Key Employee Stock Plan

Exhibit 10(a)


BANK OF AMERICA CORPORATION
KEY EMPLOYEE STOCK PLAN


Effective Date: January 1, 1995


(As amended and restated effective September 24, 1998)


CONTENTS
PAGE


Article 1. Establishment, Purpose, and Duration......................................................1


Article 2. Definitions................................................................................1


Article 3. Administration.............................................................................6


Article 4. Shares Subject to the Plan.................................................................6


Article 5. Eligibility and Participation.............................................................7


Article 6. Stock Options..............................................................................8


Article 7. Stock Appreciation Rights..................................................................9


Article 8. Restricted Stock..........................................................................11


Article 9. Performance Shares........................................................................12


Article 10. Performance Measures.....................................................................13


Article 11. Beneficiary Designation..................................................................14


Article 12. Deferrals................................................................................14


Article 13. Rights of Key Employees..................................................................14


Article 14. Change in Control........................................................................14


Article 15. Amendment, Modification, and Termination................................................17


Article 16. Withholding..............................................................................17


Article 17. Indemnification..........................................................................17


Article 18. Successors...............................................................................18


Article 19. Legal Construction.......................................................................18


BANK OF AMERICA CORPORATION
KEY EMPLOYEE STOCK PLAN


ARTICLE 1. ESTABLISHMENT, PURPOSE, AND DURATION


1.1 ESTABLISHMENT OF THE PLAN. NationsBank Corporation, a North Carolina corporation (the "Company"), established an incentive compensation plan known as the "NationsBank Corporation Key Employee Stock Plan" (the "Plan") effective as of January 1, 1995 (the "Effective Date"). The Plan was designed to permit the grant of Nonqualified Stock Options, Incentive Stock Options, Stock Appreciation Rights, Restricted Stock and Performance Shares.


1.2 AMENDMENT AND RESTATEMENT OF THE PLAN. The Company entered into an Agreement and Plan of Reorganization with BankAmerica Corporation, a Delaware corporation ("BankAmerica"), dated April 10, 1998 (the "Reorganization Agreement"). Pursuant to the Reorganization Agreement, the Company is being reformed as a Delaware corporation, BankAmerica is merging into the Company, and the resulting Delaware corporation is being renamed "BankAmerica Corporation," all effective as of the "Effective Time" as defined in the Reorganization Agreement. References in this Plan to the Company include the Delaware corporation resulting from the consummation of the transactions contemplated by the Reorganization Agreement.


This document is an amendment and restatement of the Plan and shall become effective upon approval by the shareholders of the Company. The purposes of this amendment and restatement are to (i) rename the Plan consistent with the corporate name change resulting under the transactions contemplated by the Reorganization Agreement, (ii) increase the number of shares available for awards under the Plan, (iii) increase the limit on awards to individuals in any given year and (iv) otherwise meet current needs.


1.3 PURPOSE OF THE PLAN. The purpose of the Plan is to promote the success and enhance the value of the Company by linking the personal interests of Participants to those of the Company's shareholders, and by providing Participants with an incentive for outstanding performance.


The Plan is further intended to provide flexibility to the Company in its ability to motivate, attract, and retain the services of Participants upon whose judgment, interest and special effort the successful conduct of its operation largely is dependent.


1.4 DURATION OF THE PLAN. The Plan commenced on the Effective Date, as described in Section 1.1 hereof, and shall remain in effect, subject to the right of the Board of Directors to amend or terminate the Plan at any time pursuant to Article 15 hereof, until all Shares subject to it shall have been purchased or acquired according to the Plan's provisions. However, in no event may an Award be granted under the Plan after December 31, 2004.


ARTICLE 2. DEFINITIONS


Whenever used in the Plan, the following terms shall have the meanings set forth below and, when the meaning is intended, the initial letter of the word is capitalized:


2.1 "AWARD" means, individually or collectively, a grant under this Plan of Nonqualified Stock Options, Incentive Stock Options, Stock Appreciation Rights, Restricted Stock or Performance Shares.


