UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 | ||||
Date of Report (Date of earliest event reported): | December 26, 2012 | |
SunTrust Banks, Inc. |
(Exact name of registrant as specified in its charter) |
Georgia | 001-08918 | 58-1575035 | ||
(State or other jurisdiction of incorporation) | (Commission File Number) | (IRS Employer Identification No.) | ||
303 Peachtree St., N.E., Atlanta, Georgia | 30308 | |
(Address of principal executive offices) | (Zip Code) | |
Registrant's telephone number, including area code | (404) 588-7711 |
Not Applicable |
(Former name or former address, if changed since last report) |
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) | |
SUNTRUST BANKS, INC. | ||||
(Registrant) | ||||
December 26, 2012 | By: | /s/ David A. Wisniewski | ||
David A. Wisniewski, | ||||
Senior Vice President, Deputy General Counsel and Assistant Secretary | ||||
ADDENDUM A | History of Revised Plan Provisions |
ADDENDUM B | Acquired or Merged Entities |
ADDENDUM C | Adopting Employers |
1.1 | Accounts means the records the Committee maintains to record the Contributions and attributable gains/losses/expenses allocated to each Participant, and withdrawals and distributions, for accounting purposes only. The Committee will not segregate Plan assets among Accounts. |
(a) | Employer Contribution Account means one or more of the following Accounts, which are funded by the Employers: |
(1) | Matching Account means the Account to record Matching Contributions allocated to a Participant under Section 3.2. |
(2) | Non-Matching Account means the Account to record the balance transferred to this Plan on a Participant’s behalf, as a result of the merger of the Sun Banks, Inc. Employee Stock Ownership Plan and the Trust Company of Georgia Tax-Credit Employee Stock Ownership Plan, or any other merger. |
(3) | Merged Plan Account (or Prior Employer Account) means an Account that was transferred to this Plan as part of a Merged Plan and that was funded with Employer Contributions. |
(4) | Discretionary Contribution Account means the Account to record Employer Discretionary Contributions allocated to a Participant under Section 3.2. |
(b) | Employee Contribution Account means one of more of the following Accounts, which are funded by Employee Contributions, and are fully vested at all times. |
(1) | Before-Tax Account means an Account to record the Elective Deferrals that a Participant makes on a before-tax basis under Section 3.1. The Before-Tax Account also will record the Catch-Up Contributions made by eligible Participants (age 50 or older) under Section 3.1. |
(2) | Designated Roth Account (or Roth Account) means an Account to record after-tax contributions that a Participant designates as Roth Contributions and makes under Section 3.1 in lieu of Elective Deferrals, which are aggregated with Elective Deferrals for purposes of the Code Section 402(g) limit, Matching Contributions, and the Code Section 415 limit. The Designated Roth Account also will record after-tax Catch-Up Contributions designated as Roth Contributions. |
(3) | After-Tax Account means an Account to record the amounts that a Participant previously contributed on an after-tax basis to a Merged Plan. This Plan does not permit after-tax contributions other than Designated Roth Contributions effective January 1, 2011. |
(4) | Rollover Contribution Account means an Account to record the before-tax amounts that a Participant rolled over to this Plan from another qualified retirement plan or conduit individual retirement account under Section 3.3. |
(5) | Roth Rollover Account means an Account (or sub-Account) to record amounts that a Participant rolled over after 2010 from a Designated Roth Account in another employer’s plan. |
1.2 | Acquisition Loan means a loan or other extension of credit to the Plan or to the Company on behalf of the Plan, the proceeds of which are used only to purchase Employer Stock or to repay a previous Acquisition Loan. |
1.3 | After-Tax Account. See the definition of After-Tax Contribution within the definition of Accounts. |
1.4 | Annual Addition Limit means the limit on the sum of all Contributions allocated to a Participant’s Accounts for a Plan Year, which cannot exceed the lesser of (a) a statutory limit, which is $50,000 for the 2012 Plan Year, and is indexed to the CPI in $1,000 increments under Code Section 415, or (b) 100% of his/her Compensation for the Plan Year. See Subsection 7.2(a). |
1.5 | Automatic Enrollee (also called Auto-Enrollee) means any Employee who has been automatically enrolled in the Plan under Section 2.1(i). After an Auto-Enrollee elects any change in his/her Automatic Enrollment Percentage, the Plan will no longer treat him/her as an Auto-Enrollee. |
1.6 | Automatic Enrollment Percentage (also called Auto-Percentages) means the percentage of Compensation that the Plan automatically and uniformly defers before-tax for all Auto-Enrollees, until they elect to defer (before-tax) and/or contribute (after-tax) a different percentage. The Plan uniformly increases the Auto-Percentages at the beginning of each Auto-Enrollee’s Employment anniversary year. The uniform Auto-Percentages are: (a) 3% for the first year (12 months) of participation, (b) 4% for the second year of participation (months 13 – 24), (c) 5% for the third year of participation (months 25 – 36), and (d) 6% for the fourth year and each subsequent year of participation (months 37 and forward). |
1.7 | Before-Tax Account. See the definition of Before-Tax Account within the definition of Accounts. |
1.8 | Benefits Committee means, effective July 1, 2011, the Benefits Plan Committee, a non-Board management committee which serves as the Plan Administrator. The membership and responsibilities of the Benefits Committee are described by Article 9. |
1.9 | Board means the Board of Directors of the Company, or where applicable, the Executive Committee of the Board, as constituted from time to time. |
1.10 | Catch-Up Contribution. See the definition of Catch-Up Deferrals and/or Catch-Up Roth Contributions within the definition of Contributions. |
1.11 | Code means the Internal Revenue Code of 1986 as amended from time to time, and regulations and rulings issued under the Code. |
1.12 | Committee or Committees means, effective July 1, 201, for purposes of Articles 8 and 9, the Benefits Committee or Finance Committee or both, as indicated by the context. Otherwise, except as further amended herein, any reference to the Committee means the Benefits Committee. |
1.13 | Company means SunTrust Banks, Inc. |
1.14 | Compensation. Compensation has the following meanings for the following purposes, and is intended to be a safe-harbor definition under Code Section 414(s). |
(a) | Contributions. For purposes of determining the amount that each Participant elects to contribute, Compensation means the basic earnings (calculated monthly, weekly or hourly, as applicable) paid by an Employer to an Employee, plus (1) shift differentials; (2) compensation classified on his/her Employer’s payroll as vacation pay or sick pay; (3) draw for a commission Employee; (4) overtime pay; (5) certain bonuses and commissions as reviewed and approved by the Management of Benefits and Compensation; (6) beginning January 1, 2006, non-deferred payments under the SunTrust Management Incentive Plan (MIP) (or any successor plan as determined by the Compensation Committee); (7) salary reduction contributions under Code Sections 401(k), 125 (flexible benefits), and/or 132(f) (parking or transportation, effective January 1, 1999); (8) effective January 1, 2008, above-described amounts paid to a terminated |
(b) | Deductibility of Employer Contributions. See Subsection 3.2(h)(2) for the adjustments in Compensation used to determine the deductibility of Employer Contributions. |
(c) | Statutory Limit. Beginning with the 2002 Plan Year, each Participant’s Compensation taken into account for all purposes under the Plan for each Plan Year is limited to the amount permitted under Code Section 401(a)(17), which is $250,000 for the 2012 Plan Year, and which is indexed to the CPI in $5,000 increments. For purposes of Employee Contributions and Matching Contributions, the Plan will not apply the statutory limit on a payroll period basis but rather will apply the limit on a Plan Year basis, in a manner that prevents each Participant from exceeding the Code Sections 402(g) limit, the 415 limit, and the Plan Percentage Limit for each Plan Year. The Plan will not prorate the statutory limit on Compensation for any Participant who participates in the Plan for less than a full Plan Year. See Addendum A for the statutory limits in effect before the 2010 Plan Year. |
1.15 | Contributions. The Trustee accepts the following Contributions to the Plan: |
(a) | Employer Contributions. |
(1) | Matching Contributions, means contributions made by the Employers for each payroll period, in an amount equal to 100% of the first 6 percentage points of eligible Employee Contributions made by each Participant for each payroll period in each Plan Year (excluding Catch-Up Contributions). This percentage is designed to comply with the ADP and ACP safe harbor requirements set forth in Code Sections 401(k)(12), 401(k)(13), 401(m)(11), and 401(m)(12) as applicable, and may be changed to the extent necessary to comply with those requirements as in existence from time to time. As soon as practicable after the end of a calendar quarter, or after the end of the Plan Year, the Employers make True-Up Matching Contributions for each Participant whose deferral pattern during the Plan Year caused him/her to receive allocations of Matching Contributions during the Plan Year in an amount less than the maximum amount permitted under the terms of the Plan. Matching Contributions are 100% vested when made during the period January 1 1997 through December 31, 2010. For each Employee whose Employment Date is after December 31, 2010, Matching Contributions are 100% vested after he/she completes two Years of Vesting Service, becomes Disabled or dies. |
(2) | Employer Discretionary Contributions means contributions, in addition to Matching Contributions, that may be made by the Employers in such amount and for such classification of Employees as the Company shall determine, in its sole discretion, for the Plan Year. Employer Discretionary Contributions, if any, shall be delivered to the Trustee for deposit in the Trust Fund not later than the time prescribed by federal law (including extensions) for filing the federal income tax return of the Employer for the taxable year in which the Plan Year ends. For each Participant whose Employment Date is prior to January 1, 2011, Employer |
(b) | Employee Contributions. The Plan uses the term Employee Contributions to include Elective Deferrals, Roth Contributions, Catch-Up Deferrals, and Catch-Up Roth Contributions. |
(1) | Elective Deferrals, means the amounts that each Participant elects to contribute on a before-tax basis under Section 3.1, between 1% and 50% of Compensation for each payroll period in each Plan Year. These percentage limits are designed to comply with the ADP safe harbor requirements set forth in Code Section 401(k)(12), and may be changed to the extent necessary to comply with those requirements as in existence from time to time. |
(2) | Roth Contributions, also called Designated Roth Contributions, means the amounts a Participant elects to contribute on an after-tax basis under Code Section 402A and Section 3.1, and irrevocably designates as Roth Contributions, between 1% and 50% of Compensation for each payroll period in each Plan Year when combined with any Elective Deferrals he/she makes. The Plan treats Roth Contributions the same as Elective Deferrals for purposes of the Code Section 402(g) annual dollar limit, Matching Contributions, and the Code Section 415 annual limit on allocations. The Employers treat Roth Contributions as includible in a Participant’s taxable income at the time he/she would have received those amounts in cash if he/she had not made a Roth Contribution. The Plan distributes each Designated Roth Account balance (including investment earnings) on an after-tax basis if it meets the requirements for a Qualified Roth Distribution. |
(3) | Catch-Up Deferral and/or Catch-Up Roth Contributions means the additional Deferrals and/or Roth Contributions elected by a Participant who is age 50 or older (as of the end of the Plan Year) and who has met the eligibility requirements under Section 3.1, the amount of which is limited to the annual dollar amount specified in Section 3.1 ($5,500 for the 2012 Plan Year and indexed to the CPI under Code Section 414(v)) and the Plan Percentage Limit for Catch-Up Contributions of Compensation for each payroll period, and which is excluded from the annual Dollar Limit and the Annual Addition Limit. The Plan treats Catch-Up Roth Contributions the same as Catch-Up Deferrals for purposes of the Code Section 414(v) annual dollar limit, |
(c) | Rollover Contribution means an amount transferred to this Plan from another qualified retirement plan, conduit individual retirement account or directly from a designated Roth account in another qualified plan under Section 3.3. |
1.16 | Controlled Group means the Company and each member of the group of corporations or entities that is under at least 80% common control by or with the Company, within the meaning of Code Sections 414(b) and (c) (i.e., common ownership of stock having more than 80% of the total combined voting power of all classes of stock entitled to vote, or more than 80% of the total value of shares of all classes of stock), or is a member of an affiliated service group within the meaning of Code Section 414(m), or is an entity that is required to be aggregated with the Company under Code Section 414(o). |
1.17 | Designated Roth Account. See the definition of Roth Account. |
1.18 | Designated Roth Contribution. See the definition of Roth Contribution. |
1.19 | Disability (or Disabled) means a determination by the claims administrator under the Long-Term Disability Plan provisions in the SunTrust Banks, Inc. Employee Benefit Plan that a Participant is disabled and is eligible to receive benefits under such program. This Plan will not treat a Participant as having a Disability if his/her impairment was caused by his/her military service; his/her commission of a crime or act of war, riot or civil insurrection; or employment with or service for any entity other than an Employer or Controlled Group member. |
1.20 | Dollar Limit means the maximum dollar amount that any Participant can contribute for any Plan Year under Code Section 402(g), which amount is $17,000 for the 2012 Plan Year and is indexed to the CPI in $500 increments. |
1.21 | Effective Date means (a) July 1, 1984 for the Prior Plan named the Sun Banks, Inc. SunShare Plan; (b) January 1, 1985 for the Prior Plan named the Trust Company of Georgia Tax-Credit Employee Stock Ownership Plan; (c) January 1, 1987 for the Prior Plan named the Trust Company of Georgia Incentive Compensation Plan; and (d) January 1, 1987 for the Prior Plan named the Third National Corporation Thrift Plan. January 1, 1989 is the Effective Date of the merger of the Prior Plans to form this Plan. The merged Plan was amended and restated effective as of January 1, 1990, January 1, 1993, January 1, 1997, January 1, 2002, January 1, 2006, April 22, 2009 and January 1, 2010. The Effective Date of this amendment and restatement is January 1, 2012, except that certain amendments are effective as of other dates stated within the affected Sections. |
1.22 | Elective Deferrals. See the definition of Elective Deferrals within the definition of Contributions. |
1.23 | Employee means, for purposes of eligibility to participate in this Plan, an individual (a) who is employed by an Employer as a common-law employee and is classified as regular full-time, part-time, on-call, prime-time temporary; and (b) who has FICA taxes withheld by an Employer. The group of eligible Employees excludes: (a) members of a unit of employees covered by a collective bargaining agreement between an employee representative and an Employer, unless otherwise provided in the agreement or agreed to by the Employer and the union; (b) leased employees as defined under Code Section 414(n); (c) individuals designated as independent contractors (even if a court or administrative agency determines that such individuals are common-law employees); (d) individuals who are employees on a transition or interim basis in connection with an FDIC assisted purchase of assets of such individual’s employer; (e) individuals who work for an entity that is not in the Controlled Group with SunTrust as determined under Code Section 414(b) and (c); and (f) individuals working in intern, exchange or student-related positions. No individual will be treated as an Employee for any period of service with an Employer before it became a Controlled Group Member. If an Employer or any governmental entity |
1.24 | Employee Contributions. See the definition of Employee Contributions within the definition of Contributions. |
1.25 | Employee Contributions Accounts. See the definition of Employee Contributions Accounts within the definition of Accounts. |
1.26 | Employer means the Company and each Controlled Group member that has Employees who are covered by the Plan as described in Section 2.4. The Employers that participate in this Plan as of January 1, 2012 are listed in Addendum C. |
1.27 | Employer Contributions. See the definition of Employer Contributions within the definition of Contributions. |
1.28 | Employer Contribution Accounts. See the definition of Employer Contribution Accounts within the definition of Accounts. |
1.29 | Employer Stock means common stock of the Company that is readily tradable on an established securities market and is a qualifying employer security within the meaning of ERISA Section 407. Employer Stock may include treasury shares and noncallable preferred stock that is convertible into common stock at any time and at a reasonable price. Preferred stock will be treated as noncallable if there is a reasonable opportunity for conversion after a call. All shares of preferred stock will have voting rights equal to the stock into which they can be converted. |
1.30 | Employer Stock Fund means the unitized investment fund managed by the Trustee, which holds shares of Employer Stock and cash and/or cash equivalents. The recordkeeper allocates units of the Employer Stock Fund, called Share Units, based on the Fair Market Value of the shares and the cash and cash equivalents in that Fund on the allocation date. The fact that cash and cash equivalents are held in the Employer Stock Fund causes each Share Unit to have a different value than a share of Employer Stock at any given time. |
1.31 | Employment means the period during which an individual is employed by an Employer, whether or not in a classification that is eligible to participate in the Plan. |
1.32 | Employment Date means the date on which the Employee first earns Compensation. If an Employee worked for a Controlled Group member immediately before he/she transferred to a participating Employer, the Plan grants credit for eligibility for his/her pre-transfer service. |
1.33 | ERISA means the Employee Retirement Income Security Act of 1974, as amended from time to time, and regulations and rulings under ERISA. |
1.34 | ESOP means the Employer Stock Fund, which is an employee stock ownership plan under Code Sections 401(a) and 4975(e)(7) that is designed to invest primarily in the common Stock of the Company, which constitutes qualifying employer securities. The Trustee will have sole discretion to invest the Employer Stock Fund in a combination of qualifying employer securities and sufficient cash to meet the Plan’s liquidity requirements. The ESOP is an integral part of the Plan. |
1.35 | Excess 402(g) Contributions means the total annual amount of a Participant’s Elective Deferrals and/or Roth Contributions that he/she makes under this Plan for a Plan Year, plus his/her elective deferrals and/or Roth contributions under any other qualified plan, simplified employee pension, simple retirement account, and/or Code Section 403(b) plan (within the meaning of Code Section 402(g)) for any Plan Year, which in the aggregate exceeds the indexed Dollar Limit in effect for each Plan Year ($17,000 for the 2012 Plan Year and indexed to the CPI in $500 increments). |
1.36 | Fiduciary means any person who is a fiduciary within the meaning of Section 3(21) of ERISA and regulations issued thereunder from time to time. |
1.37 | Finance Committee means, effective July 1, 2011, the Benefits Finance Committee, a non-Board management committee which serves as the named fiduciary responsible for financial decisions of the Plan. The membership and responsibilities of the Finance Committee are described by Article 9. |
1.38 | Fair Market Value means, with respect to Employer Stock, the closing price for which the |
1.39 | Financed Shares means Shares of Employer Stock acquired with the proceeds of an Acquisition Loan, which may or may not be encumbered by the terms of the Loan. |
1.41 | HCE Group means the entire group of Employees who are Highly Compensated Employees (HCEs) for the Plan Year. |
1.42 | Highly Compensated Employee (HCE) means (a) each Employee who was a 5‑percent owner of any Employer at any time during the current or preceding Plan Year; and (b) each Employee who earned at least the statutory threshold amount under Code Section 414(q) during the preceding Plan Year ($110,000 for the 2011 Plan Year and indexed to the CPI under Code Section 415(d)) and was in the top-paid 20% of all Employees, based on Compensation. The Plan will determine the top-paid group by including all common-law employees in the Controlled Group. To determine the number (but not the identity) of Employees in the top‑paid group, the Plan may exclude Employees who either: (a) are under age 21; (b) have fewer than 6 months of Employment; (c) normally work fewer than 17-1/2 hours per week; (d) normally work no more than 6 months per Plan Year; (e) are included in a collective bargaining unit; or (f) are nonresident aliens with no U.S. source income. |
1.43 | Matching Account. See the definition of Matching Account within the definition of Accounts. |
1.44 | Matching Contributions. See the definition of Matching Contributions within the definition of Contributions. |
1.45 | Merged Plan means a qualified defined contribution plan that was maintained by an Employer or by a predecessor to an Employer before the plan was merged into this Plan. Certain provisions of each Merged Plan that are grandfathered under this Plan are described in Addendum B. |
1.46 | NCE Group means the entire group of Employees who are Nonhighly Compensated Employees (NCEs) for the Plan Year. |
1.47 | Non-Highly Compensated Employee (NCE) means an Employee who is not within the HCE Group for the Plan Year. |
1.48 | Non-Matching Account. See the definition of Non-Matching Account within the definition of Accounts. |
1.49 | One‑Year Break means a twelve‑consecutive‑month period beginning on the Participant's Termination Date and ending on the first anniversary of that date, during which he/she does not earn any Compensation. For purposes of determining whether an Employee has had a One-Year Break, the Plan will treat a leave protected under the Family and Medical Leave Act of 1993 (FMLA) as a period of active Employment. |
1.50 | Participant means an Employee who is participating in the Plan under Section 2.1. A Participant will retain his/her status as an active Participant so long as he/she receives Compensation from which he/she makes Employee Contributions. |
1.51 | Plan means the SunTrust Banks, Inc. 401(k) Plan as set forth in this document and as amended from time to time. The entire Plan is a Code Section 401(k) Plan with an ESOP as an integral part, commonly called a KSOP. |
1.52 | Plan Administrator means the Benefits Committee. |
1.53 | Plan Percentage Limit means (a) for Employee Contributions, a whole percentage not less than 1% nor more than 50% of Compensation for each payroll period; and (b) for Catch-Up Contributions, a whole percentage not less than 1% nor more than 25% of |
1.54 | Plan Year means the calendar year. |
1.55 | Qualified Automatic Contribution Arrangement (QACA) means the Plan’s automatic enrollment arrangement described in Sections 2.1(i) and 3.1. |
1.56 | Qualified Domestic Relations Order (QDRO) means a domestic relations order that creates or recognizes the existence of an alternate payee’s right to, or assigns the right to, receive all or a portion of the benefits payable with respect to a Participant, and that satisfies the requirements of Code Section 414(p). See Addendum D for the procedures used in the evaluation of domestic relations orders and the administration of QDROs. |
1.57 | Qualified Military Service means the period during which a Participant performs service (while on active or inactive duty or training, with the Army, Navy, Air Force, Marines, Coast Guard, Reserves, and/or the Army and/or Air National Guards, Commissioned Corps of the Public Health Service, and any other service designed by Executive Order) that remains protected by the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. § 4301 et seq. so that he/she retains statutory reemployment rights. The Participant must resume Employment after his/her honorable discharge, within the time limits prescribed by applicable law for the length of his/her leave, which generally range from immediately after termination of Qualified Military Service to 90 days. As described in specific provisions throughout the Plan, the Plan will treat the Participant as if his/her Employment had not been interrupted by Qualified Military Service, for purposes of the opportunity for make-up Employee and Employer Contributions and Vesting Service, in compliance with Code Section 414(u). |
1.58 | Qualified Reservist Distribution. See the definition within Section 5.1. |
1.59 | Qualified Roth Distribution means a non-taxable in-service withdrawal or post-Employment distribution from a Designated Roth Account that is made (1) after a Participant either reaches age 59-1/2, incurs a Disability, or dies, and (2) more than five calendar years after the beginning on the earlier of: (A) the first year for which the Participant made a Roth Contribution under this Plan, or (B) if he/she made a Rollover Contribution to his/her Designated Roth Account, the first year for which he/she made a |
1.60 | Rollover Contribution. See the definition of Rollover Contribution within the definition of Contributions. |
1.61 | Roth Account. See the definition of Designated Roth Account and Roth Rollover Account within the definition of Accounts. |
1.62 | Roth Contribution. See the definition of Roth Contributions or Designated Roth Contributions within the definition of Contributions. |
1.63 | Service Center means the SunTrust Service Center (referred to as my HR), which is available for Participants to use to make their Employee Contribution and investment elections and modifications, to request in-service withdrawals and loans, and to request post-Employment distributions. |
1.64 | Share Units. See the definition of Employer Stock Fund. |
1.65 | Spouse means the individual to whom a Participant is legally married at the relevant time, provided that the marriage is recognized as legally valid under both the laws of the State in which the Participant resides and the Defense of Marriage Act, 28 U.S.C. § 1738C, and any other federal law that applies to ERISA plans. A Participant’s former spouse is treated as his/her Spouse, and his/her current spouse is not treated as his/her Spouse, to the extent provided under a Qualified Domestic Relations Order. |
1.66 | Suspense Account means the separate bookkeeping account to hold the Financed Shares acquired with each Acquisition Loan until they are released as described in Subsection 3.4(f), and the dividends paid on such Shares until the dividends are either released or used to repay the Acquisition Loan. |
1.67 | Termination Date means the date an Employee quits, retires, is discharged or dies. If an Employee fails to timely return to work upon the expiration of an approved paid or unpaid leave of absence, the Termination Date is the first day of the leave, or if later the date that is 2-1/2 months before the date when he/she stopped making Employee Contributions to |
1.68 | True-Up Matching Contribution. See the definition of Matching Contribution within the definition of Contributions. |
1.69 | Trust (or Trust Fund) means the assets of the Plan maintained under the Trust Agreement. |
1.70 | Trust Agreement means the trust agreement(s) made with respect to the assets of the Plan with the Trustee, as such may be amended from time to time, and which shall constitute a part of this Plan. |
1.71 | Trustee means the corporation(s), individual(s) or other entity(ies) appointed to administer the Trust, as provided in Article 9. |
1.72 | Valuation Date means each business day during each Plan Year when the New York Stock Exchange is open for trading, as of which the Trustee will determine the Fair Market Value of the Trust Fund and of each Account, and the recordkeeper will make allocations to Accounts, as provided in Section 4.1. The Committee may establish different allocation dates and/or Valuation Dates from time to time as it considers appropriate. |
1.73 | Vesting Service (also called Years of Service) means the period beginning on a Participant's Employment Date and ending on his/her Termination Date, subject to the rules stated in this Section. These rules were added to the Plan effective January 1, 2011, the date when a two-year cliff vesting rule applies under Section 3.2 to Employees whose Employment Date occurs after December 31, 2010. |
(a) | Computation. The Plan computes Years of Service in whole and partial years, by measuring months from the Employment Date, counting each month as 1/12 year, and giving the Employee credit for a full month for the months in which his/her Employment Date and Termination date occur if he/she receives Compensation for at least one hour in such months. This is the elapsed-time method of counting Vesting Service. |
(b) | Leaves of Absence. Except as provided in this Subsection, each Participant is credited with Vesting Service as if his/her status as an Employee had continued during the period of his/her approved leave of absence granted under the Employer's standard, uniformly‑applied personnel policies, but only if he/she resumes active Employment promptly upon the expiration of the approved leave. |
(1) | Qualified Military Service. Each Participant receives credit for Vesting Service as if his/her active Employment had continued during the period of his/her Qualified Military Service. For purposes of Vesting Service, the Committee treats a Participant who suspended or terminated Employment as a result of Qualified Military Service and died while performing Qualified Military Service, as if he/she had resumed Employment and then died. |
(2) | Parental Leave. Each Participant receives credit for Vesting Service for the period of a parental leave that does not extend beyond 12 months. If the leave continues beyond 12 months, the first anniversary of the date the leave began is the Termination Date for purposes of crediting Vesting Service, and the second anniversary is the Termination Date for purposes of determining when a Break in Service begins. The Plan credits Vesting Service for the period between the first anniversary of the leave date and the date when the Participant resumes active Employment only if that date occurs before the second anniversary. The Termination Date of the Employee who quits, retires, is discharged or dies before the second anniversary of the parental leave is the date such event occurs. A parental leave is an absence from active Employment by reason of pregnancy, childbirth, child adoption, and/or child care immediately following birth or adoption. The Committee treats the leave as any other absence unless the Employee timely provides to the Committee all information reasonably required to establish that the absence constitutes a parental leave. |
(3) | Disability. Vesting Service includes the period beginning on the date when a Participant incurs a Disability and ending on the earliest of the date on which he/she recovers from the Disability, attains Normal Retirement Age, or dies. |
(4) | Other Leaves of Absence. Vesting Service includes a period of absence approved under the Employer's standard, uniformly applied personnel policies. Vesting Service includes a period of unapproved absence only if the Participant resumes Employment within one year after the Termination Date. |
(c) | Employment with a Controlled Group Member. Each Employee receives credit for Vesting Service for the period of his/her Employment with any Controlled Group member, whether or not it has adopted the Plan, beginning on the later of the date the member became part of the Controlled Group, or the Employee’s hire date with the Controlled Group member. |
(d) | Period Before an Employer Adopted the Plan. Except as provided otherwise in Addendum B, each Participant who worked for an entity before it became a Controlled Group member, will receive credit (for purposes of vesting and eligibility) for his/her period of service with the entity before it became a Controlled Group member, as if the rules described in this Section had applied to the entity for such period. However, such Participants will not receive credit for any period when they worked for any part of the Employer (parent, subsidiary, branch, division, etc.) that did not become a Controlled Group member. Each Participant who participated in a Merged Plan will receive credit for his/her pre-merger service that is at least as great as the service he/she had earned under the merged plan as of the merger date. |
(e) | Credit for Employment Before a Five‑Year Break. A non-vested Participant who incurs a Five‑Year Break loses all his/her credit for Vesting Service earned before the Five‑Year Break. A vested Participant retains all his/her credit for Vesting Service regardless of the number of One-Year Breaks. |
(f) | Service Spanning. If an Employee terminates Employment for any reason and resumes Employment within 12 months, the Plan includes his/her period of termination in Vesting Service. |
(g) | Change from Covered Classification. If a covered Employee loses his/her status as such, the Plan will continue to grant Vesting Service so long as he/she remains in the service of any Controlled Group member. |
1.74 | Year of Service. See the definition of Vesting Service. |
2.1 | Eligibility. |
(a) | Automatic Enrollment. |
(i) | Each Employee is automatically enrolled in the Plan as of the first day of the second calendar month after his/her Employment Date, unless he/she timely submits an election not to participate, or to contribute a percentage other than the automatic percentage described in Section 3.1. If an Employee elects not to participate when first eligible, he/she may later make a participation election in the manner and by the deadline announced by the Committee from time to time. Effective January 1, 2011, the Plan will automatically enroll all non-participating eligible Employees, unless they have previously made an affirmative election not to participate and the election is still in effect. The Plan treats as Auto-Enrollees all employees who have been automatically enrolled and have not made any change to their Auto-Percentages. |
(ii) | Employer Discretionary Contributions. Each Employee shall be eligible to participate in the Plan with respect to Employer Discretionary Contributions as of the first day of the second calendar month after his/her Employment Date. |
(b) | Participation in Another Controlled Group Plan. No Employee who actively participates in another defined contribution plan qualified under Code Section |
(c) | Mergers and Acquisitions. Unless the Committee provides otherwise, or as otherwise required by the terms of a transaction, individuals who become Employees as a result of a merger or acquisition and are not active participants in another defined contribution plan qualified under Code Section 401(a) and maintained by any Controlled Group member, will be automatically enrolled as new Employees. |
2.2 | Participation Upon Reemployment. The Plan does not require or permit rehired Participants to repay any previous distribution. |
(a) | Vested Participant. A rehired vested Participant will be eligible to resume making Employee Contributions as of the date he/she resumes Employment, and will be automatically enrolled in the Plan unless he/she timely submits an election not to participate or to contribute a percentage other than the Auto-Percentage, in the manner and by the deadline announced by the Committee from time to time. He/she will continue to be vested in new allocations of Matching Contributions and Employer Discretionary Contributions. |
(b) | Non-Vested Participant. If a rehired Participant was not previously vested, he/she will be automatically enrolled as of the first day of the second calendar month after the date when he/she resumes Employment, unless he/she she timely submits an election not to participate or to contribute a percentage other than the Auto-Percentage, in the manner and by the deadline announced by the Committee from time to time. The Plan will reinstate his/her previous Vesting Service unless he/she has incurred a Five-Year Break, and will make a deemed repayment of the deemed distribution of his/her non-vested Matching Account and Employer Discretionary Contributions balance under Section 3.2. |
(c) | Non-Participating Employee. If a nonparticipating terminated Employee resumes Employment before he/she incurs a Five‑Year Break, the Plan will reinstate his/her pre-break Employment for purposes of eligibility and vesting. If |
2.3 | Leased Employees and Independent Contractors. A leased employee is an individual who is not employed by the Employer but has performed services for the Employer on a substantially full-time basis for at least 12 consecutive months, under the Employer’s primary direction or control and pursuant to an agreement between an Employer and a leasing organization. Leased employees are treated as Employees to the extent required under Code Section 414(n), but are not eligible to participate in this Plan. If a leased employee becomes an Employee, the Plan gives him/her credit for eligibility and Vesting Service for the period when he/she worked as a leased employee. However, the Plan does not give such credit if (a) the leased employee was covered by a money purchase pension plan sponsored by the leasing organization, with nonintegrated employer contributions at least equal to 10% of compensation as defined in Code Section 414(n)(5)(C), and immediate participation and vesting, and (b) leased employees constitute no more than 20% of the Controlled Group's nonhighly compensated employees. An individual receives no credit under this Plan for time worked as an independent contractor of an Employer. If a court or administrative agency determines that an individual whom an Employer has not designated as an Employee is in fact a common-law employee, he/she will not receive credit for any purpose under the Plan until the date when the Committee designates him/her as an eligible Employee under this Plan. |
2.4 | Participating Employers. Except as otherwise specifically provided in this Plan, each Controlled Group member is treated as an Employer for any period when the Controlled Group member is shown on SunTrust’s master payroll books and records as an Affiliate that can make contributions, or for which contributions are made, on behalf of the Affiliate’s Employees to provide coverage under employee benefit plans sponsored by the Company, unless either (a) the Controlled Group member is excluded by resolution executed by the Plan Committee, or (b) the Controlled Group member maintains another qualified defined contribution plan to which employer or employee contributions are currently being made. Any special provisions that apply to a Controlled Group member, |
3.1 | Employee Contributions – Elective Deferrals and Roth Contributions. Effective January 1, 2002, the Plan is a safe harbor plan that accepts only Employee Contributions that meet the safe harbor requirements under Code Section 401(k)(12), and Matching Contributions that meet the safe harbor requirements under Code Section 401(m)(11). Effective January 1, 2011, the Plan is a Qualified Automatic Contribution Arrangement that also complies with Code Sections 401(k)(13) and 401(m)(12). Effective January 1, 2011, the Plan accepts Roth Contributions and, except for purposes of taxation, treats such after-tax Roth Contributions the same as before-tax Elective Deferrals. Where the same rules apply to before-tax deferrals and after-tax Roth contributions, the Plan uses the term Employee Contributions to include Elective Deferrals, Roth Contributions, Catch-Up Deferrals and Catch-Up Roth Contributions. Rules that were in effect before the Plan became safe harbor, and that will resume effectiveness if the Plan should lose safe harbor status for any Plan Year (which rules will be updated to comply with all applicable laws in effect at such time), are set forth in Addendum A, including the annual nondiscrimination (ADP and ACP) tests that applied to Contributions before 2002. |
(d) | Amount Permitted. |
(1) | Plan Percentage Limit. Each Participant may elect the whole percentage of his/her Compensation that he/she wishes to contribute to the Plan in each payroll period as Elective Deferrals (before-tax) and/or Roth Contributions (after-tax), in the aggregate, not less than 1% nor more than 50%. |
(2) | Automatic Enrollment Percentages. For each Auto-Enrollee, the Plan automatically defers the initial 3% Auto-Percentage on a before-tax basis, and increases the Auto-Percentage as of each of his/her Employment anniversary dates, until he/she either makes a change in his/her Auto-Percentage or reaches the maximum Auto-Percentage of 6% of Compensation. |
(3) | Limitations on Amount. The amount of any Participant’s Employee Contributions may be limited for any Plan Year to avoid exceeding the Dollar Limit, the Annual Addition Limit, and/or the Plan Percentage Limit for the Plan Year. |
(e) | Before-Tax and/or After-Tax Employee Contributions. Each Participant may elect whether to make his/her Employee Contributions as Elective Deferrals, Roth Contributions, or a combination of both. After an Employee Contribution is deducted from a Participant’s Compensation, he/she may not elect to transfer any amount from his/her Designated Roth Account to his/her Before-Tax Account, and vice versa. |
(1) | Elective Deferrals. The Employers deduct Elective Deferrals from each affected Participant’s Compensation, exclude the deducted amount from his/her taxable earnings for federal income tax purposes and, if applicable, for state income tax purposes, and include such amounts in his/her earnings for purposes of FICA and Medicare taxes. Upon distribution, Elective Deferrals and investment earnings are subject to federal income tax and are not subject FICA/Medicare tax. |
