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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 11, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SUNTRUST BANKS, INC.
(Exact name of registrant as specified in its charter)
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<S> <C>
GEORGIA 58-1575035
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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303 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30308
(404) 588-7711
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
RAYMOND D. FORTIN, ESQ.
SENIOR VICE PRESIDENT
SUNTRUST BANKS, INC.
303 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30308
(404) 588-7165
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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COPIES REQUESTED TO:
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<S> <C>
MARY A. BERNARD SUSAN J. SUTHERLAND
KING & SPALDING SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
1185 AVENUE OF THE AMERICAS 919 THIRD AVENUE
NEW YORK, NEW YORK 10036 NEW YORK, NEW YORK 10022
(212) 556-2100 (212) 735-3000
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER UNIT(2) OFFERING PRICE(2) FEE
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities.................. $500,000,000(1) 100% $500,000,000 $147,500
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</TABLE>
(1) Plus such additional principal amount as may be necessary such that, if Debt
Securities are issued with an original issue discount, the aggregate initial
offering price of all Debt Securities will equal $500,000,000.
(2) Estimated pursuant to Rule 457 under the Securities Act of 1933, solely for
the purpose of calculating the registration fee.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THE REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED FEBRUARY 11, 1998
PROSPECTUS
$500,000,000
SUNTRUST BANKS, INC.
DEBT SECURITIES
---------------------
SunTrust Banks, Inc., a Georgia corporation (the "Corporation"), from time
to time may offer and sell debt securities consisting of debentures, notes or
other evidences of indebtedness in one or more series in an aggregate initial
offering price not to exceed $500,000,000 or its equivalent based on the
applicable exchange rate at the time of the offering if denominated in foreign
currencies (the "Debt Securities"). The Debt Securities may be unsecured and
unsubordinated Debt Securities (the "Senior Debt Securities") or unsecured and
subordinated Debt Securities (the "Subordinated Debt Securities"). The Debt
Securities may be offered as separate series in amounts, at maturities, at
prices and on terms to be determined at the time of the sale as set forth in the
applicable prospectus supplement to this Prospectus (each, a "Prospectus
Supplement"). Although the aggregate initial offering price of the Debt
Securities is limited as set forth above, the respective indentures pursuant to
which the Senior Debt Securities and the Subordinated Debt Securities are to be
issued do not contain any limitation on the aggregate principal amount of the
debt securities covered thereby. The Senior Debt Securities when issued will
rank on a parity with all other unsecured and unsubordinated indebtedness of the
Corporation, and the Subordinated Debt Securities will be unsecured and will be
subordinate to Senior Indebtedness of the Corporation and, under certain
circumstances, to Additional Senior Obligations of the Corporation, each as
defined herein. Unless specifically stated in a Prospectus Supplement, payment
of principal of the Subordinated Debt Securities may be accelerated only in the
case of the bankruptcy of the Corporation. There is no right of acceleration in
the case of a default in the payment of the principal of, or any premium or
interest on, the Subordinated Debt Securities or in the performance of any
covenant or agreement of the Corporation. See "Description of the Debt
Securities."
When a particular series of Debt Securities is offered, a Prospectus
Supplement will be delivered setting forth the terms of such Debt Securities,
including the specific designation, aggregate principal amount, denominations,
maturity, premium, if any, interest rate (which may be fixed or variable) and
time of payment of interest, if any, terms for redemption at the option of the
Corporation or the holder, if any, terms for sinking fund payments, if any,
subordination terms, if any, and any other terms of such Debt Securities, or
otherwise in connection with the offering and sale of the Debt Securities in
respect of which the Prospectus Supplement is being delivered. In addition, the
Prospectus Supplement will set forth the initial public offering price, the
names of any underwriters or agents, the principal amounts, if any, to be
purchased by underwriters, the compensation of such underwriters and agents, if
any, and the net proceeds to the Corporation. The Debt Securities of a series
may be issued in definitive registered form without coupons ("Registered
Securities") or in the form of one or more book-entry securities in registered
form ("Book-Entry Securities").
The Debt Securities may be sold directly by the Corporation to the public
or through agents designated from time to time, through underwriting syndicates
led by one or more managing underwriters or through one or more underwriters
acting alone. If the Corporation, directly or through agents, solicits offers to
purchase the Debt Securities, the Corporation reserves the sole right to accept
and, together with its agents, to reject in whole or in part any proposed
purchase of Debt Securities. See "Plan of Distribution." Any underwriters,
dealers or agents participating in the offering may be deemed "underwriters"
within the meaning of the Securities Act of 1933, as amended (the "Securities
Act"). See "Plan of Distribution" for possible indemnification arrangements for
underwriters, agents and their controlling persons.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE THE SALE OF DEBT SECURITIES
UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT. THE DEBT SECURITIES WILL BE
UNSECURED OBLIGATIONS OF THE CORPORATION, WILL NOT BE SAVINGS ACCOUNTS, DEPOSITS
OR OTHER OBLIGATIONS OF ANY BANK OR NONBANK SUBSIDIARY OF THE CORPORATION, AND
WILL NOT BE INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE BANK
INSURANCE FUND OR ANY OTHER GOVERNMENT AGENCY OR INSTRUMENTALITY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS FEBRUARY , 1998.
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AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and, in
accordance therewith, files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Judiciary Plaza, Washington, D.C. 20549 and at the Commission's
Regional Offices in New York (13th Floor, 7 World Trade Center, New York, New
York 10048) and Chicago (Suite 1400, 500 West Madison Street, Chicago, Illinois
60661-2511). The Commission also maintains a Web site at http://www.sec.gov that
contains reports, proxy statements and other information regarding registrants
that file electronically with the Commission. In addition, such reports, proxy
statements and other information concerning the Corporation can be inspected at
the offices of the New York Stock Exchange, 20 Broad Street, New York, New York
10005. This Prospectus does not contain all the information set forth in the
Registration Statement on Form S-3 of which this Prospectus is a part (together
with all exhibits and amendments, the "Registration Statement"), which the
Corporation has filed with the Commission under the Securities Act and to which
reference is hereby made.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Corporation hereby incorporates by reference in this Prospectus the
following reports filed with the Commission pursuant to the Exchange Act: (a)
its Annual Report on Form 10-K for the year ended December 31, 1996, (b) its
Quarterly Reports on Form 10-Q for the quarters ended March 31, 1997, June 30,
1997 and September 30, 1997 and (c) its Current Reports on Form 8-K filed on May
12, 1997 and January 16, 1998.
All documents filed by the Corporation pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date hereof and prior to the
termination of the offering of the Debt Securities offered hereby shall be
deemed to be incorporated by reference into this Prospectus and shall be deemed
a part hereof from the respective dates of filing of such documents. Any
statement contained in this Prospectus or any accompanying Prospectus Supplement
or in a document incorporated or deemed to be incorporated by reference herein
or therein shall be deemed to be modified or superseded for purposes of this
Prospectus or such accompanying Prospectus Supplement to the extent that a
statement contained herein or therein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein or
therein modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of the Registration Statement or this Prospectus.
The Corporation will provide without charge to each person to whom a copy
of this Prospectus is delivered, upon the written or oral request of such
person, a copy of any or all of the documents incorporated by reference herein,
except for exhibits to such documents unless such exhibits are specifically
incorporated by reference into such documents. Written requests should be sent
to: James C. Armstrong, First Vice President -- Investor Relations, SunTrust
Banks, Inc., 303 Peachtree Street, N.E., Atlanta, Georgia 30308. Telephone
requests may be directed to 404-588-7425.
THE CORPORATION
The Corporation is a regional bank holding company with three principal
subsidiaries: SunTrust Banks of Florida, Inc., headquartered in Orlando, Florida
("STB of Florida"); SunTrust Banks of Georgia, Inc., headquartered in Atlanta,
Georgia ("STB of Georgia"); and SunTrust Banks of Tennessee, Inc., headquartered
in Nashville, Tennessee ("STB of Tennessee").
The Corporation, through its subsidiary banks (the "Subsidiary Banks"),
conducts a broad range of commercial banking activities, including accepting
demand, time and savings deposits, making both secured and unsecured business
and consumer loans and leases, extending commercial lines of credit, issuing and
servicing credit cards and certain other types of revolving credit accounts,
providing commercial factoring services, cash management services, investment
counseling, safe deposit services, personal and corporate trust
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and other fiduciary services and engaging in leasing, mortgage banking,
correspondent banking, international banking, investment banking, trading in
U.S. government securities and municipal bonds and underwriting certain types of
securities.
Under the longstanding policy of the Board of Governors of the Federal
Reserve System (the "Federal Reserve"), a bank holding company is expected to
act as a source of financial strength for its subsidiary banks and to commit
resources to support such banks. As a result of this policy, the Corporation may
be required to commit resources to the Subsidiary Banks in circumstances where
it might not otherwise do so.
Because the Corporation is a bank holding company, its rights and the
rights of its creditors, including the holders of the Offered Debt Securities
(as defined herein), to participate in the distribution and payment of assets of
any subsidiary upon the subsidiary's liquidation or recapitalization would be
subject to the prior claims of such subsidiary's creditors except to the extent
that the Corporation may itself be a creditor with recognized claims against the
subsidiary.
The Corporation's principal executive offices are located at 303 Peachtree
Street, N.E., Atlanta, Georgia 30308, and its telephone number is 404-588-7711.
USE OF PROCEEDS
The Corporation currently intends to use the net proceeds from the sale of
any Debt Securities for general corporate purposes, which may include
refinancing of debt, including outstanding commercial paper and other short-term
indebtedness, redemption or repurchase of shares of its outstanding common and
preferred stock (including repurchases by the Corporation of its common stock
pursuant to its ongoing stock repurchase program), investments at the holding
company level, investments in, or extensions of credit to, its banking and other
subsidiaries and other banks and companies engaged in other financial service
activities, possible acquisitions and such other purposes as may be stated in
any Prospectus Supplement. Pending such use, the net proceeds may be temporarily
invested. The precise amounts and timing of the application of proceeds will
depend upon the funding requirements of the Corporation and its subsidiaries and
the availability of other funds. Except as may be described in any Prospectus
Supplement, specific allocations of the proceeds to such purposes will not have
been made at the date of such Prospectus Supplement.
CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
The following table presents the consolidated ratio of earnings to fixed
charges of the Corporation. The consolidated ratio of earnings to fixed charges
has been computed by dividing (i) net income plus all applicable income taxes
plus fixed charges by (ii) fixed charges. Fixed charges represent interest
expense (ratios are presented both including and excluding interest on
deposits), and the portion of net rental expense which is deemed to be
equivalent to interest on long-term debt. Interest expense (other than on
deposits) includes interest on long-term debt, federal funds purchased and
securities sold under agreements to repurchase, mortgages, commercial paper and
other funds borrowed.
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<CAPTION>
NINE MONTHS
ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
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1997 1996 1996 1995 1994 1993 1992
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<S> <C> <C> <C> <C> <C> <C> <C>
Including interest on deposits................. 1.60x 1.61x 1.61x 1.61x 1.83x 1.87x 1.58x
Excluding interest on deposits................. 2.86x 3.41x 3.30x 3.20x 4.24x 5.07x 4.70x
</TABLE>
3
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CERTAIN REGULATORY CONSIDERATIONS
The following discussion sets forth certain of the elements of the
comprehensive regulatory framework applicable to bank holding companies and
banks and provides certain specific information relevant to the Corporation and
its subsidiaries. Federal and state regulation of financial institutions such as
the Corporation and the Subsidiary Banks is intended primarily for the
protection of depositors and the Federal deposit insurance funds rather than
shareholders or other creditors.
GENERAL
As a bank holding company, the Corporation is subject to the regulation and
supervision of the Federal Reserve. The Corporation's Subsidiary Banks are
subject to regulation, supervision and examination by applicable state and
federal banking agencies, including the Federal Reserve, the Office of the
Comptroller of the Currency (the "Comptroller") and the Federal Deposit
Insurance Corporation (the "FDIC").