2.2 "AWARD AGREEMENT" means an agreement entered into by the Company and each Participant setting forth the terms and provisions applicable to Awards granted under this Plan.


2.3 "BENEFICIAL OWNER" or "BENEFICIAL OWNERSHIP" shall have the meaning ascribed to such term in Rule 13d-3 of the General Rules and Regulations under the Exchange Act.


2.4 "BOARD" or "BOARD OF DIRECTORS" means the Board of Directors of the Company.


2.5 "CHANGE IN CONTROL" of the Company means, and shall be deemed to have occurred upon, any of the following events:


(a) The acquisition by any Person of Beneficial Ownership of
twenty-five percent (25%) or more of either:


(i) The then-outstanding Shares (the "Outstanding
Shares"); or


(ii) The combined voting power of the
then-outstanding voting securities of the Company entitled to
vote generally in the election of Directors (the "Outstanding
Voting Securities");


provided, however, that the following acquisitions shall not constitute
a Change in Control for purposes of this subparagraph (a): (A) any
acquisition directly from the Company, (B) any acquisition by the
Company or any of its Subsidiaries, (C) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Company
or any of its Subsidiaries, or (D) any acquisition by any corporation
pursuant to a transaction which complies with clauses (i), (ii) and
(iii) of subparagraph (c) below; or


(b) Individuals who, as of the Effective Date, constitute the
Board of Directors (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board of Directors; provided,
however, that any individual who becomes a Director subsequent to the
Effective Date and whose election, or whose nomination for election by
the Company's shareholders, to the Board of Directors was either (i)
approved by a vote of at least a majority of the Directors then
comprising the Incumbent Board or (ii) recommended by a Nominating
Committee comprised entirely of Directors who are then Incumbent Board
members 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
either an actual or threatened election contest (as such terms are used
in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act),
other actual or threatened solicitation of proxies or consents or an
actual or threatened tender offer; or


(c) Approval by the Company's shareholders of a
reorganization, merger, or consolidation or sale or other disposition
of all or substantially all of the assets of the Company (a "Business
Combination"), in each case, unless following such Business
Combination, (i) all or substantially all of the Persons who were the
Beneficial Owners, respectively, of the Outstanding Shares and
Outstanding Voting Securities immediately prior to such Business
Combination own, directly or indirectly, more than fifty percent (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 resulting from the Business


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Combination (including, without limitation, a corporation which as a
result of such transaction owns the Company or all or substantially all
of the Company's assets either directly or through one or more
subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Business Combination, of the Outstanding
Shares and Outstanding Voting Securities, as the case may be (provided,
however, that for purposes of this clause (i), any shares of common
stock or voting securities of such resulting corporation received by
such Beneficial Owners in such Business Combination other than as the
result of such Beneficial Owners' ownership of Outstanding Shares or
Outstanding Voting Securities immediately prior to such Business
Combination shall not be considered to be owned by such Beneficial
Owners for the purposes of calculating their percentage of ownership of
the outstanding common stock and voting power of the resulting
corporation), (ii) no Person (excluding any corporation resulting from
such Business Combination or any employee benefit plan (or related
trust) of the Company or such corporation resulting from the Business
Combination) beneficially owns, directly or indirectly, twenty-five
percent (25%) or more of, respectively, the then outstanding shares of
common stock of the corporation resulting from the Business Combination
or the combined voting power of the then outstanding voting securities
of such corporation unless such Person owned twenty-five percent (25%)
or more of the Outstanding Shares or Outstanding Voting Securities
immediately prior to the Business Combination and (iii) at least a
majority of the members of the board of directors of the corporation
resulting from such Business Combination were members of the Incumbent
Board at the time of the execution of the initial agreement, or the
action of the Board, providing for such Business Combination; or


(d) Approval by the Company's shareholders of a complete
liquidation or dissolution of the Company.


Notwithstanding the foregoing, a Change in Control shall not be deemed to have occurred for purposes of this Plan as a result of the transactions contemplated by the Reorganization Agreement.