(2) | Roth Contributions. The Employers include Roth Contributions in each affected Participant’s taxable earnings at the time he/she would have received such amount in cash if he/she had not made a Roth Contribution. |
(3) | Rules for Employee Contributions. Each Participant’s election to make Elective Deferrals and/or Roth Contributions is irrevocable as of the deadline announced by the Committee for Participants to change their elections for the next payroll period. The Plan will separately account for Elective Deferrals and Roth Contributions and attributable investment earnings, and will specify whether any amount withdrawn in-service or distributed after termination is taken from the Participant’s Before-Tax Account and/or Designated Roth Account, or from his/her Rollover Account and/or Roth Rollover Account. |
(f) | Special Pay. To the extent that the payroll system fails to identify as eligible Compensation items of special pay such as those that relate to changes in status (terminations, transfers, etc.) and payroll corrections, elections may not apply to such pay. |
(g) | Catch-Up Contributions. Eligible Participants may elect to make Catch-Up Deferrals (before-tax) and/or Catch-Up Roth Contributions (after-tax) for a Plan Year, under the rules set forth in this Subsection (d). Where the same rules apply to both types of contributions, the Plan document uses the term Catch-Up Contributions to include before-tax deferrals and after-tax Roth contributions. |
(1) | Eligible Participants. To be eligible to make Catch-Up Contributions for a Plan Year, a Participant must have reached age 50 or must be projected to reach age 50 before the end of the Plan Year, and must have made Elective Deferral and/or Roth Contributions up to the Dollar Limit, the Annual Addition Limit, or the Plan Percentage Limit for regular Employee Contributions. |
(2) | Annual Catch-Up Contribution Limits (Statutory and Plan Limits). The Catch-Up Contribution limit in effect for the 2012 calendar year is $5,500; the annual limit is indexed to the CPI in $500 increments under Code Section 414(v). The Plan Percentage Limit for Catch-Up Contributions is a whole percentage of the Participant’s Compensation that he/she wishes to contribute to the Plan in each payroll period as |
(3) | Exclusion of Catch-Up Contributions from Plan Limits. For each Plan Year, the Plan excludes Catch-Up Contributions from the Dollar Limit, the Annual Addition Limit, the Plan Percentage Limit for Elective Deferrals and/or Roth Contributions, and the maximum tax-deduction limit under Section 3.2. |
(4) | Procedure. An eligible Participant who wishes to make Catch-Up Contributions must make his/her election in the manner and by the deadline announced by the Committee from time to time. He/she must elect the Catch-Up Contribution within the Plan Percentage Limit for Catch-Up Contributions, and must designate the percentage that will be contributed as Catch-Up Deferrals and/or as Catch-Up Roth Contributions. The elected percentage for Catch-Up Contributions will apply to any subsequent increases or decreases in Compensation. After a Participant who has elected to make Catch-Up Contributions has made Elective Deferrals and/or Roth Contributions up to the Dollar Limit, the Annual Addition Limit, or the Plan Percentage Limit for Elective Deferrals and/or Roth Contributions for that Plan Year, the Plan automatically converts any additional Employee Contributions to Catch-Up Contributions at his/her elected percentage. Each election will remain in effect until the Participant modifies or revokes it. When a Participant’s Catch-Up Contributions reach a statutory or Plan limit, the Plan will suspend his/her Catch-Up Contribution election until the following Plan Year and, unless otherwise announced by the Committee, the suspended Catch-Up Contribution election will automatically reactivate unless the Participant has previously elected to modify his/her election or to cease participation in the Plan. A Participant may modify or change his/her Catch-Up Contribution election in accordance with the rules for modifying |
(5) | Recharacterization of Disqualified Catch-Up Contributions. If a Participant elects to make Catch-Up Contributions for a Plan Year, and the Plan allocates his/her designated Catch-Up Contributions to his/her Employee Contribution Account, but his/her Elective Deferrals and/or Roth Contributions for the Plan Year fail to reach one of the Plan limits or statutory limits described in Subsection 3.1(b), the Plan will recharacterize his/her Catch-Up Contributions as Elective Deferrals and/or Roth Contributions (as applicable), to the extent permitted by the Plan’s percentage limit and the statutory limits. If the Committee discovers that a Participant was not eligible to make Catch-Up Contributions, the Committee will direct the Trustee to refund any amount that should not have been contributed. |
(6) | Matching Contributions. The Employers do not make Matching Contributions throughout the Plan Year on amounts designated as Catch-Up Contributions, except those that are recharacterized as regular Employee Contributions and become eligible for a Matching Contribution under the terms of the Plan. If any Participant receives Matching Contributions on less than the first 6% of his/her Compensation that he/she contributes for a Plan Year including his/her Catch-Up Contributions, the Plan will make a True-Up Matching Contribution for him/her. |
(h) | Make-Up Contributions After Qualified Military Service. The Employers permit each Participant who resumes active Employment after an unpaid Qualified Military Service leave to elect to make special Employee Contributions in an amount up to the maximum amount he/she could have contributed if he/she had remained in Employment during his/her period of leave. Each make-up Employee Contribution will be subject to the Dollar Limit, the Annual Addition Limit, and the Plan Percentage Limit, as in effect for the Plan Year to which the Employee Contribution relates. The Committee will permit the Participant to |
(i) | Vesting. All Employee Contributions, and all earnings allocated to Employee Contribution Accounts, are fully vested at all times. |
(j) | Initial Election to Contribute. An Employee who is not an Auto-Enrollee and wishes to begin participating, must make his/her Employee Contribution election in the manner and by the deadline announced by the Committee from time to time. The Participant must properly complete the enrollment procedures, including submission of his/her election form and completion of any other forms as may be required by the Committee from time to time. Participation elections and modifications and revocations will be implemented as soon as administratively possible. Each election will remain effective until the Participant modifies or revokes it or ceases to be an eligible Employee. The elected percentage for Elective Deferrals and/or Roth Contributions will apply to any subsequent increases or decreases in Compensation. When a Participant’s Employee Contributions reach a Plan or statutory limit for a Plan Year, the Plan will suspend his/her election until the first day of the following Plan Year and will automatically reactivate it unless he/she has elected to modify his/her election or cease participation. A Participant who is eligible to make Catch-Up Contributions under Subsection 3.1(d) and has elected to make the maximum amount of Employee Contributions for the Plan Year, may also elect to make Catch-Up |
(k) | Modification. A Participant who has elected to contribute a percentage of his/her Compensation as his/her Employee Contributions may modify his/her election by submitting a new election to have a higher or lower percentage deducted from his/her Compensation as Elective Deferrals, and/or Roth Contributions effective January 1, 2011, in the manner and by the deadline announced by the Committee from time to time. The Committee may announce special procedures for Catch-Up Contributions from time to time. Each modification will remain in effect until a new election is properly made. |
(l) | Cessation. A Participant may elect to cease making Employee Contributions by electing a 0% deferral rate on his/her modification election. An eligible Employee who has elected to cease Employee Contributions may resume making Employee Contributions by submitting a modification election in the manner and by the deadline announced by the Committee from time to time, and the election will become effective as of the applicable payroll date, provided that he/she remains an eligible Employee as of the effective date of the modification election. |
(m) | Committee Administrative Rules. The Committee may from time to time establish and uniformly apply administrative rules governing elections, including rules regarding administrative procedures for Participants and beneficiaries, the frequency with which elections may be modified or revoked, and deadlines for submitting elections. |
3.2 | Employer Contributions. |
(a) | Matching Contribution. For each payroll period, the Employers will contribute a combination of cash, and/or Employer Stock to be used to purchase Employer Stock, and/or will release Employer Stock from the Suspense Account under Subsection 3.4(f), as the Company determines necessary to align each required Employer Contribution with the Participants’ investment elections then in effect. If a Contribution is made in shares of Employer Stock, the shares will have a Fair Market Value equal to the amount that would be contributed if cash had been |
(1) | Amount. Effective January 1, 2012, the Employers will make a safe harbor Matching Contribution in an amount equal to 100% of the amount of each Participant’s Elective Deferrals and/or Roth Contributions up to 6% of his/her Compensation for each payroll period during each Plan Year. The Plan allocates Matching Contributions to Matching Accounts as soon as practicable after the end of each payroll period for which they are made. The Employers do not make Matching Contributions for Rollover Contributions or Catch-up Contributions except as set forth in Subsection 3.1(d)(6). |
(2) | True-Up Matching Contributions. As soon as practicable after the end of a calendar quarter, or after the end of the Plan Year, the Employers make True-Up Matching Contributions for each Participant whose deferral pattern during the Plan Year caused him/her to receive allocations of Matching Contributions in an amount less than the maximum amount permitted under the terms of the Plan. |
(b) | Employer Discretionary Contributions. The Employers may elect for any Plan Year to make an Employer Discretionary Contribution. The Employer Discretionary Contribution for a Plan Year shall be allocated to eligible Employees (as defined in Subsection 2.1(a)(i)) or to such classification of eligible Employees as the Employers shall determine, who— |
(1) | are Employees on the last day of the Plan Year; or |
(2) | who cease to be Employees during the Plan Year by reason of (i) death (ii) termination of Employment because of a reduction in force (i.e., they received severance pay from their Employers pursuant to the SunTrust Banks, Inc. Severance Pay Plan), (iii) termination of Employment after attainment of the Early Retirement Age (age 55 and the completion of 5 |
(c) | Special One-Time Employer Discretionary Contribution. The Employers will make a one-time special Employer Discretionary Contribution for the Plan Year ending December 31, 2011 in an amount equal to 5% of Compensation on behalf of eligible Employees who (1) have completed twenty (20) years of Vesting Service (or Benefit Service as defined in the SunTrust Banks, Inc. Retirement Plan) or (2) have completed ten (10) years of Vesting Service (or Benefit Service as defined in the SunTrust Banks, Inc. Retirement Plan) and satisfy the “Rule of 60” (the sum of age and service equals or exceeds 60) as of December 31, 2011. Each such eligible Employee must be an Employee on December 30, 2011 or must have ceased being an Employee on account of one of the reasons set forth in Subsection 3.2(b)(2) above. |
(d) | Investment of Matching and Employer Discretionary Contributions. |
(4) | Matching Contributions. Matching Contributions are invested according to each Participant’s investment election in effect for his/her Employee Contributions on the allocation date, unless he/she makes a separate election to have any Matching Contributions invested in one or more other available investment options. The Matching Contribution portion of each loan repayment is invested according to the Participant’s election in effect for his/her Matching Contributions at the time when each repayment is made. For a Participant who does not have an investment election in effect, the Plan will invest his/her Matching Contributions in a QDIA fund. |
(5) | Employer Discretionary Contributions. Employer Discretionary Contributions, if any, will be invested according to each Participants’ |
(e) | Vesting and Forfeitures. Each Employee whose initial Employment Date is prior to January 1, 2011 is 100% vested in his/her Employer Contributions. Each Employee whose Employment Date is after December 31, 2010, or who resumes Employment after that date and is not previously vested, will be 100% vested in his/her Matching Account balance or his/her Discretionary Contribution Account balance on the earlier of the date he/she has completed two Years of Vesting Service regardless of his/her age or has incurred a Disability, or on his/her date of death. If a Participant terminates Employment before he/she is vested in his/her Matching Account balance or his/her Discretionary Contribution Account balance, the Plan will make a deemed distribution of such balances as of the Termination Date, and will permanently forfeit the balance as of the date he/she incurs a Five-Year Break. If such Participant resumes Employment before incurring a Five-Year Break, the Plan will make a deemed repayment as of the date he/she resumes Employment. The Plan will use forfeitures to pay the Plan’s administrative expenses and/or as part of Matching Contributions or Employer Discretionary Contributions, in the same or next following Plan Year(s). Regardless of whether a Participant is vested in his/her Matching Account or Discretionary Contribution Account, he/she is always 100% vested in the dividends paid on the Share Units held in his/her Accounts. |
(f) | Make-Up Contributions After Qualified Military Leave. The Employers will make special Matching Contributions for each of their Participants who returns to Employment from unpaid Qualified Military Leave and contributes the make-up |
(g) | Acquisition Loan Repayments. For each Plan Year when the ESOP has an out- standing Acquisition Loan, the Employers will contribute at least the amount necessary to amortize the Acquisition Loan in accordance with its payment terms. |
(h) | Exclusive Benefit of Participants. All Employer Contributions are irrevocable when made and will not revert to the Employers, except as provided otherwise in this Plan. All Employer Contributions and attributable earnings will be used for the exclusive benefit of Participants and their beneficiaries and for paying the reasonable expenses of administering the Plan. |
(i) | Contributions Limited to Tax Deductible Amounts. |
(1) | Acquisition Loan Principal Repayments. The Employers may contribute an annual amount that does not exceed 25% of the Compensation of all Participants for the Plan Year if the Trustee uses the entire Contribution to repay principal on an Acquisition Loan, no later than the extended due date of the Employer’s federal income tax return for the fiscal year in which ends the Plan Year for which the Contribution is made. The Employers may deduct, without any limitation, the portion of their annual Contributions that the Trustee used to repay interest on any |
(2) | Employer Contributions. Effective January 1, 2002, the Employers limit their Contributions for each Plan Year so that the total annual amount does not exceed 25% of the Compensation of all of their Employees for each Plan Year, when combined with Employee Contributions and with Employer contributions under all other qualified plans maintained by Controlled Group members, or such other limit as may be specified in Code Section 404(a) from time to time. This deduction is in addition to the deductions described above. For this purpose, Compensation includes Employee Contributions, but Employee Contributions do not count toward the 25% limit. |
(3) | Effect on Deductibility of Contributions to other Plans. No Employer’s federal income tax deductions for its Contributions used to repay Acquisition Loans will reduce the deduction limits applicable to its contributions to any other defined contribution or defined benefit plan. |
3.3 | Rollover Contributions. |
(a) | Eligible Rollover Distribution. For purposes of this Section, an Eligible Rollover Distribution means a payment received by an Employee from another qualified plan or conduit individual retirement account (IRA) as described in Treas. Regs. Section 1.402(c)-2, Q & A No. 3, i.e., it is either (1) a lump sum |
(b) | Roth Contributions. The Plan will accept a rollover from a Designated Roth Account in another plan to a Participant’s Roth Rollover Account in this Plan, only if it is a direct rollover from a retirement plan that is qualified for tax-exempt status under Code Sections 401(a) and 501(a), and only if the funds are from an Eligible Rollover Distribution. The Plan will not accept a rollover from any Roth IRA. |
(c) | Rollover or Direct Plan Transfer. An Employee who receives an Eligible Rollover Distribution may roll over all or part of the distribution to the Trust, if the Committee determines that it complies with the requirements described in this Section. The Committee may accept the distribution as a direct plan-to-plan transfer. An Employee can make a Rollover Contribution before he/she completes his/her eligibility period under Section 2.1, or before he/she elects to participate, and will have his/her Rollover Contribution as his/her sole interest in the Plan until he/she begins making Employee Contributions. |
(d) | Timing. A rollover must be made within 60 days after the Employee receives the Eligible Rollover Distribution, except to the extent that the IRS permits a longer period under the Participant’s circumstances. |
(e) | Required Information. The Committee will adopt such procedures, and may |
(f) | Prohibited Rollovers and Transfers. The Committee will not accept Rollover Contributions from any plan that is subject to the joint and survivor annuity requirements set forth in Code Sections 401(a)(11) and 417, unless the Employee’s Spouse consented in writing to the distribution from such plan in a manner that complies with the spousal consent requirements prescribed under Code Sections 401(a)(11) and 417. The Committee may require the Employee to submit a written certification that he/she received his/her distribution from a qualified plan that either was not subject to the spousal consent requirements or contained an exemption for his/her distribution, or that his/her Spouse properly consented to the distribution. The Plan will not accept the rollover of loans or any property other than cash and SunTrust common stock, except as provided in Addendum B. |
(g) | Refund of Prohibited Rollovers. If the Committee discovers that a Participant has made a Rollover Contribution to the Plan that fails to comply with this Section or with any applicable law, the Committee will refund the Contribution and all earnings attributable to it as soon as practicable. |
(h) | Reliance on Employee’s Representations. The Committee will in good faith rely on the representations made by an eligible Employee in his/her application to make a Rollover Contribution and will not be held accountable for any misrepresentation of which it did not have actual knowledge. |
3.4 | Acquisition Loans. The Company may from time to time authorize and direct the Trustee to make an Acquisition Loan, either to purchase Employer Stock or to repay a |
(a) | Eligible Lenders. The Trustee may make Acquisition Loans from any financial institution or other entity it considers appropriate, including a party in interest as defined in ERISA Section 3(14), or a disqualified person as defined in Code Section 4975(e)(2). A party in interest and/or disqualified person may guarantee any Acquisition Loan. |
(b) | Loan Terms. Each Acquisition Loan will be for a specific term, and will bear a reasonable rate of interest. No Acquisition Loan will be payable upon demand except after a default. |
(c) | Repayment. The Trustee will repay the principal and interest due on each Acquisition Loan, first from dividends paid on the Financed Shares, and after all such dividends have been used for repayment, from Employer Contributions made to repay the Acquisition Loan, and then from other earnings attributable to Employer Contributions made to repay the Acquisition Loan, according to directions from the Finance Committee. To the extent permitted by the terms of the Acquisition Loan, the Finance Committee may direct repayment more rapidly than specified in the amortization schedule, subject to the limitations on releasing Financed Shares described in Subsection (f). |
(d) | Collateral and Security. The Trustee may use as collateral to secure any Acquisition Loan the Financed Shares acquired with the proceeds. The Trustee will not pledge any Plan assets other than Financed Shares as collateral for an Acquisition Loan. No lender will have recourse against any Plan assets other than Financed Shares that remain subject to pledge at the time of default. No Employer Stock acquired with the proceeds of an Acquisition Loan may be subject to a put, call or other option, or buy‑sell agreement or any similar arrangement while held by the Plan, or when distributed from the Plan. This restriction will continue to apply after the Acquisition Loan has been repaid and will apply even if the ESOP has ceased to be an ESOP under Code Section 4975(e)(7). |
(e) | Suspense Account. The Trustee will maintain a separate Suspense Account to hold the Financed Shares acquired with the proceeds of each separate Acquisition Loan, whether or not the shares are encumbered under the terms of the Loan. Pursuant to directions from the Finance Committee from time to time, the Trustee either will hold the dividends paid on the Financed Shares in the Suspense Account until they are released as described in Subsection (f), or will use the dividends to repay the Acquisition Loan. |
(f) | Release of Financed Shares from Suspense Account. The Trustee will release Financed Shares from each Suspense Account under one of the following methods, which method will be determined by the Finance Committee for each Acquisition Loan. The Financed Shares released from the Suspense Account for each Plan Year will be allocated, on the basis of Fair Market Value as of the release date, to Matching Accounts under Section 3.2. To determine the number of Financed Shares to be released for each Plan Year from each Suspense Account, the Trustee will multiply the number of Shares held in the Suspense Account by one of the fractions described below. The Finance Committee will structure each Acquisition Loan so that the number of Financed Shares to be released for each Plan Year is expected not to exceed the number needed to meet the Matching Contribution obligation for investments in the Employer Stock Fund. If the Finance Committee determines that the number of shares required to be released for any Plan Year is greater than the number that can be used to meet such Matching Contribution obligation, the Finance Committee may forego the Plan’s status as a safe harbor plan for that Plan Year, or may protect the Plan’s status as a safe harbor plan, either by restructuring the loan (to the extent permitted by Department of Labor guidelines), or by making additional Contributions. The Finance Committee may direct the Employers to make additional Contributions either as a uniform percentage of Compensation for all eligible Employees, including those who have not made Employee Contributions for the Plan Year, or may make additional Matching Contributions in a uniform rate. |
(1) | Principal-Only Payment Method. Under this method, the fraction will be the ratio of the amount of principal repaid for the Plan Year over the amount of principal to be repaid for the current and all future Plan Years. Under this method, annual principal payments must be made at least as rapidly as level payments over the loan term, which cannot exceed ten years, including renewals and extensions, and the portion of each repayment treated as interest may not exceed the payment amount that would be treated as interest under standard loan amortization tables. |
(2) | Principal-and-Interest Method. Under this method, the fraction will be the ratio of the amount of principal and interest repaid for the Plan Year over the amount of principal and interest to be repaid for the current and all future Plan Years. The Plan will use this method for any Acquisition Loan that has a flexible repayment schedule. |
(g) | Default. Upon the default on an Acquisition Loan, the Trustee will transfer to the lender Plan assets equal in value to the amount of the defaulted balance. Upon the default on an Acquisition Loan from a party in interest as defined in ERISA Section 3(14), or a disqualified person as defined in Code Section 4975(e)(2), the Trustee will transfer to such lender only the number of Financed Shares necessary to meet the repayment schedule of the Acquisition Loan. |
3.5 | Purchase and Sale of Employer Stock. Unless the Company imposes restrictions otherwise, the Trustee may purchase Employer Stock from any source, but may not pay more than Fair Market Value for any share. The Trustee may purchase either outstanding shares, newly-issued shares, or treasury shares. To the extent that the Trustee needs to obtain cash for distributions, the Trustee may sell Employer Stock on the New York Stock Exchange or to the Company. |
3.6 | Transfer to the Trustee. As of the earliest date when Contributions reasonably can be segregated from the Employers’ general assets, the Employers will transfer to the Trustee, the amounts withheld for all of their Participants during the payroll periods ending in that month, but in no event later than the 15th business day of the month following the month in which Employee Contributions are withheld. The Employers will transfer their Employer |
3.7 | Elective Account Transfers. The Committee may permit Participants to elect to make voluntary transfers of Account balances from another qualified defined contribution plan of the same type into this Plan, if the transfers are associated with either a corporate transaction (e.g., a merger or acquisition) or a change in a Participant's employment status (e.g., a transfer from another employer, whether or not it is a Controlled Group member). The Committee will allocate the transferred accounts to corollary Accounts in this Plan. This Plan will not be obligated to protect benefits that were provided in the transferor plan, i.e., the Code Section 411(d)(6) anti-cutback rules do not apply. After December 31, 2001, the Committee will not permit this type of transfer for any eligible rollover distribution if the Participant can elect a direct rollover of his/her entire Account balances. |
4.1 | Adjustments to Account Balances. |
(j) | Regular Valuation Dates. As of each Valuation Date, the Trustee will determine the Fair Market Value of the Trust Fund. As soon as practicable after the Trustee receives the Employers’ payroll data and other relevant records, the recordkeeper or the Trustee will adjust the Account balances of each Participant to reflect his/her allocations of Contributions, withdrawals and payments from his/her Accounts, and investment gains or losses and expenses. |
(k) | Administrative Fees. The Plan may charge reasonable and uniform administrative fees to Participant Accounts. |
(l) | Dividends on Employer Stock. The Plan will use dividends issued on |
(m) | Valuations Binding. In determining the value of the Trust Fund and the individual Accounts, the Trustee and the Committee will exercise their best judgment, and all determinations of value will be binding upon Participants and their beneficiaries. |
(n) | Statement of Account Balances. As soon as practicable after the end of each calendar quarter, the Committee will provide to each Participant and beneficiary for whom an Account is maintained a statement showing all allocations to and |
(o) | Correction of Administrative Mistakes. The Committee will take reasonable steps to ensure that the Plan document is in compliance with all applicable laws as in effect from time to time, and to ensure that the Plan is administered as written. If the Committee discovers that a material mistake has been made in an Account balance or a Contribution, or discovers any other mistake that affects any Participant’s or beneficiary’s rights under the Plan, it will correct the mistake as soon as practicable. The Committee may, in its sole discretion, take such action as necessary or appropriate to correct the mistake, including such correction procedures allowed by the Internal Revenue Service (IRS), the Department of Labor (DOL), or described below. If the Committee discovers an error related to Employee Contributions, it will correct the error, either by implementing increased payroll deductions, or by refunding any excess amount, or by re-allocating Employee Contributions, as may be needed to put the affected Participant in the same position he/she would have enjoyed if the error had not occurred. If the Committee discovers an error related to Employer Contributions, it may recommend that the Employers make Contributions, and/or to reallocate Employer Contributions, as may be needed to put the affected Participant in the same position he/she would have enjoyed if the error had not occurred. If the Committee determines that the burden or expense of seeking recovery of an overpayment or correcting an error would be greater than is warranted under the circumstances, it may forego recovery or other correction efforts, to the extent permitted under applicable IRS or DOL guidance. The Committee may make de minimis variances from Plan provisions, to the extent any such variance would comply with applicable qualification requirements if it were set forth in a written provision of the Plan. |
(p) | Return of Employer Contributions. Employer Contributions will be returned to the affected Employers under the following circumstances: |
(1) | Mistake of Fact. Employer Contributions made by a mistake of fact will be returned to the affected Employer(s) within one year after such Contribution was made. |
(2) | Nondeductible. All Employer Contributions are conditioned upon their deductibility under Code Section 404 and will be returned to the affected Employer(s) within one year after any disallowance. |
4.2 | Investments. |
(i) | Investment Funds. From time to time, the Finance Committee will direct the Trustee to make available one or more funds for the investment of Account balances as elected by each Participant or beneficiary. The Finance Committee will timely describe the investment funds that are available from time to time, in written notices to Participants and beneficiaries. The investment funds selected by the Finance Committee are in addition to the Employer Stock Fund, which the Plan sponsor has established as an integral ESOP feature of the Plan design. |
(j) | Compliance with ERISA Section 404(c). The Committee will administer the Plan in a manner to comply with ERISA Section 404(c). Participants will be permitted to exercise control over the investment of their Accounts, so that Plan fiduciaries shall not be liable for any loss that results from any Participant’s exercise of control. |
(k) | Employer Stock Fund. Although the Employer Stock Fund, as an ESOP, is designed to hold qualifying employer securities as the primary investment, the Employer Stock Fund may also hold cash and other liquid investments in such amounts as the Trustee considers necessary to meet the Fund’s liquidity requirements and to pay reasonable administrative expenses of the Fund. The Plan has no obligation to invest such amounts. |
(l) | Investment Elections. Participants must make their investment elections in the manner and by the deadline announced by the Committee from time to time. The Service Center will issue a written confirmation of each election that it receives. |
(4) | Initial Election. As of the date he/she enters the Plan, a Participant may elect to have the aggregate balances in his/her Employee Contribution Accounts, and Employer Contribution Accounts invested among the available investment funds in 1% increments. |
(5) | Failure to Elect. The Trustee will invest the Account balances of any Participant who fails to timely submit a properly completed election form in accordance with this subsection. Effective April 1, 2007, the Trustee will invest 100% of the allocations to such Participant’s Accounts in a fund that meets the statutory requirements for a qualified default investment alternative (QDIA) under ERISA Section 404(c), i.e., life-cycle funds, balanced funds, and/or professionally managed funds. |
(m) | Change in Investment Election. Each Participant may change his/her investment election for the balance(s) in his/her existing Employee Contribution Account(s) and/or Employer Contribution Accounts, in 1% increments, as of any Valuation Date. Reinvestment elections for existing balances will become effective as of the Valuation Date when made, if the Participant completes his/her investment election no later than the daily time deadline. Otherwise, the election will become effective as of the next following Valuation Date. Notwithstanding any other provision in the Plan, if the Employer Stock Fund does not have sufficient cash to execute a Participant’s election to transfer out of the Employer Stock Fund, the Trustee may pend the trade until it receives the proceeds from the sale of the Participant’s stock and use Fair Market Value on the date of sale to execute the election, and will have no liability for doing so. The Committee will establish and publish to Participants from time to time the daily time deadlines by which elections must be completed and the related effective dates. |
(n) | Insider Trading Rules. The Committee may enforce rules that restrict Participants who are insiders under Rule 16b-3 of Section 16 of the Securities Exchange Act of 1934, from engaging in certain discretionary transactions relating to the Employer Stock Fund that would trigger the short-swing profit |
(o) | Fund Transfer Restrictions. To prevent an adverse impact on the investment returns available to all Participants in the Plan, the Committee may impose restrictions on short-term trading into and out of all or any of the available investment funds, as it considers appropriate. Unless the Committee announces otherwise, if a Participant transfers money out of certain funds, he/she cannot transfer money back into that same fund for at least 46 days. The 46-day restriction does not apply to transfers into a fund. After a Participant transfers into a fund, he/she can transfer out of that same fund at any time. If a Participant requests multiple transfers out of a fund, the 46-day limit is based on the last date he/she transferred money out of the fund. The 46-day re-investment restriction does not prevent Participants from investing in any of the funds, or from changing their investment elections, or from taking loans or withdrawals. In its discretion, the Committee may revise these rules. In their discretion, the Committee or the Trustee may impose any other SEC or stock market requirements on trades as they consider appropriate and in the best interest of the Plan and/or Participants. |
(p) | Diversification Elections. Effective January 1, 2007, all Participants may elect to diversify the investment of their Matching Account balances into any one or more investment funds available under the Plan. See Addendum A for the rules in effect before 2007. |
(q) | Reinvestment of Earnings. All dividends, capital gains distributions and other earnings attributable to the Account balances invested in each investment fund will be reinvested in that investment fund, except to the extent that dividends on Employer Stock are paid currently to Participants who elect to cash out their dividends under Subsection 4.1(c). |
(r) | Investment Expenses. All expenses of each investment fund will be paid from |
(s) | Special Election Rules. |
(1) | In General. The Committee may permit (1) investments in increments greater or lesser than 1%, (2) other investment funds, (3) other election filing dates, and/or (4) any other variance from these rules as it considers appropriate, under regulations adopted by the Committee, published to Employees, and uniformly applied. |
(2) | Employer Stock Fund. Effective January 1, 2013, a Participant’s election to have his/her Employee Contributions and Employer Contributions invested in the Employer Stock Fund will be limited to 10% of such Contributions. A Participant’s reinvestment elections for existing balances are not so limited. |
4.3 | Voting Rights. Each Participant will have the right to direct the Trustee as to the manner in which the Employer Stock represented by the Share Units held in his/her Accounts will be voted. The Trustee will vote combined fractional shares of Employer Stock represented by the Share Units in the manner that most closely reflects Participants’ direction. The Trustee will refrain from voting the shares of Employer Stock represented by Share Units held in the Accounts of Participants who fail to give directions, except as required by any applicable law. The Trustee will vote unallocated shares of Employer Stock in the Suspense Account in the manner that the Trustee determines to be in the best interest of Participants and beneficiaries. For voting purposes, each Participant will be a named fiduciary with respect to the Employer Stock represented by the Share Units allocated to his/her Account. Proxy material and other voting information will be provided to Participants and the Trustee that is identical to that provided to other stockholders. |
4.4 | Tender Offers. If the Trustee receives any information or material that reasonably indicates a tender offer is being made to holders of Employer Stock, the Committee will furnish such information or material to each Participant whose Accounts are invested in the Employer Stock Fund, together with a form on which the Participant can confidentially direct the Trustee whether to tender the Employer Stock represented by his/her Share Units or take any other solicited action with respect to the Employer Stock represented by |
5.1 | Withdrawals Without a Hardship. An in-service withdrawal is one made while the Participant is still in Employment and before he/she has had a distribution event as described in Section 6.1. Unless the Committee directs otherwise, withdrawals are paperless transactions. The Participant must contact the Service Center and specify the amount or percentage of his/her available Account balances to be withdrawn. The Trustee will issue payment of the amount withdrawn as promptly as practicable after approval of the request. |
(t) | Types of In-Service Withdrawals. Hardship withdrawals are described in Section 5.2. The other types of withdrawals that can be made in-service are as follows. |
(1) | In-Service Withdrawal from After-Tax Account. Each Participant may withdraw all or part of his/her After-Tax Account balance as of any Valuation Date during his/her Employment. Withdrawals made from an After-Tax Account will be made in the following order: (1) After-Tax Contributions made before 1987, without any earnings; and (2) After-Tax Contributions made after 1986 and a pro rata share of earnings credited to his/her After-Tax Account both before and after 1986. |
(2) | In-Service Withdrawal from Rollover Account. Each Participant may withdraw all or part of his/her Rollover Account balance and/or Roth Rollover Account balance as of any Valuation Date during his/her Employment. |
(3) | In-Service Withdrawal After Age 59-1/2. At any time after any Participant reaches age 59-1/2, he/she may withdraw all or part of any of his/her Account balances. |
(4) | In-Service Withdrawal at Age 70-1/2. Beginning in the calendar year when an active Participant reaches age 70-1/2, he/she may elect either to begin receiving payment of his/her Account balances or to continue deferring payment until he/she retires. The Plan will pay to any active Participant who is a 5-percent owner of the Company, the minimum annual amount required under Code Section 401(a)(9) for each year beginning in the year when he/she reaches age 70-1/2, with payments beginning no later than April 1 of the following year. |
(5) | Qualified Reservist Distribution. The Committee will permit a Participant to make a Qualified Reservist Distribution if he/she is a member of a military reserve component as defined in 37 U.S.C. § 101 and is ordered or called to active duty after September 11, 2001 for a period in excess of 179 days or for an indefinite period. An eligible Participant may receive a Qualified Reservist Distribution during the period beginning on the date of his/her order or call to duty, and ending on the date when his/her period of active duty ends. The Committee will provide the Participant a notice that, (1) at any time within two years after the end of his/her active duty, he/she may make one or more contributions to an IRA in an aggregate amount not to exceed the amount of his/her Qualified Reservist Distribution; (2) the dollar limitations otherwise applicable to IRA contributions do not apply; (3) he/she may not take an income tax deduction for the IRA contribution; and (4) Qualified |
(u) | Designated Roth Account. The Plan permits in-service withdrawals from Designated Roth Accounts, whether or not the Participant has met the requirements for a Qualified Roth Distribution. Any withdrawal from a Designated Roth Account that is not a Qualified Roth Distribution, will consist of a pro-rata share of Roth Contribution amounts (basis) and investment earnings; the earnings are included in the Participant’s taxable income for the year when earnings are received. See Section 6.3 for the rules governing distributions from Designated Roth Accounts. |
(v) | Available Amount. The amount available to the Participant who makes an in-service withdrawal will be based on his/her available Account balances (minus any outstanding loan balance) determined as of the Valuation Date on which the withdrawal request is processed. Except as provided in Addendum B, Participants cannot withdraw Employer Contributions that were made under a Merged Plan, or any investment earnings credited to such Contributions after 1988. Participants cannot withdraw any Employer Contributions unless such contributions are 100% vested in accordance with Subsection 3.2(e). |
(w) | Order of Withdrawal from Accounts. The Committee will determine and publish to Participants from time to time the order in which each type of in-service withdrawal will be made from Participant Accounts. |
