AGREEMENT AND PLAN OF MERGER
by and between
"SUNTRUST BANKS, INC."
and
"NATIONAL COMMERCE FINANCIAL CORPORATION"
---------
Dated as of May 7, 2004
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of May 7, 2004 (this "Agreement"),
by and between SUNTRUST BANKS, INC., a Georgia corporation ("STI"), and NATIONAL
COMMERCE FINANCIAL CORPORATION, a Tennessee corporation ("NCF").
RECITALS:
WHEREAS, the Boards of Directors of STI and NCF have approved, and deem it
advisable and in the best interests of their respective corporations and
shareholders to consummate the strategic business combination transaction
provided for herein in which NCF will, subject to the terms and conditions set
forth herein, merge with and into STI (the "Merger"), so that STI is the
surviving corporation (hereinafter sometimes referred to in such capacity as the
"Surviving Corporation") in the Merger;
WHEREAS, the Boards of Directors of STI and NCF have each determined that
the Merger and the other transactions contemplated hereby are consistent with,
and in furtherance of, their respective business strategies and goals;
WHEREAS, the parties desire to make certain representations, warranties,
covenants and agreements in connection with the Merger and also to prescribe
certain conditions to the Merger; and
WHEREAS, for Federal income tax purposes, the parties intend that the
Merger will qualify as a reorganization under the provisions of Section 368(a)
of the Internal Revenue Code of 1986, as amended (the "Code"), and the parties
intend, by executing this Agreement, to adopt a plan of reorganization within
the meaning of Treasury Regulation Section 1.368-2(g).
NOW, THEREFORE, in consideration of the mutual covenants, representations,
warranties and agreements contained herein, and intending to be legally bound
hereby, the parties agree as follows:
ARTICLE I.
THE MERGER
1.1 The Merger
(a) Subject to the terms and conditions of this Agreement, in
accordance with the Business Corporation Code of the State of Georgia (the
"GBCC") and the Business Corporation Act of the State of Tennessee (the "TBCA"),
at the Effective Time (as defined below), NCF shall merge with and into STI. STI
shall be the surviving corporation in the Merger, and shall continue its
corporate existence under the laws of the State of Georgia. The name of the
Surviving Corporation shall continue to be "SunTrust Banks, Inc." Upon
consummation of the Merger, the separate corporate existence of NCF shall
terminate.
(b) The parties agree that STI may at any time change the method of
effecting the combination of NCF and STI, including, without limitation, by
merging NCF with a direct wholly owned subsidiary of STI, and NCF shall
cooperate in such efforts, including by entering into an appropriate amendment
to this Agreement (to the extent such amendment only changes the method of
effecting the business combination and does not substantively affect this
Agreement or the rights and obligations of the parties or their respective
shareholders hereunder); provided, however, that any such subsidiary shall
become a party to, and shall agree to be bound by, the terms of this Agreement,
and that any such change shall not (i) alter or change the kind or amount of
Merger Consideration (as defined below) to be provided to holders of NCF Common
Stock (as defined below) as provided for in this Agreement, (ii) adversely
affect the tax treatment of holders of NCF Common Stock as a result of receiving
the Merger Consideration, (iii) adversely affect the rights of holders of NCF
Stock Options (hereinafter defined) and NCF Stock-Based Awards (hereinafter
defined) or (iii) materially impede or delay consummation of the transactions
contemplated by this Agreement.
1.2 Effective Time. The Merger shall become effective as set forth in the
certificate of merger (the "Georgia Certificate of Merger") that shall be filed
with the Secretary of State of the State of Georgia (the "Georgia Secretary")
and the articles of merger (the "Tennessee Articles of Merger") that shall be
filed with the Secretary of State of the State of Tennessee (the "Tennessee
Secretary") on the Closing Date. The term "Effective Time" shall be the date and
time when the Merger becomes effective, as set forth in the Georgia Certificate
of Merger and the Tennessee Articles of Merger.
1.3 Effects of the Merger. At and after the Effective Time, the Merger
shall have the effects set forth in Section 14-2-1106 of the GBCC and Section
▇▇-▇▇-▇▇▇ of the TBCA.
1.4 Conversion of NCF Common Stock. At the Effective Time, by virtue of the
Merger and without any action on the part of NCF, STI or the holder of any of
the following securities:
(a) Each share of the common stock, par value $2.00 per share, of NCF
(the "NCF Common Stock") issued and outstanding immediately prior to the
Effective Time, except for shares of NCF Common Stock held by NCF or STI (other
than shares of NCF Common Stock (x) held in trust accounts, managed accounts and
the like, or otherwise held in a fiduciary capacity, that are beneficially owned
by third parties (any such shares, and shares of STI Common Stock which are
similarly held, whether held directly or indirectly by NCF or STI, being
referred to herein as "Trust Account Shares") or (y) held on account of a debt
previously contracted (any such shares of NCF Common Stock, and shares of STI
Common Stock which are similarly held directly or indirectly by NCF or STI,
being referred herein as "DPC Shares")) shall be converted, at the election of
the holder thereof, in accordance with the procedure set forth in Article II and
subject to Section 1.4(c) and Section 1.6, into the right to receive the
following, without interest:
(i) for each share of NCF Common Stock with respect to which an
election to receive cash has been effectively made and not revoked or lost
pursuant to Article II (a "Cash Election"), the right to receive in cash from
STI an amount equal to the Per Share Amount (the "Cash Consideration")
(collectively, "Cash Election Shares");
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(ii) for each share of NCF Common Stock with respect to which an
election to receive common stock, $1.00 par value per share, of STI (the "STI
Common Stock") has been effectively made and not revoked or lost pursuant to
Article II (a "Stock Election"), the right to receive from STI the fraction of a
share of STI Common Stock as is equal to the Exchange Ratio (the "Stock
Consideration") (collectively, the "Stock Election Shares"); and
(iii) for each share of NCF Common Stock other than shares as to
which a Cash Election or a Stock Election has been effectively made and not
revoked or lost pursuant to Article II (collectively, "Non-Election Shares"),
the right to receive from STI such Stock Consideration and/or Cash Consideration
as is determined in accordance with Section 1.6(b).
"Exchange Ratio" shall mean the quotient, rounded to the nearest one ten
thousandth, of (A) the Per Share Amount divided by (B) the STI Closing Price.
"Per Share Amount" shall mean the sum of (A) $8.625 plus (B) the product,
rounded to the nearest one ten thousandth, of .3713 (the "Share Ratio") times
the STI Closing Price.
"STI Closing Price" shall mean the average, rounded to the nearest one ten
thousandth, of the closing sale prices of STI Common Stock on the New York Stock
Exchange (the "NYSE") as reported by The Wall Street Journal for the five
trading days immediately preceding the date of the Effective Time.
"Cash Component" shall mean $1.8 billion.
The Cash Consideration and the Stock Consideration are sometimes referred
to herein collectively as the "Merger Consideration."
(b) All of the shares of NCF Common Stock converted into the right to
receive the Merger Consideration pursuant to this Article I shall no longer be
outstanding and shall automatically be cancelled and shall cease to exist as of
the Effective Time, and each certificate previously representing any such shares
of NCF Common Stock (each, a "NCF Stock Certificate") shall thereafter represent
only the right to receive (i) a certificate (each, a "STI Stock Certificate")
representing the number of whole shares of STI Common Stock, (ii) the aggregate
Cash Consideration and (iii) cash in lieu of fractional shares, into which the
shares of NCF Common Stock represented by such NCF Stock Certificate have been
converted pursuant to this Section 1.4 and Section 2.3(f). Certificates
previously representing shares of NCF Common Stock shall be exchanged for
certificates representing whole shares of STI Common Stock, the aggregate Cash
Consideration deliverable in respect of the shares of NCF Common Stock
represented thereby and cash in lieu of fractional shares issued in
consideration therefor upon the surrender of such NCF Stock Certificates in
accordance with Article II, without any interest thereon.
(c) If, between the date of this Agreement and the Effective Time, the
outstanding shares of STI Common Stock shall have been increased, decreased,
changed into or exchanged for a different number or kind of shares or securities
as a result of a reorganization, recapitalization, reclassification, stock
dividend, stock split, reverse stock split, or other similar
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change in capitalization, an appropriate and proportionate adjustment shall be
made to the Share Ratio payable pursuant to this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, at the
Effective Time, all shares of NCF Common Stock that are held by NCF or STI
(other than Trust Account Shares and DPC Shares) shall be cancelled and shall
cease to exist and no Merger Consideration shall be delivered in exchange
therefor. All shares of STI Common Stock that are held by NCF (other than Trust
Account Shares and DPC Shares) shall become treasury stock of STI.
1.5 STI Capital Stock. Except as contemplated by Section 1.4(d), at the
Effective Time each share of STI Capital Stock (as defined below) issued and
outstanding immediately prior to the Closing Date shall remain issued and
outstanding and shall not be affected by the Merger.
1.6 Proration.
(a) Notwithstanding any other provision contained in this Agreement,
the total number of shares of NCF Common Stock to be converted into Cash
Consideration pursuant to Section 1.4 (the "Cash Conversion Number") shall be
equal to the quotient obtained by dividing (x) the Cash Component by (y) the Per
Share Amount. All of the other shares of NCF Common Stock shall be converted
into Stock Consideration (other than shares of NCF Common Stock to be canceled
as provided in Section 1.4(d)).
(b) Within five business days after the Effective Time, STI shall
cause the Exchange Agent (as defined below) to effect the allocation among
holders of NCF Common Stock of rights to receive the Cash Consideration and the
Stock Consideration as follows:
(i) If the aggregate number of shares of NCF Common Stock with
respect to which Cash Elections shall have been made (the "Cash Election
Number") exceeds the Cash Conversion Number, then all Stock Election Shares and
all Non-Election Shares of each holder thereof shall be converted into the right
to receive the Stock Consideration, and Cash Election Shares of each holder
thereof will be converted into the right to receive the Cash Consideration in
respect of that number of Cash Election Shares equal to the product obtained by
multiplying (x) the number of Cash Election Shares held by such holder by (y) a
fraction, the numerator of which is the Cash Conversion Number and the
denominator of which is the Cash Election Number, with the remaining number of
such holder's Cash Election Shares being converted into the right to receive the
Stock Consideration; and
(ii) If the Cash Election Number is less than the Cash Conversion
Number (the amount by which the Cash Conversion Number exceeds the Cash Election
Number being referred to herein as the "Shortfall Number"), then all Cash
Election Shares shall be converted into the right to receive the Cash
Consideration and the Non-Election Shares and Stock Election Shares shall be
treated in the following manner:
(A) If the Shortfall Number is less than or equal to the number
of Non-Election Shares, then all Stock Election Shares shall be converted
into the right to receive the Stock Consideration and the Non-Election
Shares of each holder thereof shall convert
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into the right to receive the Cash Consideration in respect of that number
of Non-Election Shares equal to the product obtained by multiplying (x) the
number of Non-Election Shares held by such holder by (y) a fraction, the
numerator of which is the Shortfall Number and the denominator of which is
the total number of Non-Election Shares, with the remaining number of such
holder's Non-Election Shares being converted into the right to receive the
Stock Consideration; or
(B) If the Shortfall Number exceeds the number of Non-Election
Shares, then all Non-Election Shares shall be converted into the right to
receive the Cash Consideration and Stock Election Shares of each holder
thereof shall convert into the right to receive the Cash Consideration in
respect of that number of Stock Election Shares equal to the product
obtained by multiplying (x) the number of Stock Election Shares held by
such holder by (y) a fraction, the numerator of which is the amount by
which (1) the Shortfall Number exceeds (2) the total number of Non-Election
Shares and the denominator of which is the total number of Stock Election
Shares, with the remaining number of such holder's Stock Election Shares
being converted into the right to receive the Stock Consideration.
1.7 Options and Other Stock-Based Awards.
(a) Effective as of the Effective Time, each then outstanding option
to purchase shares of NCF Common Stock (each a "NCF Stock Option") granted,
pursuant to the equity-based compensation plans identified on in Section 4.11 of
the NCF Disclosure Schedule (the "NCF Stock Plans"), to any current or former
employee or director of, or consultant to, NCF or any of its Subsidiaries shall
be assumed by STI and shall be converted automatically into an option to
purchase a number of shares of STI Common Stock (rounded to the nearest whole
share) (an "Assumed Stock Option") at an exercise price determined as provided
below (and otherwise subject to the terms of the NCF Stock Plans and the
agreements evidencing grants thereunder):
(i) The number of shares of STI Common Stock to be subject to the
Assumed Stock Option shall be equal to the product of the number of shares of
NCF Common Stock subject to the NCF Stock Option and the Exchange Ratio,
provided that any fractional shares of STI Common Stock resulting from such
multiplication shall be rounded to the nearest whole share; and
(ii) The exercise price per share of STI Common Stock under the
Assumed Stock Option shall be equal to the exercise price per share of NCF
Common Stock under the NCF Stock Option divided by the Exchange Ratio, provided
that such exercise price shall be rounded to the nearest whole cent.
In the case of any NCF Stock Option to which Section 421 of the Code applies by
reason of its qualification under Section 422 of the Code, the conversion
formula shall be adjusted, if necessary, to comply with Section 424(a) of the
Code. Except as otherwise provided herein, the Assumed Stock Options shall be
subject to the same terms and conditions (including expiration date, vesting and
exercise provisions) as were applicable to the corresponding NCF Stock Options
immediately prior to the Effective Time (but taking into account any changes
thereto,
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including the acceleration of vesting thereof, provided for in the NCF Stock
Plans or other NCF Benefit Plan (defined below) or in any award agreement
thereunder by reason of this Agreement or the transactions contemplated hereby);
provided, however, that references to NCF shall be deemed to be references to
STI.
(b) At the Effective Time, each right of any kind, contingent or
accrued, to receive shares of NCF Common Stock or benefits measured by the value
of a number of shares of NCF Common Stock, and each award of any kind consisting
of shares of NCF Common Stock, granted under the NCF Stock Plans or any other
NCF Benefit Plan (including restricted stock, restricted stock units,
performance stock units, deferred stock units and dividend equivalents), other
than NCF Stock Options (each, a "NCF Stock-Based Award"), whether vested or
unvested, which is outstanding or unsatisfied immediately prior to the Effective
Time, shall cease to represent a right or award with respect to shares of NCF
Common Stock and shall be converted, at the Effective Time, into a right or
award with respect to shares of STI Common Stock (an "Assumed Stock-Based
Award"), on the same terms and conditions (including expiration date, vesting
and exercise provisions) as were applicable under the NCF Stock-Based Awards
(but taking into account any changes thereto, including the acceleration
thereof, provided for in the NCF Stock Plans or other NCF Benefit Plan or in any
award agreement thereunder by reason of this Agreement or the transactions
contemplated hereby). The number of shares of STI Common Stock subject to each
such Assumed Stock-Based Award shall be equal to the number of shares of NCF
Common Stock subject to the NCF Stock-Based Award, multiplied by the Exchange
Ratio (rounded to the nearest whole share of STI Common Stock). All dividend
equivalents credited to the account of each holder of a NCF Stock-Based Award as
of the Effective Time shall remain credited to such holder's account immediately
following the Effective Time, subject to adjustment in accordance with the
foregoing.
(c) STI shall take all corporate action necessary to reserve for
issuance a sufficient number of shares of STI Common Stock upon the exercise of
the Assumed Stock Options and settlement of the Assumed Stock Based Awards. On
or as soon as practicable following the Closing Date (and in no event more than
ten business days after the Closing Date), STI shall file a registration
statement on an appropriate form or a post-effective amendment to a previously
filed registration statement under the Securities Act (as defined below) with
respect to the issuance of the shares of STI Common Stock subject to the Assumed
Stock Options and the Assumed Stock-Based Awards and shall use its reasonable
efforts to maintain the effectiveness of such registration statement or
registration statements (and maintain the current status of the prospectus or
prospectuses contained therein) for so long as such equity awards remain
outstanding.
(d) NCF shall take such action as is necessary to provide that as of
no later than three business days prior to the Effective Date no additional
shares of NCF Common Stock will be purchased under the NCF Automatic Dividend
Reinvestment Plan (the "NCF DRIP"); provided, however, that such cessation of
further purchases shall be conditioned upon the consummation of the Merger.
Immediately prior to and effective as of the Effective Time and subject to the
consummation of the Merger, NCF shall terminate the NCF DRIP.
1.8 Articles of Incorporation. Subject to the terms and conditions of this
Agreement, at the Effective Time the Articles of Incorporation of STI, as
amended (the "STI Articles"), shall
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be the Articles of Incorporation of the Surviving Corporation until thereafter
amended in accordance with applicable law.
1.9 Bylaws. Subject to the terms and conditions of this Agreement, at the
Effective Time the Bylaws of STI shall be the Bylaws of the Surviving
Corporation until thereafter amended in accordance with applicable law.
1.10 Tax Consequences. It is intended that the Merger shall constitute a
"reorganization" within the meaning of Section 368(a) of the Code, and that this
Agreement shall constitute a "plan of reorganization" for the purposes of the
Code.
1.11 Directors. At and immediately after the Effective Time, the directors
of the Surviving Corporation shall consist of the directors of STI in office
immediately prior to the Effective Time together with four (4) additional
directors of NCF as provided in Section 6.15 hereof, until their respective
successors are duly elected or appointed and qualified.
1.12 Officers. At and immediately after the Effective Time, the officers of
the Surviving Corporation shall consist of the officers of STI in office
immediately prior to the Effective Time.
1.13 Charitable Giving. The Surviving Corporation intends to maintain NCF's
annual level of charitable giving in each of Tennessee and the other regions
within the NCF footprint at levels no less than the amount of charitable
contributions made in 2003, it being the intention of the Surviving Corporation
to increase such giving in those areas over time in a manner equal to the growth
in the Surviving Corporation's annual charitable giving in its other principal
markets. Such intent shall survive the Effective Time as reflected in a formal
resolution of the Board of Directors of the Surviving Corporation to be
reflected in the minutes of the Surviving Corporation following the Merger.
ARTICLE II.
DELIVERY OF MERGER CONSIDERATION
2.1 Election Procedures. Each holder of record of shares of NCF Common
Stock ("Holder") shall have the right, subject to the limitations set forth in
this Article II, to submit an election in accordance with the following
procedures:
(a) Each Holder may specify in a request made in accordance with the
provisions of this Section 2.1 (herein called an "Election") (x) the number of
shares of NCF Common Stock owned by such Holder with respect to which such
Holder desires to make a Stock Election and (y) the number of shares of NCF
Common Stock owned by such Holder with respect to which such Holder desires to
make a Cash Election.
(b) STI shall prepare a form reasonably acceptable to NCF (the "Form
of Election") which shall be mailed to NCF's shareholders entitled to vote at
the NCF Stockholders Meeting (as hereinafter defined) so as to permit NCF's
shareholders to exercise their right to make an Election prior to the Election
Deadline.
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(c) STI shall make the Form of Election initially available at the
time that the Joint Proxy Statement (as defined herein) is made available to the
shareholders of NCF, to such shareholders, and shall use all reasonable efforts
to make available as promptly as possible a Form of Election to any shareholder
of NCF who requests such Form of Election following the initial mailing of the
Forms of Election and prior to the Election Deadline. In no event shall the Form
of Election be made available less than twenty (20) days prior to the Election
Deadline.
(d) Any Election shall have been made properly only if the person
authorized to receive Elections and to act as exchange agent under this
Agreement, which person shall be a bank or trust company designated by STI and
reasonably acceptable to NCF (the "Exchange Agent"), pursuant to an agreement
(the "Exchange Agent Agreement") entered into prior to the mailing of the Form
of Election to NCF shareholders and reasonably acceptable to NCF, shall have
received, by 5:00 p.m. local time in the city in which the principal office of
such Exchange Agent is located, on the date of the Election Deadline, a Form of
Election properly completed and signed and accompanied by NCF Stock Certificates
to which such Form of Election relates or by an appropriate customary guarantee
of delivery of such certificates, as set forth in such Form of Election, from a
member of any registered national securities exchange or a commercial bank or
trust company in the United States; provided, that such certificates are in fact
delivered to the Exchange Agent by the time required in such guarantee of
delivery. Failure to deliver shares of NCF Common Stock covered by such a
guarantee of delivery within the time set forth on such guarantee shall be
deemed to invalidate any otherwise properly made Election, unless otherwise
determined by STI, in its sole discretion. As used herein, "Election Deadline"
means 5:00 p.m. on the date that is the day prior to the date of the NCF
Stockholders Meeting. NCF and STI shall cooperate to issue a press release
reasonably satisfactory to each of them announcing the date of the Election
Deadline not more than fifteen (15) business days before, and at least five (5)
business days prior to, the Election Deadline.
