Exhibit 10.18
NATIONAL COMMERCE FINANCIAL
CORPORATION
EQUITY INVESTMENT
PLAN
AS AMENDED AND
RESTATED
EFFECTIVE JANUARY 1,
2009
THIS INDENTURE made as of
January 1, 2002, by National Commerce Financial Corporation
(hereinafter called the “Primary Sponsor”);
W
I T N
E S S E T H
:
WHEREAS, the Primary Sponsor
maintains the National Commerce Bancorporation Deferred
Compensation Plan (the “NCBC Plan”) and the CCB
Financial Corporation Retirement Savings Equity Plan (the
“CCB Plan”), each of which allows certain employees to
save on a tax advantaged basis; and
WHEREAS, the Primary Sponsor
maintains the National Commerce Financial Corporation Investment
Plan (the “401(k) Plan”), a defined contribution plan
under which participating employees may contribute on a pre-tax
basis pursuant to a qualified cash or deferred arrangement within
the meaning of Section 401(k) of the Internal Revenue Code of
1986, as amended (the “Code”) and the Primary Sponsor
may make matching contributions; and
WHEREAS, the limitations of Sections
401(a)(17), 401(k)(3), 401(m), 402(g) and 415 of the Code may,
separately or in combination, limit the amount of pre-tax employee
contributions and employer matching contributions that otherwise
could be made under the 401(k) Plan on behalf of certain
participants; and
WHEREAS, the Primary Sponsor wishes
to freeze the NCBC Plan to new contributions from payroll (other
than stock option gain deferrals) and to amend and restate the CCB
Plan for the purpose of providing, to the extent possible on a
non-qualified and unfunded basis, an opportunity for selected
participants in the 401(k) Plan to continue to accumulate
retirement savings as if such persons had been able to continue to
participate in the 401(k) Plan without regard to certain tax
limitations; and
NOW, THEREFORE, the Primary Sponsor
does hereby amend and restate the CCB Plan and does hereby rename
the CCB Plan as the National Commerce Financial Corporation Equity
Investment Plan (the “Plan”), effective January 1,
2002, to read as follows:
[Effective as of the close of
business on December 31, 2004, the following paragraphs are
added to the end of the Introduction:
Pursuant to the Agreement and Plan
of Merger dated as of May 7, 2004, by and between National
Commerce Financial Corporation (“NCF”) and SunTrust
Banks, Inc. (“SunTrust”), NCF was merged into and with
SunTrust on October 1, 2004. As a result of such merger,
SunTrust has succeeded to the responsibilities of NCFC and has
become the Primary Sponsor under the Plan. Accordingly, on and
after October 1, 2004, each reference to the Primary Sponsor
shall be a reference to SunTrust.
Effective as of the close of
business on December 31, 2004, the Plan is frozen as to new
Participants and the Plan will not accept any new deferrals from
existing Participants nor credit any Matching Contributions to
Accounts pursuant to Section 3.3 (although the Plan will
continue to credit accounts with earnings and losses on amounts
deferred prior to January 1, 2005).
SECTION 1
DEFINITIONS
Whenever used herein, the masculine
pronoun shall be deemed to include the feminine, and the singular
to include the plural, unless the context clearly indicates
otherwise. The following words and phrases shall have the meanings
set forth below:
1.1 “ Account ”
means the bookkeeping accounts established and maintained by the
Plan Administrator to reflect the interest of a Member under the
Plan and shall include the following:
(a) “ Before-Tax
Account ” which shall reflect deferrals by a Member
pursuant to Plan Sections 3.1, as adjusted to reflect other credits
or charges.
(b) “ Matching Account
” which shall reflect credits to a Member’s Account
made on his behalf pursuant to Plan Sections 3.3, as adjusted to
reflect other credits or charges.
1.2 “ Accrued Benefit
” means the balance of the Member’s Account.
1.3 “ Affiliate ”
means (a) any corporation which is a member of the same
controlled group of corporations (within the meaning of Code
Section 414(b)) as is a Plan Sponsor and (b) any other
trade or business (whether or not incorporated) under common
control (within the meaning of Code Section 414(c)) with a
Plan Sponsor.
1.4 “ Annual
Compensation ” means “Annual Compensation,”
as that term is defined under the 401(k) Plan for purposes of
making contributions pursuant to a salary deferral election, as the
same may be amended from time to time, without regard to the limit
on compensation that may be recognized under Code
Section 401(a)(17) and with the inclusion of compensation
deferred by the Participant pursuant to Plan
Section 3.1.