(x) | Pro Rata Withdrawals from Investment Funds. In compliance with directions from the Committee with respect to the order of withdrawal from Accounts, the recordkeeper will subtract each in-service withdrawal pro rata from the investment funds in which the Account balances available for the withdrawal are invested. The recordkeeper will determine the amount to be subtracted from each investment fund by multiplying the amount of the withdrawal by the ratio of the amount invested in each investment fund to the total aggregate available Account balances. |
(y) | Withdrawals of Money Purchase Plan Balances. A Participant may withdraw |
5.2 | Hardship Withdrawals. The active Participant who wishes to make a hardship withdrawal during his/her Employment must complete an application that specifies the amount to be withdrawn. The Participant must provide a written explanation of the reasons for the withdrawal and such other information as the Committee may request. The Trustee will issue payment of the amount withdrawn as promptly as practicable after approval of the request. No Participant who has terminated Employment, and no beneficiary, will be eligible to make a hardship withdrawal. |
(h) | Available Amount. The amount withdrawn may not exceed the actual expenses incurred or to be incurred by the Participant because of his/her hardship, plus (as part of the same withdrawal) the reasonably estimated amount of taxes and penalties he/she must pay on the withdrawal. The sum of the Participant's outstanding loan balance under Section 5.3 (if any), plus the amount of his/her hardship withdrawal, may not exceed his/her total aggregate available Account balances determined as of the hardship withdrawal date. The Participant may withdraw, to the extent applicable for him/her: (1) the dollar amount of his/her Elective Contributions made after 1992 (excluding earnings); (2) the dollar amount in his/her Designated Roth Account; (3) the dollar amount of his/her Elective Contributions made under a Merged Plan (excluding earnings accrued after 1988); and (4) his/her Non-Matching Contributions that were made after 1988 (excluding earnings and amounts attributable to a money purchase pension plan) and that have been maintained in the Plan for at least 24 months. |
(i) | Events Creating Immediate and Heavy Financial Need (Events Test). The Participant may make a hardship withdrawal only if he/she incurs a hardship that creates an immediate and heavy financial need that he/she cannot meet without the withdrawal. Effective January 1, 2006, a hardship withdrawal must be |
(1) | Expenses for, or necessary to obtain, medical care for a Participant, Spouse, qualifying child, or qualifying relative, which would be deductible under Code Section 213(d) if determined without regard to whether medical expenses exceed 7.5% of adjusted gross income. |
(2) | Costs directly related to the purchase of the Participant's principal residence, (including land purchase and all construction costs, and excluding mortgage payments). |
(3) | Payment of tuition, related educational fees, and room and board expenses, for up to the next 12 months of post-secondary education (including trade school) for the Participant, Spouse, qualifying child or qualifying relative. |
(4) | Payments necessary to prevent eviction of the Participant from his/her principal residence, or foreclosure on the mortgage on his/her principal residence. |
(5) | Payments for burial or funeral expenses for the Participant’s deceased Spouse, qualifying child or qualifying relative. |
(6) | Expenses for the repair of damage to the Participant’s principal residence that would qualify for the casualty deduction under Code Section 165, determined without regard to whether the loss exceeds 10% of adjusted gross income. |
(7) | Any other catastrophic financial hardship that the Committee determines to have consequences similar in severity to the events listed above, and |
(j) | Withdrawal Necessary to Meet Need (Needs Test). The Committee uses the safe harbor rules for the Needs Test, and will treat a withdrawal as necessary to meet the immediate and heavy financial need if the following requirements are met: |
(3) | Amount Needed. The amount withdrawn cannot exceed the amount of the need. |
(4) | Loans and Dividends. The Participant must obtain all other available withdrawals, distributions and nontaxable loans under all qualified and nonqualified plans maintained by his/her Employer, if any, unless he/she provides evidence satisfactory to the Committee that the loan repayments would cause an additional hardship. The Participant will not be required to obtain commercial loans. The Participant must elect to receive a cash payment for any dividends that are currently available under Subsection 4.1(c). |
(5) | Suspension. After the Participant receives his/her hardship withdrawal, the Committee will suspend his/her Employee Contributions to this Plan and his/her contributions to or deferrals under any other qualified or nonqualified cash or stock plan maintained by any Employer for a period of 6 months. |
(k) | Nondiscrimination. |
(l) | Reliance on Participant's Representations. |
5.3 | Loans. The Committee will grant loans in a uniform and nondiscriminatory manner, subject to the following rules. |
(a) | Application and Eligibility. The Participant who wishes to make a loan from his/her Account during his/her Employment must complete and submit an application that specifies the amount to be borrowed, in the manner announced by the Committee from time to time. No Participant may receive a loan after he/she terminates Employment, and no beneficiary is eligible for a loan. The Committee may deny a Participant’s loan application if he/she failed to repay a previous Plan loan according to the repayment schedule. Any Participant who, on or after January, 2004, has defaulted on the outstanding balance of a previous loan, will not be eligible to make a loan. |
(b) | Available Amount. The Participant may request a loan from the aggregate balances in his/her Accounts. The total principal amount of the Participant's outstanding loans may not exceed the lesser of (1) 50% of his/her aggregate Account balances as of the date the loan is approved, or (2) $50,000. If he/she has an outstanding loan balance, the $50,000 limit is reduced by an amount equal to his/her highest outstanding balance during the 12 months immediately |
(c) | Order of Account Liquidation. Unless the Committee determines that a different order is appropriate, the Trustee acquires the cash proceeds to make each loan by liquidating the Participant's Accounts in the following order, to the extent applicable for him: (1) Rollover Account; (2) Matching Account; (3) Non-Matching Account; (4) Merged (Prior Employer) Account; (5) Before-Tax Account; (6) After-Tax Account; (7) Roth Account; and (8) Discretionary Contribution Account. Unless the Committee determines that a different method is appropriate, the Plan subtracts the proceeds of each loan pro rata from the investment funds in which the Account balances are invested. |
(d) | Loan Origination Fees. The Plan deducts an origination fee from the proceeds of each loan, in the amount stated in the Summary Plan Description as in effect from time to time or in another type of Participant communication. The Plan also deducts the fees for any required state documentary stamps or Uniform Commercial Code (UCC) filing fees. Early repayment of a loan does not result in reimbursement of any of the fees. Effective January 1, 2004, the Plan does not deduct an origination fee from the proceeds of a loan made to a Participant who is on a Qualified Military Service leave. |
(e) | Frequency of Loans. Each Participant is eligible to have no more than two outstanding loans at any one time. |
(f) | Interest. Each loan bears interest at a reasonable rate established by the Committee from time to time on the basis of rates currently charged by commercial lenders. The Plan charges interest on loans in a uniform and nondiscriminatory manner. Effective January 1, 2004, for any period when a Participant is on a Qualified Military Service leave, he/she may submit a written request to the Committee to charge an interest rate not greater than 6% (or such other rate prescribed by the Servicemembers Civil Relief Act or other applicable |
(g) | Security. Each loan is secured by the Participant's pledge of the balances in his/her Accounts from which his/her loan is made. The Committee treats each loan as an investment of the Participant's borrowed Account balances and credits his/her principal and interest payments to the Accounts from which his/her loan proceeds were taken. Principal and interest repayments are invested according to the Participant's investment election in effect as of the date each repayment is made. |
(h) | Term. Each loan is for a term not exceeding five years, except that the term may extend up to 10 years if the loan proceeds are used to purchase the Participant's principal residence (including land purchase and construction costs). Effective January 1, 2004, if the Plan suspends the repayment obligation of any Participant who takes a Qualified Military Service leave, the Committee extends the term of a loan made to such Participant by a period equal to the period of his/her loan suspension. The Plan does not extend the term of any loan for any Participant who is not on a Qualified Military Service leave, except as provided in subsection (l) below. |
(i) | Repayment. |
(6) | Payroll Deduction for Active Participant. So long as the Participant earns Compensation, he/she must make his/her loan repayments by payroll deductions in equal amounts throughout the term of the loan. The amount of each repayment must be at least $25, or such other minimum amount as may be established by the Committee and stated in the Summary Plan Description as in effect from time to time or in another type of Participant communication. |
(7) | Inactive Participant. The Participant who has an outstanding loan balance when he/she terminates, retires, or begins an unpaid leave, either may repay his/her outstanding balance in full, or may continue to |
(j) | Default. If the Participant fails to timely repay his/her loan, by the end of the calendar quarter following the calendar quarter in which such failure occurs, the Committee will declare a default of the entire outstanding balance, but will not deduct any portion of the defaulted balance from his/her Before-Tax Account unless he/she has terminated Employment or become Disabled. If the Participant has terminated or become Disabled, the Committee will treat the defaulted loan as a deemed distribution and will issue a Form 1099-R for the year in which the default occurs. If he/she has not terminated or become Disabled, the Committee will treat the defaulted loan as a deemed distribution except for the portion that was loaned from his/her Before-Tax Account, which cannot be distributed until his/her Disability or Termination Date. The Committee will hold the canceled note in the Participant’s Before-Tax Account as a non-income-producing investment until he/she becomes Disabled or terminates employment, and will then reduce his/her Before-Tax Account balance by the amount of the defaulted loan balance attributable to that Account. |
(k) | Suspension of Repayments During Qualified Military Service Leave. Each Participant may elect to suspend his/her loan repayments while he/she is on unpaid Qualified Military Service leave. The five-year maximum repayment period will be extended by the length of the suspension. Effective January 1, 2004, for any period when a Participant has as active unpaid Qualified Military Service leave, he/she may submit a written request to the Committee, with a copy of his/her call-up and/or extension orders, to charge an interest rate not greater than 6% (or such other rate prescribed by the Servicemembers Civil Relief Act or other applicable law). If the Participant fails to submit his/her written request before his/her loan repayments resume, the Committee will charge the rate stated in his/her promissory note. The Participant may submit his/her |
(l) | Suspension of Repayments During Unpaid Leave of Absence. Each Participant may elect to suspend his/her loan repayments for a period up to 12 months while he/she is on an unpaid leave of absence, other than a Qualified Military Service leave. This suspension will not extend the original term of the loan beyond five years, and the amount of each repayment due after the leave ends or after the first year of the leave, will not be less than the repayment amount required under the terms of the original loan. The Participant must make a balloon payment before the end of the original loan in the amount of the suspended repayments plus accrued interest. |
(m) | Loans from Money Purchase Plan Balances. The married Participant who borrows any portion of his/her Account balance that is attributable to employer contributions to a Merged Plan that was a money purchase plan, must have his/her Spouse’s written consent in compliance with Subsection 6.7(b). |
(n) | Revisions to Loan Rules and Procedures. The Committee may in its discretion revise the rules and procedures that govern Plan loans, as it considers appropriate for administrative and/or compliance purposes. |
5.4 | Direct Rollover. The Committee permits Participants to implement direct rollovers of their in-service withdrawals to the extent permitted under the rollover rules in Article 6. Withdrawals required under Code Section 401(a)(9), hardship withdrawals made after December 31, 1998, and loan proceeds are not eligible for rollover. |
6.1 | Distribution Events. |
(m) | Termination of Employment or Disability. A Participant who terminates Employment for any reason or incurs a Disability, will be eligible for either immediate (not earlier than the 46th day after his/her Termination Date) or deferred payment of his/her aggregate Account balances. The Participant must contact the Service Center and apply for payment, and must provide all requested documentation. The Trustee will issue payment as soon as practicable after the Committee approves the distribution request. The Committee will treat a Participant who transfers to a related entity that is not within the Company’s 80% Controlled Group, as having terminated Employment for distribution purposes, even if he/she continues working in the same position and same location for the new employer, if assets are not transferred from this Plan to a plan maintained by the new employer, and the new employer does not maintain this Plan. |
(n) | Death. If a Participant dies with any Account balances, the Plan will pay his/her balances to his/her beneficiary(s) under the rules stated in this Article 6. The beneficiary(s) must contact the Service Center and apply for payment, and must provide all requested documentation. The Trustee will issue payment as soon as practicable after the Committee approves the distribution request. |
(o) | Employer-Initiated Transfer. The Company may merge this Plan with another qualified defined contribution plan that is maintained by a Controlled Group member. The Company may spin off a portion of this Plan and direct the Trustee to transfer affected Participant’s Account balances to another employer’s qualified plan. The Plan is not required to obtain Participant consent for such transactions. The transferee plan must protect all benefits that are required to be protected under Code Section 411(d)(6), e.g., optional forms of payment. |
(p) | Employee-Initiated Voluntary Direct Transfers (Change in Employment Transfer). The Committee may permit Participants to elect to make voluntary |
(q) | Plan Termination. If the Plan terminates in part or in whole, and the Committee directs payment of benefits to affected Participants and beneficiaries, distributions will be made only in lump sum payments. The installment option will not be available for distributions made on account of Plan termination. However, the Plan will not make distributions under this Subsection if an Employer maintains a Successor Plan. For this purpose, Employer means an entity that is a Controlled Group member on the effective date of the Plan termination. Successor Plan means any other defined contribution plan maintained by the same Employer, excluding ESOPs and simplified employee pensions (SEPs), that exists at any time during the period beginning on the Plan termination date and ending 12 months after the final distribution date of all assets from the terminated Plan. However, if at all times during the 24-month period beginning 12 months before the Plan termination date, fewer than 2% of the Participants in this Plan are eligible under the Successor Plan, that plan will not be treated as a Successor Plan. |
(r) | Qualified Military Service. If a Participant is called to active Qualified Military Service for more than 30 days, the Plan will treat him/her as having terminated Employment for purposes of his/her eligibility to receive a distribution of his/her Employee Contributions. A Participant who elects a distribution will be suspended from making Employee Contributions for a period of 6 months after the distribution. |
6.2 | Amount of Payment. The Participant or beneficiary will receive his/her payment(s) |
6.3 | Distributions from Designated Roth Accounts. |
(a) | Qualified Roth Distribution. To facilitate each affected Participant’s right to claim an exemption from federal income tax, which is the purpose for Roth Contributions, the Plan will designate each Qualified Roth Distribution as such. A Qualified Roth Distribution is a withdrawal from a Designated Roth Account that is not subject to federal income tax because it is made (1) after the Participant either reaches age 59-1/2, incurs a Disability, or dies (the Qualified Purpose Rule), and (2) at least five calendar years after the beginning of the earlier of: (A) the first year for which the Participant made a Roth Contribution under this Plan, or (B) if he/she made a Rollover Contribution to his/her Designated Roth Account, the first year for which he/she made a Roth Contribution under the 401(k) plan, 403(b) or 457(b) plan from which the Rollover Contribution was made (the Five-Year Rule). |
(b) | Distributions to Alternative Payee or Beneficiary. If the Plan makes a distribution from a Designated Roth Account to an alternate payee or beneficiary, the Plan will use the Participant’s age and death or Disability to determine whether the distribution is a Qualified Roth Distribution. However, if a Spousal alternate payee or surviving Spouse elects a rollover to a designated Roth account under a plan of his/her own employer, the Plan will use his/her age, death or disability. |
(c) | Nonqualified Distribution. If the Plan makes a distribution to a Participant from his/her Designated Roth Account that does not meet the requirements for a Qualified Roth Distribution, the portion of the payment that constitutes earnings will be subject to federal income tax in the year when the distribution is made. |
6.4 | Timing of Payment. |
(a) | Payment to a Participant. A Participant may elect to receive or begin receiving payment of his/her Account balances as soon as administratively practicable after his/her Termination Date, but not later than the end of the second calendar month following the month when he/she reaches age 70-1/2. Effective March 28, 2005, the terminated or Disabled Participant whose aggregate Account balances exceed $1,000 may leave all or part of his/her Account balances in the Plan until that date. |
(b) | Payment to a Beneficiary. The beneficiary of the deceased Participant may elect to receive or begin receiving payment of his/her Account balances as soon as administratively practicable after the Committee receives such documentation as it considers necessary, such as a death certificate, and approves the distribution request. The non-Spouse beneficiary may not defer payment later than the last day of the calendar year following the year in which the Participant’s death occurs. The surviving-Spouse beneficiary may not defer payment later than the last day of the calendar year in which the deceased Participant would have reached age 70-1/2. |
(c) | Notice of Consequences of Failure to Defer. The Committee will provide to each Participant who elects a distribution before he/she reaches age 62, a notice of the consequences of failing to defer the distribution. The notice will include statements that (1) some currently available investment options in the Plan may not be generally available on similar terms outside the Plan, with contact information for obtaining additional information on the general availability outside the Plan of currently available investment options in the Plan; (2) administrative, investment-related, and other fees and expenses outside the Plan may be different from fees and expenses that apply to Participant’s Accounts in the Plan, with contact information for obtaining information about such fees; (3) distributions received before a Participant reaches age 59-1/2 may be subject to an additional 10% income tax for early withdrawal; (4) to the extent the distribution is not rolled over to continue tax deferral, it will be subject to federal income tax in the year when it is received; and (5) to the extent the distribution is not rolled over, the Participant will lose the opportunity for continued tax-deferred |
6.5 | Forms of Payment. |
(a) | Account Balance Over $1,000. Regardless of the reason for termination of Employment, the Participant or beneficiary whose Account balances exceed $1,000 may elect to receive payment in one of the following forms: |
(1) | Lump sum payment; or |
(2) | Installments in substantially equal monthly, quarterly, semi-annual, or annual payments, over a period that does not exceed the Participant’s or beneficiary’s life expectancy or the joint and last survivor life expectancy of the Participant and his/her beneficiary, but not longer than 9 years. The Participant or beneficiary who initially elects installment payments may elect at any time to receive a lump sum payment of the remaining balances, or may elect not more frequently than once in any 12-month period to increase the amount of the installment payments. From time to time, the Plan will establish and publish to Participants and beneficiaries the order in which installment payments are deducted from Accounts and from the investment funds in which Accounts are invested. The Participant or beneficiary will be permitted to change investment elections during the installment period on the same basis as active Participants. See Addendum A for rules in effect before January 1, 2006. |
(b) | Account Balance Not Over $1,000. As soon as practicable after the Participant’s Termination Date, but not earlier than the 46th day or such other period as the Committee may establish from time to time, the Plan will automatically make a lump sum payment in cash to any Participant or beneficiary whose aggregate Account balances do not exceed $1,000 as of the payment date. The Participant or beneficiary may elect to receive Employer Stock attributable to Share Units for the portion of his/her Accounts invested in the Employer Stock Fund as of the payment date. When the Account balances of a Participant or beneficiary who is receiving installment payments decrease to less |
6.6 | Medium of Payment. The Participant or beneficiary may elect to receive the distribution of her/her Account balances either (1) entirely in cash; (2) entirely in whole shares of Employer Stock, or (3) a combination of cash and Employer Stock. The Plan will distribute cash for amounts invested in funds other than the Employer Stock Fund, and cash or shares of Employer Stock for Employer Stock allocable to Share Units for amounts invested in the Employer Stock Fund. Any fractional share of Employer Stock will be paid in cash. If the Trustee is not able to purchase a sufficient number of shares of Employer Stock, the Committee will notify the Participant or beneficiary that distribution will be delayed until the Trustee is able to settle the purchase. If the Trustee is not able to purchase a sufficient number of shares of Employer Stock within one year after the elected distribution date, or before the required distribution date if earlier, the Plan will distribute cash instead of Employer Stock. |
6.7 | Required Minimum Distribution Rules. The following provisions are effective January 1, 2003, except as otherwise stated. The requirements of this Section take precedence over any inconsistent provisions of the Plan. The Plan will determine and pay all distributions required under this Section in accordance with Code Section 401(a)(9) and Treas. Regs. Section 1.401(a)(9). The Plan permits a terminated Participant to defer payment until the end of the second calendar month following the month when he/she reaches age 70-1/2. The Plan makes a lump sum payment of his/her Account balances, or begins installment payments, no later than that date |
(a) | Applicable Definitions. For purposes of this Section, the following terms have the meanings set forth below. |
(4) | Account Balance means the Account Balance as of the last valuation date in the calendar year preceding the Distribution Calendar Year. |
(5) | Designated Beneficiary means the Participant’s surviving Spouse, or another individual who is designated as a beneficiary under Section 6.7 |
(6) | Distribution Calendar Year means a calendar year for which a minimum distribution is required. For distributions beginning before the Participant's death, the first Distribution Calendar Year is the calendar year immediately preceding the calendar year that contains his/her Required Beginning Date. For distributions beginning after the Participant's death, the first Distribution Calendar Year is the calendar year in which distributions are required to begin under this Section. |
(7) | Five-Year Rule means the requirement under Code Section 401(a)(9) that the Plan must distribute the entire balance in an Account by December 31 of the year containing the fifth anniversary of the Participant’s or surviving Spouse’s death, unless the surviving Spouse or other Designated Beneficiary began to receive installment payments no later than the end of the calendar year following the year when the Participant or surviving Spouse died, as applicable. |
(8) | Life Expectancy. Except as otherwise stated in this Section, the life expectancy tables set forth in Treas. Regs. Section 1.401(a)(9)-9 are irrelevant to this Plan. Regardless of the number of years of a Spouse’s or other Designated Beneficiary’s Life Expectancy according to the applicable table, the Plan will distribute the Participant’s entire Account balance to such individual over a period not longer than 9 years. |
(9) | Required Beginning Date means April 1 following the later of the calendar year in which the Participant reaches age 70‑1/2 or the year in which he/she retires, except that the Required Beginning Date for any Participant who is a 5-percent owner is April 1 following the calendar year in which he/she reaches age 70‑1/2 even if he/she has not retired. The Required Beginning Date for a surviving Spouse is December 31 of the later of the calendar year in which the Participant would have reached |
(b) | Separate Accounts for Multiple Beneficiaries. If a Participant is survived by multiple Designated Beneficiaries, and if the Committee establishes separate accounts for such Beneficiaries by December 31 of the year following the year of the Participant’s death, the Plan will calculate the minimum distributions for each Designated Beneficiary by using his/her Life Expectancy under the Single Life Table, as recalculated each year. Otherwise, the Plan will use the Life Expectancy of the oldest Designated Beneficiary to determine the required minimum distribution for all Designated Beneficiaries. However, Life Expectancy will not exceed 9 years. |
(c) | Participant’s Death Before his/her Required Beginning Date. If a Participant dies before his/her Required Beginning Date, the Plan will distribute the entire balance in his/her Account, or begin to make distribution, no later than the applicable Required Beginning Date, and will complete the distribution over the following applicable period. The Committee will ignore any payment made before the Required Beginning Date and will treat the Spouse or other Designated Beneficiary as if the Participant had died before payments began, even if the Participant had received his/her first minimum annual payment before his/her death. |
(8) | If the surviving Spouse is the sole Designated Beneficiary, the Plan will make or begin distribution by December 31 of the calendar year following the later of the calendar year in which the Participant died or the calendar year in which he/she would have attained age 70-1/2 if he/she had survived. The Plan will distribute the entire balance in the Account |
(9) | If the surviving Spouse is not the sole Designated Beneficiary, the Plan will begin distribution to the Designated Beneficiary by December 31 of the calendar year following the calendar year in which the Participant died. The Plan will distribute the entire balance in the Account over a period not to exceed the lesser of 9 years, or the Designated Beneficiary’s Life Expectancy using the Single Life Table, as recalculated each year. For each Distribution Calendar Year, the Plan will distribute a minimum amount equal to the quotient obtained by dividing the Account Balance by the lesser of the Designated Beneficiary’s remaining Life Expectancy, or a period of 9 years minus 1 for each previous Distribution Calendar Year. |
(10) | If there is no Designated Beneficiary as of September 30 of the year following the year of the Participant's death, the Plan will distribute the entire balance in the Account by December 31 of the calendar year containing the fifth anniversary of the Participant's death, to any Designated Beneficiary whom the Committee has approved as such by that date, or if none then to the Participant’s estate. |
(11) | If the surviving Spouse is the sole Designated Beneficiary and the surviving Spouse dies after the Participant but before distributions to the surviving Spouse begin, the Plan will begin distributions by the time specified in Subsection (c)(1) above (the surviving Spouse’s Required Beginning Date) and will apply Subsections (c)(2) and (3) above as if the surviving Spouse were the Participant. |
(d) | Participant’s Death After his/her Required Beginning Date. If a Participant |
(8) | Required Minimum Distributions During the Participant’s Lifetime. During the Participant's lifetime, for each Distribution Calendar Year the Plan will distribute a minimum amount equal to the quotient obtained by dividing the Account Balance by the lesser of 9 years or the distribution period in the Uniform Lifetime Table, using the Participant's age as of his/her birthday in the Distribution Calendar Year. The Plan will base the distribution for the year of the Participant’s death on his/her Life Expectancy using the Uniform Lifetime Table. If a Participant's sole beneficiary for the Distribution Calendar Year is his/her Spouse who is more than 10 years younger than the Participant, the Participant may submit a written request to the Committee that the Plan use the quotient obtained by dividing the Account Balance by the number in the Joint and Last Survivor Table obtained by using the Participant's and Spouse's attained ages as of their birthdays in the Distribution Calendar Year. |
(9) | Participant’s Death On or After his/her Required Beginning Date With a Designated Beneficiary. If a Participant dies on or after his/her Required Beginning Date and has a Spouse or other Designated Beneficiary, for each Distribution Calendar Year after the year of the Participant's death the Plan will distribute a minimum amount equal to the quotient obtained by dividing the Account Balance by the lesser of 9 years or the longer of the remaining Life Expectancy of the Participant or Designated Beneficiary, measuring both Life Expectancies using the Single Life Table. The Participant's remaining Life Expectancy is calculated using his/her age in the year of death, reduced by one for each subsequent year. |
(10) | Participant’s Death On or After his/her Required Beginning Date With No Designated Beneficiary. If a Participant dies on or after his/her Required Beginning Date and does not have a Spouse or other Designated Beneficiary as of September 30 of the year after the year of his/her death, for each Distribution Calendar Year after the year of the Participant's death the Plan will distribute a minimum amount equal to the quotient obtained by dividing the Account Balance by the Participant's remaining Life Expectancy calculated using the Single Life Table and his/her age in his/her year of death, reduced by one for each subsequent year. Life Expectancy will not exceed 9 years. |
(e) | Qualified Domestic Relations Orders (QDRO). The Plan may defer a required minimum distribution for a period up to 18 months as necessary to give the Committee time to review and implement the terms of a QDRO. |
(f) | Trust as Designated Beneficiary. If a Participant names a trust as a beneficiary, the Plan may treat the beneficiaries of the trust as the Designated Beneficiaries for purpose of the minimum distribution requirements. The Designated Beneficiaries must provide the Committee the trust documentation that certifies the Designated Beneficiaries under the trust, by October 31 of the |
(g) | Election to Allow Participants or Beneficiaries to Elect Five-Year Rule. The Plan will permit each Participant and each Designated Beneficiary to elect, on an individual basis, whether the Five-Year Rule or the Life Expectancy Rule will apply to distributions after the Participant’s death. The election must be made no later than the earlier of September 30 of the calendar year in which distribution would be required to begin under Subsection (c), or by September 30 of the calendar year which contains the fifth anniversary of the Participant's (or, if applicable, surviving Spouse's) death. If neither the Participant nor Beneficiary makes an election under this paragraph, the Plan will make distributions in accordance with Subsections (c) and (d). |
(h) | Age 65 Payment Rule. Unless the Participant elects otherwise, the Plan will make or begin to make payment of his/her Account balances no later than the 60th day after the end of the Plan Year in which occurs the latest of: (1) his/her 65th birthday; (2) the tenth anniversary of the date he/she began participating in the Plan; or (3) his/her Termination Date. The Plan treats a failure to elect earlier payment as an election to defer. |
(i) | Suspension of Required Minimum Distributions During 2009. Pursuant to Code Section 401(a)(9)(H), enacted by the Worker, Retiree and Employer Recovery Act of 2008 (WRERA), the Committee provided a notice to all Participants who otherwise would have been required to receive a minimum distribution during 2009, explaining that unless they affirmatively elected a distribution, the Plan suspended such distributions for 2009. Participants who elect to receive a distribution for 2009 are permitted to elect direct rollovers, and are not subject to the normal 20% income tax withholding. Required minimum distributions will resume in 2010, without any make-up for waived distributions for 2009. If the Five-Year Rule applies to the beneficiary of a deceased Participant, the Committee will determine the five-year period by disregarding calendar year 2009, to extend the payment period to six years. |
6.8 | Beneficiary Designation. |
(a) | Procedure. The Participant may name as his/her primary and/or contingent beneficiary one or more individuals or an entity other than a natural person, e.g., a trust, foundation, school, or church, to receive any Account balances remaining in the Plan after his/her death. The surviving Spouse will be the sole primary beneficiary unless the Spouse has waived that right under Subsection (b). If no designated beneficiary survives the Participant, the Plan will treat the surviving Spouse (if any) as the beneficiary, or if none, then the Participant’s surviving children, per capita; if none, the Participant’s surviving grandchildren, per capita; or if none, then the Participant’s estate. If the Participant names more than one beneficiary, he/she must designate the percentages payable to each, and may indicate whether each beneficiary is primary or secondary. The Participant who elects the installment form of payment may designate a primary and secondary beneficiary, and may change his/her beneficiary(s) at any time before his/her death, with Spousal consent if he/she is married. If the Participant was receiving installment payments, the Plan will pay any balance that remains after the death of the last surviving designated beneficiary, to that beneficiary’s estate. After the Participant’s death, the beneficiary will have the same right to make investment elections under Section 4.2 as the Participant would have had if he/she had survived, and to elect payment under the rules set forth in this Article 6. The Plan will not honor any beneficiary designation that the Committee or the Service Center did not receive before the Participant’s death. |
(b) | Waiver of Spouse’s Rights. The sole primary beneficiary of the married Participant is his/her surviving Spouse, unless he/she elects to have all or any part of his/her Account balances that otherwise would be payable to his/her surviving Spouse after his/her death, payable instead to one or more beneficiary(s) designated under Subsection (a). Each such election must be in writing and (1) must be signed by the Participant and his/her Spouse; (2) the Spouse must give either specific consent for each named beneficiary, or general consent for the Participant to name any beneficiary; (3) the Spouse’s consent must acknowledge the effect of the election and that he/she cannot later revoke the |
(c) | Disclaimer of Beneficiary Status. Any beneficiary may disclaim the right to receive all or part of the Account balance that otherwise would be payable, by presenting to the Committee a written and notarized disclaimer. The Plan will treat the beneficiary who has disclaimed his/her rights as if he/she predeceased the Participant. |
(d) | Judicial Determination. If the Committee for any reason considers it improper to direct any payment as specified in this Section, it may have a court of applicable jurisdiction determine to whom payments should be made. |
6.9 | Payment to a Representative. In the circumstances described in this Section, the Committee may request a court of competent jurisdiction to determine the payee. Any payment made pursuant to this Section will be in full satisfaction of all liability that the Plan and Plan fiduciaries have with respect to the Participant and/or beneficiary(s). |
(d) | On Behalf of a Participant. If a Participant is incompetent to handle his/her affairs at any time while he/she is entitled to receive a payment from the Plan, the Trustee will make payment to his/her court appointed personal representative, or if none is appointed the Trustee may in its discretion make payment to his/her next‑of‑kin or attorney-in-fact, for the benefit of the Participant. |
(e) | On Behalf of a Minor or Incompetent Beneficiary. If a deceased Participant’s beneficiary is a minor, or is legally incompetent, the Committee will direct the Trustee to make payment to the court-appointed guardian or representative of such beneficiary, or to a trust established for the benefit of such beneficiary, as applicable. If no guardian or representative is appointed, and no trust is |
6.10 | Unclaimed Benefits. If the Committee cannot locate a Participant or any other person entitled to receive the Participant's Account balances, with reasonable effort and after a period of five years after a Participant has reached age 65 or died, the Committee will direct the recordkeeper to reduce his/her balance to zero in order to avoid a violation of the minimum distribution rules under Code Section 401(a)(9). The Committee may, in its sole discretion, arrange for the unclaimed Account balance to escheat to the Participant’s state of residence as reflected in Plan or Employer records, or may apply the proceeds toward the affected Employer’s Contribution for that Plan Year or the next Plan Year. If the Participant or his/her Beneficiary or estate subsequently makes a claim for benefits, the Committee will cause the affected Employer to make a contribution sufficient to reinstate the Account balance with interest, as required under Treasury Regulations Section 1.401(a)-14(d) or any other applicable law. |
6.11 | Direct Rollover of Eligible Distributions. |
(a) | Applicable Definitions. For purposes of this Section, the following terms have the meaning set forth below. |
(6) | Eligible Rollover Distribution (excluding Designated Roth Accounts). Eligible Rollover Distributions include (A) lump sum distributions, and (B) any other distribution that is not part of a series of substantially equal periodic payments, made at least annually, over a period of at least 10 years, or over the lifetime or life expectancy of a Participant or the joint lifetimes or life expectancies of a Participant and his/her named beneficiary. Payments that are not Eligible Rollover Distributions include (A) minimum annual amounts required to be paid under Code Section 401(a)(9); (B) amounts paid as cash dividends on Employer Stock; (C) hardship withdrawals; (D) loan proceeds; (E) refunds of Excess 402(g) Contributions; (E) refunds of Employee Contributions that had been designated as Catch-Up Contributions but that failed to meet the applicable requirements; and (F) any refunds required to satisfy the ADP |
(7) | Eligible Rollover Distribution from Designated Roth Account. A Participant may elect to make a direct rollover of all or part of his/her distribution from his/her Designated Roth Account, but only to another designated Roth account in another employer’s Code Section 401(k) plan, 403(b) plan, or 457(b) Plan, or to a Roth IRA. If a Participant rolls over a distribution from his/her Designated Roth Account to the same type account in another plan, his/her period of participation carries over from this Plan to the recipient plan for purposes of measuring the 5-taxable-year period for determining a Qualified Roth Distribution under the recipient plan. However, if a Participant makes a rollover from his/her Designated Roth Account to a Roth IRA, the period that the rolled-over funds were in this Plan does not account toward that 5-year period; except that if he/she contributed to any Roth IRA in any prior year, the 5-taxable-year period for determining a Qualified Roth Distribution from his/her current Roth IRA is measured from the date of his/her earliest prior-year Roth IRA contribution. |
(b) | Persons Eligible to Direct a Rollover. The following persons are eligible to instruct the Committee to roll over all or part of their Eligible Rollover Distribution to an Eligible Rollover Plan: (1) a Participant, (2) a surviving Spouse, (3) a Spousal alternate payee under a Qualified Domestic Relations Order, and (4) a non-Spouse beneficiary (who may roll over only to an inherited IRA established to receive the rollover). |
(c) | Written Notice. The Committee will provide a timely written notice of the right to make a direct rollover. The notice will include all information required under Code Section 402(f). The Committee will notify non-Spouse beneficiaries that if they roll over their distributions to an inherited IRA, they must withdraw them from the IRA in compliance with applicable minimum required distribution rules. |