The federal banking agencies have broad enforcement powers over depository
institutions, including the power to terminate deposit insurance, to impose
substantial fines and other civil and criminal penalties, and to appoint a
conservator or receiver if certain conditions are met. The federal banking
agencies also have broad enforcement powers over bank holding companies,
including the power to impose substantial fines and other civil and criminal
penalties.
Almost every aspect of the operations and financial condition of the
Subsidiary Banks is subject to extensive regulation and supervision and to
various requirements and restrictions under federal and state law, including
requirements governing capital adequacy, liquidity, earnings, dividends,
reserves against deposits, management practices, branching, loans, investments,
and the provision of services. Various consumer protection laws and regulations
also affect the operations of the Subsidiary Banks. The activities and
operations of the Corporation also are subject to extensive federal supervision
and regulation which, among other things, limit non-banking activities, impose
minimum capital requirements and require approval to acquire more than 5% of any
class of voting shares or substantially all of the assets of a bank. In addition
to the impact of regulation, banks and bank holding companies may be
significantly affected by legislation, which can change banking statutes in
substantial and unpredictable ways, and by the actions of the Federal Reserve as
it attempts to control the money supply and credit availability in order to
influence the economy.
PAYMENT OF DIVIDENDS AND OTHER RESTRICTIONS
The Corporation is a legal entity separate and distinct from its
subsidiaries, including the Subsidiary Banks. There are various legal and
regulatory limitations under federal and state law on the extent to which the
Corporation's subsidiaries, including its bank and bank holding company
subsidiaries, can finance or otherwise supply funds to the Corporation.
The principal source of the Corporation's cash revenues is dividends from
its subsidiaries and there are certain limitations under federal, Georgia,
Florida, Tennessee and Alabama law on the payment of dividends by such
subsidiaries. The approval of the Federal Reserve or the Comptroller, as the
case may be, is required if the total of all dividends declared by any state
member bank of the Federal Reserve or any national bank in any calendar year
exceeds the bank's net income for that year combined with its retained net
income for the preceding two years, less any required transfers to surplus or a
fund for the retirement of any preferred stock. In addition, a dividend may not
be paid if a bank's losses equal or exceed its undivided profits, and a dividend
may not be paid in excess of a bank's undivided profits. The relevant federal
and state regulatory agencies also have authority to prohibit a bank holding
company, which would include STB of Florida, STB of Georgia and STB of
Tennessee, or a state or national bank from engaging in what, in the opinion of
such regulatory body, constitutes an unsafe or unsound practice in conducting
its business. The payment of dividends could, depending upon the financial
condition of the subsidiary, be deemed to constitute such an unsafe or unsound
practice.
Under Georgia law (which would apply to any payment of dividends by the
Corporation's largest subsidiary, SunTrust Bank, Atlanta, to STB of Georgia) the
prior approval of the Georgia Department of
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Banking and Finance is required before any cash dividends may be paid by a state
bank if: (i) total classified assets at the most recent examination of such bank
exceed 80% of the equity capital (as defined, which includes the reserve for
loan losses) of such bank; (ii) the aggregate amount of dividends declared or
anticipated to be declared in the calendar year exceeds 50% of the net profits,
after taxes but before dividends, for the previous calendar year; or (iii) the
ratio of equity capital to adjusted total assets is less than 6%.
Retained earnings of the Corporation's banking subsidiaries available for
payment of cash dividends under all applicable regulations without obtaining
governmental approval were approximately $441.8 million as of December 31, 1996.
In addition, the Subsidiary Banks and their subsidiaries are subject to
limitations under Sections 23A and 23B of the Federal Reserve Act with respect
to extensions of credit to, investments in, and certain other transactions with,
the Corporation and its other subsidiaries. Furthermore, such loans and
extensions of credit, as well as certain other transactions, are also subject to
various collateral requirements.
CAPITAL ADEQUACY
The Federal Reserve has adopted minimum risk-based and leverage capital
guidelines for bank holding companies. The minimum required risk-based capital
ratio of qualifying total capital to risk-weighted assets (including certain
off-balance-sheet items, such as standby letters of credit) is 8%, of which 4%
must consist of Tier 1 capital. As of September 30, 1997, the Corporation's
total risk-based capital ratio was 11.17%, including 7.58% of Tier 1 capital.
The minimum required leverage capital ratio (Tier 1 capital to average total
assets) is 3% for bank holding companies that meet certain specified criteria,
including that they have the highest regulatory rating. As of September 30,
1997, the Corporation's leverage capital ratio was 6.63%. Higher risk-based and
leverage ratios may apply under certain circumstances.
The Subsidiary Banks are subject to similar risk-based and leverage capital
requirements adopted by the federal banking agencies.
Failure to meet capital requirements can subject a bank to a variety of
enforcement remedies, including additional substantial restrictions on its
operations and activities, termination of deposit insurance by the FDIC, and
under certain conditions the appointment of a receiver or conservator.
Federal banking regulations establish five capital categories for
depository institutions ("well capitalized," "adequately capitalized,"
"undercapitalized," "significantly undercapitalized" and "critically
undercapitalized"), and impose significant restrictions on the operations of an
institution that is not at least adequately capitalized. Under certain
circumstances, an institution may be downgraded to a category lower than that
warranted by its capital levels, and subjected to the supervisory restrictions
applicable to institutions in the lower capital category. A depository
institution is generally prohibited from making capital distributions (including
paying dividends) or paying management fees to a holding company if the
institution would thereafter be undercapitalized.
An undercapitalized depository institution is subject to restrictions in a
number of areas, including asset growth, acquisitions, branching, new lines of
business, and borrowing from the Federal Reserve. In addition, an
undercapitalized depository institution is required to submit a capital
restoration plan. A depository institution's holding company must guarantee the
capital plan up to an amount equal to the lesser of 5% of the depository
institution's assets at the time it becomes undercapitalized or the amount
needed to restore the capital of the institution to the levels required for the
institution to be classified as adequately capitalized at the time the
institution fails to comply with the plan and any such guarantee would be
entitled to a priority of payment in bankruptcy. A depository institution is
treated as if it is significantly undercapitalized if it fails to submit a
capital plan that is based on realistic assumptions and is likely to succeed in
restoring the depository institution's capital.
Significantly undercapitalized depository institutions may be subject to a
number of additional significant requirements and restrictions, including
requirements to sell sufficient voting stock to become adequately capitalized,
to replace or improve management, to reduce total assets, to cease acceptance of
correspondent bank deposits, to restrict senior executive compensation and to
limit transactions with affiliates. Critically
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undercapitalized depository institutions are further subject to restrictions on
paying principal or interest on subordinated debt, making investments,
expanding, acquiring or selling assets, extending credit for highly-leveraged
transactions, paying excessive compensation, amending their charters or bylaws
and making any material changes in accounting methods. In general, a receiver or
conservator must be appointed for a depository institution within 90 days after
the institution is deemed to be critically undercapitalized.
SUPPORT OF SUBSIDIARY BANKS
Under Federal Reserve policy, the Corporation is expected to serve as a
source of financial strength to, and to commit resources to support, each of the
Subsidiary Banks. This support may be required at times when, absent such
Federal Reserve policy, the Corporation may not be inclined to provide it. In
the event of a bank holding company's bankruptcy, any commitment by the bank
holding company to a federal bank regulatory agency to maintain the capital of a
subsidiary bank will be assumed by the bankruptcy trustee and entitled to a
priority of payment.
A depository institution insured by the FDIC can be held liable for any
loss incurred by, or reasonably expected to be incurred by, the FDIC in
connection with the default of a commonly controlled FDIC-insured depository
institution or any assistance provided by the FDIC to any commonly controlled
FDIC-insured depository institution "in danger of default". "Default" is defined
generally as the appointment of a conservator or receiver and "in danger of
default" is defined generally as the existence of certain conditions indicating
that a default is likely to occur in the absence of regulatory assistance.
Liability for the losses of commonly-controlled depository institutions can lead
to the failure of some or all depository institutions in a holding company
structure, if the remaining institutions are unable to pay the liability
assessed by the FDIC. Any obligation or liability owed by a subsidiary bank to
its parent company or to an affiliate of the subsidiary bank is subordinate to
the subsidiary bank's cross-guarantee liability for losses of
commonly-controlled depository institutions.
DESCRIPTION OF THE DEBT SECURITIES
GENERAL
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
and the extent, if any, to which general provisions may apply to such Debt
Securities (the "Offered Debt Securities") will be described in the Prospectus
Supplement relating to such Offered Debt Securities (the "Applicable Prospectus
Supplement").
Senior Debt Securities will be issued from time to time in series under an
Indenture, dated as of May 1, 1993 (the "Senior Indenture"), between the
Corporation and PNC Bank, National Association, as Trustee (the "Senior
Trustee"). Subordinated Debt Securities will be issued under an Indenture, dated
as of May 1, 1993 (the "Subordinated Indenture"), between the Corporation and
The First National Bank of Chicago, as Trustee (the "Subordinated Trustee"). The
Senior Indenture and the Subordinated Indenture are sometimes herein referred to
collectively as the "Indentures" and the Senior Trustee and the Subordinated
Trustee are sometimes herein referred to collectively as the "Trustees". The
Indentures are incorporated by reference as exhibits to the Registration
Statement of which this Prospectus is a part.
The following summaries of certain provisions of the Senior Debt
Securities, the Subordinated Debt Securities, the Senior Indenture and the
Subordinated Indenture, as modified or superseded by the Applicable Prospectus
Supplement, are brief summaries of certain provisions thereof, do not purport to
be complete and are subject to, and are qualified in their entirety by reference
to, all the provisions of the Indenture applicable to a particular series of
Debt Securities (the "Applicable Indenture"), including the definitions therein
of certain terms. Whenever particular provisions or defined terms in one or both
of the Indentures are referred to, such provisions or defined terms are
incorporated herein by reference. Numerical references in parentheses below are
references to the Applicable Indenture. Capitalized terms not otherwise defined
herein shall have the meanings given to them in the Applicable Indenture.
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The Debt Securities will be limited to an aggregate initial offering price
of $500,000,000 or its equivalent based on the applicable exchange rate at the
time of the offering if denominated in foreign currencies and will be direct,
unsecured obligations of the Corporation. The Debt Securities will not be
deposits or other obligations of any bank or nonbank subsidiary of the
Corporation and will not be insured by the FDIC, the Bank Insurance Fund or any
other government agency or instrumentality. The Indentures do not limit the
aggregate principal amount of Debt Securities or of any particular series of
Debt Securities which may be issued thereunder and provide that Debt Securities
issued thereunder may be issued from time to time in one or more series, in each
case with the same or various maturities, at par or at a discount.
The Indentures do not limit the amount of other debt that may be issued by
the Corporation and do not contain financial or similar restrictive covenants.
As of September 30, 1997, the Corporation had an aggregate of $680.0 million of
long-term Senior Indebtedness (as defined below under "Subordination of the
Subordinated Debt Securities") outstanding and an aggregate of approximately
$1830.9 million of short-term Senior Indebtedness outstanding which consisted
primarily of commercial paper. As of September 30, 1997, the Corporation had no
Additional Senior Obligations (as defined below) outstanding. The Corporation
expects from time to time to incur additional indebtedness constituting Senior
Indebtedness and Additional Senior Obligations. The Indentures do not prohibit
or limit the incurrence of additional Senior Indebtedness or Additional Senior
Obligations. As of September 30, 1997, the Corporation had an aggregate of
$1294.5 million of long-term Subordinated Debt Securities outstanding.
