-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, RP45w5KonU7ly3KsvgVwDt2/GSvKy9NSM1y+OkwCN+Waxa7LrGdZcCXyriakCjrX dBDeDncH7Y6aHQhl+F5KFQ== 0000950144-02-003948.txt : 20020416 0000950144-02-003948.hdr.sgml : 20020416 ACCESSION NUMBER: 0000950144-02-003948 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20020416 EFFECTIVENESS DATE: 20020416 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SUNTRUST BANKS INC CENTRAL INDEX KEY: 0000750556 STANDARD INDUSTRIAL CLASSIFICATION: NATIONAL COMMERCIAL BANKS [6021] IRS NUMBER: 581575035 STATE OF INCORPORATION: GA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-86306 FILM NUMBER: 02612068 BUSINESS ADDRESS: STREET 1: 303 PEACHTREE ST N E CITY: ATLANTA STATE: GA ZIP: 30308 BUSINESS PHONE: 4045887711 MAIL ADDRESS: STREET 1: 303 PEACHTREE ST N E CITY: ATLANTA STATE: GA ZIP: 30308 S-8 1 g75508s-8.txt SUNTRUST BANKS, INC. AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 16, 2002. REGISTRATION STATEMENT NO. 33-________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------ SUNTRUST BANKS, INC. (Exact name of registrant as specified in its charter) GEORGIA 58-1575035 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 303 Peachtree Street, N.E. Atlanta, Georgia 30308 (Address of Principal Executive Offices) SUNTRUST BANKS, INC. 401(K) PLAN ------------------------------------------- (Full Title of the Plan) ------------ Raymond D. Fortin Senior Vice President SunTrust Banks, Inc. 303 Peachtree Street, N.E. Atlanta, Georgia 30308 (Name and address of Agent for Service) 404-588-7165 (Telephone number, including area code, of agent for service) ------------ CALCULATION OF REGISTRATION FEE
================================================================================================================================== AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM TITLE OF SECURITIES TO TO BE OFFERING PRICE AGGREGATE AMOUNT OF BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE (1) - ---------------------------------------------------------------------------------------------------------------------------------- Common Stock, $1.00 par value per share............ 8,000,000 $66.83 $534,640,000 $49,187 ==================================================================================================================================
(1) Determined pursuant to Rule 457(c) and (h)(l) based on $66.83, the average of the high and low prices of the registrant's common stock on April 10, 2002, as reported on the New York Stock Exchange. ================================================================================ In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this Registration Statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan described herein. PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS This Registration Statement covers 8,000,000 additional shares of Common Stock, par value $1.00 per share (the "Common Stock") of SunTrust Banks, Inc. (the "Company"), issuable pursuant to the SunTrust Banks, Inc. 401(k) Plan (the "Savings Plan"). The Company initially registered the issuance of 2,500,000 shares of Common Stock in connection with the Savings Plan on its Registration Statement on Form S-8 (Registration No. 33-50796) as filed with the Securities and Exchange Commission (the "Commission") on August 12, 1992. Subsequently, the Company registered the issuance of 8,000,000 additional shares of Common Stock in connection with the Savings Plan on its Registration Statement on Form S-8 (Registration No. 333-91519) as filed with the Commission on November 23, 1999. The contents of Registration Statement Nos. 33-50796 and 333-91519 are incorporated by reference herein. Pursuant to Rule 429, the Prospectus related to shares of Common Stock registered pursuant to this Registration Statement for the Savings Plan also relates to shares of Common Stock registered pursuant to Registration Statements No. 33-50796 and 333-91519. As permitted by the rules of the Securities and Exchange Commission (the "Commission"), this registration statement omits the information specified in Part I (Items 1 and 2) of Form S-8. The documents containing the information specified in Part I will be delivered to the participants in the Plan as required by Rule 428(b) under the Securities Act. Such documents are not being filed with the Commission as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents filed by the Company with the Securities and Exchange Commission (the "Commission") are incorporated herein by reference: (a) The Company's Annual Report on Form 10-K and Form 10-K/A for the year ended December 31, 2001, pursuant to Section 13 of the Securities Exchange Act of 1934 (the "Exchange Act"). (b) The Company's Annual Report for the year ended 2000 for the Company's 401(k) Plan on Form 11-K, filed with the Securities and Exchange Commission on June 29, 2001. 2 (c) The Company's Current Reports on Form 8-K dated February 19, 2002 and on Form 8-K/A dated March 20, 2002. (d) The description of the Company's Common Stock, par value $1.00 per share, contained on pages 2 to 9 in Amendment No. 1, dated August 4, 1987, to its Registration of Common Stock on Form 8-B, dated June 10, 1985, filed under Section 12(b) of the Exchange Act, including any amendments or reports filed for the purpose of updating such description. All documents subsequently filed by the Company or the Savings Plan pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the effective date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of the filing of such documents. Any statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. The legality of the securities offered hereby has been passed upon by Raymond D. Fortin, Esq., General Counsel and Senior Vice President of the Company, who beneficially owns 7,800 shares of Common Stock which are unrestricted and 20,800 shares of Common Stock which are restricted and has options to purchase 28,400 shares of Common Stock. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Part 5 of Article 8 of the Georgia Business Corporation Code States: 14-2-850. Part Definitions. As used in this part, the term: (1) "Corporation" includes any domestic or foreign predecessor entity of a corporation in a merger or other transaction in which the predecessor's existence ceased upon consummation of the transaction. (2) "Director" or "officer" means an individual who is or was a director or officer, respectively, of a corporation or who, while a director or officer of the corporation, is or was serving at the corporation's request as a director, officer, partner, trustee, employee, or agent of another domestic or foreign corporation, partnership, joint 3 venture, trust, employee benefit plan, or other entity. A director or officer is considered to be serving an employee benefit plan at the corporation's request if his or her duties to the corporation also impose duties on, or otherwise involve services by, the director or officer to the plan or to participants in or beneficiaries of the plan. Director or officer includes, unless the context otherwise requires, the estate or personal representative of a director or officer. (3) "Disinterested director" means a director who at the time of a vote referred to in subsection (c) of Code Section 14-2-853 or a vote or selection referred to in subsection (b) or (c) of Code Section 14-2-855 or subsection (a) of Code Section 14-2-856 is not: (A) A party to the proceeding; or (B) An individual who is a party to a proceeding having a familial, financial, professional, or employment relationship with the director whose indemnification or advance for expenses is the subject of the decision being made with respect to the proceeding, which relationship would, in the circumstances, reasonably be expected to exert an influence on the director's judgment when voting on the decision being made. (4) "Expenses" include counsel fees. (5) "Liability" means the obligation to pay a judgment, settlement, penalty, fine (including an excise tax assessed with respect to an employee benefit plan), or reasonable expenses incurred with respect to a proceeding. (6) "Official capacity" means: (A) When used with respect to a director, the office of director in a corporation; and (B) When used with respect to an officer, as contemplated in Code Section 14-2-857, the office in a corporation held by the officer. Official capacity does not include service for any other domestic or foreign corporation or any partnership, joint venture, trust, employee benefit plan, or other entity. (7) "Party" means an individual who was, is, or is threatened to be made a named defendant or respondent in a proceeding. (8) "Proceeding" means any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, arbitrative, or investigative and whether formal or informal. 4 14-2-851. Authority to Indemnify. (a) Except as otherwise provided in this Code section, a corporation may indemnify an individual who is a party to a proceeding because he or she is or was a director against liability incurred in the proceeding if: (1) Such individual conducted himself or herself in good faith; and (2) Such individual reasonably believed: (A) In the case of conduct in his or her official capacity, that such conduct was in the best interests of the corporation; (B) In all other cases, that such conduct was at least not opposed to the best interests of the corporation; and (C) In the case of any criminal proceeding, that the individual had no reasonable cause to believe such conduct was unlawful. (b) A director's conduct with respect to an employee benefit plan for a purpose he or she believed in good faith to be in the interests of the participants in and beneficiaries of the plan is conduct that satisfies the requirement of subparagraph (a) (2) (B) of this Code section. (c) The termination of a proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent is not, of itself, determinative that the director did not meet the standard of conduct described in this Code section. (d) A corporation may not indemnify a director under this Code section: (1) In connection with a proceeding by or in the right of the corporation, except for reasonable expenses incurred in connection with the proceeding if it is determined that the director has met the relevant standard of conduct under this Code section; or (2) In connection with any proceeding with respect to conduct for which he or she was adjudged liable on the basis that personal benefit was improperly received by him or her, whether or not involving action in his or her official capacity. 14-2-852. Mandatory Indemnification. A corporation shall indemnify a director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which he or she was a party because he or she was a director of the corporation against reasonable expenses incurred by the director in connection with the proceeding. 5 14-2-853. Advance for Expenses. (a) A corporation may, before final disposition of a proceeding, advance funds to pay for or reimburse the reasonable expenses incurred by a director who is a party to a proceeding because he or she is a director if he or she delivers to the corporation: (1) A written affirmation of his or her good faith belief that he or she has met the relevant standard of conduct described in Code Section 14-2-851 or that the proceeding involves conduct for which liability has been eliminated under a provision of the articles of incorporation as authorized by paragraph (4) of subsection (b) of Code Section 14-2-202; and (2) His or her written undertaking to repay any funds advanced if it is ultimately determined that the director is not entitled to indemnification under this part. (b) The undertaking required by paragraph (2) of subsection (a) of this Code section must be an unlimited general obligation of the director but need not be secured and may be accepted without reference to the financial ability of the director to make repayment. (c) Authorizations under this Code section shall be made: (1) By the board of directors: (A) When there are two or more disinterested directors, by a majority vote of all the disinterested directors (a majority of whom shall for such purpose constitute a quorum) or by a majority of the members of a committee of two or more disinterested directors appointed by such a vote; or (B) When there are fewer than two disinterested directors, by the vote necessary for action by the board in accordance with subsection (c) of Code Section 14-2-824, in which authorization directors who do not qualify as disinterested directors may participate; or (2) By the shareholders, but shares owned or voted under the control of a director who at the time does not qualify as a disinterested director with respect to the proceeding may not be voted on the authorization. 14-2-854. Court-Ordered Indemnification and Advances for Expenses. (a) A director who is a party to a proceeding because he or she is a director may apply for indemnification or advance for expenses to the court conducting the proceeding or to another court of competent jurisdiction. After receipt of an application and after giving any notice it considers necessary, the court shall: (1) Order indemnification or advance for expenses if it determines that the director is entitled to indemnification under this part; or 6 (2) Order indemnification or advance for expenses if it determines, in view of all the relevant circumstances, that it is fair and reasonable to indemnify the director or to advance expenses to the director, even if the director has not met the relevant standard of conduct set forth in subsections (a) and (b) of Code Section 14-2-851, failed to comply with Code Section 14-2-853, or was adjudged liable in a proceeding referred to in paragraph (1) or (2) of subsection (d) of Code Section 14-2-851, but if the director was adjudged so liable, the indemnification shall be limited to reasonable expenses incurred in connection with the proceeding. (b) If the court determines that the director is entitled to indemnification or advance for expenses under this part, it may also order the corporation to pay the director's reasonable expenses to obtain court-ordered indemnification or advance for expenses. 14-2-855. Determination and Authorization of Indemnification. (a) A corporation may not indemnify a director under Code Section 14-2-851 unless authorized thereunder and a determination has been made for a specific proceeding that indemnification of the director is permissible in the circumstances because he or she has met the relevant standard of conduct set forth in Code Section 14-2-851. (b) The determination shall be made: (1) If there are two or more disinterested directors, by the board of directors by a majority vote of all the disinterested directors (a majority of whom shall for such purpose constitute a quorum) or by a majority of the members of a committee of two or more disinterested directors appointed by such a vote; (2) By special legal counsel: (A) Selected in the manner prescribed in paragraph (1) of this subsection; or (B) If there are fewer than two disinterested directors, selected by the board of directors (in which selection directors who do not qualify as disinterested directors may participate); or (3) By the shareholders, but shares owned by or voted under the control of a director who at the time does not qualify as a disinterested director may not be voted on the determination. (c) Authorization of indemnification or an obligation to indemnify and evaluation as to reasonableness of expenses shall be made in the same manner as the determination that indemnification is permissible, except that if there are fewer than two disinterested directors or if the determination is made by special legal counsel, authorization of indemnification and evaluation as to reasonableness of expenses shall be made by those entitled under subparagraph (b) (2) (B) of this Code section to select special legal counsel. 7 14-2-856. Shareholder Approved Indemnification. (a) If authorized by the articles of incorporation or a bylaw, contract, or resolution approved or ratified by the shareholders by a majority of the votes entitled to be cast, a corporation may indemnify or obligate itself to indemnify a director made a party to a proceeding including a proceeding brought by or in the right of the corporation, without regard to the limitations in other Code sections of this part, but shares owned or voted under the control of a director who at the time does not qualify as a disinterested director with respect to any existing or threatened proceeding that would be covered by the authorization may not be voted on the authorization. (b) The corporation shall not indemnify a director under this Code section for any liability incurred in a proceeding in which the director is adjudged liable to the corporation or is subjected to injunctive relief in favor of the corporation: (1) For any appropriation, in violation of the director's duties, of any business opportunity of the corporation; (2) For acts or omissions which involve intentional misconduct or a knowing violation of law; (3) For the types of liability set forth in Code Section 14-2-832; or (4) For any transaction from which he or she received an improper personal benefit. (c) Where approved or authorized in the manner described in subsection (a) of this Code section, a corporation may advance or reimburse expenses incurred in advance of final disposition of the proceeding only if: (1) The director furnishes the corporation a written affirmation of his or her good faith belief that his or her conduct does not constitute behavior of the kind described in subsection (b) of this Code section; and (2) The director furnishes the corporation a written undertaking, executed personally or on his or her behalf, to repay any advances if it is ultimately determined that the director is not entitled to indemnification under this Code section. 14-2-857. Indemnification of Officers, Employees, and Agents. (a) A corporation may indemnify and advance expenses under this part to an officer of the corporation who is a party to a proceeding because he or she is an officer of the corporation: (1) To the same extent as a director; and 8 (2) If he or she is not a director, to such further extent as may be provided by the articles of incorporation, the bylaws, a resolution of the board of directors, or contract except for liability arising out of conduct that constitutes: (A) Appropriation, in violation of his or her duties, of any business opportunity of the corporation; (B) Acts or omissions which involve intentional misconduct or a knowing violation of law; (C) The types of liability set forth in Code Section 14-2-832; or (D) Receipt of an improper personal benefit. (b) The provisions of paragraph (2) of subsection (a) of this Code section shall apply to an officer who is also a director if the sole basis on which he or she is made a party to the proceeding is an act or omission solely as an officer. (c) An officer of a corporation who is not a director is entitled to mandatory indemnification under Code Section 14-2-852, and may apply to a court under Code Section 14-2-854 for indemnification or advances for expenses, in each case to the same extent to which a director may be entitled to indemnification or advances for expenses under those provisions. (d) A corporation may also indemnify and advance expenses to an employee or agent who is not a director to the extent, consistent with public policy, that may be provided by its articles of incorporation, bylaws, general or specific action of its board of directors, or contract. 14-2-858. Insurance. A corporation may purchase and maintain insurance on behalf of an individual who is a director, officer, employee, or agent of the corporation or who, while a director, officer, employee, or agent of the corporation, serves at the corporation's request as a director, officer, partner, trustee, employee, or agent of another domestic or foreign corporation, partnership, joint venture, trust, employee benefit plan, or other entity against liability asserted against or incurred by him or her in that capacity or arising from his or her status as a director, officer, employee, or agent, whether or not the corporation would have power to indemnify or advance expenses to him or her against the same liability under this part. 14-2-859. Application of Part. (a) A corporation may, by a provision in its articles of incorporation or bylaws or in a resolution adopted or a contract approved by its board of directors or shareholders, obligate itself in advance of the act or omission giving rise to a proceeding to provide indemnification or advance funds to pay for or reimburse expenses consistent with this part. Any such obligatory provision shall be deemed to satisfy the requirements for authorization referred to in subsection (c) of Code Section 14-2-853 or subsection (c) of Code Section 14-2-855. Any such provision 9 that obligates the corporation to provide indemnification to the fullest extent permitted by law shall be deemed to obligate the corporation to advance funds to pay for or reimburse expenses in accordance with Code Section 14-2-853 to the fullest extent permitted by law, unless the provision specifically provides otherwise. (b) Any provision pursuant to subsection (a) of this Code section shall not obligate the corporation to indemnify or advance expenses to a director of a predecessor of the corporation, pertaining to conduct with respect to the predecessor, unless otherwise specifically provided. Any provision for indemnification or advance for expenses in the articles of incorporation, bylaws, or a resolution of the board of directors or shareholders, partners, or in the case of limited liability companies, members or managers of a predecessor of the corporation or other entity in a merger or in a contract to which the predecessor is a party, existing at the time the merger takes effect, shall be governed by paragraph (3) of subsection (a) of Code Section 14-2-1106. (c) A corporation may, by a provision in its articles of incorporation, limit any of the rights to indemnification or advance for expenses created by or pursuant to this part. (d) This part does not limit a corporation's power to pay or reimburse expenses incurred by a director or an officer in connection with his or her appearance as a witness in a proceeding at a time when he or she is not a party. (e) Except as expressly provided in Code Section 14-2-857, this part does not limit a corporation's power to indemnify, advance expenses to, or provide or maintain insurance on behalf of an employee or agent. Articles of Incorporation Authority Article 14 of the Company's Amended and Restated Articles of Incorporation provides: In addition to any powers provided by law, in the Bylaws, or otherwise, the Corporation shall have the power to indemnify any person who becomes a party or who is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (including any action by or in the right of the Corporation), by reason of the fact that he is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise. Bylaw Authority Article VII of the Company's Amended and Restated Bylaws provides: SECTION 1. Definitions. As used in this Article, the term: 10 (A) "Corporation" includes any domestic or foreign predecessor entity of this Corporation in a merger or other transaction in which the predecessor's existence ceased upon consummation of the transaction. (B) "Director" means an individual who is or was a director of the Corporation or an individual who, while a director of the Corporation, is or was serving at the Corporation's request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other entity. A "director" is considered to be serving an employee benefit plan at the Corporation's request if his duties to the Corporation also impose duties on, or otherwise involve services by, him to the plan or to participants in or beneficiaries of the plan. "Director" includes, unless the context requires otherwise, the estate or personal representative of a director. (C) "Disinterested director" means a director who at the time of a vote referred to in Section 3(C) or a vote or selection referred to in Section 4(B), 4(C) or 7(A) is not: (i) a party to the proceeding; or (ii) an individual who is a party to a proceeding having a familial, financial, professional, or employment relationship with the director whose indemnification or advance for expenses is the subject of the decision being made with respect to the proceeding, which relationship would, in the circumstances, reasonably be expected to exert an influence on the director's judgment when voting on the decision being made. (D) "Employee" means an individual who is or was an employee of the Corporation or an individual who, while an employee of the Corporation, is or was serving at the Corporation's request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise. An "Employee" is considered to be serving an employee benefit plan at the Corporation's request if his duties to the Corporation also impose duties on, or otherwise involve services by, him to the plan or to participants in or beneficiaries of the plan. "Employee" includes, unless the context requires otherwise, the estate or personal representative of an employee. (E) "Expenses" includes counsel fees. (F) "Liability" means the obligation to pay a judgment, settlement, penalty, fine (including an excise tax assessed with respect to an employee benefit plan), or reasonable expenses incurred with respect to a proceeding. (G) "Officer" means an individual who is or was an officer of the Corporation which for purposes of this Article VII shall include an assistant officer, or an individual who, while an Officer of the Corporation, is or was serving at the Corporation's request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other entity. An "Officer" is considered to be serving an employee benefit plan at the Corporation's request if his duties to the Corporation also impose duties, on, or otherwise involve services by, him to the plan or to participants in or beneficiaries of the plan. "Officer" includes, unless the context requires otherwise, the estate or personal representative of an Officer. 