(d) | Rollover Procedures. The payee who wishes to direct a rollover must timely provide to the Committee written information required to implement the rollover. |
7.1 | Excess 402(g) Contributions. The Plan will limit each Participant's total before-tax and after-tax Employee Contributions to the Dollar Limit in effect for each calendar year. If any Participant makes Excess 402(g) Contributions for any calendar year, the excess amount will be distributed under the following rules. |
(o) | Time of Distribution. If the Participant made his/her Excess 402(g) Contribution solely to this Plan, the Committee will distribute the excess amount and attributable earnings as soon as practicable after it discovers the excess. If the Participant made his/her Excess 402(g) Contribution in whole or in part to another qualified plan, or to an IRA or Roth IRA, but wishes to withdraw all or part of the excess amount from this Plan, he/she must submit to the Committee no later than March 15 written documentation that he/she made Excess 402(g) Contributions for the previous calendar year and a written request that a specified amount of the excess be distributed from this Plan. If any Excess 402(g) Contribution is not refunded by April 15 of the calendar year following the calendar year in which it was contributed, it will remain in the Participant's Before-Tax Account until a distribution event occurs under Article 5 or 6, except to the extent the Internal Revenue Service (IRS) permits earlier distribution under a self-correction program or otherwise. The Plan will not refund any Excess 402(g) Contribution in excess of the amount the Participant has actually contributed to this Plan plus attributable earnings. |
(p) | Reporting Form. When the Plan implements a refund of an Excess 402(g) Contribution, it will designate the refund as an Excess 401(g) Contribution on the appropriate form published by the IRS so that the Participant can designate the refund as an Excess 402(g) Contribution on his/her income tax return. |
(q) | Order of Distributions. From time to time, the Committee will instruct the recordkeeper whether to use the first-in-first-out method, or the last-in-first-out method, to make refunds of Excess 402(g) Contributions. |
(r) | Inclusion in Annual Addition. Excess 402(g) Contributions made by HCEs and by NCEs that are refunded in the same Plan Year or by April 15 of the next following Plan Year will not be included in their Annual Additions for Section 415 purposes. Excess 402(g) Contributions that are also Excess Annual Additions and that are refunded pursuant to this Section will not be included in the Participant's Annual Addition. |
(s) | Determination of Earnings. The Committee will use the Plan's normal method of calculating earnings to determine the amount of earnings attributable to each Participant's Excess 402(g) Contributions for the Plan Year for which the Contribution was made, and will ignore gap period earnings (for the period between the end of the Plan Year and the refund date). |
7.2 | Code Section 415 Limitation. In no event will the Maximum Annual Addition for any Participant exceed the Code Section 415 Limit described in this Section. |
(d) | Applicable Definitions. For purposes of this Section, the following terms will have the meanings set forth below. |
(3) | Annual Addition means, for each Participant for each Limitation Year, the sum of the Employee Contributions and Employer Contributions allocated to his/her Accounts under this Plan. Annual Addition excludes (A) Excess 402(g) Contributions that are timely refunded; (B) any Contributions distributed as Excess Annual Additions; (C) Catch-Up Contributions and Roth Catch-Up Contributions; (D) rollovers to separate accounts held by the Plan; (E) repayment of Participant loans; (F) dividends on Employer Stock that are reinvested pursuant to Code Section 404(k)(2)(A)(iii)(II); and (F) any restorative payments made to restore losses due to an action (or a failure to act) that creates a reasonable risk of liability for breach of fiduciary duty under Title I of ERISA or under other applicable federal or state law. For purposes of determining the Annual Addition, the Committee will use cost basis to |
(4) | Annual Addition for Leveraged ESOP. For any Limitation Year for which no more than one‑third of the Employer Contributions used to repay principal and/or interest on an Acquisition Loan are allocated to HCEs, the Annual Addition will not include the Participant’s allocable share of Employer Contributions used to pay interest on an Acquisition Loan, if the Trustee makes the interest payment no later than the due date of the Company's federal income tax return, including extensions, for the fiscal year that is the same Limitation Year for which the Contribution was made. The Committee may in its discretion reallocate Employer Contributions to the extent necessary to avoid allocating more than one‑third of such Contributions to HCEs for any Limitation Year. For any Limitation Year when more than one‑third of the Employer Contributions are allocated to HCEs, each Participant's Annual Addition will be based on both principal and interest payments on any Acquisition Loan. |
(5) | Compensation, for purposes of the Code Section 415 limitations, includes only items includable in compensation under Treas. Regs. § 1.415(c)-2(b)(1), and excludes all items listed in Treas. Regs. § 1.415(c)-2(c) and therefore is safe harbor Simplified Compensation as defined in Treas. Regs. § 1.415(c)-2(d)(2). Such Compensation will not include amounts paid after a Participant’s Termination Date, except that Compensation will include amounts paid to a terminated Participant by the later of two and a half months after his/her Termination Date or the end of the Limitation Year that includes his/her Termination Date, for services performed during his/her Employment (including amounts paid for accrued vacation time, accrued sick time, bonuses, and deferred compensation), that constitute regular compensation that would have been paid if he/she had continued Employment. Effective January 1, 1998, Compensation also includes Employee Contributions (as defined in Code Section 402(g)(3)) and amounts contributed or deferred at the |
(6) | Controlled Group means the Controlled Group as defined in Article 1, except that 50% is substituted for 80% each place it appears. For purposes of the Code Section 415 Limit, all Controlled Group members are considered to be a single Employer. |
(7) | Excess Annual Addition means any Elective Contribution and/or Employer Contribution that exceeds the Participant's Maximum Annual Addition for the Limitation Year. |
(8) | Limitation Year means the Plan Year. |
(9) | Annual Addition Limit means, for each Participant during each Limitation Year, an amount that does not exceed the lesser of (A) $40,000 as indexed in $1,000 increments under Code Section 415, or (B) 100% of his/her Compensation. |
(e) | Correction of Excess Annual Additions. If the Annual Addition allocated to any Participant’s Account for any Plan Year exceeds his/her Maximum Annual Addition, the Employer will correct the Excess Annual Addition by following the applicable procedures that the Internal Revenue Service has prescribed under |
(f) | Combining of Plans. For purposes of applying the limitations described in this Section, all defined contribution plans that are qualified under Code Sections 401(a) and 501(a) and are maintained by Controlled Group members, will be treated as a single defined contribution plan. If any Controlled Group member maintains a qualified defined contribution plan for any Plan Year, the Committee will determine from which plan any Excess Annual Addition will be distributed. |
(g) | Compliance with Code Section 415. The intent of this Section is that the maximum permissible allocation under Code Section 415 is available to each Participant for each Limitation Year. If there is any discrepancy between this Section and Code Section 415, Code Section 415 will prevail. |
7.3 | Top-Heavy Rules. Effective January 1, 2012, the provisions of this Section 7.3 shall be applicable only if the Plan becomes “top-heavy” as defined below for any Plan Year. If the Plan becomes “top-heavy” for a Plan Year, the provisions of this Section 7.3 shall apply to the Plan effective as of the first day of such Plan Year and shall continue to apply to the Plan until the Plan ceases to be “top-heavy” or until the Plan is terminated or otherwise amended. |
(d) | Applicable Definitions. For purposes of this Section, the following terms have the meanings set forth below. |
(10) | Aggregation Group. The Required Aggregation Group includes each qualified plan maintained in the Controlled Group in which a Key Employee is a participant, and each other plan that enables any plan with Key Employee participants to meet the requirements of Code Section 401(a)(4) or 410, which plans are required to be aggregated for purposes of determining top-heavy status. The Permissive Aggregation Group includes the qualified plans of the Controlled Group that are required to be aggregated, plus such plans that are not part of the Required Aggregation Group but that satisfy the requirements of Code Sections |
(11) | Cumulative Account Balances means the Cumulative Account Balance of each Participant as of any Determination Date, which includes his: (A) Employer Contribution Account balance as of the most recent Valuation Date, adjusted by allocations of his/her proportionate share of Employer Contributions actually made and allocations of investment gains or losses made or due to be made under Section 4.1 of the main text of the Plan as of the Determination Date; (B) Employee Contribution Account balances as of the most recent Valuation Date, adjusted by allocations of investment gains or losses made or due to be made under Section 4.1 as of the Determination Date; and (C) distributions made during the one-year period ending on the Determination Date because of termination, death or Disability and any in-service withdrawals made during the five-year period ending on the Determination Date, but excluding distributions made to or on behalf of any Participant who has not performed service for an Employer during the one-year period ending on the Determination Date, and excluding distributions rolled over to qualified plans maintained by Controlled Group members that are reflected in Account balances. |
(12) | Determination Date means, for each Plan Year, the last day of the preceding Plan Year. |
(13) | Key Employee means any Employee or former Employee (including any deceased employee) who at any time during the Plan Year that includes the Determination Date was an officer of an Employer having annual Compensation greater than $130,000 (as adjusted under Code Section 416(i)(1) for Plan Years beginning after December 31, 2002), a 5-percent owner of an Employer, or a 1-percent owner of an Employer having annual Compensation greater than $150,000. No more than the lesser of 50 Employees or 10 percent of all Employees (at least 3) are treated as officers. |
(14) | Non‑Key Employee means an Employee who is not a Key Employee. |
(15) | Safe Harbor Contributions means the Matching Contributions made under this Plan, which are designed to comply with Code Sections 401(k)(12) and 401(m)(11) and to qualify the Plan for an exemption from nondiscrimination testing under Code Sections 401(k)(3) and 401(m)(2), i.e., the ADP and ACP tests. Effective January 1, 2011, the Plan is a Qualified Automatic Contribution Arrangement that also complies with Code Sections 401(k)(13) and 401(m)(12). |
(16) | Top-Heavy Plan Year means a Plan Year when the Plan is top-heavy. |
(e) | Determination of Top-Heavy Status. The Plan will be treated as top‑heavy for the tested Plan Year if either: (1) the sum of the Cumulative Account Balances of Participants who are Key Employees exceeds 60 percent of the sum of the Cumulative Account Balances of all Participants; or (2) the Plan is part of a Required Aggregation Group in which more than 60 percent of the sum of (A) aggregated Cumulative Account Balances, and (B) present values of accrued benefits under defined benefit plans, have been accumulated in favor of Key Employees (including distributions under any Employer-sponsored plan during the 1-year period ending on the determination date, or during the past 5-year period for any in-service withdrawals). The Plan will not be considered a top-heavy plan with respect to any Plan Year in which the Plan is part of a Required or Permissive Aggregation Group that is not top-heavy. |
(f) | Minimum Benefit During Top-Heavy Plan Years. Each Participant who is a Non-Key Employee in a Top-Heavy Plan Year and who also participates in a defined benefit plan maintained by a Controlled Group member, will receive the minimum benefit under the defined benefit plan required under Code Section 416(c)(1). Each Non-Key Employee Participant who does not participate in a defined benefit plan, and who has not terminated Employment as of the last day of the Plan Year, will receive an allocation of Employer Contributions in an amount not |
(g) | History of Top-Heavy Rules. The Plan was a safe harbor plan that accepted only Employee Contributions that meet the safe harbor requirements of Code Sections 401(k)(12) and 401(k)(13) and Matching Contributions that meet the safe harbor requirements of Code Sections 401(m)(11) and 401(m)(13) from January 1, 2002 through December 31, 2011 and the Plan is deemed to be in compliance with the Code Section 416 top-heavy rules effective January 1, 2002. The Committee has determined that the Plan was not top-heavy for any Plan Year before 2002. The Top-Heavy rules that applied before the Plan became safe harbor in the 2002 Plan Year, which have been revised to comply with the Economic Growth and Tax Reform and Reconciliation Act of 2001 are set forth in Addendum A. |
8.1 | Amendment. |
(h) | Procedure. The Company may amend the Plan from time to time. In addition, the Plan may be amended as follows: |
(11) | The Compensation Committee of the Board may amend or terminate the Plan or any portion of the Plan at any time. |
(12) | The Benefits Committee may amend the Plan, at any time except that the benefits Committee may not adopt any amendment that significantly impacts the Plan's liabilities, or terminates the Plan or any portion of the Plan, without the consent of the Compensation Committee. |
(13) | All amendments made by the Company, the Compensation Committee or the Benefits Committee are binding on all Employers. |
(14) | The Company, the Compensation Committee, and the Benefits Committee may delegate the right to make amendments to each other and to appropriate officers of the Company. |
(i) | Prohibited Amendments. Except as may be permissible under applicable law, no amendment will have the effect of any of the following: |
(8) | Exclusive Benefit. No amendment will permit any part of the Trust Fund to be used for purposes other than the exclusive benefit of Participants and beneficiaries and the payment of reasonable administrative expenses. |
(9) | Nonreversion. No amendment will cause any portion of the Trust Fund to be returned to any Employer, except as provided in Article 4 and Subsection 8.2(d). |
(10) | Account Balances. No amendment will eliminate or reduce any Participant’s Account balances determined as of the effective date of the amendment. |
(11) | Effect on Trustee. No amendment will materially increase the duties or responsibilities of the Trustee without its written consent. |
(12) | Amendment of Vesting Schedule. Any amendment to the vesting schedule is subject to Code Sections 411(a)(10) and 411(d)(6) and applicable regulations. |
(13) | Retroactive Amendments. Subject to the foregoing limitations, any amendment may be made retroactively which, in the judgment of the Committee is necessary or advisable, provided that such retroactive amendment does not deprive a Participant without his/her consent, of the right to receive benefits due under this Plan that have already vested and matured in such Participant, except as such modification or amendment may be permitted under applicable law. |
(j) | Limited to Active Participants. Except as specifically stated in the amendment, no amendment that improves benefits will apply to any Employee whose Termination Date occurred before the effective date of the amendment. |
(k) | Administrative Changes Without Plan Amendment. The Benefits Committee is authorized to make administrative changes to this Plan document that do not alter either the minimum qualification requirements or the Plan’s funding and expense provisions, without formal amendment to the Plan. The Benefits Committee may implement such changes by substituting pages in the Plan document with corrected pages. Administrative changes include, but are not limited to, corrections of typographical errors and similar errors, conforming provisions for administrative procedures to actual practice and changes in practice, and deleting or correcting language that fails to accurately reflect the |
8.2 | Termination of the Plan. |
(h) | Right to Terminate. The Company expects this Plan to be continued indefinitely but necessarily reserves the right, through action of the Board or the Compensation Committee, to terminate the Plan or any portion of the Plan at any time, and all contributions attributed to the terminated portion, and to terminate the participation of any Employer at any time. The Benefits Committee has sole and complete discretionary authority to determine when a partial termination of the Plan has occurred. |
(i) | Full Vesting. In the event of termination or partial termination of the Plan, the Account Balance of each affected Participant, to the extent funded, will become fully vested as of the termination date. For purposes of accelerated vesting, affected Participants will include only those who are in active Employment as of the Plan termination date. All non-vested Participants who terminated Employment before the Plan termination date and have incurred a One-Year Break will be considered to have received constructive (zero) cash-outs of their Matching Account balances. |
(j) | Provision for Benefits Upon Plan Termination. If the Plan terminates, the Finance Committee, after coordinating with the Benefits Committee, may, in its discretion, either (1) continue the Trust for so long as it considers advisable and so long as permitted by law, either through the existing Trust Agreement(s), or through successor funding media; or (2) terminate the Trust, and in that event, the Benefits Committee shall pay all expenses, and direct the payment of Account balances in the form of a lump-sum. Payment of benefits upon plan termination must comply with Subsection 6.1(e) |
(k) | Surplus Reversion. Any assets that remain after all benefits under the Plan have been allocated will be returned to the Company and/or the affected Employer(s), to the extent permitted by applicable law. |
(l) | Merger, Consolidation, Transfer. In the event of any merger or consolidation of |
9.1 | Allocation of Responsibilities. The Company and Employers, the Benefits Committee, the Finance Committee and other Fiduciaries of the Plan, have the powers and duties described below. |
(m) | Company. The Company may amend the Plan in accordance with Section 8.1, including terminating the Plan in whole or in part. The Company and each other Employer is responsible for making Contributions to the Plan in accordance with the terms of the Plan. |
(n) | Compensation Committee. The Compensation Committee may amend the Plan in accordance with Section 8.1, including terminating the Plan in whole or in part. |
(o) | Benefits Committee. The Benefits Committee serves as the Plan Administrator and has primary responsibility for the operation and administration of the Plan. In addition, the Benefits Committee may amend the Plan in accordance with Section 8.1. Without limiting the foregoing, the Benefits Committee has the following powers and duties: |
(3) | Rules. The Benefits Committee may from time to time in its sole discretion adopt rules, regulations and procedures necessary or helpful for the administration of the Plan and the performance of the Benefits Committee's duties under the Plan. |
(4) | Rights to Benefits. The Benefits Committee has sole and complete discretionary authority to determine the eligibility of any individual to participate in the Plan, the right of any Participant or beneficiary to receive benefits, and the amount of benefits to which any Participant or beneficiary may be entitled under the Plan, and to implement the claims procedure described in this Article 9. |
(5) | Payments. The Benefits Committee will direct the payment of Account balances from the Trust, or may appoint a disbursing agent, and will specify the payee, the amount and the conditions of each payment. The Benefits Committee will also comply (or transfer responsibility to the Trustee or other payee) with all applicable Federal and state income tax withholding requirements for distribution payments. |
(6) | Construction. The Benefits Committee has full discretion to, through itself or through its delegates, construe the terms of the Plan and to resolve ambiguities and omissions that may arise in the operation or administration of the Plan (including without limitation the resolution of any questions of fact, interpretation or application), to make equitable adjustments for any mistakes or errors made in the operation or administration of the Plan, and to make final decisions on all questions and disputes arising under the Plan. In all cases, the decision of the Benefits Committee is final and binding on all parties. |
(7) | Disclosure. The Benefits Committee will prepare and distribute to the Employees plan summaries, notices, statements and other information about the Plan in such manner as it deems proper and in compliance with applicable law. |
(8) | Employee Data. The Benefits Committee will request from the Employers complete information regarding the Compensation and Employment data for each Participant and other facts as it considers necessary from time to time, and is entitled to treat Employer records as conclusive with respect to such information. |
(9) | Individual Accounts. The Benefits Committee or its agent will maintain individual Accounts for each Participant, and will allocate Contributions, expenses, investment earnings/losses, withdrawals and distributions, to the proper Accounts. |
(10) | Elections and Applications. The recordkeeper or the Benefits Committee will provide electronic and/or paper forms for use by Participants in making contribution and investment elections, in-service withdrawals and loans, and applying for benefits. |
(11) | Safe Harbor Compliance. The Benefits Committee will monitor the Plan’s compliance with the applicable safe harbor requirements set forth in Code Sections 401(k)(12) and/or 401(k)(13) and 401(m)(11) and/or 401(m)(12) throughout each Plan Year, and will take any action it considers necessary or appropriate to comply with such requirements, so long as the Company intends to retain safe harbor status. For any Plan Year when the Plan is required to perform the ADP and ACP nondiscrimination tests, the Benefits Committee will monitor compliance. |
(12) | Reporting. The Benefits Committee will cause to be filed all reports required under ERISA, the Code and any other applicable federal law. |
(13) | Collection of Contributions. The Benefits Committee is responsible for monitoring whether contributions due and owing to the Plan are timely transmitted to the Trust and for collecting or directing the Trustee with respect to the collection of any contributions that are not timely transmitted within a reasonable time in accordance with applicable law. For avoidance of doubt, the Benefits Committee's responsibility hereunder relates solely to the collection of contributions from Employers only after a legally enforceable obligation to make the contribution arises under applicable law. |
(14) | Correction of Defects. The Benefits Committee will take reasonable steps to ensure that the Plan document is in compliance with all applicable laws as in effect from time to time, and to ensure that the Plan is administered as written. If the Benefits Committee discovers a material defect in the Plan's operation or administration, it will take reasonable |
(p) | Finance Committee. The Finance Committee serves as the named fiduciary responsible for managing the funding, cost, and financial aspects of the Plan, including the investment of Plan assets. Without limiting the foregoing, the Finance Committee has the following powers and duties: |
(6) | Trustee. The Finance Committee may from time to time discharge the Trustee and appoint one or more successor Trustees and enter into trust agreement(s) with such Trustee or Trustees. The Finance Committee is the Plan's named fiduciary for purposes of directing the Trustee with respect to all matters pertaining to the investment of the assets of the Plan. |
(7) | Investment Policy. The Finance Committee will establish, maintain and periodically review an investment policy for the Trust. |
(8) | Investment Managers. The Finance Committee may from time to time and at any time, appoint, approve the appointment of, remove, and/or replace, one or more investment managers to manage the assets of the Trust. |
(9) | Financial Statements. The Finance Committee will annually report the Plan's financial results to the Compensation Committee. |
(10) | Financial Audit. The Finance Committee will engage on behalf of the Plan an independent qualified public accountant to examine the financial statements and other records of the Plan for the purposes of an annual audit and opinion as to whether the financial statements and schedules in the Plan’s annual report are presented fairly in conformity with generally accepted accounting principles, unless such audit is otherwise not required. |
(q) | Trustee. The Trustee shall have the duties and responsibilities described in the Trust Agreement. The Committees shall give to the Trustee any order, direction, consent or advice required under the terms of the Trust Agreement, and the Trustee shall be entitled to rely on any instrument delivered to it and signed by the secretary or any authorized member of the Committees as evidencing the action of the Committees. |
(r) | Named Fiduciaries and Other Fiduciaries. The Benefits Committee, Finance Committee and the Trustee are named fiduciaries of the Plan. Other Fiduciaries of the Plan include investment managers and advisers appointed by the Finance Committee and such other persons or individuals to whom fiduciary responsibilities may be delegated pursuant to procedures described by this Article 9. The powers and duties of each Fiduciary hereunder, whether or not a named fiduciary, shall be limited to those specifically allocated or delegated to each of them under the terms of the Plan and Trust Agreement. It is expressly recognized that a Fiduciary may have certain powers and duties in a capacity other than as a Fiduciary and that these powers and duties are not fiduciary in nature and are not subject to the rules of fiduciary conduct under ERISA. |
9.2 | Committee Organization and Operation. |
(c) | Composition of Benefits Committee. The Benefits Committee shall be composed of at least three members, one of whom will be the Chairman. The Chairman of the Benefits Committee will be the Company's Chief Human Resources Officer; provided that, if there is no Chief Human Resources Officer or if the Company’s Chief Human Resources Officer is unwilling to serve, the Company's Chief Financial Officer will appoint an acting Benefits Committee Chairman (who may be the Chief Financial Officer). The Benefits Committee Chairman appoints the other members of the Committee and may from time to time remove a member and appoint one or more new members. Any member may resign by delivering his/her written resignation to the Benefits Committee Chairman. |
(d) | Composition of Finance Committee. The Finance Committee shall be |
(e) | Committee Procedures. Each Committee may, from time to time, adopt and amend rules and procedures governing its actions, including without limitation, rules and procedures governing meetings, voting and other actions. |
(f) | Additional Powers of the Committees. Each Committee shall have all powers necessary to enable it to properly perform the duties allocated to it under this Plan and the Trust Agreement. Each Committee has sole and complete discretionary authority in the exercise of all its powers and duties as to invoke the arbitrary-and-capricious standard of review as opposed to the de novo standard. |
(g) | Delegation of Duties. From time to time, either Committee may delegate or allocate, by a written instrument filed in its records, all or any part of its duties under the Plan or the Trust Agreement to one or more of its members (including a subcommittee), to employees of an Employer and to other agents as may be deemed advisable. The Committee may revoke such allocation or delegation of responsibilities in the same manner. In the exercise of such allocated or delegated responsibilities, any action of the person(s) to whom responsibilities are delegated or allocated shall have the same force and effect for all purposes hereunder as if such action had been taken by the Committee. The Committee shall not be liable for any acts or omissions of such person(s) to whom responsibilities are delegated or allocated. The person(s) to whom responsibilities have been allocated shall periodically report to the Committee concerning the discharge of the allocated responsibilities. The Committee and each individual member and any agent or delegate shall be fully protected when |
(h) | Appointment of Agents. Each Committee may appoint agents who may or may not be Committee members, as it considers necessary for the effective performance of its duties, and may delegate to the agents fiduciary duties and liabilities or ministerial or other powers and duties as it considers expedient or appropriate. The Committee will fix the compensation of the agents. Committee members and agents who are Employees receive no additional compensation for their services on a Committee. |
(i) | Reliance on Committee Documents. Any written memorandum signed by the secretary or any member of the Committee who has been authorized to act on behalf of the Committee shall have the same force and effect as a formal resolution adopted in open meeting. |
9.3 | General Rules for Fiduciaries. It is intended that the provisions of the Plan and Trust Agreement allocate to each Fiduciary the individual responsibilities for the prudent execution of the functions assigned to each such Fiduciary. None of the allocated responsibilities or any other responsibilities shall be shared by two or more Fiduciaries unless such sharing shall be provided by a specific provision in the Plan or the Trust Agreement. If any of the enumerated responsibilities of a Fiduciary are specifically waived by the Secretary of Labor, then such enumerated responsibilities shall also be deemed to be waived for the purposes of the Plan and Trust Agreement. Whenever one Fiduciary is required by the Plan or the Trust Agreement to follow the directions of another Fiduciary, the two Fiduciaries shall not be deemed to have been assigned a share of any responsibility, but the responsibility of the Fiduciary giving the directions shall be deemed to be his/her sole responsibility and the responsibility of the Fiduciary receiving those directions shall be to follow same insofar as such instructions on their face are proper under applicable law. |
(10) | serving in more than one Fiduciary capacity with respect to the Plan and Trust Agreement; |
(11) | receiving any benefit to which he/she may be entitled as a Participant or beneficiary in the Plan, so long as the benefit is computed and paid on a basis that is consistent with the terms of the Plan as applied to all other Participants and beneficiaries; or |
(12) | receiving any reasonable compensation for services rendered, or for the reimbursement of expenses properly and actually incurred in the performance of his/her duties with respect to the Plan, except that no person so serving who already receives full-time pay from an Employer shall receive compensation from the Plan, except for reimbursement of expenses properly and actually incurred. |
9.4 | Expenses. All expenses of the Plan and Trust shall be paid by the Plan, except to the extent the Employer(s) elect to pay such expenses. To the extent that the Employer(s) may pay any expenses of the Plan and Trust, the Employer(s) shall not be obligated to continue to pay such expenses. To the extent the Employer(s) do not pay such expenses, the Benefits Committee shall direct the Trustee with respect to payments from the Trust Fund. Nothing herein shall prohibit reimbursement of the Employers for any expenses incurred in connection with the administration of the Plan and the management of assets |
9.5 | Indemnification and Insurance. The Employers (to the extent permissible under law and consistent with their charters and bylaws) shall indemnify and hold harmless the Board of Directors, the Compensation Committee, each Committee and each individual member of the Board and any such committees and any Employer and any Employee authorized to act on behalf of any such entities and all persons formerly serving in such capacity ("Covered Persons") for any liability, loss, expense, assessment or other cost of any kind or description whatsoever, including legal fees and expense, which they actually incur for their acts and omissions, past, current or future, in the exercise of their duties and responsibilities with respect to the Plan including all expenses reasonably incurred in the defense of such acts or omissions. Unless paid by the Company or the Employers, the Benefits Committee may direct Plan funds to be applied, in accordance with ERISA section 410(b), to the purchase of lawful insurance covering the fiduciary obligations of persons who are Fiduciaries respecting the Plan and/or the Trust Fund, and such Fiduciaries may purchase, with funds other than Plan funds, waivers of subrogation. |
9.6 | Claims Procedure. |
(f) | Application for Benefits. Each Participant, or beneficiary, must submit a written application for payment of Plan benefits, with such documentation as the Benefits Committee considers necessary to process the application. The Benefits Committee may adopt forms and require that the forms be used to apply for benefits. The Plan will not treat as a claim any oral or electronic request for information or for a re-determination of benefits. The Benefits Committee reserves the right to withhold payment of any request for the payment of benefits if conflicting claims have been asserted. The Trustee will not pay any benefit under the Plan until the Benefits Committee has determined, in its sole and complete discretion, that the claimant is entitled to the benefit. |
(g) | Initiating a Claim. If a Participant or beneficiary believes he/she is entitled to rights or benefits that he/she has not received, in whole or in part, he/she may file a written claim with the Benefits Committee. If the Benefits Committee adopts claims forms, a claim must be filed on the forms adopted by the Benefits Committee; otherwise, a written request to the Benefits Committee is sufficient. The claim should set forth the sufficient facts to support the asserted claim and should include any documentation that will enable the Benefits Committee to make its decision. A claim may be filed by the legal representative of a Participant or beneficiary. |
(h) | Decision on Claim. Within 90 days after receipt of a written claim and supporting information, the Benefits Committee will issue a written decision. If special circumstances require an extension of time, the Benefits Committee will furnish the claimant written notice of the extension (up to 90 additional days), and an explanation why the extension is necessary, before the end of the initial 90-day period. If the claim is denied in whole or in part, the notice will set forth (1) specific reasons for the denial and references to Plan provisions upon which the decision is based; (2) a description of any additional information necessary to process the claim and why it is necessary; and (3) an explanation of the Plan's appeals procedure and deadlines. If the claimant does not receive a decision within the 90 day period (180 day period if an extension is necessary), the claimant may consider his/her claim denied and proceed with the appeal |
(i) | Appeal. The claimant and/or his/her representative may appeal a denied claim by sending a written request for review to the Benefits Committee within 60 days after receiving notice of the denial. The claimant or his/her representative may submit a statement of issues and supporting arguments and any documentation he/she has to support the claim. The claimant may inspect all documents that are reasonably pertinent to his/her case, upon reasonable notice to the Benefits Committee, but may not inspect confidential information concerning any other person. The Benefits Committee may set the matter for oral hearing and give the claimant reasonable notice of the time and place. The Benefits Committee will proceed promptly to resolve all issues and will issue a written decision to the claimant within 60 days after receipt of the written appeal request. If special circumstances require an extension of time, the Benefits Committee will notify the claimant or his/her representative in writing before the end of the 60 day period that an extension (up to an additional 60 days) is needed and the reasons for the extension. The Benefits Committee will send written notice of its decision on the appeal. If the appeal is denied, the Benefits Committee’s notice will state the specific reasons for the denial and refer to specific supporting provisions of the Plan, explain the claimant’s right to receive all documents relevant to the claim free of charge and describe the claimant’s right to seek judicial review of the denial. |
(j) | Special Time Period for Benefits Committee Meetings. Notwithstanding Subsection 9.6(c), during periods when the Benefits Committee holds regularly scheduled meetings at least quarterly, and a claimant’s request for appeal is received less than 30 days before a scheduled meeting, the Benefits Committee may render its decision on the appeal during the second regularly scheduled meeting after receiving the request for appeal. However, if an appeal hearing is held, the Benefits Committee may render its decision during the third regularly scheduled meeting after receiving the request for appeal. If the Benefits Committee invokes the extensions described in this Subsection (d), it will issue written notice with an explanation of the rules in this Subsection and the date |
(k) | Exhaustion of Administrative Remedies. Anyone claiming rights or benefits under this Plan must exhaust the administrative remedies under the Plan’s claims procedures before taking action, including but not limited to, pursuing any remedies available under ERISA Section 502(a) in any other forum. |
(l) | Time Limit on Legal Action. Any suit or legal action initiated by a claimant under the Plan must be brought by the claimant no later than one (1) year following a final decision on the claim for benefits under these claims procedures. The one (1)-year statute of limitations on suits for benefits shall apply in any forum where a claimant initiates such suit or legal action. If a civil action is not filed within this one (1)-year period, the claimant's benefit claim will be deemed permanently waived and abandoned, and the claimant will be precluded from reasserting it. |
9.7 | Notice. |
(d) | Communications From Participants Or Beneficiaries. Any notice, election, application, instruction, designation or other form of communication required to be given or submitted by any Employee, Participant, or beneficiary must be in the form and delivery method prescribed from time to time by the Benefits Committee and is deemed to be duly given only upon actual receipt thereof. |
(e) | Communications To Participants and Beneficiaries. Any notice, statement, report and other communication to any Employee, Participant, or beneficiary required or permitted by the Plan will be deemed to have been duly given when delivered by hand to such person, mailed to such person at the address last appearing on records maintained by the Plan or Employer, or delivered electronically to such person. |
(f) | Electronic Administration. In its rules and procedures for the administration of |
11.1 | Headings. The headings and subheadings in this Plan have been inserted for convenient reference, and to the extent any heading or subheading conflicts with the text, the text will govern. |
11.2 | Construction. |
11.3 | Continued Qualification for Tax-Exempt Status. Notwithstanding any other provision of the Plan, the amendment and restatement of the Plan is adopted on the condition that it will be approved by the Internal Revenue Service as meeting the requirements of the Code and ERISA for continued tax-exempt status, and if continued qualification is denied and cannot be obtained by revisions satisfactory to the Committee, the Committee may delete all or any part of the amendment and restatement, or may declare it null and void in its entirety. |
11.4 | Nonalienation. No benefits payable under the Plan are subject to the claim or legal process of any creditor of any Participant or beneficiary, and no Participant or beneficiary will alienate, transfer, anticipate or assign any benefits under the Plan, except that distributions will be made pursuant to (a) qualified domestic relations orders issued in accordance with Code Section 414(p), (b) judgments resulting from federal tax assessments, (c) agreements between a Participant or beneficiary and an Employer under Treasury Regulations Section 1.401(a)(13)(e) for the use of all or part of his benefits under the Plan to repay his indebtedness to the Employer, which amount of benefits will be paid in a lump sum as soon as practicable after the agreement is executed and will be subject to the withholding requirements set forth in Section 10.7; and (d) as otherwise required by law. The Committee will offset the Account balances of any Participant or beneficiary if required under a judgment of conviction for a crime involving the Plan, or under a civil judgment or a consent order, or settlement agreement with a governmental agency, in an action brought in connection with a violation of fiduciary duty under the Plan. |
11.5 | No Employment Rights. Participation in the Plan will not give any Employee the right to be retained in the employ of any Employer, or upon termination any right or interest in the Plan except as provided in the Plan. |
11.6 | No Enlargement of Rights. No person will have any right to or interest in any portion of the Plan except as specifically provided in the Plan. |