The Senior Debt Securities will be unsecured and will rank on a parity with
all other unsecured and unsubordinated indebtedness of the Corporation. The
Subordinated Debt Securities will be unsecured and will be subordinated and
junior to all Senior Indebtedness and, in certain circumstances relating to the
dissolution, winding-up, liquidation or reorganization of the Corporation, to
all Additional Senior Obligations to the extent set forth below under
"Subordination of the Subordinated Debt Securities". Because the Corporation is
a holding company and a legal entity separate and distinct from its
subsidiaries, the rights of the Corporation to participate in any distribution
of assets of any subsidiary upon its liquidation of assets or reorganization or
otherwise (and thus the ability of Holders of Debt Securities to benefit
indirectly from such distribution) would be subject to the prior claims of
creditors of that subsidiary, except to the extent that the Corporation itself
may be a creditor of that subsidiary with recognized claims. However, in the
event of a liquidation or other resolution of an insured depository institution,
the claims of depositors and other general or subordinated creditors are
entitled to a priority of payment over the claims of holders of any obligation
of the institution to its shareholders, including any depository institution
holding company or any shareholder or creditor thereof. Claims on the
Corporation's subsidiary banks by creditors other than the Corporation include
long-term debt and substantial obligations with respect to deposit liabilities
and federal funds purchased, securities sold under repurchase agreements, other
short-term borrowings and various other financial obligations. In addition, the
Indentures and the Debt Securities will not contain any provision that would
provide protection to the Holders of the Debt Securities against a sudden and
dramatic decline in credit quality resulting from a takeover, recapitalization
or similar restructuring of the Corporation or other event involving the
Corporation that may adversely affect the credit quality of the Corporation.
Reference is made to the Applicable Prospectus Supplement for the following
terms of the Offered Debt Securities offered thereby: (i) the title of the
Offered Debt Securities; (ii) whether the Offered Debt Securities are Senior
Debt Securities or Subordinated Debt Securities; (iii) any limit upon the
aggregate principal amount of the Offered Debt Securities and the percentage of
such principal amount at which such Offered Debt Securities may be issued; (iv)
the date or dates on which the principal of the Offered Debt Securities is
payable (the "Stated Maturity"); (v) the rate or rates of interest (which may be
fixed or variable) per annum at which the Offered Debt Securities will bear
interest, or the method of determining such rate or rates, if any; (vi) the date
or dates from which such interest, if any, will accrue, the Interest Payment
Dates on which any such interest will be payable, the Regular Record Date for
the interest payable on any Interest Payment Date, the Person to whom any
Offered Debt Security of such series will be payable, if other than the Person
in whose name that Offered Debt Security (or one or more predecessor Debt
Securities) is registered at the close of business on the Regular Record Date
for such interest, and the extent to which, or the manner in which, any interest
payable on a permanent global Offered Debt Security on an
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Interest Payment Date will be paid; (vii) if other than the location specified
in this Prospectus, the place or places where the principal of and premium, if
any, and interest on the Offered Debt Securities will be payable; (viii) the
period or periods within which, the price or prices at which and the terms and
conditions upon which the Offered Debt Securities will, pursuant to any
mandatory sinking fund provisions or otherwise, or may, pursuant to any optional
sinking fund provisions or otherwise, be redeemed in whole or in part by the
Corporation; (ix) if applicable, the period or periods within which, the price
or prices at which and the terms and conditions upon which the Offered Debt
Securities may be repaid, in whole or in part, at the option of the Holders
thereof; (x) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which the Offered Debt Securities shall be
issuable; (xi) if other than the principal amount thereof, the portion of the
principal amount of the Offered Debt Securities which shall be payable upon
declaration of acceleration of the Stated Maturity thereof; (xii) if other than
U.S. dollars, the currency or currency unit of payment of principal and premium,
if any, and interest on such Offered Debt Securities, and any index used to
determine the amount of payment of principal or premium, if any, and interest on
such Offered Debt Securities; (xiii) whether the Offered Debt Securities are to
be issuable in permanent global form and, in such case, the initial depository
with respect thereto and the circumstances under which such permanent global
Offered Debt Security may be exchanged; (xiv) whether the subordination
provisions summarized below or different subordination provisions, including a
different definition of "Senior Indebtedness", "Entitled Persons", "Existing
Subordinated Indebtedness" or "Additional Senior Obligations", shall apply to
the Offered Debt Securities; (xv) any Events of Default applicable to such
Offered Debt Securities (if not set forth in the applicable Indenture), and any
additional restrictive covenants (if not set forth in the applicable Indenture)
or different restrictive covenants, but not inconsistent with the restrictive
covenants contained in the applicable Indenture; (xvi) if such Offered Debt
Securities are Senior Debt Securities, whether the provisions of the Senior
Indenture relating to "Defeasance and Covenant Defeasance" will be applicable to
such series of Offered Debt Securities; and (xvii) any other terms of the
Offered Debt Securities not specified in this Prospectus.
Unless otherwise indicated in the Applicable Prospectus Supplement,
principal, premium, if any, and interest, if any, on the Debt Securities will be
payable, and the Debt Securities will be transferable, at the Corporate Trust
Office of SunTrust Bank, Atlanta in Atlanta, Georgia, except that interest may
be paid at the option of the Corporation by check mailed to the address of the
Holder entitled thereto as it appears on the Security Register. The Corporation
will have the right to require a holder of any Debt Security, in connection with
the payment of the principal, premium, if any, and interest, if any, on such
Debt Security, to certify information to the Corporation or, in the absence of
such certification, the Corporation will be entitled to rely on any legal
presumption to enable the Corporation to determine its duties and liabilities,
if any, to deduct or withhold taxes, assessments or governmental charges from
such payment.
If the principal, premium, if any, or interest, if any, on any Debt
Securities are to be payable in any currency other than U.S. dollars or, at the
election of the Corporation or a holder thereof, in one or more currencies or
composite currencies, or if any index is used to determine the amount of
payments of principal, premium, if any, or interest, if any, on any series of
Debt Securities, any special Federal income tax, accounting and other
considerations applicable thereto will be described in the Prospectus Supplement
relating thereto.
Unless otherwise indicated in the Applicable Prospectus Supplement, the
Debt Securities will be issued only in fully registered form, without coupons,
in denominations of $1,000 and any integral multiple thereof. No service charge
will be made for any registration of transfer or exchange of the Debt
Securities, but the Corporation may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Both Senior Debt Securities and Subordinated Debt Securities may be issued
as Original Issue Discount Securities to be offered and sold at a substantial
discount below their stated principal amount. Federal income tax consequences
and other special considerations applicable to any such Original Issue Discount
Securities will be described in the Applicable Prospectus Supplement. "Original
Issue Discount Security" means any security which provides for an amount less
than the principal amount thereof to be due and payable upon the
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declaration of acceleration of the Stated Maturity thereof in accordance with
the terms of the related Indenture.
Reference is made to the Applicable Prospectus Supplement relating to any
series of Offered Debt Securities that are Original Issue Discount Securities
for the particular provisions relating to acceleration of the maturity of a
portion of the principal amount of such series of Original Issue Discount
Securities upon the occurrence of an Event of Default and the continuation
thereof.
The Corporation has various credit agreements (as amended, the "Credit
Agreements"), between the Corporation and various credit banks, which contain
certain covenants of the Corporation, including a covenant that limits the
Corporation's Total Debt (as defined in the Credit Agreements) to an amount no
greater than its Net Worth (as defined in the Credit Agreements). As of
September 30, 1997, the Corporation's Net Worth was approximately $5.0 billion.
As of September 30, 1997, the Corporation had no indebtedness outstanding under
the Credit Agreements.
BOOK-ENTRY SECURITIES
The Debt Securities of a series may be issued in the form of one or more
Book-Entry Securities that will be deposited with a Depositary or its nominee
identified in the Applicable Prospectus Supplement (Section 301). In such a
case, one or more Book-Entry Securities will be issued in a denomination or
aggregate denominations equal to the portion of the aggregate principal amount
of Offered Debt Securities of the series to be represented by such Book-Entry
Security or Securities. Unless and until it is exchanged in whole or in part for
Debt Securities in definitive registered form, a Book-Entry Security may not be
transferred except as a whole by the Depositary for such Book-Entry Security to
a nominee of such Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such nominee to
a successor of the Depositary or a nominee of such successor (Section 305).
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Book-Entry
Security will be described in the Applicable Prospectus Supplement. The
Corporation anticipates that the following provisions will apply to all
depositary arrangements.
Upon the issuance of a Book-Entry Security, the Depositary for such
Book-Entry Security or its nominee will credit, on its book-entry registration
and transfer system, the respective principal amounts of the Securities
represented by such Book-Entry Security to the accounts of persons that have
accounts with such Depositary ("participants"). Such accounts shall be
designated by the underwriters or agents with respect to such Debt Securities or
by the Corporation if such Debt Securities are offered and sold directly by the
Corporation. Participants include securities brokers and dealers, banks and
trust companies, clearing corporations and certain other organizations. Access
to the Depositary's system is also available to others, such as banks, brokers,
dealers and trust companies that clear through or maintain a custodial
relationship with a participant, either directly or indirectly ("indirect
participants"). Persons who are not participants may beneficially own Book-Entry
Securities held by the Depositary only through participants or indirect
participants.
Ownership of beneficial interests in any Book-Entry Security will be shown
on, and the transfer of that ownership will be effected only through, records
maintained by the Depositary or its nominee (with respect to interests of
participants) for such Book-Entry Security and on the records of participants
(with respect to interests of indirect participants). The laws of some states
require that certain purchasers of securities take physical delivery of such
securities in definitive form. Such laws, as well as the limits on participation
in the Depositary's book-entry system, may impair the ability to transfer
beneficial interests in a Book-Entry Security.
So long as the Depositary or its nominee is the registered owner of a
Book-Entry Security, such Depositary or such nominee will be considered the sole
owner or holder of the Debt Securities represented by such Book-Entry Security
for all purposes under the Applicable Indenture. Except as provided below,
owners of beneficial interests in Debt Securities represented by Book-Entry
Securities will not be entitled to have Debt Securities of the series
represented by such Book-Entry Security registered in their names, will not
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receive or be entitled to receive physical delivery of such Debt Securities in
definitive form, and will not be considered the owners or holders thereof under
the Applicable Indenture.
Payments of principal of and any premium and interest on Debt Securities
registered in the name of the Depositary or its nominee will be made to the
Depositary or its nominee, as the case may be, as the registered owner of the
Book-Entry Security representing such Debt Securities. The Corporation expects
that the Depositary for a series of Debt Securities or its nominee, upon receipt
of any payment of principal, premium or interest, will immediately credit
participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount of the Book-Entry
Security for such Debt Securities, as shown on the records of such Depositary or
its nominee. The Corporation also expects that payments by participants and
indirect participants to owners of beneficial interests in such Book-Entry
Security held through such persons will be governed by standing instructions and
customary practices, as is now the case with securities registered in "street
name", and will be the responsibility of such participants and indirect
participants. Neither the Corporation, the Trustee, any Authenticating Agent,
any Paying Agent, nor the Security Registrar for such Debt Securities will have
any responsibility or liability for any aspect of the records relating to, or
payments made on account of, beneficial ownership interests in the Book-Entry
Security for such Debt Securities or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests (Section 311).