1.5 “ Beneficiary
” means the person or trust that a Member designated most
recently in writing to the Plan Administrator; provided, however,
that if the Member has failed to make a designation, no person
designated is alive, no trust has been established, or no successor
Beneficiary has been designated who is alive, the term Beneficiary
means (a) the Member’s spouse or (b) if no spouse
is alive, the Member’s surviving children, or (c) if no
children are alive, the Member’s parent or parents, or
(d) if no parent is alive, the legal representative of the
deceased Member’s estate.
1.6 “ Board of
Directors ” means the Board of Directors of the Primary
Sponsor.
1.7 “ Code ”
means the Internal Revenue Code of 1986, as amended.
1.8 “ Change in Control
” shall be defined and deemed to have occurred if
(a) any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”)) (a “Person”) acquires beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange
Act) of voting securities of the Primary Sponsor where such
acquisition causes such person to own twenty percent (20%) or
more of the combined voting power of the then outstanding voting
securities of the Primary Sponsor entitled to vote generally in the
election of directors (the “Outstanding Corporation Voting
Securities”); provided, however, that for purposes of this
Subsection (a), the following acquisitions shall not be deemed to
result in a Change in Control: (1) any acquisition directly
from the Primary Sponsor, (2) any acquisition by the Primary
Sponsor, (3) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Primary Sponsor or
any corporation controlled by the Primary Sponsor or (4) any
acquisition by any corporation pursuant to a transaction that
complies with clauses (1), (2) and (3) of Subsection
(c) below; and provided, further, that if any Person’s
beneficial ownership of the Outstanding Corporation Voting
Securities reaches or exceeds 20% as a result of a transaction
described in clause (1) or (2) above, and such Person
subsequently acquires beneficial ownership of additional voting
securities of the Primary Sponsor, such subsequent acquisition
shall be treated as an acquisition that causes such Person to own
twenty percent (20%) or more of the Outstanding Corporation
Voting Securities; or
(b) individuals who as of the date
hereof, constitute the Board of Directors (the “Incumbent
Board”) cease for any reason to constitute at least a
majority of the Board of Directors; provided, however, that any
individual becoming a director subsequent to the date hereof whose
election, or nomination for election by the Primary Sponsor’s
shareholders, was approved by a vote of at least two-thirds of the
directors then comprising the Incumbent Board shall be considered
as though such individual were a member of the Incumbent Board,
but
excluding, for this purpose, any
such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to
the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person
other than the Board of Directors; or
(c) the shareholders of the Primary
Sponsor approve of a reorganization, merger or consolidation or
sale or other disposition of all or substantially all of the assets
of the Primary Sponsor (“Business Combination”) or, if
consummation of such Business Combination is subject, at the time
of such approval by shareholders, to the consent of any government
or governmental agency, the obtaining of such consent (either
explicitly or implicitly by consummation); excluding, however, such
a Business Combination pursuant to which (1) all or
substantially all of the individuals and entities who were the
beneficial owners of the Outstanding Corporation Voting Securities
immediately prior to such Business Combination beneficially own,
directly or indirectly, more than sixty percent (60%) of,
respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, as the
case may be, of the corporation resulting from such Business
Combination (including, without limitation, a corporation that as a
result of such transaction owns the Primary Sponsor or all or
substantially all of the Primary Sponsor’s assets either
directly or through one or more subsidiaries) in substantially the
same proportions as their ownership, immediately prior to such
Business Combination of the Outstanding Corporation Voting
Securities, (2) no Person (excluding any employee benefit plan
(or related trust) of the Primary Sponsor or such corporation
resulting from such Business Combination) beneficially owns,
directly or indirectly, twenty percent (20%) or more of,
respectively, the then outstanding shares of common stock of the
corporation resulting from such Business Combination or the
combined voting power of the then outstanding voting securities of
such corporation except to the extent that such ownership existed
prior to the Business Combination and (3) at least a majority
of the members of the board of directors of the corporation
resulting from such Business Combination were members of the
Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board of Directors, providing
for such Business Combination; or
(d) approval by the shareholders of
the Primary Sponsor of a complete liquidation or dissolution of the
Primary Sponsor.