(e) Any NCF shareholder may, at any time prior to the Election
Deadline, change or revoke his or her Election by written notice received by the
Exchange Agent prior to the Election Deadline accompanied by a properly
completed and signed revised Form of Election. Subject to the terms of the
Exchange Agent Agreement, if STI shall determine in its reasonable discretion
that any Election is not properly made with respect to any shares of NCF Common
Stock, such Election shall be deemed to be not in effect, and the shares of NCF
Common Stock covered by such Election shall, for purposes hereof, be deemed to
be Non-Election Shares, unless a proper Election is thereafter timely made.
(f) Any NCF shareholder may, at any time prior to the Election
Deadline, revoke his or her Election by written notice received by the Exchange
Agent prior to the Election Deadline or by withdrawal prior to the Election
Deadline of his or her NCF Stock Certificate, or of the guarantee of delivery of
such certificates, previously deposited with the Exchange Agent. All Elections
shall be revoked automatically if the Exchange Agent is notified in writing by
STI or NCF that this Agreement has been terminated in accordance with Article
VIII.
(g) Subject to the terms of the Exchange Agent Agreement, STI, in the
exercise of its reasonable discretion, shall have the right to make all
determinations, not inconsistent with the terms of this Agreement, governing (A)
the validity of the Forms of Election and compliance by any NCF shareholder with
the Election procedures set forth herein,
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(B) the manner and extent to which Elections are to be taken into account in
making the determinations prescribed by Section 1.6, (C) the issuance and
delivery of STI Stock Certificates into which shares of NCF Common Stock are
converted in the Merger and (D) the method of payment of cash for shares of NCF
Common Stock converted into the right to receive the Cash Consideration and cash
in lieu of fractional shares of STI Common Stock where the holder of the
applicable NCF Stock Certificate has no right to receive whole shares of STI
Common Stock.
2.2 Deposit of Merger Consideration. At or prior to the Effective Time, STI
will deposit with the Exchange Agent (i) certificates representing the number of
shares of STI Common Stock sufficient to deliver in a timely manner, and STI
shall instruct the Exchange Agent to timely deliver, the aggregate Stock
Consideration, and (ii) immediately available funds equal to the aggregate Cash
Consideration and STI shall instruct the Exchange Agent to timely pay the Cash
Consideration, and cash in lieu of fractional shares of STI Common Stock where
the holder of the applicable NCF Stock Certificate has no right to receive whole
shares of STI Common Stock.
2.3 Delivery of Merger Consideration.
(a) As soon as reasonably practicable, but no later than seven
business days after the Effective Time, the Exchange Agent shall mail to each
holder of record of a NCF Stock Certificate(s) which immediately prior to the
Effective Time represented outstanding shares of NCF Common Stock whose shares
were converted into the right to receive the Merger Consideration pursuant to
Section 1.4 and any cash in lieu of fractional shares of STI Common Stock to be
issued or paid in consideration therefor who did not complete an Election Form,
(i) a letter of transmittal (which shall specify that delivery shall be
effected, and risk of loss and title to NCF Stock Certificate(s) shall pass,
only upon delivery of NCF Stock Certificate(s) (or affidavits of loss in lieu of
such certificates) (the "Letter of Transmittal") to the Exchange Agent and shall
be substantially in such form and have such other provisions as shall be
prescribed by the Exchange Agent Agreement and (ii) instructions for use in
surrendering NCF Stock Certificate(s) in exchange for the Merger Consideration
and any cash in lieu of fractional shares of STI Common Stock to be issued or
paid in consideration therefor upon surrender of such certificate in accordance
with Section 2.3(f) and any dividends or distributions to which such holder is
entitled pursuant to Section 2.3(c).
(b) Upon surrender to the Exchange Agent of its NCF Stock Certificate
or Certificates, accompanied by a properly completed Form of Election or a
properly completed Letter of Transmittal, a holder of NCF Common Stock will be
entitled to receive promptly after the Effective Time the Merger Consideration
(elected or deemed elected by it, subject to Sections 1.4 and 1.6) in respect of
the shares of NCF Common Stock represented by its NCF Stock Certificate or
Certificates. Until so surrendered, each such NCF Stock Certificate shall
represent after the Effective Time, for all purposes, only the right to receive
the Merger Consideration and any cash in lieu of fractional shares of STI Common
Stock to be issued or paid in consideration therefor upon surrender of such
certificate in accordance with, and any dividends or distributions to which such
holder is entitled pursuant to, this Article II.
(c) No dividends or other distributions with respect to STI Common
Stock with a record date after the Effective Time shall be paid to the holder of
any unsurrendered NCF
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Stock Certificate with respect to the shares of STI Common Stock represented
thereby, and no cash payment in lieu of fractional shares shall be paid to any
such holder pursuant to subsection (f) below, and all such dividends, other
distributions and cash in lieu of fractional shares of STI Common Stock shall be
paid by STI to the Exchange Agent and shall be included in the Exchange Fund, in
each case until the surrender of such NCF Stock Certificate in accordance with
this Article II. Subject to the effect of applicable abandoned property, escheat
or similar laws, following surrender of any such NCF Stock Certificate there
shall be paid to the Holder of a STI Stock Certificate representing whole shares
of STI Common Stock issued in exchange therefor, without interest, (i) at the
time of such surrender, the amount of dividends or other distributions with a
record date after the Effective Time theretofore paid with respect to such whole
shares of STI Common Stock and the amount of any cash payable in lieu of a
fractional share of STI Common Stock to which such Holder is entitled pursuant
to subsection (f), and (ii) at the appropriate payment date, the amount of
dividends or other distributions with a record date after the Effective Time but
prior to such surrender and with a payment date subsequent to such surrender
payable with respect to such whole shares of STI Common Stock. STI shall make
available to the Exchange Agent cash for these purposes, if necessary.
(d) If any portion of the Merger Consideration is to be paid to a
person other than the person in whose name a NCF Stock Certificate so
surrendered is registered, it shall be a condition to such payment that such NCF
Stock Certificate shall be properly endorsed or otherwise be in proper form for
transfer and the person requesting such payment shall pay to the Exchange Agent
any transfer or other similar Taxes (as defined herein) required as a result of
such payment to a person other than the registered holder of such NCF Stock
Certificate, or establish to the reasonable satisfaction of the Exchange Agent
that such Tax has been paid or is not payable. The Exchange Agent (or,
subsequent to the first anniversary of the Effective Time, STI) shall be
entitled to deduct and withhold from the Merger Consideration (including cash in
lieu of fractional shares of STI Common Stock) otherwise payable pursuant to
this Agreement to any holder of NCF Common Stock such amounts as the Exchange
Agent or STI, as the case may be, is required to deduct and withhold under the
Code, or any provision of state, local or foreign Tax law, with respect to the
making of such payment. To the extent the amounts are so withheld by the
Exchange Agent or STI, as the case may be, such withheld amounts shall be
treated for all purposes of this Agreement as having been paid to the holder of
shares of NCF Common Stock in respect of whom such deduction and withholding was
made by the Exchange Agent or STI, as the case may be.
(e) After the Effective Time there shall be no further registration or
transfers of shares of NCF Common Stock. If after the Effective Time, NCF Stock
Certificates are presented to the Surviving Corporation, they shall be cancelled
and exchanged for the Merger Consideration in accordance with the procedures set
forth in this Article II.
(f) No STI Stock Certificates representing fractional shares of STI
Common Stock shall be issued upon the surrender for exchange of NCF Stock
Certificates; no dividend or distribution by STI shall relate to such fractional
share interests; and such fractional share interests will not entitle the owner
thereof to vote or to any rights as a shareholder of STI. In lieu of any such
fractional shares, each Holder of a NCF Stock Certificate who would otherwise
have been entitled to receive a fractional share interest in exchange for such
NCF Stock Certificate shall receive from the Exchange Agent an amount in cash
equal to the product obtained by
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multiplying (A) the fractional share interest to which such Holder (after taking
into account all shares of NCF Common Stock held by such holder at the Effective
Time) would otherwise be entitled by (B) the STI Closing Price. Notwithstanding
any other provision contained in this Agreement, funds utilized to acquire
fractional shares as aforesaid shall be furnished by STI on a timely basis and
shall in no event be derived from or diminish the Cash Consideration available
for distribution as part of the Merger Consideration.
(g) At any time following the first anniversary of the Effective Time,
STI shall be entitled to require the Exchange Agent to deliver to it any
remaining portion of the Merger Consideration not distributed to holders of NCF
Stock Certificates that was deposited with the Exchange Agent at the Effective
Time (the "Exchange Fund") (including any interest received with respect thereto
and other income resulting from investments by the Exchange Agent, as directed
by STI), and holders shall be entitled to look only to STI (subject to abandoned
property, escheat or other similar laws) with respect to the Merger
Consideration, any cash in lieu of fractional shares of STI Common Stock and any
dividends or other distributions with respect to STI Common Stock payable upon
due surrender of their NCF Stock Certificates, without any interest thereon.
Notwithstanding the foregoing, neither STI nor the Exchange Agent shall be
liable to any holder of a NCF Stock Certificate for Merger Consideration (or
dividends or distributions with respect thereto) or cash from the Exchange Fund
in each case delivered to a public official pursuant to any applicable abandoned
property, escheat or similar law.
(h) In the event any NCF Stock Certificates shall have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the Person
claiming such NCF Stock Certificate(s) to be lost, stolen or destroyed and, if
required by STI or the Exchange Agent, the posting by such person of a bond in
such sum as STI may reasonably direct as indemnity against any claim that may be
made against it or the Surviving Corporation with respect to such NCF Stock
Certificate(s), the Exchange Agent will issue the Merger Consideration
deliverable in respect of the shares of NCF Common Stock represented by such
lost, stolen or destroyed NCF Stock Certificates.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF STI
Prior to the execution and delivery of this Agreement, STI has delivered to
NCF a schedule (the "STI Disclosure Schedule") setting forth, among other
things, items the disclosure of which is necessary or appropriate either in
response to an express disclosure requirement contained in a provision hereof or
as an exception to one or more of STI's representations or warranties contained
in this Article III, or to one or more of STI's covenants contained in Section
5.2 (provided that such Disclosure Schedule shall indicate the Section of this
Agreement to which items disclosed therein apply). No representation or warranty
of STI contained in this Article III (other than the representations and
warranties in Sections 3.1(a), 3.2, 3.3(a), 3.3(b)(i), 3.7, 3.8(a) and 3.23,
which shall be true and correct in all material respects) shall be deemed untrue
or incorrect, and STI shall not be deemed to have breached a representation or
warranty, or failed to satisfy a related condition, as a consequence of the
existence or absence of any fact, circumstance or event unless such fact,
circumstance or event, individually or taken together
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with all other facts, circumstances or events inconsistent with any
representation or warranty contained in Article III, has had or is reasonably
likely to have a Material Adverse Effect (as defined below) on STI. As used in
this Agreement, the term "Material Adverse Effect" means, with respect to STI or
NCF, as the case may be, an effect which (i) is materially adverse to the
business, results of operations or financial condition of such party and its
Subsidiaries taken as a whole, other than any such effect to the extent
attributable to or resulting from (u) any change in banking or similar laws,
rules or regulations of general applicability or interpretations thereof by
courts or governmental authorities, (v) any change in generally accepted
accounting principles, regulatory accounting principles or interpretations
thereof, in each case which affects banks or their holding companies generally,
(w) any change that arises out of this Agreement (including the announcement
thereof) or in compliance with the terms and conditions hereof, (x) events,
conditions or trends in economic, business or financial conditions affecting
banks or their holding companies generally, including, without limitation,
changes in prevailing interest rates, (y) changes in national or international
political or social conditions including the engagement by the United States in
hostilities, whether or not pursuant to the declaration of a national emergency
or war, or the occurrence of any military or terrorist attack upon or within the
United States, or any of its territories, possessions or diplomatic or consular
offices or upon any military installation, equipment or personnel of the United
States (except to the extent that any such change affects such party in a
disproportionate manner) or (z) any change in the stock price or trading volume
of such party, or (ii) materially impairs the ability of such party and its
Subsidiaries to consummate the transactions contemplated hereby.
Except as set forth in the STI Disclosure Schedule, and subject to the
standard set forth above, STI hereby represents and warrants to NCF as set forth
in Sections 3.1 through 3.24:
3.1 Corporate Organization
(a) STI is a corporation duly organized, validly existing and in good
standing under the laws of the State of Georgia. STI is a bank holding company
registered under the Bank Holding Company Act of 1956, as amended (the "BHC
Act"), which has duly elected to become, and meets the applicable requirements
for qualification as, a financial holding company pursuant to Section 4(l) of
the BHC Act. True and complete copies of the STI Articles and Bylaws of STI, as
in effect as of the date of this Agreement, have previously been made available
by STI to NCF.
(b) STI has the corporate power and authority to own or lease all of
its properties and assets and to carry on its business as it is now being
conducted, and is duly licensed or qualified to do business in each jurisdiction
in which the nature of the business conducted by it or the character or location
of the properties and assets owned or leased by it makes such licensing or
qualification necessary.
(c) SunTrust Bank ("SunTrust Bank") is a commercial bank duly
organized, validly existing and in good standing under the laws of the State of
Georgia. Each STI Subsidiary (i) is duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation or organization,
(ii) is duly licensed or qualified to do business in all jurisdictions (whether
federal, state, local or foreign) where its ownership or leasing of property or
the conduct of its business requires it to be so licensed or qualified and (iii)
has all requisite
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corporate or other power and authority to own or lease its properties and assets
and to carry on its business as now conducted. The articles of incorporation,
by-laws and similar governing documents of each Subsidiary of STI, copies of
which have previously been made available to NCF, are true, complete and correct
copies of such documents as of the date of this Agreement. The deposit accounts
of SunTrust Bank are insured by the Federal Deposit Insurance Corporation (the
"FDIC") through the Bank Insurance Fund or the Savings Association Insurance
Fund to the fullest extent permitted by law, and all premiums and assessments
required to be paid in connection therewith have been paid when due. As used in
this Agreement, the word "Subsidiary" when used with respect to any party means
any bank, savings bank, corporation, partnership, limited liability company, or
other organization, whether incorporated or unincorporated, which is
consolidated with such party for financial reporting purposes under GAAP (as
defined herein).
(d) The minute books of STI and each of its Subsidiaries contain true
and correct records of all meetings and other corporate actions held or taken
since December 31, 2000 of their respective shareholders and Boards of Directors
(including committees of their respective Boards of Directors).
3.2 Capitalization
(a) As of April 30, 2004, the authorized capital stock of STI consists
of seven hundred fifty million (750,000,000) shares of STI Common Stock, of
which 282,423,271 shares were issued and outstanding, and fifty million
(50,000,000) shares of preferred stock, no par value per share (the "STI
Preferred Stock" and, together with the STI Common Stock, the "STI Capital
Stock"), of which no shares were issued and outstanding or reserved for
issuance. As of April 30, 2004, no more than 11,739,486 shares of STI Common
Stock were held in STI's treasury or by STI Subsidiaries. As of April 30, 2004,
no shares of STI Capital Stock were reserved for issuance except for 31,979,583
shares of STI Common Stock reserved for issuance upon the exercise of options to
purchase shares of STI Common Stock (each a "STI Stock Option") granted pursuant
to the equity-based compensation plans of STI (the "STI Stock Plans") as
identified in Section 3.2(a) of the STI Disclosure Schedule. All of the issued
and outstanding shares of STI Capital Stock have been duly authorized and
validly issued and are fully paid, nonassessable and free of preemptive rights,
with no personal liability attaching to the ownership thereof.
(b) As of the date of this Agreement, no bonds, debentures, notes or
other indebtedness having the right to vote on any matters on which shareholders
may vote ("Voting Debt") of STI are issued or outstanding.
(c) As of the date of this Agreement, except for (i) this Agreement,
and (ii) the rights under the STI Stock Plans which represented, as of April 30,
2004, the right to acquire up to an aggregate of 17,467,179 shares of STI Common
Stock, there are no options, subscriptions, warrants, calls, rights, commitments
or agreements of any character to which STI or any Subsidiary is a party or by
which it or any such Subsidiary is bound obligating STI or any Subsidiary of STI
to issue, deliver or sell, or cause to be issued, delivered or sold, additional
shares of STI Capital Stock or any Voting Debt or stock appreciation rights of
STI or of any Subsidiary or obligating STI or any Subsidiary of STI to grant,
extend or enter into any such
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option, warrant, call, right, commitment or agreement. As of the date of this
Agreement, there are no outstanding contractual obligations of STI or any of its
Subsidiaries (A) to repurchase, redeem or otherwise acquire any shares of
capital stock of STI or any equity security of STI or its Subsidiaries or any
securities representing the right to purchase or otherwise receive any shares of
capital stock or any other equity security of STI or its Subsidiaries or (B)
pursuant to which STI or any of its Subsidiaries is or could be required to
register shares of STI Capital Stock or other securities under the Securities
Act of 1933, as amended (the "Securities Act"). The shares of STI Common Stock
to be issued pursuant to the Merger will be duly authorized and validly issued
and, at the Effective Time, all such shares will be fully paid and
nonassessable, and free of preemptive rights, with no personal liability
attaching to the ownership thereof.
(d) As of the date of this Agreement, except as disclosed in the STI
10-K, STI owns, directly or indirectly, all of the issued and outstanding shares
of capital stock or other equity ownership interests of each of the STI
Subsidiaries, free and clear of any liens, pledges, charges, encumbrances and
security interests whatsoever ("Liens"), and all of such shares or equity
ownership interests are duly authorized and validly issued and are fully paid,
nonassessable (subject to 12 U.S.C. ss. 55) and free of preemptive rights, with
no personal liability attaching to the ownership thereof. As of the date of this
Agreement, no STI Subsidiary has or is bound by any outstanding subscription,
option, warrant, call, commitment or agreement of any character calling for the
purchase of any shares of capital stock or any other equity security of STI or
its Subsidiaries or any securities representing the right to purchase or
otherwise receive any shares of capital stock or any other equity security of
STI or its Subsidiaries. As of the date of this Agreement and except as
disclosed in the STI 10-K (as defined in Section 3.6), neither STI nor any of
its Subsidiaries has any equity investment other than investments in wholly
owned Subsidiaries.
3.3 Authority; No Violation
(a) STI has full corporate power and authority to execute and deliver
this Agreement and, subject in the case of the consummation of the Merger to the
STI Shareholder Approval (as defined below), to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
approved by the Board of Directors of STI. The Board of Directors of STI
determined that the Merger is advisable and in the best interests of STI and its
shareholders and has directed that the approval of the issuance of STI Common
Stock pursuant to this Agreement be submitted to STI's shareholders and, except
for the approval of the shareholders of STI of the issuance of STI Common Stock
pursuant to this Agreement (the "STI Shareholder Approval"), no other corporate
proceedings on the part of STI are necessary to approve this Agreement and to
consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by STI and (assuming due authorization,
execution and delivery by NCF) constitutes valid and binding obligations of STI,
enforceable against STI in accordance with its terms (except as may be limited
by bankruptcy, insolvency, moratorium, reorganization or similar laws affecting
the rights of creditors generally and the availability of equitable remedies).
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(b) Neither the execution and delivery by STI of this Agreement nor
the consummation by STI of the transactions contemplated hereby, nor compliance
by STI with any of the terms or provisions hereof, will (i) violate any
provision of the STI Articles or Bylaws of STI or the governing documents of any
of its Subsidiaries or (ii) assuming that the consents and approvals referred to
in Section 3.4 are duly obtained, (x) violate any statute, code, ordinance,
rule, regulation, judgment, order, writ, decree or injunction applicable to STI,
any of its Subsidiaries or any of their respective properties or assets or (y)
violate, conflict with, result in a breach of any provision of or the loss of
any benefit under, constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, result in the termination
of or a right of termination or cancellation under, accelerate the performance
required by, or result in the creation of any Lien upon any of the respective
properties or assets of STI or any of its Subsidiaries under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, deed of trust,
license, lease, agreement or other instrument or obligation to which STI or any
of its Subsidiaries is a party, or by which they or any of their respective
properties or assets may be bound or affected.