If the Depositary for Debt Securities of a series notifies the Corporation
that it is unwilling or unable to continue as Depositary or if at any time the
Depositary ceases to be a clearing agency registered under the Exchange Act, the
Corporation has agreed to appoint a successor depositary. If such a successor is
not appointed by the Corporation within 90 days, the Corporation will issue Debt
Securities of such series in definitive registered form in exchange for the
Book-Entry Security representing such series of Debt Securities. In addition,
the Corporation may at any time and in its sole discretion determine that the
Debt Securities of any series issued in the form of one or more Book-Entry
Securities shall no longer be represented by such Book-Entry Security or
Securities and, in such event, will issue Debt Securities of such series in
definitive registered form in exchange for such Book-Entry Security or
Securities representing such series of Debt Securities. Further, if the
Corporation so specifies with respect to the Debt Securities of a series, or if
an Event of Default, or an event which with notice, lapse of time or both would
be an Event of Default with respect to the Debt Securities of such series has
occurred and is continuing, an owner of a beneficial interest in a Book-Entry
Security representing Debt Securities of such series may receive Debt Securities
of such series in definitive registered form. In any such instance, an owner of
a beneficial interest in a Book-Entry Security will be entitled to physical
delivery in definitive registered form of Debt Securities of the series
represented by such Book-Entry Security equal in principal amount to such
beneficial interest and to have such Debt Securities registered in its name
(Section 305). Debt Securities so issued in definitive form will be issued in
denominations of $1,000 and integral multiples thereof and will be issued in
registered form only, without coupons.
SUBORDINATION OF THE SUBORDINATED DEBT SECURITIES.
The obligations of the Corporation to make any payment on account of the
principal of and premium, if any, and interest, if any, on any Subordinated Debt
Securities will, to the extent set forth in the Subordinated Indenture, be
subordinate and junior in right of payment to all Senior Indebtedness of the
Corporation and, in certain circumstances relating to the dissolution,
winding-up, liquidation of or reorganization of the Corporation, to all
Additional Senior Obligations (Article 13).
"Senior Indebtedness" is defined in the Subordinated Indenture to mean (a)
all indebtedness of the Corporation for money borrowed, whether now outstanding
or subsequently created, assumed or incurred, other than (i) the Subordinated
Debt Securities, (ii) any obligation Ranking on a Parity with the Subordinated
Debt Securities, or (iii) any obligation Ranking Junior to the Subordinated Debt
Securities and (b) any deferrals, renewals or extensions of any such Senior
Indebtedness. The term "indebtedness of the Corporation for money borrowed" is
defined in the Subordinated Indenture to mean any obligation of, or any
obligation guaranteed by, the Corporation for the repayment of borrowed money,
whether or not evidenced by bonds, debentures, notes or other written
instruments, and any deferred obligation for the payment of the
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purchase price of property or assets acquired other than in the ordinary course
of business. "Additional Senior Obligations" is defined in the Subordinated
Indenture to mean all indebtedness of the Corporation, whether now outstanding
or subsequently created, assumed or incurred, for claims in respect of
derivative products such as interest and foreign exchange rate contracts,
commodity contracts and similar arrangements; provided, however, that Additional
Senior Obligations do not include (a) any claims in respect of Senior
Indebtedness, or (b) any obligations (i) Ranking Junior to the Subordinated Debt
Securities, or (ii) Ranking on a Parity with the Subordinated Debt Securities.
For purposes of this definition, "claims" shall have the meaning assigned
thereto in Section 101(4) of the United States Bankruptcy Code of 1978. The
Subordinated Indenture does not limit or prohibit the incurrence of Senior
Indebtedness or Additional Senior Obligations.
The term "Ranking Junior to the Subordinated Debt Securities" is defined in
the Subordinated Indenture to mean any obligation of the Corporation which (a)
ranks junior to and not equally with or prior to the Subordinated Debt
Securities in right of payment upon the happening of any insolvency,
receivership, conservatorship, reorganization, readjustment of debt, marshalling
of assets and liabilities or similar proceedings or any liquidation or
winding-up of or relating to the Corporation as a whole, whether voluntary or
involuntary, and (b) is specifically designated as ranking junior to the
Subordinated Debt Securities by express provisions in the instrument creating or
evidencing such obligation (Section 101).
The term "Ranking on a Parity with the Subordinated Debt Securities" is
defined in the Subordinated Indenture to mean any obligation of the Corporation
which (a) ranks equally with and not prior to the Subordinated Debt Securities
in right of payment upon the happening of any insolvency, receivership,
conservatorship, reorganization, readjustment of debt, marshalling of assets and
liabilities or similar proceedings or any liquidation or winding-up of or
relating to the Corporation as a whole, whether voluntary or involuntary, and
(b) is specifically designated as ranking on a parity with the Subordinated Debt
Securities by express provisions in the instrument creating or evidencing such
obligation (Section 101).
The Subordinated Debt Securities will be subordinate in right of payment to
all Senior Indebtedness, as provided in the Subordinated Indenture. No payment
on account of the principal of and premium, if any, or interest in respect of
the Subordinated Debt Securities may be made if there shall have occurred and be
continuing a default in payment with respect to Senior Indebtedness or an event
of default with respect to any Senior Indebtedness resulting in the acceleration
of the maturity thereof. Upon any payment or distribution of assets to creditors
upon any insolvency, receivership, conservatorship, reorganization, readjustment
of debt, marshalling of assets and liabilities or similar proceedings or any
liquidation or winding-up of or relating to the Corporation as a whole, whether
voluntary or involuntary, (a) the holders of all Senior Indebtedness will first
be entitled to receive payment in full before the Holders of the Subordinated
Debt Securities will be entitled to receive any payment in respect of the
principal of and premium, if any, or interest on the Subordinated Debt
Securities, and (b) if after giving effect to the operation of clause (a) above,
(i) any amount of cash, property or securities remains available for payment or
distribution in respect of the Subordinated Debt Securities ("Excess Proceeds"),
and (ii) creditors in respect of Additional Senior Obligations have not received
payment in full of amounts due or to become due thereon or payment of such
amounts has not been duly provided for, then such Excess Proceeds shall first be
applied to pay or provide for the payment in full of all such Additional Senior
Obligations before any payment may be made on the Subordinated Debt Securities.
If the Holders of Subordinated Debt Securities receive payment and are aware at
the time of receiving payment that all Senior Indebtedness and Additional Senior
Obligations have not been paid in full, then such payment shall be held in trust
for the benefit of the holders of Senior Indebtedness and/or Additional Senior
Obligations, as the case may be (Section 1301).
By reason of such subordination, in the event of insolvency, Holders of
Subordinated Debt Securities may recover less, ratably, than holders of Senior
Indebtedness and holders of Additional Senior Obligations. In addition, in the
event of insolvency, creditors of the Corporation who are not holders of Senior
Indebtedness or Holders of the Subordinated Debt Securities may recover less,
ratably, than the holders of Senior Indebtedness and may recover more, ratably,
than the Holders of the Subordinated Debt Securities.
The Applicable Prospectus Supplement may further describe the provisions,
if any, applicable to the subordination of the Subordinated Debt Securities of a
particular series.
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RESTRICTION ON DISPOSITION OF VOTING STOCK OF CERTAIN SUBSIDIARIES
The Senior Indenture contains a covenant that, except as otherwise provided
below, the Corporation will not sell, assign, pledge, transfer or otherwise
dispose of, or permit the issuance of, or permit a Subsidiary to sell, assign,
pledge, transfer or dispose of, any shares of Voting Stock of any Subsidiary or
any securities convertible into Voting Stock of any Subsidiary which is: (a) a
Principal Constituent Bank; or (b) a Subsidiary which owns shares of Voting
Stock or any securities convertible into Voting Stock of a Principal Constituent
Bank; provided, however, that such covenant does not prohibit (i) any
dispositions made by the Corporation or any Subsidiary (A) acting in a fiduciary
capacity for any Person other than the Corporation or any Subsidiary or (B) to
the Corporation or any of its wholly owned (except for directors' qualifying
shares) Subsidiaries or (ii) the merger of a Principal Constituent Bank with and
into a Principal Constituent Bank or the consolidation of any Principal
Constituent Bank into a Principal Constituent Bank. Such covenant also does not
prohibit sales, assignments, pledges, transfers or other dispositions of shares
of Voting Stock of a corporation referred to in (a) or (b) above where: (i) the
sales, assignments, pledges, transfers or other dispositions are made, in the
minimum amount required by law, to any Person for the purpose of the
qualification of such Person to serve as a director; or (ii) the sales,
assignments, pledges, transfers or other dispositions are made in compliance
with an order of a court or regulatory authority of competent jurisdiction or as
a condition imposed by any such court or authority to the acquisition by the
Corporation, directly or indirectly, of any other corporation or entity; or
(iii) in the case of a disposition of shares of Voting Stock or any securities
convertible into Voting Stock of a Principal Constituent Bank, or sales of
Voting Stock or any securities convertible into Voting Stock of any Subsidiary
included in (b) above, the sales, assignments, pledges, transfers or other
dispositions are for fair market value (as determined by the Board of Directors
of the Corporation and the Subsidiary disposing of such shares or securities)
and, after giving effect to such disposition and to any potential dilution (if
the shares or securities are convertible into Voting Stock), the Corporation and
its directly or indirectly wholly owned (except for directors' qualifying
shares) Subsidiaries, will own directly not less than 80% of the Voting Stock of
such Principal Constituent Bank or Subsidiary; or (iv) a Constituent Bank sells
additional shares of Voting Stock to its shareholders at any price, so long as
immediately after such sale the Corporation owns, directly or indirectly, at
least as great a percentage of the Voting Stock of such Constituent Bank as it
owned prior to such sale of additional shares; or (v) a pledge is made or a lien
is created to secure loans or other extensions of credit by a Constituent Bank
subject to Section 23A of the Federal Reserve Act (Section 1005). Any
Constituent Bank the total assets of which equal more than 15% of the total
assets of all Constituent Banks is defined in the Senior Indenture to be a
"Principal Constituent Bank" (Section 101). As of September 30, 1997, SunTrust
Bank, Atlanta was the only Constituent Bank which is a Principal Constituent
Bank.
The foregoing covenant is not a covenant for the benefit of the
Subordinated Debt Securities.
EVENTS OF DEFAULT
The Senior Indenture. The following are Events of Default under the Senior
Indenture with respect to Senior Debt Securities of any series: (a) failure to
pay any interest on any Debt Security of that series when due and payable,
continued for 30 days; (b) failure to pay principal of or any premium on any
Debt Security of that series when due; (c) failure to deposit any sinking fund
payment, when due, in respect of any Debt Security of that series; (d) failure
to perform any other covenant of the Corporation in the Senior Indenture (other
than a covenant included in the Senior Indenture solely for the benefit of
series of Debt Securities other than that series), continued for 90 days after
written notice as provided in the Senior Indenture; (e) the entry of a decree or
order for relief in respect of the Corporation by a court having jurisdiction in
the premises in an involuntary case under Federal or state bankruptcy laws and
the continuance of any such decree or order unstayed and in effect for a period
of 60 consecutive days; (f) the commencement by the Corporation of a voluntary
case under Federal or state bankruptcy laws or the consent by the Corporation to
the entry of a decree or order for relief in an involuntary case under any such
law; and (g) any other Event of Default provided with respect to Debt Securities
of that series (Section 501). If an Event of Default with respect to Debt
Securities of any series occurs and is continuing either the Senior Trustee or
the Holders of at least 25% in aggregate principal amount of the Outstanding
Debt Securities of that series may declare by notice in
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writing to the Corporation the principal amount (or, if the Debt Securities of
that series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) of all the
Debt Securities of that series to be due and payable immediately. At any time
after a judgment or decree based on acceleration has been obtained, the Holders
of a majority in aggregate principal amount of Outstanding Debt Securities of
that series may, under certain circumstances, rescind and annul such
acceleration (Section 502).
Reference is made to the Applicable Prospectus Supplement relating to any
series of Offered Debt Securities that are Original Issue Discount Securities
for the particular provisions relating to acceleration of the Stated Maturity of
a portion of the principal amount of such series of Original Issue Discount
Securities upon the occurrence of an Event of Default and the continuation
thereof.