The successful closing of a merger
agreement between National Commerce Bancorporation and CCB
Financial Corporation on or before December 31, 2000 shall not
be considered a Change in Control for the purposes of this
Plan.
1.9 “ Deferral Amounts
” means the amounts of Annual Compensation contributed to the
Plan by a Member pursuant to the Member’s election under Plan
Sections 3.1.
1.10 “ Effective Date
” means, as to the Primary Sponsor, January 1, 2002 and
as to each other Plan Sponsor which adopts the Plan with consent of
the Primary Sponsor, the date designated as such by the adopting
Plan Sponsor.
1.11 “ Eligible
Employee ” means any Employee of a Plan Sponsor who
is:
(a) considered to be a
“management” or “highly compensated
employee” within the meaning of Section 201(2) of the
Employee Retirement Income Security Act of 1974, as amended;
and
(b) designated as eligible to
receive benefits under the Plan in the sole discretion of the chief
executive officer of the Primary Sponsor.
1.12 “ Employee ”
means any person who is employed by a Plan Sponsor or an Affiliate
for purposes of the Federal Insurance Contributions Act.
1.13 “ Entry Date
” means each entry date under the 401(k) Plan.
1.14 “ Individual Funds
” means two or more individual subfunds, as established by
the Plan Administrator from time to time into which participants
may direct the investment of their account.
1.15 “ Member ”
means any Eligible Employee or former Eligible Employee who has
become a participant in the Plan, for so long as his benefits
hereunder have not been paid out. [The preceding definition of
“Member” is deleted effective as of July 1, 2003,
and replaced with the following definition:]
“Member” means any Eligible Employee who has become a
participant in the Plan, for so long as his benefits hereunder have
not been paid out or have not been transferred to another qualified
plan.
1.16 “ Plan
Administrator ” means the Primary Sponsor.
1.17 “ Plan Sponsor
” means individually the Primary Sponsor and any other
Affiliate or other entity which has adopted the Plan with consent
of the Primary Sponsor.
1.18 “ Plan Year
” means the calendar year.
1.19 “ Unforeseen
Emergency ” means a severe financial hardship to a Member
resulting from a sudden and unexpected illness or accident of a
Member or of a dependent (as defined in Code Section 152) of
the Member, loss of the Member’s property due to casualty or
other similar extraordinary and unforeseeable circumstances arising
as a result of events beyond the control of the Member. The
circumstances that shall constitute an Unforeseen Emergency shall
depend upon the facts of each case, but, in any case, payment may
not be made to the extent Unforeseen Emergency is or may be
relieved (a) through reimbursement or compensation by
insurance or otherwise, or (b) by liquidation of the
Member’s assets, to the extent the liquidation of such assets
would not itself cause severe financial hardship. Examples of what
would not be considered as an Unforeseen Emergency include the need
to send a Member’s child to college or the desire to purchase
a home. Any determination of the existence of an Unforeseen
Emergency and the amount to be distributed on account thereof shall
be made by the Plan Administrator (or such other person as may be
required to make such decisions) in accordance with rules applied
in a uniform and nondiscriminatory manner.
1.20 “ Valuation Date
” means each business day.
SECTION 2
ELIGIBILITY
2.1 Date of Participation .
Each Eligible Employee shall become a Member as of the first Entry
Date following the latest of the date on which the Employee
(a) is designated for participation in the Plan in the sole
discretion of the chief executive officer of the Primary Sponsor
and (b) completes an enrollment form prescribed by the Plan
Administrator in which the Eligible Employee elects to participate
in the Plan; provided, however, that no Eligible Employee may
become a Member of the Plan prior to the date on which the Eligible
Employee could become a member of the 401(k) Plan.
2.2 Enrollment Form . Each
Eligible Employee must complete an enrollment form to enter the
Plan. Notwithstanding the foregoing, a Member’s election
under the NCBC Plan with respect to Annual Compensation
attributable to 2001, but payable in 2002 shall continue to be
effective for purposes of the Plan even if such Member has not
completed an enrollment form.
2.3 Cessation of
Participation . A Member who ceases to be an Eligible Employee
will no longer be eligible to make further deferrals under the Plan
pursuant to Plan Section 3, but shall continue to be subject
to all other terms of the Plan so long as he remains a Member of
the Plan.