11 (H) "Official capacity" means: (i) when used with respect to a director, the office of a director in a corporation; and (ii) when used with respect to an Officer, the office in a corporation held by the Officer. Official capacity does not include service for any other domestic or foreign corporation or any partnership, joint venture, trust, employee benefit plan, or other entity. (I) "Party" means an individual who was, is, or is threatened to be made a named defendant or respondent in a proceeding. (J) "Proceeding" means any threatened, pending or completed action, suit, or proceeding, whether civil, criminal, administrative, arbitrative or investigative and whether formal or informal. SECTION 2. Basic Indemnification Arrangement. (A) Except as provided in subsections 2(D) and 2(E) below and, if required by Section 4 below, upon a determination pursuant to Section 4 in the specific case that such indemnification is permissible in the circumstances under this subsection because the individual has met the standard of conduct set forth in this subsection (A), the Corporation shall indemnify an individual who is made a party to a proceeding because he is or was a director or Officer against liability incurred by him in the proceeding if he conducted himself in good faith and, in the case of conduct in his official capacity, he reasonably believed such conduct was in the best interest of the Corporation, or in all other cases, he reasonably believed such conduct was at least not opposed to the best interests of the Corporation and, in the case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful. (B) A person's conduct with respect to an employee benefit plan for a purpose he believes in good faith to be in the interests of the participants in and beneficiaries of the plan is conduct that satisfies the requirement of subsection 2(A) above. (C) The termination of a proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent is not, of itself, determinative that the proposed indemnitee did not meet the standard of conduct set forth in subsection 2(A) above. (D) The Corporation shall not indemnify a person under this Article in connection with: (i) a proceeding by or in the right of the Corporation, except for reasonable expenses incurred in connection with the proceeding if it is determined that such person has met the relevant standard of conduct under this section; or (ii) with respect to conduct for which such person was adjudged liable on the basis that personal benefit was improperly received by him, whether or not involving action in his official capacity. SECTION 3. Advances for Expenses. (A) The Corporation may advance funds to pay for or reimburse the reasonable expenses incurred by a director or Officer who is a party to a proceeding because he is a director or Officer in advance of final disposition of the proceeding if: (i) such person furnishes the 12 Corporation a written affirmation of his good faith belief that he has met the relevant standard of conduct set forth in subsection 2(A) above or that the proceeding involves conduct for which liability has been eliminated under the Corporation's Articles of Incorporation; and (ii) such person furnishes the Corporation a written undertaking meeting the qualifications set forth below in subsection 3(B), executed personally or on his behalf, to repay any funds advanced if it is ultimately determined that he is not entitled to any indemnification under this Article or otherwise. (B) The undertaking required by subsection 3(A)(ii) above must be an unlimited general obligation of the director or Officer but need not be secured and shall be accepted without reference to financial ability to make repayment. (C) Authorizations under this Section shall be made: (i) By the Board of Directors: (a) when there are two or more disinterested directors, by a majority vote of all disinterested directors (a majority of whom shall for such purpose constitute a quorum) or by a majority of the members of a committee of two or more disinterested directors appointed by such a vote; or (b) when there are fewer than two disinterested directors, by a majority of the directors present, in which authorization directors who do not qualify as disinterested directors may participate; or (ii) by the shareholders, but shares owned or voted under the control of a director who at the time does not qualify as a disinterested director with respect to the proceeding may not be voted on the authorization. SECTION 4. Authorization of and Determination of Entitlement to Indemnification. (A) The Corporation shall not indemnify a director or Officer under Section 2 above unless authorized thereunder and a determination has been made for a specific proceeding that indemnification of such person is permissible in the circumstances because he has met the relevant standard of conduct set forth in subsection 2(A) above; provided, however, that regardless of the result or absence of any such determination, to the extent that a director or Officer has been wholly successful, on the merits or otherwise, in the defense of any proceeding to which he was a party because he is or was a director or Officer, the Corporation shall indemnify such person against reasonable expenses incurred by him in connection therewith. (B) The determination referred to in subsection 4(A) above shall be made: (i) If there are two or more disinterested directors, by the Board of Directors by a majority vote of all the disinterested directors (a majority of whom shall for such purpose constitute a quorum) or by a majority of the members of a committee of two or more disinterested directors appointed by such a vote; (ii) by special legal counsel: (1) selected by the Board of Directors or its committee in the manner prescribed in subdivision (i); or 13 (2) If there are fewer than two disinterested directors, selected by the Board of Directors (in which selection directors who do not qualify as disinterested directors may participate); or (iii) by the shareholders; but shares owned by or voted under the control of a director who at the time does not qualify as a disinterested director may not be voted on the determination. (C) Authorization of indemnification or an obligation to indemnify and evaluation as to reasonableness of expenses of a director or Officer in the specific case shall be made in the same manner as the determination that indemnification is permissible, as described in subsection 4(B) above, except that if there are fewer than two disinterested directors or if the determination is made by special legal counsel, authorization of indemnification and evaluation as to reasonableness of expenses shall be made by those entitled under subsection 4(B)(ii)(2) above to select counsel. (D) The Board of Directors, a committee thereof, or special legal counsel acting pursuant to subsection (B) above or Section 5 below, shall act expeditiously upon an application for indemnification or advances, and cooperate in the procedural steps required to obtain a judicial determination under Section 5 below. (E) The Corporation may, by a provision in its Articles of Incorporation or Bylaws or in a resolution adopted or a contract approved by its Board of Directors or shareholders, obligate itself in advance of the act or omission giving rise to a proceeding to provide indemnification or advance funds to pay for or reimburse expenses consistent with this part. Any such obligatory provision shall be deemed to satisfy the requirements for authorization referred to in Section 3(C) or Section 4(C). SECTION 5. Court-Ordered Indemnification and Advances for Expenses. A director or Officer who is a party to a proceeding because he is a director or Officer may apply for indemnification or advances for expenses to the court conducting the proceeding or to another court of competent jurisdiction. After receipt of an application and after giving any notice it considers necessary, the court shall order indemnification or advances for expenses if it determines that: (i) The director is entitled to indemnification under this part; or (ii) In view of all the relevant circumstances, it is fair and reasonable to indemnify the director or Officer or to advance expenses to the director or Officer, even if the director or Officer has not met the relevant standard of conduct set forth in subsection 2(A) above, failed to comply with Section 3, or was adjudged liable in a proceeding referred to in subsections (i) or (ii) of Section 2(D), but if the director or Officer was adjudged so liable, the indemnification shall be limited to reasonable expenses incurred in connection with the proceeding, unless the Articles of Incorporation 14 of the Corporation or a Bylaw, contract or resolution approved or ratified by shareholders pursuant to Section 7 below provides otherwise. If the court determines that the director or Officer is entitled to indemnification or advance for expenses, it may also order the Corporation to pay the director's or Officer's reasonable expenses to obtain court-ordered indemnification or advance for expenses. SECTION 6. Indemnification of Officers and Employees. (A) Unless the Corporation's Articles of Incorporation provide otherwise, the Corporation shall indemnify and advance expenses under this Article to an employee of the Corporation who is not a director or Officer to the same extent, consistent with public policy, as to a director or Officer. (B) The Corporation may indemnify and advance expenses under this Article to an Officer of the Corporation who is a party to a proceeding because he is an Officer of the Corporation: (i) to the same extent as a director; and (ii) if he is not a director, to such further extent as may be provided by the Articles of Incorporation, the Bylaws, a resolution of the Board of Directors, or contract except for liability arising out of conduct that is enumerated in subsections (A)(i) through (A)(iv) of Section 7. The provisions of this Section shall also apply to an Officer who is also a director if the sole basis on which he is made a party to the proceeding is an act or omission solely as an Officer. SECTION 7. Shareholder Approved Indemnification. (A) If authorized by the Articles of Incorporation or a Bylaw, contract or resolution approved or ratified by shareholders of the Corporation by a majority of the votes entitled to be cast, the Corporation may indemnify or obligate itself to indemnify a person made a party to a proceeding, including a proceeding brought by or in the right of the Corporation, without regard to the limitations in other sections of this Article, but shares owned or voted under the control of a director who at the time does not qualify as a disinterested director with respect to any existing or threatened proceeding that would be covered by the authorization may not be voted on the authorization. The Corporation shall not indemnify a person under this Section 7 for any liability incurred in a proceeding in which the person is adjudged liable to the Corporation or is subjected to injunctive relief in favor of the Corporation: (i) for any appropriation, in violation of his duties, of any business opportunity of the Corporation; (ii) for acts or omissions which involve intentional misconduct or a knowing violation of law; (iii) for the types of liability set forth in Section 14-2-832 of the Georgia Business Corporation Code; or 15 (iv) for any transaction from which he received an improper personal benefit. (B) Where approved or authorized in the manner described in subsection 7(A) above, the Corporation may advance or reimburse expenses incurred in advance of final disposition of the proceeding only if: (i) the proposed indemnitee furnishes the Corporation a written affirmation of his good faith belief that his conduct does not constitute behavior of the kind described in subsection 7(A)(i) - (iv) above; and (ii) the proposed indemnitee furnishes the Corporation a written undertaking, executed personally, or on his behalf, to repay any advances if it is ultimately determined that he is not entitled to indemnification. SECTION 8. Liability Insurance. The Corporation may purchase and maintain insurance on behalf of an individual who is a director, officer, employee, or agent of the Corporation or who, while a director, officer, employee, or agent of the Corporation, is or was serving at the request of the Corporation as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other entity against liability asserted against or incurred by him in that capacity or arising from his status as a director, officer, employee, or agent, whether or not the Corporation would have power to indemnify him against the same liability under Section 2 or Section 3 above. SECTION 9. Witness Fees. Nothing in this Article shall limit the Corporation's power to pay or reimburse expenses incurred by a person in connection with his appearance as a witness in a proceeding at a time when he is not a party. SECTION 10. Report to Shareholders. If the Corporation indemnifies or advances expenses to a director in connection with a proceeding by or in the right of the Corporation, the Corporation shall report the indemnification or advance, in writing, to shareholders with or before the notice of the next shareholders' meeting. SECTION 11. Severability. In the event that any of the provisions of this Article (including any provision within a single section, subsection, division or sentence) is held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, the remaining provisions of this Article shall remain enforceable to the fullest extent permitted by law. 16 SECTION 12. Indemnification Not Exclusive. The rights of indemnification provided in this Article VII shall be in addition to any rights which any such director, Officer, employee or other person may otherwise be entitled by contract or as a matter of law. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. The following exhibits are filed as part of this Registration Statement:
EXHIBIT DESCRIPTION NUMBER 4.1 Articles 5, 6, 7, 8, 11 and 13 of the Amended and Restated Articles of Incorporation of the Company, effective as of November 14, 1989, and amendment effective as of April 24, 1998 incorporated by reference to Exhibit 3.1 to the Company's Annual Report on Form 10-K for the year ended December 31, 1998, and amendment effective as of April 18, 2000, incorporated by reference to Exhibit 3.1 to the Company's Form 10-Q as of March 31, 2000. 4.2 Articles I, IV, VII, VIII, X and XI of the Amended and Restated Bylaws of the Company, effective as of February 13, 2001, incorporated by reference to Exhibit 3.3 to the Company's Annual Report on Form 10-K for the year ended December 31, 2001. 4.3 Amended and Restated SunTrust Banks, Inc. 401(k) Plan (the "Plan"), effective January 1, 2002. 4.4 SunTrust Banks, Inc. 401(k) Trust Agreement (formerly known as the SunTrust Banks, Inc. Employee Stock Ownership Trust), as amended, incorporated by reference to Exhibit 4.4 of Registration Statement Number 333-91519. 5.1(1) Opinion of Raymond D. Fortin, Esq., as to the legality of the Common Stock being registered. 23.1 Consent of Arthur Andersen LLP. 23.2 Consent of Raymond D. Fortin, Esq. (contained in his opinion filed as Exhibit 5.1).
17 24.1 Power of Attorney (included on Signature Page). 99 Acknowledgment regarding letter from Arthur Andersen LLP.
(1) The undersigned registrant hereby undertakes that it has submitted or will submit the Plan and any amendments thereto to the Internal Revenue Service in order to qualify the Plan. ITEM 9. UNDERTAKINGS. (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change in such information in the registration statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by 18 reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against pubic policy as expressed in the Securities Act, and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. 19 SIGNATURES THE REGISTRANT. Pursuant to the requirements of the Securities Act of 1933, SunTrust Banks, Inc. certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Atlanta, State of Georgia, on the 16th day of April, 2002. SUNTRUST BANKS, INC. By: /s/ L. Phillip Humann -------------------------------------- L. Phillip Humann Chairman of the Board, President and Chief Executive Officer KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below, constitutes and appoints John W. Spiegel and Raymond D. Fortin, and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, to do any and all acts and things and execute, in the name of the undersigned, any and all instruments which said attorneys-in-fact and agents may deem necessary or advisable in order to enable SunTrust Banks, Inc. to comply with the Securities Act of 1933 and any requirements of the Securities and Exchange Commission in respect thereof, in connection with the filing with the Securities and Exchange Commission of the registration statement on Form S-8 under the Securities Act of 1933, including specifically but without limitation, power and authority to sign the name of the undersigned to such registration statement, and to file the same with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and to perform each and every act and thing requisite or necessary to be done in and about the premises, as fully and to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, and any of them, or their substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated as of the 16th day of April, 2002. /s/ L. Phillip Humann - ------------------------------------- L. Phillip Humann Chairman of the Board, President, Chief Executive Officer and Director (Principal Executive Officer) /s/ John W. Spiegel - ------------------------------------- John W. Spiegel Vice Chairman and Chief Financial Officer (Principal Financial Officer) 20 /s/ William P. O'Halloran - ------------------------------------- William P. O'Halloran Senior Vice President and Chief Accounting Officer (Principal Accounting Officer) /s/ J. Hyatt Brown - ------------------------------------- J. Hyatt Brown Director /s/ Alston D. Correll - ------------------------------------- Alston D. Correll Director /s/ Douglas N. Daft - ------------------------------------- Douglas N. Daft Director /s/ A. W. Dahlberg - ------------------------------------- A. W. Dahlberg Director /s/ Patricia C. Frist - ------------------------------------- Patricia C. Frist Director /s/ David H. Hughes - ------------------------------------- David H. Hughes Director /s/ M. Douglas Ivester - ------------------------------------- M. Douglas Ivester Director /s/ Summerfield K. Johnston, Jr. - ------------------------------------- Summerfield K. Johnston, Jr. Director /s/ G. Gilmer Minor, III - ------------------------------------- G. Gilmer Minor, III Director /s/ Larry L. Prince - ------------------------------------- Larry L. Prince Director 21 /s/ R. Randall Rollins - ------------------------------------- R. Randall Rollins Director /s/ Frank S. Royal, M.D. - ------------------------------------- Frank S. Royal, M.D. Director /s/ James B. Williams - ------------------------------------- James B. Williams Director /s/ Karen Hastie Williams - ------------------------------------- Karen Hastie Williams Director 22 INDEX TO EXHIBITS
EXHIBIT DESCRIPTION NUMBER - -------- --------------------------------------------------------------------- 4.1 Articles 5, 6, 7, 8, 11 and 13 of the Amended and Restated Articles of Incorporation of the Company, effective as of November 14, 1989, and amendment effective as of April 24, 1998 incorporated by reference to Exhibit 3.1 to the Company's Annual Report on Form 10-K for the year ended December 31, 1998, and amendment effective as of April 18, 2000, incorporated by reference to Exhibit 3.1 to the Company's Form 10-Q as of March 31, 2000. 4.2 Articles I, IV, VII, VIII, X and XI of the Amended and Restated Bylaws of the Company, effective as of February 13, 2001, incorporated by reference to Exhibit 3.3 to the Company's Annual Report on Form 10-K for the year ended December 31, 2001. 4.3 Amended and Restated SunTrust Banks, Inc. 401(k) Plan (the "Plan"), effective January 1, 2002. 4.4 SunTrust Banks, Inc. 401(k) Trust Agreement (formerly known as the SunTrust Banks, Inc. Employee Stock Ownership Trust), as amended, incorporated by reference to Exhibit 4.4 of Registration Statement Number 333-91519. 5.1 Opinion of Raymond D. Fortin, Esq., as to the legality of the Common Stock being registered. 23.1 Consent of Arthur Andersen LLP. 23.2 Consent of Raymond D. Fortin, Esq. (contained in his opinion filed as Exhibit 5.1). 24.1 Power of Attorney (included on Signature Page). 99 Acknowledgment regarding letter from Arthur Andersen LLP.