2.6 "CODE" means the Internal Revenue Code of 1986, as amended from time to time. References to the Code shall include the valid and binding governmental regulations, court decisions and other regulatory and judicial authority issued or rendered thereunder.


2.7 "COMMITTEE" means (i) the Stock Option Committee of the Board (or any other committee of the Board that is appointed by the Board to administer the Plan with respect to grants of Awards) and (ii) any individual or committee of individuals (who need not be Directors) that the Committee described in clause (i) may appoint from time to time to administer the Plan with respect to grants of Awards to Key Employees who are not Insiders or Named Executive Officers.


2.8 "COMPANY" means (i) prior to the Effective Time, NationsBank Corporation, a North Carolina corporation and (ii) from and after the Effective Time, BankAmerica Corporation, a Delaware corporation (which is the resulting entity upon consummation of the transactions contemplated by the Reorganization Agreement), and any successor as provided in Article 18 herein.


2.9 "DIRECTOR" means any individual who is a member of the Board of Directors of the Company.


2.10 "DISABILITY" with respect to a Participant, means "disability" as defined from time to time under any long-term disability plan of the Company or Subsidiary with which the Participant is employed.


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2.11 "EARNINGS PER SHARE" means "earnings per common share" of the Company determined in accordance with generally accepted accounting principles that would be reported in the Company's Annual Report to Shareholders or Annual Report on Form 10-K.


2.12 "EFFECTIVE DATE" shall have the meaning ascribed to such term in Section 1.1 hereof.


2.13 "EFFECTIVE TIME" means the "Effective Time" as defined in the Reorganization Agreement.


2.14 "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended from time to time, or any successor act thereto.


2.15 "FAIR MARKET VALUE" of a Share on any date means the closing price of a Share as reflected in the report of composite trading of New York Stock Exchange listed securities for that day (or, if no Shares were publicly traded on that day, the immediately preceding day that Shares were so traded) published in The Wall Street Journal [Eastern Edition] or in any other publication selected by the Committee; provided, however, that if the Shares are misquoted or omitted by the selected publication(s), the Committee shall directly solicit the information from officials of the stock exchanges or from other informed independent market sources. If Shares shall not have been publicly traded for more than ten (10) days immediately preceding such date, then the Fair Market Value of a Share shall be determined by the Committee in such manner as it shall deem appropriate.


2.16 "FREESTANDING SAR" means an SAR that is granted independently of any Options.


2.17 "INCENTIVE STOCK OPTION" or "ISO" means an option to purchase Shares, granted under Article 6 herein, and designated as an Incentive Stock Option which is intended to meet the requirements of Section 422 of the Code.


2.18 "INSIDER" shall mean an individual who is, on the relevant date, an officer, director or ten percent (10%) beneficial owner of any class of the Company's equity securities that is registered pursuant to Section 12 of the Exchange Act, all as defined under Section 16 of the Exchange Act and the rules thereunder.


2.19 "KEY EMPLOYEE" means an employee of the Company or any Subsidiary, including an officer of the Company or a Subsidiary, in a managerial or other important position who, by virtue of such employee's ability, qualifications and performance, has made, or is expected to make, important contributions to the Company or its Subsidiaries, all as determined by the Committee in its discretion.


2.20 "NAMED EXECUTIVE OFFICER" means, for a calendar year, a Participant who is one of the group of "covered employees" for such calendar year within the meaning of Code Section 162(m) or any successor statute.


2.21 "NET INCOME" means "net income" of the Company determined in accordance with generally accepted accounting principles that would be reported in the Company's Annual Report to Shareholders or Annual Report on Form 10-K.


2.22 "NONQUALIFIED STOCK OPTION" or "NQSO" means an option to purchase Shares granted to Key Employees under Article 6 herein, and which is not intended to meet the requirements of Code Section 422.


2.23 "OPTION" means an Incentive Stock Option or a Nonqualified Stock Option.


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2.24 "OPTION PRICE" means the price at which a Share may be purchased by a Participant pursuant to an Option.