11.7 | Withholding for Taxes. Payments under the Plan are subject to withholding for income taxes as required by law. The Committee will withhold 20 percent federal income tax from each eligible rollover distribution over $200 that is not directly rolled over into another qualified retirement plan or individual retirement account under Section 4.5. The Committee will withhold the amount or percentage elected by the Participant or beneficiary for any payment that is not an eligible rollover distribution. |
11.8 | Suspension of Transaction. The Committee reserves the right to adopt rules and procedures that in its discretion it determines to be reasonably necessary: |
(a) | Blackout Periods. A blackout period is a period for which any ability that is otherwise available under the Plan, for Participants or beneficiaries to direct or diversify the investments in their Accounts, or to obtain loans, withdrawals or distributions, is temporarily suspended, limited, or restricted for any period longer than three consecutive business days. If a period of suspension of Participant rights is a blackout period, the Committee will provide advance notice to the affected Participants in compliance with DOL Regs. Section 2520.101-3(d)(1). The Committee may impose a reasonable period of suspension, restriction, or limitation on such rights, to accommodate changes in recordkeepers, trustees, investment managers or advisors, and/or investment funds. |
(b) | Investment Elections. In addition to the restrictions on fund transfers described in Article 4, the Committee will require Participants and beneficiaries to comply with restrictions imposed by law or by third parties, such as stock exchanges, investment managers, fund managers or the Securities Exchange Commission or other regulatory body. The Committee may establish rules requiring Company officers who are subject to Rule 16b of Section 16 of the Securities Exchange Act |
ARTICLE 1 | DEFINITIONS |
A-1.1 | Accounts A-1 |
A-1.4 | Annual Addition Limit A-2 |
A-1.13 | Compensation A-2 |
(a) | Contributions A-2 |
(c) | Statutory Limit A-3 |
A-1.14 | Contributions A-3 |
A-1.22 | Employee A-3 |
A-1.33 | ESOP A-3 |
A-1.49 | Plan A-3 |
A-1.64 | Spouse A-4 |
ARTICLE 2 | ELIGIBILITY |
A-2.1 | Eligibility A-5 |
(a) | Plan Years 1984 – 2001 A-5 |
(b) | Plan Years 2002 – March 31, 2007 A-5 |
(c) | April 1, 2007 – Present A-5 |
A-2.2 | Participation Upon Reemployment A-5 |
(a) | Plan Years 1984 – 2001 A-5 |
(b) | Plan Years 2002 – Present A-6 |
A-2.4 | Adoption of the Plan by a Controlled Group Member A-6 |
(a) | Matching Contribution A-8 |
(b) | Vesting and Forfeiture A-9 |
ARTICLE 4 | ALLOCATIONS |
(c) | Dividends on Employer Stock for the 2001 Plan Year A-10 |
(a) | Events Creating Immediate and Heavy Financial Need |
(a) | Payment to a Participant A-15 |
(b) | Annuities A-15 |
(a) | Applicable Definitions A-17 |
(b) | Determination of Top-Heavy Status A-19 |
(c) | Minimum Benefit During Top-Heavy Plan Years A-19 |
(a) | ADP Test A-20 |
(b) | ACP Test A-21 |
(c) | Correction of Excess ADP Contributions and ACP |
(d) | Excess Annual Addition A-23 |
(e) | Corrective Contribution A-24 |
ARTICLE 9 | ADMINISTRATION |
A-1.1 | Accounts. |
(a) | Employer Contribution Accounts |
(1) | Matching Account Investment. See Subsection A-3.2(a) for Matching Contribution Amounts. |
(B) Plan Years 2005 – 2006. From January 1, 2005 through December 31 – 2006, the Plan automatically invested Matching Contributions in the Employer Stock Fund. The Plan permitted Participants to elect to diversify up to 50% of their Matching Contributions allocated after 2004, and to elect to diversify up to 100% of their Matching Contributions allocated through 2004. |
(C) Plan Years 2007 – 2008. From January 1, 2007 through December 31, 2008, the Plan invested Matching Contributions in the Employer Stock Fund, and permitted Participants at any time to elect to diversify the investment of their Matching Account balances into funds other than the Employer Stock Fund. |
(D) Plan Years 2009 – Present. Effective January 1, 2009, the Plan invests Matching Contributions according to each Participant’s investment election in effect for his/her Elective Deferrals, unless he/she elects another investment option. |
A-1.4 | Annual Addition Limit. For Plan Years 1984 through 2001, the limit on Annual Additions was the lesser of $30,000 or 100 percent of each Participant’s Compensation for the Limitation Year. Effective January 1, 2002, the dollar limit on Annual Additions was increased to $40,000 (as indexed in $1,000 increments under Code Section 415). See Subsection 7.2(a). |
A-1.13 | Compensation. |
(a) | Contributions. Before January 1, 2006, for purposes of calculating Plan contributions, Compensation did not include non-deferred payments under the SunTrust Management Incentive Plan (MIP) or any successor plan. Before January 1, 2008, Compensation did not include trailing pay as described in the main text of the Plan. |
(c) | Statutory Limit. For Plan Years 1989 through 1993, each Participant's Compensation taken into account for all purposes under the Plan was limited to $200,000 (as indexed under Code Section 401(a)(17)). For Plan Years 1994 through 2001, each Participant's Compensation taken into account for all purposes under the Plan was limited to $150,000 (as indexed in $10,000 increments under Code Section 401(a)(17)). Effective January 1, 2002, EGTRRA increased the limit to $200,000 with indexing in $5,000 increments. |
(1) | Elective Deferrals. See Subsection A-3.1(a) for the whole percentages of Compensation that the Plan permitted Participants to elect for their Elective Contributions for each Plan Year from 1984 through 2010. Effective January 1, 2011, the Plan allows Participants to make Elective Contributions and/or Roth Contributions in whole percentages between 1% and 50% of Compensation for each payroll period in each Plan Year. |
A-1.22 | Employee. Before January 1, 2008, common-law employees who were classified as prime-time or temporary were not covered Employees. |
A-1.33 | ESOP. For Plan Years 1984 through 2006, the entire Plan was an employee stock ownership plan under Code Sections 401(a) and 4975(e)(7) (ESOP), with Code Section 40l(k) features. As an ESOP, the Plan was designed to invest primarily in |
A-1.49 | Plan. Before January 1, 2007, “Plan” was defined to mean the SunTrust Banks, Inc. 401(k) Plan as amended from time to time. Effective January 1, 2007, the Plan was converted from an ESOP to a Code Section 401(k) Plan with the ESOP (the Employer Stock Fund) as an integral part, which is commonly called a KSOP. |
A-1.64 | Spouse. For Plan Years 1984 through June 30, 2001, the Plan applied a one-year marriage requirement to determine whether a Participant’s spouse was entitled to statutory spousal rights. The Plan rescinded the requirement effective July 1, 2001. |
A-1.70 | Valuation Date. For Plan Years 1984 through July 1, 1997 when the Plan adopted daily valuation, the Valuation Date was the last day of each calendar month. |
A-2.1 | Eligibility. |
(a) | Plan Years 1984 – 2001. From July 1, 1984 through December 31, 2001, Employees were permitted to begin participating in the Plan as of the first day of the month after they had both reached age 21 and completed one Year of Service. From July 1, 1984 through December 31, 2001, the Plan did not allocate Matching Contributions to any Participant until he/she had completed 12 months of Employment. |
(b) | Plan Years 2002 – March 31, 2007. From January 1, 2002 through March 31, 2007, the Plan permitted each new Employee to begin participating in the Plan by making Employee Contributions and receiving allocations of Matching (Safe Harbor) Contributions, as of the first day of the second calendar month after his/her Employment Date. |
(c) | April 1, 2007 – Present. Effective April 1, 2007, new Employees are automatically enrolled as of the first day of the second calendar month after their Employment Date. Effective January 1, 2011, all employees who do not have an affirmative election in effect will be automatically enrolled. |
A-2.2 | Participation Upon Reemployment. |
(a) | Plan Years 1984 - 2001. From July 1, 1984 through December 31, 2001, the Plan permitted a Participant who terminated and was rehired, to resume participation as of the first day of any month following the date he/she resumed Employment or as soon thereafter as administratively practicable. For each rehired Participant whose initial Employment Date preceded August 1, 1998, the Plan treated him/her as if he/she had completed 12 months of pre-break Employment and was eligible to receive Matching Contributions when he/she resumed Participation in the Plan. Each rehired Participant whose initial Employment Date was between August 1, |
(b) | Plan Years 2002 – Present. Effective January 1, 2002, the Plan does not require a waiting period for Matching Contributions for new hires or for rehires. |
A-2.4 | Adoption of the Plan by a Controlled Group Member. Before January 1, 2002, a Controlled Group member could adopt the Plan by appropriate action of its board of directors or authorized officer(s) or representative(s), subject to approval of the Board and the Committee. Effective January 1, 2002, a Controlled Group member is treated as an Employer when it is shown on the Company’s master payroll books and records as an Affiliate that can make contributions, or for which contributions can be made, on behalf of the Affiliate’s Employees to provide coverage under employee benefit plans sponsored by the Company, unless excluded under the main text of Plan Section 2.4. |
(d) | Catch-Up Contributions. The Plan has permitted eligible Participants to make Catch-Up Contributions since January 1, 2002. During the 2002 Plan Year, Eligible Participants could elect to make Catch-Up Contributions commencing after they reached their maximum limit on regular Elective Contributions for the year. Beginning January 1, 2003, after an eligible Participant has elected to make Catch-Up Contributions, the election remains in effect until he/she changes or revokes it, and the Plan automatically converts his/her Elective Contributions to Catch-Up Contributions after he/she reaches the Code Section 402(g) dollar limit or the Plan limit for each Plan Year. |
(1) | Annual Catch-Up Contribution Limit and Pro-Rated Limit. The following Catch-Up Contribution limits were in effect for the following calendar years: 2002 - $1,000; 2003 - $2,000; 2004 - $3,000; 2005 - $4,000; 2006 - $5,000. For years after 2006, the annual limit is indexed to the CPI in $500 increments under Code Section 414(v). During the 2002 Plan Year only, |
A-3.2 | Employer Matching Contributions. |
(a) | Matching Contribution. |
(1) | Plan Years 1984 – 2001. From July 1, 1984 through December 31, The Compensation Committee determined the amount of the Matching Contribution for each Plan Year. The Compensation Committee developed a practice of causing the Employers to make annual Matching Contributions in an amount equal to 100 percent of the first 3 percent, and 50 percent of the next 2 percent, of Compensation contributed by each Participant for each payroll period during each Plan Year, which practice remained in effect through the 2001 Plan Year. From July 1, 1984 through December 31, 2001, the Plan did not allocate Matching Contributions to any Participant until he/she had completed 12 months of Employment. |
(2) | Plan Years 2002 – 2007. From January 1, 2002 through December 31, 2007, the Employers made safe-harbor contributions in an amount equal to 100% of the Compensation contributed by each Participant up to 4 percent, for each payroll period during the Plan Year. The Employers have never made Matching Contributions for Catch-Up Contributions. |
(3) | Plan Years 2008 – 2011. From January 1, 2008 through December 31, 2011, the Employers make safe-harbor contributions in an amount equal to 100% of the Compensation contributed by each Participant up to 5 percent, for each payroll period during the Plan Year. |
(b) | Vesting and Forfeiture. |
(1) | Plan Years 1984 – 1996. From July 1, 1984 through December 1996, the Plan used the elapsed-time method of counting service, and used a five-year cliff vesting schedule. The Plan complied with the break-in-service rules set forth in Code Sections 410 and 411. |
(2) | Plan Years 1997 – 2010. For Plan Years 1997 through 2010, the Plan fully vested all Employer Contribution Accounts, including Accounts of terminated Participants who had not had a five-year break in service. |
(3) | Plan Years After 2010. Each Employee whose Employment Date is after December 31, 2010, or who resumes Employment after that date if not previously vested, will be 100% vested in his/her Matching Account balance on the earlier of the date he/she has completed two Years of Vesting Service, or has been determined to be totally and permanently disabled for |
A-4.1 | Adjustments to Account Balances. |
(c) | Dividends on Employer Stock for the 2001 Plan Year. The Committee applied special election rules to the extent necessary to maximize the Company’s deduction for dividends declared during 2001, as permitted under IRS Notice 2002-2. |
A-4.2 | Investments. |
(1) | Initial Election. See Subsection (h) Diversification Elections. |
(2) | Failure to Elect. From July 1, 1984 through March 31, 2007, the Plan invested the Employee Contribution Account balances of any Participant who failed to timely complete his/her election, in a fund that invested primarily in fixed-income investments with relatively short average maturities. Effective April 1, 2007, the Plan invests 100% of the allocations to such Participant’s Employee Contribution Accounts in a fund that meets the statutory requirements for a qualified default investment alternative (QDIA) under ERISA Section 404(c), i.e., life-cycle funds, balanced funds, and/or professionally managed funds. Effective January 1, 2009, the Plan also invests allocations to such Participant’s Matching Contribution Account in the same QDIA fund that holds his/her other Account balances. |
(1) | Plan Years 1984 - June 30, 1997. Beginning on the July 1, 1984 Effective Date of the Plan, the Plan invested Matching Contribution Account balances only in the Employer Stock Fund until the first day of the month in which the Participant reached age 55, at which time he/she could elect to diversify his/her investment in the Employer Stock Fund. From January 1, 1987 (the effective date of the Tax Reform Act of 1986) through June 30, 1997, the Plan permitted Participants to elect to diversify up to 50% their Matching Contributions in the Employer Stock Fund beginning the first day of the month in which they reached age 55. |
(2) | Plan Years July 1, 1997 – 2004. From July 1, 1997 through December 31, 2004, the Plan permitted Participants to elect to diversify up to 100% of their Matching Contribution in the Employer Stock Fund beginning the first day of the month in which they reached age 55. |
(3) | Plan Years 2005 – 2006. From January 1, 2005 through December 31, 2006, the Plan permitted all Participants, regardless of age, to diversify up to 50% of their Matching Contributions allocated to their Accounts after December 31, 2004. As of the first day of the month after reaching age 55, participants could diversify up to 100%. |
(4) | Plan Years 2007 –2008. From January 1, 2007 through December 31, 2008 the Plan invested Matching Contributions in the Employer Stock Fund. Participants had unrestricted diversification rights and at any time could elect to invest their Matching Contributions in another fund. |
(5) | Plan Years 2009 – Present. Beginning January 1, 2009, the Plan invests each Participant’s Matching Contributions according to the investment election he/she has in effect for his/her Employee Contributions, unless he/she affirmatively elect to invest his/her Matching Contributions in one or more of the other investment options available under the Plan. Participants may make separate elections for their Matching Contributions. |
A-5.1 | Withdrawals Without a Hardship. |
(a) | Types of In-Service Withdrawals. |
(5) | Required In-Service Withdrawals. Before the 1997 calendar year, the Plan paid required annual amounts to each active Participant who had reached his/her age 70-1/2 required beginning date under Code Section 401(a)(9). The Plan ceased this practice in 1997, as permitted by the Small Business Jobs Protection Act of 1996. The Plan is not required to grandfather the practice because it permits as-needed withdrawals after Participants reach age 59-1/2. |
A-5.2 | Hardship Withdrawals. For a Participant who received a hardship withdrawal before January 1, 2002, the Plan imposed a 12-month suspension on Elective Contributions. The Code Section 402(g) Dollar Limit described in Section 7.1 of the main text of the Plan for the calendar year following the calendar year in which he/she received his/her hardship withdrawal, was reduced by the amount of the Elective Contributions he/she made during the calendar year in which he/she received his/her hardship withdrawal. The Dollar Limit in effect for the second calendar year applied to the two calendar years as if they were a single year. Effective January 1, 2002, the Plan no longer applies the Dollar Limit across two Plan Years, and the suspension period is six months. |
(b) | Events Creating Immediate and Heavy Financial Need (Events Test). Before January 1, 2006, a hardship withdrawal had to be necessitated by one of the safe-harbor events listed in Section 5.2 of the main text of the Plan, or by a facts-and-circumstances event. Effective January 1, 2006, the Plan added two new safe-harbor events (burial or funeral expenses and home repair expenses). |
A-5.5 | No In-service Withdrawal from Money Purchase Accounts. Effective March 12, 1995, the Plan has not and will not permit any Participant or beneficiary to make any withdrawal from any balances that have been transferred into this Plan from any money purchase balances in any other plan, or from the post-transfer earnings on those balances, before he/she has had a payment event as described in Section 6.1 of the main text of the Plan. |
A-6.4 | Timing of Payment. . . . |
(a) | Payment to a Participant. |
(1) | Plan Years 1985 - 1997. From January 1, 1985 (the effective date of Code section 411(a)(11), the aggregate Account balance threshold for automatic cash-outs was $3,500. |
(2) | Plan Years 1998 – March 27, 2005. From January 1, 1998 through March 27, 2005, the aggregate Account balance threshold for automatic cash-outs was $5,000. |
(3) | March 28, 2005 – Present. Effective March 28, 2005, the aggregate Account balance threshold for automatic cash-outs is $1,000. |
A-6.5 | Forms of Payment. |
A-6.7 | Required Minimum Distribution Rules. For calendar years before 2003, the Plan complied with Treas. Regs. § 1.401(a)(9) as in effect before the 2002 revisions. |
A-6.8 | Beneficiary Designation. From January 1, 2002 through December 31, 2003, to be treated as a survivor, an individual beneficiary had to survive the Participant by a period no less than 30 days. |
A-6.11 | Direct Rollover of Eligible Distributions . Before January 1, 2002, a surviving Spouse could not roll over a distribution to an eligible retirement plan. Code Section 402(c)(8)(B) was amended effective January 1, 2002 to define an “eligible retirement plan” to include Code Section 403(b) plans and Code Section 457(b) governmental plans. Before January 1, 2007, non-Spouse alternate payees or other beneficiaries could not roll over distributions from this Plan. Before January 1, 2007, the Plan did not permit direct rollovers from After-Tax Accounts. |
A-7.1 | Excess 402(g) Contributions. The Plan distributed gap period income with Excess 402(g) Contributions for the 2007 Plan Year. |
A-7.2 | Code Section 415 Limitation. |
A-7.3 | Top-Heavy Rules. Before the Plan became a safe harbor plan under Code Sections 401(k)(12) and 401(m)(11) on January 1, 2002, the Plan was required to prove that it was not top-heavy under Code Section 416. Effective for the 2002 Plan Year, the Plan is exempt from the top-heavy rules as a safe harbor plan. The Committee has determined that the Plan was not top-heavy for any Plan Year before 2002. The rules in this Section applied before the Plan became safe harbor in the 2002 Plan Year. |
(a) | Applicable Definitions. For purposes of this Section, the following terms have the meanings set forth below. |
(1) | Aggregation Group. The Required Aggregation Group includes each qualified plan maintained in the Controlled Group in which a Key Employee is a participant, and each other plan that enables any plan with Key Employee participants to meet the requirements of Code Section 401(a)(4) or 410, which plans are required to be aggregated for purposes of determining top‑heavy status. The Permissive Aggregation Group includes the qualified plans of the Controlled Group that are required to be aggregated, plus such plans that are not part of the Required Aggregation Group but that satisfy the requirements of Code Sections 401(a)(4) and 410 when considered together with the Required Aggregation Group. |
(2) | Cumulative Account Balances means the Cumulative Account Balance of each Participant as of any Determination Date, which includes his: (A) Employer Contribution Account balance as of the most recent Valuation Date, adjusted by allocations of his/her proportionate share of Employer Contributions actually made and allocations of investment gains or losses made or due to be made under Section 4.1 of the main text of the Plan as of the Determination Date; (B) Employee Contribution Account balances as of the most recent Valuation Date, adjusted by allocations of investment gains or losses made or due to be made under Section 4.1 as of the Determination Date; and (C) distributions made during the one-year period ending on the Determination Date because of termination, death or Disability and any in-service withdrawals made during the five-year period ending on the Determination Date, but excluding distributions made to or on behalf of any Participant who has not performed service for an Employer during the one-year period ending on the Determination Date, and excluding distributions rolled over to qualified plans maintained by Controlled Group members that are reflected in Account balances. Before 2002, the lookback period was 5 years for all distributions. |
(3) | Determination Date means, for each Plan Year, the last day of the preceding Plan Year. |
(4) | Key Employee means any Employee or former Employee (including any deceased employee) who at any time during the Plan Year that includes the Determination Date was an officer of an Employer having annual Compensation greater than $130,000 (as adjusted under Code Section 416(i)(1) for Plan Years beginning after December 31, 2002), a 5-percent owner of an Employer, or a 1-percent owner of an Employer having annual Compensation greater than $150,000. No more than the lesser of 50 Employees or 10 percent of all Employees (at least 3) are treated as officers. |
(a) | Determination of Top-Heavy Status. The Plan will be treated as top‑heavy for the tested Plan Year if either: (1) the sum of the Cumulative Account Balances of Participants who are Key Employees exceeds 60 percent of the sum of the Cumulative Account Balances of all Participants; or (2) the Plan is part of a Required Aggregation Group in which more than 60 percent of the sum of (A) aggregated Cumulative Account Balances, and (B) present values of accrued benefits under defined benefit plans, have been accumulated in favor of Key Employees (including distributions under any Employer-sponsored plan during the 1-year period ending on the determination date, or during the past 5-year period for any in-service withdrawals). The Plan will not be considered a top-heavy plan with respect to any Plan Year in which the Plan is part of a Required or Permissive Aggregation Group that is not top-heavy. |
(b) | Minimum Benefit During Top-Heavy Plan Years. Each Participant who is a Non-Key Employee in a Top-Heavy Plan Year and who also participates in a defined benefit plan maintained by a Controlled Group member, will receive the minimum benefit under the defined benefit plan required under Code Section 416(c)(1). Each Non-Key Employee Participant who does not participate in a defined benefit plan, and who has not terminated Employment as of the last day of the Plan Year, will receive an allocation of Employer Contributions in an amount not |
A-7.4 | Nondiscrimination (ADP and ACP) Tests. Before January 1, 2002, the Plan was required to satisfy the ADP and ACP Tests for each Plan Year. Effective in 2002, the Plan meets the safe harbor requirements under Code Sections 401(k)(12) and 401(m)(11) and is exempt from nondiscrimination testing. For each Plan Year before 2002 when the Plan was redesigned as safe harbor, the Committee ensured that the Plan met the nondiscrimination tests in that it (a) limited or directed the Trustee to refund Employee Contributions for HCEs to the extent necessary to meet the ADP Test, and (b) limited Matching Contributions for HCEs to the extent necessary to meet the ACP Test. Alternatively, the Plan authorized the Committee to direct the Company to make the Corrective Contributions described in Subsection (e). Beginning in 1999, the Plan excluded from the ADP and ACP Tests any NCE who had less than one Year of Service and was younger than age 21. The Plan did not use the lookback year testing method. If the Plan should lose safe harbor status for any Plan Year, these rules will again apply for that Plan Year, as updated to comply with applicable laws in effect at that time. |
(a) | ADP Test. The Plan conducted the ADP Test for each Plan Year to determine whether the Actual Deferral Percentage (ADP) for the HCE Group and the ADP for the NCE Group for each Plan Year were within the maximum disparity described in Subsection (a)(3). The Plan conducted the ADP Test by the following steps: |
(1) | Actual Deferral Ratio (ADR). The Committee determined the ratio of the sum of each Participant's Employee Contributions and any of his/her Employer Contributions used in the ADP Test, to his/her Compensation. |
(2) | Average Deferral Percentage (ADP). The ADP for the HCE Group is the average of their individual ADRs, calculated separately for each HCE in the Group. The ADP for the NCE Group is the average of their individual ADRs, calculated separately for each NCE in the Group. |
(3) | Maximum Disparity. In no Plan Year did the Average Deferral Percent-age of the HCE Group exceed the greater of: (A) the ADP of the NCE Group multiplied by 1.25; or (B) the lesser of the ADP of the NCE Group plus 2 percentage points, or the ADP of the NCE Group multiplied by 2. |
(b) | ACP Test. The Plan conducted the ACP Test to determine whether the Actual Contribution Percentage (ACP) for the HCE Group and the ACP for the NCE Group for each Plan Year were within the maximum disparity permitted under Subsection (b)(3). The Plan conducted the ACP Test by the following steps: |
(1) | Actual Contribution Ratio (ACR). The Committee determined the ratio of each Participant’s allocation of Matching Contributions and any Corrective Contributions made to satisfy the ACP Test, to his/her Compensation. |
(2) | Average Contribution Percentage (ACP). The ACP for the HCE Group is the average of their individual ACRs, calculated separately for each HCE in the Group. The ACP for the NCE Group is the average of their individual ACRs, calculated separately for each NCE in the Group. |
(3) | Maximum Disparity. In no Plan Year did the Average Contribution Percentage of the HCE Group exceed the greater of: (A) the ACP of the NCE Group multiplied by 1.25; or (B) the lesser of the ACP of the NCE Group plus 2 percentage points, or the ACP of the NCE Group multiplied by 2. |
(c) | Correction of Excess ADP Contributions and Excess ACP Contributions. Before the 2002 Plan Year, the Committee corrected Excess ADP Contributions |
(1) | Correction before Excess Contributions are Made. If the Committee determined, before Excess ADP Contributions and/or Excess ACP Contributions were made, that the Plan would fail to meet either the ADP Test or the ACP Test or both tests for that Plan Year, it either made the Corrective Contribution described in Subsection (e) or limited the Employee Contributions and/or the Matching Contributions for the HCE Group by such |
(2) | Correction after Excess Contributions are Made. If the Committee determined, after the Plan had already received Excess ADP Contributions and/or Excess ACP Contributions, that the Plan would fail to meet either the ADP Test or the ACP Test or both tests for that Plan Year, it selected one or more of the following methods to cure the failure: (A) directed that the Corrective Contribution described in Subsection 3.2(c) be made, or (B) refunded, distributed and/or forfeited the excess amounts and attributable earnings for affected HCEs. The Committee effected the curative method no later than the end of the Plan Year following the Plan Year for which the excess amount was contributed, and if practicable by March 15 of that Plan Year. |
(A) | Refund of Excess ADP Contributions. If the Committee elected to correct the excess by making refunds, it determined the dollar amount of the excess to be refunded by using the ratio leveling method, and then refunded Excess ADP Contributions to HCEs in the order of the dollar amount contributed, beginning with the HCE with the highest dollar amount and continued the refunds, if necessary, until all HCEs had the same dollar amount, and then reduced those dollar amounts equally. The Committee first refunded unmatched Employee Contributions to each affected HCE, and then refunded matched Employee Contributions. |
(B) | Forfeiture of Excess ACP Contributions. For any Plan Year, the Committee forfeited Matching Contributions attributable to refunded Employee Contributions. To the extent that forfeitures (if any) were not sufficient to cure failure of the ACP Test, the Committee distributed Excess ACP Contributions to HCEs. The Committee determined the dollar amount of the Matching Contributions to be distributed, by using the ratio leveling method, and then distributed the excess amount by |
(3) | Determination of Earnings. The Committee used the Plan's normal method of calculating earnings to determine the amount of earnings attributable to each Participant's Excess ADP Contributions and/or Excess ACP Contributions for the Plan Year for which the Contributions were made, and ignored gap period earnings (for the period between the end of the Plan Year and the correction date). Effective January 1, 2008, the Committee will ignore gap period earnings (for the period between the end of the Plan Year and the correction date). |
(d) | Excess Annual Addition. Any Employee Contribution or Employer Contribution that was an Excess Annual Addition for purposes of the Code Section 415 limit, and was distributed under Subsection 7.2(b), was not be included in the ADP Test or ACP Test, as applicable. |
(e) | Corrective Contribution. For any Plan Year when the Plan does not have safe-harbor status and the Plan has Excess ADP Contributions and/or Excess ACP Contributions, the Committee, in its discretion and in lieu of the refunds/distributions/forfeitures described in this Section A-7.4, may direct the Employers to make a Corrective Contribution in the amount necessary to satisfy the ADP Test and/or ACP Test. |
(1) | Qualified Matching Contributions (QMACs). The Committee may direct each affected Employer to make a Corrective Contribution to match a percentage of the Employee Contributions made by NCEs for the Plan Year, in addition to the regular Matching Contribution, in the amount necessary to meet the ADP Test and/or ACP Test for the Plan Year. |
(2) | Qualified Nonelective Contributions (QNECs). The Committee may direct each affected Employer to make a Corrective Contribution that is allocated by one of the following methods: (1) uniform percentage of Compensation, (2) per capita, or (3) to selected NCEs in an amount that does not exceed the product of each NCEs Compensation and the greater of 5% or two times the average ADP or ACP for the Plan Year. |
A-9.1 | Allocation of Fiduciary Responsibilities. |
(b) | Committee. |
(1) | Before January 1, 2008, the Chairman of the Compensation Committee of the Board of Directors appointed the members of the Committee. |
(2) | From January 1, 2008 through July 1, 2011, the Plan was administered by one Committee, the Benefits Plan Committee, comprised of at least 3 individuals with the Company’s Chief Financial Officer as the Chairman. The Chairman was responsible for appointing the members of the Committee. Effective July 1, 2011, the Plan was amended to establish two fiduciary committees as follows: the Benefits Plan Committee, chaired by the Chief Human Resources Officer, responsible for the administration and operation of the Plan and the Benefits Finance Committee, chaired by the Chief Financial Officer, responsible for all financial decisions including actuarial assumptions for plan valuations and plan investments. |
B1-1.1 | Accounts. The Venice Plan accounts that were merged into the corollary Employer Contribution Accounts under this Plan included leveraged and non-leveraged ESOP contributions, which were subject to 5-year cliff vesting but became fully vested on January 1, 1997, and tax credit ESOP contributions (commonly called PAYSOP contributions) that were fully vested. |
B1-1.20 | Effective Date means April 1, 1992, the date when First National Bank of Venice (Venice) became part of the Controlled Group (the Company Merger Date). January 1, 1993 was the date when the Venice Plan became part of this Plan (the Plan Merger Date). |
B1-1.49 | Plan (Venice Plan) means the Florida Westcoast Banks, Inc. Employee Stock Bonus Plan, which was merged into this Plan as of the January 1, 1993 Plan Merger Date. |
B1-2.1 | Eligibility. Each Employee who worked for Venice on the Company Merger Date, had met the Venice Plan eligibility requirements, and was an active Employee on the Plan Merger Date, became eligible to participate in this Plan on that date. This Plan granted credit for service with Venice for purposes of eligibility to participate and to receive Matching Contributions, and vesting. |
B2-1.1 | Accounts. The HomeTrust Plan accounts that were merged into the corollary Employer Contribution Accounts under this Plan included leveraged ESOP contributions, matching contributions, and discretionary contributions, which were fully vested. Before-tax contributions were merged into Before-Tax Accounts. |
B2-1.20 | Effective Date means January 1, 1993, the date when HomeTrust Bank of Georgia (HomeTrust) became part of the Controlled Group, and the date when the HomeTrust Plan became part of this Plan (the Company/Plan Merger Date). |
B2-1.49 | Plan (HomeTrust Plan) means the Home Federal Savings Bank of Georgia Employee Stock Ownership Plan, which was merged into this Plan as of the January 1, 1993 Company/Plan Merger Date. |
B2-2.1 | Eligibility. Each Employee who worked for HomeTrust on the Company/Plan Merger Date, had met the HomeTrust Plan eligibility requirements, and was an active Employee on the Company/Plan Merger Date, became eligible to participate in this Plan on that date. This Plan granted credit for service with HomeTrust for purposes of eligibility to participate and to receive Matching Contributions. |
B3-1.1 | Accounts. The Florence Plan accounts that were merged into the corollary Employer Contribution Accounts under this Plan included matching contribution accounts and discretionary contribution accounts, which were fully vested. Before-tax contribution accounts were merged into Before-Tax Accounts. After-tax contribution accounts were merged into After-Tax Accounts. Rollover contribution accounts were merged into Rollover Accounts. The Florence Plan offered annuity forms of payment and required Spousal consent for withdrawals and distributions. This Plan retained that requirement. This Plan issued 90-day notices that annuity forms are not offered and Spousal consent is not required after March 31, 2002. |
B3-1.20 | Effective Date means February 1, 1993, the date when the First National Bank of Florence (Florence) became part of the Controlled Group (the Company Merger Date). July 1, 1993 was the date when the Florence Plan became part of this Plan (the Plan Merger Date). |
B3-1.49 | Plan (Florence Plan) means the First National Bank of Florence Retirement Savings Plan, which was merged into this Plan as of the July 1, 1993 Plan Merger Date. |
B3-2.1 | Eligibility. Each Employee who worked for Florence on the Company Merger Date, had met the Florence Plan eligibility requirements, and was an active Employee on the Plan Merger Date, became eligible to participate in this Plan on that date. This Plan granted credit for service with Florence for purposes of eligibility to participate and to receive Matching Contributions, and vesting. |
B4-1.20 | Effective Date means February 22, 1993, the date when Coast Bank and Federal Savings (Coast) became part of the Controlled Group (the Company Merger Date). |
B4-2.1 | Eligibility. Each Employee who worked for Coast on the Company Merger Date, had met this Plan’s eligibility requirements, and was an active Employee on July 1, 1993, became eligible to participate in this Plan on that date. This Plan granted credit for service with Coast for purposes of eligibility to participate and to receive Matching Contributions, and vesting. |
B5-1.20 | Effective Date means March 15, 1993, the date when Flagler National Bank (Flagler) became part of the Controlled Group (the Company Merger Date). |
B5-2.1 | Eligibility. Each Employee who worked for Flagler on the Company Merger Date, had met this Plan’s eligibility requirements, and was an active Employee on July 1, 1993, became eligible to participate in this Plan on that date. This Plan granted credit for service with Flagler for purposes of eligibility to participate and to receive Matching Contributions. |
B6-1.20 | Effective Date means February 17, 1994, the date when Regional Investment Corporation, Premium Assignment Corporation, Andrew Jackson Savings Bank, and Banker Mortgage Loans, Inc. (collectively Andrew Jackson) became part of the Controlled Group (the Company Merger Date). |
B6-2.1 | Eligibility. Each Employee who worked for Andrew Jackson on the Company Merger Date, had met this Plan’s eligibility requirements, and was an active Employee on April 1, 1994, became eligible to participate in this Plan on that date. This Plan granted credit for service with Andrew Jackson for purposes of eligibility to participate and to receive Matching Contributions. |
B7-1.20 | Effective Date means May 12, 1995, the date when Peoples State Bank (Peoples) became part of the Controlled Group (the Company Merger Date). |
B7-2.1 | Eligibility. Each Employee who worked for Peoples on the Company Merger Date, had met this Plan’s eligibility requirements, and was an active Employee on July 1, 1995, became eligible to participate in this Plan on that date. This Plan granted credit for service with Peoples for purposes of eligibility to participate and to receive Matching Contributions. |
B8-1.1 | Accounts. The Key Biscayne Plan accounts that were merged into the corollary Employer Contribution Accounts under this Plan included matching contributions and discretionary contributions, which were fully vested. Before-Tax Contribution Accounts were merged into Before-Tax Accounts. After-Tax Contribution Accounts were merged into After-Tax Accounts. Rollover Contribution Accounts were merged into Rollover Accounts. The Key Biscayne Plan offered annuity forms of payment and required Spousal consent for withdrawals and distributions. This Plan retained that requirement. This Plan issued 90-day notices that annuity forms are not offered and Spousal consent is not required after March 31, 2002. |
B8-1.20 | Effective Date means August 11, 1995, the date when Key Biscayne Bank & Trust (Key Biscayne) became part of the Controlled Group (the Company Merger Date). January 1, 1996 was the date when the Key Biscayne Plan became part of this Plan (the Plan Merger Date). |
B8-1.49 | Plan (Key Biscayne Plan) means the Key Biscayne Bank 401(k) Profit Sharing Plan, which was frozen as of the August 11, 1995 Company Merger Date and merged into this Plan as of the January 1, 1996 Plan Merger Date. |
B8-2.1 | Eligibility. Each Employee who worked for Key Biscayne on the Company Merger Date, had met the Key Biscayne Plan eligibility requirements, and was an active Employee on the Plan Merger Date, became eligible to participate in this Plan on that date. This Plan granted credit for service with Key Biscayne for purposes of eligibility to participate and to receive Matching Contributions. |
B9-1.20 | Effective Date means October 11, 1995, the date when Stephens Diversified Leasing, Inc. (Stephens) became part of the Controlled Group (the Company Merger Date). |
B9-2.1 | Eligibility. Each Employee who worked for Stephens on the Company Merger Date, had met this Plan’s eligibility requirements, and was an active Employee on January 1, 1996, became eligible to participate in this Plan on that date. This Plan granted credit for service with Stephens for purposes of eligibility to participate and to receive Matching Contributions. |
B10-1.1 | Accounts. The Ponte Vedra Plan accounts that were merged into the corollary Employer Contribution Accounts under this Plan included Matching Contribution Accounts and discretionary contribution accounts, which were fully vested. Before-Tax Contribution Accounts were merged into Before-Tax Accounts. After-Tax Contribution Accounts were merged into After-Tax Accounts. Rollover Contribution Accounts were merged into Rollover Accounts. |
B10-1.20 | Effective Date means January 19, 1996, the date when Ponte Vedra Banking Corporation (Ponte Vedra) became part of the Controlled Group (the Company Merger Date). April 1, 1996 was the date when the Ponte Vedra Plan became part of this Plan (the Plan Merger Date). |
B10-1.49 | Plan (Ponte Vedra Plan) means the Ponte Vedra National Bank Retirement Savings Plan, which was merged into this Plan as of the April 1, 1996 Plan Merger Date. |
B10-2.1 | Eligibility. Each Employee who worked for Ponte Vedra on the Company Merger Date, had met the Ponte Vedra Plan eligibility requirements, and was an active Employee on the Plan Merger Date, became eligible to participate in this Plan on that date. This Plan granted credit for service with Ponte Vedra for purposes of eligibility to participate and to receive Matching Contributions. |
B11-1.1 | Accounts. Former Union Planters employees who became Participants were permitted to roll over account balances distributed from the Union Planters Plan, into a Rollover Account in this Plan. |
B11-1.20 | Effective Date means September 5, 1997, the date when the Company purchased certain bank branches located in Tennessee from Union Planters National Bank (Union Planters) and hired certain Union Planters employees (the Acquisition Date). Those branches are located in Johnson City (two branches), Bristol (two branches), Kingsport, and Greenville, Tennessee. |
B11-1.49 | Plan (Union Planters Plan) means the Union Planters Retirement Savings Plan, which was not part of the acquisition and was not merged into this Plan. |