EX-4.3 3 g75508ex4-3.txt AMENDED & RESTATED SUNTRUST BANK, INC.401K PLAN EXHIBIT 4.3 SUNTRUST BANKS, INC. 401(K) PLAN Amended and Restated Effective January 1, 2002 SUNTRUST BANKS, INC. 401(K) PLAN INTRODUCTION SunTrust Banks, Inc. is the parent corporation in a controlled group that currently includes various subsidiaries and affiliated companies. SunTrust Banks, Inc. is sometimes referred to as the Company and/or the Plan sponsor. The Company and its controlled group members that adopt the Plan are referred to as Employers. SunTrust Banks, Inc. was formed as of July 1, 1985, with the merger of Sun Banks, Inc. and Trust Company Bank (successor to Trust Company of Georgia). The qualified defined contribution plans maintained by each company were merged to form the SunTrust Banks, Inc. Employee Stock Ownership Plan (the Plan), effective as of January 1, 1989. The Plan was renamed the SunTrust Banks, Inc. 401(k) Plan effective January 1, 1993. The plans that were merged to form this Plan include the following: (1) the Sun Banks, Inc. SunShare Plan, effective July 1, 1984; (2) the Trust Company of Georgia Incentive Compensation Plan, effective January 1, 1987; (3) the Third National Corporation Thrift Plan, effective January 1, 1987; and (4) the Trust Company of Georgia Tax-Credit Employee Stock Ownership Plan, effective January 1, 1985. This merged Plan was amended and restated effective as of January 1, 1990, January 1, 1993, and January 1, 1997. Although the Plan is named as a 401(k) Plan and includes a cash-or-deferred arrangement under Sections 401(k) and (m) of the Internal Revenue Code (the Code), it has always been an Employee Stock Ownership Plan (ESOP) under Code Sections 409 and 4975(e)(7), designed to invest primarily in employer stock. The Plan has in fact always been invested primarily in employer stock. Effective January 1, 2002, the Plan is converted to a designed-based safe harbor plan that satisfies the ADP safe-harbor requirements set forth in Code Section 401(k)(12) with respect to elective deferrals, and the ACP safe-harbor requirements set forth in Code Section 401(m)(11) with respect to matching contributions. As a safe harbor plan, the Plan is exempt from nondiscrimination testing and from the top-heavy rules. As an ESOP, the Plan continues to be designed to invest primarily in Employer Stock. The primary purpose of the ESOP is to provide participants with beneficial ownership of Employer Stock. A secondary purpose of the ESOP is to serve as a potential means of corporate finance. The Company may use the Plan to meet its general financing requirements, including capital growth and transfers in the ownership of Employer Stock. The Plan may receive loans and other extensions of credit to finance the acquisition of Employer Stock. Effective January 1, 2002, the Plan is amended and restated to comply with the Family and Medical Leave Act of 1993, the Uniformed Services Employment and Reemployment Rights Act of 1994, the Small Business Jobs Protection Act a/k/a the Pension Simplification Act of 1996, the Taxpayer Relief Act of 1997, the Restructuring and Reform Act of 1998, and the Community Renewal Tax Relief Act of 2000, and the Economic Growth and Tax Relief Reconciliation Act of 2001, as of the effective dates stated in various Sections in the Plan that are affected by these amendments. Addendum A sets forth provisions that have been in effect for previous periods of the Plan's history. Special provisions that affect the benefits of Participants who work or worked for acquired or merged entities are described in Addendum B. A listing of the adopting Employers is set forth in Addendum C. The Addenda are integral parts of the Plan. The rights of all employees who terminated employment with any Employer before the effective dates of the various provisions in this amendment and restatement, and their beneficiaries, will be governed by the Plan as in effect on the employee's termination date, except that account balances of terminated Participants will be administered and distributed in compliance with Plan provisions and applicable law as in effect from time to time. Eligible employees who are in active employment on or after the effective dates of the various provisions in this January 1, 2002 restatement will be entitled to participate in the Plan and receive benefits payable under the Plan as amended and restated. The Plan fiduciaries will administer the Plan in accordance with applicable laws enacted from time to time, and will effect operational compliance between the effective dates of such laws and the corollary Plan amendment dates. SUNTRUST BANKS, INC. 401(K) PLAN TABLE OF CONTENTS
PAGE ---- ARTICLE 1 DEFINITIONS 1.1 Accounts (also called Sources) 1 (a) Employer Contribution Accounts 1 (b) Employee Contribution Account 2 1.2 Acquisition Loan 2 1.3 After-Tax Account 2 1.4 Annual Addition 2 1.5 Before-Tax Account 3 1.6 Board 3 1.7 Catch-Up Contribution 3 1.8 Code 3 1.9 Committee 3 1.10 Company 3 1.11 Compensation 3 (a) Contributions 3 (b) Deductibility of Employer Contributions 4 (c) Statutory Limit 4 1.12 Contributions 4 (a) Employer Contributions (also called Matching Contributions, and Safe Harbor Contributions) 4 (b) Employee Contributions 5 (c) Rollover Contribution 5 1.13 Controlled Group 6 1.14 Disability 6 1.15 Dollar Limit 6 1.16 Effective Date 6 1.17 Elective Contributions (also called Employee Contributions) 7 1.18 Employee 7 1.19 Employee Contributions (also called Elective Contributions) 7 1.20 Employee Contributions Accounts 7 1.21 Employer 7 1.22 Employer Contributions (also called Matching Contributions and Safe Harbor Contributions) 7 1.23 Employer Contributions Accounts 7 1.24 Employer Stock 7 1.25 Employer Stock Fund 8 1.26 Employment 8 1.27 Employment Date 8 1.28 ERISA 8 1.29 ESOP 8 1.30 Excess 402(g) Deferrals 8 1.31 Fair Market Value 9 1.32 Financed Shares 9 1.33 HCE Group 9
i 1.34 Highly Compensated Employee (HCE) 9 1.35 Matching Account, or Employer Matching Account 9 1.36 Matching Contributions (also called Employer Contributions and Safe Harbor Contributions) 10 1.37 Merged Plan 10 1.38 NCE Group 10 1.39 Non-Highly Compensated Employee (NCE) 10 1.40 Non-Matching Account 10 1.41 Participant 10 1.42 Plan 10 1.43 Plan Administrator 10 1.44 Plan Year 10 1.45 Rollover Contribution 10 1.46 Safe Harbor Contributions (also called Matching Contributions and Employer Contributions) 10 1.47 Service Center 11 1.48 Share Units 11 1.49 Source (also called Accounts) 11 1.50 Spouse 11 1.51 Suspense Account 11 1.52 Termination Date 11 1.53 Trust (or Trust Fund) 11 1.54 Trustee 12 1.55 Valuation Date 12 ARTICLE 2 ELIGIBILITY 2.1 Eligibility 13 2.2 Participation Upon Reemployment 13 2.3 Leased Employees and Independent Contractors 13 2.4 Adoption of the Plan by a Controlled Group Member 14 ARTICLE 3 CONTRIBUTIONS 3.1 Employee Elective Contributions and Catch-Up Contributions 15 (a) Amount Permitted 15 (b) Limitations on Amount 15 (c) Special Pay 15 (d) Catch-Up Contributions 15 (e) Make-up Contributions After Military Leave 17 (f) Vesting 17 (g) Initial Election to Contribute 17 (h) Modification 18 (i) Cessation 19 (j) Mistakes in Contributions 19 (k) Committee Regulations 19 3.2 Employer Matching Contributions 19 (a) Matching Contribution 19 (b) Opportunity to Maximize Matching Contributions 20 (c) Make-Up Contributions After Military Leave 20 (d) Acquisition Loan Repayments 21
ii (e) Vesting 21 (f) Valuation of Share Units for Allocation Purposes 21 (g) Exclusive Benefit of Participants 21 (h) Contributions Limited to Tax Deductible Amounts 21 (i) Mistakes in Contributions 22 (j) Return of Employer Contributions 23 3.3 Rollover Contributions 23 (a) Eligible Rollover Distribution 23 (b) Rollover or Direct Plan Transfer 24 (c) Timing 24 (d) Required Information 24 (e) Prohibited Rollovers and Transfers 24 (f) Refund of Prohibited Rollovers 25 (g) Reliance on Employee's Representations 25 3.4 Acquisition Loans 25 (a) Eligible Lenders 25 (b) Loan Terms 25 (c) Repayment 26 (d) Collateral and Security 26 (e) Suspense Account 26 (f) Release of Financed Shares from Suspense Account 26 (g) Default 28 3.5 Purchase and Sale of Employer Stock 28 3.6 Payment to the Trustee 28 3.7 Elective Account Transfers 28 ARTICLE 4 ALLOCATIONS 4.1 Adjustments to Account Balances 30 (a) Regular Valuation Dates 30 (b) Administrative Fees 30 (c) Dividends on Employer Stock 30 (d) Valuations Binding 31 (e) Statement of Account Balances 31 (f) Mistakes in Account Balances 31 4.2 Investment Elections 32 (a) Investment Funds 32 (b) Compliance with ERISA Section 404(c) 32 (c) Liquidity 32 (d) Investment Elections 33 (e) Change in Investment Election 33 (f) Insider Trading Rules 33 (g) Diversification Elections 34 (h) Reinvestment of Earnings 34 (i) Investment Expenses 34 (j) Special Election Rules 34 4.3 Voting Rights 34 4.4 Tender Offers 35 ARTICLE 5 IN-SERVICE WITHDRAWALS AND LOANS 5.1 Withdrawals Without a Hardship 36
iii (a) Types of In-Service Withdrawals 36 (b) Available Amount 37 (c) Order of Withdrawal from Accounts 37 (d) Pro Rata Withdrawals from Investment Funds 37 (e) Withdrawals of Money Purchase Plan Balances 37 5.2 Hardship Withdrawals 38 (a) Available Amount 38 (b) Immediate and Heavy Financial Need 38 (c) Withdrawal Necessary to Meet Need 39 (d) Nondiscrimination 40 (e) Reliance on Participant's Representations 40 5.3 Loans 40 (a) Application and Eligibility 40 (b) Available Amount 40 (c) Order of Account Liquidation 41 (d) Loan Origination Fees 41 (e) Frequency of Loans 41 (f) Interest 41 (g) Security 41 (h) Term 42 (i) Repayment 42 (j) Default 42 (k) Suspension of Repayments During Military Leave 43 (l) Loans from Money Purchase Plan Balances 43 5.4 Direct Rollover 43 ARTICLE 6 POST-EMPLOYMENT DISTRIBUTIONS 6.1 Distribution Events 44 (a) Termination of Employment or Disability 44 (b) Death 44 (c) Employer-Initiated Transfer 44 (d) Employee-Initiated Voluntary Direct Transfers (Change in Employment Transfer) 44 (e) Plan Termination 45 6.2 Amount of Payment 45 6.3 Timing of Payment 45 (a) Payment to the Participant 46 (b) Payment to a Beneficiary 46 6.4 Forms of Payment 46 (a) Account Balance Over $5,000 46 (1) Lump Sum 46 (2) Installments 46 (b) Account Balance Not Over $5,000 47 6.5 Medium of Payment 47 6.6 Required Distribution Rules 48 (a) Participant's Required Beginning Date 48 (b) Participant's Death Before Required Beginning Date 48 (c) Participant's Death After Required Beginning Date 49 (d) Compliance with Code Section 401(a)(9) 49
iv 6.7 Beneficiary Designation 49 (a) Procedure 49 (b) Waiver of Spouse's Rights 50 (c) Payment to Minor or Incompetent Beneficiaries 50 (d) Disclaimer of Beneficiary Status 51 (e) Judicial Determination 51 6.8 Payment to the Participant's Representative 51 6.9 Unclaimed Benefits 51 6.10 Direct Rollover 51 ARTICLE 7 LIMITATIONS ON CONTRIBUTIONS 7.1 Excess 402(g) Deferrals 53 (a) Time of Distribution 53 (b) Reporting Form 53 (c) Order of Distributions 53 (d) Inclusion in Annual Addition 54 (e) Determination of Earnings 54 7.2 Code Section 415 Limitation 54 (a) Applicable Definitions 54 (b) Excess Annual Addition 56 (c) Combining of Plans 56 (d) Compliance With Code Section 415 56 7.3 Top-Heavy Rules 57 ARTICLE 8 AMENDMENT, TERMINATION AND MERGER 8.1 Amendment 58 (a) Procedure 58 (b) Prohibited Amendments 58 (c) Administrative Changes Without Plan Amendment 58 8.2 Termination of the Plan 59 (a) Right to Terminate 59 (b) Provision for Benefits Upon Plan Termination 59 (c) Surplus Reversion 59 8.3 Plan Merger 59 ARTICLE 9 ADMINISTRATION 9.1 Allocation of Fiduciary Responsibilities 61 (a) Company 61 (b) Compensation Committee 61 (c) The Committee 61 (d) The Trustee 65 9.2 Expenses 65 9.3 Indemnification 65 9.4 Claims Procedure 66 (a) Application for Benefits 66 (b) Decision on Claim 66 (c) Appeal 66 (d) Special Time Period for Committee Meetings 67 (e) Exhaustion of Administrative Remedies 67
v ARTICLE 10 MISCELLANEOUS 10.1 Headings 68 10.2 Construction 68 10.3 Continued Qualification for Tax-Exempt Status 68 10.4 Nonalienation 68 10.5 No Employment Rights 69 10.6 No Enlargement of Rights 69 10.7 Withholding for Taxes 69 10.8 Suspension of Transactions 69 ADDENDUM A History of Revised Plan Provisions ADDENDUM B Acquired or Merged Entities ADDENDUM C Adopting Employers
vi ARTICLE 1 DEFINITIONS As used in the Plan, the following words and phrases and any derivatives thereof have the meanings set forth below unless the context clearly indicates otherwise. Definitions of other words and phrases are set forth throughout the Plan. Section references indicate sections of the Plan unless otherwise stated. The masculine pronoun includes the feminine, and the singular number includes the plural and the plural the singular, whenever applicable. 1.1 ACCOUNTS (ALSO CALLED SOURCES) 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 ACCOUNTS means one or more of the following Accounts, which are funded from the Employers' general treasuries and are fully vested at all times: (1) MATCHING ACCOUNT means the Account to record Matching Contributions allocated to the Participant under Section 3.2, which are invested in the Employer Stock Fund. After each Participant reaches age 55, he may elect to diversify the investment of his Matching Account balance into other investment funds, under Subsection 4.2(g). (2) NON-MATCHING ACCOUNT means the Account to record the balance transferred to this Plan on the 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. 1 (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 Contributions that the Participant makes on a before-tax basis under Section 3.1, between 1 percent and 15 percent of his Compensation. The Before-Tax Account also will record the Catch-Up Contributions made by eligible Participants (age 50 or older) under Subsection 3.1(d). (2) AFTER-TAX ACCOUNT means an Account to record the amounts that the Participant previously contributed on an after-tax basis to a Merged Plan. This Plan does not permit after-tax contributions. (3) ROLLOVER CONTRIBUTION ACCOUNT means an Account to record the before-tax amounts that the Participant rolled over to this Plan from another qualified retirement plan or conduit individual retirement account under Section 3.3. 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 Subsection 1.1(b)(2). 1.4. ANNUAL ADDITION means the sum of all Contributions allocated to a Participant's Accounts for a Plan Year, which cannot exceed the lesser of $40,000 (as indexed in $1,000 increments under Code Section 415), or 100 percent of his Compensation for the year. See Subsection 7.2(a). 1.5. BEFORE-TAX ACCOUNT. See Subsection 1.1(b)(1). 1.6. BOARD means the Board of Directors of the Company, or where applicable, the Executive Committee of the Board. 1.7 CATCH-UP CONTRIBUTION. See Subsection 1.12(b)(2). 2 1.8 CODE means the Internal Revenue Code of 1986 as amended from time to time, and regulations and rulings issued under the Code. 1.9 COMMITTEE means the Plan Committee, which serves as the named fiduciary and the Plan Administrator, and has primary responsibility for administering the Plan under Article 9. 1.10 COMPANY means SunTrust Banks, Inc. 1.11 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 percentages that each Participant can 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 Employer's payroll as vacation pay or sick pay; (3) draw for a commission Employee; (4) overtime pay; (5) certain bonuses, commissions, and incentive pay as determined from time to time by the Board or the Compensation Committee; and (6) salary reduction contributions under Code Sections 401(k), 125 (flexible benefits), and/or 132(f) (parking, effective January 1, 1999). Compensation EXCLUDES (1) other forms of extra compensation; (2) Employer payments for group insurance; (3) payments under this Plan and any other qualified or non-qualified deferred compensation plan; (4) income arising from stock options, stock awards and stock appreciation rights; (5) fringe benefits (except qualified transportation fringe benefits under Code Section 132(f)); (6) expense reimbursements; (7) payments under an Employer's long-term disability plan; and (8) other forms of indirect payments. Compensation for the Participant who enters the Plan after the beginning of a Plan Year includes only amounts earned after he enters the Plan. (b) DEDUCTIBILITY OF EMPLOYER CONTRIBUTIONS. See Subsection 3.2(h)(2) for the adjustments in Compensation used to determine the deductibility of Employer Contributions. 3 (c) STATUTORY LIMIT. Effective for the 2002 Plan Year, each Participant's Compensation taken into account for all purposes under the Plan is limited to $200,000 (as indexed in $5,000 increments under Code Section 401(a)(17)) for each Plan Year. 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) and 415 limits and the Plan's Employee Contribution 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 2002 Plan Year. 1.12 CONTRIBUTIONS. The Trustee will accept the following Contributions to the Plan: (a) EMPLOYER CONTRIBUTIONS (ALSO CALLED MATCHING CONTRIBUTIONS, AND SAFE HARBOR CONTRIBUTIONS), means contributions made by the Employers for each payroll period, in an amount equal to 100 percent of the first 3 percentage points, and 50 percent of the next 2 percentage points, of Employee Contributions made by each Participant for each payroll period in each Plan Year. These percentages are designed to comply with the ADP and ACP safe harbor requirements set forth in Code Sections 401(k)(12) and 401(m)(11), and may be changed to the extent necessary to comply with those requirements as in existence from time to time. The Employers may contribute shares of Employer Stock, and/or cash to purchase Employer Stock, and/or may have shares of Employer Stock released from the Suspense Account under Subsection 3.4(f). 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 were used. For Plan Years when the Committee considers it necessary to facilitate administration of the safe harbor requirements under Code Sections 401(k)(12) and 401(m)(11), the Committee may direct the Employers to make true-up Matching Contributions for each Participant whose deferral pattern during the Plan Year caused him 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. 4 (b) EMPLOYEE CONTRIBUTIONS. (1) ELECTIVE CONTRIBUTIONS, ALSO CALLED 401(K) CONTRIBUTIONS, means the amounts that each Participant elects to contribute on a before-tax basis under Section 3.1, between 1 percent and 15 percent 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) CATCH-UP CONTRIBUTIONS means the additional Elective Contributions elected by the age-50 Participant who has met the eligibility requirements under Subsection 3.1(d), the amount of which is limited to the annual dollar amount specified in Subsection 3.1(d), and which is excluded from the annual percentage limit under Subsection 3.1(a), the Dollar Limit under Section 7.1, and the Code Section 415 Annual Addition under Section 7.2. (c) ROLLOVER CONTRIBUTION means an amount transferred to this Plan from another qualified retirement plan or conduit individual retirement account, under Section 3.3. 1.13 CONTROLLED GROUP means the Company and each member of the group of corporations or entities that is under at least 80 percent 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 percent of the total combined voting power of all classes of stock entitled to vote, or more than 80 percent 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). 1.14 DISABILITY means a medically determinable physical or mental impairment that has disabled the Participant from engaging in substantial gainful activity as defined in the Long-Term Disability Plan provisions under the SunTrust Banks, Inc. Employee Benefit Plan (the LTD Plan), which is reasonably expected to result in death or to be of long continued and indefinite duration, and which meets the qualification requirements for long-term disability benefits under the LTD Plan. 5 1.15 DOLLAR LIMIT means the maximum dollar amount that any Participant can contribute for any Plan Year under Code Section 402(g), which amount will be $11,000 for 2002, and will be indexed annually in $1,000 increments until 2006, $12,000 for 2003, $13,000 for 2004, $14,000 for 2005 and $15,000 for 2006, and thereafter will be indexed to the CPI in $500 increments. 1.16 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, and January 1, 1997. The Effective Date of this amendment and restatement is January 1, 2002, except that certain amendments are effective as of other dates stated within the affected Sections. 1.17 ELECTIVE CONTRIBUTIONS (ALSO CALLED EMPLOYEE CONTRIBUTIONS). See Subsection 1.12(b). 1.18 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 full-time regular, part-time, or on-call; and (b) who has FICA taxes withheld by an Employer. The group of eligible Employees exclude: (a) those who are classified on an Employer's payroll as prime-time or temporary; (b) 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; (c) leased employees as defined under Code Section 414(n); and (d) individuals designated as independent contractors (even if a court or administrative agency determines that such individuals are common-law employees). 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 reclassifies an individual who had been classified as not being an eligible Employee, such reclassification will be prospective only, except to the extent the Employer expressly applies the reclassification retroactively. 6 1.19 EMPLOYEE CONTRIBUTIONS (ALSO CALLED ELECTIVE CONTRIBUTIONS). See Subsection 1.12(b). 1.20 EMPLOYEE CONTRIBUTIONS ACCOUNTS. See Subsection 1.1(b). 1.21 EMPLOYER means the Company and each Controlled Group member that adopts the Plan. The Employers that have adopted this Plan are listed in Addendum C. 1.22 EMPLOYER CONTRIBUTIONS (ALSO CALLED MATCHING CONTRIBUTIONS AND SAFE HARBOR CONTRIBUTIONS). See Subsection 1.12(a). 1.23 EMPLOYER CONTRIBUTION ACCOUNTS. See Subsection 1.1(a). 1.24 EMPLOYER STOCK means common stock of the Company that is readily tradable on an established securities market. 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. 1.25 EMPLOYER STOCK FUND means the unitized 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. 1.26 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. 1.27 EMPLOYMENT DATE means the date on which the Employee first earns Compensation. If an Employee worked for a Controlled Group member immediately before he transferred to an adopting Employer, the Plan grants credit for eligibility for his pre-transfer service. 7 1.28 ERISA means the Employee Retirement Income Security Act of 1974, as amended from time to time, and regulations and rulings under ERISA. 1.29 ESOP means this Plan, which is an employee stock ownership plan under Code Sections 401(a) and 4975(e)(7), designed to invest primarily in qualifying employer securities. The entire Plan is an ESOP with Code Section 401(k) features. 1.30 EXCESS 402(g) DEFERRALS means the total annual amount of Employee Contributions that any Participant makes under this Plan, plus his elective 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 ($11,000 for the 2002 Plan Year). 1.31 FAIR MARKET VALUE means, with respect to Employer Stock, the closing price for which the shares traded on the New York Stock Exchange as of the date of determination. If Employer Stock is not traded on the date of determination, Fair Market Value is determined on the most recent day before the date of determination when such shares were traded on the New York Stock Exchange. With respect to each other fund in which Account balances are invested, Fair Market Value means the closing price for which fund shares traded on the applicable exchange or in the applicable market as of the date of determination or the most recent day before the date of determination when such shares were traded. 