2.25 "PARTICIPANT" means a Key Employee, a former Key Employee or any permitted transferee under the Plan of a Key Employee or former Key Employee who has outstanding an Award granted under the Plan.


2.26 "PERFORMANCE-BASED EXCEPTION" means the performance-based exception set forth in Code Section 162(m)(4)(C) from the deductibility limitations of Code Section 162(m).


2.27 "PERFORMANCE SHARE" means an Award granted to a Key Employee, as described in Article 9 herein.


2.28 "PERIOD OF RESTRICTION" means the period during which the transfer of Shares of Restricted Stock is limited in some way (based on the passage of time, the achievement of performance goals, or upon the occurrence of other events as determined by the Committee, at its discretion), and the Shares are subject to a substantial risk of forfeiture, as provided in Article 8 herein.


2.29 "PERSON" shall have the meaning ascribed to such term in Section 3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d) thereof, including a "group" as defined in Section 13(d) thereof.


2.30 "PLAN" means the incentive compensation plan set forth herein which (i) prior to the Effective Time was known as the "NationsBank Corporation Key Employee Stock Plan" and (ii) from and after the Effective Time is known as the "BankAmerica Corporation Key Employee Stock Plan," as the same may be amended from time to time.


2.31 "REORGANIZATION AGREEMENT" means the Agreement and Plan of Reorganization dated April 10, 1998 between NationsBank Corporation and BankAmerica Corporation.


2.32 "RESTRICTED STOCK" means an Award granted to a Participant pursuant to Article 8 herein.


2.33 "RETURN ON ASSETS" means "return on average assets" of the Company determined in accordance with generally accepted accounting principles that would be reported in the Company's Annual Report to Shareholders or Annual Report on Form 10-K.


2.34 "RETURN ON EQUITY" means "return on average common shareholders' equity" of the Company determined in accordance with generally accepted accounting principles that would be reported in the Company's Annual Report to Shareholders or Annual Report on Form 10-K.


2.35 "SHARES" means the shares of common stock of the Company.


2.36 "STOCK APPRECIATION RIGHT" or "SAR" means an Award, granted alone or in connection with a related Option, designated as an SAR, pursuant to the terms of Article 7 herein.


2.37 "SUBSIDIARY" means any corporation, partnership, joint venture, affiliate, or other entity in which the Company owns more than fifty percent (50%) of the voting stock or voting ownership interest, as applicable, or any other business entity designated by the Committee as a Subsidiary for purposes of the Plan.


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2.38 "TANDEM SAR" means an SAR that is granted in connection with a related Option, the exercise of which shall require forfeiture of the right to purchase a Share under the related Option (and when a Share is purchased under the Option, the Tandem SAR shall similarly be canceled).


2.39 "TOTAL SHAREHOLDER RETURN" means the percentage change of an initial investment in Shares over a specified period assuming reinvestment of all dividends during the period or Annual Report on Form 10-K.


ARTICLE 3. ADMINISTRATION


3.1 THE COMMITTEE. The Plan shall be administered by the Committee. Awards to Insiders shall be administered by the Committee (or any sub-committee thereof) comprised of two or more Directors who are "non-employee directors" within the meaning of Rule 16b-3 adopted under the Exchange Act, and Awards to Named Executive Officers intended to comply with the Performance-Based Exception shall be administered by the Committee (or any sub-committee thereof) comprised of two or more Directors who are "outside directors" within the meaning of Section 162(m) of the Code.


3.2 AUTHORITY OF THE COMMITTEE. Except as limited by law, or by the Articles of Incorporation (or Certificate of Incorporation, as the case may be) or Bylaws of the Company, and subject to the provisions herein, the Committee shall have full power to select Key Employees who shall participate in the Plan; determine the sizes and types of Awards; determine the terms and conditions of Awards in a manner consistent with the Plan; construe and interpret the Plan and any agreement or instrument entered into under the Plan; establish, amend, or waive rules and regulations for the Plan's administration; ...