B11-2.1 | Eligibility. Each Employee who worked for Union Planters Bank on the Acquisition Date, had met the eligibility requirements for the Union Planters Plan, and was an active Employee on that date, became eligible to participate in this Plan on that date. This Plan granted credit for service with Union Planters Bank for purposes of eligibility to participate and to receive Matching Contributions. |
B12-1.1 | Accounts. The Equitable Plan was frozen as of December 31, 1999. Equitable Plan Participants were covered by this Plan effective January 1, 2000. This Plan subsequently accepted rollovers of frozen accounts from the Equitable Plan. |
B12-1.20 | Effective Date means January 1, 1998, the date when Equitable Securities Corporation (Equitable) became part of the Controlled Group (the Acquisition Date). Equitable subsequently was renamed SunTrust Capital Markets, Inc. |
B12-1.49 | Plan (Equitable Plan) means the Equitable Securities Profit Sharing Plan, which was frozen as of December 31, 1999, and is sponsored by SunTrust Capital Markets, Inc. The frozen plan was converted to a prototype plan effective January 1, 2009, and was renamed the SunTrust Equitable Securities Corporation Profit Sharing Plan. |
B12-2.1 | Eligibility. Each Employee who worked for Equitable on the Acquisition Date, had met the Equitable Plan eligibility requirements, and was an active Employee on that date, became eligible to participate in this Plan effective January 1, 2000, the day after the Equitable Plan was frozen. This Plan granted credit for service with Equitable for purposes of eligibility to participate and to receive Matching Contributions. |
B13-1.1 | Accounts. The Citizens Plan was terminated as of December 31, 1998, and all account balances were distributed. Former Citizens employees who became Participants were permitted to roll over those account balances into a Rollover Account in this Plan. |
B13-1.20 | Effective Date means October 31, 1998, the date when Citizens Bancorporation (Citizens), a bank holding company based in Marianna, Florida, became part of the Controlled Group (the Company Merger Date). |
B13-1.49 | Plan (Citizens Plan) means the Citizens Bancorporation Profit Sharing Plan, which was terminated as of December 31, 1998, and from which all account balances were distributed. |
B13-2.1 | Eligibility. Each Employee who worked for Citizens on the Company Merger Date, had met the Citizens Plan eligibility requirements, and was an active Employee on January 1, 1999, became eligible to participate in this Plan on that date. This Plan granted credit for service with Citizens for purposes of eligibility to participate and to receive Matching Contributions. |
B14-1.1 | Accounts. The following First Union Plan accounts were direct-transferred into the corollary Accounts under this Plan on July 1, 2000: matching contribution accounts (which were fully vested on March 1, 2000) were transferred into Employer Contribution Accounts; before-tax contribution accounts were transferred into Before-Tax Accounts; after-tax contribution accounts were transferred into After-Tax Accounts; and rollover contribution accounts were transferred into Rollover Accounts. The First Union Plan offered annuity forms of payment and required Spousal consent for withdrawals and distributions. This Plan retained that requirement. This Plan issued 90-day notices that annuity forms will not be offered and Spousal consent is not required after March 31, 2002. |
B14-1.20 | Effective Date means December 31, 1998, the date when the Company purchased certain bank branches located in Florida from First Union Corporation and hired certain First Union employees (the Acquisition Date). Those branches are located at Lake Panasoffkee, Wildwood, Bushnell and Webster in Sumter County; Crystal River in Citrus County; Weeki Wachee and Spring Hill in Hernando County. |
B14-1.49 | Plan (First Union Plan) means the First Union Corporation Savings Plan. The First Union Plan accounts of individuals who became SunTrust Employees on the Acquisition Date were frozen as of that date. |
B14-2.1 | Eligibility. Each Employee who worked for the acquired branches of First Union on the Acquisition Date, had met the First Union Plan eligibility requirements, and was an active Employee on January 1, 1999, became eligible to participate in this Plan on that date. This Plan granted credit for service with First Union for purposes of eligibility to participate and to receive Matching Contributions. |
B15-1.1 | Accounts. The Crestar Plan accounts that were merged into the corollary Employer Contribution Accounts under this Plan included: (a) matching contribution accounts and discretionary contribution accounts (which are available for investment elections without regard to age), and tax credit ESOP contributions (commonly called PAYSOP contributions), all of which were fully vested, were merged into Matching Accounts; (b). Before-tax contribution accounts were merged into Before-Tax Accounts; (c) after-tax contribution accounts (made before 1988) were merged into After-Tax Accounts; and (d) rollover contribution accounts were merged into Rollover Accounts. |
B15-1.20 | Effective Date means December 31, 1998, the date when Crestar Financial Corporation (Crestar) and its affiliates and subsidiaries became part of the Controlled Group (the Company Merger Date). The Crestar Employees’ Thrift and Profit |
B15-1.49 | Plan (Crestar Plan) means the Crestar Employees’ Thrift and Profit Sharing Plan, and/or the Crestar Merger Plan for Transferred Employees, as applicable, which were merged into this Plan as of the July 1, 1999 Plan Merger Date. |
B15-2.1 | Eligibility. Each Employee who worked for Crestar on the Company Merger Date, had met a Crestar Plan’s eligibility requirements, and was an active Employee on the Plan Merger Date, became eligible to participate in this Plan as of the Plan Merger Date. Each Employee who began working for Crestar between January 1 and May 31, 1999 and who was an active Employee on the Plan Merger Date, became eligible to participate in this Plan as of August 1, 1999 and became eligible to receive Matching Contributions as of the first anniversary of his/her hire date. This Plan granted credit for service with Crestar for purposes of eligibility to participate and to receive Matching Contributions. |
B15-3.1 | Employee Contributions. The contribution percentage that each affected Participant had in effect under the Crestar Employees’ Thrift and Profit Sharing Plan as of June 30, 1999, remained in effect on the July 1, 1999 Plan Merger Date. However, the minimum contribution rate increased from 1 percent to 2 percent, with an automatic increase for each Participant who had a 1 percent rate in effect on that date. After the Plan Merger, Employee Contributions are determined in accordance with the main text of the Plan. |
B15-3.2 | Employer Contributions. Employer Matching Contributions allocated to affected Participants’ Crestar Plan Accounts before the July 1, 1999 Plan Merger Date, are fully vested and remain eligible for investment elections, regardless of age. |
B15-5.1 | Withdrawals Without a Hardship. This Plan has grandfathered the option that was available under the Crestar Plan for affected Participants to elect to make in-service withdrawals from the pre-merger balances in their Accounts, excluding Employer Contributions that had been allocated within the 24-month period preceding the withdrawal, and excluding all balances in Before-Tax Accounts and Money Purchase Accounts. The minimum withdrawal is $100. |
B16-1.20 | Effective Date means April 30, 1999, the date when The Regency Group became part of the Controlled Group (the Company Merger Date). |
B16-2.1 | Eligibility. Each Employee who worked for Regency on the Company Merger Date, had met this Plan’s eligibility requirements, and was an active Employee on June 1, 1999, became eligible to participate in this Plan on that date. This Plan granted credit for service with Regency for purposes of eligibility to participate and to receive Matching Contributions. |
B17-1.1 | Accounts. The AMA Plan was frozen as of March 27, 2001. No AMA Plan accounts were transferred to this Plan, but upon distribution of benefits from the AMA Plan, Participants could request to have a rollover to this Plan. |
B17-1.20 | Effective Date means March 28, 2001, the date when Assets Management Advisors, Inc. (AMA) became part of the Controlled Group (the Company Merger Date). |
B17-1.49 | Plan (AMA Plan) means the Assets Management Advisors Plan, which was frozen as of March 27, 2001. The Company did not assume the Plan. |
B17-2.1 | Eligibility. Each Employee who worked for AMA on the Company Merger Date, had met this Plan’s eligibility requirements, and was an active Employee on June 1, 2001, became eligible to participate in this Plan on that date. This Plan granted credit for service with AMA for purposes of eligibility to participate and to receive Matching Contributions. |
B18-1.1 | Accounts. The accounts of affected Employees under the Citigroup Plan were distributed when they became SunTrust Employees, and they were permitted to roll those distributions into Rollover Accounts in this Plan. |
B18-1.20 | Effective Date means July 26, 2001, the date when SunTrust purchased certain assets and properties relating to the institutional business of The Robinson-Humphrey Company, LLC (Robinson-Humphrey) (the Acquisition Date). Robinson-Humphrey had been a Delaware limited liability company and a wholly-owned subsidiary of Solomon Smith Barney, Inc. |
B18-1.49 | Plan (Citigroup Plan) means the Citigroup 401(k) Plan, from which distributions were made to Robinson-Humphrey participants who became SunTrust Employees on the Acquisition Date. |
B18-2.1 | Eligibility. Each Employee who worked for Robinson Humphrey on the Acquisition Date, had met this Plan’s eligibility requirements, and was an active Employee on August 1, 2001, became eligible to participate in this Plan on that date. This Plan granted credit for service with Robinson Humphrey for purposes of eligibility to participate and to receive Matching Contributions. |
B19-1.20 | Effective Date means February 15, 2002, the date when the Florida Franchise of Huntington Bancshares and The Huntington National Bank (Huntington) became part of the Controlled Group (the Acquisition Date). |
B19-2.1 | Eligibility. Each Employee who worked for Huntington on the Acquisition Date, had met this Plan’s eligibility requirements, and was an active Employee on the Acquisition Date, became eligible to participate in this Plan on that date. This Plan granted credit for service with Huntington for purposes of eligibility to participate and to receive Matching Contributions. |
B20-1.20 | Effective Date means February 1, 2003, the date when certain employees of Eagle Capital, LLC (Eagle Capital) began working for AMA, a member of the Controlled Group (the 2003 AMA Hire Date). |
B20-2.1 | Eligibility. Each Employee who had worked for Eagle Capital before the 2003 AMA Hire Date, had met this Plan’s eligibility requirements and was an active Employee on February 1, 2003, became eligible to participate in this Plan on that date. This Plan granted credit for service with Eagle Capital for purposes of eligibility to participate and to receive Matching Contributions. |
B21-1.20 | Effective Date means June 1, 2003, the date when Home Financial became part of the Controlled Group (the Acquisition Date). |
B21-2.1 | Eligibility. Each Employee who had worked for Home Financial before the Acquisition Date, had met this Plan’s eligibility requirements and was an active Employee on July 1, 2003, became eligible to participate in this Plan on that date. This Plan granted credit for service with Home Financial for purposes of eligibility to participate and to receive Matching Contributions. |
B22-1.1 | Accounts. The defined contribution plan maintained by Lighthouse Financial Corporation (Lighthouse) was terminated before Lighthouse became a part of the Controlled Group. On distribution of benefits from the Lighthouse Plan, Participants could request to have a rollover to this Plan. |
B22-1.20 | Effective Date means June 2, 2003, the date when Lighthouse became part of the Controlled Group (the Company Merger Date). |
B22-1.49 | Plan (Lighthouse Plan) means the 401(k) Plan previously maintained by Lighthouse. |
B22-2.1 | Eligibility. Each Employee who worked for Lighthouse on the Company Merger Date, had met this Plan’s eligibility requirements and was an active Employee on June 2, 2003, became eligible to participate in this Plan on that date. This Plan granted credit for service with Lighthouse for purposes of eligibility to participate and to receive Matching Contributions. |
B23-1.1 | Accounts. The defined contribution plan maintained by Sun America Mortgage Corporation (Sun America) was terminated before Sun America became a part of the Controlled Group. On distribution of benefits from the Sun American Plan, participants could request to have a rollover to this Plan. |
B23-1.20 | Effective Date means August 1, 2003, the date when Sun America became part of the Controlled Group (the Company Merger Date). |
B23-1.49 | Plan (Sun America Plan) means the Sun America Mortgage Company 401(k) Profit Sharing Plan. |
B23-2.1 | Eligibility. Each Employee who worked for Sun America on the Company Merger Date, had met this Plan’s eligibility requirements and was an active Employee on August 1, 2003, became eligible to participate in this Plan on that date. This Plan granted credit for service with Sun America for purposes of eligibility to participate and to receive Matching Contributions. |
B24-1.20 | Effective Date means May 28, 2004, the date when Seix Investment Advisors, Inc. became part of the Controlled Group (the Acquisition Date). |
B24-2.1 | Eligibility. Each Employee who worked for Seix on the Acquisition Date and was an active Employee on the Acquisition Date, became eligible to participate in this Plan on July 1, 2004. This Plan granted credit for service with Seix for purposes of eligibility to participate and to receive Matching Contributions. |
B25-1.1 | Accounts. The NCF Plan was frozen as of the close of business on December 31, 2004. The NCF Plan accounts that were merged into the corollary or similar Accounts under this Plan included the following. Matching contribution accounts which were merged into Matching Accounts. Profit sharing accounts (from entities previously acquired by NCF) were merged into the Merged Plan Account. ESOP accounts (from both the NCF Plan and from entities previously acquired by NCF) were merged into the Merged Plan Account. Before-tax contribution accounts were merged into Before-Tax Accounts. After-tax contribution accounts were merged into After-Tax Accounts. Rollover contribution accounts were merged into Rollover Accounts. |
B25-1.10 | Company Merger Date has the same definition as Effective Date. |
B25-1.20 | Effective Date means October 1, 2004, the date when National Commerce Financial Corporation and its affiliates and subsidiaries became part of the Controlled Group (the Company Merger Date). The NCF Plan was merged into and became part of this Plan as of the close of business on June 30, 2005 (the Plan Merger Date). |
B25-1.39 | Merged Plan means with respect to the NCF Plan, all of the following plans that were merged into the NCF Plan as of August 1, 2001: CCB Financial Corporation |
B25-1.49 | Plan (NCF Plan) means the National Commerce Financial Corporation Investment Plan, which was merged into this Plan as of the June 30, 2005 Plan Merger Date. |
B25-1.49A | Plan Merger Date means the close of business on June 30, 2005, the date when the NCF Plan was merged into this Plan. |
B25-2.1 | Eligibility. |
(a) | Past Service Credit. Each Employee who worked for NCF on the Company Merger Date, had met this Plan’s eligibility requirements and was an active Employee on January 1, 2005, became eligible to participate in this Plan on that date. On that date, this Plan granted credit for service with NCF and its controlled group members for purposes of eligibility to participate and to receive Matching Contributions. |
(b) | Sale of Transplatinum and and its Subsidiaries. Transplatinum Service Corp. and its wholly- owned subsidiaries, including Fleet One Holdings, LLC and LLR (collectively Transplatinum) previously were subsidiaries of NCF and became Controlled Group members on the Company Merger Date. Effective September 2, 2008, Transplantium was sold to an unrelated entity and ceased its status as a Controlled Group member. As of that date, Transplatinum ceased to be an Employer, and employees of Transplatinum on and after that date are not Employees for purpose of this Plan. |
(c) | Sale of The First Mercantile Trust Company. The First Mercantile Trust Company (First Mercantile) was previously a wholly-owned subsidiary of NCF and became a Controlled Group Member on the Company Merger Date. Effective May 30, 2008, First Mercantile was sold to an unrelated entity and |
B25-3.2 | Employer Matching Contributions. Forfeitures under the NCF Plan that were not allocated as of the close of business on June 30, 2005, were used to reduce Employer Matching Contributions (or to restore forfeitures as provided in Article 6 of this Addendum B25) and not to increase benefits. |
B25-4.2 | Investment Elections. |
(a) | Investment Funds. The NCFC Stock Fund, the NCFC ESOP Stock Fund, and the NCFC Merged Stock Fund were merged into the Employer Stock Fund effective as of the Plan Merger Date or as soon thereafter as practicable. |
(g) | Diversification Elections. The diversification rules in the NCF Plan Section 5.3 do not apply to Accounts transferred to this Plan. Instead, Article 4 of the main text of the Plan applies to all ESOP Accounts. |
B25-5.1(f) | Withdrawals Without a Hardship. This Plan has grandfathered the option that was available under the NCF Plan for affected Participants to elect to make in-service withdrawals from the pre-merger balances in their Accounts, excluding Employer Contributions that had been allocated within the 24-month period preceding the |
(a) | Application and Eligibility. Before the Plan Merger Date, to ensure that loans from this Plan and loans from the NCF Plan met the applicable limits, loans were not be available from this Plan to any Participant who was also a Participant in the NCF Plan. |
B25-6.1 | Distribution Events. A Participant who previously participated in the NCF Plan and was not fully vested in his/her NCF Plan Accounts, forfeited the non-vested portion upon the earlier of the date he/she incurred a Five-Year Break, or the date he/she received a distribution of the vested portion of his/her Account. If a partially-vested Participant resumed Employment before a Five-Year Break, the Plan permitted him/her to repay his/her distribution no later than the fifth anniversary of the date he/she resumed Employment, and reinstated the dollar amount he/she forfeited to his/her Account. A non-vested Participant who terminated Employment was deemed to have received a distribution and his/her entire Account was immediately forfeited, and was deemed repaid if he/she resumed Employment before a Five-Year Break. |
B26-1.20 | Effective Date means January 1, 2005, the date when Zevenbergen Capital, Inc. (ZCI) became part of the Controlled Group (the Acquisition Date). |
B26-2.1 | Eligibility. |
(a) | Past Service Credit. Each Employee who worked for ZCI before the Acquisition Date and was an active Employee on the Acquisition Date, became eligible to participate in this Plan on January 1, 2005. This Plan granted credit for service with ZCI for purposes of eligibility to participate and to receive Matching Contributions. |
(b) | Loss of Eligible Status. Pursuant to certain transactions occurring on September 30 and October 1, 2008, ZCI ceased its status as a Controlled Group Member effective October 1, 2008. As of that date, ZCI is no longer an Employer and individuals who work for ZCI on and after October 1, 2008 are not Employees and are not eligible to participate in this Plan. |
B27-1.20 | Effective Date means March 17, 2006, the date when Community Bank of Florida became part of the Controlled Group (the Acquisition Date). |
B27-2.2 | Eligibility. Each Employee who worked for Community Bank of Florida on the Acquisition Date and was an active Employee on the Acquisition Date, became eligible to participate in this Plan on March 17, 2006. This Plan granted credit for service with Community Bank of Florida for purposes of eligibility to participate and to receive Matching Contributions. |
B28-1.20 | Effective Date means December 31, 2007, the date when Inlign Wealth Management, LLC (Inlign) became part of the Controlled Group (the Acquisition Date). |
B28-2.2 | Eligibility. Each Employee who worked for Inlign on the Acquisition Date and was an active Employee on the Acquisition Date, became eligible to participate in this Plan on March 1, 2008. This Plan granted credit for service with Inlign for purposes of eligibility to participate and to receive Matching Contributions. |
B29-1-18 | Effective Date means the date occurring between January 31, 2008 and February 29, 2008 when former employees of Salem Mortgage were hired by a Controlled Group Member (the relevant date for each such employee to be his/her Hiring Date). |
B29-2.2 | Eligibility. Each Employee who worked for Salem Mortgage immediately before the Hiring Date and became an active Employee on the Hiring Date, became eligible to participate in this Plan on March 1, 2008. Effective February 29, 2008, this Plan granted credit for service with Salem Mortgage for purposes of eligibility to participate and to receive Matching Contributions. |
B30-1.20 | Effective Date means May 1, 2008, the date when GB&T Banchares, Inc. (GB&T) became part of the Controlled Group (the Company Merger Date). |
B30-1.49 | Plan (GB&T Plan) means the GB&T Bancshares 401(k) Profit SharingPlan, which was terminated immediately before 12:01 a.m. on May 1, 2008, the effective date and time of the merger. The Company did not assume the GB&T Plan. |
B30-2.2 | Eligibility. Each Employee who worked for GB&T before the Company Merger Date and was an active Employee on the Merger Date, became eligible to participate in this Plan on the Merger Date. This Plan granted credit for service with GB&T for purposes of eligibility to participate and to receive Matching Contributions. |
B31-1.20 | Effective Date means December 31, 2008, the date when the Cymric Family Office Services (Cymric) became part of the Controlled Group (the Acquisition Date) pursuant to the Asset Purchase Agreement By and Among GenSpring Family Offices, LLC, Cymric and the Shareholders of Cymric. |
B31-1.48 | Participant (Cymric Participant) means, for purposes of this Addendum B31, each Participant who was employed by Cymric on the Acquisition Date and became an employee of GenSpring on January 1, 2009. |
B31-2.1 | Eligibility. For purposes of determining eligibility to begin participating under Section 2.1 of the main text of the Plan, the Plan treated each Cymric Participant as if his/her Employment Date was the date when he/she became an employee of GenSpring. |
1. | GenSpring Holdings, Inc. (formerly, AMA Holdings, Inc.) |
2. | National Commerce Bank Services, Inc. |
3. | Premium Assignment Corporation |
4. | Prime Performance, Inc. |
5. | STB Management Corporation |
6. | SunTrust Bank |
7. | SunTrust Banks, Inc. |
8. | SunTrust Bank Holding Company |
9. | SunTrust Capital Markets, Inc. |
10. | SunTrust Delaware Trust Company |
11. | SunTrust Community Capital LLC (formerly, SunTrust Community Development Corporation) |
12. | SunTrust Education Financial Services Corporation |
13. | SunTrust Insurance Company |
14. | SunTrust Insurance Services, Inc. |
15. | SunTrust Investment Services, Inc. |
16. | SunTrust Leasing Corporation |
17. | SunTrust Mortgage, Inc. |
18. | SunTrust Procurement Services, L.L.C. |
19. | Teton Trust Company |
20. | Transom Development, Inc. |
21. | Ridgeworth Capital Management, Inc. (formerly, Trusco Capital Management, Inc.) |
1. | Determination Whether a Domestic Relations Order is Qualified D-1 |
2. | Assignment of Benefits to Alternate Payee D-1 |
3. | Identifying Information D-2 |
4. | Awarded Amount D-2 |
5. | Two methods to Divide Benefits D-2 |
(a) | Separate Interest Award D-3 |
(b) | Shared Payment Award D-3 |
6. | QDRO Must Specify the Effect of Death on the Award D-3 |
(a) | Participant’s Death D-3 |
(b) | Alternate Payee’s Death D-3 |
7. | Notification of Parties D-3 |
8. | The Protection Period (or Holding Period) D-4 |
9. | Separate Accounting Until Determination is Made D-5 |
10. | Distribution of Amount Awarded by a QDRO D-5 |
10. | Notice of Favorable Tax Treatment D-5 |
11. | Fiduciary Responsibility D-6 |
12. | Plan Cannot be Made a Party D-6 |
13. | Internal Revenue Service Approval of QDRO Procedures D-6 |
NOTE: | The QDRO Procedures set forth in this Addendum are an integral part of the Plan. Certain words and phrases used in these Procedures have initial capital letters to indicate that they are used as defined terms in the Plan. |
1. | Determination Whether a Domestic Relations Order is Qualified. The Plan Committee (the Committee) or its delegate will determine whether a domestic relations order is qualified under Code Section 414(p), i.e., whether it is a QDRO. The Code prohibits the Plan from making any payment under any domestic relations order until the Committee has determined that it is a QDRO. |
2. | Assignment of Benefits to Alternate Payee. The purpose of the QDRO, as stated in an order or proposed order, must be to create or recognize the right of the Alternate Payee(s), or assign to the Alternate Payee(s) the right, to receive all or part of the benefits that otherwise would be payable to the affected Plan Participant. The only persons who can be Alternate Payees or contingent Alternate Payees are the Participant’s current or former Spouse, child(ren) or other dependents; this limited group of individuals is called the |
3. | Identifying Information. The QDRO must clearly state the name of the Plan. For the Participant and each Alternate Payee, the QDRO must state the name, the last known mailing address, the Social Security number, and the date of birth (except to the extent the Committee knows such information),. |
4. | Awarded Amount. The QDRO must clearly and expressly state the amount or percentage of the Participant's vested Account balances to be paid to each Alternate Payee, or a method to calculate the awarded amount, the date as of which the Plan must make the calculation, the number of payments or the period to which the QDRO applies, and that the QDRO specifically applies to this Plan. Under no circumstance may a QDRO result in the Plan paying benefits in an amount that is greater than the amount the Plan would have paid to or on behalf of the Participant if the QDRO had not been issued, or paying benefits that are required to be paid to another Alternate Payee under a previously existing QDRO. After payment of the awarded amount, the Alternate Payee will have no further interest in the Plan. |
5. | Two Methods to Divide Benefits. The QDRO may award the Alternative Payee either a separate interest in the Participant’s Account balances, or a share of the lump sum or installment payment(s) that will made to the Participant after his/her Termination Date. |
(a) | Separate Interest Award. A separate-interest award divides the Participant’s Account balances between the Participant and Alternate Payee as of a stated date, and gives the Alternate Payee the right to receive the awarded amount on a date that is different from the Participant’s distribution date. |
6. | QDRO Must Specify the Effect of Death on the Award. The QDRO must specify how the unpaid award will be affected by the following events of death. |
(a) | Participant’s Death. If the Participant dies before the QDRO award is distributed, the Plan will pay the awarded amount to the Alternate Payee(s) as soon as practicable after the Participant’s death. |
(b) | Alternate Payee’s Death. If the Alternate Payee dies before the QDRO award is distributed, the Plan will pay the awarded amount to the named surviving contingent Alternate Payee(s) if any. If no valid contingent Alternate Payee is named or survives the Alternate Payee, the award will be forfeited as if the QDRO had not been issued, and the awarded amount will revert to the Participant’s Accounts. |
7. | Notification of Parties. The Committee will promptly notify the affected Participant and each Alternate Payee when it receives an actual or proposed domestic relations order |
8. | The Protection Period (or Holding Period). Because an Alternate Payee has the legal status of a beneficiary under the Plan, the Committee must protect the potential rights of a prospective Alternate Payee for a period reasonably sufficient to permit him/her to perfect those rights through a QDRO. After the Committee has received written notice that all or part of a Participant's Account balances is or will become subject to a QDRO, it will not pay to or on behalf of the Participant any part of the Account balances to which the notice applies, until the end of the protection period. The Committee will determine whether a proposed QDRO is qualified, within a reasonable period after receiving the proposed QDRO. If the Committee finds defects in the initial proposed QDRO, it will provide the Alternate Payee a written notice and explanation of the defects. After the Committee determines that the proposed QDRO meets all relevant provisions of the Code and ERISA, and complies with this Addendum and all other relevant provisions of the Plan, the Committee will place a permanent hold on the portion of the Participant’s Account balances assigned to the Alternate Payee, and will pay that portion to the Alternate Payee under the terms of the QDRO and under this Addendum. In other words, the protection period becomes permanent if the proposed order is approved as a QDRO. |
9. | Separate Accounting Until Determination is Made. During any period when the issue of the qualified status of a domestic relations order is being determined, the Committee will separately account for the amounts that would have been payable to the Alternate Payee if the order had already been determined to be qualified. As discussed in Section 8, if the Committee determines that a proposed order is qualified, the Plan will pay the required amounts to each Alternate Payee entitled to receive them. If the Committee determines that the proposed order is not qualified, after the end of the 18-month protection period it will merge the separate accountings and will pay the restored Account balances to the persons who would have received them if the order had not been issued. |
10. | Distribution of Amount Awarded by a QDRO. After a valid QDRO awards an Alternate Payee all or a portion of a Participant’s Account balances, the Alternate Payee may elect an immediate lump sum distribution of the awarded amount, unless such distribution would conflict with the terms of the QDRO. The Plan may make such distribution while the affected Participant is in active Employment and regardless of the Participant’s age. Otherwise, the Plan will distribute the awarded amount to the Alternate Payee(s) pursuant to the terms of the QDRO. |
11. | Notice of Favorable Tax Treatment. When the Committee makes a lump sum payment or other eligible rollover distribution of the awarded amount to a Spousal Alternate Payee, it will provide a Code Section 402(f) special tax notice to the Alternate Payee explaining that the payment may be rolled over to an individual retirement account or to another employer’s qualified plan. |
12. | Fiduciary Responsibility. Plan representatives have an equal fiduciary responsibility to the Participant and to the Alternate Payee, who has the legal status of a beneficiary under the Plan. |
13. | Plan Cannot be Made a Party. Section 514 of ERISA, 29 U.S.C. § 1144 provides that ERISA preempts all state laws that relate to employee benefit plans. The U. S. Department of Labor has stated the position that under the doctrine of ERISA preemption, a retirement plan or plan sponsor cannot be joined as a party to any state domestic relations proceeding. If any party to a domestic relations proceedings seeks to join the Plan or Plan sponsor in such proceeding, the sponsor will seek dismissal and may seek attorneys fees and costs against the party who makes such attempt. |
14. | Internal Revenue Service Approval of QDRO Procedures. The Procedures stated in this Addendum D to the Plan, for payments of Account balances under QDROs, and restrictions on payments, are conditioned upon approval from the Internal Revenue Service, and will be revised from time to time to the extent necessary to maintain such approval. |
A1-6.1 | Normal Form of Payment and Commencement. Except as otherwise provided in this Section A1-6.1, when a Participant separates from service with the Corporation and its Affiliates for any reason, he shall be paid his 401(k) Excess Plan benefit in a single lump-sum cash payment during the first quarter of the calendar year immediately following the year of his separation. The amount payable to the Participant shall be equal to the balance of the Participant’s Account as of the Valuation Date immediately preceding the date of distribution, less withholding for applicable federal and state taxes. |
A1-6.2 | Alternate Form of Payment Election. A Participant may elect, in lieu of the lump-sum payment described in Section A1-6.1, to receive payment of his total benefit under this 401(k) Excess Plan in five (5) substantially equal annual installments, payable in cash; provided that such election is effective, as set forth below, at least twelve (12) months before the scheduled payment date following the Participant’s separation from service. The initial installment shall be paid during the first quarter of the calendar year immediately following the year of his separation. Each subsequent annual installment shall be paid during the first quarter of each of the subsequent four calendar years. Each installment payment shall be determined based on the balance of the Participant’s Account as of the Valuation Date immediately preceding the date of payment and shall be reduced by withholding for applicable federal and state taxes. A Participant’s election to receive installment payments of his 401(k) Excess Plan benefit pursuant to this Section A1-6.2 shall be made in writing on such forms as may be provided by the Compensation Committee and shall not be effective until received and approved by the Compensation Committee. |
A1-6.3 | Death. In the event of a Participant’s death, the Compensation Committee shall authorize payment to the Participant’s Beneficiary of any benefits due hereunder but not paid to the Participant prior to his death. Payment shall be made at the same time as if the Participant had retired on the date of his death and in accordance with the Participant’s distribution election in effect at his death. The Beneficiary may request a change in the form of payment by making a written request to the Compensation Committee prior to January 1 of the calendar year in which the benefit will be paid. The Compensation Committee has sole discretion and authority to approve or deny the Beneficiary’s request, |
A1-6.4 | Disability. A Participant shall be entitled to payment of his 401(k) Excess Plan benefit in the event of his Total Disability only if the conditions of Subsections A1-6.4.1 and A1-6.4.2 are met. In such situation, payment of the Participant's benefit shall commence pursuant to Sections A1-6.1 or A1-6.2 as if the Participant separated from service on the date all such conditions are met. A Participant shall be considered to have a Total Disability only if: |
A1-6.4.1 | The Participant has incurred a "Total Disability" as such term is defined in the SunTrust Banks, Inc. Long-Term Disability Plan (or any successor plan), which entitle the Participant to disability payments under such Plan; and |
A1-6.4.2 | The Compensation Committee determines, in its sole discretion, based upon medical evidence furnished by the Participant, that the disability is anticipated to be a permanent disability. |
A1-6.5 | Extreme Financial Hardship. A Participant may request a distribution of all or part of his vested 401(k) Excess Plan benefit prior to the date specified in Sections A1-6.1 through A1-6.4 due to an extreme financial hardship, by submitting a written request to the Compensation Committee with evidence satisfactory to the Compensation Committee to demonstrate the circumstances constituting the extreme financial hardship. The Compensation Committee, in its sole discretion, shall determine whether an extreme financial hardship exists. An extreme financial hardship means an immediate, catastrophic financial need of the Participant occasioned by (i) a tragic event, such as the death, total disability, serious injury or illness of a Participant or the Participant’s spouse, child or dependent; or (ii) an extreme financial reversal or other impending catastrophic event which has resulted in, or will result in, harm to the Participant or the Participant’s spouse, child or dependent. |
A1-6.5.1 | Form and Commencement. A hardship distribution to a Participant pursuant to this Section A1-6.5 shall be made in a single lump-sum cash payment (less withholding for applicable federal and state taxes) as soon as practicable after the Compensation Committee approves the hardship request. Amounts distributed for hardship shall be deemed to reduce pro rata the deemed investment in each Investment Fund, including any Employer Stock, in the Participant’s Account. |
A1-6.5.2 | Accelerated Installment Payments. A Participant who has commenced receiving installment payments pursuant to Section A1-6.2 may request acceleration of such payments in the event of an extreme financial hardship. The Compensation Committee may permit accelerated payments to the extent such accelerated payment does not exceed the amount necessary to meet the extreme financial hardship. |
A1-6.6 | Payment to Guardian, Legal Representative or Other. If a benefit hereunder is payable to a minor or a person declared incompetent or to a person incapable of handling the disposition of his property, the Compensation Committee may direct payment of such Plan benefit to the guardian, legal representative or person having the care and custody of such minor, incompetent or person. The Compensation Committee may require proof of incompetency, minority, incapacity or guardianship as it may deem appropriate prior to distribution of the benefit. A payment pursuant to this Section A1-6.6 shall completely discharge the Compensation Committee and the Corporation from all liability with respect to such benefit. |
A1-9.8 | Right to Amend or Terminate Plan. The Corporation expects to continue this 401(k) Excess Plan indefinitely, but reserves the right to amend or discontinue the 401(k) Excess Plan should it deem such an amendment or discontinuance necessary or desirable, subject to the restrictions on amendments after a Change in Control. The Corporation hereby authorizes and empowers the Compensation Committee to amend this 401(k) Excess Plan in any manner that is consistent with the purpose of this 401(k) Excess Plan as set forth above, without further approval from the Board except as to any matter that the Compensation Committee determines may result in a material increased cost to the Corporation. However, if the Corporation or Compensation Committee should amend or discontinue this 401(k) Excess Plan, the Corporation shall be liable for any contributions and earnings thereon that have accrued and are vested as of the date of such action. |
A2-5.1 | Generally. Except as provided in Section 4.3 with respect to excess matching contributions which are deemed a forfeiture and in Section A2-5.2, a Participant’s interest in his benefit under the 401(k) Excess Plan is one hundred percent (100%) vested and nonforfeitable at all times. |
A2-5.2 | Exception. A Participant and his Beneficiary shall completely forfeit that portion of his benefit under the 401(k) Excess Plan attributable to Employer matching contributions pursuant to Sections 4.3 and 4.6 (whenever allocated) if the Participant is terminated for Cause by the Corporation or an Affiliate. Forfeiture under this Section A2-5.2 shall be in addition to any other remedies which may be available to the Corporation or an Affiliate at law or in equity. This Section A2-5.2 shall not apply to any Participant to whom Article 7 applies or to any ANEX Plan Frozen Balance. |
A2-6.1 | Normal Form of Payment and Commencement. Except as otherwise provided in this Article 6, when a Participant Separates from Service with the Corporation and its Affiliates for any reason, he shall be paid his 401(k) Excess Plan benefit in a single lump-sum cash payment during the first quarter of the calendar year immediately following the year of his Separation from Service. The amount payable to the Participant shall be equal to the balance of the Participant’s Account as of the Valuation Date immediately preceding the date of distribution, less any required withholding for applicable federal and state income taxes and employment taxes in accordance with Section 9.9. |
A2-6.2 | Alternate Form of Payment Election. A Participant who does not wish to have his benefit under this 401(k) Excess Plan paid in a lump sum pursuant to Section A2-6.1 may elect on a Deferral Election Form to have the portion of his Account related to amounts deferred pursuant to the Deferral Election Form (and earnings thereon) distributed in five (5) annual installments, with the first payment commencing in the first quarter of the calendar year immediately following the year in which the Participant’s Separation from Service occurs. Each subsequent annual installment shall be paid during the first quarter of each of the subsequent four (4) calendar years. |
A2-6.2.1 | Procedure for Installment Election. A Participant’s election to receive installment payments of the portion of his Account described above in Section A2-6.2 shall be made on such forms, written or electronic, as may be provided by the Compensation Committee and shall not be effective until received and approved by the Compensation Committee by the relevant Election Date in accordance with Section 2.1. Each installment payment shall be determined based on the vested balance of such portion of the Participant’s Account as of the Valuation Date immediately preceding the date of payment. |
A2-6.2.2 | Cash-Out. Notwithstanding any elections by a Participant, effective on and after January 1, 2009, if the sum of a Participant’s vested Account balance under this 401(k) Excess Plan and any other account balance plan, as described in Treas. Reg. § 1.409A-1(c)(2)(i), is less than the applicable dollar amount under Code section 402(g)(1)(B) at the time of payment, the full vested Account balance shall be distributed in a lump sum payment during the first quarter of the calendar year immediately following the year in which his Separation from Service occurs, subject to the delay for Key Employee as set forth in Section A2-6.3. |
A2-6.3 | Key Employee Delay. Notwithstanding anything herein to the contrary, distributions may not be made to a Key Employee upon a Separation from Service before the date which is six (6) months after the date of the Key Employee’s Separation from Service (or, if earlier, the date of death of the Key Employee). Any payments that would otherwise be made during this period of delay shall be accumulated and paid in the seventh month following the Participant’s Separation from Service. |