1.32 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. 1.33 HCE GROUP. The entire group of Employees who are Highly Compensated Employees (HCEs) for the Plan Year. 1.34 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 $80,000 (indexed under Code Section 415(d)) during the preceding Plan Year and was in the top-paid 20 percent of all Employees, based on 8 Compensation. The Plan will determine 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. 1.35 MATCHING ACCOUNT, OR EMPLOYER MATCHING ACCOUNT. See Subsection 1.1(a)(1). 1.36 MATCHING CONTRIBUTIONS (ALSO CALLED EMPLOYER CONTRIBUTIONS AND SAFE HARBOR CONTRIBUTIONS). See Subsection 1.12(a)(1). 1.37 MERGED PLAN means a qualified defined contribution plan that was maintained by an Employer before the plan was merged into this Plan. The provisions of each Merged Plan that are grandfathered under this Plan are described in Addendum B. 1.38 NCE GROUP means the entire group of Employees who are Nonhighly Compensated Employees (NCEs) for the Plan Year. 1.39 NON-HIGHLY COMPENSATED EMPLOYEE (NCE) means an Employee who is not within the HCE Group for the Plan Year. 1.40 NON-MATCHING ACCOUNT. See Subsection 1.1(a)(2). 1.41 PARTICIPANT means an Employee who is participating in the Plan under Section 2.1. A Participant will retain his status as an active Participant so long as he receives Compensation from which he makes Employee Contributions. 1.42 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 an ESOP with Code Section 401(k) features. 1.43 PLAN ADMINISTRATOR means the Committee. 9 1.44 PLAN YEAR means the calendar year. 1.45 ROLLOVER CONTRIBUTION. See Subsection 1.12(c). 1.46 SAFE HARBOR CONTRIBUTIONS (ALSO CALLED MATCHING CONTRIBUTIONS AND EMPLOYER CONTRIBUTIONS) means the Employer Matching Contributions described in Sections 1.12 and 3.2, 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. 1.47 SERVICE CENTER means the SunTrust Benefits Service Center (commonly referred to as BENE), which is available for Participants and beneficiaries to use to make their deferral and investment elections and modifications, to request in-service withdrawals and loans, and to request post-Employment distributions. 1.48 SHARE UNITS. See Subsection 1.25. 1.49 SOURCE (ALSO CALLED ACCOUNTS). See Subsection 1.1. 1.50 SPOUSE means the person to whom the Participant is legally married. The surviving Spouse is the person to whom the Participant has been legally married throughout the one-year period ending on his date of death; the one-year marriage requirement is rescinded effective July 1, 2001. In the event of a dispute, Spousal status will be determined in accordance with applicable laws of the Participant's state of domicile. The surviving Spouse is sometimes referred to as a beneficiary. 1.51 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. 10 1.52 TERMINATION DATE means the date the Employee quits, retires, is discharged or dies. For purposes of distributing Account balances under Article 6, the Termination Date will not occur until the Participant has terminated from all Controlled Group members. 1.53 TRUST (OR TRUST FUND) means the fund maintained under the trust agreement executed between the Company and the Trustee, as amended from time to time, which constitutes a part of this Plan. 1.54 TRUSTEE means the corporation(s), individual(s) or other entity(s) appointed by the Company and approved by the Board to administer the Trust, as provided in Article 9. 1.55 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 will make allocations to Accounts as provided in Section 4.1. The Committee may establish different allocation and/or Valuation Dates from time to time as it considers appropriate. 11 ARTICLE 2 ELIGIBILITY 2.1 ELIGIBILITY. Effective January 1, 2002 each Employee will be permitted to begin participating in the Plan for purposes of making Employee Contributions and receiving allocations of Matching (Safe Harbor) Contributions, as of the first day of the second calendar month after his Employment Date. If an Employee does not elect to participate when he is first eligible, he may elect to participate as of the first day of any subsequent month. As stated in Section 1.18, no individual is an eligible Employee until his Employer has adopted this Plan. No individual who is an active participant in another defined contribution plan qualified under Code Section 401(a) maintained by any Controlled Group member will be eligible to participate in this Plan. Unless provided otherwise in Addendum B, individuals who become Employees as a result of a merger or acquisition will become eligible to participate in this Plan as of the first day of the second Plan Year that begins after the merger or acquisition, i.e., at the end of the Code Section 410(b)(6)(C) transition period. 2.2 PARTICIPATION UPON REEMPLOYMENT. The Participant who terminates and is rehired will be permitted to resume participation as of the first day of any month following the date he resumes Employment or as soon as administratively practicable. The non-participating Employee who terminates and is rehired as a Covered Employee within five years, will receive eligibility credit for his previous period of Employment. 2.3 LEASED EMPLOYEES AND INDEPENDENT CONTRACTORS. Effective January 1, 1997, 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 one year, under the Employer's primary direction or control and pursuant to an agreement between an Employer and a leasing organization. Leased employees will be treated as Employees to the extent required under Code Section 414(n), but will not be eligible to participate in this Plan. If a leased employee becomes an Employee, the Plan will give him credit for eligibility for the period when he worked as a leased employee. However, the Plan will 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 percent of compensation as defined in Code Section 414(n)(5)(C), and 12 immediate participation and vesting, and (b) leased employees constitute no more than 20 percent of the Controlled Group's nonhighly compensated employees. If an individual who has worked for an Employer as an independent contractor becomes a common-law employee, or if a court or administrative agency determines that an individual whom an Employer has designated as an independent contractor is in fact a common-law employee, he will not receive credit for any purpose under the Plan until the date when the Committee designates him as an eligible Employee under this Plan. 2.4 ADOPTION OF THE PLAN BY A CONTROLLED GROUP MEMBER. A Controlled Group member may 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. 13 ARTICLE 3 CONTRIBUTIONS 3.1 EMPLOYEE ELECTIVE CONTRIBUTIONS AND CATCH-UP CONTRIBUTIONS. The provisions set forth in this Article are effective beginning January 1, 2002, the date as of which the Plan is a safe harbor plan that accepts only Elective 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). 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, are set forth in Addendum A, including the annual nondiscrimination (ADP and ACP) tests that applied to Contributions before 2002. (a) AMOUNT PERMITTED. For each payroll period, each Participant may elect the whole percentage of his Compensation that he wishes to contribute to the Plan on a before-tax basis, not less than 1 percent nor more than 15 percent. (b) LIMITATIONS ON AMOUNT. The amount of any Participant's Employee Contributions may be limited for any Plan Year to avoid exceeding the Dollar Limit as indexed for the Plan Year under Code Section 402(g) and as described in Section 7.1, and/or the Code Section 415 Annual Addition limitations described in Section 7.2. (c) 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. (d) CATCH-UP CONTRIBUTIONS. Eligible Participants who have elected to make the maximum Elective Contributions described in Subsection (a) for a Plan Year, may also elect to make Catch-Up Contributions for that Plan Year, under the rules set forth in this Subsection (d). (1) ELIGIBLE PARTICIPANTS. To be eligible to make Catch-Up Contributions for a Plan Year, a Participant (A) must have reached age 50 or must be projected to reach age 50 before the end of the Plan Year; and (B) must have elected to make the 14 maximum Elective Contributions permitted under the Plan for the Plan Year to which his Catch-Up Contribution election applies. (2) ANNUAL CATCH-UP CONTRIBUTION LIMIT AND PRO-RATED LIMIT. The following Catch-Up Contribution limits are 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 will be indexed to the CPI in $500 increments under Code Section 414(v). In Plan Years when the Committee considers it appropriate to facilitate administration, if a Participant is eligible to make Catch-Up Contributions and enters or re-enters the Plan mid-year, the Plan will pro-rate the limit in effect for that Plan Year, to equal the ratio of his months of participation over 12 multiplied by the annual limit. (3) EXCLUSION OF CATCH-UP CONTRIBUTIONS FROM PLAN LIMITS. The Plan will exclude Catch-Up Contributions from: (A) the Employee Contribution percentage limit under Subsection 3.1(a); (B) the Dollar Limit under Section 7.1; (C) the Code Section 415 Annual Addition under Section 7.2; and (D) the tax-deduction limit under Subsection 3.2(h). (4) RECHARACTERIZATION OF DISQUALIFIED CATCH-UP CONTRIBUTIONS. If a Participant elects to make Catch-Up Contributions for a Plan Year, and the Plan allocates his designated Catch-Up Contributions to his Employee Contribution Account, but his Elective Contributions for the Plan Year fail to reach one of the Plan limits or statutory limits listed in Subsection 3.1(b), the Plan will recharacterize his Catch-Up Contributions as regular Elective Contributions, 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 exceeds the Plan's percentage limit or a statutory limit. (5) NO MATCHING CONTRIBUTIONS. The Employers will not make any Matching Contribution on any Catch-Up Contribution. 15 (e) MAKE-UP CONTRIBUTIONS AFTER MILITARY LEAVE. Effective January 1, 1996, the Committee will permit each Participant who resumes active Employment after an unpaid military leave covered under the Uniformed Services Employment and Reemployment Rights Act of 1994 to make special Employee Contributions in an amount up to the maximum amount he could have contributed if he had remained in Employment during his period of leave. Each make-up Employee Contribution will be subject to the percentage-of Compensation limit, the Dollar Limit under Code Sections 402(g), and the Annual Addition limit under Code Section 415, in effect for the year to which the Employee Contribution relates. The Committee will permit the Participant to make his special Employee Contributions during the period beginning on the date when he resumes Employment and continuing for a period equal to the lesser of three times the length of his military leave, or five years. The amount of his special Employee Contributions will be based on the Compensation he would have received if he had remained in active Employment, at his rate of pay in effect when he began his leave. If that pay rate cannot be determined with certainty, the Committee will treat him as having Compensation equal to the amount he received during the 12-month period preceding his leave, or during the entire period of his Employment if shorter than 12 months. (f) VESTING. All Employee Contributions and Catch-Up Contributions, and all earnings allocated to Employee Contribution Accounts and Catch-Up Accounts, are fully vested at all times. (g) INITIAL ELECTION TO CONTRIBUTE. The Employee who wishes to begin participating must notify the Service Center during the month preceding the first day of the payroll period in which he wishes to begin participating. He must properly complete the enrollment procedures (including execution of his deferral agreement and beneficiary designation as required by the Committee). The Service Center will effect all elections to contribute, or to modify or revoke an election, as soon as administratively possible. The Employee who does not begin contributing as of the date when he is first eligible, may elect to begin contributing as of the first day of any subsequent month so long as he remains an eligible Employee. Each election will remain effective until the Participant modifies or revokes his election, or ceases to be an Employee. The 16 elected percentage will apply to increased or decreased Compensation. When the Participant's Elective Contributions reach a Plan or statutory limit for a Plan Year, the Plan will suspend his election until the first day of the following Plan Year and will automatically reactivate it unless he has elected to modify his election or cease participation. The Participant who is eligible to make Catch-Up Contributions under Subsection 3.1(d) and has elected to make the maximum amount of Elective Contributions for the Plan Year, may also elect to make Catch-Up Contributions in compliance with any procedures published by the Committee from time to time as the Committee considers appropriate to facilitate administration of Catch-Up Contributions. (h) MODIFICATION. The Participant who has elected to contribute a percentage of his Compensation as his Elective Contributions may modify his election as of the first day of any month, by notifying the Service Center and submitting a new election to have a higher or lower percentage deducted from his Compensation. His modification election will become effective as of the first day of the month following the date when the Service Center receives his election. Each modification will remain in effect until a new election is properly made. The Committee may publish special procedures for Catch-Up Contributions from time to time, as the Committee considers appropriate to facilitate administration of Catch-Up Contributions. (i) CESSATION. A Participant may elect to cease making Employee Contributions as of the first day of any month. He may elect to resume making Employee Contributions as of the first day of any subsequent month so long as he remains an eligible Employee. He must submit his election to cease or to resume contributing to the Service Center during the month preceding the date when his election becomes effective. (j) MISTAKES IN CONTRIBUTIONS. Plan fiduciaries will take reasonable steps to ensure that the Plan is administered as written and in compliance with the Code and ERISA, and to correct defects as promptly as practicable. If the Committee discovers a material defect related to Employee Contributions, it will correct the defect, either by effecting increased payroll deductions, or by refunding any excess deduction, or by re- 17 allocating Employee Contributions, as may be needed to put the affected Participant in the same position he would have enjoyed if the defect had not occurred. See Subsection 4.1(e) for additional provisions regarding corrections of mistakes. (k) COMMITTEE REGULATIONS. The Committee may from time to time establish and uniformly apply rules governing elections, including rules regarding the frequency with which elections may be modified or revoked. 3.2 EMPLOYER MATCHING CONTRIBUTIONS. The provisions set forth in this Section are effective beginning January 1, 2002. For each Plan Year, the Company may in its discretion direct the Employers to contribute cash to be used to purchase Employer Stock and/or shares of Employer Stock. The Company may direct that shares of Employer Stock be released from the Suspense Account under Subsection 3.4(f). 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 used. (a) MATCHING CONTRIBUTION. The Employers will make a Matching Contribution 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 the Plan Year. Matching Contributions are allocated to Matching Accounts as soon as practicable after the end of each payroll period for which they are made. Subject to the Committee's approval, the Employers may make a Matching Contribution in advance of the payroll period to which it relates, in a reasonably calculated amount and in compliance with applicable law, to the extent needed for liquidity. The Employers will not make Matching Contributions for Catch-Up Contributions. (b) OPPORTUNITY TO MAXIMIZE MATCHING CONTRIBUTIONS. The Committee, in its sole and complete discretion, may for any Plan Year direct the Employers to make Matching Contributions (sometimes called true-up Contributions) after the end of each calendar quarter or after the end of the Plan Year. For example, the Committee may direct Employers to make true-up Contributions for any Plan Year when Participants are required to elect to contribute 15 percent of Compensation for each payroll period up 18 to the Code Section 402(g) Dollar Limit in effect for the year, as a condition to being eligible to elect to make Catch-Up Contributions under Subsection 3.1(d). As soon as practicable after the end of each Plan Year when the Committee directs Employers to make true-up Contributions, or at more frequent intervals as the Committee considers proper, the Employers will make true-up Contributions for each Participant whose deferral pattern during the Plan Year caused him 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, i.e., he contributed an amount greater than 5 percent of his Compensation for one or more payroll periods during the Plan Year and reached the Code Section 402(g) Dollar Limit before the end of the Plan Year. For Plan Years when the Committee does not publish such requirement in advance, the Employers will make Matching Contribution only on the first 5 percent of Compensation contributed for each payroll period throughout the Plan Year, and will not make true-up Contributions. (c) MAKE-UP CONTRIBUTIONS AFTER MILITARY LEAVE. Effective January 1, 1996, the Employers will make special Matching Contributions for each of their Participants who returns to Employment from unpaid military leave covered under the Uniformed Services Employment and Reemployment Rights Act of 1994 and contributes the make-up Employee Contributions described in Subsection 3.1(e). Each Matching Contribution will relate to the Plan Year for which the make-up Employee Contribution is made and will be subject to the percentage-of-Compensation limit and Code Section 415 limit in effect for that Plan Year. The Committee will not allocate investment earnings to the make-up Contribution for the period of leave. (d) 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. (e) VESTING. All Employer Contributions and all earnings allocated to Employer Contribution Accounts are fully vested at all times. 19 (f) VALUATION OF SHARE UNITS FOR ALLOCATION PURPOSES. Allocations of Share Units will be based on Fair Market Value on the date the Share Units are allocated. (g) EXCLUSIVE BENEFIT OF PARTICIPANTS. All Employer Contributions will be irrevocable when made and will not revert to the Employers, except as provided in Subsection 3.2(j). 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. (h) CONTRIBUTIONS LIMITED TO TAX DEDUCTIBLE AMOUNTS. (1) ACQUISITION LOAN PRINCIPAL REPAYMENTS. The Employers may contribute an annual amount that does not exceed 25 percent 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 Acquisition Loan. The Employers may also deduct all dividends paid on allocated or unallocated Employer Stock held under the ESOP to the extent that the dividends are either (A) made available or paid in cash to Participants within 90 days after the end of the Plan Year in which paid under Subsection 4.1(c), or (B) used to repay an Acquisition Loan the proceeds of which were used to acquire the Employer Stock on which the dividend is paid. The dividend deduction will be taken in the Employer's taxable year when the dividend is declared and made available to Participants or is used to repay the Acquisition Loan. (2) EMPLOYER CONTRIBUTIONS. Effective January 1, 2002, the Employers will limit their Contributions for each Plan Year so that the total annual amount does not exceed 25 percent 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 20 members, or such other limit as may be specified in Code Section 404(a) from time to time. This deduction will be in addition to the deductions described in Subsection (h)(1). For this purpose, Compensation includes Employee Contributions, but Employee Contributions do not count toward the 25 percent 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. (i) MISTAKES IN CONTRIBUTIONS. Plan fiduciaries will take reasonable steps to ensure that the Plan is administered as written and in compliance with the Code and ERISA, and to correct defects as promptly as practicable. If the Committee discovers a material defect related to Employer Contributions, it may direct the Employers to make any Contributions, and/or to reallocate Employer Contributions, as may be needed to put Participants in the same position they would have enjoyed if the defect had not occurred. See Subsection 4.1(f) for additional provisions regarding corrections of mistakes. (j) 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. 21 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 payment, or (2) a payment other than one that is 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 the Participant or the joint lifetimes or life expectancies of the Participant and his named beneficiary. The Committee will not treat as an Eligible Rollover Distribution: (1) any distribution required under Code Section 401(a)(9); (2) any corrective refund of employee contributions to any plan; (3) any hardship withdrawals; (4) any distributions from any plan that is not qualified under Code Sections 401(a) and 501(a) (including but not limited to simplified employee pension (SEP) plans and simple retirement accounts), (5) after-tax contributions distributed from any qualified or non-qualified plan, or (6) ESOP dividends received as a result of a Code Section 404(k) election. (b) 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 completes his eligibility period under Section 2.1, or before he elects to participate, and will have his Rollover Contribution as his sole interest in the Plan until he begins making Elective Deferrals. (c) 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. (d) REQUIRED INFORMATION. The Committee will adopt such procedures, and may require such information from the Employee who desires to make a Rollover Contribution, as it considers necessary to determine whether the proposed rollover or direct plan transfer will meet the requirements of this Section. The Committee may require the Employee to submit a written certification that he received his Eligible Rollover 22 Distribution from another qualified plan or from a conduit IRA. Upon approval by the Committee, the Rollover Contributions will be deposited in the Trust Fund and will be credited to the Employee's Rollover Account. (e) 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 received his distribution from a qualified plan that either was not subject to the spousal consent requirements or contained an exemption for his distribution, or that his 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. (f) REFUND OF PROHIBITED ROLLOVERS. In the event 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. (g) RELIANCE ON EMPLOYEE'S REPRESENTATIONS. The Committee will in good faith rely on the representations made by the eligible Employee in his 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 Board may from time to time authorize and direct the Trustee to make an Acquisition Loan either to purchase Employer Stock or to repay a previous Acquisition Loan. No proceeds from any Acquisition Loan may be used for any other purpose. (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 23 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 in the event of 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 Committee. To the extent permitted by the terms of the Acquisition Loan, the 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 Committee from time to time, the Trustee either will hold the dividends paid on the Financed Shares in the Suspense Account until they are 24 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 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 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. If the 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 the Matching Contribution obligation, the 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 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. 