The Senior Indenture provides that, subject to the duty of the Senior
Trustee during default to act with the required standard of care, the Senior
Trustee will be under no obligation to exercise any of its rights or powers
under the Senior Indenture at the request or direction of any of the Holders,
unless such Holders shall have offered to the Senior Trustee reasonable security
or indemnity (Section 603). Subject to such provisions for the indemnification
of the Senior Trustee and to certain other conditions, the Holders of a majority
in aggregate principal amount of the Outstanding Debt Securities of any series
will have the right to direct the time, method and place of conducting any
proceedings for any remedy available to the Senior Trustee, or exercising any
trust or power conferred on the Senior Trustee, with respect to the Debt
Securities of that series provided that the Senior Trustee may decline to act if
such direction is contrary to law or the Senior Indenture, would unduly
prejudice the rights of other Holders or would involve the Senior Trustee in
personal liability (Section 512).
No Holder of any Debt Security of any series will have any right to
institute any proceeding with respect to the Senior Indenture, or for the
appointment of a receiver or trustee or for any remedy thereunder, unless such
Holder shall have previously given to the Senior Trustee written notice of a
continuing Event of Default with respect to the Debt Securities of that series
and unless the Holders of not less than 25% in aggregate principal amount of the
Outstanding Debt Securities of that series shall have made written request, and
offered reasonable indemnity, to the Senior Trustee to institute such proceeding
as trustee, and the Senior Trustee shall not have received from the Holders of a
majority in principal amount of the Outstanding Debt Securities of that series a
direction inconsistent with such request and shall have failed to institute such
proceeding within 60 days (Section 507). However, the Holder of any Debt
Security will have an absolute right to receive payment of the principal of (and
premium, if any) and interest on such Debt Security on the due dates expressed
in such Debt Security and to institute suit for the enforcement of any such
payment (Section 508).
The Corporation is required to furnish to the Senior Trustee annually a
statement as to performance by the Corporation of certain of its obligations
under the Senior Indenture and as to any default in such performance (Section
1006).
The Subordinated Indenture. The Subordinated Indenture (with respect to
any series of Subordinated Debt Securities) defines an "Event of Default" as any
one of the following events (whatever the reason and whether it be occasioned by
the subordination provisions or be voluntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administration or governmental body): (a) failure to pay any
interest on any Debt Security of that series when due and payable, continued for
30 days; (b) failure to pay principal of or any premium on any Debt Security of
that series when due; (c) failure to deposit any sinking fund payment, when due,
in respect of any Debt Security of that series; (d) failure to perform any other
covenant of the Corporation in the Subordinated Indenture (other than a covenant
included in the Subordinated Indenture solely for the benefit of series of Debt
Securities other than that series), continued for 90 days after written notice
as provided in the Subordinated Indenture; (e) the entry of a decree or order
for relief in respect of the Corporation by a court having jurisdiction in the
premises in an involuntary case under Federal or state bankruptcy laws and the
continuance of any such decree or order unstayed and in effect for a period of
60 consecutive days; (f) the commencement by the Corporation of a voluntary case
under Federal or state bankruptcy laws or the consent by the Corporation to the
entry of a
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decree or order for relief in an involuntary case under any such law; and (g)
any other Event of Default provided with respect to Debt Securities of that
series (Section 501).
Unless specifically stated in the Applicable Prospectus Supplement for a
particular series of Subordinated Debt Securities, the payment of the principal
of the Subordinated Debt Securities may be accelerated only upon the occurrence
of an Event of Default described in clause (e) or clause (f) of the preceding
paragraph (a "Bankruptcy Event of Default") and there is no right of
acceleration of the payment of principal of the Subordinated Debt Securities of
such series upon a default in the payment of principal, premium, if any, or
interest, if any, or in the performance of any covenant or agreement in the
Subordinated Debt Securities or Subordinated Indenture. In the event of a
default in the payment of principal, premium, if any, or interest, if any, or in
the performance of any covenant or agreement in the Subordinated Debt Securities
or Subordinated Indenture, the Subordinated Trustee, subject to certain
limitations and conditions, may institute judicial proceedings to enforce
payment of such principal, premium, if any, or interest, if any, or to obtain
the performance of such covenant or agreement or any other proper remedy
(Section 503). Under certain circumstances, the Subordinated Trustee may
withhold notice to the Holders of the Subordinated Debt Securities of a default
if the Subordinated Trustee in good faith determines that the withholding of
such notice is in the best interest of such Holders, and the Subordinated
Trustee shall withhold such notice for certain defaults for a period of 30 days
(Section 602).
If a Bankruptcy Event of Default with respect to the Debt Securities of any
series at the time outstanding occurs and is continuing, either the Subordinated
Trustee or the Holders of at least 25% in aggregate principal amount of the
Outstanding Debt Securities of that series may declare the principal amount (or,
if the Debt Securities of that series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms thereof)
of all the Debt Securities of that series to be due and payable immediately. At
any time after a declaration of acceleration with respect to Debt Securities of
any series has been made, but before a judgment or decree based on acceleration
has been obtained, the Holders of a majority in aggregate principal amount of
Outstanding Debt Securities of that series may, under certain circumstances,
rescind and annul such acceleration (Section 502).
Reference is made to the Applicable Prospectus Supplement relating to any
series of Offered Debt Securities that are Original Issue Discount Securities
for the particular provisions relating to acceleration of the Stated Maturity of
a portion of the principal amount of such series of Original Issue Discount
Securities upon the occurrence of an Event of Default and the continuation
thereof.
The Subordinated Indenture provides that, subject to the duty of the
Subordinated Trustee during default to act with the required standard of care,
the Subordinated Trustee will be under no obligation to exercise any of its
rights or powers under the Subordinated Indenture at the request or direction of
any of the Holders, unless such Holders shall have offered to the Subordinated
Trustee reasonable security or indemnity (Section 603). Subject to such
provisions for the indemnification of the Subordinated Trustee and to certain
other conditions, the Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of any series will have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Subordinated Trustee, or exercising any trust or power conferred on the
Subordinated Trustee, with respect to the Debt Securities of that series,
provided that the Subordinated Trustee may decline to act if such direction is
contrary to law or the Subordinated Indenture, would unduly prejudice the right
of other Holders or would involve the Subordinated Trustee in personal liability
(Section 512).
No Holder of any Debt Security of any series will have any right to
institute any proceeding with respect to the Subordinated Indenture, or for the
appointment of a receiver or trustee or for any remedy thereunder, unless such
Holder shall have previously given the Subordinated Trustee written notice of a
continuing Event of Default with respect to the Debt Securities of that series
and unless the Holders of not less than 25% in aggregate principal amount of the
Outstanding Debt Securities of that series shall have made written request, and
offered reasonable indemnity, to the Subordinated Trustee to institute such
proceeding as trustee, and the Subordinated Trustee shall not have received from
the Holders of a majority in principal amount of the Outstanding Debt Securities
of that series a direction inconsistent with such request and shall have failed
to institute such proceeding within 60 days (Section 507). However, the Holder
of any Debt Security will have
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an absolute right to receive payment of the principal of (and premium, if any)
and interest on such Debt Security on the due dates expressed in such Debt
Security and to institute suit for the enforcement of any such payment (Section
508).
The Corporation is required to furnish to the Subordinated Trustee annually
a statement as to performance by the Corporation of certain of its obligations
under the Subordinated Indenture and as to any default in such performance
(Section 1005).
DEFEASANCE AND COVENANT DEFEASANCE
The Senior Indenture provides that, to the extent indicated in the
Applicable Prospectus Supplement, the Corporation, at the Corporation's option,
(a) will be discharged from any and all obligations in respect of the Senior
Debt Securities of a particular series (except for certain obligations to
register the transfer or exchange of Senior Debt Securities of such series, to
replace stolen, lost or mutilated Senior Debt Securities of such series, to
maintain paying agencies and to hold money for payment in trust) or (b) need not
comply with certain restrictive covenants of the Senior Indenture, including
those described under "Restrictions on Disposition of Voting Stock of Certain
Subsidiaries" and "Consolidation, Merger and Transfer of Assets" and the
occurrence of an event described in clause (d) under "Events of Default" under
the Senior Indenture shall no longer be an Event of Default with respect to such
series of Senior Debt Securities, in each case, if the Corporation deposits, in
trust, with the Senior Trustee money and/or Government Obligations, which
through the payment of interest thereon and principal thereof in accordance with
their terms will provide money in an amount sufficient, without reinvestment, to
pay all the principal of and any premium and interest on the Senior Debt
Securities of such series and any mandatory sinking fund payments or analogous
payments on the dates such payments are due in accordance with the terms of the
Senior Debt Securities of such series and the Senior Indenture. Such a trust may
only be established if, among other things, (i) no Event of Default or event
which with the giving of notice or lapse of time, or both, would become an Event
of Default with respect to such series under the Senior Indenture shall have
occurred and be continuing on the date of such deposit, (ii) such defeasance
will not cause the Senior Trustee to have any conflicting interest with respect
to other securities of the Corporation and (iii) the Corporation shall have
delivered an Opinion of Counsel to the effect that the Holders will not
recognize income, gain or loss for federal income tax purposes as a result of
such defeasance and will be subject to federal income tax on the same amounts,
in the same manner, and at the same times as if such defeasance had not
occurred. In the event the Corporation exercises its option to omit compliance
with certain covenants of the Senior Indenture with respect to the Senior Debt
Securities of any series and the Senior Debt Securities of such series are
declared due and payable because of the occurrence of any Event of Default under
the Senior Indenture, the amount of money and Government Obligations on deposit
with the Trustee will be sufficient to pay amounts due on the Senior Debt
Securities of such series at the time of their Stated Maturity but may not be
sufficient to pay amounts due on the Senior Debt Securities of such series at
the time of the acceleration resulting from such Event of Default under the
Senior Indenture. However, the Corporation will remain liable with respect to
such payments (Article 13).
The foregoing defeasance and covenant defeasance provisions are not for the
benefit of the Subordinated Debt Securities.
MODIFICATION AND WAIVER
Modifications to and amendments of the Indentures may be made by the
Corporation and the Trustees with the consent of the Holders of 66 2/3% in
aggregate principal amount of the Outstanding Debt Securities of each series
affected by such modification or amendment; provided, however, that no such
modification or amendment may without the consent of the Holder of each
Outstanding Debt Security affected thereby (a) change the stated maturity date
of the principal of, or any installment of principal or interest on, any Debt
Security, (b) reduce the principal amount of, or any premium or rate of interest
on, any Debt Security, (c) reduce the amount of principal of an Original Issue
Discount Security payable upon acceleration of the maturity thereof, (d) change
the place or currency of payment of principal of, or any premium or interest on,
any Debt Security, (e) impair the right to institute suit for the enforcement of
any payment on or with respect to any Debt Security, or (f) reduce the
percentage in principal amount of Outstanding Debt Securities of any
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series, the consent of whose Holders is required for modification or amendment
of the Indentures or for waiver of compliance with certain provisions of the
Indentures or for waiver of certain defaults (Section 902).
The Holders of at least 66 2/3% in aggregate principal amount of the
Outstanding Debt Securities of each series may, on behalf of all Holders of Debt
Securities of that series, waive, insofar as that series is concerned,
compliance by the Corporation with certain restrictive provisions of the
Indentures, including with respect to Senior Debt Securities those provisions
described above under "Restriction on Disposition of Voting Stock of Certain
Subsidiaries" (Senior Indenture Section 1007; Subordinated Indenture Section
1006). The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series may, on behalf of all Holders of Debt
Securities of that series, waive any past default under the Applicable
Indenture, except a default in the payment of principal of, or any premium or
interest on, any Debt Security of that series or a default in respect of a
covenant or provision which under the Indentures cannot be modified or amended
without the consent of the Holder of each Outstanding Debt Security of the
series affected (Section 513).
CONSOLIDATION, MERGER AND TRANSFER OF ASSETS
The Corporation may consolidate with or merge into, or transfer its assets
substantially as an entirety to, any corporation organized under the laws of the
United States, any state thereof or the District of Columbia, provided that the
successor corporation assumes the Corporation's obligations on the Debt
Securities and under the Indentures, that after giving effect to the transaction
no Event of Default, and no event which, after notice or lapse of time, would
become an Event of Default, shall have occurred and be continuing, and that
certain other conditions are met (Section 801).