3.4 Consents and Approvals. Except for (i) the filing of applications and
notices, as applicable, with the Board of Governors of the Federal Reserve
System (the "Federal Reserve Board") under the BHC Act and the Federal Reserve
Act, as amended, and approval of such applications and notices, (ii) the filing
of any required applications or notices with any other federal, state or foreign
banking agencies or banking regulatory authorities and approval of such
applications and notices (the "Other Regulatory Approvals"), (iii) the filing
with the Securities and Exchange Commission (the "SEC") of a Joint Proxy
Statement/Prospectus in definitive form relating to the meeting of NCF's and
STI's shareholders to be held in connection with this Agreement and the
transactions contemplated hereby (the "Joint Proxy Statement"), and of the
registration statement on Form S-4 (the "Form S-4") in which the Joint Proxy
Statement will be included as a prospectus, and declaration of effectiveness of
the Form S-4, (iv) the filing of the Georgia Certificate of Merger with the
Georgia Secretary pursuant to the GBCC and the filing of Tennessee Articles of
Merger with the Tennessee Secretary pursuant to the TBCA, (v) any notices to or
filings with the Small Business Administration (the "SBA"), (vi) any notice or
filings under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), (vii) any consents, authorizations, approvals, filings
or exemptions in connection with compliance with the applicable provisions of
federal and state securities laws relating to the regulation of broker-dealers,
investment companies, investment advisers or transfer agents, and federal
commodities laws relating to the regulation of futures commission merchants and
the rules and regulations thereunder and of any applicable industry
self-regulatory organization ("SRO"), and the rules of the NYSE, or which are
required under consumer finance, mortgage banking and other similar laws, (viii)
such filings and approvals as are required to be made or obtained under the
securities or "Blue Sky" laws of various states in connection with the issuance
of the shares of STI Common Stock pursuant to this Agreement, (ix) the STI
Shareholder Approval, (x) such applications, filings, authorizations, approvals
and orders as may be required under the laws of any state or the federal laws of
the United States in respect of NCF's insurance business, and (xi) approval of
the listing of STI Common Stock to be issued in the Merger on the NYSE, no
consents or approvals of or filings or registrations with any court,
administrative agency or commission or other governmental authority or
instrumentality (each a "Governmental Entity") or with any third party are
necessary in connection with (A) the
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execution and delivery by STI of this Agreement and (B) the consummation by STI
of the Merger and the other transactions contemplated hereby.
3.5 Reports. STI and each of its Subsidiaries have timely filed all
reports, registrations and statements, together with any amendments required to
be made with respect thereto, that they were required to file since January 1,
2000 with (i) the Federal Reserve Board, (ii) the Federal Deposit Insurance
Corporation, (iii) any state regulatory authority (each a "State Regulator"),
(iv) the Office of the Comptroller of the Currency (the "OCC"), (v) the SEC,
(vi) any SRO and (vii) the Office of Thrift Supervision (the "OTS")
(collectively "Regulatory Agencies"), and have paid all fees and assessments due
and payable in connection therewith. Except for normal examinations conducted by
a Regulatory Agency in the ordinary course of the business of STI and its
Subsidiaries, no Regulatory Agency has initiated any proceeding or, to the best
knowledge of STI, investigation into the business or operations of STI or any of
its Subsidiaries since January 1, 2000. There is no unresolved violation,
criticism, or exception by any Regulatory Agency with respect to any report or
statement relating to any examinations of STI or any of its Subsidiaries.
3.6 Financial Statements. STI has previously made available to NCF true and
correct copies of (i) the consolidated balance sheets of STI and its
Subsidiaries as of December 31, 2002 and 2003 and the related consolidated
statements of income and shareholders' equity and cash flows for the fiscal
years ended December 31, 2001 through 2003, inclusive, as reported in STI's
Annual Report on Form 10-K for the fiscal year ended December 31, 2003 (the "STI
10-K"), filed with the SEC under the Exchange Act and accompanied by the audit
report of PricewaterhouseCoopers LLP ("PWC"), independent public accountants
with respect to STI, and (ii) the unaudited consolidated balance sheet of STI
and its Subsidiaries as of March 31, 2003 and 2004, and the related consolidated
statements of income, shareholders' equity and cash flows for the three-month
period then ended, as reported in STI's Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 2004 (the "STI 10-Q"). The December 31, 2003
consolidated balance sheet of STI (including the related notes, where
applicable) fairly presents in all material respects the consolidated financial
position of STI and its Subsidiaries as of the date thereof, and the other
financial statements referred to in this Section 3.6 (including the related
notes, where applicable) fairly present in all material respects, and the
financial statements to be filed by STI with the SEC after the date of this
Agreement will fairly present in all material respects (subject, in the case of
the unaudited financial statements, to recurring audit adjustments normal in
nature and amount), the results of the consolidated operations and changes in
shareholders' equity and consolidated financial position of STI and its
Subsidiaries for the respective fiscal periods or as of the respective dates
therein set forth; each of such financial statements (including the related
notes, where applicable) complies, and the financial statements to be filed by
STI with the SEC after the date of this Agreement will comply, with applicable
accounting requirements and with the published rules and regulations of the SEC
with respect thereto; and each of such financial statements (including the
related notes, where applicable) has been, and the financial statements to be
filed by STI with the SEC after the date of this Agreement will be, prepared in
accordance with accounting principles generally accepted in the United States
("GAAP") consistently applied during the periods involved, except as indicated
in the notes thereto or, in the case of unaudited financial statements, as
permitted by Form 10-Q. The books and records of STI and its Subsidiaries have
been, and are being, maintained in accordance with applicable legal and
accounting requirements and reflect only actual
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transactions. PWC has not resigned or been dismissed as independent public
accountants of STI as a result of or in connection with any disagreements with
STI on a matter of accounting principles or practices, financial statement
disclosure or auditing scope or procedure.
3.7 Broker's Fees. Except for ▇▇▇▇▇▇▇ Sachs & Co. and SunTrust ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, neither STI nor any STI Subsidiary nor any of their respective
officers or directors has employed any broker or finder or incurred any
liability for any broker's fees, commissions or finder's fees in connection with
the Merger or related transactions contemplated by this Agreement.
3.8 Absence of Certain Changes or Events
(a) Except as disclosed in any STI Report (defined below) filed with
the SEC prior to the date of this Agreement, since December 31, 2003, there has
been no change or development or combination of changes or developments which,
individually or in the aggregate, has had, or is reasonably likely to have, a
Material Adverse Effect on STI.
(b) Since December 31, 2003 through and including the date of this
Agreement, STI and its Subsidiaries have carried on their respective businesses
in the ordinary course of business consistent with their past practices.
(c) Since December 31, 2003 through the date hereof neither STI nor
any of its Subsidiaries has taken any action which would, if taken after the
date hereof, constitute a breach of Section 5.2.
3.9 Legal Proceedings.
(a) Neither STI nor any of its Subsidiaries is a party to any, and
there are no pending or, to the best of STI's knowledge, threatened, legal,
administrative, arbitral or other proceedings, claims, actions or governmental
or regulatory investigations of any nature (in each case, other than with
respect to Taxes) against STI or any of its Subsidiaries or challenging the
validity or propriety of the transactions contemplated by this Agreement.
(b) There is no injunction, order, judgment, decree, or regulatory
restriction (other than those that apply to similarly situated bank holding
companies or banks) imposed upon STI, any of its Subsidiaries or the assets of
STI or any of its Subsidiaries.
3.10 Taxes
(a) Each of STI and its Subsidiaries has duly and timely filed all
federal, state, foreign and local information returns and Tax returns required
to be filed by it (all such returns being accurate and complete in all material
respects) and has duly and timely paid or made provision for the payment of all
Taxes that have been incurred or are due or claimed to be due from it by
federal, state, foreign or local taxing authorities other than Taxes or other
governmental charges that are not yet due and payable or are being contested in
good faith, have not been finally determined and have been adequately reserved
against under GAAP. The federal income Tax returns of STI and its Subsidiaries
have been examined by the IRS for all years to and including 1998 and any
liability with
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respect thereto has been satisfied or any liability with respect to deficiencies
asserted as a result of such examination is covered by reserves that are
adequate under GAAP. There are no material disputes pending, or claims or
deficiencies asserted, for Taxes or assessments upon STI or any of its
Subsidiaries for which STI does not have reserves that are adequate under GAAP.
Neither STI nor any of its Subsidiaries is a party to or is bound by any
material Tax sharing, allocation or indemnification agreement or arrangement
(other than such an agreement or arrangement exclusively between or among STI
and its Subsidiaries). Within the past five years, neither STI nor any of its
Subsidiaries has been a "distributing corporation" or a "controlled corporation"
in a distribution intended to qualify under Section 355(a) of the Code.
(b) As used in this Agreement, the term "Tax" or "Taxes" means (i) all
federal, state, local, and foreign income, excise, gross receipts, gross income,
premiums, ad valorem, profits, gains, property, capital, sales, transfer, use,
payroll, employment, severance, withholding, duties, intangibles, franchise,
backup withholding, and other taxes, charges, levies or like assessments
together with all penalties and additions to tax and interest thereon and (ii)
any liability for Taxes described in the foregoing clause (i) under Treasury
Regulation Section 1.1502-6 (or any similar provision of state, local or foreign
law).
3.11 SEC Reports. STI has previously made available to NCF an accurate and
complete copy of each (a) final registration statement, prospectus, report,
schedule and definitive proxy statement filed since January 1, 2001 by STI with
the SEC pursuant to the Securities Act or the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and prior to the date hereof and (b)
communication mailed by STI to its shareholders since January 1, 2001 and prior
to the date hereof. STI has timely filed all required reports, schedules,
registration statements and other documents with the SEC since January 1, 2001
(the "STI Reports"). As of their respective dates of filing with the SEC (or, if
amended or superseded by a filing prior to the date hereof, as of the date of
such filing), the STI Reports complied with the requirements of the Securities
Act or the Exchange Act, as the case may be, and the rules and regulations of
the SEC thereunder applicable to such STI Reports, and none of the STI Reports
when filed contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. No executive officer of STI has failed in any respect to make
the certifications required of him or her under Section 302 or 906 of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and no enforcement action has been initiated against
STI by the SEC relating to disclosures contained in any STI Report.
3.12 Compliance with Applicable Law. STI and each of its Subsidiaries:
(a) is in compliance, in the conduct of its business, with all
applicable federal, state, local and foreign statutes, laws, regulations,
ordinances, rules, judgments, orders or decrees applicable thereto or to the
employees conducting such businesses, including the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002,
the Equal Credit Opportunity Act, the Fair Housing Act, the Community
Reinvestment Act, the Home Mortgage Disclosure Act, the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, all other applicable fair
lending laws or other laws relating to discrimination and the Bank Secrecy Act,
and, as of the date hereof, STI, and each other depository Subsidiary of STI,
has a Community Reinvestment Act rating of "satisfactory" or better;
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(b) has all permits, licenses, franchises, certificates, orders, and
approvals of, and has made all filings, applications, and registrations with,
Governmental Entities that are required in order to permit STI and each of its
Subsidiaries to carry on its business as currently conducted;
(c) has, since December 31, 2000, received no notification or
communication from any Governmental Entity (i) asserting that STI or any of its
Subsidiaries is not in compliance with any statutes, regulations or ordinances,
(ii) threatening to revoke any permit, license, franchise, certificate of
authority or other governmental authorization, or (iii) threatening or
contemplating revocation or limitation of, or which would have the effect of
revoking or limiting, FDIC deposit insurance; and
(d) is not a party to or subject to any order, decree, agreement,
memorandum of understanding or similar arrangement with, or a commitment letter,
supervisory letter or similar submission to, and has not adopted any board
resolution at the request of, any Governmental Entity charged with the
supervision or regulation of depository institutions or engaged in the insurance
of deposits or the supervision or regulation of STI or any of its Subsidiaries
and neither STI nor any of its Subsidiaries has been advised by any such
Governmental Entity that such Governmental Entity is contemplating issuing or
requesting (or is considering the appropriateness of issuing or requesting) any
such order, decree, agreement, memorandum of understanding, commitment letter,
supervisory letter or similar submission or request.
3.13 Ownership of NCF Common Stock. Neither STI nor any of its affiliates
or associates (as such terms are defined under the Exchange Act), (a)
beneficially owns, directly or indirectly, or (b) is a party to any agreement,
arrangement or understanding for the purpose of acquiring, holding, voting or
disposing of, in each case, shares of NCF Common Stock representing in the
aggregate more than 5% of the outstanding shares of NCF Common Stock (other than
Trust Account Shares and DPC Shares).
3.14 Interest Rate Risk Management Instruments
(a) All Derivative Transactions (as defined below) entered into by STI
or any of its Subsidiaries or for the account of any of its customers were
entered into in accordance with applicable laws, rules, regulations and
regulatory policies of any Governmental Entity, and in accordance with the
investment, securities, commodities, risk management and other policies,
practices and procedures employed by STI and its Subsidiaries, and were entered
into with counterparties believed at the time to be financially responsible and
able to understand (either alone or in consultation with their advisers) and to
bear the risks of such Derivative Transactions. STI and its Subsidiaries have
duly performed all of their obligations under the Derivative Transactions to the
extent that such obligations to perform have accrued, and, to the knowledge of
STI, there are no breaches, violations or defaults or allegations or assertions
of such by any party thereunder.
(b) For purposes of this Agreement, the term "Derivative Transaction"
means any swap transaction, option, warrant, forward purchase or sale
transaction, futures transaction, cap transaction, floor transaction or collar
transaction relating to one or more currencies,
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commodities, bonds, equity securities, loans, interest rates, catastrophe
events, weather-related events, credit-related events or conditions or any
indexes, or any other similar transaction (including any option with respect to
any of these transactions) or combination of any of these transactions,
including collateralized mortgage obligations or other similar instruments or
any debt or equity instruments evidencing or embedding any such types of
transactions, and any related credit support, collateral or other similar
arrangements related to such transactions.
3.15 Labor Relations. Neither STI nor any of its Subsidiaries is a party
to, or is bound by, any collective bargaining agreement, contract or other
agreement or understanding with a labor union or labor organization, nor is STI
or any of its Subsidiaries the subject of any proceeding asserting that STI or
any such Subsidiary has committed an unfair labor practice or seeking to compel
STI or such Subsidiary to bargain with any labor organization as to wages or
conditions of employment, nor is there any strike involving STI or any of its
Subsidiaries pending or, to the knowledge of STI, threatened, nor is STI aware
of any activity involving its or any of its Subsidiaries' employees seeking to
certify a collective bargaining unit or engaging in any other organizational
activity.
3.16 Environmental Matters
(a) Each of STI and its Subsidiaries and, to the knowledge of STI,
each of the Participation Facilities and the Loan Properties (each as defined
below, for so long as they were Loan Properties or Participation Facilities) are
and have been in compliance with all applicable federal, state and local laws
including common law, regulations and ordinances and with all applicable decrees
and orders, in each case relating to pollution or the discharge of, or exposure
to Hazardous Materials (as defined below) in the environment or workplace
("Environmental Laws");
(b) There is no suit, claim, action or proceeding pending or, to the
knowledge of STI, threatened, before any Governmental Entity or other forum in
which STI, any of its Subsidiaries, and, to the knowledge of STI, any
Participation Facility or any Loan Property, has been or, with respect to
threatened proceedings, is reasonably likely to be, named as a defendant (i) for
alleged noncompliance (including by any predecessor) with any Environmental Laws
or (ii) relating to the release, threatened release or exposure of any Hazardous
Material whether or not occurring at or on a site owned, leased or operated by
STI or any of its Subsidiaries, any Participation Facility or any Loan Property;
and
(c) To the knowledge of STI, during the period of: (i) STI's or any of
its Subsidiaries' ownership or operation of any of their respective current or
former properties, (ii) STI's or any of its Subsidiaries' participation in the
management of any Participation Facility, or (iii) STI's or any of its
Subsidiaries' interest in a Loan Property, there has been no release of
Hazardous Materials in, on, under or
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affecting any such property, which could reasonably be expected to require
remediation pursuant to any Environmental Law. To the knowledge of STI, prior to
the period of (x) STI's or any of its Subsidiaries' ownership or operation of
any of their respective current or former properties, (y) STI's or any of its
Subsidiaries' participation in the management of any Participation Facility, or
(z) STI's or any of its Subsidiaries' interest in a Loan Property, there was no
release or threatened release of Hazardous Materials in, on, under or affecting
any such property, Participation Facility or Loan Property, which could
reasonably be expected to require remediation pursuant to any Environmental Law.
(d) The following definitions apply for purposes of this Agreement:
(i) "Hazardous Materials" means any chemicals, pollutants, contaminants, wastes,
toxic substances, petroleum or other regulated substances or materials; (ii)
"Loan Property" means any property in which STI or any of its Subsidiaries holds
a security interest and, where required by the context, said term means the
owner or operator of such property; and (iii) "Participation Facility" means any
facility in which STI or any of its Subsidiaries participates in the management
and, where required by the context, said term means the owner or operator of
such property.
3.17 Approvals; Reorganization. As of the date of this Agreement, STI (a)
knows of no reason why (i) all regulatory approvals from any Governmental Entity
required for the consummation of the transactions contemplated by this Agreement
should not be obtained on a timely basis or (ii) the opinion of tax counsel
referred to in Section 7.3(c) should not be obtained on a timely basis and (b)
has no reason to believe that the Merger will fail to qualify as a
reorganization under Section 368(a) of the Code.
3.18 Property. Each of STI and its Subsidiaries has good title free and
clear of all Liens to all of the properties and assets, real and personal,
tangible or intangible, which are reflected on the consolidated statement of
financial condition of STI as of March 31, 2004 or acquired after such date,
except (a) Liens for taxes not yet due and payable, (b) pledges to secure
deposits and other Liens incurred in the ordinary course of business, (c)
mechanics', materialmen's, workmen's, repairmen's, warehousemen's, carrier's and
other similar Liens arising in the ordinary course of business, or (d) Liens
that do not interfere in any material respect with the current use of such
property or asset. All leases pursuant to which STI or any Subsidiary of STI, as
lessee, leases real or personal property are valid and enforceable against STI
in accordance with their respective terms and neither STI nor any of its
Subsidiaries nor, to the knowledge of STI, any other party thereto is in default
thereunder.
3.19 Intellectual Property
(a) To the knowledge of STI, STI and its Subsidiaries own or have a
valid license to use all STI Intellectual Property (as defined below), free and
clear of all Liens, royalty or other payment obligations (except for royalties
or payments with respect to off-the-shelf Software at standard commercial
rates). To the knowledge of STI, STI Intellectual Property constitutes all of
the Intellectual Property necessary to carry on the business of STI and its
Subsidiaries as currently conducted. STI Intellectual Property owned by STI or
any of its Subsidiaries, and to the knowledge of STI, all other STI Intellectual
Property, is valid and has not been cancelled, forfeited, expired or abandoned,
and neither STI nor any of its Subsidiaries has received notice challenging the
validity or enforceability of STI Intellectual Property. To the knowledge of
STI, the conduct of the business of STI and its Subsidiaries does not violate,
misappropriate or infringe upon the Intellectual Property rights of any third
party. The consummation of the Merger will not result in the loss or impairment
of the right of STI or any of its Subsidiaries to own or use any of STI
Intellectual Property.
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(b) For purposes of this Agreement, the term "Intellectual Property"
means (i) trademarks, service marks, trade names, Internet domain names,
designs, logos, slogans, and general intangibles of like nature, together with
all goodwill, registrations and applications related to the foregoing; (ii)
patents and industrial designs (including any continuations, divisionals,
continuations-in-part, renewals, reissues, and applications for any of the
foregoing); (iii) copyrights (including any registrations and applications for
any of the foregoing); (iv) computer programs, whether in source code or object
code form (including any and all software implementation of algorithms, models
and methodologies), databases and compilations (including any and all data and
collections of data), and all documentation (including user manuals and training
materials) related to the foregoing (collectively, "Software"); and (v)
technology, trade secrets and other confidential information, know-how,
proprietary processes, formulae, algorithms, models, and methodologies. For
purposes of this Agreement, the term "STI Intellectual Property" means the
Intellectual Property used in or held for use in the conduct of the business of
STI or any of its Subsidiaries.