25 (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. In the event of a default on an Acquisition Loan, the Trustee will transfer to the lender Plan assets equal in value to the amount of the defaulted balance. In the event of 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. Pursuant to directions from the Committee, 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 under Articles 5 and 6, the Trustee may sell Employer Stock on the New York Stock Exchange or to the Company. 3.6 PAYMENT TO THE TRUSTEE. The Employers will transfer to the Trustee, no later than the 15th business day of the month following the month in which Employee Contributions are withheld, the amounts withheld for all of their Participants during the payroll periods ending in that month. The Employers will transfer their Employer Contributions to the Trustee as soon as practicable after the end of the payroll period for which they are made, but no later than the extended due date of the Company's federal income tax return for the fiscal year that ends in the Plan Year for which the Contribution is made. However, Employer Contributions that the Trustee uses to repay an Acquisition Loan will be made no later than 60 days after the end of the Plan Year for which the repayment is used to release and allocate shares from the Suspense Account. 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 26 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 entire Account balances. 27 ARTICLE 4 ALLOCATIONS 4.1 ADJUSTMENTS TO ACCOUNT BALANCES. (a) 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 allocations of Contributions, withdrawals and payments from his Accounts, and investment gains or losses and expenses. (b) ADMINISTRATIVE FEES. The Plan may charge reasonable and uniform administrative fees to Participant Accounts. (c) DIVIDENDS ON EMPLOYER STOCK. The Plan will use dividends issued on Employer Stock acquired with an Acquisition Loan and held in a Suspense Account, to repay any outstanding balance on that Acquisition Loan. Effective January 1, 2002, the Plan will maximize the Company's tax deductions available under Code Section 404(k) by permitting Participants and beneficiaries to elect whether to receive the dividends declared on the Share Units allocated to their Accounts in a cash payment to be made no later than 90 days after the end of the Plan Year in which the dividends were paid, or to reinvest them in the Employer Stock Fund. The Plan will provide the elections in a manner that permits Participants and beneficiaries reasonable time to make their elections with respect to each dividend declaration. The Plan will honor each Participant's and beneficiary's election as in effect on the record date for that dividend. The elections for each quarterly dividend become irrevocable on the record date for the dividend, unless the Committee has timely established and communicated a different irrevocability date. The Plan treats elections as evergreen so that each election remains in effect until the Participant or beneficiary affirmatively elects to change it. Participants and beneficiaries may change their dividend elections at any time for dividends to be declared after the submission date of the change request. The Plan treats any Participant or beneficiary who fails to make an 28 affirmative election as if he had elected to reinvest his dividends in the Employer Stock Fund. The Plan will not distribute any earnings on any dividends that are reinvested in Employer Stock and subsequently distributed pursuant to an election under this Section. Beginning in 2003, the Plan will decrease elected cash distributions to reflect any losses attributable to the dividend between the record date and the distribution date. The Committee may apply special election rules to the extent necessary to maximize the deduction for dividends declared during 2001, as permitted under IRS Notice 2002-2. (d) 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. (e) STATEMENT OF ACCOUNT BALANCES. As soon as practicable after the end of each Plan Year, the Committee will provide to each Participant and beneficiary for whom an Account is maintained a statement showing all allocations to and distributions and withdrawals from his Accounts, and the current value of his Accounts. For any Plan Year, the Committee may provide statements more frequently than annually. (f) MISTAKES IN ACCOUNT BALANCES. 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 a material defect in any Account balance or payment from the Plan, it will take reasonable steps to correct the defect as promptly as practicable. The Committee will make a good faith effort to correct administrative errors in the manner that it considers appropriate under the circumstances and in compliance with IRS guidance on self-correction of operational defects. If the Committee determines that the burden or expense of seeking recovery of any overpayment or correcting any immaterial defect would be greater than is warranted under the circumstances, it may in its discretion forego recovery or other correction efforts. In correcting administrative defects, the Committee may make de minimis variances from Plan provisions (including but not limited to medium and timing of payment), to the extent any such 29 variance would comply with applicable qualification requirements if it were set forth in a written provision of the Plan. 4.2 INVESTMENT ELECTIONS. (a) INVESTMENT FUNDS. From time to time, the Committee will direct the Trustee to make available one or more funds for the investment of Account balances, except those that are not eligible for diversification, as elected by each Participant or beneficiary. The Committee will timely describe the investment funds that are available from time to time, in written notices to Participants and beneficiaries. Except as may be provided in Addendum B or announced otherwise by the Committee, balances in the Employer Contribution Accounts will not be subject to election but will be invested in the Employer Stock Fund, until the Participant reaches age 55 and elects to diversify his investment in Employer Stock under Subsection 4.2(g). (b) COMPLIANCE WITH ERISA SECTION 404(c). The Plan will be administered 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 will not be liable for any loss that results from any Participant's exercise of control. (c) LIQUIDITY. The Trust Fund may hold cash and other liquid investments in such amounts as the Committee and/or the Trustee consider necessary to meet the Plan's liquidity requirements and to pay administrative expenses. (d) INVESTMENT ELECTIONS. Participants must contact the Service Center to make their investment elections. The Service Center will issue a written confirmation of each election that it receives. (1) INITIAL ELECTION. As of the date he enters the Plan, the Participant may elect to have the aggregate balances in his Employee Contribution Accounts invested among the investment funds in 1 percent increments. 30 (2) FAILURE TO ELECT. The Committee will direct the Trustee to invest the Employee Contribution Account balances of any Participant who fails to timely complete his election, in a fund that invests primarily in fixed-income investments with relatively short average maturities. (e) CHANGE IN INVESTMENT ELECTION. As of any Valuation Date, each Participant may change his investment election for the balance(s) in his existing Employee Contribution Account(s), and each Participant who is eligible to diversify under Subsection 4.2(g) may make investment elections for the balance(s) in his Employer Contribution Account(s), in 1 percent increments. Reinvestment elections for existing balances will become effective as of the Valuation Date when made if the Participant completes his investment election no later than the daily time deadline. Otherwise, the election will become effective as of the next following Valuation Date. The Committee will establish and publish to Participants from time to time the daily time deadlines by which elections must be completed. Investment elections for future Employee Contributions, and for future Employer Contributions for Participants who are eligible to diversify, will be effective when made. (f) 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 recovery rules. Discretionary transactions may include (A) elective distributions (in-service withdrawals and loans under Article 5 that require liquidation of shares held in the Employer Stock Fund), and (B) investment elections that involve transfers to and from the Employer Stock Fund. (g) DIVERSIFICATION ELECTIONS. Beginning on the first day of the month during which each Participant reaches age 55, he may diversify all or part of the balance in his Matching Account at any time, by making a fund transfer in 1 percent increments among the available investment funds as of any Valuation Date, or as otherwise provided in Addendum B. 31 (h) 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). (i) INVESTMENT EXPENSES. All expenses of each investment fund will be paid from that fund, to the extent not paid directly by the Employers. (j) SPECIAL ELECTION RULES. The Committee may permit (1) investments in increments greater or lesser than 1 percent, (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. 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 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 Account. The Committee will provide to Participants and to the Trustee proxy material and other voting information identical to that provided to other stockholders. 4.4 TENDER OFFERS. In the event 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 32 Share Units or take any other solicited action with respect to the Employer Stock represented by his Share Units. The Trustee will tender 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 tendering 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 tender 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 each Participant who sells the Share Units held in his Accounts, the Trustee will reinvest the proceeds according to his current investment election, unless he elects otherwise under Subsection 4.2(e). For purposes of any tender offer, each Participant will be a named fiduciary with respect to the Employer Stock represented by the Share Units held in his own Accounts. 33 ARTICLE 5 IN-SERVICE WITHDRAWALS AND LOANS 5.1 WITHDRAWALS WITHOUT A HARDSHIP. An in-service withdrawal is one made while the Participant is still in Employment and before he has had a payment 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 available Account balances to be withdrawn. The Trustee will issue payment of the amount withdrawn as promptly as practicable after approval of the request. (a) 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 After-Tax Account balance as of any Valuation Date during his 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 After-Tax Account both before and after 1986. (2) IN-SERVICE WITHDRAWAL FROM ROLLOVER ACCOUNT. Each Participant may withdraw all or part of his Rollover Account balance as of any Valuation Date during his Employment. (3) IN-SERVICE WITHDRAWAL AFTER AGE 59-1/2. At any time after any Participant reaches age 59-1/2, he may withdraw all or part of any of his 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 may elect either to begin receiving payment of his Account balances or to continue deferring payment until he retires. The Plan will pay to any active Participant who is a 5-percent owner of any Employer, the minimum annual amount required under Code Section 34 401(a)(9) for each year beginning in the year when he reaches age 70-1/2, with payments beginning no later than April 1 of the following year. (b) AVAILABLE AMOUNT. The amount available to the Participant who makes an in-service withdrawal will be based on his 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. (c) 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. (d) 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. (e) WITHDRAWALS OF MONEY PURCHASE PLAN BALANCES. A Participant may withdraw any portion of his Account balance that is attributable to employer contributions to a Merged Plan that was a money purchase plan, at any time after he reaches normal retirement age (age 59-1/2 for this purpose). The married Participant who makes a withdrawal from such Account (before or after his Termination Date) must have his Spouse's written consent in compliance with Subsection 6.7(b). 5.2 HARDSHIP WITHDRAWALS. The active Participant who wishes to make a hardship withdrawal during his Employment must contact the Service Center and specify the amount to be withdrawn. He 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 35 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. (a) AVAILABLE AMOUNT. The amount withdrawn may not exceed the actual expenses incurred or to be incurred by the Participant because of his hardship, plus (as part of the same withdrawal) the reasonably estimated amount of taxes and penalties he 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 hardship withdrawal, may not exceed his total aggregate available Account balances determined as of the hardship withdrawal date. The Participant may withdraw, to the extent applicable for him: (1) the dollar amount of his Elective Contributions made after 1992 (excluding earnings); (2) the dollar amount of his Matching Contributions that were made for Plan Years 1993 through 2001 (excluding earnings) and that have been maintained in the Plan for at least 24 months; (3) the dollar amount of his Elective Contributions made under a Merged Plan (excluding earnings accrued after 1988); and (4) his 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. (b) IMMEDIATE AND HEAVY FINANCIAL NEED. The Participant may make a hardship withdrawal only if he incurs a hardship that creates an immediate and heavy financial need that he cannot meet without the withdrawal. A hardship withdrawal must be necessitated by either: (1) Medical expenses previously incurred by either the Participant, his Spouse or dependents, or medical care needed in the future for any such person; (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) Tuition payments, related educational fees, and room and board for the next 12 months of post-secondary education (including trade school) for the Participant, his Spouse or dependents; 36 (4) Threatened imminent eviction from, or foreclosure of the mortgage on, the Participant's principal residence; (5) Any other catastrophic financial hardship (such as funeral expenses for the Participant's Spouse, dependents or immediate family members) that the Committee determines to have consequences similar in severity to the events listed above, and that make the withdrawal necessary for the safety or well-being of the Participant, his Spouse or dependents. (c) WITHDRAWAL NECESSARY TO MEET NEED. The Committee will treat a withdrawal as necessary to meet the immediate and heavy financial need if the following requirements are met: (1) AMOUNT NEEDED. The amount withdrawn cannot exceed the amount of the need. (2) LOANS AND DIVIDENDS. The Participant must obtain all other available withdrawals, distributions and nontaxable loans under all qualified and nonqualified plans maintained by his Employer, if any. 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) (3) SUSPENSION. After the Participant receives his hardship withdrawal, the Committee will suspend his Elective Contributions to this Plan and his contributions to or deferrals under any other qualified or nonqualified cash or stock plan maintained by any Employer. For withdrawals made on or after January 1, 2002, the suspension period is 6 months. (d) NONDISCRIMINATION. The Committee will determine the existence of the Participant's immediate and heavy financial need and the necessity for the withdrawal to meet the need, in a uniform and nondiscriminatory manner. 37 (e) RELIANCE ON PARTICIPANT'S REPRESENTATIONS. The Committee will in good faith rely on the representations made by the Participant in his application for the hardship withdrawal and will not be held accountable for any misrepresentation of which it did not have actual knowledge. 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 during his Employment must contact the Service Center and specify the amount to be borrowed. No Participant may receive a loan after he terminates Employment, and no beneficiary will be eligible for a loan. The Committee may deny a Participant's loan application if he failed to repay a previous Plan loan according to his repayment schedule. (b) AVAILABLE AMOUNT. The Participant may request a loan from the aggregate balances in his Accounts. The total principal amount of the Participant's outstanding loans may not exceed the lesser of (1) 50 percent of his aggregate Account balances as of the date the loan is approved, or (2) $50,000. If he has an outstanding loan balance, the $50,000 limit will be reduced by an amount equal to his highest outstanding balance during the twelve months immediately preceding the date when his loan is made, minus his current outstanding balance (i.e., his total principal repayments during the past 12 months). The minimum amount of each loan will be $1,000.00, unless the Committee has published another limit. (c) ORDER OF ACCOUNT LIQUIDATION. Unless the Committee determines that a different order is appropriate, the Trustee will acquire 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; and (6) After-Tax Account. Unless the Committee determines that a different method is appropriate, the Trustee will subtract the proceeds of each loan pro rata from the investment funds in which the Account balances are invested. 38 (d) LOAN ORIGINATION FEES. The Trustee will deduct 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 Trustee will also deduct the fees for any required state documentary stamps or Uniform Commercial Code (UCC) filing fees. The Trustee will reflect the deduction on the statement that it issues with the proceeds. Early repayment of a loan will not result in reimbursement of any of the fees. (e) FREQUENCY OF LOANS. Each Participant will be eligible to have no more than two outstanding loans at any one time. (f) INTEREST. Each loan will bear 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 will charge interest on loans in a uniform and nondiscriminatory manner. (g) SECURITY. Each loan will be secured by the Participant's pledge of the balances in his Accounts from which his loan is made. The Committee will treat each loan as an investment of the Participant's borrowed Account balances and will credit his principal and interest payments to the Accounts from which his loan proceeds were taken. Principal and interest payments will be invested according to the Participant's current election for his Employee Contributions. (h) TERM. Each loan will be 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). (i) REPAYMENT. (1) PAYROLL DEDUCTION FOR ACTIVE PARTICIPANT. So long as the Participant earns Compensation, he must make his loan repayments by payroll deductions in equal amounts throughout the term of the loan. The amount of each repayment 39 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. (2) INACTIVE PARTICIPANT. The Participant who has an outstanding loan balance when he terminates, retires, or begins an unpaid leave, either may repay his outstanding balance in full, or may continue to make his scheduled loan repayments, by personal check or other cash equivalent, not less frequently than monthly. The Trustee may charge a fee for processing each repayment. The Participant who has incurred a Disability and has qualified for benefits under his Employer's long-term disability plan, is treated as being in Employment and on an authorized unpaid leave. (j) DEFAULT. If the Participant fails to timely repay his 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 Before-Tax Account unless he 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 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 Before-Tax Account, which cannot be distributed until his 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 becomes Disabled or terminates employment, and will then reduce his Before-Tax Account balance by the amount of the defaulted loan balance attributable to that Account. (k) SUSPENSION OF REPAYMENTS DURING MILITARY LEAVE. Each Participant may elect to suspend his loan repayments while he is on unpaid military leave covered under the Uniformed Services Employment and Reemployment Rights Act of 1994. The five-year maximum repayment period will be extended by the length of the suspension. The Plan will not charge interest during the period of leave. 40 (l) LOANS FROM MONEY PURCHASE PLAN BALANCES. The married Participant who borrows any portion of his Account balance that is attributable to employer contributions to a Merged Plan that was a money purchase plan, must have his Spouse's written consent in compliance with Subsection 6.7(b). 5.4 DIRECT ROLLOVER. To the extent permitted under Section 6.10, the Committee will permit Participants to effect direct rollovers of their in-service withdrawals, under the rules set forth in Section 6.10. Withdrawals required under Code Section 401(a)(9), hardship withdrawals made after December 31, 1998, and loan proceeds are not eligible for rollover. 41 ARTICLE 6 POST-EMPLOYMENT DISTRIBUTIONS 6.1 DISTRIBUTION EVENTS. (a) TERMINATION OF EMPLOYMENT OR DISABILITY. The Participant who terminates Employment for any reason or becomes Disabled, will be eligible for either immediate or deferred payment of his 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 application. Effective January 1, 2002, payment may be made to Participants who have transferred to an employer outside the Controlled Group, i.e., terminated Employment, even if they continue 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. (b) DEATH. If a Participant dies with any Account balances, the Plan will pay his balances to his beneficiary(s) under the rules stated in Section 6.6. 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 application. (c) EMPLOYER-INITIATED TRANSFER. The Company may merge this Plan with another qualified defined contribution plan. 