TRUSTEES
Either or both of the Trustees may resign or be removed with respect to one
or more series of Debt Securities and a successor Trustee may be appointed to
act with respect to such series (Section 610). In the event that two or more
persons are acting as Trustee with respect to different series of Debt
Securities, each such Trustee shall be a Trustee of a trust under the related
Indenture separate and apart from the trust administered by any other such
Trustee, and any action described herein to be taken by the "Trustee" may then
be taken by each such Trustee with respect to, and only with respect to, the one
or more series of Debt Securities for which it is Trustee (Section 611).
In the normal course of business, the Corporation and its subsidiaries
conduct banking transactions with the Trustees, and the Trustees conduct banking
transactions with the Corporation and its subsidiaries.
PLAN OF DISTRIBUTION
The Corporation may sell Debt Securities to or through underwriters to be
designated from time to time, and also may sell Debt Securities directly to
other purchasers or through agents. The distribution of the Debt Securities may
be effected from time to time in one or more transactions at a fixed price or
prices, which may be changed from time to time, at market prices prevailing at
the time of sale, at prices related to such prevailing market prices or at
negotiated prices. Each Prospectus Supplement will describe the method of
distribution of the Offered Debt Securities.
The Debt Securities will be new issues of securities with no established
trading market and unless otherwise specified in the applicable Prospectus
Supplement, the Corporation will not list any series of the Debt Securities on
any exchange. It has not presently been established whether the underwriters, if
any, of the Debt Securities will make a market in the Debt Securities. If a
market in the Debt Securities is made by any such underwriters, such market
making may be discontinued at any time without notice. No assurance can be given
as to the liquidity of the trading market for the Debt Securities.
In connection with the sale of Debt Securities, underwriters or agents
acting on behalf of the Corporation may receive compensation from the
Corporation or from purchasers of Debt Securities for whom they may act as
agents in the form of discounts, concessions or commissions. Underwriters may
sell Debt Securities to or through dealers, and such dealers may receive
compensation in the form of discounts, concessions or
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commissions from the underwriters and/or commissions from the purchasers for
whom they may act as agents. Underwriters, dealers and agents that participate
in the distribution of Debt Securities may be deemed to be underwriters, and any
discounts or commissions received by them from the Corporation and any profit on
the trade of Debt Securities by them may be deemed to be underwriting discounts
and commissions, under the Securities Act. Any such underwriter or agent will be
identified, and any such compensation received from the Corporation will be
described, in the Prospectus Supplement relating to such Debt Securities.
Under agreements which may be entered into by the Corporation,
underwriters, dealers, agents and their controlling persons who participate in
the distribution of Debt Securities may be entitled to indemnification by the
Corporation against certain liabilities, including liabilities under the
Securities Act, and to certain rights of contribution from the Corporation.
If so indicated in the Prospectus Supplement relating to any Offered Debt
Securities, the Corporation will authorize underwriters or other persons acting
as the Corporation's agents to solicit offers by certain institutions to
purchase any Offered Debt Securities from the Corporation pursuant to delayed
delivery contracts providing for payment and delivery on a future date.
Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all cases such
institutions must be approved by the Corporation. The obligations of any
purchaser under any such contract will be subject to the condition that the
purchase of any Offered Debt Securities shall not at the time of delivery be
prohibited under the laws of the jurisdiction to which such purchaser is
subject. The underwriters and such other agents will not have any responsibility
in respect of the validity or performance of such contracts.
The participation of any affiliate of the Corporation in the offer and sale
of Offered Debt Securities will comply with the requirements of Rule 2720 of the
Conduct Rules of the National Association of Securities Dealers, Inc. regarding
the underwriting by an affiliate of securities of its parent.
Underwriters or agents and their associates may be customers of (including
borrowers from), engage in transactions with, and/or perform services for, the
Corporation and its subsidiaries, the Senior Trustee and the Subordinated
Trustee, in the ordinary course of business.
LEGAL MATTERS
Certain legal matters with respect to the Offered Debt Securities will be
passed upon for the Corporation by Raymond D. Fortin, Senior Vice
President -- Legal and Corporate Secretary, and by King & Spalding, and for any
underwriters by Skadden, Arps, Slate, Meagher & Flom LLP, New York, New York. As
of December 31, 1997, Mr. Fortin beneficially owned 20,800 shares of common
stock of the Corporation and held options to purchase 3,000 shares of common
stock of the Corporation. Skadden, Arps, Slate, Meagher & Flom LLP will rely
upon the opinion of Mr. Fortin and of King & Spalding as to matters of Georgia
law.
EXPERTS
The audited consolidated financial statements incorporated by reference in
this Prospectus and elsewhere in the Registration Statement have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
report with respect thereto, and are incorporated herein in reliance upon the
authority of said firm as experts in giving said report.
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Estimated expenses in connection with the issuance and distribution of the
Debt Securities being registered, other than underwriting compensation, are as
follows:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee......... $147,500
National Association of Securities Dealers, Inc. filing
fee....................................................... 30,500
Blue Sky fees and expenses.................................. 5,000
Attorneys' fees and expenses................................ 10,000
Accounting fees and expenses................................ 7,500
Printing and engraving expenses............................. 25,000
Fees of indenture trustees.................................. 20,000
Paying Agent fees........................................... 9,500
Rating Agency fees.......................................... 100,000
Miscellaneous expenses...................................... 10,000
--------
Total..................................................... $365,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
PART 5 OF ARTICLE 8 OF THE GEORGIA BUSINESS CORPORATION CODE STATES:
14-2-850. PART DEFINITIONS
As used in this part, the term:
(1) "Corporation" includes any domestic or foreign predecessor entity
of a corporation in a merger or other transaction in which the
predecessor's existence ceased upon consummation of the transaction.
(2) "Director" or "officer" means an individual who is or was a
director or officer, respectively, of a corporation or who, while a
director or officer of the corporation, is or was serving at the
corporation's request as a director, officer, partner, trustee, employee,
or agent of another domestic or foreign corporation, partnership, joint
venture, trust, employee benefit plan, or other entity. A director or
officer is considered to be serving an employee benefit plan at the
corporation's request if his or her duties to the corporation also impose
duties on, or otherwise involve services by, the director or officer to the
plan or to participants in or beneficiaries of the plan. Director or
officer includes, unless the context otherwise requires, the estate or
personal representative of a director or officer.
(3) "Disinterested director" means a director who at the time of a
vote referred to in subsection (c) of Code Section 14-2-853 or a vote or
selection referred to in subsection (b) or (c) of Code Section 14-2-855 or
subsection (a) of Code Section 14-2-856 is not:
(A) A party to the proceeding; or
(B) An individual who is a party to a proceeding having a familial,
financial, professional, or employment relationship with the director
whose indemnification or advance for expenses is the subject of the
decision being made with respect to the proceeding, which relationship
would, in the circumstances, reasonably be expected to exert an
influence on the director's judgment when voting on the decision being
made.
(4) "Expenses" include counsel fees.
(5) "Liability" means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to an employee
benefit plan), or reasonable expenses incurred with respect to a
proceeding.
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(6) "Official capacity" means:
(A) When used with respect to a director, the office of director in
a corporation; and
(B) When used with respect to an officer, as contemplated in Code
Section 14-2-857, the office in a corporation held by the officer.
Official capacity does not include service for any other domestic or
foreign corporation or any partnership, joint venture, trust, employee benefit
plan, or other entity.
(7) "Party" means an individual who was, is, or is threatened to be
made a named defendant or respondent in a proceeding.
(8) "Proceeding" means any threatened, pending, or completed action,
suit, or proceeding, whether civil, criminal, administrative, arbitrative,
or investigative and whether formal or informal.
14-2-851. AUTHORITY TO INDEMNIFY
(a) Except as otherwise provided in this Code section, a corporation may
indemnify an individual who is a party to a proceeding because he or she is or
was a director against liability incurred in the proceeding if:
(1) Such individual conducted himself or herself in good faith; and
(2) Such individual reasonably believed:
(A) In the case of conduct in his or her official capacity, that
such conduct was in the best interests of the corporation;
(B) In all other cases, that such conduct was at least not opposed
to the best interests of the corporation; and
(C) In the case of any criminal proceeding, that the individual had
no reasonable cause to believe such conduct was unlawful.
(b) A director's conduct with respect to an employee benefit plan for a
purpose he or she believed in good faith to be in the interests of the
participants in and beneficiaries of the plan is conduct that satisfies the
requirement of subparagraph (a)(1)(B) of this Code section.
(c) The termination of a proceeding by judgment, order, settlement, or
conviction or upon a plea of nolo contendere or its equivalent is not, of
itself, determinative that the director did not meet the standard of conduct
described in this Code section.
(d) A corporation may not indemnify a director under this Code section:
(1) In connection with a proceeding by or in the right of the
corporation, except for reasonable expenses incurred in connection with the
proceeding if it is determined that the director has met the relevant
standard of conduct under this Code section; or
(2) In connection with any proceeding with respect to conduct for
which he was adjudged liable on the basis that personal benefit was
improperly received by him, whether or not involving action in his official
capacity.
14-2-852. MANDATORY INDEMNIFICATION
A corporation shall indemnify a director who was wholly successful, on the
merits or otherwise, in the defense of any proceeding to which he or she was a
party because he or she was a director of the corporation against reasonable
expenses incurred by the director in connection with the proceeding.
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14-2-853. ADVANCE FOR EXPENSES
(a) A corporation may, before final disposition of a proceeding, advance
funds to pay for or reimburse the reasonable expenses incurred by a director who
is a party to a proceeding because he or she is a director if he or she delivers
to the corporation:
(1) A written affirmation of his or her good faith belief that he or
she has met the relevant standard of conduct described in Code Section
14-2-851 or that the proceeding involves conduct for which liability has
been eliminated under a provision of the articles of incorporation as
authorized by paragraph (4) of subsection (b) of Code Section 14-2-202; and
(2) His or her written undertaking to repay any funds advanced if it
is ultimately determined that the director is not entitled to
indemnification under this part.
(b) The undertaking required by paragraph (2) of subsection (a) of this
Code section must be an unlimited general obligation of the director but need
not be secured and may be accepted without reference to the financial ability of
the director to make repayment.
(c) Authorizations under this Code section shall be made:
(1) By the board of directors:
(A) When there are two or more disinterested directors, by a
majority vote of all the disinterested directors (a majority of whom
shall for such purpose constitute a quorum) or by a majority of the
members of a committee of two or more disinterested directors appointed
by such a vote; or
(B) When there are fewer than two disinterested directors, by the
vote necessary for action by the board in accordance with subsection (c)
of Code Section 14-2-824, in which authorization directors who do not
qualify as disinterested directors may participate; or
(2) By the shareholders, but shares owned or voted under the control
of a director who at the time does not qualify as a disinterested director
with respect to the proceeding may not be voted on the authorization.
14-2-854. COURT-ORDERED INDEMNIFICATION AND ADVANCES FOR EXPENSES
(a) A director who is a party to a proceeding because he or she is a
director may apply for indemnification or advance for expenses to the court
conducting the proceeding or to another court of competent jurisdiction. After
receipt of an application and after giving any notice it considers necessary,
the court shall:
(1) Order indemnification or advance for expenses if it determines
that the director is entitled to indemnification under this part; or
(2) Order indemnification or advance for expenses if it determines, in
view of all the relevant circumstances, that it is fair and reasonable to
indemnify the director or to advance expenses to the director, even if the
director has not met the relevant standard of conduct set forth in
subsections (a) and (b) of Code Section 14-2-851, failed to comply with
Code Section 14-2-853, or was adjudged liable in a proceeding referred to
in paragraph (1) or (2) of subsection (d) of Code Section 14-2-851, but if
the director was adjudged so liable, the indemnification shall be limited
to reasonable expenses incurred in connection with the proceeding.