3.20 Administration of Fiduciary Accounts. STI and each of its Subsidiaries
has properly administered in all material respects all accounts for which it
acts as a fiduciary, including but not limited to accounts for which it serves
as a trustee, agent, custodian, personal representative, guardian, conservator
or investment advisor, in accordance with the terms of the governing documents
and applicable state and federal law and regulation and common law. Neither STI
nor any of its Subsidiaries nor any of their respective directors, officers or
employees has committed any breach of trust with respect to any such fiduciary
account, and the accountings for each such fiduciary account are true and
correct in all material respects and accurately reflect the assets of such
fiduciary account.
3.21 Information Supplied. None of the information supplied or to be
supplied by STI for inclusion or incorporation by reference in (i) the Form S-4
will, at the time the Form S-4 is filed with the SEC and at the time it becomes
effective under the Securities Act, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and (ii) the Joint
Proxy Statement will, at the date of mailing to shareholders and at the times of
the meetings of shareholders to be held in connection with the Merger, contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The Joint Proxy Statement will comply as to form in all material
respects with the requirements of the Exchange Act and the rules and regulations
of the SEC thereunder, except that no representation or warranty is made by STI
with respect to statements made or incorporated by reference therein based on
information supplied by NCF for inclusion or incorporation by reference in the
Joint Proxy Statement.
3.22 Internal Controls. The records, systems, controls, data and
information of STI and its Subsidiaries are recorded, stored, maintained and
operated under means (including any electronic, mechanical or photographic
process, whether computerized or not) that are under the exclusive ownership and
direct control of STI or its Subsidiaries or accountants (including all means of
access thereto and therefrom). Since December 31, 2002, STI and its Subsidiaries
have devised and maintain a system of internal accounting controls sufficient to
provide reasonable assurances regarding the reliability of financial reporting
and the preparation of financial
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statements in accordance with GAAP. STI (i) has designed disclosure controls and
procedures to ensure that material information relating to STI, including its
consolidated Subsidiaries, is made known to the management of STI by others
within those entities, and (ii) has disclosed, based on its most recent
evaluation prior to the date hereof, to STI's auditors and the audit committee
of STI's Board of Directors (x) any significant deficiencies in the design or
operation of internal controls which could adversely affect in any material
respect STI's ability to record, process, summarize and report financial data
and have identified for STI's auditors any material weaknesses in internal
controls and (y) any fraud, whether or not material, that involves management or
other employees who have a significant role in STI's internal controls. STI has
made available to NCF a summary of any such disclosure made by management to
STI's auditors and audit committee since January 1, 2002. STI has initiated its
process of compliance with Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and
expects to be in full compliance therewith by the mandated compliance date.
3.23 Opinion of STI Financial Advisor. STI has received the opinion of its
financial advisor, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., dated the date of this Agreement, to the
effect that, as of the date thereof and based upon and subject to the matters
set forth therein, the Merger Consideration is fair, from a financial point of
view, to STI.
3.24 Investment Adviser Subsidiaries; Funds; Clients
(a) For purposes of this Agreement, a "STI Advisory Entity" means, if
applicable, STI and any of its Subsidiaries that provides investment management,
investment advisory or sub-advisory services to any person (including management
and advice provided to separate accounts and participation in wrap fee
programs); "STI Advisory Contract" means each STI contract for such services
provided by a STI Advisory Entity; "STI Advisory Client" means each party to a
STI Advisory Contract other than the applicable STI Advisory Entity; "STI Fund
Client" means each STI Advisory Client that is required to be registered as an
investment company under the Investment Company Act; and "Sponsored" means, when
used with reference to any STI Fund Client or NCF Fund Client (as defined in
Section 4.27), any such STI Fund Client or NCF Fund Client, as the case may be,
a majority of the officers of which are employees of STI or any of its
Subsidiaries or NCF or any of its Subsidiaries, as the case may be, or of which
STI or any of its Subsidiaries or NCF or any of its Subsidiaries, as the case
may be, holds itself out as the sponsor.
(b) Each Sponsored STI Fund Client and STI Advisory Entity (i) has
since January 1, 1999 operated and is currently operating in compliance with all
laws, regulations, rules, judgments, orders or rulings of any Governmental
Entity applicable to it or its business and (ii) has all permits, licenses,
exemptions, orders and approvals required for the operation of its business or
ownership of its properties and assets as presently conducted. There is no
action, suit, proceeding or investigation pending or, to the knowledge of STI,
threatened which would reasonably be expected to lead to the revocation,
amendment, failure to renew, limitation, suspension or restriction of any such
permits, licenses, exemptions, orders and approvals.
(c) Each STI Advisory Entity has been and is in compliance with each
STI Advisory Contract to which it is a party.
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(d) The accounts of each STI Advisory Client subject to ERISA have
been managed by the applicable STI Advisory Entity in compliance with the
applicable requirements of ERISA.
(e) Neither STI nor any of the STI Advisory Entities nor any
"affiliated person" (as defined in the Investment Company Act of 1940, as
amended (the "Investment Company Act")) of any of them is ineligible pursuant to
Section 9(a) or (b) of the Investment Company Act to serve as an investment
adviser (or in any other capacity contemplated by the Investment Company Act) to
a registered investment company; none of STI, any STI Advisory Entity or any
"person associated with an investment advisor" (as defined in the Investment
Advisers Act of 1940, as amended (the "Investment Advisers Act")) of any of them
is ineligible pursuant to Section 203 of the Investment Advisers Act to serve as
an investment advisor or as a person associated with a registered investment
advisor; and none of STI, any STI Advisory Entity or any "associated person" (as
defined in the Exchange Act) of any of them is ineligible pursuant to Section
15(b) of the Exchange Act to serve as a broker dealer or as an associated person
to a registered broker dealer.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
OF NCF
Prior to the execution and delivery of this Agreement, NCF has delivered to
STI a schedule (the "NCF Disclosure Schedule") setting forth, among other
things, items the disclosure of which is necessary or appropriate either in
response to an express disclosure requirement contained in a provision hereof or
as an exception to one or more of NCF's representations or warranties contained
in this Article IV, or to one or more of NCF's covenants contained in Section
5.1 (provided that such Disclosure Schedule shall indicate the Section of this
Agreement to which items disclosed therein apply). No representation or warranty
of NCF contained in this Article IV (other than the representations and
warranties in Sections 4.1(a), 4.2, 4.3(a) and (b)(i), 4.7, 4.8(a), 4.15 and
4.26 which shall be true and correct in all material respects) shall be deemed
untrue or incorrect, and NCF shall not be deemed to have breached a
representation or warranty, or failed to satisfy a related condition, as a
consequence of the existence or absence of any fact, circumstance or event
unless such fact, circumstance or event, individually or taken together with all
other facts, circumstances or events inconsistent with any representation or
warranty contained in Article IV, has had or is reasonably likely to have a
Material Adverse Effect on NCF. Except as set forth in the NCF Disclosure
Schedule, NCF hereby represents and warrants to STI as set forth in Sections 4.1
through 4.27.
4.1 Corporate Organization
(a) NCF is a corporation duly organized, validly existing and in good
standing under the laws of the State of Tennessee. NCF is a bank holding company
registered under the BHC Act. True and complete copies of the NCF Articles and
Bylaws of NCF, as in effect as of the date of this Agreement, have previously
been made available by NCF to STI.
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(b) NCF has the corporate power and authority to own or lease all of
its properties and assets and to carry on its business as it is now being
conducted, and is duly licensed or qualified to do business in each jurisdiction
in which the nature of the business conducted by it or the character or location
of the properties and assets owned or leased by it makes such licensing or
qualification necessary.
(c) National Bank of Commerce ("NBC") is a national banking
association duly organized, validly existing and in good standing. Each NCF
Subsidiary (i) is duly organized, validly existing and in good standing under
the laws of its jurisdiction of incorporation or organization, (ii) is duly
licensed or qualified to do business in all jurisdictions (whether federal,
state, local or foreign) where its ownership or leasing of property or the
conduct of its business requires it to be so licensed or qualified and (iii) has
all requisite corporate or other power and authority to own or lease its
properties and assets and to carry on its business as now conducted. The
articles of incorporation, by-laws and similar governing documents of each
Subsidiary of NCF, copies of which have previously been made available to STI,
are true, complete and correct copies of such documents as of the date of this
Agreement. The deposit accounts of NBC are insured by the FDIC through the Bank
Insurance Fund or the Savings Association Insurance Fund to the fullest extent
permitted by law, and all premiums and assessments required to be paid in
connection therewith have been paid when due. Section 4.1 of the NCF Disclosure
Schedule sets forth a true and current list of all Subsidiaries of NCF.
(d) The minute books of NCF and each of its Subsidiaries contain true
and correct records of all meetings and other corporate actions held or taken
since December 31, 2000 of their respective shareholders and Boards of Directors
(including committees of their respective Boards of Directors).
4.2 Capitalization
(a) As of the date of this Agreement, the authorized capital stock of
NCF consists of four hundred million (400,000,000) shares of NCF Common Stock,
of which 204,470,427 shares were issued and outstanding, and five million
(5,000,000) shares of preferred stock, no par value per share (the "NCF
Preferred Stock" and, together with the NCF Common Stock, the "NCF Capital
Stock"), of which no shares were issued and outstanding or reserved for
issuance. As of May 7, 2004, no shares of NCF Common Stock were held by NCF
Subsidiaries. As of the date hereof, no shares of NCF Capital Stock were
reserved for issuance except for 21,345,991 shares of NCF Common Stock reserved
for issuance upon the exercise of NCF Stock Options and/or settlement of NCF
Stock-Based Awards. All of the issued and outstanding shares of NCF Capital
Stock have been duly authorized and validly issued and are fully paid,
nonassessable and free of preemptive rights, with no personal liability
attaching to the ownership thereof. The names of the optionees, the date of
grant of each NCF Stock Option, the number of shares subject to each such
option, the expiration date of each such NCF Stock Option, and the price at
which each such option may be exercised under the NCF Stock Plans are set forth
in Section 4.2(a) of the NCF Disclosure Schedule.
(b) No Voting Debt of NCF is issued or outstanding. Since December 31,
2003, NCF has not issued any shares of NCF Capital Stock or any securities
convertible into or
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exercisable for any shares of NCF Capital Stock, other than as would be
permitted by Section 5.1(b) hereof.
(c) Except for (i) this Agreement, (ii) the rights under the NCF Stock
Plans which represented, as of May 7, 2004, the right to acquire up to an
aggregate of 14,506,982 shares of NCF Common Stock, and (iii) agreements entered
into and securities and other instruments issued after the date of this
Agreement as permitted by Section 5.1(b), there are no options, subscriptions,
warrants, calls, rights, commitments or agreements of any character to which NCF
or any Subsidiary is a party or by which it or any such Subsidiary is bound
obligating NCF or any Subsidiary of NCF to issue, deliver or sell, or cause to
be issued, delivered or sold, additional shares of NCF Capital Stock or any
Voting Debt or stock appreciation rights of NCF or of any Subsidiary or
obligating NCF or any Subsidiary to grant, extend or enter into any such option,
warrant, call, right, commitment or agreement. There are no outstanding
contractual obligations of NCF or any of its Subsidiaries (A) to repurchase,
redeem or otherwise acquire any shares of capital stock of NCF or any of its
Subsidiaries or any other equity security of NCF or its Subsidiaries or any
securities representing the right to purchase or otherwise receive any shares of
capital stock or any other equity security of NCF or its subsidiaries or (B)
pursuant to which NCF or any of its Subsidiaries is or could be required to
register shares of NCF Capital Stock or other securities under the Securities
Act, except any such contractual obligations entered into after the date hereof
as permitted by Section 5.1(b).
(d) Except as disclosed in the NCF 10-K (as defined below), NCF owns,
directly or indirectly, all of the issued and outstanding shares of capital
stock or other equity ownership interests of each of the NCF Subsidiaries, free
and clear of any Liens, and all of such shares or equity ownership interests are
duly authorized and validly issued and are fully paid, nonassessable (subject to
12 U.S.C. ss. 55) and free of preemptive rights, with no personal liability
attaching to the ownership thereof. No NCF Subsidiary has or is bound by any
outstanding subscription, option, warrant, call, commitment or agreement of any
character calling for the purchase of any shares of capital stock or any other
equity security of NCF or its subsidiaries or any securities representing the
right to purchase or otherwise receive any shares of capital stock or any other
equity security of NCF or its subsidiaries. As of the date of this Agreement and
except as set forth in the NCF 10-K (as defined below), neither NCF nor any of
its Subsidiaries has (i) any equity investment other than investments in wholly
owned Subsidiaries or (ii) any investment in real estate or real estate
development projects, other than assets classified as "other real estate owned."
4.3 Authority; No Violation
(a) NCF has full corporate power and authority to execute and deliver
this Agreement and, subject in the case of the consummation of the Merger to the
adoption of this Agreement by the requisite vote of the holders of NCF Common
Stock (the "NCF Shareholder Approval"), to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
approved by the Board of Directors of NCF. The Board of Directors of NCF
determined that the Merger is advisable and in the best interest of NCF and its
shareholders and has directed that this Agreement and the transactions
contemplated hereby be submitted to NCF's shareholders for adoption at a meeting
of such shareholders. Except for the NCF
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Shareholder Approval, no other corporate proceedings on the part of NCF are
necessary to approve this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by NCF and (assuming due authorization, execution and delivery by STI)
constitutes valid and binding obligations of NCF, enforceable against NCF in
accordance with its terms (except as may be limited by bankruptcy, insolvency,
moratorium, reorganization or similar laws affecting the rights of creditors
generally and the availability of equitable remedies).
(b) Neither the execution and delivery by NCF of this Agreement nor
the consummation by NCF of the transactions contemplated hereby, nor compliance
by NCF with any of the terms or provisions hereof, will (i) violate any
provision of the NCF Articles or Bylaws of NCF or the governing documents of any
of its Subsidiaries or (ii) assuming that the consents and approvals referred to
in Section 4.4 are duly obtained, (x) violate any statute, code, ordinance,
rule, regulation, judgment, order, writ, decree or injunction applicable to NCF,
any of its Subsidiaries or any of their respective properties or assets or (y)
violate, conflict with, result in a breach of any provision of or the loss of
any benefit under, constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, result in the termination
of or a right of termination or cancellation under, accelerate the performance
required by, or result in the creation of any Lien upon any of the respective
properties or assets of NCF or any of its Subsidiaries under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, deed of trust,
license, lease, agreement or other instrument or obligation to which NCF or any
of its Subsidiaries is a party, or by which they or any of their respective
properties or assets may be bound or affected.
4.4 Consents and Approvals. Except for (i) the filing of applications and
notices, as applicable, with the Federal Reserve Board under the BHC Act and the
Federal Reserve Act, as amended, and approval of such applications and notices,
(ii) the Other Regulatory Approvals, (iii) the filing with the SEC of the Joint
Proxy Statement, and of the Form S-4 in which the Joint Proxy Statement will be
included as a prospectus, and declaration of effectiveness of the Form S-4, (iv)
the filing of the Georgia Certificate of Merger with the Georgia Secretary
pursuant to the GBCC and the filing of Tennessee Articles of Merger with the
Tennessee Secretary pursuant to the TBCA, (v) any notices to or filings with the
SBA, (vi) any notice or filings under the HSR Act, (vii) any consents,
authorizations, approvals, filings or exemptions in connection with compliance
with the applicable provisions of federal and state securities laws relating to
the regulation of broker-dealers, investment companies, investment advisers or
transfer agents, and federal commodities laws relating to the regulation of
futures commission merchants and the rules and regulations thereunder and of any
applicable SRO, and the rules of the NYSE, or which are required under consumer
finance, mortgage banking and other similar laws, (viii) such filings and
approvals as are required to be made or obtained under the securities or "Blue
Sky" laws of various states in connection with the issuance of the shares of STI
Common Stock pursuant to this Agreement, (ix) the NCF Shareholder Approval, (x)
such applications, filings, authorizations, approvals and orders as may be
required under the laws of any state or the federal laws of the United States in
respect of NCF's insurance business, and (xi) approval of the listing of STI
Common Stock to be issued in the Merger on the NYSE, no consents or approvals of
or filings or registrations with any Government Entity or with any third party
are necessary in connection with (A) the execution and delivery by NCF of this
Agreement and (B) the consummation by NCF of the Merger and the other
transactions contemplated hereby.
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4.5 Reports. NCF and each of its Subsidiaries have timely filed all
reports, registrations and statements, together with any amendments required to
be made with respect thereto, that they were required to file since January 1,
2000 with Regulatory Agencies, and have paid all fees and assessments due and
payable in connection therewith. Except for normal examinations conducted by a
Regulatory Agency in the ordinary course of the business of NCF and its
Subsidiaries, no Regulatory Agency has initiated any proceeding or, to the best
knowledge of NCF, investigation into the business or operations of NCF or any of
its Subsidiaries since January 1, 2000. There is no unresolved violation,
criticism, or exception by any Regulatory Agency with respect to any report or
statement relating to any examinations of NCF or any of its Subsidiaries.
4.6 Financial Statements NCF has previously made available to STI true and
correct copies of (i) the consolidated balance sheets of NCF and its
Subsidiaries as of December 31, 2002 and 2003 and the related consolidated
statements of income and shareholders' equity and cash flows for the fiscal
years ended December 31, 2001 through 2003, inclusive as reported in NCF's
Annual Report on Form 10-K for the fiscal year ended December 31, 2003 (the "NCF
10-K"), filed with the SEC under the Exchange Act and accompanied by the audit
report of KPMG LLP ("KPMG"), independent public accountants with respect to NCF,
and (ii) the unaudited consolidated balance sheet of NCF and its Subsidiaries as
of March 31, 2003 and 2004, and the related consolidated statements of income,
shareholders' equity and cash flows for the three-month period then ended, as
reported in NCF's Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 2004 (the "NCF 10-Q"). The December 31, 2003 consolidated balance
sheet of NCF (including the related notes, where applicable) fairly presents in
all material respects the consolidated financial position of NCF and its
Subsidiaries as of the date thereof, and the other financial statements referred
to in this Section 4.6 (including the related notes, where applicable) fairly
present in all material respects, and the financial statements to be filed by
NCF with the SEC after the date of this Agreement will fairly present in all
material respects (subject, in the case of the unaudited financial statements,
to recurring audit adjustments normal in nature and amount), the results of the
consolidated operations and changes in stockholders' equity and consolidated
financial position of NCF and its Subsidiaries for the respective fiscal periods
or as of the respective dates therein set forth; each of such financial
statements (including the related notes, where applicable) complies, and the
financial statements to be filed by NCF with the SEC after the date of this
Agreement will comply, with applicable accounting requirements and with the
published rules and regulations of the SEC with respect thereto; and each of
such financial statements (including the related notes, where applicable) has
been, and the financial statements to be filed by NCF with the SEC after the
date of this Agreement will be, prepared in accordance with GAAP consistently
applied during the periods involved, except as indicated in the notes thereto
or, in the case of unaudited statements, as permitted by Form 10-Q. The books
and records of NCF and its Subsidiaries have been, and are being, maintained in
accordance with applicable legal and accounting requirements and reflect only
actual transactions. KPMG has not resigned or been dismissed as independent
public accountants of NCF as a result of or in connection with any disagreements
with NCF on a matter of accounting principles or practices, financial statement
disclosure or auditing scope or procedure.
4.7 Broker's Fees. Neither NCF nor any Subsidiary of NCF nor any of their
respective officers or directors has employed any broker or finder or incurred
any liability for any broker's fees, commissions or finder's fees in connection
with any of the transactions
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contemplated by this Agreement, except that NCF has engaged, and will pay a fee
or commission to ▇.▇. ▇▇▇▇▇▇ & Co. Incorporated and UBS Securities LLC in
accordance with the terms of the respective letter agreements between NCF and
▇.▇. ▇▇▇▇▇▇ & Co. Incorporated and UBS Securities LLC, true, complete and
correct copies of which have been previously delivered by NCF to STI.