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 covered under Code Section 411(d)(6), e.g., forms of payment. (d) EMPLOYEE-INITIATED VOLUNTARY DIRECT TRANSFERS (CHANGE IN EMPLOYMENT TRANSFER). The Committee may permit Participants to elect to make voluntary transfers of Account balances from this Plan, if the transfers are associated with 42 either a corporate transaction (e.g., a merger or acquisition) or a change in a Participant's employment status (e.g., a transfer to another employer, whether or not it is a Controlled Group member, that has not adopted the plan in which the Participant originally participated). It is not necessary for the transferee plan to protect benefits that were provided in the transferor plan, i.e., the Code Section 411(d)(6) anti-cutback rules do not apply. This type of direct transfer is not available for an eligible rollover distribution for which the Participant can elect a direct rollover of his entire Account balances. (e) 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 percent of the Participants in this Plan are eligible under the Successor Plan, that plan will not be treated as a Successor Plan. 6.2 AMOUNT OF PAYMENT. The Participant or beneficiary will receive his payment(s) based on the amount of his Account balances (minus any outstanding loan balance) determined as of the Valuation Date on which the payment request is processed. 6.3 TIMING OF PAYMENT. The Committee will direct the Trustee or other payor to issue the payment to the Participant or beneficiary as soon as practicable after it approves the request. If the Trustee is required to sell Employer Stock in order to distribute cash, the Plan will delay payment for the period required to effect the sale. 43 (a) PAYMENT TO THE PARTICIPANT. The Participant may elect to receive or begin receiving payment of his Account balances as soon as administratively practicable after his Termination Date, but not later than the end of the second calendar month following the month when he reaches age 70-1/2. The terminated or Disabled Participant whose aggregate Account balances exceeds $5,000 may leave all or part of his 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 Account balances as soon as administratively practicable after providing evidence satisfactory to the Committee of the Participant's death. 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. 6.4 FORMS OF PAYMENT. (a) ACCOUNT BALANCE OVER $5,000. Regardless of the reason for termination of Employment, the Participant or beneficiary whose Account balances exceed $5,000 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 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 Committee will establish and publish to Participants and beneficiaries the order in which the Trustee will deduct 44 installment payments 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, 2002. (b) ACCOUNT BALANCE NOT OVER $5,000. As soon as practicable after the Participant's Termination Date, the Plan will automatically make a lump sum payment in cash to any Participant or beneficiary whose aggregate Account balances do not exceed $5,000 as of the payment date. The Participant or beneficiary may elect to receive Employer Stock for the portion of his Accounts invested in Employer Stock as of the payment date. When the Account balances of a Participant or beneficiary who is receiving installment payments decrease to less than $5,000, the Plan will not cash out those balances unless the Participant or beneficiary elects a lump sum payment. The automatic cash-out threshold was $3,500 before 1998. 6.5 MEDIUM OF PAYMENT. The Participant or beneficiary may elect to receive the 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 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 described in Section 6.6 if earlier, the Plan will distribute cash instead of Employer Stock. 6.6 REQUIRED DISTRIBUTION RULES. The following provisions are effective January 1, 1997. (a) PARTICIPANT'S REQUIRED BEGINNING DATE. The Plan permits the terminated Participant to defer payment until the end of the second calendar month following the month when he reaches age 70-1/2. The Plan will make a lump sum payment, or begin installment payments, of his Account balances no later than that date. The Plan 45 will calculate the minimum amount required to be paid annually, based on his total Account balances as of the last day of the preceding year. However, unless the Participant elects otherwise, the Plan will make or begin to make payment of his Account balances no later than the 60th day after the end of the Plan Year in which occurs the latest of: (1) his 65th birthday; (2) the tenth anniversary of the date he began participating in the Plan; or (3) his Termination Date. The Plan treats a failure to elect earlier payment as an election to defer. (b) PARTICIPANT'S DEATH BEFORE REQUIRED BEGINNING DATE. If the Participant dies with an Account balance and before his required beginning date under Subsection (a), the Trustee will ignore any payment made before the required beginning date for purposes of the beneficiary's required beginning date, i.e., the Trustee will treat the beneficiary as if the Participant had died before payments began, even if the Participant had received his first minimum annual payment before his death. If the beneficiary is the surviving Spouse, the Trustee will begin payments to the Spouse no later than the last day of the calendar year in which the deceased Participant would have reached age 70-1/2, and will calculate each minimum annual payment on the basis of a period not to exceed the lesser of 9 years, or the Spouse's life expectancy as recalculated each year. If the beneficiary is not the Spouse, the Trustee will begin payments no later than the last day of the calendar year following the year in which the Participant died and will calculate each minimum annual payment on the basis of a period not to exceed the lesser of 9 years, or the beneficiary's life expectancy as recalculated each year. If the Trustee does not begin payments by such date, the Trustee will pay the entire balance no later than the end of the calendar year in which the fifth anniversary of the Participant's death occurs. (c) PARTICIPANT'S DEATH AFTER REQUIRED BEGINNING DATE. If the Participant dies after his required beginning date, the Trustee will pay out his remaining Account balances in an annual amount at least as great as the annual installment amount the Participant received for each year between his required beginning date and his date of death, regardless of the identity of his beneficiary(s). 46 (d) COMPLIANCE WITH CODE SECTION 401(A)(9). The intent of this Section is that the distribution date for each Participant and beneficiary will be within the limitations permitted under Code Section 401(a)(9). If there is any discrepancy between this Section and Code Section 401(a)(9), that Code Section will prevail. 6.7 BENEFICIARY DESIGNATION. To be treated as a survivor, an individual beneficiary must survive the Participant by a period no less than 30 days. (a) PROCEDURE. The Participant may name as his 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 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 descendants per stirpes, or if none then the Participant's estate. If the Participant names more than one beneficiary, he 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 beneficiary(s) at any time before his death, with Spousal consent if he 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 right to make investment elections under Section 4.2, 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 surviving Spouse, unless he elects to have all or any part of his Account balances that otherwise would be payable to his surviving Spouse in the event of his 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 Spouse; (2) the Spouse's consent must acknowledge the effect of the 47 election and that he/she cannot later revoke the waiver unless the Participant makes a new beneficiary designation; (3) the Spouse's consent must either specifically approve each named beneficiary and the elected form of payment, or must permit the Participant to name any beneficiary and elect any form of payment; and (4) the Spouse's consent must be witnessed by a notary public. Spousal consent will not be required if the Participant provides the Committee with a decree of abandonment or legal separation, or with satisfactory evidence that he cannot obtain consent because he has been unable to locate his Spouse after reasonable effort. If the Spouse is legally incompetent, the Spouse's court-appointed guardian may give consent, even if the guardian is the Participant. (c) PAYMENT TO MINOR OR INCOMPETENT BENEFICIARIES. If the deceased Participant's beneficiary is a minor, or is legally incompetent, the Trustee will 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 established, the Plan will defer payment until the beneficiary reaches majority or becomes legally competent under applicable state law. Such payment will be in full satisfaction of all liability that the Plan and Plan fiduciaries have with respect to the deceased Participant and the beneficiary. (d) DISCLAIMER OF BENEFICIARY STATUS. Any beneficiary can 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 rights as if he predeceased the Participant. (e) 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. 6.8 PAYMENT TO THE PARTICIPANT'S REPRESENTATIVE. If the Participant is incompetent to handle his affairs at any time while he is eligible to receive a payment from the Plan, the Trustee will make payment to his court-appointed personal representative, or if none is appointed the Trustee may in its discretion make payment to his next-of-kin or attorney-in-fact, for the 48 benefit of the Participant. The Committee may request a court of competent jurisdiction to determine the payee. Such payment will be in full satisfaction of all liability that the Plan and Plan fiduciaries have with respect to the Participant. 6.9 UNCLAIMED BENEFITS. In the event the Committee cannot locate, with reasonable effort and after a period of five years, any person entitled to receive the Participant's Account balances, his balances will be forfeited but will be reinstated, as required under Treasury Regulations Section 1.401(a)-14(d) or any other applicable law, in the event he subsequently makes a claim for benefits. 6.10 DIRECT ROLLOVER. The Participant or surviving Spouse or Spousal alternate payee under a qualified domestic relations order, who receives an eligible rollover distribution from this Plan, may instruct the Committee to transfer all or part of the distribution to another qualified retirement plan (which for this purpose includes Code Section 403(b) plans and Code Section 457(b) governmental plans, beginning January 1, 2002) or to an individual retirement account (IRA). Before January 1, 2002, a surviving Spouse cannot roll over to another qualified retirement plan. An eligible rollover distribution is either (a) a lump sum payment, or (b) a payment other than one that is 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 the Participant or the joint lifetimes or life expectancies of the Participant and his named beneficiary. Beginning January 1, 2002, the Committee will permit rollovers from the After-Tax Accounts. The following will not be eligible for rollover: (a) minimum annual amounts required to be paid under Code Section 401(a)(9) as described in Section 6.6; (b) amounts paid as cash dividends on Employer Stock under Subsection 4.1(c); (c) hardship withdrawals made after December 31, 1998; (d) refunds of Excess 402(g) Deferrals; (e) refunds of Employee Contributions that had been designated as Catch-Up Contributions but that failed to meet the requirements set forth in Subsection 3.1(d); and (f) any refunds required to satisfy the ADP Test and/or ACP Test in the event the Plan loses safe harbor status for any Plan Year. The Committee will provide timely notice of the right to make a direct rollover. The payee must timely provide in writing all information required to effect the rollover. Non-Spousal beneficiaries cannot make rollovers. 49 ARTICLE 7 LIMITATIONS ON CONTRIBUTIONS 7.1 EXCESS 402(g) DEFERRALS. The Plan will limit each Participant's Elective Contributions to the Dollar Limit in effect for each calendar year under Code Section 402(g), as indexed under that Section. In the event any Participant makes Excess 402(g) Deferrals for any calendar year, the excess amount will be distributed under the following rules. (a) TIME OF DISTRIBUTION. If the Participant made his Excess 402(g) Deferral 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 Excess 402(g) Deferral in whole or in part to another qualified plan or individual retirement account but wishes to withdraw all or part of the excess amount from this Plan, he must submit to the Committee no later than March 15 written documentation that he made Excess 402(g) Deferrals for the previous calendar year and a request that a specified amount of the excess be distributed from this Plan. In the event any Excess 402(g) Deferral 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) Deferral in excess of the amount the Participant has actually contributed to this Plan plus attributable earnings. (b) REPORTING FORM. When the Trustee refunds the Excess 402(g) Deferral, it will designate the refund as an Excess 401(g) Deferral on the appropriate form published by the IRS so that the Participant can designate the refund as an Excess 402(g) Deferral on his income tax return. (c) 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) Deferrals. (d) INCLUSION IN ANNUAL ADDITION. Excess 402(g) Deferrals made by HCEs and by NCEs that are refunded in the same Plan Year or by April 15 of the next following Plan Year 50 will not be included in their Annual Additions under Section 7.2. Excess 402(g) Deferrals that are also Excess Annual Additions and that are refunded under Subsection 7.2(b) as such, will not be included in the Participant's Annual Addition. (e) 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) Deferrals 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. (a) APPLICABLE DEFINITIONS. For purposes of this Section, the following terms will have the meanings set forth below. (1) ANNUAL ADDITION means, for each Participant for each Limitation Year, the sum of (A) Employee Contributions and Employer Contributions allocated to his Accounts under this Plan; (B) any contributions allocated to an individual medical account that is part of a pension or annuity plan maintained by a Controlled Group member from which benefits described in Code Section 401(h) are payable; (C) any contributions to separate post-retirement medical benefit accounts maintained for key employees under Code Section 419A(d)(3) under a welfare benefit fund; and (E) any allocations under a simplified employee pension maintained by any Employer. Annual Addition EXCLUDES (A) Excess 402(g) Deferrals timely refunded under Section 7.1, (B) any Contributions distributed as Excess Annual Additions under Subsection 7.2(a)(4), and Catch-Up Contributions. For purposes of determining the Annual Addition, the Committee will use cost basis to value Financed Shares and will use Fair Market Value for other shares of Employer Stock. 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 51 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 in which ends the 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. (2) COMPENSATION means the taxable earnings paid to the Participant by an Employer and reported on his Form W-2 for the Limitation Year, plus salary reduction amounts deferred under Code Sections 401(k),125 and/or 132(f). (3) CONTROLLED GROUP means the Controlled Group as defined in Article 1, except that 50 percent is substituted for 80 percent each place it appears. For purposes of the Code Section 415 Limit, all Controlled Group members are considered to be a single Employer. (4) EXCESS ANNUAL ADDITION means any Elective Contribution and/or Employer Contribution that exceeds the Participant's Maximum Annual Addition for the Limitation Year. (5) LIMITATION YEAR means the Plan Year. (6) MAXIMUM ANNUAL ADDITION 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 percent of his Compensation. (b) EXCESS ANNUAL ADDITIONS. The Committee will remove from each Participant's Accounts any allocations that would cause his Annual Addition for any Plan Year to 52 exceed his Maximum Annual Addition, if the excess results from a reasonable error in estimating his annual Compensation, or in determining the amount of Elective Contributions that he can make under the Dollar Limit described in Section 7.1, or under other circumstances that the Internal Revenue Service permits. The Committee will refund unmatched Employee Contributions, and then matched Employee Contributions, with attributable earnings. The Committee will then remove the Matching Contributions attributable to the refund(s) to a suspense account. The Committee will reallocate the amount in the suspense account to all Participants as part of their Matching Contribution for the same or the next Plan Year. In the event the Plan terminates before the suspense account balance is reduced to zero, the Committee will allocate the remaining balance as a uniform percentage of Compensation. (c) 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. (d) 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. Since the Plan is a safe harbor plan that accepts only Elective Contributions that meet the safe harbor requirements of Code Section 401(k)(12), and Matching Contributions that meet the safe harbor requirements of Code Section 401(m)(11), the Plan is deemed to be in compliance with the Code Section 416 top-heavy rules effective January 1, 2002. The top-heavy rules that were in effect before January 1, 2002, and that will resume effectiveness if the Plan fails to qualify as a safe-harbor plan for any Plan Year, are set forth in Addendum A. 53 ARTICLE 8 AMENDMENT, TERMINATION AND MERGER 8.1 AMENDMENT. (a) PROCEDURE. The Company reserves the right to amend the Plan from time to time. Amendments that significantly impact funding and/or Employer Contributions will be subject to the approval of the Board or the Compensation Committee. With respect to other amendments, the Committee will determine when an amendment is appropriate, and will cause the amendment to be drafted. The amendment will be adopted, or the adoption will be ratified, by signature of a member of the Committee. (b) PROHIBITED AMENDMENTS. The Committee will not permit the adoption of any amendment that would have the effect of any of the following: (1) 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. (2) NONREVERSION. No amendment will cause any assets of the Trust Fund to be returned to any Employer, except as provided in Subsection 3.2(j) and 8.2(c). (3) NO CUT-BACK. No amendment will eliminate or reduce any Participant's Account balance accrued before the amendment. (c) ADMINISTRATIVE CHANGES WITHOUT PLAN AMENDMENT. The Committee reserves authority to make administrative changes to this Plan document that do not alter the minimum qualification requirements, without formal amendment to the Plan. The Committee may effect 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 intended provision of the Plan. 54 8.2 TERMINATION OF THE PLAN. (a) RIGHT TO TERMINATE. The Company expects this Plan to be continued indefinitely but necessarily reserves the right to terminate the Plan or any portion of the Plan and all contributions attributable to the terminated portion at any time, and to terminate the participation of any Employer at any time, subject to approval of the Board. The Committee has sole and complete discretionary authority to determine when a partial termination of the Plan has occurred. (b) PROVISION FOR BENEFITS UPON PLAN TERMINATION. In the event of termination, the Company may either: (1) continue the Trust, or any portion of 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, or any portion of the Trust, pay all expenses, and direct the payment of the benefits, either in the form of lump-sum distributions, transfer to another qualified plan, or any other form selected by the Committee, to the extent permitted by applicable law. (c) SURPLUS REVERSION. Any assets that remain after all benefits under the Plan have been allocated will be returned to the affected Employer(s), to the extent permitted by applicable law. 8.3 PLAN MERGER. In the event of any merger or consolidation of the Plan with any other plan, or the transfer of assets or liabilities by the Plan to another plan, each Participant will be entitled to receive a benefit immediately after the merger, consolidation or transfer, if the Plan then terminated, that is equal to or greater than the benefit he would have been entitled to receive immediately before the merger, consolidation, or transfer if the Plan had then terminated. 55 ARTICLE 9 ADMINISTRATION 9.1 ALLOCATION OF FIDUCIARY RESPONSIBILITIES. The Plan fiduciaries will have the powers and duties described below, and may delegate their duties to the extent permitted under ERISA Section 402. (a) COMPANY. The Company, through its Board, will be responsible for appointing and removing Compensation Committee members, appointing and removing the Trustee, and for terminating the Plan or any substantial part of the Plan. The Company and each other Employer will be responsible for making Contributions to the Plan in the amounts determined by the Compensation Committee. As used in this Article 9, the term Committee refers to the Plan Committee. (b) COMPENSATION COMMITTEE. The Chairman of the Compensation Committee will be responsible for appointing Committee members. The Compensation Committee may delegate its responsibilities to the Committee and to appropriate officers of the Company. (c) THE COMMITTEE. (1) APPOINTMENT AND TERMINATION OF OFFICE. The Committee will consist of not less than 3 individuals who will be appointed by and serve at the pleasure of the Chairman of the Compensation Committee of the Board. The Chairman will have the right to remove any member of the Committee at any time. A member may resign at any time by written resignation to the Committee and the Chairman. The Chairman will appoint a successor to fill any vacancy in the Committee's membership. (2) ORGANIZATION OF COMMITTEE. The Committee will elect a chairman from among its members, and will appoint a secretary who may or may not be a Committee member. The Committee may appoint agents who may or may not be Committee members, as it considers necessary for the effective performance of 56 its duties, and may delegate to the agents ministerial powers and duties as it considers expedient or appropriate. The Committee will fix the compensation of the agents. Employee Committee members will serve as such without additional compensation. (3) COMMITTEE MEETINGS. The Committee will hold meetings at least annually. A majority of the members then in office will constitute a quorum. Each action of the Committee will be taken by a majority vote of all members then in office, provided that the Committee may establish procedures for taking written votes without a meeting. (4) POWERS OF THE COMMITTEE. The Committee will have primary responsibility for administering the Plan and all powers necessary to enable it to properly perform its duties, and will have sole and complete discretionary authority in the exercise of its powers and duties, including but not limited to the following. The Board intends to grant to the Committee such 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. (A) RULES. The Committee may adopt rules and regulations necessary for the performance of its duties under the Plan. (B) AMENDMENT AND CONSTRUCTION. The Committee will have the power to amend the Plan, construe the Plan, and make final decisions on all questions and disputes arising under the Plan. The Committee must obtain Board approval to terminate the entire Plan, but will have discretionary authority to effect a partial termination of the Plan and to determine when a partial termination has occurred. (C) INDIVIDUAL ACCOUNTS. The 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. 