(b) If the court determines that the director is entitled to
indemnification or advance for expenses under this part, it may also order the
corporation to pay the director's reasonable expenses to obtain court-ordered
indemnification or advance for expenses.
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14-2-855. DETERMINATION AND AUTHORIZATION OF INDEMNIFICATION
(a) A corporation may not indemnify a director under Code Section 14-2-851
unless authorized thereunder and a determination has been made for a specific
proceeding that indemnification of the director is permissible in the
circumstances because he or she has met the relevant standard of conduct set
forth in Code Section 14-2-851.
(b) The determination shall be made:
(1) If there are two or more disinterested directors, by the board of
directors by a majority vote of all the disinterested directors (a majority
of whom shall for such purpose constitute a quorum) or by a majority of the
members of a committee of two or more disinterested directors appointed by
such a vote;
(2) By special legal counsel:
(A) Selected in the manner prescribed in paragraph (1) of this
subsection; or
(B) If there are fewer than two disinterested directors, selected
by the board of directors (in which selection directors who do not
qualify as disinterested directors may participate); or
(3) By the shareholders, but shares owned by or voted under the
control of a director who at the time does not qualify as a disinterested
director may not be voted on the determination.
(c) Authorization of indemnification or an obligation to indemnify and
evaluation as to reasonableness of expenses shall be made in the same manner as
the determination that indemnification is permissible, except that if there are
fewer than two disinterested directors or if the determination is made by
special legal counsel, authorization of indemnification and evaluation as to
reasonableness of expenses shall be made by those entitled under subparagraph
(b)(2)(B) of this Code section to select special legal counsel.
14-2-856. SHAREHOLDER APPROVED INDEMNIFICATION
(a) If authorized by the articles of incorporation or a bylaw, contract, or
resolution approved or ratified by the shareholders by a majority of the votes
entitled to be cast, a corporation may indemnify or obligate itself to indemnify
a director made a party to a proceeding including a proceeding brought by or in
the right of the corporation, without regard to the limitations in other Code
sections of this part, but shares owned or voted under the control of a director
who at the time does not qualify as a disinterested director with respect to any
existing or threatened proceeding that would be covered by the authorization may
not be voted on the authorization.
(b) The corporation shall not indemnify a director under this Code section
for any liability incurred in a proceeding in which the director is adjudged
liable to the corporation or is subjected to injunctive relief in favor of the
corporation:
(1) For any appropriation, in violation of the director's duties, of
any business opportunity of the corporation;
(2) For acts or omissions which involve intentional misconduct or a
knowing violation of law;
(3) For the types of liability set forth in Code Section 14-2-832; or
(4) For any transaction from which he or she received an improper
personal benefit.
(c) Where approved or authorized in the manner described in subsection (a)
of this Code section, a corporation may advance or reimburse expenses incurred
in advance of final disposition of the proceeding only if:
(1) The director furnishes the corporation a written affirmation of
his or her good faith belief that his or her conduct does not constitute
behavior of the kind described in subsection (b) of this Code section; and
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(2) The director furnishes the corporation a written undertaking,
executed personally or on his or her behalf, to repay any advances if it is
ultimately determined that the director is not entitled to indemnification
under this Code section.
14-2-857. INDEMNIFICATION OF OFFICERS, EMPLOYEES, AND AGENTS
(a) A corporation may indemnify and advance expenses under this part to an
officer of the corporation who is a party to a proceeding because he or she is
an officer of the corporation:
(1) To the same extent as a director; and
(2) If he or she is not a director, to such further extent as may be
provided by the articles of incorporation, the bylaws, a resolution of the
board of directors, or contract except for liability arising out of conduct
that constitutes:
(A) Appropriation, in violation of his or her duties, of any
business opportunity of the corporation;
(B) Acts or omissions which involve intentional misconduct, or a
knowing violation of law;
(C) The types of liability set forth in Code Section 14-2-832; or
(D) Receipt of an improper personal benefit.
(b) The provisions of paragraph (2) of subsection (a) of this Code section
shall apply to an officer who is also a director if the sole basis on which he
or she is made a party to the proceeding is an act or omission solely as an
officer.
(c) An officer of the corporation who is not a director is entitled to
mandatory indemnification under Code Section 14-2-852, and may apply to a court
under Code Section 14-2-854 for indemnification or advances for expenses, in
each case to the same extent to which a director may be entitled to
indemnification or advances for expenses under those provisions.
(d) A corporation may also indemnify and advance expenses to an employee or
agent who is not a director to the extent, consistent with public policy, that
may be provided by its articles of incorporation, bylaws, general or specific
action of its board of directors, or contract.
14-2-858. INSURANCE
A corporation may purchase and maintain insurance on behalf of an
individual who is a director, officer, employee, or agent of the corporation or
who, while a director, officer, employee, or agent of the corporation, serves at
the corporation's request as a director, officer, partner, trustee, employee, or
agent of another domestic or foreign corporation, partnership, joint venture,
trust, employee benefit plan, or other entity against liability asserted against
or incurred by him or her in that capacity or arising from his or her status as
a director, officer, employee, or agent, whether or not the corporation would
have power to indemnify or advance expenses to him or her against the same
liability under this part.
14-2-859. APPLICATION OF PART
(a) A corporation may, by a provision in its articles of incorporation or
bylaws or in a resolution adopted or a contract approved by its board of
directors or shareholders, obligate itself in advance of the act or omission
giving rise to a proceeding to provide indemnification or advance funds to pay
for or reimburse expenses consistent with this part. Any such obligatory
provision shall be deemed to satisfy the requirements for authorization referred
to in subsection (c) of Code Section 14-2-853 or subsection (c) of Code Section
14-2-855. Any such provision that obligates the corporation to provide
indemnification to the fullest extent permitted by law shall be deemed to
obligate the corporation to advance funds to pay for or reimburse expenses in
accordance with Code Section 14-2-853 to the fullest extent permitted by law,
unless the provision specifically provides otherwise.
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(b) Any provision pursuant to subsection (a) of this Code section shall not
obligate the corporation to indemnify or advance expenses to a director of a
predecessor of the corporation, pertaining to conduct with respect to the
predecessor, unless otherwise specifically provided. Any provision for
indemnification or advance for expenses in the articles of incorporation,
bylaws, or a resolution of the board of directors or shareholders, partners, or,
in the case of limited liability companies, members or managers of a predecessor
of the corporation or other entity in a merger or in a contract to which the
predecessor is a party, existing at the time the merger takes effect, shall be
governed by paragraph (3) of subsection (a) of Code Section 14-2-1106.
(c) A corporation may, by a provision in its articles of incorporation,
limit any of the rights to indemnification or advance for expenses created by or
pursuant to this part.
(d) This part does not limit a corporation's power to pay or reimburse
expenses incurred by a director or an officer in connection with his or her
appearance as a witness in a proceeding at a time when he or she is not a party.
(e) Except as expressly provided in Code Section 14-2-857, this part does
not limit a corporation's power to indemnify, advance expenses to, or provide or
maintain insurance on behalf of an employee or agent.
ARTICLES OF INCORPORATION AUTHORITY
Article 14 of the Corporation's Articles of Incorporation provides:
In addition to any powers provided by law, in the Bylaws, or
otherwise, the Corporation shall have the power to indemnify any person who
becomes a party or who is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (including any action by or in the right of
the Corporation), by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise.
BYLAW AUTHORITY
Article VII of the Corporation's Bylaws provides:
Section 1. DEFINITIONS As used in this Article, the term:
(A) "Corporation" includes any domestic or foreign predecessor entity
of this Corporation in a merger or other transaction in which the
predecessor's existence ceased upon consummation of the transaction.
(B) "Director" means an individual who is or was a director of the
Corporation or an individual who, while a director of the Corporation, is
or was serving at the Corporation's request as a director, officer,
partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan, or
other entity. A "director" is considered to be serving an employee benefit
plan at the Corporation's request if his duties to the Corporation also
impose duties on, or otherwise involve services by, him to the plan or to
participants in or beneficiaries of the plan. "Director" includes, unless
the context requires otherwise, the estate or personal representative of a
director.
(C) "Disinterested director" means a director who at the time of a
vote referred to in Section 3(C) or a vote or selection referred to in
Section 4(B), 4(C) or 7(A) is not: (i) a party to the proceeding; or (ii)
an individual who is a party to a proceeding having a familial, financial,
professional, or employment relationship with the director whose
indemnification or advance for expenses is the subject of the decision
being made with respect to the proceeding, which relationship would, in the
circumstances, reasonably be expected to exert an influence on the
director's judgment when voting on the decision being made.
II-6
<PAGE> 25
(D) "Employee" means an individual who is or was an employee of the
Corporation or an individual who, while an employee of the Corporation, is
or was serving at the Corporation's request as a director, officer,
partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan, or
other enterprise. An "Employee" is considered to be serving an employee
benefit plan at the Corporation's request if his duties to the Corporation
also impose duties on, or otherwise involve services by, him to the plan or
to participants in or beneficiaries of the plan. "Employee" includes,
unless the context requires otherwise, the estate or personal
representative of an employee.
(E) "Expenses" includes counsel fees.
(F) "Liability" means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to an employee
benefit plan), or reasonable expenses incurred with respect to a
proceeding.
(G) "Officer" means an individual who is or was an officer of the
Corporation which for purposes of this Article VII shall include an
assistant officer, or an individual who, while an Officer of the
Corporation, is or was serving at the Corporation's request as a director,
officer, partner, trustee, employee, or agent of another foreign or
domestic corporation, partnership, joint venture, trust, employee benefit
plan, or other entity. An "Officer" is considered to be serving an employee
benefit plan at the Corporation's request if his duties to the Corporation
also impose duties on, or otherwise involve services by, him to the plan or
to participants in or beneficiaries of the plan. "Officer" includes, unless
the context requires otherwise, the estate or personal representative of an
Officer.
(H) "Official capacity" means: (i) when used with respect to a
director, the office of a director in a corporation; and (ii) when used
with respect to an Officer, the office in a corporation held by the
Officer. Official capacity does not include service for any other domestic
or foreign corporation or any partnership, joint venture, trust, employee
benefit plan, or other entity.
(I) "Party" means an individual who was, is, or is threatened to be
made a named defendant or respondent in a proceeding.
(J) "Proceeding" means any threatened, pending or completed action,
suit, or proceeding, whether civil, criminal, administrative, arbitrative
or investigative and whether formal or informal.
Section 2. BASIC INDEMNIFICATION ARRANGEMENT
(A) Except as provided in subsections 2(D) and 2(E) below and, if
required by Section 4 below, upon a determination pursuant to Section 4 in
the specific case that such indemnification is permissible in the
circumstances under this subsection because the individual has met the
standard of conduct set forth in this subsection (A), the Corporation shall
indemnify an individual who is made a party to a proceeding because he is
or was a director or Officer against liability incurred by him in the
proceeding if he conducted himself in good faith and, in the case of
conduct in his official capacity, he reasonably believed such conduct was
in the best interest of the Corporation, or in all other cases, he
reasonably believed such conduct was at least not opposed to the best
interests of the Corporation and, in the case of any criminal proceeding,
he had no reasonable cause to believe his conduct was unlawful.
(B) A person's conduct with respect to an employee benefit plan for a
purpose he believes in good faith to be in the interests of the
participants in and beneficiaries of the plan is conduct that satisfies the
requirement of subsection 2(A) above.
(C) The termination of a proceeding by judgment, order, settlement, or
conviction, or upon a plea of nolo contendere or its equivalent is not, of
itself, determinative that the proposed indemnitee did not meet the
standard of conduct set forth in subsection 2(A) above.
