August 10, 2004 Mr. James M. Wells III Dear Jim:
Exhibit 10.1
August 10, 2004
Xx. Xxxxx X. Xxxxx III
Dear Xxx:
This letter explains the agreement between SunTrust Bank (SunTrust or the Company) and you with regard to the insurance bonus arrangement.
Background
Prior to 2004, you were a participant in the Crestar Executive Life Insurance Plan (XXX). Some years ago you transferred your ownership interest in the XXX policy insuring your life (the Policy) to a trust, for which SunTrust Bank serves as Trustee (the Trust and the Trustee, respectively). Thereafter, the Trustee and SunTrust each paid a portion of the premiums on the Policy, and on rollout, the cash value and death benefits of the Policy were to be split between the Trust and the Company so that the Company would recover its premium costs in accordance with the Policy’s collateral assignment.
As you are well aware, the IRS issued new guidelines in 2003 regarding the taxation of split dollar life insurance arrangements, such as those under the XXX Plan. It was not clear in 2003, nor is it clear now, whether existing split dollar policies are subject to the new tax rules. In addition, it was unclear in 2003 whether split dollar premiums paid by an employer should be treated as loans to an executive under the Xxxxxxxx-Xxxxx Act.
In order to protect your life insurance benefits under these new restrictions, the Company and you agreed last year to make changes to the structure of your XXX benefit. The following paragraphs describe those changes and our mutual commitments.
Policy Rollout
The new IRS split dollar regulations offered a “safe harbor” termination of a split dollar arrangement prior to January 1, 2004, which allowed a participant full access to the policy’s cash value without any current tax consequences. Therefore, in order to protect the Policy’s equity of $138,069 on a tax-free basis, SunTrust and the Trustee agreed to an early “roll-out” of the Policy in December 2003. The Company received its cumulative net premium payments of $297,975 and released its rights in the Policy, thus terminating the split dollar arrangement. Consequently, as of the December rollout, the collateral assignment ended, you no longer participate in the XXX Plan and the Company no longer has an obligation to make any future premium payments under the XXX Plan or the Policy.
Insurance Bonus
While the 2003 rollout of the Policy protected the Policy’s accumulated cash value, it will still be necessary to pay annual premiums to maintain the Policy’s death benefit coverage – 4 times your base pay until you reach age 65, when it reduces by 50 percent. Currently, the Policy’s death benefits are $2.6 million. This amount is also subject to adjustment to correspond to future changes in your base pay.
Because we no longer have the option of a split dollar arrangement, we agreed that the Company will pay you an annual insurance bonus to help compensate for the XXX benefit you have lost. The bonus will be equal to the premium amount the Company would have paid if the Policy had continued until rollout under the XXX Plan, taking into consideration contributions from you or the trust. Our outside consultants (The Newport Group) have determined that the required Company premium for 2004,
calculated on a level premium basis to age 65, would be $47,485. See the enclosed Exhibit A Inforce Policy Projection. To help account for the taxes you will owe on this amount, the Company will increase your insurance bonus by a “make whole” amount. For 2004, the make whole bonus is $17,929 (see column 2). Therefore, your total insurance bonus for 2004 is $65,414 (sum of columns 1 and 2), which is treated as taxable compensation to you. Your net after-tax compensation received (assuming a 40.35% combined effective federal and state tax rate) would be $39,019. The total 2004 premium to Pacific Life is $47,485 (see column (5)) resulting in a net outlay for you of $8,466 which is what you would have paid had your XXX participation continued (see column (11)). For 2005 and later years, the premium and bonus amounts will be adjusted to reflect changes caused by interest crediting rates and other variables.
SunTrust’s payment of the annual insurance bonus is contingent on continuation of the Policy in accordance with the terms of this Agreement. The Company will pay the annual insurance bonus to you until the time your Policy would have rolled out to you under the XXX Plan — the earliest of (1) the date that would have been the Policy’s normal scheduled rollout date under the XXX Plan (i.e., generally the later of your attainment of age 65 or the 15th anniversary date of the policy); (2) termination of your Policy; (3) written notice by the Company to you if any portion of the annual premium due on your Policy is not timely paid or any provision of this Agreement is breached and such failure or such is not cured within thirty (30) days after such notice; or (4) your death.
