension Plan, or if a former Participant does not have a
surviving spouse, no death benefits shall be payable on the Participants’ behalf.




5.2 Amount.





	(a)	 	Active Employees. The benefit payable to an eligible Beneficiary under subsection
5.1 (a) shall be a lump sum benefit payment that is the Actuarial Equivalent of the monthly
benefit accrued by the Participant under section 4.1 as of the date of his death, reduced in
the same manner and amount as preretirement death benefits under the Pension Plan if the date
of the Participant’s death precedes his Normal Retirement Date.






	(b)	 	Former Employees. The monthly payments to an eligible surviving spouse under
subsection 5.1(b) shall equal the amount that would have been payable as a survivor annuity
under the form of payment described in subsection 4.4(b) if —






	 	(1)	 	in the case of a Participant who dies after attaining his Earliest Retirement
Age, the Participant had retired with an immediate benefit under subsection 4.4 (b) on
the day before his death.
	 
	 	(2)	 	in the case of a Participant who dies on or before attaining his Earliest
Retirement Age, the Participant had terminated employment on the date of death (if
employment had not yet terminated), survived to the Earliest Retirement Age, retired
with an immediate benefit under subsection 4.4(b) at the Earliest Retirement Age, and
died on the day after the day on which he would have attained the Earliest Retirement
Age.




5.3 Commencement. Payment of the preretirement death benefit under this Section V shall
commence on the first day of the month coinciding with or next following the date of the
Participant’s death.





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Section VI. Financing



6.1 Financing. The benefits under the Plan shall be paid out of the general assets of
the Employer. The benefits shall not be funded in advance of payment in any way.



6.2 No Trust Created. Nothing contained in the Plan, and no action taken pursuant to
the provisions of the Plan, shall create a trust of any kind or a fiduciary relationship between an
Employer and any Participant, Participant’s spouse, beneficiary, or any other person.
Notwithstanding the foregoing, a Rabbi Trust can be established by the Plan Administrator if deemed
to be beneficial to the Plan Participants.



6.3 Unsecured Interest. No Participant shall have any interest whatsoever in any
specific asset of the Company or an Affiliate. To the extent that any person acquires a right to
receive payments under the Plan, such right shall be no greater than the right of any unsecured
general creditor of an Employer.





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Section VII. Administration



7.1 Administration. The Plan shall be administered by the Plan Administrator. The
Plan Administrator shall have all the powers necessary or appropriate to carry out the provisions
of the Plan. The Plan Administrator may, from time to time, establish rules for the administration
of the Plan and the transaction of the Plan’s business.




     The Plan Administrator shall have the exclusive right to make any finding of fact necessary or
appropriate for any purpose under the Plan including, but not limited to, the determination of
eligibility for and amount of any benefit.



     The Plan Administrator shall have the exclusive right to interpret the terms and provisions of
the Plan and to determine any and all questions arising under the Plan or in connection with its
administration, including without limitation, the right to remedy or resolve possible ambiguities,
inconsistencies or omissions by general rule or particular decision, all in the Plan
Administrator’s sole and absolute discretion.



     To the extent permitted by law, all findings of fact, determinations, interpretations and
decisions of the Plan Administrator shall be conclusive and binding upon all persons having or
claiming to have any, interest or right under the Plan.


7.2 Appeals from Denial of Claims. If any claim for benefits under the Plan is wholly or
partially denied, the claimant shall be given notice of the denial. The notice shall be in writing
within a reasonable period of time after receipt of the claim by the Plan Administrator’s, not to
exceed 90 days after receipt of the claim; provided, however, if special circumstances require an
extension of time, written notice of such extension, not to exceed an additional 90 days, shall be
furnished to the claimant.




     Such notice shall be written in a manner calculated to be understood by the claimant and shall
set forth the following information:




	(a)	 	the specific reasons for the denial;
	 
	(b)	 	specific reference to the Plan provisions on which the denial is based.
	 