4.8 Absence of Certain Changes or Events
(a) Except as disclosed in any NCF Report (as defined below) filed
with the SEC prior to the date of this Agreement, since December 31, 2003, there
has been no change or development or combination of changes or developments
which, individually or in the aggregate, has had, or is reasonably likely to
have, a Material Adverse Effect on NCF.
(b) Since December 31, 2003 through and including the date of this
Agreement, NCF and its Subsidiaries have carried on their respective businesses
in the ordinary course of business consistent with their past practices.
(c) Since December 31, 2003 through the date hereof neither NCF nor
any of its Subsidiaries has (i) except in the ordinary course of business
consistent with past practice, increased the wages, salaries, compensation,
pension, or other fringe benefits or perquisites payable to any officer or
director from the amount thereof in effect as of December 31, 2003 (which
amounts have been previously disclosed to STI), granted any severance or
termination pay, entered into any contract to make or grant any severance or
termination pay, or paid any bonus, (ii) declared, set aside or paid any
dividend or other distribution (whether in cash, stock or property) with respect
to any of NCF's capital stock, other than regular quarterly cash dividends on
NCF Common Stock, (iii) effected or authorized any issuance, split, combination
or reclassification of any of NCF's capital stock or issued any other securities
in respect of, in lieu of or in substitution for shares of NCF's capital stock,
except for issuances of NCF Common Stock upon the exercise of NCF Options, or
the satisfaction of obligations under NCF Stock Plans, (iv) changed any
accounting methods, principles or practices of NCF or its Subsidiaries affecting
its assets, liabilities or businesses, including any reserving, renewal or
residual method, practice or policy, (v) made any Tax election or changed any
Tax election, amended any Tax returns or entered into any settlement or
compromise of any income Tax liability of NCF or its Subsidiaries or entered
into any closing agreement with respect to Taxes, or (vi) made any agreement or
commitment (contingent or otherwise) to do any of the foregoing.
4.9 Legal Proceedings
(a) Neither NCF nor any of its Subsidiaries is a party to any, and
there are no pending or, to the best of NCF's knowledge, threatened, legal,
administrative, arbitral or other proceedings, claims, actions or governmental
or regulatory investigations of any nature (in each case, other than with
respect to Taxes) against NCF or any of its Subsidiaries or challenging the
validity or propriety of the transactions contemplated by this Agreement.
(b) There is no injunction, order, judgment, decree, or regulatory
restriction (other than those that apply to similarly situated bank holding
companies or banks) imposed upon NCF, any of its Subsidiaries or the assets of
NCF or any of its Subsidiaries.
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4.10 Taxes and Tax Returns.
Each of NCF and its Subsidiaries has duly and timely filed all federal,
state, foreign and local information returns and Tax returns required to be
filed by it (all such returns being accurate and complete in all material
respects) and has duly and timely paid or made provision for the payment of all
Taxes that have been incurred or are due or claimed to be due from it by
federal, state, foreign or local taxing authorities other than Taxes or other
governmental charges that are not yet due and payable or are being contested in
good faith, have not been finally determined and have been adequately reserved
against under GAAP. The federal income Tax returns of NCF and its Subsidiaries
have been examined by the IRS for all years to and including 2000 and any
liability with respect thereto has been satisfied or any liability with respect
to deficiencies asserted as a result of such examination is covered by reserves
that are adequate under GAAP. There are no material disputes pending, or claims
or deficiencies asserted, for Taxes or assessments upon NCF or any of its
Subsidiaries for which NCF does not have reserves that are adequate under GAAP.
Neither NCF nor any of its Subsidiaries is a party to or is bound by any
material Tax sharing, allocation or indemnification agreement or arrangement
(other than such an agreement or arrangement exclusively between or among NCF
and its Subsidiaries). Within the past five years, neither NCF nor any of its
Subsidiaries has been a "distributing corporation" or a "controlled corporation"
in a distribution intended to qualify under Section 355(a) of the Code.
4.11 Employees.
(a) Section 4.11(a) of the NCF Disclosure Schedule sets forth a true
and complete list of each benefit or compensation plan, arrangement or
agreement, and any material bonus, incentive, deferred compensation, vacation,
stock purchase, stock option, severance, employment, change of control or fringe
benefit plan, program or agreement that is maintained, or contributed to, for
the benefit of current or former directors or employees of NCF and its
Subsidiaries or with respect to which NCF or its Subsidiaries may, directly or
indirectly, have any liability to such directors or employees, as of the date of
this Agreement (the "NCF Benefit Plans").
(b) NCF has heretofore made available to STI true and complete copies
of each of the NCF Benefit Plans and certain related documents, including, but
not limited to, (i) the actuarial report and Form 5500 for such NCF Benefit Plan
(if applicable) for each of the last two years, and (ii) the most recent
determination letter from the IRS (if applicable) for such NCF Benefit Plan.
(c) (i) Each of the NCF Benefit Plans has been operated and
administered in all material respects in compliance with ERISA and the Code,
(ii) each of the NCF Benefit Plans intended to be "qualified" within the meaning
of Section 401(a) of the Code has received a favorable determination from the
IRS that such NCF Benefit Plan is so qualified, and there are no existing
circumstances or any events that have occurred that will adversely affect the
qualified status of any such NCF Benefit Plan, (iii) with respect to each NCF
Benefit Plan which is subject to Title IV of ERISA, the present value of accrued
benefits under such NCF Benefit Plan, based upon the actuarial assumptions used
for funding purposes in the most recent actuarial report prepared by such NCF
Benefit Plan's actuary with respect to such NCF Benefit Plan, did not, as
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of its latest valuation date, exceed the then current value of the assets of
such NCF Benefit Plan allocable to such accrued benefits, (iv) no NCF Benefit
Plan provides benefits, including, without limitation, death or medical benefits
(whether or not insured), with respect to current or former employees or
directors of NCF or its Subsidiaries beyond their retirement or other
termination of service, other than (A) coverage mandated by applicable law, (B)
death benefits or retirement benefits under any "employee pension plan" (as such
term is defined in Section 3(2) of ERISA), (C) deferred compensation benefits
accrued as liabilities on the books of NCF or its Subsidiaries or (D) benefits
the full cost of which is borne by the current or former employee or director
(or his beneficiary), (v) no liability under Title IV of ERISA has been incurred
by NCF, its Subsidiaries or any trade or business, whether or not incorporated,
all of which together with NCF, would be deemed a "single employer" under
Section 4001 of ERISA (a "NCF ERISA Affiliate") that has not been satisfied in
full, and no condition exists that presents a material risk to NCF, its
Subsidiaries or any NCF ERISA Affiliate of incurring material liability
thereunder, (vi) no NCF Benefit Plan is a "multiemployer pension plan" (as such
term is defined in Section 3(37) of ERISA), (vii) all contributions payable by
NCF or its Subsidiaries as of the Effective Time with respect to each NCF
Benefit Plan in respect of current or prior plan years have been paid or accrued
in accordance with GAAP and, if applicable, Section 412 of the Code, (viii) none
of NCF, its Subsidiaries or any other person, including any fiduciary, has
engaged in a transaction in connection with which NCF, its Subsidiaries or any
NCF Benefit Plan will be subject to either a civil penalty assessed pursuant to
Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976
of the Code, and (ix) to the best knowledge of NCF there are no pending,
threatened or anticipated claims (other than routine claims for benefits) by, on
behalf of or against any of the NCF Benefit Plans or any trusts related thereto.
(d) Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will (either alone or in
conjunction with any other event) (i) result (either alone or upon the
occurrence of any additional acts or events) in any payment (including, without
limitation, severance, unemployment compensation, "excess parachute payment"
(within the meaning of Section 280G of the Code), forgiveness of indebtedness or
otherwise) becoming due to any director or any employee of NCF or any of its
affiliates from NCF or any of its affiliates under any NCF Benefit Plan or
otherwise, (ii) increase any compensation or benefits otherwise payable under
any NCF Benefit Plan or (iii) result in any acceleration of the time of payment
or vesting of any such compensation or benefits.
4.12 SEC Reports. NCF has previously made available to STI an accurate and
complete copy of each (a) final registration statement, prospectus, report,
schedule and definitive proxy statement filed since January 1, 2001 by NCF with
the SEC pursuant to the Securities Act or the Exchange Act, and prior to the
date hereof and (b) communication mailed by NCF to its shareholders since
January 1, 2001, and prior to the date hereof. NCF has timely filed all required
reports, schedules, registration statements and other documents with the SEC
since January 1, 2001 (the "NCF Reports"). As of their respective dates of
filing with the SEC (or, if amended or superseded by a filing prior to the date
hereof, as of the date of such filing), the NCF Reports complied with the
requirements of the Securities Act or the Exchange Act, as the case may be, and
the rules and regulations of the SEC thereunder applicable to such NCF Reports,
and none of the NCF Reports when filed contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. No executive
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officer of NCF has failed in any respect to make the certifications required of
him or her under Section 302 or 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and no
enforcement action has been initiated against NCF by the SEC relating to
disclosures contained in any NCF Report.
4.13 Compliance with Applicable Law. NCF and each of its Subsidiaries:
(a) is in compliance, in the conduct of its business, with all
applicable federal, state, local and foreign statutes, laws, regulations,
ordinances, rules, judgments, orders or decrees applicable thereto or to the
employees conducting such businesses, including the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002,
the Equal Credit Opportunity Act, the Fair Housing Act, the Community
Reinvestment Act, the Home Mortgage Disclosure Act, the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, all other applicable fair
lending laws or other laws relating to discrimination and the Bank Secrecy Act,
and, as of the date hereof, NCF, and each other depository Subsidiary of NCF,
has a Community Reinvestment Act rating of "satisfactory" or better;
(b) has all permits, licenses, franchises, certificates, orders, and
approvals of, and has made all filings, applications, and registrations with,
Governmental Entities that are required in order to permit NCF and each of its
Subsidiaries to carry on its business as currently conducted;
(c) has, since December 31, 2000, received no notification or
communication from any Governmental Entity (i) asserting that NCF or any of its
Subsidiaries is not in compliance with any statutes, regulations or ordinances,
(ii) threatening to revoke any permit, license, franchise, certificate of
authority or other governmental authorization, or (iii) threatening or
contemplating revocation or limitation of, or which would have the effect of
revoking or limiting, FDIC deposit insurance; and
(d) is not a party to or subject to any order, decree, agreement,
memorandum of understanding or similar arrangement with, or a commitment letter,
supervisory letter or similar submission to, and has not adopted any board
resolution at the request of, any Governmental Entity charged with the
supervision or regulation of depository institutions or engaged in the insurance
of deposits or the supervision or regulation of NCF or any of its Subsidiaries
and neither NCF nor any of its Subsidiaries has been advised by any such
Governmental Entity that such Governmental Entity is contemplating issuing or
requesting (or is considering the appropriateness of issuing or requesting) any
such order, decree, agreement, memorandum of understanding, commitment letter,
supervisory letter or similar submission or request.
4.14 Certain Contracts.
(a) Neither NCF nor any of its Subsidiaries is a party to or bound by
any contract, arrangement, commitment or understanding (whether written or oral)
(i) with respect to the employment of any directors, officers, employees or
consultants, (ii) which, upon the consummation or shareholder approval of the
transactions contemplated by this Agreement will (either alone or upon the
occurrence of any additional acts or events) result in any payment or benefits
(whether of severance pay or otherwise) becoming due from NCF, STI, the
Surviving
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Corporation, or any of their respective Subsidiaries to any officer or employee
thereof, (iii) which is a "material contract" (as such term is defined in Item
601(b)(10) of Regulation S-K of the SEC) to be performed after the date of this
Agreement that has not been filed or incorporated by reference in the NCF
Reports filed prior to the date of this Agreement, (iv) which materially
restricts the conduct of any line of business by NCF or upon consummation of the
Merger will materially restrict the ability of the Surviving Corporation to
engage in any line of business in which a bank holding company may lawfully
engage, (v) with or to a labor union or guild (including any collective
bargaining agreement) or (vi) (including any stock option plan, stock
appreciation rights plan, restricted stock plan or stock purchase plan) any of
the benefits of which will be increased, or the vesting of the benefits of which
will be accelerated, by the occurrence of any shareholder approval or the
consummation of any of the transactions contemplated by this Agreement, or the
value of any of the benefits of which will be calculated on the basis of any of
the transactions contemplated by this Agreement. NCF has previously made
available to STI true and correct copies of all employment and deferred
compensation agreements which are in writing and to which NCF is a party. Each
contract, arrangement, commitment or understanding of the type described in this
Section 4.14(a), whether or not set forth in the NCF Disclosure Schedule, is
referred to herein as a "NCF Contract", and neither NCF nor any of its
Subsidiaries knows of, or has received notice of, any violation of the above by
any of the other parties thereto.
(b) (i) Each NCF Contract is valid and binding on NCF or any of its
Subsidiaries, as applicable, and in full force and effect, (ii) NCF and each of
its Subsidiaries has performed all obligations required to be performed by it to
date under each NCF Contract, and (iii) no event or condition exists which
constitutes or, after notice or lapse of time or both, will constitute, a
material default on the part of NCF or any of its Subsidiaries under any such
NCF Contract.
4.15 State Takeover Law. The Board of Directors of NCF has approved the
transactions contemplated by this Agreement such that, assuming the accuracy of
the representations contained in Section 3.13, no "moratorium," "control share,"
"fair price" or other antitakeover laws are applicable to the Merger or any of
the transactions contemplated herein.
4.16 Interest Rate Risk Management Instruments. All Derivative Transactions
entered into by NCF or any of its Subsidiaries or for the account of any of its
customers were entered into in accordance with applicable laws, rules,
regulations and regulatory policies of any Governmental Entity, and in
accordance with the investment, securities, commodities, risk management and
other policies, practices and procedures employed by NCF and its Subsidiaries,
and were entered into with counterparties believed at the time to be financially
responsible and able to understand (either alone or in consultation with their
advisers) and to bear the risks of such Derivative Transactions. NCF and its
Subsidiaries have duly performed all of their obligations under the Derivative
Transactions to the extent that such obligations to perform have accrued, and,
to the knowledge of NCF, there are no breaches, violations or defaults or
allegations or assertions of such by any party thereunder.
4.17 Labor Relations. Neither NCF nor any of its Subsidiaries is a party
to, or is bound by, any collective bargaining agreement, contract or other
agreement or understanding with a labor union or labor organization, nor is NCF
or any of its Subsidiaries the subject of any proceeding asserting that NCF or
any such Subsidiary has committed an unfair labor practice or
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seeking to compel NCF or such Subsidiary to bargain with any labor organization
as to wages or conditions of employment, nor is there any strike involving NCF
or any of its Subsidiaries pending or, to the knowledge of NCF, threatened, nor
is NCF aware of any activity involving its or any of its Subsidiaries' employees
seeking to certify a collective bargaining unit or engaging in any other
organizational activity.
4.18 Insurance. NCF and its Subsidiaries have in effect insurance coverage
with reputable insurers or are self-insured, which in respect of amounts,
premiums, types and risks insured, constitutes reasonably adequate coverage
against all risks customarily insured against by bank holding companies and
their subsidiaries comparable in size and operations to NCF and its
Subsidiaries.
4.19 Environmental Liability.
(a) Each of NCF and its Subsidiaries and, to the knowledge of NCF,
each of the NCF Participation Facilities and the NCF Loan Properties (each as
defined below, for so long as they were NCF Loan Properties or NCF Participation
Facilities) are and have been in compliance with all applicable Environmental
Laws;
(b) There is no suit, claim, action or proceeding pending or, to the
knowledge of NCF, threatened, before any Governmental Entity or other forum in
which NCF, any of its Subsidiaries, and, to the knowledge of NCF, any NCF
Participation Facility or any NCF Loan Property, has been or, with respect to
threatened proceedings, is reasonably likely to be, named as a defendant (i) for
alleged noncompliance (including by any predecessor) with any Environmental Laws
or (ii) relating to the release, threatened release or exposure of any Hazardous
Material whether or not occurring at or on a site owned, leased or operated by
NCF or any of its Subsidiaries, any NCF Participation Facility or any NCF Loan
Property; and
(c) To the knowledge of NCF, during the period of: (i) NCF's or any of
its Subsidiaries' ownership or operation of any of their respective current or
former properties, (ii) NCF's or any of its Subsidiaries' participation in the
management of any NCF Participation Facility, or (iii) NCF's or any of its
Subsidiaries' interest in a NCF Loan Property, there has been no release of
Hazardous Materials in, on, under or affecting any such property, which could
reasonably be expected to require remediation pursuant to any Environmental Law.
To the knowledge of NCF, prior to the period of (x) NCF's or any of its
Subsidiaries' ownership or operation of any of their respective current or
former properties, (y) NCF's or any of its Subsidiaries' participation in the
management of any NCF Participation Facility, or (z) NCF's or any of its
Subsidiaries' interest in a NCF Loan Property, there was no release or
threatened release of Hazardous Materials in, on, under or affecting any such
property, NCF Participation Facility or NCF Loan Property, which could
reasonably be expected to require remediation pursuant to any Environmental Law.
(d) The following definitions apply for purposes of this Agreement:
(i) "NCF Loan Property" means any property in which NCF or any of its
Subsidiaries holds a security interest and, where required by the context, said
term means the owner or operator of such property; and (ii) "NCF Participation
Facility" means any facility in which NCF or any of its
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Subsidiaries participates in the management and, where required by the context,
said term means the owner or operator of such property.
4.20 Approvals; Reorganization. As of the date of this Agreement, NCF (a)
knows of no reason why (i) all regulatory approvals from any Governmental Entity
required for the consummation of the transactions contemplated by this Agreement
should not be obtained on a timely basis or (ii) the opinion of tax counsel
referred to in Section 7.2(c) should not be obtained on a timely basis and (b)
has no reason to believe that the Merger will fail to qualify as a
reorganization under Section 368(a) of the Code.
4.21 Property. Each of NCF and its Subsidiaries has good title free and
clear of all Liens to all of the properties and assets, real and personal,
tangible or intangible, which are reflected on the consolidated statement of
financial condition of NCF as of March 31, 2004 or acquired after such date,
except (a) Liens for taxes not yet due and payable, (b) pledges to secure
deposits and other Liens incurred in the ordinary course of business, (c)
mechanics', materialmen's, workmen's, repairmen's, warehousemen's, carrier's and
other similar Liens arising in the ordinary course of business, or (d) Liens
that do not interfere in any material respect with the current use of such
property or asset. All leases pursuant to which NCF or any Subsidiary of NCF, as
lessee, leases real or personal property are valid and enforceable against NCF
in accordance with their respective terms and neither NCF nor any of its
Subsidiaries nor, to the knowledge of NCF, any other party thereto is in default
thereunder.
4.22 Intellectual Property. To the knowledge of NCF, NCF and its
Subsidiaries own or have a valid license to use all NCF Intellectual Property
(as defined below), free and clear of all Liens, royalty or other payment
obligations (except for royalties or payments with respect to off-the-shelf
Software at standard commercial rates). To the knowledge of NCF, NCF
Intellectual Property constitutes all of the Intellectual Property necessary to
carry on the business of NCF and its Subsidiaries as currently conducted. NCF
Intellectual Property owned by NCF or any of its Subsidiaries, and to the
knowledge of NCF, all other NCF Intellectual Property, is valid and has not been
cancelled, forfeited, expired or abandoned, and neither NCF nor any of its
Subsidiaries has received notice challenging the validity or enforceability of
NCF Intellectual Property. To the knowledge of NCF, the conduct of the business
of NCF and its Subsidiaries does not violate, misappropriate or infringe upon
the Intellectual Property rights of any third party. The consummation of the
Merger will not result in the loss or impairment of the right of NCF or any of
its Subsidiaries to own or use any of NCF Intellectual Property, and the
Surviving Corporation will have substantially the same rights to own or use NCF
Intellectual Property following the consummation of the Merger as NCF and its
Subsidiaries had prior to the consummation of the Merger. For purposes of this
Agreement, the term "NCF Intellectual Property" means the Intellectual Property
used in or held for use in the conduct of the business of NCF or any of its
Subsidiaries.