57 (D) RIGHTS TO BENEFITS. The Committee will have 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 Section 9.4. For this purpose, benefits include in-service withdrawals and loans. (E) EMPLOYEE DATA. The Committee will request from the Employers complete information regarding the Compensation and Employment of each Participant and other facts as it considers necessary from time to time, and will treat Employer records as conclusive with respect to such information. (F) PAYMENTS. The 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. (G) DISCLOSURE. The Committee will prepare and distribute to the Employees plan summaries, notices and other information about the Plan in such manner as it deems proper and in compliance with applicable law. (H) APPLICATION FORMS. To the extent that elections and applications are not executed via electronic media, the Trustee or the Committee will provide forms for use by Participants in making contribution and 58 investment elections, in-service withdrawals and loans, and applying for benefits. (I) SAFE HARBOR COMPLIANCE. The Committee will monitor the Plan's compliance with the safe harbor requirements set forth in Code Sections 401(k)(12) and 401(m)(11) throughout each Plan Year and will take any action it considers necessary and appropriate to ensure that the requirements are satisfied for each Plan Year. Before the 2002 Plan Year, the Committee ensured annual compliance with the ADP and ACP nondiscrimination tests. (J) DELEGATION OF DUTIES. The Committee may delegate any of its administrative duties to Company employees and other agents, and may retain legal counsel, accountants, actuaries, consultants and such other agents as it considers necessary to properly administer the Plan. (K) FINANCIAL STATEMENTS. The Trustee periodically will prepare reports of the Plan's operation, showing its assets and liabilities in reasonable detail, and will submit a copy of each report to the Board and cause a copy to be maintained in the office of the secretary of the Committee. (L) REPORTING. The Committee will cause to be filed all reports required under ERISA and the Code. (M) INVESTMENT MANAGER. Subject to the Board's approval, the Committee may from time to time and at any time, appoint, approve the appointment of, remove, and/or replace, one or more investment managers. (N) CORRECTION OF DEFECTS. Plan fiduciaries 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 a material defect in the Plan's operation or administration, It will take reasonable steps to correct the defect as promptly as practicable. 59 (d) THE TRUSTEE. The Company may discharge the Trustee and appoint one or more successor Trustees, who will have the duties and responsibilities described in the trust agreement executed by the Company and the Trustee(s). The trust agreement will be an integral part of this Plan. 9.2 EXPENSES. The Committee will determine, in its sole discretion, whether the expenses incurred in administering the Plan and Trust will be paid by the Employers or by the Trustee from the Trust Fund. Plan expenses include but are not limited to (a) fees and charges for attorneys, accountants, consultants, investment managers, and the Trustee; (b) office space used for the administration of the Plan; and (c) the salary and related costs of any person who provides administrative services to the Plan. The Plan may hire employees and pay them reasonable compensation, and may share employees with an Employer with a reasonable pro-ration of compensation. No Employee will receive any additional compensation for services performed in connection with the Plan. The Trustee will pay from the Trust Fund the expenses incurred in connection with the investment of Plan assets. The Committee may direct the Trustee to reimburse the Employers for reasonable administrative expenses they have paid directly on behalf of the Plan. 9.3 INDEMNIFICATION. The Employers will indemnify and hold harmless the Committee and each member, and each Employee to whom the Committee has delegated responsibility under this Article, from all joint or several liability for their acts and omissions in the administration of the Plan, except for their own breach of fiduciary duty and willful misconduct. 9.4 CLAIMS PROCEDURE. (a) APPLICATION FOR BENEFITS. Each Participant, or beneficiary, must submit a written application for payment, with such documentation as the Committee considers necessary to process the claim. The Committee may adopt forms and require that the 60 forms be used for the submission of claims. The Plan will not treat as a claim any oral or electronic request for information or for a re-determination of benefits. The Committee reserves the right to withhold payment of any claim for which conflicting claims have been asserted. The Trustee will not pay any benefit under the Plan until the Committee has determined, in its sole and complete discretion, that the claimant is entitled to the benefit. (b) DECISION ON CLAIM. Within 90 days after receipt of a claim and all necessary information, the Committee will issue a written decision. 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 denial is based; (2) a description of any additional information necessary to process the claim; and (3) an explanation of the Plan's appeals procedure. If special circumstances require an extension of time (which cannot exceed 90 additional days), the Committee will furnish the claimant written notice of the extension, and an explanation why it is necessary, before the end of the initial 90-day period. (c) APPEAL. The claimant and/or his representative may appeal an adverse decision by requesting in writing, within 60 days after he receives the decision, that the Committee review the decision. Or, if the Committee fails to issue a decision, the claimant must submit his appeal within 150 days after he initially filed his claim, or 240 days if the Committee secured the 90-day extension described in Subsection (b). He may submit a statement of issues and supporting arguments and any evidence that he has to support his claim. He may inspect all documents that are reasonably pertinent to his case, upon reasonable notice to the Committee, but may not inspect confidential information concerning any other person. The Committee may set the matter for oral hearing and give the claimant reasonable notice of the time and place. The Committee will proceed promptly to resolve all issues and issue a written decision, with a statement of reasons and references to supporting provisions of the Plan, within 60 days. If special circumstances require an extension of time, the Committee will render a decision as soon as possible, but not later than 120 days after receipt of the appeal. If an extension is required, the Committee will issue written notice with an explanation of the circumstances requiring the extension, before the extension period begins. 61 (d) SPECIAL TIME PERIOD FOR COMMITTEE MEETINGS. Notwithstanding Subsection 9.4(c), during periods when the 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 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 Committee may render its decision during the third regularly scheduled meeting after receiving the request for appeal. If the 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 when the decision will be rendered, not later than the first meeting date after receiving the request for appeal. The Committee will notify the claimant in writing of its determination, within 5 days after it makes its decision on the appeal. (e) EXHAUSTION OF ADMINISTRATIVE REMEDIES. Unless the claimant has timely exhausted the administrative remedies described in this Section 9.4, the claimant will not be entitled to pursue any remedies available under ERISA Section 502(a). 62 ARTICLE 10 MISCELLANEOUS 10.1 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. 10.2 CONSTRUCTION. The Plan will be construed in accordance with the laws of the State of Georgia, without regard to its choice-of-law rules, except to the extent such laws are preempted by ERISA or the Code or any other applicable federal law. 10.3 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 tax-exempt status. In the event 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. 10.4 NONALIENATION. No benefits payable under the Plan will be 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 and levies resulting from federal tax assessments, and (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. Effective August 5, 1997, 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. 63 10.5 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 of Employment any right or interest in the Plan except as provided in the Plan. 10.6 NO ENLARGEMENT OF RIGHTS. No person will have any right to or interest in any part of the Plan except as specifically provided in the Plan. 10.7 WITHHOLDING FOR TAXES. Payments under the Plan will be 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 rolled over directly into another qualified retirement plan or individual retirement account under Sections 5.4 or 6.10. The Committee will withhold the amount or percentage elected by the Participant for any payment that is not an eligible rollover distribution. 10.8 SUSPENSION OF TRANSACTIONS. The Committee may direct the temporary suspension of certain Plan transactions, as it considers necessary to accommodate changes in the Plan's record keeping and/or administrative systems or programs. The Committee will provide reasonable notice to Participants of the dates when each suspension will begin and end. 64 IN WITNESS WHEREOF, SunTrust Banks, Inc. has caused this amendment and restatement of the SunTrust Banks, Inc. 401(k) Plan to be executed by its duly authorized officer this _____ day of December, 2001, to be effective as of January 1, 2002, except that certain provisions are effective as of other dates stated in the affected sections of this Plan. SUNTRUST BANKS, INC. By: ------------------------------------- Title: ---------------------------------- ATTEST: By: ------------------------------------- Title: ---------------------------------- Corporate Seal: SUNTRUST BANKS, INC. 401(K) PLAN ADDENDUM A HISTORY OF REVISED PLAN PROVISIONS TABLE OF CONTENTS
PAGE ARTICLE 1 DEFINITIONS A-1.11 Compensation A-1 (d) Statutory Limit A-1 A-1.53 Valuation Date A-1 ARTICLE 2 ELIGIBILITY A-2.2 Participation Upon Reemployment A-2 ARTICLE 3 CONTRIBUTIONS A-3.2 Employer Contributions A-2 (a) Employer Matching Contribution A-2 (e) Vesting A-3 ARTICLE 5 IN-SERVICE DISTRIBUTIONS A-5.1 Withdrawal Without a Hardship A-3 (a) Types of In-Service Withdrawals A-3 A-5.2 Hardship Withdrawal A-3 A-5-4 No In-service Withdrawal from Money Purchase Accounts A-4 ARTICLE 6 POST-EMPLOYMENT DISTRIBUTIONS A-6.4 Forms of Payment A-4 ARTICLE 7 LIMITATIONS ON CONTRIBUTIONS A-7.2 Code Section 415 Limitations A-4 A-7.3 Top-Heavy Rules A-4 (a) Applicable Definitions A-5 (b) Determination of Top-Heavy Status A-6 (c) Minimum Benefit During Top-Heavy Plan Years A-7 A-7.4 Nondiscrimination (ADP and ACP) Tests A-7 (a) ADP Test A-8 (b) ACP Test A-8 (c) Correction of Excess ADP Contributions and ACP Contributions A-9 (d) Excess Annual Addition A-11 (e) Corrective Contribution A-11
SUNTRUST BANKS, INC. 401(K) PLAN ADDENDUM A HISTORY OF REVISED PLAN PROVISIONS The following provisions are records of the Plan's relevant history. These provisions have the same Section headings and numbers as the corollary Sections in the main test of the Plan, with the prefix "A-" to correspond to this Addendum A. Certain provisions explain historical events; others explain rules that were in effect during the stated periods of the Plan's existence but have been revised as set forth in the corollary Sections of the main text of the Plan. Although revised, these historical provisions may continue to affect the amount of and/or entitlement to benefits of a Participant or beneficiary whose benefits are determined after the dates when these provisions were changed, particularly those Participants who terminated before the effective date of one or more revisions. ARTICLE 1 DEFINITIONS A-1.11 COMPENSATION. (d) 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)). A-1.53 VALUATION DATE. Before July 1, 1997 when the Plan adopted daily valuation, the Valuation Date was the last day of each calendar month. A-1 ARTICLE 2 ELIGIBILITY A-2.2 PARTICIPATION UPON REEMPLOYMENT. Before the 2002 Plan Year, the Plan did not allocate Matching Contributions to any Participant until he had completed 12 months of Employment. The Participant who terminated and was rehired was permitted to resume participation as of the first day of any month following the date he resumed Employment or as soon thereafter as administratively practicable. For each rehired Participant whose Employment Date preceded August 1, 1998, the Plan treated him as if he had completed 12 months of pre-break Employment and was eligible to receive Matching Contributions when he resumed Participation in the Plan. Each rehired Participant whose Employment Date was after July 31, 1998 and whose break did not exceed 12 months, received credit for his actual pre-break months of Employment and for the months between his Termination Date and his rehire date, for purposes of eligibility to receive Matching Contributions. Each rehired Participant whose Employment Date was after July 31, 1998 and whose break exceeded 12 months, received credit for his actual pre-break months of Employment for purposes of eligibility to receive Matching Contributions. ARTICLE 3 CONTRIBUTIONS A-3.2 EMPLOYER CONTRIBUTIONS. (A) EMPLOYER MATCHING CONTRIBUTION. During the first month of the 2000 Plan Year, the recordkeeper improperly allocated an Employer Contribution in a manner that overstated the amounts in the Employer Contribution Accounts invested in Employer Stock. As soon as practicable after the Committee discovered the overstatement, it directed the recordkeeper to correct the balances of Participants who had not received distributions. For Participants who had received distributions, which the Committee determined to be a nondiscriminatory group, the Company made an extra Employer Contribution in the amount necessary to reconcile the distributed Account balances with the Trust Fund. The Committee determined, within its discretion reserved in Subsection 4.1(f), that the cost of attempting to recover the overstated amounts exceeded the amounts involved, and that the extra A-2 Employer Contribution was the more reasonable method to achieve reconciliation. (E) VESTING. Before January 1, 1997, the Plan used a five-year cliff vesting schedule, and complied with the break-in-service rules set forth in Code Sections 410 and 411. Effective as of January 1, 1997, all Employer Contribution Accounts became fully vested, including the Accounts of Participants who had terminated and had not yet incurred a five-year break in service. The Plan used the elapsed-time method to account for vesting service. ARTICLE 5 IN-SERVICE DISTRIBUTIONS 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 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 the Participant who received a hardship withdrawal before January 1, 2002, the Plan imposed 12 months suspension on his eligibility to make Elective Contributions. The Code Section 402(g) Dollar Limit on his Elective Contributions (described in Section 7.1 of the main text of the Plan) for the calendar year following the calendar year in which he received his hardship withdrawal, was reduced by the amount of the Elective Contributions he made during the calendar year in which he received his 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. A-3 A-5.4 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 has had a payment event as described in Section 6.1. ARTICLE 6 POST-EMPLOYMENT DISTRIBUTIONS A-6.4 FORMS OF PAYMENT. Before April 1, 2002, the Plan provides annuity forms of payment to certain acquired or merged entities listed in Addendum C, which forms were grandfathered from predecessor plans that merged into this Plan. During 2001, the Plan provided a 90-day notice to all affected Participants that effective April 1, 2002 the Plan no longer will offer annuity forms of payment. However, with respect to Money Purchase Accounts, the Plan will continue to provide the single life annuity as the normal form for unmarried Participants, and the 50 percent joint and survivor annuity as the normal form for married Participants. ARTICLE 7 LIMITATIONS ON CONTRIBUTIONS A-7.2 CODE SECTION 415 LIMITATION. Before the 2002 Limitation Year, each Participant's Maximum Annual Addition was $35,000 or 25 percent of his Compensation. 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 following rules applied before the Plan became safe harbor in the 2002 Plan Year. These rules, which have been revised to comply with the Economic Growth and Tax Reform and Reconciliation Act of 2001, will again apply if the Plan should lose safe harbor status for any Plan Year. A-4 (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 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. A-5 (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. (5) NON-KEY EMPLOYEE means an Employee who is not a Key Employee. (6) TOP-HEAVY PLAN YEAR means a Plan Year when the Plan is top-heavy. (B) 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. (C) 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 A-6 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 less than the lesser of (A) 3 percent of his taxable Form W-2 Compensation, or (B) the Compensation percentage of the Key Employee whose percentage is the highest of all Participants for the Plan Year, which percentage is calculated by including both Employer Contributions (other than Safe Harbor Contributions) and Employee Contributions. The Company will make the required Employer Contribution for each eligible Non-Key Employee Participant whether or not he has made any Employee Contributions for the Plan Year, and regardless of his level of Form W-2 Compensation for the Plan Year. 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. (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: A-7 (1) ACTUAL DEFERRAL RATIO (ADR). The Committee determined the ratio of the sum of each Participant's Employee Contributions and any of his Employer Contributions used in the ADP Test, to his Compensation. (2) AVERAGE DEFERRAL PERCENTAGE (ADP). The ADP for the HCE Group is the average of their individual ADRs, calculated separately for each Participant in the HCE Group. The ADP for the NCE Group is the average of their individual ADRs, calculated separately for each Participant in the NCE Group. (3) MAXIMUM DISPARITY. In no Plan Year did the Average Deferral Percentage 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 Compensation. (2) AVERAGE CONTRIBUTION PERCENTAGE (ACP). The ACP for the HCE Group is the average of their individual ACRs, calculated separately for each Participant in the HCE Group. The ACP for the NCE Group is the average of their individual ACRs, calculated separately for each Participant in the NCE 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. A-8 (C) CORRECTION OF EXCESS ADP CONTRIBUTIONS AND EXCESS ACP CONTRIBUTIONS. Before the 2002 Plan Year, the Committee corrected Excess ADP Contributions and Excess ACP Contributions by using the following rules. If the Plan should lose safe harbor status for any Plan Year, the Committee will use these rules if correction is needed. (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 amount and beginning as of such pay period as it considered necessary to prevent failing the ADP Test and/or ACP Test. (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 A-9 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 the dollar leveling method, i.e., in the order of the dollar amount contributed, beginning with the HCE with the highest dollar amount and continued the distributions, if necessary, until all HCEs had the same dollar amount, and then reduced those dollar amounts equally. (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). (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. In each Plan Year in which the Plan had Excess ADP Contributions and/or Excess ACP Contributions, the Plan authorized the Committee, in its discretion and in lieu of the refunds/distributions/ forfeitures des- A-10 cribed in this Section 7.4, to direct the Company to make a Corrective Contribution in the amount necessary to satisfy the ADP Test and/or ACP Test. The Committee could cause each Corrective Contribution to be allocated by one of the following methods, and could select the group(s) of NCEs to whom the Contributions were allocated and the percentages allocated to each group (for example, the entire Contribution could be allocated to the lowest-paid 10 percent of NCEs). The Committee could require each NCE Participant to execute a nondisclosure agreement as a condition to receiving an allocation of the Corrective Contribution. (1) QUALIFIED MATCHING CONTRIBUTIONS (QMACS). The Committee could direct each affected Employer to make a Corrective Contribution to A-11 match a percentage of the Employee Contributions made by certain NCE Participants for the Plan Year, in addition to the Matching Contribution described above in Subsection (a), in the amount necessary to meet the ADP Test and/or ACP Test for the Plan Year. The Committee could direct uniform or nonuniform percentages for each selected NCE Participant. (2) QUALIFIED NONELECTIVE CONTRIBUTIONS (QNECS). The Committee could direct each affected Employer to make a Corrective Contribution in an amount equal to a percentage of the Compensation earned by selected NCE Participants for the Plan Year, in addition to the Matching Contribution described above in Subsection (a), in the amount necessary to meet the ADP Test and/or ACP Test for the Plan Year. The Committee could direct uniform or nonuniform percentages for each selected NCE Participant. (3) FIXED-DOLLAR METHOD. The Committee could determine the amount of the Corrective Contribution needed to satisfy the ADP Test and/or ACP Test for the Plan Year, and could allocate those dollars among selected NCE Participants on the basis of performance or by any method selected by the Committee. A-12 SUNTRUST BANKS, INC. 401(K) PLAN ADDENDUM B ACQUIRED OR MERGED ENTITIES Special provisions that apply only to Participants who were employed by each of the entities identified below before it was acquired by or merged with the Company or became part of the Controlled Group, are set forth in separate numbered units of this Addendum B. The numbered units are arranged by effective dates. The special provisions set forth in each numbered unit have the same Section numbers and headings as the corollary Sections in the main text of the Plan, with the prefix "B" to correspond to this Addendum B. Except to the extent that special provisions alter the corollary provisions in the main text of the Plan, the main text applies.