	(c)	 	a description of any additional material or information necessary to be submitted by the
claimant to perfect the claim and an explanation of why this material or information is
necessary;
	 
	(d)	 	an explanation that a full and fair review by the Plan Administrator of the decision denying
the claim may be requested by the claimant or an authorized representative by filing with the
Plan Administrator, within 60 days after the notice has been received, a written request for
the review;
	 
	(e)	 	if this request is so filed, an explanation that the claimant or an authorized representative
may review pertinent documents and submit issues and comments in writing within the same
60-day period specified in Subsection (d).






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     The decision of the Plan Administrator upon review shall be made promptly, but not later than
60 days after the Plan Administrator’s receipt of the request for review, unless special
circumstances require an extension of time for processing, in which case the claimant shall be so
notified, and a decision shall be rendered as soon as practicable, but not later than 120 days
after receipt of the request for review. If the claim is denied, in whole or in part, that
claimant shall be given a copy of the decision promptly. The decision shall be in writing, shall
include specific reasons for the denial, shall include specific references to the pertinent Plan
provisions on which the denial is based, and shall be written in a manner calculated to be
understood by the claimant.


7.3 Tax Withholding. The Employer may withhold from any payment under this Plan any
federal, state, or local taxes required by law to be withheld with respect to the payment and any
sum the Employer may reasonably estimate as necessary to cover any taxes for which they may be
liable and that may be assessed with regard to such payment. Upon discharge or settlement of such
tax liability, the Employer shall distribute the balance of such sum, if any, to the Participant
from whose payment it was withheld, or if such Participant is then deceased, to the beneficiary of
such Participant. Prior to making any payment hereunder, the Company may require such documents
from any taxing authority, or may require such indemnities or surety bond as the Company shall
reasonably deem necessary for its protection. As to any payroll tax that must be withheld in
accordance with the applicable statute, the Employer may withhold as necessary any payroll taxes
that are due.



7.4 Expenses. All expenses incurred in the administration of the Plan shall be paid by the
Employer.



7.5 Actuarial Equivalence. In determining the actuarial equivalent value of a benefit
payable under the Plan or of any other benefit, the Company, in consultation with an actuary
selected by the Company, shall use any generally accepted actuarial tables and reasonable interest
assumptions, as the Company shall determine in its sole and absolute discretion.



7.6 Liability of Plan Administrators; Indemnification. To the extent permitted by law, the
Plan Administrators shall not be liable to any person for any action taken or omitted in connection
with the interpretation and administration of the Plan unless attributable to his own gross
negligence or willful misconduct. The Company shall indemnify the Plan Administrators against any
and all claims, losses, damages, expenses, including counsel fees, incurred by them, and any
liability, including any amounts paid in settlement with their approval, arising from their action
or failure to act, except when the same is judicially determined to be attributable to their gross
negligence or willful misconduct.





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Section VIII. Adoption of the Plan by the Affiliate; Amendment and Termination of the Plan.



8.1 Adoption of the Plan by the Affiliate. An Affiliate may adopt the Plan by appropriate
action of its board of directors or authorized officers or representatives, subject to the approval
of the Board.



8.2 Amendment and Termination of the Plan. The Company hereby reserves the right to amend,
modify or terminate the Plan at any time, and for any reason, by action of the Board. However, no
amendment or termination shall have the effect of reducing the benefits accrued by a Participant
prior to the date of the amendment or termination. Notice of any such amendment or termination
shall be given in writing to each Participant and beneficiary of a deceased Participant having an
interest in the Plan.





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Section IX. Miscellaneous Provision



9.1 No Contract of Employment. Nothing contained in the Plan shall be construed to give
any Participant the right to be retained in the service of the Company or its Affiliates or to
interfere with the right of the Company or its Affiliates to discharge a Participant at any time.



9.2 Severability. If any provision of this Plan shall be held illegal or invalid, the
illegality or invalidity shall not affect its remaining parts. The Plan shall be construed and
enforced as if it did not contain the illegal or invalid provision.



9.3 Applicable Law. Except to the extent preempted by applicable federal law, this Plan
shall be governed by and construed in accordance with the laws of the state of North Carolina.




     IN WITNESS WHEREOF, FIRST UNION CORPORATION has caused this instrument to be executed by its duly
authorized officer, effective as of the date specified above.



	 	 	 	 	 	 	 
	 	 	FIRST UNION CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 






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Schedule A




First Fidelity Benefit Equalization Plan





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