4.23 Administration of Fiduciary Accounts. NCF and each of its Subsidiaries
has properly administered in all material respects all accounts for which it
acts as a fiduciary, including but not limited to accounts for which it serves
as a trustee, agent, custodian, personal representative, guardian, conservator
or investment advisor, in accordance with the terms of the governing documents
and applicable state and federal law and regulation and common law. Neither NCF
nor any of its Subsidiaries nor any of their respective directors, officers or
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employees has committed any breach of trust with respect to any such fiduciary
account, and the accountings for each such fiduciary account are true and
correct in all material respects and accurately reflect the assets of such
fiduciary account.
4.24 Information Supplied. None of the information supplied or to be
supplied by NCF for inclusion or incorporation by reference in (i) the Form S-4
will, at the time the Form S-4 is filed with the SEC and at the time it becomes
effective under the Securities Act, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and (ii) the Joint
Proxy Statement will, at the date of mailing to shareholders and at the times of
the meetings of shareholders to be held in connection with the Merger, contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The Joint Proxy Statement will comply as to form in all material
respects with the requirements of the Exchange Act and the rules and regulations
of the SEC thereunder, except that no representation or warranty is made by NCF
with respect to statements made or incorporated by reference therein based on
information supplied by STI for inclusion or incorporation by reference in the
Joint Proxy Statement.
4.25 Internal Controls. The records, systems, controls, data and
information of NCF and its Subsidiaries are recorded, stored, maintained and
operated under means (including any electronic, mechanical or photographic
process, whether computerized or not) that are under the exclusive ownership and
direct control of NCF or its Subsidiaries or accountants (including all means of
access thereto and therefrom). Since December 31, 2000, NCF and its Subsidiaries
have devised and maintain a system of internal accounting controls sufficient to
provide reasonable assurances regarding the reliability of financial reporting
and the preparation of financial statements in accordance with GAAP. NCF (i) has
designed disclosure controls and procedures to ensure that material information
relating to NCF, including its consolidated Subsidiaries, is made known to the
management of NCF by others within those entities, and (ii) has disclosed, based
on its most recent evaluation prior to the date hereof, to NCF's auditors and
the audit committee of NCF's Board of Directors (x) any significant deficiencies
in the design or operation of internal controls which could adversely affect in
any material respect NCF's ability to record, process, summarize and report
financial data and have identified for NCF's auditors any material weaknesses in
internal controls and (y) any fraud, whether or not material, that involves
management or other employees who have a significant role in NCF's internal
controls. NCF has made available to STI a summary of any such disclosure made by
management to NCF's auditors and audit committee since January 1, 2002. NCF has
initiated its process of compliance with Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act
of 2002 and expects to be in full compliance therewith by the mandated
compliance date.
4.26 Opinion of NCF Financial Advisor. NCF has received the opinion of its
financial advisors, ▇.▇. ▇▇▇▇▇▇ & Co. Incorporated and UBS Securities LLC, dated
the date of this Agreement, to the effect that, as of the date thereof and based
upon and subject to the matters set forth therein, the Merger Consideration is
fair, from a financial point of view, to the holders of NCF Common Stock.
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4.27 Investment Adviser Subsidiaries; Funds; Clients.
(a) For purposes of this Agreement, a "NCF Advisory Entity" means, if
applicable, NCF and any of its Subsidiaries that provides investment management,
investment advisory or sub-advisory services to any person (including management
and advice provided to separate accounts and participation in wrap fee
programs); "NCF Advisory Contract" means each NCF contract for such services
provided by a NCF Advisory Entity; "NCF Advisory Client" means each party to a
NCF Advisory Contract other than the applicable NCF Advisory Entity; "NCF Fund
Client" means each NCF Advisory Client that is required to be registered as an
investment company under the Investment Company Act.
(b) Each Sponsored NCF Fund Client and NCF Advisory Entity (i) has
since January 1, 1999 operated and is currently operating in compliance with all
laws, regulations, rules, judgments, orders or rulings of any Governmental
Entity applicable to it or its business and (ii) has all permits, licenses,
exemptions, orders and approvals required for the operation of its business or
ownership of its properties and assets as presently conducted. There is no
action, suit, proceeding or investigation pending or, to the knowledge of NCF,
threatened which would reasonably be expected to lead to the revocation,
amendment, failure to renew, limitation, suspension or restriction of any such
permits, licenses, exemptions, orders and approvals.
(c) Each NCF Advisory Entity has been and is in compliance with each
NCF Advisory Contract to which it is a party.
(d) The accounts of each NCF Advisory Client subject to ERISA have
been managed by the applicable NCF Advisory Entity in compliance with the
applicable requirements of ERISA.
(e) Neither NCF nor any of the NCF Advisory Entities nor any
"affiliated person" (as defined in the Investment Company Act) of any of them is
ineligible pursuant to Section 9(a) or (b) of the Investment Company Act to
serve as an investment adviser (or in any other capacity contemplated by the
Investment Company Act) to a registered investment company; none of NCF, any NCF
Advisory Entity or any "person associated with an investment advisor" (as
defined in the Investment Advisers Act) of any of them is ineligible pursuant to
Section 203 of the Investment Advisers Act to serve as an investment advisor or
as a person associated with a registered investment advisor; and none of NCF,
any NCF Advisory Entity or any "associated person" (as defined in the Exchange
Act) of any of them is ineligible pursuant to Section 15(b) of the Exchange Act
to serve as a broker dealer or as an associated person to a registered broker
dealer.
ARTICLE V.
COVENANTS RELATING TO CONDUCT OF BUSINESS
5.1 Covenants of NCF. During the period from the date of this Agreement and
continuing until the Effective Time, except as expressly contemplated or
permitted by this Agreement or with the prior written consent of STI, NCF shall,
and shall cause its Subsidiaries to, carry on their respective businesses in the
ordinary course consistent with past practice and
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consistent with prudent banking practice and in compliance in all material
respects with all applicable laws and regulations. NCF will use its reasonable
best efforts to (x) preserve its business organization and that of its
Subsidiaries intact, (y) keep available to itself and STI the present services
of the current officers and employees of NCF and its Subsidiaries and (z)
preserve for itself and STI the goodwill of the customers of NCF and its
Subsidiaries and others with whom business relationships exist. Without limiting
the generality of the foregoing, and except as set forth in Section 5.1 of the
NCF Disclosure Schedule or as otherwise contemplated by this Agreement or
consented to in writing by STI, NCF shall not, and shall not permit any of its
Subsidiaries to:
(a) other than in the ordinary course of business consistent with past
practice, incur any indebtedness for borrowed money (other than short-term
indebtedness incurred to refinance short-term indebtedness and indebtedness of
NCF or any of its wholly-owned Subsidiaries to NCF or any of its Subsidiaries),
or assume, guarantee, endorse or otherwise become responsible for the
obligations of any other individual, corporation or other entity, or make any
loan or advance or capital contribution to, or investment in, any person (it
being understood and agreed that incurrence of indebtedness in the ordinary
course of business consistent with past practice shall include the creation of
deposit liabilities, purchases of Federal funds, sales of certificates of
deposit and entering into repurchase agreements);
(b) (i) adjust, split, combine or reclassify any of its capital stock;
(ii) make, declare or pay any dividend, or make any other distribution on, or
directly or indirectly redeem, purchase or otherwise acquire, any shares of its
capital stock or any securities or obligations convertible (whether currently
convertible or convertible only after the passage of time or the occurrence of
certain events) into or exchangeable for any shares of its capital stock (except
(A) for regular quarterly cash dividends payable on July 1, 2004 at a rate not
in excess of $0.20 per share of NCF Common Stock, and regular quarterly cash
dividends payable starting on October 1, 2004 at a rate not in excess of the
higher of (x) $0.23 per share or (y) the then effective STI dividend times .495,
the declaration of the latter dividend being subject to Section 6.12, (B)
dividends paid by any of the Subsidiaries of NCF to NCF or to any of its
wholly-owned Subsidiaries, (C) the acceptance of shares of NCF's Common Stock as
payment of the exercise price of stock options or for withholding taxes incurred
in connection with the exercise of NCF's Stock Options, or the vesting of
restricted stock or other NCF Stock-Based Awards, (D) pursuant to the NCF DRIP
(provided that shares sold pursuant thereto are not newly issued shares), in
each case in accordance with past practice and the terms of the applicable award
agreements); (iii) grant any NCF Stock Option or other NCF Stock Based Awards or
grant any individual, corporation or other entity any right to acquire any
shares of its capital stock, other than grants to newly-hired employees of NCF
made in the ordinary course of business consistent with past practice under the
NCF Stock Plans; or (iv) issue any additional shares of capital stock except
pursuant to the exercise of NCF Stock Options or the satisfaction of any NCF
Stock-Based Awards, in each case, outstanding as of the date of this Agreement
and in accordance with their present terms or issued thereafter in compliance
with this Agreement;
(c) (i) except for normal increases made in the ordinary course of
business consistent with past practice, or as required by applicable law or an
agreement in existence as of the date of this Agreement, increase the wages,
salaries, compensation, pension, or other fringe benefits or perquisites payable
to any officer, employee, or director of NCF or pay any benefit
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not contemplated by any NCF Plan or agreement as in effect on the date hereof,
(ii) pay any pension or retirement allowance not required by any existing plan
or agreement or by applicable law, (iii) pay any bonus, (iv) become a party to,
amend or commit itself to, any pension, retirement, profit-sharing or welfare
benefit plan or agreement or employment agreement with or for the benefit of any
employee, other than as required by applicable law or an existing agreement set
forth in Section 4.11 of the NCF Disclosure Schedule, or (v) except as required
under any existing plan, grant, or agreement, accelerate the vesting of, or the
lapsing of restrictions with respect to, any NCF Stock Options or other NCF
Stock-Based Awards;
(d) sell, license, lease, encumber, assign or otherwise dispose of, or
agree to sell, license, lease, encumber, assign or otherwise dispose of, abandon
or fail to maintain any of its material assets, properties (including NCF
Intellectual Property) or other rights or agreements other than in the ordinary
course of business consistent with past practice;
(e) enter into any new line of business or make any material change in
its lending, investment, underwriting, risk and asset liability management or
other banking and operating policies, except as required by applicable law,
regulation or policies imposed by any Governmental Entity;
(f) (i) acquire or agree to acquire, by merging or consolidating with,
or by purchasing a substantial equity interest in or a substantial portion of
the assets of, or by any other manner, any business or any corporation,
partnership, association or other business organization or division thereof or
otherwise acquire any assets, which would be material, individually or in the
aggregate, to NCF, other than in connection with foreclosures, settlements in
lieu of foreclosure or troubled loan or debt restructurings in the ordinary
course of business consistent with prudent banking practices or (ii) open,
close, sell or acquire any branches;
(g) take any action, or fail to take any action, which action or
failure to act would reasonably be expected to prevent the Merger from
qualifying as a reorganization within the meaning of Section 368(a) of the Code;
(h) amend its articles or certificate of incorporation or bylaws or
similar governing document, or otherwise take any action to exempt any person or
entity (other than STI or its Subsidiaries) or any action taken by any person or
entity from any takeover statute or similarly restrictive provisions of its
organizational documents or terminate, amend or waive any provisions of any
confidentiality or standstill agreements in place with any third parties;
(i) restructure or materially change its investment securities
portfolio or its gap position, through purchases, sales or otherwise, or the
manner in which the portfolio is classified or reported;
(j) pay, discharge, settle, compromise or satisfy any claims,
liabilities or obligations (absolute, accrued, asserted or unasserted,
contingent or otherwise), including taking any action to settle or compromise
any litigation, in each case, material to NCF and its Subsidiaries, other than
the payment, discharge, settlement, compromise or satisfaction, in the ordinary
course of business consistent with past practice or in accordance with their
terms, of liabilities reflected or reserved against in, or contemplated by, the
most recent consolidated
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financial statements (or the notes thereto) of NCF Reports filed prior to the
date hereof, or incurred since December 31, 2003 in the ordinary course of
business consistent with past practice;
(k) take any action or fail to take any action that is intended or may
reasonably be expected to result in any of its representations or warranties set
forth in this Agreement being or becoming untrue in any material respect at any
time prior to the Effective Time, or in any of the conditions to the Merger set
forth in Article VII not being satisfied or in a violation of any provision of
this Agreement;
(l) implement or adopt any change in its financial accounting
principles, practices or methods in effect at December 31, 2003, other than as
may be required by applicable law or regulation, GAAP or regulatory guidelines
as concurred to by NCF's independent auditors;
(m) take any action that would materially impede or delay the ability
of the parties to obtain any necessary approvals of any Regulatory Agency or
Governmental Entity required for the transactions contemplated by this
Agreement;
(n) make capital expenditures other than in the ordinary and usual
course of business consistent with past practice;
(o) file any application to establish, or to relocate or terminate the
operations of, any banking office of NCF or any of its Subsidiaries;
(p) create, renew, amend or terminate, fail to perform any material
obligations under, waive or release any material rights under or give notice of
a proposed renewal, amendment, waiver, release or termination of, any material
contract, agreement or lease for goods, services or office space to which NCF or
any of its Subsidiaries is a party or by which NCF or any of its Subsidiaries or
their respective properties is bound, other than any of the foregoing arising in
the ordinary course of business (and as to which NCF shall provide prior notice
thereof to STI), or enter into any agreement, letter of intent or agreement in
principle (whether or not binding) relating to any Acquisition Proposal, except
for any confidentiality agreement permitted by Section 6.14;
(q) make or change any material Tax elections (unless required by
applicable law), file any material amended Tax Return, enter into any closing
agreement, settle or compromise any material liability with respect to Taxes,
agree to any material adjustment of any Tax attribute, file any claim for a
material refund of Taxes, or consent to any extension or waiver of the
limitation period applicable to any Tax claim or assessment; or
(r) agree to take, make any commitment to take, or adopt any
resolutions of its board of directors in support of, any of the actions
prohibited by this Section 5.1.
5.2 Covenants of STI. During the period from the date of this Agreement and
continuing until the Effective Time, except as expressly contemplated or
permitted by this Agreement or with the prior written consent of NCF, STI shall
use its reasonable best efforts to (x) preserve its business organization and
that of its Subsidiaries intact, (y) keep available to itself the present
services of the current officers and employees of STI and its Subsidiaries and
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(z) preserve for itself the goodwill of the customers of STI and its
Subsidiaries and others with whom business relationships exist. Without limiting
the generality of the foregoing, and except as set forth in Section 5.2 of the
STI Disclosure Schedule or as otherwise contemplated by this Agreement or
consented to in writing by NCF, STI shall not, and shall not permit any of its
Subsidiaries to:
(a) declare or pay any extraordinary or special dividends on or make
any other extraordinary or special distributions in respect of any of its
capital stock; provided, however, that nothing contained herein shall prohibit
STI from increasing the regular quarterly cash dividend on STI Common Stock;
(b) acquire or agree to acquire, by merging or consolidating with, or
by purchasing a substantial equity interest in or a substantial portion of the
assets of, or by any other manner, any business or any corporation, partnership,
association or other business organization or division thereof or otherwise
acquire any assets, which would be material, individually or in the aggregate,
to STI, other than (i) any such acquisition that would not reasonably be
expected to have a Material Adverse Effect on STI, or materially delay
completion of the transactions contemplated hereby or have any effect specified
in Section 5.2(c) or (ii) in connection with foreclosures, settlements in lieu
of foreclosure or troubled loan or debt restructurings in the ordinary course of
business consistent with prudent banking practices;
(c) take any action or fail to take any action that is intended or may
reasonably be expected to result in any of its representations and warranties
set forth in this Agreement being or becoming untrue in any material respect, or
in any of the conditions to the Merger set forth in Article VII not being
satisfied on a timely basis;
(d) change its methods of accounting in effect at December 31, 2003
except as required by changes in GAAP or regulatory accounting principles as
concurred to by STI's independent auditors;
(e) amend the STI Articles except to authorize additional common
shares or to designate the terms of any preferred shares;
(f) take any action, or fail to take any action, which action or
failure to act would reasonably be expected to prevent the Merger from
qualifying as a reorganization within the meaning of Section 368(a) of the Code;
or
(g) authorize, or commit or agree to do any of the foregoing.
ARTICLE VI.
ADDITIONAL AGREEMENTS
6.1 Regulatory Matters.
(a) NCF and STI shall promptly prepare and file with the SEC the Joint
Proxy Statement and STI shall promptly prepare and file with the SEC the Form
S-4, in which the Joint
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Proxy Statement will be included as a prospectus. Each of NCF and STI shall use
their reasonable best efforts to have the Form S-4 declared effective under the
Securities Act as promptly as practicable after such filing, and NCF and STI
shall thereafter mail or deliver the Joint Proxy Statement to their respective
shareholders. STI shall also use its reasonable best efforts to obtain all
necessary state securities law or "Blue Sky" permits and approvals required to
carry out the transactions contemplated by this Agreement, and NCF shall furnish
all information concerning NCF and the holders of NCF Capital Stock as may be
reasonably requested in connection with any such action. If at any time prior to
the Effective Time any information relating to either of the parties, or their
respective affiliates, officers or directors, should be discovered by either
party which should be set forth in an amendment or supplement to any of the Form
S-4 or the Joint Proxy Statement/Prospectus so that such documents would not
include any misstatement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, the party which discovers such information
shall promptly notify the other party hereto and, to the extent required by law,
rules or regulations, an appropriate amendment or supplement describing such
information shall be promptly filed with the SEC and disseminated to the
shareholders of STI and NCF.
(b) The parties hereto shall cooperate with each other and use their
reasonable best efforts to promptly prepare and file all necessary documentation
to effect all applications, notices, petitions and filings, to obtain as
promptly as practicable all permits, consents, approvals and authorizations of
all third parties and Governmental Entities which are necessary or advisable to
consummate the transactions contemplated by this Agreement (including, without
limitation, the Merger), and to comply with the terms and conditions of all such
permits, consents, approvals and authorizations of all such Governmental
Entities. NCF and STI shall have the right to review in advance, and, to the
extent practicable, each will consult the other on, in each case subject to
applicable laws relating to the exchange of information, all the information
relating to STI or NCF, as the case may be, and any of their respective
Subsidiaries, which appear in any filing made with, or written materials
submitted to, any third party or any Governmental Entity in connection with the
transactions contemplated by this Agreement. In exercising the foregoing right,
each of the parties hereto shall act reasonably and as promptly as practicable.
The parties hereto agree that they will consult with each other with respect to
the obtaining of all permits, consents, approvals and authorizations of all
third parties and Governmental Entities necessary or advisable to consummate the
transactions contemplated by this Agreement and each party will keep the other
apprised of the status of matters relating to completion of the transactions
contemplated herein.
(c) Each of NCF and STI shall, upon request, furnish to the other all
information concerning itself, its Subsidiaries, directors, officers and
shareholders and such other matters as may be reasonably necessary or advisable
in connection with the Joint Proxy Statement, the Form S-4 or any other
statement, filing, notice or application made by or on behalf of NCF, STI or any
of their respective Subsidiaries to any Governmental Entity in connection with
the Merger and the other transactions contemplated by this Agreement.
(d) Each of NCF and STI shall promptly advise the other upon receiving
any communication from any Governmental Entity whose consent or approval is
required for consummation of the transactions contemplated by this Agreement
that causes such party to
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believe that there is a reasonable likelihood that any Requisite Regulatory
Approval (as defined below) will not be obtained or that the receipt of any such
approval will be materially delayed.
(e) STI and NCF shall promptly furnish each other with copies of
written communications received by STI or NCF, as the case may be, or any of
their respective Subsidiaries from, or delivered by any of the foregoing to, any
Governmental Entity in respect of the transactions contemplated by this
Agreement.
6.2 Access to Information.
(a) Upon reasonable notice and subject to applicable laws relating to
the exchange of information, NCF shall, and shall cause each of its Subsidiaries
to, afford to the officers, employees, accountants, counsel and other
representatives of STI, access, during normal business hours during the period
prior to the Effective Time, to all its properties, books, contracts,
commitments, records, officers, employees, accountants, counsel and other
representatives and, during such period, NCF shall, and shall cause its
Subsidiaries to, make available to STI (i) a copy of each report, schedule,
registration statement and other document filed or received by it during such
period pursuant to the requirements of Federal securities laws or Federal or
state banking laws (other than reports or documents which NCF is not permitted
to disclose under applicable law) and (ii) all other information concerning its
business, properties and personnel as STI may reasonably request. Neither NCF
nor any of its Subsidiaries shall be required to provide access to or to
disclose information where such access or disclosure would violate or prejudice
the rights of NCF's customers, jeopardize any attorney client privilege or
contravene any law, rule, regulation, order, judgment, decree, fiduciary duty or
binding agreement entered into prior to the date of this Agreement. The parties
hereto will make appropriate substitute disclosure arrangements under
circumstances in which the restrictions of the preceding sentence apply.