A2-6.4 | Subsequent Deferral Election. A Participant may make one or more subsequent elections to change the time or form of a distribution for a deferred amount in accordance with the procedures and distribution rules established by the Compensation Committee, but any change in the election shall be effective only if the following conditions are satisfied: |
A2-6.4.1 | The new election may not take effect until at least twelve (12) months after the date on which the new election is made; |
A2-6.4.2 | In the case of an election to change the time or form of a distribution under Section A2-6.1 (lump sum payment after Separation from Service) or A2-6.2 (installments after Separation from Service), a distribution may not be made earlier than at least five (5) years from the date the distribution would have otherwise been made; and |
A2-6.4.3 | The new election must be made at least twelve (12) months before the date the distribution is scheduled to be paid. |
A2-6.5 | Payment of Death Benefit. Notwithstanding any elections by the Participant or provisions of the 401(k) Excess Plan to the contrary, if a Participant dies at any time (including after his Separation from Service), the Compensation Committee shall authorize payment to the Participant’s Beneficiary of any vested benefits due under the 401(k) Excess Plan but not paid to the Participant prior to his death. Payment of the Participant's vested Account balance shall be distributed to the Beneficiary in a lump sum payment in the first quarter of the calendar year immediately following the year of the Participant's death (provided that any payment that would occur before such calendar quarter shall be paid as scheduled). |
A2-6.6 | Disability. Notwithstanding any elections by a Participant or provisions of the 401(k) Excess Plan to the contrary, if a Participant becomes Disabled at any time, then his vested Account balance will be distributed to the Participant in a lump sum payment in the first quarter of the c |
A2-6.7 | Withdrawals for Unforeseeable Emergency. A Participant may withdraw all or any portion of his vested Account balance for an Unforeseeable Emergency. The amounts distributed with respect to an Unforeseeable Emergency may not exceed the amounts necessary to satisfy such Unforeseeable Emergency plus amounts necessary to pay taxes reasonably anticipated as a result of the distribution, after taking into account the extent to which such hardship is or may be relieved through reimbursement or compensation by insurance or otherwise or by liquidation of the Participant’s assets (to the extent the liquidation of such assets would not itself cause severe financial hardship) or by cessation of deferrals under this 401(k) Excess Plan. |
A2-6.7.1 | Definition. “Unforeseeable Emergency” means, for this purpose, a severe financial hardship to a Participant resulting from an illness or accident of the Participant, the Participant’s spouse, or a dependent (as defined in Code section 152(a)) of the Participant, loss of the Participant’s property due to casualty, or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant. |
A2-6.7.2 | Participant Evidence. The Compensation Committee shall have the authority to require the Participant to provide such evidence as it deems necessary to determine whether distribution is warranted pursuant to this Section A2-6.7. The Compensation Committee shall use uniform and nondiscriminatory standards in reviewing any requests for distributions to meet an Unforeseeable Emergency. Amounts distributed under this Section A2-6.7 shall be deemed to reduce pro rata the deemed investment in each Investment Fund in the Participant’s Account. |
A2-6.7.3 | Accelerated Payments. A Participant who has commenced receiving installment payments pursuant to Section A2-6.2 shall receive an accelerated payment of such installments under this Section A2-6.7.3 to the extent such accelerated payment does not exceed the amount necessary to meet the Unforeseeable Emergency. |
A2-6.8 | Special One-Time Election. Notwithstanding any prior elections or 401(k) Excess Plan provisions to the contrary, a Participant who was an e |
A2-6.9 | Pre-2005 Deferrals. Notwithstanding the foregoing, Part A1 of this Addendum A governs the distribution of amounts that were earned and vested (within the meaning of Code section 409A and regulations thereunder) under the 401(k) Excess Plan prior to 2005 (and earnings thereon) and are exempt from the requirements of Code section 409A. |
A2-6.10 | Effect of Taxation. If a portion of the Participant’s Account balance is includible in income under Code section 409A, such portion shall be distributed immediately to the Participant. |
A2-6.11 | Permitted Delays. Notwithstanding the foregoing, any payment to a Participant under the 401(k) Excess Plan shall be delayed upon the Compensation Committee’s reasonable anticipation that the making of the payment would violate Federal securities laws or other applicable law; provided that any payment delayed pursuant to this Section A2-6.11 shall be paid in accordance with Code section 409A on the earliest date on which the Corporation reasonably anticipates that the making of the payment will not cause a violation of Federal securities laws or other applicable law. |
A2-7.1 | Purpose. The purpose of this Article 7 is to provide protection for the benefits payable under this 401(k) Excess Plan to a Participant who is affected by a Change in Control (as defined below). |
A2-7.2 | Definitions. The following terms shall have the meanings set forth opposite such terms for purposes of this Article 7. |
A2-7.2.1 | Affiliate means as of any date any organization which is a member of a controlled group of corporations (within the meaning of Code section 414(b)) which includes the Corporation or a controlled group of trades or businesses (within the meaning of Code section 414(c)) which includes the Corporation. |
A2-7.2.2 | Change in Control means a “change in 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 promulgated under the Securities Exchange Act of 1934 as amended and in effect at the time of such “change in control” (the “Exchange Act”), provided that such a change in control shall be deemed to have occurred at such time as (i) any “person” (as that term is used in Sections 13(d) and 14(d)(2) of the Exchange Act), is or becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) directly or indirectly, of securities representing 20% or more of the combined voting power for election of directors of the then outstanding securities of the Corporation or any successor of the Corporation; (ii) during any period of two (2) consecutive years or less, individuals who at the beginning of such period constitute the Board cease, for any reason, to constitute a majority of the Board, unless the election or nomination for election of each new director was approved by a vote of at least two-thirds of the directors then still in office who were directors at the beginning of the period; (iii) there is a consummation of any reorganization, merger, consolidation or share exchange as a result of which the common stock of the Corporation shall be changed, converted or exchanged into or for securities of another corporation (other than a merger with a wholly-owned subsidiary of the Corporation) or any dissolution or liquidation of the Corporation or any sale or the disposition of 50% or more of the assets or business of the Corporation; or (iv) there is a consummation of any reorganization, merger, consolidation or share exchange unless (A) the persons who were the beneficial owners of the outstanding shares of the common stock of the Corporation immediately before the consummation of such transaction beneficially own more than 65% of the outstanding shares of the common stock of the successor or survivor corporation in such transaction immediately following the consummation of such transaction and (B) the number of shares of the common stock of such successor or survivor corporation beneficially owned by the persons described in Section A2-7.2.2(iv)(A) immediately following the consummation of such transaction is beneficially owned by each such person in substantially the same proportion that each such person had beneficially owned shares of the Corporation’s common stock immediately before the consummation of such transaction, provided (C) the percentage described in Section A2-7.2.2(iv)(A) of the beneficially owned shares of the successor or survivor |
A2-7.3 | Amendment Restrictions. If there is a Change in Control, no amendment shall be made to this 401(k) Excess Plan thereafter which would adversely affect in any manner whatsoever the benefit payable under this 401(k) Excess Plan to any Participant absent the express written consent of all Participants who might be adversely affected by such amendment if this Article 7 were, or could become, applicable to such Participants, and the Corporation intends that each Participant rely on the protections which the Corporation intends to provide through this Article 7. Notwithstanding the foregoing, the Corporation may amend this 401(k) Excess Plan without Participant consent to the extent such an amendment is required by law or is necessary or desirable to prevent adverse tax consequences to Participants or their Beneficiaries provided that the Corporation obtains the written opinion of outside counsel that such an amendment is required by law or is necessary or desirable to prevent adverse tax consequences to Participants or their Beneficiaries. |
A2-9.8 | Right to Amend or Terminate Plan. The Corporation expects to continue this 401(k) Excess Plan indefinitely, but reserves the right to amend or discontinue the 401(k) Excess Plan should it deem such an amendment or discontinuance necessary or desirable. The Corporation hereby authorizes and empowers the Compensation Committee appointed to administer this 401(k) Excess Plan to amend this 401(k) Excess Plan in any manner that is consistent with the purpose of this 401(k) Excess Plan as set forth above, without further approval from the Board or the Compensation Committee except as to any matter that the Compensation Committee determines may result in a material increased cost to the Corporation or its Affiliates. However, if the Corporation or Compensation Committee should amend or discontinue this 401(k) Excess Plan, the Corporation shall be liable for payment of any amounts deferred under this 401(k) Excess Plan and earnings thereon that have accrued and are vested as of the date of such action. |
A2-9.8.1 | Distribution of Accounts. If the Corporation terminates the 401(k) Excess Plan, distribution of balances in Accounts shall be made to Participants and Beneficiaries in the manner and at the time as provided in Article 6, unless the Corporation determines in its sole discretion that all such amounts shall be distributed upon termination in accordance with the requirements under Code section 409A. |
A2-9.8.2 | 409A Requirements. Notwithstanding the foregoing, no amendment of the 401(k) Excess Plan shall apply to amounts that were earned and vested (within the meaning of Code section 409A and regulations thereunder) under the 401(k) Excess Plan prior to 2005, unless the amendment specifically provides that it applies to such amounts. The purpose of this restriction is to prevent an 401(k) Excess Plan amendment from resulting in an inadvertent “material modification” to amounts that are “grandfathered” and exempt from the requirements of Code section 409A. |
B1-6.1. | Normal Form of Payment and Commencement. Except as otherwise provided in this Section B1-6.1, when the Participant separates from service with SunTrust and its Affiliates for any reason, he shall be paid his vested benefit under this Plan in a single lump sum cash payment during the first quarter of the calendar year immediately following the year of his separation. The amount payable to the Participant shall be equal to the vested balance of the Participant’s Account as of the Valuation Date immediately preceding the date of distribution, less withholding for applicable federal and state taxes. |
B1-6.2 | Alternate Form of Payment Election. A Participant may elect, in lieu of the lump-sum payment described in Section B1-6.1, to receive payment of his total vested benefit under this Plan in five (5) substantially equal annual installments, payable in cash; provided that such election is effective, as set forth below, at least twelve (12) months before the scheduled payment date following the Participant’s separation from service. The initial installment shall be paid during the first quarter of the calendar year immediately following the year of his separation. Each subsequent annual installment shall be paid during the first quarter of each of the subsequent four (4) calendar years. Each installment payment shall be determined based on the balance of the Participant’s Account as of the Valuation Date immediately preceding the date of payment and shall be reduced by withholding for applicable federal and state taxes. A Participant’s election to receive installment payments of his Plan benefit pursuant to this Section B1-6.2 shall be made in writing on such forms as may be provided by the Committee and shall not be effective until received and approved by the Committee. |
B1-6.3 | In-Service Distribution Election without Reduction. A Participant may file an election with the Committee for a future in-service distribution of his deferred Award(s) for each Plan Year without incurring a penalty, provided the election is made no less than four (4) years and no more than fifteen (15) years prior to the Designated Distribution Date. A Participant's election for an in-service distribution pursuant to this Section B1-6.3 shall be a part of his Deferral Election Form and shall be filed with the Committee on or before the Election Date for the applicable Plan Year. |
B1-6.3.1 | Form and Commencement. An in-service distribution shall be paid in a single lump-sum cash payment during the first quarter of the calendar year in which the Designated Distribution Date occurs, based on the value of the Participant’s vested sub-account which is to be distributed in that year, as of the Valuation Date immediately preceding the date of such distribution. The amount of an in-service distribution shall be reduced by applicable withholding for federal and state taxes. |
B1-6.3.2 | Revoking In-Service Distribution Election. A Participant may revoke an election for an in-service distribution by filing a written revocation with the Committee at least one (1) year prior to the Designated Distribution Date. Upon such revocation, the provisions of Section B1-6.1 shall apply, unless the Participant makes a valid installment election payment pursuant to Section B1-6.2. |
B1-6.3.3 | Effect of Termination or Death. If a Participant should die or otherwise separate from service with SunTrust and its Affiliates before his Designated Distribution Date(s), any and all outstanding in-service distribution elections shall be automatically revoked, and any portion of his Account subject to an in-service distribution election pursuant to this Section B1-6.3 shall be paid in accordance with Section B1-6.1 or B1-6.2. |
B1-6.4 | Death. In the event of a Participant's death, the Committee shall authorize payment to the Participant's Beneficiary of any vested benefits due hereunder but not paid to the Participant prior to his death. Payment shall be made at the same time as if the Participant had retired on the date of his death and shall be made in accordance with Section B1-6.1, or if the Participant has a valid installment election in effect at his death, then in accordance with Section B1-6.2. The Beneficiary may request a change to the form of payment by making a written request to the Committee prior to the January 1 of the calendar year in which the benefit will be paid. The Committee has sole discretion and authority to |
B1-6.5 | Disability. A Participant shall be entitled to payment of his Plan benefit in the event of his Total Disability only if the conditions of Sections B1-6.5.1 and B1-6.5.2 are met. In such situation, payment of the Participant's benefit shall commence pursuant to Section B1-6.1 or B1-6.2 as if the Participant separated from service on the date all such conditions are met. A Participant shall be considered to have a Total Disability only if: |
B1-6.5.1 | The Participant has incurred a "Total Disability" as such term is defined in SunTrust Banks, Inc. Long-Term Disability Plan (or any successor plan), which entitles the Participant to disability payments under such plan; and |
B1-6.5.2 | The Committee determines, in its sole discretion, based upon medical evidence furnished by the Participant, that the disability is anticipated to be a permanent disability. |
B1-6.6 | Extreme Financial Hardship. A Participant may request a distribution of all or part of his vested Plan benefit prior to the date specified in Sections B1-6.1, B1-6.2, B1-6.3, and B1-6.5 due to an extreme financial hardship, by submitting a written request to the Committee with evidence satisfactory to the Committee to demonstrate the circumstances constituting the extreme financial hardship. The Committee, in its sole discretion, shall determine whether an extreme financial hardship exists. An extreme financial hardship means an immediate, catastrophic financial need of the Participant occasioned by (i) a tragic event, such as the death, total disability, serious injury or illness of a Participant or the Participant’s spouse, child or dependent; or (ii) an extreme financial reversal or other impending catastrophic event which has resulted in, or will result in, harm to the Participant or the Participant’s spouse, child or dependent. A distribution for extreme financial hardship may not exceed the amount required to meet the hardship and may be made only if the Committee finds the extreme financial hardship may not be alleviated |
B1-6.6.1 | Form and Commencement. A hardship distribution to a Participant pursuant to this Section B1-6.6 shall be made in a single lump-sum cash payment (less withholding for applicable federal and state taxes) as soon as practicable after the Committee approves the hardship request. Amounts distributed for hardship shall be deemed to reduce pro rata the deemed investment in each Investment Fund in the Participant's Account. |
B1-6.6.2 | Accelerated Installment Payments. A Participant who has commenced receiving installment payments pursuant to Section B1-6.2 may request acceleration of such payments in the event of an extreme financial hardship. The Committee may permit accelerated payments to the extent such accelerated payment does not exceed the amount necessary to meet the extreme financial hardship. |
B1-6.7 | Early Withdrawal Election with 10% Reduction. A Participant may file a written election with the Committee to receive an early withdrawal of any vested portion of his Account, provided, however, that such early withdrawal payment shall be subject to a 10% forfeiture, which shall reduce the balance of the Participant’s Account. An early withdrawal payment shall be made in a single lump-sum cash payment (less applicable withholding for federal and state taxes) as soon as practicable after the Committee receives and approves a written request for early withdrawal. Amounts withdrawn under this Section B1-6.7 shall be deemed to reduce pro rata the deemed investment in each Investment Fund in the Participant's Account. A Participant who receives an early withdrawal may not make an election under Section 3.2 of the Plan to defer his Award(s) for a one (1) year period beginning on the first date at which the application of such cancellation would not violate Code section 409A. |
B1-6.8 | Payment to Guardian, Legal Representative or Other. If a benefit hereunder is payable to a minor or a person declared incompetent or to a person incapable of handling the disposition of his property, the |
B1-8.7 | Right to Amend or Terminate Plan. The amendment or termination of the Plan with respect to the Grandfathered Amounts shall be made in accordance with the Plan terms as in effect on October 3, 2004 and as summarized in this Section B1-8.7. SunTrust expects to continue this Plan indefinitely, but reserves the right to amend or discontinue the Plan should it deem such an amendment or discontinuance necessary or desirable. SunTrust hereby authorizes and empowers the Committee to amend this Plan in any manner that is consistent with the purpose of this Plan as set forth above, without further approval from the Board except as to any matter that the Committee determines may result in a material increased cost to SunTrust. However, if SunTrust or Committee should amend or discontinue this Plan, SunTrust shall be liable for payment of any Awards deferred under this Plan and earnings thereon that have accrued and are vested as of the date of such action. |
B2-6.1 | Generally. Except as provided in Section B2-6.2, a Participant’s interest in his benefit under this Plan is one hundred percent (100%) vested and nonforfeitable at all times. |
B2-6.2 | Exception. If a Participant’s Account has been credited with an amount that is subject to a vesting period (as defined in the Eligible Plan), and the Participant terminates employment with SunTrust and its Affiliates for any reason prior to meeting the vesting requirements for such amount, then that portion of the amount that is not vested, and the earnings on such nonvested portion shall be forfeited and deducted from the Participant’s Account. Notwithstanding the foregoing: (1) an Eligible |
B2-6.3 | Change in Control. Unless an Eligible Plan provides for some other treatment, if a Participant’s employment with SunTrust or any Affiliate or their successors is terminated without Cause within three (3) years of a Change in Control, any portion of the Participant’s Account that was nonvested at the Change in Control and has not yet vested shall become fully vested immediately prior to the effective time of the Participant’s termination of employment. A Participant’s voluntary termination of employment, including a Participant’s Retirement or voluntary resignation, is not considered termination for Cause for purposes of vesting under this Section B2-6.3. |
B2-7.1 | Normal Form of Payment and Commencement. Except as otherwise provided in this Article 7, when a Participant Separates from Service for any reason, he shall be paid his vested benefit under this Plan in a single lump sum cash payment during the first quarter of the calendar year immediately following the year in which his Separation from Service occurs. The amount payable to the Participant shall be equal to the vested balance of the Participant’s Account as of the Valuation Date immediately preceding the date of distribution. |
B2-7.2 | Alternate Form of Payment Election. A Participant who does not wish to have his benefit under this Plan paid in a lump sum pursuant to Section B2-7.1 may elect on a Deferral Election Form to have the portion of his |
B2-7.2.1 | Procedure for Installment Election. A Participant’s election to receive installment payments of the portion of his Account described above in Section B2-7.2 shall be made on such forms, written or electronic, as may be provided by the Committee and shall not be effective until received and approved by the Committee by the relevant Election Date in accordance with Section 3.2. Each installment payment shall be determined based on the vested balance of such portion of the Participant’s Account as of the Valuation Date immediately preceding the date of payment. |
B2-7.2.1 | Cash-Out. Notwithstanding any elections by a Participant, effective on and after January 1, 2009, if the sum of a Participant’s vested Account balance under this Plan and any other account balance plan, as described in Treas. Reg. § 1.409A-1(c)(2)(i), is less than the applicable dollar amount under Code section 402(g)(1)(B) at the time of payment, the full vested Account balance shall be distributed in a lump sum payment during the first quarter of the calendar year immediately following the year in which his Separation from Service occurs, subject to the delay for Key Employee as set forth in Section B2-7.3. |
B2-7.3 | Key Employee Delay. Notwithstanding anything herein to the contrary, distributions may not be made to a Key Employee upon a Separation from Service before the date which is six (6) months after the date of the Key Employee’s Separation from Service (or, if earlier, the date of death of the Key Employee). Any payments that would otherwise be made during this period of delay shall be accumulated and paid in the seventh month following the Participant’s Separation from Service. |
B2-7.4 | In-Service Distribution Election. Unless the Committee announces otherwise for a Plan Year, a Participant may elect on a Deferral Election Form to have the portion of his Account related to amounts deferred under such Deferral Election Form (and earnings thereon) paid to the Participant as of a Specified Date. The deferred amount subject to this election will be paid in a lump sum on the Designated Distribution Date, based on the value of the Participant’s vested sub-account which is to be |
B2-7.4.1 | Filing with Committee. A Participant’s election for an in-service distribution pursuant to this Section B2-7.4 shall be a part of his Deferral Election Form and shall be filed with the Committee on or before the Election Date for the applicable Plan Year in accordance with Section 3.2. If a Participant should Separate from Service with SunTrust and its Affiliates before his Designated Distribution Date(s), any portion of his Account subject to an in-service distribution election pursuant to this Section B2-7.4 shall be paid in accordance with Sections B2-7.1 and B2-7.3. |
B2-7.4.2 | Sub-Account. The portion of a Participant’s Account to which an in-service distribution election applies pursuant to this Section B2-7.4 shall be maintained as a sub-account of the Participant’s Account unless all of the amounts deferred pursuant to this Plan are subject to an in-service distribution election with the same Designated Distribution Date. Amounts deferred and not subject to an in-service distribution election shall be distributed pursuant to Section B2-7.1 or B2-7.2. |
B2-7.5 | Subsequent Deferral Election. A Participant may make one or more subsequent elections to change the time or form of a distribution for a deferred amount in accordance with the procedures and distribution rules established by the Committee, but any change in the election shall be effective only if the following conditions are satisfied: |
B2-7.5.1 | The new election may not take effect until at least twelve (12) months after the date on which the new election is made; |
B2-7.5.2 | In the case of an election to change the time or form of a distribution under Section B2-7.1 (lump sum payment after Separation from Service), B2-7.2 (installments after Separation from Service), or B2-7.4 (in-service distribution), a distribution may not be made earlier than at least five (5) years from the date the distribution would have otherwise been made; and |
B2-7.5.3 | In the case of an election to change the time or form of an in-service distribution under Section B2-7.4, the election must be made at least twelve (12) months before the date the distribution is scheduled to be paid. |
B2-7.6 | Payment of Death Benefit. Notwithstanding any elections by the Participant or provisions of the Plan to the contrary, if a Participant dies at any time (including after his Separation from Service), the Committee shall authorize payment to the Participant’s Beneficiary of any vested benefits due under the Plan but not paid to the Participant prior to his death. Payment of the Participant's vested Account balance shall be distributed to the Beneficiary in a lump sum payment in the first quarter of the calendar year immediately following the year of the Participant's death (provided that any payment that would occur before such calendar quarter shall be paid as scheduled). |
B2-7.7 | Disability. Notwithstanding any elections by a Participant or provisions of the Plan to the contrary, if a Participant becomes Disabled at any time, then his vested Account balance will be distributed to the Participant in a lump sum payment in the first quarter of the calendar year immediately following the year in which the Participant becomes Disabled (provided that any payment that would occur before such calendar quarter shall be paid as scheduled). |
B2-7.8 | Withdrawals for Unforeseeable Emergency. A Participant may withdraw all or any portion of his vested Account balance for an Unforeseeable Emergency. The amounts distributed with respect to an Unforeseeable Emergency may not exceed the amounts necessary to satisfy such Unforeseeable Emergency plus amounts necessary to pay taxes reasonably anticipated as a result of the distribution, after taking into account the extent to which such hardship is or may be relieved through reimbursement or compensation by insurance or otherwise or by liquidation of the Participant’s assets (to the extent the liquidation of such assets would not itself cause severe financial hardship) or by cessation of deferrals under this Plan. |
B2-7.8.1 | Definition. “Unforeseeable Emergency” means, for this purpose, a severe financial hardship to a Participant resulting from an illness or accident of the Participant, the Participant’s spouse, or a dependent (as defined in Code section 152(a)) of the Participant, loss of the Participant’s property due to casualty, or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant. |
B2-7.8.2 | Participant Evidence. The Committee shall have the authority to require the Participant to provide such evidence as it deems necessary to determine whether distribution is warranted pursuant to this Section B2-7.8. The Committee shall use uniform and nondiscriminatory standards in reviewing any |
B2-7.8.3 | Accelerated Payments. A Participant who has commenced receiving installment payments pursuant to Section B2-7.2 shall receive an accelerated payment of such installments under this Section B2-7.8.3 to the extent such accelerated payment does not exceed the amount necessary to meet the Unforeseeable Emergency. |
B2-7.9 | Distribution of Mandatory Deferrals. Unless otherwise elected by a Participant in accordance with Section 3.2 and the procedures and distribution rules established by the Committee, the vested portion of each Mandatory Deferral shall be paid in a lump sum upon the earlier of: (a) the Specified Date for each Mandatory Deferral set forth in the Eligible Plan; or (b) the Participant’s Separation from Service. In the event the Participant’s Separation from Service occurs before any such Specified Date, the lump sum payment shall be made in the first quarter of the calendar year immediately following the year of the Participant’s Separation from Service, subject to the delay in payment for Key Employees as set forth in Section B2-7.3. |
B2-7.10 | Special One-Time Election. Notwithstanding any prior elections or Plan provisions to the contrary, a Participant who was an employee of SunTrust and its Affiliates (including on a paid leave of absence) may have made an election to receive all or a specified portion of his or her Account pursuant to Section B2-7.1, B2-7.2, or B2-7.4. Any such election must have become irrevocable on or before December 31, 2008 and must have been made in accordance with the procedures and distribution rules established by the Committee and the transition rules under Code section 409A. |
B2-7.11 | Pre-2005 Deferrals. Notwithstanding the foregoing, Part B1 of this Addendum B governs the distribution of amounts that were earned and vested (within the meaning of Code section 409A and regulations thereunder) under the Plan prior to 2005 (and earnings thereon) and are exempt from the requirements of Code section 409A. |
B2-7.12 | Effect of Taxation. If a portion of the Participant’s Account balance is includible in income under Code section 409A, such portion shall be distributed immediately to the Participant. |
B2-7.13 | Permitted Delays. Notwithstanding the foregoing, any payment to a Participant under the Plan shall be delayed upon the Committee’s reasonable anticipation that the making of the payment would violate Federal securities laws or other applicable law; provided that any payment delayed pursuant to this Section B2-7.13 shall be paid in accordance with Code section 409A on the earliest date on which SunTrust reasonably anticipates that the making of the payment will not cause a violation of Federal securities laws or other applicable law. |
B2-9.8 | Right to Amend or Terminate Plan. SunTrust expects to continue this Plan indefinitely, but reserves the right to amend or discontinue the Plan should it deem such an amendment or discontinuance necessary or desirable. SunTrust hereby authorizes and empowers the Committee appointed to administer this Plan to amend this Plan in any manner that is consistent with the purpose of this Plan as set forth above, without further approval from the Board of Directors or the Compensation Committee of SunTrust except as to any matter that the Committee determines may result in a material increased cost to SunTrust or its Affiliates. However, if SunTrust or Committee should amend or discontinue this Plan, SunTrust shall be liable for payment of any amounts deferred under this Plan and earnings thereon that have accrued and are vested as of the date of such action. |
B2-9.8.1 | Distribution of Accounts. If SunTrust terminates the Plan, distribution of balances in Accounts shall be made to Participants and Beneficiaries in the manner and at the time as provided in Article 7, unless SunTrust determines in its sole discretion that all such amounts shall be distributed upon termination in accordance with the requirements under Code section 409A. |
B2-9.8.2 | 409A Requirements. Notwithstanding the foregoing, no amendment of the Plan shall apply to amounts that were earned and vested (within the meaning of Code section 409A and regulations thereunder) under the Plan prior to 2005, unless the amendment specifically provides that it applies to such amounts. The purpose of this restriction is to prevent a Plan amendment from resulting in an inadvertent “material modification” to amounts that are “grandfathered” and exempt from the requirements of Code section 409A. |
2.1 | Account means the bookkeeping account established by SunTrust for each Participant electing to defer Eligible Income or being credited with Mandatory Deferrals under the Plan. A Participant’s Account shall be utilized solely as a device for the determination and measurement of the amount of benefits to be paid to the Participant pursuant to this Plan. A Participant’s Account shall not constitute or be treated as a trust fund of any kind and may be divided into one or more sub-accounts, depending on the source of contributions, the type of Investment Fund selected or the distribution timing and payment method. |
2.2 | Affiliate means any corporation or other entity that is treated as a single employer with SunTrust under Code sections 414(b) or (c). |
2.3 | AIP means SunTrust Banks, Inc. Annual Incentive Plan, as amended from time to time. |
2.4 | Base Salary means the pre-tax amount of an Eligible Employee’s regular base salary from SunTrust and all Affiliates as in effect from time to time during a Plan Year, disregarding any deferrals or withholdings from such base salary and including any compensation classified on the payroll as vacation pay or sick pay earned during that Plan Year. Base Salary shall not include any amount of an Eligible Employee’s base salary payable in a form denominated by the Committee as “salary shares” or “salary units.” |
2.5 | Beneficiary means one or more persons or one or more entities entitled to receive any benefits payable under this Plan at the Participant’s death. A Participant may name one or more primary Beneficiaries and one or more secondary Beneficiaries. A Participant may revoke a Beneficiary designation by filing a new beneficiary designation form or a written revocation with the Plan Administrator. If the Plan Administrator is not in receipt of a properly completed beneficiary designation form at the Participant’s death, or if none of the Beneficiaries named by the Participant survives the Participant or is in existence at the date of the Participant’s death, then the Participant’s Beneficiary shall be the Participant’s estate. |
2.6 | Board means the Board of Directors of SunTrust. |
2.7 | Cause means for purposes of this Plan and as determined by the Plan Administrator, in its sole discretion, one or more of the following actions that serves as the primary reason(s) for the termination of the Participant’s employment with SunTrust or an Affiliate: |
(a) | the Participant’s willful and continued failure to perform his job duties in a satisfactory manner after written notice from SunTrust to Participant and a thirty (30) day period in which to cure such failure; |
(b) | the Participant’s conviction of a felony or engagement in a dishonest act, misappropriation of funds, embezzlement, criminal conduct or common law fraud; |
(c) | the Participant’s material violation of the Code of Business Conduct and Ethics of SunTrust or the Code of Conduct of an Affiliate; |
(d) | the Participant’s engagement in an act that materially damages or materially prejudices SunTrust or an Affiliate or the Participant’s engagement in activities materially damaging to the property, business or reputation of SunTrust or an Affiliate; or |
(e) | the Participant’s failure and refusal to comply in any material respect with the current and any future amended policies, standards and regulations of SunTrust, any Affiliate and their regulatory agencies, if such failure continues after written notice from SunTrust to the Participant and a thirty (30) day period in which to cure such failure, or the determination by any such governing agency that the Participant may no longer serve as an officer of SunTrust or an Affiliate. |
2.8 | Change in Control means a change in control of SunTrust 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 in effect at the time of such “change in control”, provided that such a change in control shall be deemed to have occurred at such time as (i) any “person” (as that term is used in Sections 13(d) and 14(d)(2) of the |
2.9 | Code means the Internal Revenue Code of 1986, as amended. |
2.10 | Committee means the Compensation Committee of the Board. |
2.11 | Company Contribution means the amount credited to a Participant’s Company Contribution Account, as described in Section 3.5. |
2.12 | Company Contribution Account means a bookkeeping account established by SunTrust for each Participant credited with Company Contributions or True-Up Contributions. |
2.13 | Date of Hire means the date of an Employee’s first day of active employment with SunTrust or an Affiliate. |
2.14 | Deferral Election Form means the form that a Participant uses to elect to defer receipt of all or a portion of his Eligible Income and/or to elect the time or form of payment for an amount deferred under this Plan. |
2.15 | Designated Distribution Date means the date determined by the Plan Administrator within the first quarter of the calendar year selected by a Participant as the Specified Date for payment of an in-service distribution pursuant to Section 7.4. |
2.16 | Disabled or Disability means a Participant is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Participant’s employer and, in addition, has begun to receive benefits under SunTrust’s Long-Term Disability Plan. |
2.17 | Eligible Employee means an Employee who is selected by the Plan Administrator as eligible to make a deferral election under this Plan and who belongs to a “select group of management or highly compensated employees,” as such phrase is defined under ERISA. Generally, an Eligible Employee means an Employee participating in the AIP and in Grade 52 or higher, an Employee in Grade 53 or higher, or an Employee otherwise designated by the Plan Administrator based on other eligibility criteria, such as a minimum compensation level or prior participation in the 401(k) Excess Plan or the Prior Deferred Compensation Plan. The Plan Administrator, in its sole discretion, may: (a) change such requisite grade level and may determine other appropriate grade levels for elective deferrals to this Plan on an individual basis, (b) establish minimum compensation levels required for Eligible Employees, and (c) determine whether an Eligible Employee may defer Base Salary. For purposes of the Company Discretionary Contribution under Section 3.5(b), an Employee must be (a) an Eligible Employee prior to the beginning of the Plan Year for which the contribution is made or (b) a Newly Hired Eligible Employee during the Plan Year for which the contribution is made. If an employee becomes an Eligible Employee for purposes of this Plan after the beginning of a Plan Year, but is not a Newly Hired Eligible Employee, he is not eligible for the Company Discretionary Contribution under Section 3.5(b) for that Plan Year. |
2.18 | Eligible Income means Base Salary and Incentive Awards. |
2.19 | Eligible Plans mean the AIP and the functional incentive plans sponsored by SunTrust or an Affiliate and approved by the Plan Administrator that provide for bonus, incentive, commission or similar variable pay to Employees, which pay is approved as eligible for voluntary or mandatory deferral under this Plan. |
2.20 | Employee means an individual who is a regular, common-law employee on the U.S. payroll of SunTrust or an Affiliate. The term “Employee” shall not include a person hired as an independent contractor, leased employee, consultant, or a person otherwise designated by SunTrust or an Affiliate as not eligible to participate in the Plan, even if such person is determined to be an “employee” of SunTrust or an Affiliate by any governmental or judicial authority. |
2.21 | ERISA means the Employee Retirement Income Security Act of 1974, as amended. |
2.22 | ERISA Excess Plan Participants mean, for purposes of determining certain Company Contributions described in Section 3.5(c), the Employees accruing benefits in the SunTrust Banks, Inc. ERISA Excess Retirement Plan, as amended and restated from time to time (the “ERISA Excess Plan”), as of December 31, 2011 and those Employees who accrued benefits under the ERISA Excess Plan during the 2011 Plan Year but terminated employment due to the circumstances set forth in Section 3.5(b)(2). |
2.23 | Incentive Award means the pre-tax amount of an Eligible Employee’s bonus, incentive or commission, or similar variable pay, disregarding any deferrals, offsets, or withholdings from such incentive award, which is earned under an Eligible Plan. Notwithstanding the foregoing, Incentive Awards shall exclude any bonus pay that is not earned under a pre-determined plan, such as any non-reoccurring promotional program, referral, signing or spot bonuses, and any bonus pay that is payable on a monthly basis under an Eligible Plan. |