As you and I have discussed, however, the Company will allow the Policy’s premium payment period to be extended to age 70 (rather than age 65), provided that the Policy’s death benefit is not decreased from the scheduled amount (i.e., 4 times base pay until age 65, when it reduces by 50%). An extension will have the effect of reducing the total annual premium but, of course, will increase by five years the period over which the Trustee must continue paying premiums. The Exhibit B Inforce Policy Projection (columns (5) through (10)) shows the projections based on a level annual premium of $27,700 to age 70. The projected amounts will also fluctuate in future years depending on interest crediting rates and other factors.
Note the following additional conditions to which you and the Trustee must agree. Once SunTrust stops paying the insurance bonus, the Trustee will bear the full risk of premium payments and Policy lapse. Under no circumstances will SunTrust extend the period for paying the annual insurance bonus to you beyond your age 65 or any earlier applicable date described in the preceding paragraph. If the Policy’s death benefit is reduced from what it would have been under the XXX Plan during the period in which the Company is paying the annual insurance bonus, then you and the Trustee agree to notify the Company and to accept a pro rata reduction in the Company’s annual payment to you. In addition, you and the Trustee agree that the Trustee will pay annual premiums into the Policy by your age 70 (see column 5 of Exhibit B) that are equal in the aggregate to the sum of the premium bonus the Company has paid to you (see column 1). The attached summary explains this arrangement in more detail.
Change in Control
In the event of a “Change in Control” of SunTrust Banks, Inc., the terms set forth in this Agreement, (including the annual insurance bonus and gross up) shall be binding on any successor to the Company. For purposes of this letter, “Change in Control” has the same meaning as set forth in the Change in Control Agreement entered into by you and SunTrust Banks, Inc. on March 22, 2001. The annual insurance bonus described in this letter shall not be taken into account for purposes of determining the “Current Compensation Package” under the Change in Control Agreement and shall be paid independently of any other payment under the Change in Control Agreement.
Miscellaneous
This Agreement shall not be amended, altered or modified and no term may be waived without the written consent of the Company and you and the Trustee. The Company has no rights or interest in the death proceeds or in the cash surrender value of the Policy. The Company and you agree that the value of any bonuses you receive pursuant to this Agreement shall not be considered as compensation, salary or any other earnings (regardless of how designated) for purposes of determining any benefit under any of the plans, policies or arrangements of the Company or SunTrust Banks, Inc. or any affiliate, including but not limited to, pension, retirement, bonus, severance or any other agreement, and that this Agreement is not and shall not be construed as an employee benefit plan subject to ERISA. This Agreement shall be governed by the laws of the state of Georgia (excluding its choice-of-law rules). Failure of the Company or you to enforce any of the provisions of this Agreement shall not be considered a waiver of that provision or any other provision. This Agreement shall be binding on the Trustee and its successors and assigns; on the beneficiaries and distributes of the Trust; and on your estate, executors, personal representatives, heirs, devisees and issue.
Conclusion
We know that these insurance benefits are important to you and your family, and we wanted to take appropriate steps to protect them. If you have any questions about this Agreement, please don’t hesitate to call me. I can be reached at ST Net 340-6479.
You and the Trustee should sign below to indicate your agreement to the terms and conditions of this Agreement. Return one copy of this signed Agreement to me. Upon your signature and the signature of the Trustee, this Agreement is effective as of December 17, 2003, and it supersedes any and all other agreements, with respect to the bonus arrangement described herein.
Sincerely,
Xx Xxxx Rioli Xxxxxxx
Senior Vice President
Compensation and Executive Benefits
Enclosures
Copy to: Xxxxxx Xxxxxxxxx
Consent of Xxxxx X. Xxxxx XXX
I have seen, understand and agree to the terms of this letter:
| /s/ Xxxxx X. Xxxxx III |
August 19, 2004 | |||
| Xxxxx X. Xxxxx III | Date: | |||
| /s/ Xxxxxx X. Xxxxxxxx |
August 19, 2004 | |||
| Witness | Date: | |||