UNIT NO. ACQUIRED OR MERGED ENTITIES EFFECTIVE DATE PAGE B1 First National Bank of Venice April 1, 1992 1 B2 HomeTrust Bank of Georgia January 1, 1993 2 B3 First National Bank of Florence February 1, 1993 3 B4 Coast Bank and Federal Savings Bank February 22, 1993 4 B5 Flagler National Bank March 15, 1993 5 B6 Regional Investment Corporation, Premium Assignment Corporation, Andrew Jackson Savings Bank, and Baker Mortgage Loans, Inc. February 17, 1994 6 B7 Peoples State Bank May 12, 1995 7 B8 Key Biscayne Bank & Trust August 11, 1995 8 B9 Stephens Diversified Leasing, Inc. October 11, 1995 9 B10 Ponte Vedra Banking Corporation January 19, 1996 10 B11 Union Planters Bank September 5, 1997 11 B12 Equitable Securities Corporation January 1, 1998 12 B13 Citizens Bancorporation October 31, 1998 13 B14 First Union Corporation December 31, 1998 14 B15 Crestar Financial Corporation December 31, 1998 16 B16 The Regency Group April 30, 1999 19 B17 Assets Management Advisors, Inc. March 28, 2001 20 B18 The Robinson-Humphrey Company, LLC July 26, 2001 21 B19 Huntington Bancshares February 15, 2002 22
A-13 SUNTRUST BANKS, INC. 401(K) PLAN ADDENDUM B1 FIRST NATIONAL BANK OF VENICE ARTICLE 1 DEFINITIONS 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. B1-1.16 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). B1-1.42 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. ARTICLE 2 ELIGIBILITY B1-2.1 ELIGIBILITY. Each Employee who had worked for Venice before 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. B-1 SUNTRUST BANKS, INC. 401(K) PLAN ADDENDUM B2 HOMETRUST BANK OF GEORGIA ARTICLE 1 DEFINITIONS 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. B2-1.16 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). B2-1.42 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. ARTICLE 2 ELIGIBILITY B2-2.1 ELIGIBILITY. Each Employee who had 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. B-2 SUNTRUST BANKS, INC. 401(K) PLAN ADDENDUM B3 FIRST NATIONAL BANK OF FLORENCE ARTICLE 1 DEFINITIONS B3-1.1 ACCOUNTS. The Florence 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 contributions were merged into Before-Tax Accounts. After-tax contributions were merged into After-Tax Accounts. Rollover contributions 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 will not be offered and Spousal consent will not be required after March 31, 2002. B3-1.16 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). B3-1.42 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. ARTICLE 2 ELIGIBILITY B3-2.1 ELIGIBILITY. Each Employee who had worked for Florence before 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. B-3 SUNTRUST BANKS, INC. 401(K) PLAN ADDENDUM B4 COAST BANK AND FEDERAL SAVINGS BANK ARTICLE 1 DEFINITIONS B4-1.16 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). ARTICLE 2 ELIGIBILITY B4-2.1 ELIGIBILITY. Each Employee who had worked for Coast before 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. B-4 SUNTRUST BANKS, INC. 401(K) PLAN ADDENDUM B5 FLAGLER NATIONAL BANK ARTICLE 1 DEFINITIONS B5-1.16 EFFECTIVE DATE means March 15, 1993, the date when Flagler National Bank (Flagler) became part of the Controlled Group (the COMPANY MERGER DATE). ARTICLE 2 ELIGIBILITY B5-2.1 ELIGIBILITY. Each Employee who had worked for Flagler before 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. B-5 SUNTRUST BANKS, INC. 401(K) PLAN ADDENDUM B6 REGIONAL INVESTMENT CORPORATION, PREMIUM ASSIGNMENT CORPORATION, ANDREW JACKSON SAVINGS BANK, AND BAKER MORTGAGE LOANS, INC. ARTICLE 1 DEFINITIONS B6-1.16 EFFECTIVE DATE means February 17, 1994, the date when Regional Investment Corporation, Premium Assignment Corporation, Andrew Jackson Savings Bank, or Banker Mortgage Loans, Inc. (Andrew Jackson) became part of the Controlled Group (the COMPANY MERGER DATE). ARTICLE 2 ELIGIBILITY B6-2.1 ELIGIBILITY. Each Employee who had worked for Andrew Jackson before 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. B-6 SUNTRUST BANKS, INC. 401(K) PLAN ADDENDUM B7 PEOPLES STATE BANK ARTICLE 1 DEFINITIONS B7-1.16 EFFECTIVE DATE means May 12, 1995, the date when Peoples State Bank (Peoples) became part of the Controlled Group (the COMPANY MERGER DATE). ARTICLE 2 ELIGIBILITY B7-2.1 ELIGIBILITY. Each Employee who had worked for Peoples before 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. B-7 SUNTRUST BANKS, INC. 401(K) PLAN ADDENDUM B8 KEY BISCAYNE BANK & TRUST ARTICLE 1 DEFINITIONS 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 contributions were merged into Before-Tax Accounts. After-tax contributions were merged into After-Tax Accounts. Rollover contributions 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 will not be offered and Spousal consent will not be required after March 31, 2002. B8-1.16 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). B8-1.42 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. ARTICLE 2 ELIGIBILITY B8-2.1 ELIGIBILITY. Each Employee who had worked for Key Biscayne before 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. B-8 SUNTRUST BANKS, INC. 401(K) PLAN ADDENDUM B9 STEPHENS DIVERSIFIED LEASING, INC. ARTICLE 1 DEFINITIONS B9-1.16 EFFECTIVE DATE means October 11, 1995, the date when Stephens Diversified Leasing, Inc. (Stephens) became part of the Controlled Group (the COMPANY MERGER DATE). ARTICLE 2 ELIGIBILITY B9-2.1 ELIGIBILITY. Each Employee who had worked for Stephens before 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. B-9 SUNTRUST BANKS, INC. 401(K) PLAN ADDENDUM B10 PONTE VEDRA BANKING CORPORATION ARTICLE 1 DEFINITIONS B10-1.1 ACCOUNTS. The Ponte Vedra 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 contributions were merged into Before-Tax Accounts. After-tax contributions were merged into After-Tax Accounts. Rollover contributions were merged into Rollover Accounts. B10-1.16 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). B10-1.42 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. ARTICLE 2 ELIGIBILITY B10-2.1 ELIGIBILITY. Each Employee who had worked for Ponte Vedra before 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. B-10 SUNTRUST BANKS, INC. 401(K) PLAN ADDENDUM B11 UNION PLANTERS NATIONAL BANK ARTICLE 1 DEFINITIONS 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. B11-1.16 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 at Johnson City (two branches), Bristol (two branches), Kingsport, and Greenville, Tennessee. B11-1.42 PLAN (UNION PLANTERS PLAN) means the Union Planters Retirement Savings Plan, which was not merged into this Plan. ARTICLE 2 ELIGIBILITY B11-2.1 ELIGIBILITY. Each Employee who had worked for Union Planters Bank before 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. B-11 SUNTRUST BANKS, INC. 401(K) PLAN ADDENDUM B12 EQUITABLE SECURITIES CORPORATION ARTICLE 1 DEFINITIONS B12-1.1 ACCOUNTS. The Equitable Plan was frozen as of December 31, 1999. No Equitable Plan accounts were transferred to this Plan. B12-1.16 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. B12-1.42 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. ARTICLE 2 ELIGIBILITY B12-2.1 ELIGIBILITY. Each Employee who had worked for Equitable before 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 on that date. This Plan granted credit for service with Equitable for purposes of eligibility to participate and to receive Matching Contributions. B-12 SUNTRUST BANKS, INC. 401(K) PLAN ADDENDUM B13 CITIZENS BANCORPORATION ARTICLE 1 DEFINITIONS 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. B13-1.16 EFFECTIVE DATE means October 31, 1998, the date when the Citizens Bancorporation (Citizens), a bank holding company based in Marianna, Florida, became part of the Controlled Group (the COMPANY MERGER DATE). B13-1.42 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. ARTICLE 2 ELIGIBILITY B13-2.1 ELIGIBILITY. Each Employee who had worked for Citizens before 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. B-13 SUNTRUST BANKS, INC. 401(K) PLAN ADDENDUM B14 FIRST UNION CORPORATION (CERTAIN FLORIDA BRANCHES) ARTICLE 1 DEFINITIONS 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 contributions (which were fully vested on March 1, 2000) were transferred into Employer Contribution Accounts; before-tax contributions were transferred into Before-Tax Accounts; after-tax contributions were transferred into After-Tax Accounts; and rollover contributions 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 will not be required after March 31, 2002. B14-1.16 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. B14-1.42 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. ARTICLE 2 ELIGIBILITY B14-2.1 ELIGIBILITY. Each Employee who had 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. B-14 SUNTRUST BANKS, INC. 401(K) PLAN ADDENDUM B15 CRESTAR FINANCIAL CORPORATION AND AFFILIATED CORPORATIONS ARTICLE 1 DEFINITIONS B15-1.1 ACCOUNTS. The Crestar Plan accounts that were merged into the corollary Employer Contribution Accounts under this Plan included matching contributions and discretionary contributions (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. Before-tax contributions were merged into Before-Tax Accounts. After-tax contributions (made before 1988) were merged into After-Tax Accounts. Rollover contributions were merged into Rollover Accounts. MONEY PURCHASE ACCOUNTS (which were merged into the Crestar Plan when Crestar acquired Providence Savings & Loan) are maintained separately, and are subject to in-service withdrawal restrictions and the Spousal consent requirements set forth in Subsection 6.7(b) of the main text of the Plan. Spousal consent is required for loans and for post-Employment distribution in a form other than the normal form. Spousal consent to a form of payment other than the normal form is not valid unless given within 90 days before the Benefit Commencement Date. The normal form of payment for each Money Purchase Account is the single life annuity for the unmarried Participant, and the 50 percent joint and survivor annuity for the married Participant. If a Participant dies with a Money Purchase Account balance, and before his Benefit Commencement Date, the Plan will pay the balance in that Account to his surviving Spouse in the form of a 50 percent qualified preretirement survivor annuity unless the Spouse elects another form. B15-1.16 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 Sharing Plan and the Crestar Merger Plan for Transferred Employees (the Crestar Plans) became part of this Plan as of July 1, 1999 (the PLAN MERGER DATE). B-15 B15-1.42 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. ARTICLE 2 ELIGIBILITY B15-2.1 ELIGIBILITY. Each Employee who had worked for Crestar before 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 hire date. This Plan granted credit for service with Crestar for purposes of eligibility to participate and to receive Matching Contributions. ARTICLE 3 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. Effective January 1, 2002, the minimum is 1 percent. 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. B-16 ARTICLE 5 IN-SERVICE WITHDRAWALS AND LOANS 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. B-17 SUNTRUST BANKS, INC. 401(K) PLAN ADDENDUM B16 THE REGENCY GROUP ARTICLE 1 DEFINITIONS B16-1.16 EFFECTIVE DATE means April 30, 1999, the date when The Regency Group became part of the Controlled Group (the COMPANY MERGER DATE). ARTICLE 2 ELIGIBILITY B16-2.1 ELIGIBILITY. Each Employee who had worked for Regency before 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. B-18 SUNTRUST BANKS, INC. 401(K) PLAN ADDENDUM B17 ASSETS MANAGEMENT ADVISORS, INC. (AMA) ARTICLE 1 DEFINITIONS B17-1.1 ACCOUNTS. The AMA Plan was frozen as of March 27, 2001. No AMA Plan accounts were transferred to this Plan. B17-1.16 EFFECTIVE DATE means March 28, 2001, the date when Assets Management Advisors, Inc. (AMA) became part of the Controlled Group (the COMPANY MERGER DATE). B17-1.42 PLAN (AMA PLAN) means the Assets Management Advisors Plan, which was frozen as of March 27, 2001. ARTICLE 2 ELIGIBILITY B17-2.1 ELIGIBILITY. Each Employee who had worked for AMA before 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. B-19 SUNTRUST BANKS, INC. 401(K) PLAN ADDENDUM B18 THE ROBINSON-HUMPHREY COMPANY, LLC ARTICLE 1 DEFINITIONS 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. B18-1.16 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. B18-1.42 PLAN (CITIGROUP PLAN) means the Citigroup 401(k), from which distributions were made to Robinson-Humphrey participants who became SunTrust Employees on the Acquisition Date. ARTICLE 2 ELIGIBILITY B18-2.1 ELIGIBILITY. Each Employee who had worked for Robinson Humphrey before 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. B-20 SUNTRUST BANKS, INC. 401(K) PLAN ADDENDUM B19 HUNTINGTON BANCSHARES, THE HUNTINGTON NATIONAL BANK ARTICLE 1 DEFINITIONS B19-1.16 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). ARTICLE 2 ELIGIBILITY B19-2.1 ELIGIBILITY. Each Employee who had worked for Huntington before 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. SUNTRUST BANKS, INC. 401(K) PLAN ADDENDUM C ADOPTING EMPLOYERS AMA Holdings, Inc. CB Finance, Inc. Premium Assignment Corporation Regency Constructors, Inc. Regency Development Associates, Inc. STB Management Corporation STI Investment Management (Collateral), Inc. STI Investment Management, Inc. SunTrust Bank SunTrust BankCard, National Association SunTrust Banks, Inc. SunTrust Bank Holding Company SunTrust Capital Markets, Inc. SunTrust Delaware Trust Company SunTrust Education Financial Services Corporation SunTrust Leasing Corporation SunTrust Mortgage, Inc. SunTrust Personal Loans, Inc. SunTrust Procurement Services, L.L.C. SunTrust Securities, Inc. Trusco Capital Management, Inc. ValuTree Real Estate Services, L.L.C. EX-5.1 4 g75508ex5-1.txt OPINION OF RAYMOND D. FORTIN, ESQ. EXHIBIT 5.1 [SUNTRUST BANKS, INC. LETTERHEAD] April 16, 2002 Securities and Exchange Commission Judiciary Plaza 450 Fifth Street, N.W. Washington, D.C. 20549 Ladies and Gentlemen: As Senior Vice President, General Counsel and Corporate Secretary for SunTrust Banks, Inc. (the "Company"), I am familiar with the preparation and filing of the Company's Registration Statement on Form S-8 (the "Registration Statement"), as filed with the Securities and Exchange Commission (the "Commission") on or about April 16, 2002, with respect to 8,000,000 shares of the Company's common stock, $1.00 par value per share (the "Plan Shares"), issuable pursuant to the SunTrust Banks, Inc. 2002 401(k) Plan (the "Plan") as referenced in the Registration Statement. I have reviewed the Plan and the Registration Statement, and I have examined and am familiar with, the original or copies, certified or otherwise, of the documents, corporate records and other instruments of the Company relating to the proposed issuance of the Plan Shares which I deem relevant and which form the basis of the opinion hereinafter set forth. I am of the opinion that: 1. Under the laws of the State of Georgia, the jurisdiction in which the Company is incorporated and the jurisdiction in which the Company has its principal office, the Company is duly incorporated, validly existing and in good standing; and 2. The issuance of the Plan Shares has been duly authorized by the Company and, upon issuance pursuant to the terms of the Plan, the Plan Shares will be legally issued and outstanding, fully paid and non-assessable, and no personal liability will attach to the holders of the Plan Shares. The undersigned counsel to the Company hereby consents to the filing of this opinion with the Commission as Exhibit 5.1 to the Registration Statement. Sincerely, /s/ Raymond D. Fortin - ----------------------------- Raymond D. Fortin EX-23.1 5 g75508ex23-1.txt CONSENT OF ARTHUR ANDERSEN LLP. EXHIBIT 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our report dated February 12, 2002 included in SunTrust Banks, Inc. Form 10-K for the year ended December 31, 2001 and to all references to our Firm included in this registration statement. /s/ Arthur Andersen LLP - -------------------------- Atlanta, Georgia April 16, 2002 EX-99 6 g75508ex99.txt ACKNOWLEDGMENT RE: LETTER TO ARTHUR ANDERSEN LLP. EXHIBIT 99 SunTrust Banks, Inc. P.O. Box 4418 Center 645 Atlanta, Georgia 30302-4418 Securities and Exchange Commission 450 Fifth Street, N.W. Washington, D.C. 20549 April 16, 2002 Ladies and Gentlemen: This will confirm that SunTrust Banks, Inc. (the "Company") has received a letter from Arthur Andersen LLP ("Arthur Andersen") with respect to Arthur Andersen's audit of the Company's consolidated financial statements for the year ended December 31, 2001. Arthur Andersen's letter certifies that the audit was subject to Arthur Andersen's quality control system for the U.S. accounting and auditing practice to provide reasonable assurance that the engagement was conducted in compliance with professional standards, that there was appropriate continuity of Arthur Andersen personnel working on the audit, and availability of national office consultation. Availability of personnel at foreign affiliates of Arthur Andersen was not relevant to the audit. Very truly yours, /s/ William P. O'Halloran - ------------------------------------- William P. O'Halloran Senior Vice President and Controller -----END PRIVACY-ENHANCED MESSAGE-----