2.24 | Investment Fund means each investment vehicle that, for bookkeeping purposes, is used to determine the earnings that are credited and the losses that are charged to each Participant’s Account and Company Contribution Account. The Plan Administrator shall be responsible for selecting the Investment Funds available and for adding or deleting Funds as the Plan Administrator deems appropriate from time to time. |
2.25 | Key Employee means an employee treated as a “specified employee” as of his Separation from Service under Code section 409A(a)(2)(B)(i) (i.e., a key employee (as defined in Code section 416(i) without regard to section (5) thereof)) if the common stock of SunTrust or an Affiliate is publicly traded on an established securities market or otherwise. Key Employees shall be determined in accordance with Code section 409A using a December 31 identification date. A listing of Key Employees as of an identification date shall be effective for the twelve (12) month period beginning on the April 1 following the identification date. |
2.26 | Mandatory Deferral means the amount defined in Section 3.4. |
2.27 | Newly Hired Eligible Employee means an individual who is hired by SunTrust or an Affiliate, who is not a current or former Employee and who meets the criteria for an Eligible Employee on his first Date of Hire. |
2.28 | Participant means (a) an Eligible Employee who has made a deferral election in accordance with the terms of the Plan; (b) an Employee who has had Mandatory Deferrals credited under the Plan; (c) an Employee who has a SERP Benefit credited under the Plan; (d) an Employee who is credited with a Company Contribution; or (e) an Employee or former Employee who continues to have a Plan benefit attributable to his participation in a prior plan that has not been distributed in full. An individual ceases to be a Participant when his entire benefit under the Plan has been distributed or forfeited. |
2.29 | Plan means the SunTrust Banks, Inc. Deferred Compensation Plan as described in this document, including any Addenda attached, which are incorporated herein by reference, as amended from time to time. |
2.30 | Plan Administrator means the party responsible for administering the Plan, as provided in Section 8.1. |
2.31 | Plan Year means the calendar year. |
2.32 | Restoration Plan Participants mean, for purposes of determining the Company Contribution and True-Up Contribution, if any, the participants accruing "pay credits" in the SunTrust Banks, Inc. Restoration Plan, as amended and restated from time to time, for the applicable Plan Year. For purposes of determining certain Company Contributions described in Section 3.5(c), “Restoration Plan Participants” mean the Employees accruing benefits in the SunTrust Banks, Inc. Restoration Plan, as amended and restated from time to time (the “Restoration Plan”), as of December 31, 2011 and those Employees who accrued benefits under the Restoration Plan during the 2011 Plan Year but terminated employment due to the circumstances set forth in Section 3.5(b)(2). |
2.33 | Retirement means a Participant’s Separation from Service on or after attaining age fifty-five (55) and completing at least five (5) Years of Vesting Service. |
2.34 | Retirement Plan means the SunTrust Banks, Inc. Retirement Plan, as amended and restated from time to time, and any successor plan. |
2.35 | Separation from Service or Separate from Service means a “separation from service” with SunTrust and its Affiliates within the meaning of Code section 409A. |
2.36 | SERP means the SunTrust Banks, Inc. Supplemental Executive Retirement Plan, as amended and restated from time to time. |
2.37 | SERP Account means a bookkeeping account established by SunTrust for a Participant who changes from a position eligible to participate in the SERP to one that is not eligible and credited with a SERP Benefit under Section 3.8. |
2.38 | SERP Benefit means the benefit amount determined under the SERP that is subject to Code section 409A (excluding any "Grandfathered Amounts," (as defined in the SERP)) and credited to a Participant’s SERP Account, as described in Section 3.8. |
2.39 | Specified Date means a time or a fixed schedule specified under the Plan in accordance with Treas. Reg. § 1.409A-3(a)(4). |
2.40 | SunTrust means SunTrust Banks, Inc. or any successor to SunTrust. |
2.41 | Tier 1 and Tier 2 SERP Participants mean, for purposes of determining the Company Contribution and True-Up Contribution, if any, the Tier 1 and Tier 2 participants accruing benefits in the SERP for the applicable Plan Year. |
2.42 | True-Up Contribution means the amount credited to a Participant’s Company Contribution Account, as defined in Section 3.6. |
2.43 | Valuation Date means the last day of each Plan Year and such other dates as the Plan Administrator may determine from time to time. For purposes of benefit distributions under the Plan, the Valuation Date for a distribution shall be the last date by which the Account (or sub-account) or Company Contribution Account must be valued in order to have the distribution of all or part of the Account (or sub-account) or Company Contribution Account paid on the scheduled payment date. |
2.44 | Years of Vesting Service means "Years of Vesting Service," as defined under the Retirement Plan. |
3.1 | Participation. Participation in the Plan shall be limited to Eligible Employees and certain other Employees credited with any Company Contributions, Mandatory Deferrals or SERP Benefits. The Plan Administrator shall notify any Employee of his status as an Eligible Employee at such time and in such manner as the Plan Administrator shall determine. An Employee shall become a Participant by making a deferral election as an Eligible Employee under Section 3.2 or by being credited with a Mandatory Deferral under Section 3.4, a Company Contribution under Section 3.5, or a SERP Benefit under Section 3.8. |
3.2 | Deferral Elections. An Eligible Employee may make an irrevocable election to defer the following types of Eligible Income: |
(a) | Base Salary. Certain Eligible Employees, as determined by the Plan Administrator, may elect to defer a portion of Base Salary each payroll period from 6% to 50% in one (1) percent increments. |
(b) | Incentive Awards. All Eligible Employees may elect to defer a portion of an Incentive Award from 20% to 90% in five (5) percent increments. |
3.3 | Time and Manner of Making Deferral Elections. In order to elect to defer Eligible Income earned during a Plan Year, an Eligible Employee shall file a Deferral Election Form, written or electronic, with the Plan Administrator before the beginning of such Plan Year and in accordance with procedures established by the Plan Administrator. A deferral election under this Section 3.3 shall become irrevocable once the deadline for filing such election has expired, except as provided in Section 3.7. |
(a) | Newly Hired Eligible Employee. Notwithstanding the foregoing, if an individual becomes a Newly Hired Eligible Employee after the beginning of a Plan Year, the Plan Administrator has the sole discretion to determine whether such individual may submit a |
(b) | No Commencement after Promotion or Rehire. If an employee becomes an Eligible Employee for purposes of this Plan after the beginning of a Plan Year, but is not a Newly Hired Eligible Employee, he may not participate in this Plan until the beginning of the next Plan Year, assuming that he is still an Eligible Employee and that he appropriately files a Deferral Election Form with the Plan Administrator. |
3.4 | Mandatory Deferrals. If any portion of an Incentive Award is subject to mandatory deferral as established prior to the beginning of the Plan Year in which the Incentive Award is earned or as otherwise determined by the Plan Administrator in compliance with Treas. Reg. § 1.409A-2(a)(2) (as provided in the applicable Eligible Plan) (each, a “Mandatory Deferral”), then each Mandatory Deferral shall be subject to the provisions of this Plan. With respect to each Mandatory Deferral, the terms of the Eligible Plan shall determine whether all or part of such Mandatory Deferral is subject to a vesting schedule and if so, what the vesting schedule is; and whether such Mandatory Deferral is subject to any special investment restrictions. Each Mandatory Deferral shall be credited to the Participant’s Account as soon as practicable after the amounts would have otherwise been paid and be paid in accordance with Section 7.9. |
3.5 | Company Contributions. Each Plan Year beginning effective as set forth below, SunTrust shall credit the following amounts to a Participant’s Company Contribution Account, if applicable (each, a “Company Contribution”): |
(a) | Matching Contributions. Each Plan Year beginning on and after January 1, 2012, for a Participant eligible to defer Base Salary, SunTrust shall credit to the Participant’s Company Contribution Account an amount, if any, equal to his elective deferrals credited for such Plan Year under Section 3.2 up to a maximum of 6% of the difference between Sections 3.5(d)(1) and (d)(2) below. |
(b) | Company Discretionary Contributions. SunTrust may elect for any Plan Year to make a discretionary Company Contribution. This |
(1) | are Employees on the last day of the Plan Year; or |
(2) | who cease to be Employees during the Plan Year by reason of (i) death (ii) termination of employment because of a reduction in force (i.e., they received severance pay from SunTrust or an Affiliate pursuant to the SunTrust Banks, Inc. Severance Pay Plan), (iii) termination of employment after attainment of the “early retirement age” (age 55 with 5 Years of Vesting Service for this purpose), or (iv) a Disability incurred during the Plan Year. |
(1) | 2011 Contribution. SunTrust will make a one-time special Company Contribution for the Plan Year ending December 31, 2011 in an amount equal to 5% of the difference between Sections 3.5(d)(1) and (d)(2) below on behalf of ERISA Excess Plan Participants and Restoration Plan Participants who (1) have completed twenty (20) years of Vesting Service (or Benefit Service as defined in the SunTrust Banks, Inc. Retirement Plan) or (2) have completed ten (10) years of Vesting Service (or Benefit Service as defined in the SunTrust Banks, Inc. Retirement Plan) and satisfy the “Rule of 60” (the sum of age and service equals or exceeds 60) as of December 31, 2011. Each such Employee must be an Employee on December 31, 2011 or must have ceased being an Employee during 2011 on account of one of the reasons set forth in Section 3.5(b)(2) above. |
(2) | New-Hire Contributions. SunTrust may make a one-time, discretionary Company Contribution on behalf of a Newly Hired Eligible Employee pursuant to the terms of an initial |
(d) | Eligible Income. Company Contributions under Section 3.5 (other than Section 3.5(c)(2)) will be based on the Participant’s Eligible Income as follows: |
(1) | An amount equal to the lesser of: (i) the Participant’s Eligible Income paid or deferred during the Plan Year, or (ii) two (2) times the annual compensation limit under Code section 401(a)(17) for the Plan Year (i.e., $500,000 for 2012); provided, however, for Tier 1 and Tier 2 SERP Participants and Restoration Plan Participants, this amount shall be equal to the Participant’s Eligible Income paid or deferred during the Plan Year; |
(2) | The annual compensation limit under Code section 401(a)(17) for such Plan Year ($250,000 for 2012). |
3.6 | True-Up Contributions. Each Plan Year beginning effective as set forth below, SunTrust shall credit the following amounts to a Participant’s Company Contribution Account, if applicable (each, a “True-Up Contribution”): |
(a) | Nonqualified True-Up Contribution. As soon as practicable on or after the last payroll processing date of each Plan Year beginning on and after January 1, 2010, for a Participant eligible to defer Base Salary, SunTrust shall make a True-Up Contribution, if any, equal to the difference between (i) the Company Contribution for the Participant determined for such Plan Year under Section 3.5(a), regardless of when the Participant reaches the annual compensation |
(b) | Savings Plan True-Up Contribution. As soon as practicable on or after the last payroll processing date of each Plan Year beginning on and after January 1, 2013, for a Participant who defers compensation under the SunTrust Banks, Inc. 401(k) Savings Plan (the “Savings Plan”) equal to the maximum contribution limit under Code section 402(g) and whose “Compensation” (as defined in the Savings Plan) during a Plan Year is less than the Code section 401(a)(17) limit for such Plan Year solely as a result of making elective deferrals under this Plan, SunTrust shall make a True-Up Contribution equal to six (6) percent of the difference between (x) the Code section 401(a)(17) limit for such Plan Year, minus (y) the amount of “Compensation” (as defined in the Savings Plan) paid to the Participant during that Plan Year. |
3.7 | Cancellation of Deferral Election. If a Participant becomes Disabled or obtains a distribution under Section 7.8 on account of an Unforeseeable Emergency, his outstanding deferral elections under this Plan shall be cancelled and no further Eligible Income will be deferred under such elections. |
3.8 | Transferred SERP Benefits. In the event an Employee changes from a position eligible to participate in the SERP to one that is not eligible for any reason, the Plan Administrator, or its delegate, shall determine, in its or his sole discretion, the SERP Benefit as of the date of such change and shall credit to the Participant's SERP Account an amount equal to the present value of the SERP Benefit as soon as practicable following such date. Such Participant shall continue to vest in the SERP Account during his continued service as an Employee. Solely for purposes of Articles 4 and 5, the SERP Account shall be treated as a sub-account of the Participant’s Account. Notwithstanding anything herein to the contrary other than as specifically provided in the preceding sentence, the SERP Account shall be subject to the terms and conditions of the SERP. To the extent that a Participant satisfies the SERP vesting requirements prior to termination, the SERP Account shall be paid to the Participant in accordance with the time and form of payment established under the SERP. |
4.1 | Generally. The Plan Administrator shall specify procedures to allow Participants to make elections among the Investment Funds as to the deemed investment of amounts newly credited to their Accounts and Company Contribution Accounts, as well as the deemed investment of amounts previously credited to these accounts (i.e., reallocation). |
4.2 | Default Investment. If a Participant fails to make an initial investment election pursuant to Section 4.1, his Account and Company Contribution Account shall be deemed to be invested in one or more Investment Funds selected by the Plan Administrator as the default investment. The Plan Administrator shall have no responsibility to any Participant or anyone claiming a benefit through a Participant if a Participant fails to make an investment election or to change any investment election. |
4.3 | No Actual Investment Required. Notwithstanding the preceding sections of this Article 4 and any other provision of this document, this Plan shall remain an unfunded plan and the description of Investment Funds in this Article 4, including any election rights of a Participant, shall not obligate SunTrust or any Affiliate to set aside any funds or to make any actual investments pursuant to this Plan. The purpose of the selection of the Investment Funds is to provide a means for measuring the value of a Participant’s Account and the Company Contribution Account, if any, which determines the amount of his Plan benefit. |
4.4 | Compliance with Securities Laws. Notwithstanding the foregoing provisions of this Article 4, if a Participant is subject to Section 16 of the Securities Exchange Act of 1934 (the “Exchange Act”), then such Participant’s investment elections shall be subject to such additional rules as may be established by the Plan Administrator as it deems necessary to ensure that transactions by such Participant comply with Rule 16b-3 of the Exchange Act (or any successor rules). |
5.1 | General. A Participant’s benefit under this Plan is equal to the vested balance of his Account (including applicable sub-accounts) and the Company Contribution Account, if applicable. As of each Valuation Date, amounts shall be allocated to and charged against each Participant’s |
5.2 | Distributions and Forfeitures. The balances of a Participant’s Account and Company Contribution Account will be reduced, as applicable, by the amount of any distributions made under Article 7, by any forfeiture pursuant to Section 6.2, 6.4, or 6.5, and as required pursuant to Section 9.12. Any such distributions or forfeitures shall be deemed to reduce pro rata the deemed investment in each Investment Fund in the Participant’s Account and Company Contribution Account. |
5.3 | Earnings and Losses. As of each Valuation Date selected by the Plan Administrator, each Participant’s Account and Company Contribution Account will be credited with earnings and gains or charged with losses occurring since the last Valuation Date, based on the results that would have been achieved had amounts credited to the Account and Company Contribution Account actually been invested in the Investment Funds selected by the Participant (or in the default Investment Fund, absent a Participant’s election). Earnings, gains and losses will continue to be credited or charged to the Participant’s Account and Company Contribution Account in accordance with this Section 5.3 until all amounts credited to such accounts are paid or forfeited. The amount of such deemed investment gain or loss shall be determined by the Plan Administrator and such determinations shall be final and conclusive upon all concerned. |
6.1 | Generally. Except as provided in Sections 6.2, 6.4 and 6.5, a Participant’s interest in his benefit under this Plan is one hundred percent (100%) vested and nonforfeitable at all times. |
6.2 | Mandatory Deferrals. If a Participant’s Account has been credited with any Mandatory Deferral that is subject to a vesting period (as set forth in the applicable Eligible Plan), and the Participant terminates employment with SunTrust and its Affiliates for any reason prior to meeting the vesting requirements for such Mandatory Deferral, then that portion of the Mandatory Deferral that is not vested, and the earnings on such nonvested portion shall be forfeited and deducted from the Participant’s Account. Notwithstanding the foregoing, unless approved by the Plan Administrator and otherwise specified in the Eligible Plan, upon a Participant’s death, Disability, Retirement or involuntary termination of employment resulting in the Participant’s eligibility to receive benefits under the SunTrust Banks, Inc. |
6.3 | Change in Control. Unless an Eligible Plan provides for some other treatment, if a Participant’s employment with SunTrust or any Affiliate or their successors terminates for any reason, other than termination for Cause, within three (3) years following a Change in Control, any portion of the Participant’s Account or Company Contribution Account that was nonvested at the Change in Control and has not yet vested shall become fully vested immediately prior to the effective time of the Participant’s termination of employment. A Participant’s voluntary termination of employment, including a Participant’s Retirement or voluntary resignation, is not considered termination for Cause for purposes of vesting under this Section 6.3. |
6.4 | Exception. Notwithstanding the foregoing, a Participant and his Beneficiary shall forfeit the balance credited to his Company Contribution Account (as adjusted pursuant to Article 5) if the Participant is terminated for Cause by SunTrust or an Affiliate prior to a Change in Control. Forfeiture under this Section 6.4 shall be in addition to any other remedies which may be available to SunTrust or an Affiliate at law or in equity. |
6.5 | Vesting of Company Contribution Account. Unless a different vesting period is specified in an initial offer letter or employment agreement with respect to the portion of a Participant’s Company Contribution Account credited under Section 3.5(c)(2), if a Participant's Date of Hire occurs on or after January 1, 2011, and the Participant terminates employment with SunTrust and its Affiliates for any reason prior to completing two (2) Years of Vesting Service, then his Company Contribution Account and the earnings thereon shall be forfeited. Notwithstanding the foregoing, upon a Participant’s death, Disability, or involuntary termination of employment resulting in the Participant’s eligibility to receive benefits under the SunTrust Banks, Inc. Severance Pay Plan (disregarding for purposes of determining eligibility, the Participant’s eligibility to receive severance benefits under another severance plan or individual agreement maintained by SunTrust or an Affiliate), the Participant’s nonvested Company Contribution Account balance shall fully vest as of the date such forfeiture would otherwise occur. |
7.1 | Normal Form of Payment and Commencement. Except as otherwise provided in this Article 7, when a Participant Separates from Service for any reason, he shall be paid the vested balances of his Account and his Company Contribution Account, if any, under this Plan in a single lump sum cash payment during the first quarter of the calendar year immediately following the year in which his Separation from Service occurs. For the avoidance of doubt, any Company Discretionary Contributions credited to a Participant’s Company Contribution Account under Section 3.5(b) or a 2011 Special One-Time Company Contribution credited to a Participant’s Company Contribution Account under Section 3.5(c)(1) prior to a Participant completing his first Deferral Election Form shall be paid in a single lump sum cash payment during the first quarter of the calendar year immediately following the year in which his Separation from Service occurs, subject to Section 7.3. Any Company Discretionary Contributions credited to a Participant’s Company Contribution Account under Section 3.5(b) or a 2011 Special One-Time Company Contribution credited to a Participant’s Company Contribution Account under Section 3.5(c)(1) subsequent to a Participant completing his first Deferral Election Form shall be paid in accordance with such Deferral Election Form. |
7.2 | Alternate Form of Payment Election. A Participant who does not wish to have his benefit under this Plan paid in a lump sum pursuant to Section 7.1 may elect on the first Deferral Election Form filed with the Plan Administrator to have the vested balances of his Account and his Company Contribution Account (except for any Company Discretionary Contributions under Section 3.5(b) or a 2011 Special One-Time Contribution under Section 3.5(c)(1) credited to his Company Contribution Account prior to completing his first Deferral Election Form), if any, distributed in five (5) annual installments, with the first payment commencing in the first quarter of the calendar year immediately following the year in which the Participant Separates from Service. Each subsequent annual installment shall be paid during the first quarter of each of the subsequent four (4) calendar years. |
(a) | Procedure for Installment Election. A Participant’s election to receive installment payments shall not be effective until received and approved by the Plan Administrator in accordance with Section 3.3. |
(b) | Cash-Out. Notwithstanding any elections by a Participant, if the sum of a Participant’s total vested benefits under this Plan, including amounts credited under the 401(k) Excess Plan, the Prior Deferred Compensation Plan and any other account balance plan required to be aggregated with the Plan, as described in Treas. Reg. § 1.409A-1 |
7.3 | Key Employee Delay. Notwithstanding anything herein to the contrary, distributions may not be made to a Key Employee upon a Separation from Service before the date which is six (6) months after the date of the Key Employee’s Separation from Service (or, if earlier, the date of death of the Key Employee). Any payments that would otherwise be made during this period of delay shall be accumulated and paid in the seventh month following the Participant’s Separation from Service and shall continue to be credited or charged with earnings, gains or losses in accordance with Section 5.3 until such amounts are paid or forfeited. |
7.4 | In-Service Distribution Election. Unless the Plan Administrator announces otherwise for a Plan Year or if not permitted under the terms of an initial offer letter or employment agreement, a Participant may elect on a Deferral Election Form to have the portion of: (i) his Account related to amounts deferred under such Deferral Election Form (and earnings thereon) or (ii) his Company Contribution Account related to amounts deferred pursuant to an initial offer letter or employment agreement under Section 3.5(c)(2) (and earnings thereon); paid to the Participant as of a Specified Date permitted on the Deferral Election Form. If a Deferral Election Form relates to amounts credited under Section 3.5(c)(2), such form must be delivered to the Plan Administrator prior to the first Date of Hire of the relevant Newly Hired Eligible Employee. Unless otherwise specified on the Deferral Election Form or as set forth below, the deferred amount subject to this election will be paid in a lump sum on the Designated Distribution Date. |
(a) | Earlier Separation from Service. If a Participant should Separate from Service before his Specified Date(s), any vested portion of his Account or Company Contribution Account subject to an in-service distribution election pursuant to this Section 7.4 will be paid in a lump sum in accordance with Section 7.1 and will not be subject to an election, if any, under Section 7.2. |
(b) | Sub-Account. The portion of a Participant’s Account or Company Contribution Account to which an in-service distribution election applies pursuant to this Section 7.4 shall be maintained as a sub-account of the Participant’s Account or Company Contribution Account, as applicable, unless all amounts in the Participant’s Account or Company Contribution |
(c) | No Company Contributions. Except for Company Contributions credited under Section 3.5(c)(2) as set forth above, in no event shall an in-service distribution election pursuant to this Section 7.4 for a Plan Year apply to any Company Contributions or True-Up Contributions earned during such Plan Year. |
7.5 | Subsequent Deferral Election. A Participant may make one or more subsequent elections to change the time or form of a distribution for a deferred amount in accordance with the procedures and distribution rules established by the Plan Administrator. An election under this Section 7.5 shall become irrevocable on the date the election is filed with the Plan Administrator, and any election to change the time or form of a distribution shall be effective only if the following conditions are satisfied: |
(a) | The new election may not take effect until at least twelve (12) months after the date on which the new election is made; |
(b) | In the case of an election to change the time or form of a distribution under Section 7.1, 7.2, or 7.4, a distribution may not be made earlier than at least five (5) years from the date the distribution would have otherwise been made; and |
(c) | In the case of an election to change the time of a distribution under Section 7.4, the election must be made at least twelve (12) months before the date the distribution is scheduled to be paid. |
7.6 | Payment of Death Benefit. Notwithstanding any elections by the Participant or provisions of the Plan to the contrary, if a Participant dies at any time (including after his Separation from Service), the vested balances in the Account and the Company Contribution Account, if any, shall be distributed to the Beneficiary in a lump sum payment in the first quarter of the calendar year immediately following the year of the Participant’s death (provided that any payment that would occur before such calendar quarter shall be paid as scheduled). |
7.7 | Disability. Notwithstanding any elections by a Participant or provisions of the Plan to the contrary, if a Participant becomes Disabled at any time, then his vested balances in the Account and the Company Contribution Account, if any, will be distributed to the Participant in a lump sum payment in the first quarter of the calendar year immediately following the year in which the Participant becomes Disabled (provided that any payment that would occur before such calendar quarter shall be paid as scheduled). |
7.8 | Withdrawals for Unforeseeable Emergency. A Participant may withdraw all or any portion of the vested balances in his Account and Company Contribution Account, if any, for an Unforeseeable Emergency. The amount distributed with respect to an Unforeseeable Emergency may not exceed the amount necessary to satisfy such Unforeseeable Emergency plus the amount necessary to pay taxes reasonably anticipated as a result of the distribution, after taking into account the extent to which such hardship is or may be relieved through reimbursement or compensation by insurance or otherwise or by liquidation of the Participant’s assets (to the extent the liquidation of such assets would not itself cause severe financial hardship) or by cessation of deferrals under this Plan. |
(a) | Definition. “Unforeseeable Emergency” means, for this purpose, a severe financial hardship to a Participant resulting from an illness or accident of the Participant, the Participant’s spouse, or a dependent (as defined in Code section 152(a)) of the Participant, loss of the Participant’s property due to casualty, or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant. |
(b) | Participant Evidence. The Plan Administrator shall have the authority to require the Participant to provide such evidence as it deems necessary to determine whether distribution is warranted pursuant to this Section 7.8. |
7.9 | Distribution of Mandatory Deferrals. Notwithstanding any other provision of the Plan, the vested portion of an Account attributable to a Mandatory Deferral (as adjusted pursuant to Article 5) shall be paid in a lump sum on the Specified Date for each Mandatory Deferral set forth in the Eligible Plan or, if earlier, upon the Participant's death or Disability in accordance with Section 7.6 or 7.7, respectively. In no event shall any Mandatory Deferrals be subject to an election under Section 7.2, 7.4 or 7.5, or to payment under Section 7.8. |
7.10 | Effect of Taxation. If a portion of the Participant’s balance credited to the Account or the Company Contribution Account is includible in income under Code section 409A, such portion shall be distributed immediately to the Participant. |
7.11 | Permitted Delays. Notwithstanding the foregoing, any payment to a Participant under the Plan shall be delayed upon the Plan Administrator’s reasonable anticipation that the making of the payment would violate Federal securities laws or other applicable law; provided that any payment delayed pursuant to this Section 7.11 shall be paid in accordance with Code |
8.1 | General Administration. SunTrust is the sponsor of the Plan, and the Committee is the Plan Administrator responsible for the operation and administration of the Plan. |
8.2 | Responsibility of Administrator. The Plan Administrator shall have sole discretionary authority for the operation, interpretation and administration of the Plan. All determinations and actions of the Plan Administrator within its discretionary authority shall be final, conclusive and binding on all persons, except that the Plan Administrator may revoke or modify a determination or action it determines was previously made in error. In addition to the implied powers and duties that may be needed to carry out the administration of the Plan, the Plan Administrator shall have the following specific powers and responsibilities: |
(a) | To establish, interpret, amend, revoke and enforce rules and regulations as required or desirable for the efficient administration of the Plan. |
(b) | To review and interpret Plan provisions and to remedy provisions that are ambiguous or inconsistent or contain omissions. |
(c) | To determine all questions relating to an individual’s eligibility to participate in the Plan, an individual’s right to defer Base Salary, and the validity of an individual’s elections. |
(d) | To revoke an individual’s status as an Eligible Employee at any time; provided however, in no event shall such revocation cancel an irrevocable deferral election under the Plan or be applied retroactively to deprive an Employee of benefits accrued under this Plan before such revocation. |
(e) | To determine a Participant’s or Beneficiary’s eligibility for benefits from the Plan and to authorize payment of benefits. |
(f) | To delegate any of the Plan Administrator’s rights, powers and duties to one or more Employees or officers of SunTrust or to a third-party administrator. Such delegation may include, without limitation, the |
(g) | To employ outside professionals and to enter into agreements on behalf of the Plan Administrator necessary or desirable for administration of the Plan. |
8.3 | Books, Records and Expenses. The Plan Administrator shall maintain books and records for purposes of this Plan, which shall be subject to the supervision and control of the Plan Administrator. SunTrust shall pay the general expenses of administering this Plan. The Plan Administrator shall be entitled to rely conclusively upon all tables, valuations, certificates, opinions and reports furnished by any actuary, accountant, controller, counsel or other person employed or engaged by SunTrust with respect to the Plan. |
8.4 | Compensation. Neither the Plan Administrator nor any delegate who is an employee of SunTrust or an Affiliate shall receive any additional compensation for his services as Plan Administrator or delegate. |
8.5 | Indemnification. SunTrust (to the full extent permissible under law and consistent with its charters and bylaws) shall indemnify and hold harmless the Plan Administrator, each individual member of the Plan Administrator and any Employee authorized to act on behalf of the Plan Administrator, the Plan Sponsor or any Affiliate under this Plan for any liability, loss, expense, assessment or other cost of any kind or description whatsoever, including legal fees and expenses, which they actually incur for their acts and omissions, past, current or future, in the administration of the Plan. |
8.6 | Claims. The Plan Administrator shall establish a reasonable claims procedure consistent with the requirements under the Department of Labor regulations under section 503 of ERISA. |
9.1 | Construction. The headings and subheadings in this Plan have been set forth for convenience of reference only and have no substantive effect whatsoever. Whenever any words in this document are used in the masculine, they shall be construed as though they were used in the feminine in all cases where they would so apply; and whenever any words in this document are used in the singular or in the plural, they shall be |
9.2 | Severability. In the event any provision of the Plan shall be held invalid or illegal for any reason, any illegality or invalidity shall not affect the remaining parts of the Plan, but the Plan shall be construed and enforced as if the illegal or invalid provision had never been inserted. |
9.3 | No Alienation or Assignment. A Participant, a spouse or a Beneficiary under this Plan shall have no right or power whatsoever to alienate, commute, anticipate or otherwise assign at law or equity all or any portion of any benefit otherwise payable under this Plan, and SunTrust shall have the right, in the event of any such action, to terminate permanently the payment of benefits to, or on behalf of, any Participant, spouse or beneficiary who attempts to do so. |
9.4 | Incapacity of Recipient. If any person entitled to a distribution under the Plan is deemed by the Plan Administrator to be incapable of personally receiving and giving a valid receipt for such payment, then, unless and until a claim for such payment shall have been made by a duly appointed guardian or other legal representative of such person, the Plan Administrator may provide for all or part of such payment to be made to any other person or institution then contributing toward or providing for the care and maintenance of such person. Any such payment shall be a payment for the account of such person and a complete discharge of any liability of SunTrust, its Affiliates and the Plan to the extent of such payment. |
9.5 | Unclaimed Benefits. Each Participant shall keep the Plan Administrator informed of his current address and the current address of his designated Beneficiary. The Plan Administrator shall not be obligated to search for the whereabouts of any person if the location of a person is not made known to the Plan Administrator. |
9.6 | Not a Contract of Employment. Participation in this Plan does not grant to any individual the right to remain in the employ of SunTrust or any Affiliate for any specific term of employment or in any specific capacity or at any specific rate of compensation. |
9.7 | Unfunded Plan. |
(a) | Contractual Liability of SunTrust. This Plan is an unfunded plan maintained primarily for a select group of management or highly compensated employees. The obligation of SunTrust to provide any benefits under the Plan is a mere contractual liability, and SunTrust is not required to establish or maintain any special or separate fund or |
(b) | Rabbi Trust. SunTrust may, but is not required to, establish any special or separate fund or segregate any assets for the payment of benefits under this Plan. In the event SunTrust should establish a “rabbi” trust to assist in meeting SunTrust’s financial obligations under this Plan, the assets of such trust shall be subject to the claims of the general creditors of SunTrust in the event of SunTrust’s insolvency, as defined in such trust agreement, and Participants in this Plan and their Beneficiaries shall have no preferred claim on, or any legal or equitable rights, claims or interest in any particular assets of such trust. To the extent payments of benefits under this Plan are actually made from any such trust or from any other source, SunTrust’s obligation to make such payments is satisfied, but to the extent not so paid, payment of benefits under this Plan remains the obligation of, and shall be paid by, SunTrust. |
9.8 | Right to Amend or Terminate Plan. SunTrust expects to continue this Plan indefinitely, but reserves the right to amend or discontinue the Plan should it deem such an amendment or discontinuance necessary or desirable. SunTrust hereby authorizes and empowers the Committee, as Plan Administrator, to amend this Plan in any manner that is consistent with the purpose of this Plan as set forth in this document, without further approval of the Board, and to delegate authority to amend this Plan to one or more appropriate members of the Committee or officers of SunTrust, except as to any matter that the Committee determines may result in a material increased cost to SunTrust or its Affiliates, in which case the consent of the Committee shall be required. No amendment or discontinuance of this Plan shall reduce the vested balances credited to any Participant's Account (including applicable sub-accounts) or Company Contribution Account, if applicable, as of the later of the date such amendment is adopted or the effective date of such amendment or discontinuance. |
(a) | Distribution of Accounts. If SunTrust terminates the Plan, distribution of balances in Accounts and Company Contribution Accounts shall be made to Participants and Beneficiaries in the |
(b) | Amendment Restrictions. If there is a Change in Control, no amendment shall be made to this Plan thereafter which would adversely affect in any manner whatsoever the benefits payable under this Plan to any Participant absent the express written consent of all Participants who might be adversely affected by such amendment. Any amendment, effective on or after a Change in Control, to merge this Plan with or into another deferred compensation plan shall be deemed to adversely affect the benefits payable under this Plan. Notwithstanding the foregoing, on or after a Change in Control, SunTrust or the Committee may amend this Plan without Participant consent to the extent such an amendment is required by law or is necessary or desirable to prevent adverse tax consequences to Participants or their Beneficiaries provided that SunTrust or the Committee obtains the written opinion of outside counsel that such an amendment is required by law or is necessary or desirable to prevent adverse tax consequences to Participants or their Beneficiaries. |
9.9 | Taxes. SunTrust or other payor may withhold from a benefit payment under the Plan or from a Participant’s wages in order to meet any federal, state, or local tax withholding obligations with respect to Plan benefits. SunTrust or other payor may also accelerate and pay a portion of a Participant’s benefits in a lump sum equal to the Federal Insurance Contributions Act (“FICA”) tax imposed and the income tax withholding related to such FICA amounts. SunTrust or other payor shall report Plan payments and other Plan-related information to the appropriate governmental agencies as required under applicable laws. |
9.10 | Binding Effect. This Plan shall be binding upon and inure to the benefit of any successor of SunTrust and any successor shall be deemed substituted for SunTrust under this Plan and shall assume the rights, obligations and liabilities of SunTrust hereunder and be obligated to perform the terms and conditions of this Plan. As used in this Plan, the term “successor” shall include any person, firm, corporation or other business entity or related group of such persons, firms, corporations or business entities which at any time, whether by merger, purchase, reorganization, liquidation or otherwise, or by means of a series of such transactions, acquires all or substantially all of the assets or business of SunTrust. |
9.11 | Governing Law. The Plan and all actions taken pursuant to the Plan shall be governed by the laws of the State of Georgia (excluding its conflict-of-interest laws) except to the extent such laws are superseded by federal law. |
9.12 | Regulatory Requirements. Regulatory agencies and federal laws and regulations may impose restrictions on SunTrust and its Affiliates with respect to the payment of compensation and benefits to certain employees who may be Participants in this Plan. These restrictions may be in the form of absolute prohibitions or penalties, which may include tax penalties on SunTrust and its Affiliates or on certain Participants. Notwithstanding any other provision of this Plan document, SunTrust may reduce, eliminate or delay the payment of a Participant’s benefits under this Plan or may take actions that subject such benefits to monetary or tax penalties, as determined by SunTrust in its sole discretion to be required under federal laws or regulations applicable to SunTrust and its Affiliates. In such event, neither SunTrust nor its Affiliates shall have any liability for such reduction, elimination, delay or penalty. Any delay in payment of a Participant's benefits under this Plan will comply with Section 7.11. |