(b) Upon reasonable notice and subject to applicable laws relating to
the exchange of information, STI shall, and shall cause its Subsidiaries to,
afford to the officers, employees, accountants, counsel and other
representatives of NCF, access, during normal business hours during the period
prior to the Effective Time, to such information, properties and personnel
regarding STI and its Subsidiaries as shall be reasonably necessary for NCF to
fulfill its obligations pursuant to this Agreement or that may be reasonably
necessary for NCF to confirm that the representations and warranties of STI
contained herein are true and correct and that the covenants of STI contained
herein have been performed in all material respects. Neither STI nor any of its
Subsidiaries shall be required to provide access to or to disclose information
where such access or disclosure would violate or prejudice the rights of STI's
customers, jeopardize any attorney client privilege or contravene any law, rule,
regulation, order, judgment, decree, fiduciary duty or binding agreement entered
into prior to the date of this Agreement. The parties hereto will make
appropriate substitute disclosure arrangements under circumstances in which the
restrictions of the preceding sentence apply.
(c) All information and materials provided pursuant to this Agreement
shall be subject to the provisions of the Confidentiality Agreement entered into
between the parties as of April 23, 2004 (the "Confidentiality Agreement").
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(d) No investigation by either of the parties or their respective
representatives shall affect the representations and warranties of the other set
forth herein.
6.3 Shareholders' Approvals. Each of NCF and STI shall take all steps
necessary to duly call, give notice of, convene and hold a meeting of its
shareholders (in the case of NCF, the "NCF Shareholders Meeting" and, in the
case of STI, the "STI Shareholders Meeting") to be held as soon as is reasonably
practicable after the date on which the Form S-4 becomes effective (i) in the
case of NCF, to obtain the NCF Shareholder Approval and, (ii) in the case of
STI, to obtain the STI Shareholder Approval. Each of NCF and STI will, through
its Board of Directors, use its reasonable best efforts to obtain the approval
of its respective shareholders in respect of the foregoing. Notwithstanding
anything to the contrary herein, unless this Agreement has been terminated, this
Agreement shall be submitted to the shareholders of NCF and STI at such meeting
for the purpose of obtaining the NCF Shareholder Approval or STI Shareholder
Approval, as the case may be, and voting on the approval and adoption of this
Agreement and nothing contained herein shall be deemed to relieve NCF and STI of
such obligations.
6.4 Advisory Board. STI shall confer with NCF regarding the establishment
following the Effective Time of an advisory board (to include individuals who
are members of the board of directors of NCF immediately prior to the Merger),
the function of which board shall be to advise STI with respect to deposit and
lending activities in NCF's former market area and to maintain and develop
customer relationships.
6.5 Affiliates. NCF shall use its reasonable best efforts to cause each
director, executive officer and other person who is an "affiliate" (for purposes
of Rule 145 under the Securities Act) of NCF to deliver to STI, as soon as
practicable after the date of this Agreement, and prior to the date of the
shareholders' meetings called by NCF to be held pursuant to Section 6.3, a
written agreement, in the form of Exhibit 6.5.
6.6 Stock Listing. STI shall use reasonable best efforts to cause the
shares of STI Common Stock to be issued in the Merger to be approved for listing
on the NYSE, subject to official notice of issuance, as of the Effective Time.
6.7 Employee Matters.
(a) From the Effective Time through December 31, 2004 or such later
date as STI shall determine to the extent December 31, 2004 is not practicable
in the reasonable judgment of STI based on the occurrence of the Effective Time
(such date being referred to herein as the "Benefits Transition Date"), STI
shall provide the employees of NCF and its Subsidiaries as of the Effective Time
(the "Covered Employees") with employee benefits and compensation plans,
programs and arrangements that are substantially similar, in the aggregate, to
the employee benefits and compensation plans, programs and arrangements provided
by NCF or its Subsidiaries, as the case may be, to such employees immediately
prior to the Effective Time. From and after the Benefits Transition Date, STI
shall provide the Covered Employees with employee benefits and compensation
plans, programs and arrangements that are substantially identical to those
provided to similarly situated employees of STI and its Subsidiaries.
Notwithstanding anything contained herein to the contrary, from and after the
Effective Time, a Covered Employee who is terminated during the period
commencing at the Effective Time and
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ending on the second anniversary thereof shall be entitled to receive the
severance payments and benefits under the most favorable of either the NCF
severance plan or policy as in effect immediately prior to the date hereof
(without amendment during such two year period following the Effective Time), or
the STI severance plan that is applicable to similarly situated employees of STI
or its Subsidiaries, as applicable.
(b) From and after the Effective Time, STI shall (i) provide all
Covered Employees with service credit for purposes of eligibility,
participation, vesting and levels of benefits (but not for benefit accruals
under any defined benefit pension plan except as otherwise provided in this
Section 6.7(b)), under any employee benefit or compensation plan, program or
arrangement adopted, maintained or contributed to by STI or any of its
Subsidiaries in which Covered Employees are eligible to participate, for all
periods of employment with NCF or any of its Subsidiaries (or their predecessor
entities) prior to the Effective Time, (ii) cause any pre-existing conditions or
limitations, eligibility waiting periods or required physical examinations under
any welfare benefit plans of STI or any of its Subsidiaries to be waived with
respect to the Covered Employees and their eligible dependents, to the extent
waived under the corresponding plan in which the applicable Covered Employee
participated immediately prior to the Effective Time, and (iii) give the Covered
Employees and their eligible dependents credit for the plan year in which the
Effective Time (or commencement of participation in a plan of STI or any of its
Subsidiaries) occurs towards applicable deductibles and annual out-of-pocket
limits for expenses incurred prior to the Effective Time (or the date of
commencement of participation in a plan of STI or any of its Subsidiaries). For
purposes of any cash balance pension plan maintained or contributed to by STI or
any of its Subsidiaries in which Covered Employees become eligible to
participate following the Effective Time, the Covered Employees' level of
benefit accruals under any such plans (for periods of service following the date
on which the Covered Employees commence participation in such plans) shall be
determined based on the Covered Employees' credited service prior to the
Effective Time and with the Surviving Corporation following the Effective Time.
(c) From and after the Effective Time, STI shall honor all accrued and
vested benefit obligations to and all contractual rights of current and former
employees, directors and consultants of NCF and its Subsidiaries under the NCF
Benefit Plans; provided that, subject to the last sentence of Section 6.7(a),
nothing herein shall prevent STI from amending or terminating any NCF Benefit
Plan in accordance with the terms thereof.
(d) STI and NCF shall take all necessary action to effectuate all
agreements listed in Section 6.7(d) of the NCF Disclosure Schedule.
6.8 Indemnification; Directors' and Officers' Insurance.
(a) In the event of any threatened or actual claim, action, suit,
proceeding or investigation, whether civil, criminal or administrative,
including, without limitation, any such claim, action, suit, proceeding or
investigation in which any individual who is now, or has been at any time prior
to the date of this Agreement, or who becomes prior to the Effective Time, a
director or officer or employee of NCF or any of its Subsidiaries, or who is or
was serving at the request of NCF or any of its Subsidiaries as a director,
officer, employee or agent of another person, including any entity specified in
the NCF Disclosure Schedule (the "Indemnified
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Parties"), is, or is threatened to be, made a party based in whole or in part
on, or arising in whole or in part out of, or pertaining to (i) the fact that he
is or was a director, officer or employee of NCF or any of its Subsidiaries or
any entity specified in the NCF Disclosure Schedule or any of their respective
predecessors or (ii) this Agreement or any of the transactions contemplated
hereby, whether in any case asserted or arising before or after the Effective
Time, the parties hereto agree to cooperate and use their best efforts to defend
against and respond thereto. It is understood and agreed that after the
Effective Time, STI shall indemnify and hold harmless, as and to the fullest
extent permitted by law, each such Indemnified Party against any losses, claims,
damages, liabilities, costs, expenses (including reasonable attorney's fees and
expenses in advance of the final disposition of any claim, suit, proceeding or
investigation to each Indemnified Party to the fullest extent permitted by law
upon receipt of any undertaking required by applicable law), judgments, fines
and amounts paid in settlement in connection with any such threatened or actual
claim, action, suit, proceeding or investigation.
(b) STI shall use its reasonable best efforts to cause the individuals
serving as officers and directors of NCF, its Subsidiaries or any entity
specified in the NCF Disclosure Schedule immediately prior to the Effective Time
to be covered for a period of six (6) years from the Effective Time (or the
period of the applicable statute of limitations, if longer) by the directors'
and officers' liability insurance policy maintained by NCF (provided that STI
may substitute therefor policies of at least the same coverage and amounts
containing terms and conditions which are not less advantageous than such
policy) with respect to acts or omissions occurring prior to the Effective Time
which were committed by such officers and directors in their capacity as such;
provided, however, that in no event shall STI be required to expend on an annual
basis more than 250% of the current amount expended by NCF (the "Insurance
Amount") to maintain or procure insurance coverage, and further provided that if
STI is unable to maintain or obtain the insurance called for by this Section
6.8(b) STI shall use all reasonable efforts to obtain as much comparable
insurance as is available for the Insurance Amount.
(c) In the event STI or any of its successors or assigns (i)
consolidates with or merges into any other person and shall not be the
continuing or surviving corporation or entity of such consolidation or merger,
or (ii) transfers or conveys all or substantially all of its properties and
assets to any person, then, and in each such case, to the extent necessary,
proper provision shall be made so that the successors and assigns of STI assume
the obligations set forth in this Section 6.8.
(d) The provisions of this Section 6.8 shall survive the Effective
Time and are intended to be for the benefit of, and shall be enforceable by,
each Indemnified Party and his or her heirs and representatives.
6.9 Reasonable Best Efforts; Additional Agreements.
(a) Subject to the terms and conditions of this Agreement, each of STI
and NCF agrees to cooperate fully with each other and to use reasonable best
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, all things necessary, proper or advisable to consummate and make
effective, at the time and in the manner contemplated by this Agreement, the
Merger, including using reasonable best efforts to lift or rescind any
injunction or restraining order or other order adversely affecting the ability
of the parties to consummate the Merger.
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(b) In case at any time after the Effective Time any further action is
necessary or desirable to carry out the purposes of this Agreement or to vest
the Surviving Corporation with full title to all properties, assets, rights,
approvals, immunities and franchises of any of the parties to the Merger, the
proper officers and directors of each party to this Agreement and their
respective Subsidiaries shall take all such necessary action as may be
reasonably requested by STI.
(c) STI and NCF shall use reasonable best efforts to cause the Merger
to qualify as a reorganization within the meaning of Section 368(a) of the Code.
Officers of STI and NCF shall execute and deliver to Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC,
counsel to NCF, and King & Spalding LLP, counsel to STI certificates containing
appropriate representations at such time or times as may be reasonably requested
by such law firms, including the effective date of the Form S-4 and the
Effective Time, in connection with their respective deliveries of opinions with
respect to the Tax treatment of the Merger.
(d) NCF shall consult with STI prior to sending any written
communications to its employees regarding the Merger or this Agreement.
6.10 Advice of Changes. STI and NCF shall promptly advise the other party
of any change or event having, or which could be reasonably expected to have, a
Material Adverse Effect on it or which it believes would, or which could
reasonably be expected to, cause or constitute a material breach of any of its
representations, warranties or covenants contained herein. From time to time
prior to the Effective Time (and on the date prior to the Closing Date), each
party will supplement or amend its Disclosure Schedules delivered in connection
with the execution of this Agreement to reflect any matter which, if existing,
occurring or known at the date of this Agreement, would have been required to be
set forth or described in such Disclosure Schedules or which is necessary to
correct any information in such Disclosure Schedules which has been rendered
inaccurate thereby. No supplement or amendment to such Disclosure Schedules
shall have any effect for the purpose of determining the accuracy of the
representations and warranties of the parties contained in Articles III and IV
or in order to determine the fulfillment of the conditions set forth in Sections
7.2(a) or 7.3(a) hereof, as the case may be, or the compliance by NCF or STI, as
the case may be, with the respective covenants and agreements of such parties
contained herein. Notwithstanding anything to the contrary contained herein, no
failure to advise the other party of any change or event referred to in the
first sentence of this Section 6.10, or any failure to provide any supplement or
amendment referred to in the second sentence of this Section 6.10, shall
constitute the failure of any condition set forth in Article VII to be satisfied
unless the underlying Material Adverse Effect, breach or inaccuracy would
independently result in the failure of a condition set forth in Article VII to
be satisfied.
6.11 Current Information. During the period from the date of this Agreement
to the Effective Time, each party will cause one or more of its designated
representatives to confer on a regular and frequent basis with representatives
of the other party and to report the general status of the ongoing operations of
such party and its Subsidiaries. Each party will promptly notify the other party
of any material change in the normal course of business or in the operation of
the properties of such party or any of its Subsidiaries and of any governmental
complaints, investigations or hearings (or communications indicating that the
same may be contemplated), or
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the institution or the threat of significant litigation involving such party or
any of its Subsidiaries, and will keep the other party fully informed of such
events.
6.12 Dividends. After the date of this Agreement, each of NCF and STI shall
coordinate with the other the declaration of any dividends in respect of NCF
Common Stock and STI Common Stock and the record dates and payment dates
relating thereto, it being the intention of the parties hereto that holders of
NCF Common Stock shall not receive two dividends, or fail to receive one
dividend, for any quarter with respect to their shares of NCF Common Stock and
any shares of STI Common Stock any such holder receives in exchange therefore in
the Merger.
6.13 Exemption from Liability Under Section 16(b). STI and NCF agree that,
in order to most effectively compensate and retain NCF Insiders (as defined
below) in connection with the Merger, both prior to and after the Effective
Time, it is desirable that NCF Insiders not be subject to a risk of liability
under Section 16(b) of the Exchange Act to the fullest extent permitted by
applicable law in connection with the conversion of shares of NCF Common Stock,
NCF Stock Options and NCF Stock Based Awards into shares of STI Common Stock,
Assumed Stock Options and Assumed Stock Based Awards, respectively, in the
Merger, and for that compensatory and retentive purpose agree to the provisions
of this Section 6.13. Assuming that NCF delivers to STI the Section 16
Information (as defined below) in a timely fashion, the Board of Directors of
STI, or a committee of Non-Employee Directors thereof (as such term is defined
for purposes of Rule 16b-3(d) under the Exchange Act), shall adopt a resolution
providing that the receipt by NCF Insiders of STI Common Stock in exchange for
shares of NCF Common Stock, of the Assumed Stock Options upon conversion of NCF
Stock Options and of Assumed Stock Based Awards upon conversion of NCF Stock
Based Awards, in each case pursuant to the transactions contemplated by this
Agreement and to the extent such securities are listed in the Section 16
Information, are intended to be exempt from liability pursuant to Section 16(b)
under the Exchange Act. The term "Section 16 Information" shall mean information
accurate in all material respects regarding NCF Insiders, the number of shares
of NCF Common Stock held by each such NCF Insider and expected to be exchanged
for STI Common Stock in the Merger, and the number and description of the NCF
Stock Options and NCF Stock Based Awards held by each such NCF Insider and
expected to be converted into Assumed Stock Options and Assumed Stock Based
Awards, respectively, in connection with the Merger. The term "NCF Insiders"
shall mean those officers and directors of NCF who are subject to the reporting
requirements of Section 16(a) of the Exchange Act and who are listed in the
Section 16 Information.
6.14 Acquisition Proposals.
(a) NCF and its Subsidiaries and each of their respective affiliates,
directors, officers, employees, agents and representatives (including any
investment banker, financial advisor, attorney, accountant or other
representative retained by NCF or any of its Subsidiaries) shall immediately
cease any discussions or negotiations with any other parties that may be ongoing
with respect to the possibility or consideration of any Acquisition Proposal.
From the date of this Agreement through the Effective Time, NCF shall not, nor
shall it permit any of its Subsidiaries to, nor shall it authorize or permit any
of its or its Subsidiaries' directors, officers or employees or any investment
banker, financial advisor, attorney, accountant or other representative retained
by it or any of its Subsidiaries to, directly or indirectly through another
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person, (i) solicit, initiate or encourage (including by way of furnishing
information or assistance), or take any other action designed to facilitate or
encourage any inquiries or the making of any proposal that constitutes, or is
reasonably likely to lead to, any Acquisition Proposal, (ii) participate in any
discussions or negotiations regarding any Acquisition Proposal or (iii) make or
authorize any statement, recommendation or solicitation in support of any
Acquisition Proposal. Any violation of the foregoing restrictions by any
representative of NCF, whether or not such representative is so authorized and
whether or not such representative is purporting to act on behalf of such party
or otherwise, shall be deemed to be a breach of this Agreement by NCF.
(b) (i) Notwithstanding the foregoing, the Board of Directors of NCF
shall be permitted, prior to its meeting of shareholders to be held pursuant to
Section 6.3, to engage in discussions and negotiations with, or provide any
nonpublic information or data to, any person in response to an unsolicited bona
fide written Acquisition Proposal by such person first made after the date of
this Agreement which its Board of Directors concludes in good faith constitutes
or is reasonably likely to result in a Superior Proposal, if and only to the
extent that the Board of Directors of NCF reasonably determines in good faith
(after consultation with outside legal counsel) that failure to do so would
cause it to violate its fiduciary duties under applicable law and subject to
compliance with the other terms of this Section 6.14 and to first entering into
a confidentiality agreement having provisions that are no less restrictive to
such person than those contained in the Confidentiality Agreement.
(ii) NCF shall notify STI promptly (but in no event later than 24
hours) after receipt of any Acquisition Proposal, or any request for nonpublic
information relating to NCF or any of its Subsidiaries by any person that
informs NCF or any of its Subsidiaries that it is considering making, or has
made, an Acquisition Proposal, or any inquiry from any person seeking to have
discussions or negotiations with such party relating to a possible Acquisition
Proposal. Such notice shall be made orally and confirmed in writing, and shall
indicate the identity of the person making the Acquisition Proposal, inquiry or
request and the material terms and conditions of any inquiries, proposals or
offers (including a copy thereof if in writing and any related documentation or
correspondence). NCF shall also promptly, and in any event within 24 hours,
notify STI, orally and in writing, if it enters into discussions or negotiations
concerning any Acquisition Proposal or provides nonpublic information or data to
any person in accordance with this Section 6.14(b) and keep STI informed of the
status and terms of any such proposals, offers, discussions or negotiations on a
current basis, including by providing a copy of all material documentation or
correspondence relating thereto.
(iii) Nothing contained in this Section 6.14 shall prohibit NCF
or its Subsidiaries from taking and disclosing to its shareholders a position
required by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act;
provided, however, that compliance with such rules shall not in any way limit or
modify the effect that any action taken pursuant to such rules has under any
other provision of this Agreement.
(c) NCF agrees that (i) it will and will cause its Subsidiaries, and
its and their officers, directors, agents, representatives and advisors to,
cease immediately and terminate any and all existing activities, discussions or
negotiations with any third parties conducted heretofore with respect to any
Acquisition Proposal, and (ii) it will not release any third party from, or
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waive any provisions of, any confidentiality or standstill agreement to which it
or any of its Subsidiaries is a party with respect to any Acquisition Proposal.
(d) Nothing in this Section 6.14 shall (x) permit NCF to terminate
this Agreement or (y) affect any other obligation of NCF under this Agreement.
NCF shall not submit to the vote of its shareholders any Acquisition Proposal
other than the Merger.
(e) For purposes of this Agreement, the term "Acquisition Proposal"
means any inquiry, proposal or offer, filing of any regulatory application or
notice (whether in draft or final form) or disclosure of an intention to do any
of the foregoing from any person relating to any (w) direct or indirect
acquisition or purchase of a business that constitutes a substantial portion of
the net revenues, net income or assets of NCF or any of its significant
subsidiaries (as defined under Regulation S-X of the SEC), (x) direct or
indirect acquisition or purchase of any class of equity securities representing
10% or more of the voting power of NCF or its significant subsidiaries, (y)
tender offer or exchange offer that if consummated would result in any person
beneficially owning 10% or more of the voting power of NCF, or (z) merger,
consolidation, business combination, recapitalization, liquidation, dissolution
or similar transaction involving NCF or any of its Subsidiaries, in each case
other than the transactions contemplated by this Agreement.