2.4 Suspension of
Participation . In the event the Member participates in a plan
of a Plan Sponsor or Affiliate intended to qualify under Code
Section 401(a) and containing a cash or deferred arrangement
qualified under Code Section 401(k), the Member shall be
suspended from continued participation under the Plan to the extent
required by such other plan as a result of a hardship withdrawal
made by such Member under such other plan.
SECTION 3
DEFERRAL ELECTIONS
[The following Section 3.1
is effective August 1, 2003:]
3.1 Election of Deferrals . A
Member who is an Eligible Employee for all or any portion of the
Plan Year may elect to defer under the Plan a portion of his Annual
Compensation otherwise payable to him for the Plan Year provided
that the Member has made the maximum salary deferral election for
the Plan Year pursuant to Section 3.1(a) of the 401(k) Plan.
The deferrals under this Section 3.1 shall be in an amount
equal to the amount elected by the Member, but together with the
amount which the Member has contributed to the 401(k) Plan pursuant
to Section 3.1(a) of the 401(k) Plan with respect to such Plan
Year, may not exceed twenty percent (20%) of the
Member’s Annual Compensation. If specified by the Plan
Administrator, elections to defer Annual Compensation under the
Plan may be made at the same time and/or in the same manner as
elections under the 401(k) Plan so that only the amount of such
election which could not be contributed to the 401(k) Plan due to
provisions contained in the 401(k) Plan resulting from the
limitations of Code Sections 401(a)(17), 401(k)(3), 401(m), 402(g)
and 415 shall be contributed to the Plan. . Notwithstanding the
foregoing, a Member’s election under the NCBC Plan with
respect to Annual Compensation attributable to 2001, but payable in
2002 shall continue to be effective for purposes of the
Plan.
[The following Section 3.1
was replaced by the Section 3.1 set forth above,
August 1, 2003:]
3.1 Election of Deferrals . A
Member who is an Eligible Employee for all or any portion of the
Plan Year may elect to defer under the Plan a portion of his Annual
Compensation otherwise payable to him for the Plan Year provided
that the Member has made the maximum salary deferral election for
the Plan Year under the 401(k) Plan. The deferrals under this
Section 3.1 shall be in an amount equal to the amount elected
by the Member, but together with the amount which the Member has
contributed to the 401(k) Plan with respect to such Plan Year, may
not exceed twenty percent (20%) of the Member’s Annual
Compensation. If specified by the Plan Administrator, elections to
defer Annual Compensation under the Plan may be made at the same
time and/or in the same manner as elections under the 401(k) Plan
so that only the amount of such election which could not be
contributed to the 401(k) Plan due to provisions contained in the
401(k) Plan resulting from the limitations of Code Sections
401(a)(17), 401(k)(3), 401(m), 402(g) and 415 shall be contributed
to the Plan. . Notwithstanding the foregoing, a Member’s
election under the NCBC Plan with respect to Annual Compensation
attributable to 2001, but payable in 2002 shall continue to be
effective for purposes of the Plan
3.2 Election, Revocation and
Modification of Deferrals .
(a) All elections to participate and
defer Annual Compensation shall be effective as of the first day of
the payroll period beginning on or after the date the
Member’s election is processed pursuant to normal
administrative procedures and shall remain in effect until the
Member notifies the Plan Administrator, in such manner and form as
the Plan Administrator shall from time to time prescribe. Once a
Member has completed an enrollment form and made an election to
defer Annual Compensation pursuant to Section 3.1, the Member
may suspend active participation in the Plan or change the rate of
deferrals of Annual Compensation in such manner and form as the
Plan Administrator shall from time to time prescribe, provided that
no such change shall be effective prior to the first day of the
payroll period beginning on or after the date the Member’s
change or suspension is processed by the Plan Administrator
pursuant to normal administrative procedures. A Member who suspends
active participation under the Plan may resume active participation
in the Plan by making a new election in such form and manner as the
Plan Administrator shall from time to time prescribe, which
election shall be effective as of the first day of the payroll
period commencing after the new election has been processed by the
Plan Administrator. Notwithstanding the foregoing, no modification
or suspension of an election shall be effective for any bonus
compensation that has been declared or is determinable at the time
of the modification or suspension.
(b) Notwithstanding the twenty
percent (20%) limitation contained in Subsection
(a) hereof, Employees who were NCBC Plan participants on
December 31, 2001 (“Grandfathered Participants”)
may continue to contribute to the Plan in the same
amounts