(f) For purposes of this Agreement, "Superior Proposal" means a bona
fide written Acquisition Proposal which the Board of Directors of NCF concludes
in good faith, after consultation with its financial advisors and legal
advisors, taking into account all legal, financial, regulatory and other aspects
of the proposal and the person making the proposal (including any break-up fees,
expense reimbursement provisions and conditions to consummation), (i) is more
favorable to the shareholders of NCF from a financial point of view, than the
transactions contemplated by this Agreement and (ii) is fully financed or
reasonably capable of being fully financed, reasonably likely to receive all
required governmental approvals on a timely basis and otherwise reasonably
capable of being completed on the terms proposed; provided that, for purposes of
this definition of "Superior Proposal," the term Acquisition Proposal shall have
the meaning assigned to such term in Section 6.13(e) except that the reference
to "10% or more" in the definition of "Acquisition Proposal" shall be deemed to
be a reference to "a majority" and "Acquisition Proposal" shall only be deemed
to refer to a transaction involving NCF.
6.15 Directorships. Effective as of the Effective Time, STI shall cause its
Board of Directors to be expanded by four members and shall appoint four members
of the existing NCF Board of Directors who are proposed by NCF and reasonably
acceptable to STI to fill such vacancies. The additional directors shall be
apportioned as equally as possible among the STI board classes.
6.16 Bank Merger. At or prior to the Effective Time, if requested by STI,
NCF shall cause NBC to enter into an Agreement and Plan of Merger (the "Bank
Merger Agreement") with SunTrust Bank pursuant to which NBC shall merge with and
into SunTrust Bank after the Merger. Promptly following execution of such Bank
Merger Agreement, NCF shall approve such agreement as the sole shareholder of
NBC. The Bank Merger Agreement shall contain such terms and conditions as are
reasonable, normal and customary in light of the transactions contemplated
hereby including a covenant that consummation of the merger
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of NBC with and into SunTrust Bank would not occur earlier than simultaneous
with consummation of the Merger and a provision for termination of the Bank
Merger Agreement upon termination of this Agreement.
ARTICLE VII.
CONDITIONS PRECEDENT
7.1 Conditions to Each Party's Obligation To Effect the Merger. The
respective obligations of the parties to effect the Merger shall be subject to
the satisfaction at or prior to the Effective Time of the following conditions:
(a) Shareholder Approval. NCF shall have obtained the NCF Shareholder
Approval and STI shall have obtained the STI Shareholder Approval.
(b) NYSE Listing. The shares of STI Common Stock which shall be issued
to the shareholders of NCF upon consummation of the Merger shall have been
authorized for listing on the NYSE, subject to official notice of issuance.
(c) Regulatory Approvals. All regulatory approvals required to
consummate the Merger shall have been obtained and shall remain in full force
and effect, and all statutory waiting periods in respect thereof shall have
expired (all such approvals and the expiration of all such waiting periods being
referred to herein as the "Requisite Regulatory Approvals").
(d) Form S-4. The Form S-4 shall have become effective under the
Securities Act and no stop order suspending the effectiveness of the Form S-4
shall have been issued and no proceedings for that purpose shall have been
initiated or threatened by the SEC.
(e) No Injunctions or Restraints; Illegality. No judgment, order,
injunction or decree issued by any court or agency of competent jurisdiction or
other legal restraint or prohibition (an "Injunction") preventing the
consummation of the Merger shall be in effect. No statute, rule, regulation,
order, injunction or decree shall have been enacted, entered, promulgated or
enforced by any Governmental Entity which prohibits or makes illegal
consummation of the Merger.
7.2 Conditions to Obligations of NCF. The obligation of NCF to effect the
Merger is also subject to the satisfaction, or waiver by NCF, at or prior to the
Effective Time, of the following conditions:
(a) Representations and Warranties. Subject to the standard set forth
in the preamble to Article III, the representations and warranties of STI set
forth in this Agreement shall be true and correct as of the date of this
Agreement and as of the Effective Time as though made at and as of the Effective
Time (except that representations and warranties that by their terms speak
specifically as of the date of this Agreement or another date shall be true and
correct as of such date); and NCF shall have received a certificate signed on
behalf of STI by the Chief Executive Officer and the Chief Financial Officer of
STI to the foregoing effect.
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(b) Performance of Obligations of STI. STI shall have performed in all
material respects all obligations required to be performed by it under this
Agreement at or prior to the Closing Date, and NCF shall have received a
certificate signed on behalf of STI by the Chief Executive Officer and the Chief
Financial Officer of STI to such effect.
(c) Federal Tax Opinion. NCF shall have received the opinion of Bass,
▇▇▇▇▇ & ▇▇▇▇ PLC in form and substance reasonably satisfactory to NCF, dated the
Closing Date, substantially to the effect that, on the basis of facts,
representations and assumptions set forth in such opinion that are consistent
with the state of facts existing at the Effective Time, the Merger will be
treated as a reorganization under Section 368(a) of the Code. In rendering such
opinion, NCF's counsel may require and rely upon representations contained in
certificates of officers of NCF and STI, reasonably satisfactory in form and
substance to such counsel.
7.3 Conditions to Obligations of STI. The obligation of STI to effect the
Merger is also subject to the satisfaction or waiver by STI at or prior to the
Effective Time of the following conditions:
(a) Representations and Warranties. Subject to the standard set forth
in the preamble to Article IV, the representations and warranties of NCF set
forth in this Agreement shall be true and correct as of the date of this
Agreement and as of the Effective Time as though made at and as of the Effective
Time (except that representations and warranties that by their terms speak
specifically as of the date of this Agreement or another date shall be true and
correct as of such date); and STI shall have received a certificate signed on
behalf of NCF by the Chief Executive Officer and the Chief Financial Officer of
NCF to the foregoing effect.
(b) Performance of Obligations of NCF. NCF shall have performed in all
material respects all obligations required to be performed by it under this
Agreement at or prior to the Closing Date, and STI shall have received a
certificate signed on behalf of NCF by the Chief Executive Officer and the Chief
Financial Officer of NCF to such effect.
(c) Federal Tax Opinion. STI shall have received the opinion of King &
Spalding LLP in form and substance reasonably satisfactory to STI, dated the
Closing Date, substantially to the effect that, on the basis of facts,
representations and assumptions set forth in such opinion that are consistent
with the state of facts existing at the Effective Time, the Merger will be
treated as a reorganization within the meaning of Section 368(a) of the Code. In
rendering such opinion, STI's counsel may require and rely upon representations
contained in certificates of officers of NCF and STI, reasonably satisfactory in
form and substance to such counsel.
ARTICLE VIII.
TERMINATION AND AMENDMENT
8.1 Termination. This Agreement may be terminated at any time prior to the
Effective Time, whether before or after approval of the matters presented in
connection with the Merger by the shareholders of NCF and STI:
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(a) by mutual consent of NCF and STI in a written instrument, if the
Board of Directors of each so determines by a vote of a majority of the members
of its entire Board;
(b) by either STI or NCF upon written notice to the other party (i) 60
days after the date on which any request or application for a Requisite
Regulatory Approval shall have been denied by the Governmental Entity which must
grant such Requisite Regulatory Approval, unless within the legally prescribed
period following such denial a petition for rehearing or an amended application
has been filed with the applicable Governmental Entity; provided, however, that
no party shall have the right to terminate this Agreement pursuant to this
Section 8.1(b)(i) if such denial, or if such failure to file, shall be due to
the failure of the party seeking to terminate this Agreement to perform or
observe the covenants and agreements of such party set forth herein or (ii) if
any Governmental Entity of competent jurisdiction shall have issued a final
nonappealable order enjoining or otherwise prohibiting the Merger;
(c) by either STI or NCF if the Merger shall not have been consummated
on or before the first anniversary of the date hereof, unless the failure of the
Closing to occur by such date shall be due to the failure of the party seeking
to terminate this Agreement to perform or observe the covenants and agreements
of such party set forth herein;
(d) by either NCF or STI (provided that the party terminating shall
not be in material breach of any of its obligations under Section 6.3) if any
approval of the shareholders of NCF or STI required for the consummation of the
Merger shall not have been obtained upon a vote taken thereon at a duly held
meeting of such shareholders or at any adjournment or postponement thereof;
(e) by either STI or NCF (provided that the terminating party is not
then in material breach of any representation, warranty, covenant or other
agreement contained herein) if there shall have been a breach of any of the
representations or warranties set forth in this Agreement by the other party,
which breach is not cured within thirty days following written notice to the
party committing such breach, or which breach, by its nature, cannot be cured
prior to the Closing; provided, however, that neither party shall have the right
to terminate this Agreement pursuant to this Section 8.1(e) unless the breach of
representation or warranty, together with all other such breaches, would entitle
the party receiving such representation not to consummate the transactions
contemplated hereby under Section 7.2(a) (in the case of a breach of a
representation or warranty by STI) or Section 7.3(a) (in the case of a breach of
a representation or warranty by NCF);
(f) by either STI or NCF (provided that the terminating party is not
then in material breach of any representation, warranty, covenant or other
agreement contained herein) if there shall have been a breach of any of the
covenants or agreements set forth in this Agreement on the part of the other
party, which breach shall not have been cured within thirty days following
receipt by the breaching party of written notice of such breach from the other
party hereto, or which breach, by its nature, cannot be cured prior to the
Closing; provided, however, that neither party shall have the right to terminate
this Agreement pursuant to this Section 8.1(f) unless the breach of covenant,
together with all other such breaches, would entitle the party entitled to the
benefit of such covenant not to consummate the transactions contemplated hereby
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under Section 7.2(b) (in the case of a breach of covenant by STI) or Section
7.3(b) (in the case of a breach of covenant by NCF); or
(g) by either STI or NCF, if (i) the Board of Directors of the other
does not publicly recommend in the Joint Proxy Statement that its shareholders
either approve and adopt this Agreement (in the case of NCF) or approve the
issuance of shares of STI Common Stock pursuant to this Agreement (in the case
of STI), (ii) after recommending in the Joint Proxy Statement that such
shareholders approve and adopt this Agreement (in the case of NCF) or approve
the issuance of shares of STI Common Stock pursuant to this Agreement (in the
case of STI), such Board of Directors shall have withdrawn, modified or amended
such recommendation in any manner adverse to the other party, or (iii) the other
party materially breaches its obligations under this Agreement by reason of a
failure to call a meeting of its shareholders or a failure to prepare and mail
to its shareholders the Joint Proxy Statement/Prospectus in accordance with
Sections 6.1 and 6.3.
(h) by STI, if the Board of Directors of NCF has authorized,
recommended, proposed or publicly announced its intention to authorize,
recommend or propose any Acquisition Proposal with any person other than STI.
8.2 Effect of Termination. In the event of termination of this Agreement by
either NCF or STI as provided in Section 8.1, this Agreement shall forthwith
become void and there shall be no liability or obligation on the part of STI or
NCF or their respective officers or directors, except with respect to Sections
6.2(c), 8.2, 8.3, 9.3, 9.5, 9.6, 9.7 and 9.8, which shall survive such
termination and except that no party shall be relieved or released from any
liabilities or damages arising out of its willful breach of this Agreement.
8.3 Termination Fee
(a) NCF shall pay STI, by wire transfer of immediately available
funds, the sum of $280 million (the "NCF Termination Fee") if this Agreement is
terminated as follows:
(1) if STI shall terminate this Agreement pursuant to Section
8.1(g) or 8.1(h), then NCF shall pay the NCF Termination Fee on the
business day following such termination;
(2) if (A) either party shall terminate this Agreement pursuant
to Section 8.1(d) because the required NCF shareholder approval shall not
have been received and (B) at any time after the date of this Agreement and
at or before the date of the NCF Shareholders Meeting a bona fide
Acquisition Transaction shall have been publicly announced or otherwise
communicated to the Board of Directors of NCF (a "Public Proposal") that
has not been withdrawn prior to such date, then NCF shall pay one-third of
the NCF Termination Fee on the business day following such termination; and
if (C) within twelve (12) months of the date of such termination of this
agreement, NCF or any of its Subsidiaries enters into any definitive
Agreement with respect to, or consummates, any Acquisition Transaction,
then NCF shall pay the remaining two-thirds of the NCF Termination Fee on
the date of such execution or consummation; and
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(3) if (A) either party shall terminate this Agreement pursuant
to Section 8.1(c) or STI shall terminate this Agreement pursuant to Section
8.1(e) or (f), (B) at any time after the date of this Agreement and before
such termination there shall have been a Public Proposal with respect to
NCF that has not been withdrawn prior to such termination, and (C)
following the occurrence of such Public Proposal, NCF shall have
intentionally breached (and not cured after notice thereof) any of its
representations, warranties, covenants or agreements set forth in this
Agreement, which breach shall have materially contributed to the failure of
the Effective Time to occur prior to the termination of this Agreement,
then NCF shall pay one-third of the NCF Termination Fee on the business day
following such termination; and (D) if within twelve (12) months of the
date of such termination of this Agreement, NCF or any of its Subsidiaries
executes any definitive agreement with respect to, or consummates, any
Acquisition Transaction, then NCF shall pay the remaining two-thirds of the
NCF Termination Fee upon the date of such execution or consummation.
If NCF fails to pay all amounts due to STI on the dates specified, then NCF
shall pay all costs and expenses (including legal fees and expenses) incurred by
STI in connection with any action or proceeding (including the filing of any
lawsuit) taken by it to collect such unpaid amounts, together with interest on
such unpaid amounts at the prime lending rate prevailing at such time, as
published in the Wall Street Journal, from the date such amounts were required
to be paid until the date actually received by STI.
(b) The parties acknowledge that the agreements contained in this
Section 8.3 are an integral part of the transactions contemplated by this
Agreement and constitute liquidated damages and not a penalty, and that, without
these agreements, the parties would not have entered into this Agreement.
(c) For purposes of this Agreement, the term "Acquisition Transaction"
shall mean (i) the direct or indirect acquisition, purchase or assumption of all
or a substantial portion of the assets or deposits of NCF, (ii) the acquisition
by any person of direct or indirect beneficial ownership (including by way of
merger, consolidation, share exchange or otherwise) of 20% or more of the
outstanding shares of voting stock of NCF, or (iii) a merger, consolidation,
business combination, liquidation, dissolution or similar transaction of or
involving NCF, other than a merger, business combination or similar transaction
pursuant to which persons who are shareholders of NCF immediately prior to such
transaction own 60% or more of the voting stock of the surviving entity (or
parent thereof) immediately after consummation of such transaction and, as a
result of such transaction, no person or group (within the meaning of Section
13(d)(3) of the Exchange Act) holds 20% or more of the voting stock of the
surviving entity (or parent thereof) immediately following consummation of such
transaction.
8.4 Amendment. Subject to compliance with applicable law, this Agreement
may be amended by the parties hereto, by action taken or authorized by their
respective Boards of Directors, at any time before or after approval of the
matters presented in connection with the Merger by the shareholders of NCF and
STI; provided, however, that after any approval of the transactions contemplated
by this Agreement by the respective shareholders of NCF or STI, there may not
be, without further approval of such shareholders, any amendment of this
Agreement that changes the amount or the form of the consideration to be
delivered hereunder to the holders
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of NCF Common Stock, other than as contemplated by this Agreement. This
Agreement may not be amended except by an instrument in writing signed on behalf
of each of the parties hereto.
8.5 Extension; Waiver. At any time prior to the Effective Time, the parties
hereto, by action taken or authorized by their respective Board of Directors,
may, to the extent legally allowed, (a) extend the time for the performance of
any of the obligations or other acts of the other parties hereto, (b) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant hereto and (c) waive compliance with any of the
agreements or conditions contained herein; provided, however, that after any
approval of the transactions contemplated by this Agreement by the respective
shareholders of NCF or STI, there may not be, without further approval of such
shareholders, any waiver of this Agreement or any portion thereof which reduces
the amount or changes the form of the consideration to be delivered to the
holders of NCF Common Stock hereunder, other than as contemplated by this
Agreement. Any agreement on the part of a party hereto to any such extension or
waiver shall be valid only if set forth in a written instrument signed on behalf
of such party, but such extension or waiver or failure to insist on strict
compliance with an obligation, covenant, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any subsequent or other
failure.
ARTICLE IX.
GENERAL PROVISIONS
9.1 Closing. Subject to the terms and conditions of this Agreement, the
closing of the Merger (the "Closing") will take place at 10:00 a.m. on the first
day which is (a) the last business day of a month and (b) at least three
business days after the satisfaction or waiver (subject to applicable law) of
the latest to occur of the conditions set forth in Article VII hereof (other
than those conditions that by their nature or terms are to be satisfied or
waived at Closing), unless extended by mutual agreement of the parties (the
"Closing Date").
9.2 Nonsurvival of Representations, Warranties and Agreements. None of the
representations, warranties, covenants and agreements in this Agreement or in
any instrument delivered pursuant to this Agreement (other than the
Confidentiality Agreement, which shall terminate in accordance with terms) shall
survive the Effective Time, except for Section 6.8 and for those other covenants
and agreements contained herein and therein which by their terms apply in whole
or in part after the Effective Time.
9.3 Expenses. All costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such expense; provided, however, that the costs and expenses of
printing and mailing the Joint Proxy Statement, and all filing and other fees
paid to the SEC in connection with the Merger, shall be borne equally by NCF and
STI.
9.4 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, telecopied (with
confirmation), mailed by registered or certified mail (return receipt requested)
or delivered by an express courier (with
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confirmation) to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
(a) if to NCF, to:
National Commerce Financial Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: K. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
with copies to:
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
and:
Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. Good, Esq.
and
(b) if to STI, to:
SunTrust Banks, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with copies to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
and
King & Spalding LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
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9.5 Interpretation. When a reference is made in this Agreement to Sections,
Exhibits or Schedules, such reference shall be to a Section of or Exhibit or
Schedule to this Agreement, unless otherwise indicated. The table of contents
and headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement.
Whenever the words "include," "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation".
9.6 Counterparts. This Agreement may be executed in counterparts, all of
which shall be considered one and the same agreement and shall become effective
when counterparts have been signed by each of the parties and delivered to the
other parties, it being understood that all parties need not sign the same
counterpart.
9.7 Entire Agreement. This Agreement (including the documents and the
instruments referred to herein) constitutes the entire agreement and supersedes
all prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof, other than the
Confidentiality Agreement.
9.8 Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Tennessee, without regard to any
applicable conflicts of law principles, except to the extent mandatory
provisions of federal or Georgia law apply.
9.9 Publicity. Except as otherwise required by applicable law or the rules
of the NYSE, neither NCF or STI shall, or shall permit any of its Subsidiaries
to, issue or cause the publication of any press release or other public
announcement with respect to, or otherwise make any public statement concerning,
the transactions contemplated by this Agreement without the prior consent of
STI, in the case of a proposed announcement or statement by NCF, or NCF, in the
case of a proposed announcement or statement by STI, which consents shall not be
unreasonably withheld.
9.10 Assignment; Third Party Beneficiaries. Neither this Agreement nor any
of the rights, interests or obligations shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and assigns. Except as otherwise specifically
provided in Section 6.8, this Agreement (including the documents and instruments
referred to herein) is not intended to confer upon any person other than the
parties hereto any rights or remedies hereunder.
9.11 Enforcement of Agreement. The parties hereto agree that irreparable
damage would occur in the event that this Agreement were not performed in
accordance with its specific terms or were otherwise breached. It is accordingly
agreed that the parties shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions hereof in any court of the United States or any state having
jurisdiction, this being in addition to any other remedy to which they are
entitled at law or in equity.
9.12 Severability. Any term or provision of this Agreement that is invalid
or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms
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and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
-59-
IN WITNESS WHEREOF, National Commerce Financial Corporation and SunTrust
Banks, Inc. have caused this Agreement to be executed by their respective
officers thereunto duly authorized as of the date first above written.
NATIONAL COMMERCE FINANCIAL
CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title: President and Chief
Executive Officer
SUNTRUST BANKS, INC.
By: /s/ L. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Name: L. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chairman of the Board,
President, Chief
Executive Officer