(D) The Corporation shall not indemnify a person under this Article in
connection with (i) a proceeding by or in the right of the Corporation,
except for reasonable expenses incurred in connection with the proceeding
if it is determined that such person has met the relevant standard of
conduct under
II-7
<PAGE> 26
this section, or (ii) with respect to conduct for which such person was
adjudged liable on the basis that personal benefit was improperly received
by him, whether or not involving action in his official capacity.
Section 3. ADVANCES FOR EXPENSES
(A) The Corporation may advance funds to pay for or reimburse the
reasonable expenses incurred by a director or Officer who is a party to a
proceeding because he is a director or Officer in advance of final
disposition of the proceeding if: (i) such person furnishes the Corporation
a written affirmation of his good faith belief that he has met the relevant
standard of conduct set forth in subsection 2(A) above or that the
proceeding involves conduct for which liability has been eliminated under
the Corporation's Articles of Incorporation; and (ii) such person furnishes
the Corporation a written undertaking meeting the qualifications set forth
below in subsection 3(B), executed personally or on his behalf, to repay
any funds advanced if it is ultimately determined that he is not entitled
to any indemnification under this Article or otherwise.
(B) The undertaking required by subsection 3(A)(ii) above must be an
unlimited general obligation of the director or Officer but need not be
secured and shall be accepted without reference to financial ability to
make repayment.
(C) Authorizations under this Section shall be made: (i) By the Board
of Directors: (a) when there are two or more disinterested directors, by a
majority vote of all disinterested directors (a majority of whom shall for
such purpose constitute a quorum) or by a majority of the members of a
committee of two or more disinterested directors appointed by such a vote;
or (b) when there are fewer than two disinterested directors, by a majority
of the directors present, in which authorization directors who do not
qualify as disinterested directors may participate; or (ii) by the
shareholders, but shares owned or voted under the control of a director who
at the time does not qualify as a disinterested director with respect to
the proceeding may not be voted on the authorization.
Section 4. AUTHORIZATION OF AND DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION
(A) The Corporation shall not indemnify a director or Officer under
Section 2 above unless authorized thereunder and a determination has been
made for a specific proceeding that indemnification of such person is
permissible in the circumstances because he has met the relevant standard
of conduct set forth in subsection 2(A) above; provided, however, that
regardless of the result or absence of any such determination, to the
extent that a director or Officer has been wholly successful, on the merits
or otherwise, in the defense of any proceeding to which he was a party
because he is or was a director or Officer, the Corporation shall indemnify
such person against reasonable expenses incurred by him in connection
therewith.
(B) The determination referred to in subsection 4(A) above shall be
made:
(i) If there are two or more disinterested directors, by the board
of directors by a majority vote of all the disinterested directors (a
majority of whom shall for such purpose constitute a quorum) or by a
majority of the members of a committee of two or more disinterested
directors appointed by such a vote;
(ii) by special legal counsel:
(1) selected by the Board of Directors or its committee in the
manner prescribed in subdivision (i); or
(2) if there are fewer than two disinterested directors,
selected by the Board of Directors (in which selection directors who
do not qualify as disinterested directors may participate); or
(iii) by the shareholders; but shares owned by or voted under the
control of a director who at the time does not qualify as a
disinterested director may not be voted on the determination.
(C) Authorization of indemnification or an obligation to indemnify and
evaluation as to reasonableness of expenses of a director or Officer in the
specific case shall be made in the same manner as the
II-8
<PAGE> 27
determination that indemnification is permissible, as described in
subsection 4(B) above, except that if there are fewer than two
disinterested directors or if the determination is made by special legal
counsel, authorization of indemnification and evaluation as to
reasonableness of expenses shall be made by those entitled under subsection
4(B)(ii)(2) above to select counsel.
(D) The Board of Directors, a committee thereof, or special legal
counsel acting pursuant to subsection (B) above or Section 5 below, shall
act expeditiously upon an application for indemnification or advances, and
cooperate in the procedural steps required to obtain a judicial
determination under Section 5 below.
(E) The Corporation may, by a provision in its Articles of
Incorporation or Bylaws or in a resolution adopted or a contract approved
by its Board of Directors or shareholders, obligate itself in advance of
the act or omission giving rise to a proceeding to provide indemnification
or advance funds to pay for or reimburse expenses consistent with this
part. Any such obligatory provision shall be deemed to satisfy the
requirements for authorization referred to in Section 3(C) or Section 4(C).
Section 5. COURT-ORDERED INDEMNIFICATION AND ADVANCES FOR EXPENSES. A
director or Officer who is a party to a proceeding because he is a director or
Officer may apply for indemnification or advances for expenses to the court
conducting the proceeding or to another court of competent jurisdiction. After
receipt of an application and after giving any notice it considers necessary,
the court shall order indemnification or advances for expenses if it determines
that:
(i) The director is entitled to indemnification under this part; or
(ii) In view of all the relevant circumstances, it is fair and
reasonable to indemnify the director or Officer or to advance expenses to
the director or Officer, even if the director or Officer has not met the
relevant standard of conduct set forth in subsection 2(A) above, failed to
comply with Section 3, or was adjudged liable in a proceeding referred to
in subsections (i) or (ii) of Section 2(D), but if the director or Officer
was adjudged so liable, the indemnification shall be limited to reasonable
expenses incurred in connection with the proceeding, unless the Articles of
Incorporation of the Corporation or a Bylaw, contract or resolution
approved or ratified by shareholders pursuant to Section 7 below provides
otherwise.
If the court determines that the director or Officer is entitled to
indemnification or advance for expenses, it may also order the Corporation to
pay the director's or Officer's reasonable expenses to obtain court-ordered
indemnification or advance for expenses.
Section 6. INDEMNIFICATION OF OFFICERS AND EMPLOYEES.
(A) Unless the Corporation's Articles of Incorporation provide
otherwise, the Corporation shall indemnify and advance expenses under this
Article to an employee of the Corporation who is not a director or Officer
to the same extent, consistent with public policy, as to a director or
Officer.
(B) The Corporation may indemnify and advance expenses under this
Article to an Officer of the Corporation who is a party to a proceeding
because he is an Officer of the Corporation: (i) to the same extent as a
director; and (ii) if he is not a director, to such further extent as may
be provided by the Articles of Incorporation, the Bylaws, a resolution of
the Board of Directors, or contract except for liability arising out of
conduct that is enumerated in subsections (A)(i) through (A)(iv) of Section
7.
The provisions of this Section shall also apply to an Officer who is also a
director if the sole basis on which he is made a party to the proceeding is an
act or omission solely as an Officer.
Section 7. SHAREHOLDER APPROVED INDEMNIFICATION.
(A) If authorized by the Articles of Incorporation or a Bylaw,
contract or resolution approved or ratified by shareholders of the
Corporation by a majority of the votes entitled to be cast, the Corporation
may indemnify or obligate itself to indemnify a person made a party to a
proceeding, including a proceeding brought by or in the right of the
Corporation, without regard to the limitations in other sections of this
Article, but shares owned or voted under the control of a director who at
the time does not
II-9
<PAGE> 28
qualify as a disinterested director with respect to any existing or
threatened proceeding that would be covered by the authorization may not be
voted on the authorization. The Corporation shall not indemnify a person
under this Section 7 for any liability incurred in a proceeding in which
the person is adjudged liable to the Corporation or is subjected to
injunctive relief in favor of the Corporation:
(i) for any appropriation, in violation of his duties, of any
business opportunity of the Corporation;
(ii) for acts or omissions which involve intentional misconduct or
a knowing violation of law;
(iii) for the types of liability set forth in Section 14-2-832 of
the Georgia Business Corporation Code; or
(iv) for any transaction from which he received an improper
personal benefit.
(B) Where approved or authorized in the manner described in subsection
7(A) above, the Corporation may advance or reimburse expenses incurred in
advance of final disposition of the proceeding only if:
(i) the proposed indemnitee furnishes the Corporation a written
affirmation of his good faith belief that his conduct does not
constitute behavior of the kind described in subsection 7(A)(i)-(iv)
above; and
(ii) the proposed indemnitee furnishes the Corporation a written
undertaking, executed personally, or on his behalf, to repay any
advances if it is ultimately determined that he is not entitled to
indemnification.
Section 8. LIABILITY INSURANCE. The Corporation may purchase and maintain
insurance on behalf of an individual who is a director, officer, employee, or
agent of the Corporation or who, while a director, officer, employee, or agent
of the Corporation, is or was serving at the request of the Corporation as a
director, officer, partner, trustee, employee, or agent of another foreign or
domestic corporation, partnership, joint venture, trust, employee benefit plan,
or other entity against liability asserted against or incurred by him in that
capacity or arising from his status as a director, officer, employee, or agent,
whether or not the Corporation would have power to indemnify him against the
same liability under Section 2 or Section 3 above.
Section 9. WITNESS FEES. Nothing in this Article shall limit the
Corporation's power to pay or reimburse expenses incurred by a person in
connection with his appearance as a witness in a proceeding at a time when he is
not a party.
Section 10. REPORT TO SHAREHOLDERS. If the Corporation indemnifies or
advances expenses to a director in connection with a proceeding by or in the
right of the Corporation, the Corporation shall report the indemnification or
advance, in writing, to shareholders with or before the notice of the next
shareholders' meeting.
Section 11. SEVERABILITY. In the event that any of the provisions of this
Article (including any provision within a single section, subsection, division
or sentence) is held by a court of competent jurisdiction to be invalid, void or
otherwise unenforceable, the remaining provisions of this Article shall remain
enforceable to the fullest extent permitted by law.
Section 12. INDEMNIFICATION NOT EXCLUSIVE. The rights of indemnification
provided in this Article VII shall be in addition to any rights which any such
director, Officer, employee or other person may otherwise be entitled by
contract or as a matter of law.
UNDERWRITING AGREEMENT
Pursuant to the form of underwriting agreement, filed as Exhibit 1.1 to
this Registration Statement, the Corporation has agreed to indemnify the
underwriters, if any, against certain liabilities under federal and state
securities laws.
II-10
<PAGE> 29
INSURANCE
The Registrant has purchased a policy of directors and officers liability
(including company reimbursement coverage) insurance that provides certain
coverage for the Registrant and its subsidiaries and their respective directors
and officers with respect to, among other things, liability under federal and
state securities laws.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <C> <S>
1 -- Form of Underwriting Agreement.
3 -- Bylaws of the Corporation, as amended through February 10,
1998.
4.1 -- Indenture, dated as of May 1, 1993, between the Corporation
and PNC Bank, National Association, as Trustee (incorporated
by reference to Exhibit 4(a) to the Corporation's
Registration Statement on Form S-3 (Registration No.
33-62162), filed with the Commission on May 5, 1993).
4.2 -- Indenture, dated as of May 1, 1993, between the Corporation
and The First National Bank of Chicago, as Trustee
(incorporated by reference to Exhibit 4(b) to the
Corporation's Registration Statement on Form S-3
(Registration No. 33-62162), filed with the Commission on
May 5, 1993).
5 -- Opinion of Raymond D. Fortin, Counsel of the Corporation, as
to the legality of the securities being registered.
12 -- Statement setting forth computation of ratios of earnings to
fixed charges.
23.1 -- Consent of Arthur Andersen LLP.
23.2 -- Consent of Raymond D. Fortin, Counsel of the Corporation
(included in Exhibit 5).
25.1 -- Statement of eligibility of PNC Bank, National Association,
as Trustee on Form T-1.
25.2 -- Statement of eligibility of The First National Bank of
Chicago, as Trustee on Form T-1.
</TABLE>
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar volume of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume or price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
II-11
<PAGE> 30
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, the information
omitted from the form of prospectus filed as part of this registration statement
in reliance upon Rule 430A and contained in a form of prospectus filed by the
Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act
of 1933 shall be deemed to be part of the registration statement as of the time
it was declared effective.
(d) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each post-effective
amendment that contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(e) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-12
<PAGE> 31
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, SunTrust Banks,
Inc. certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, State of Georgia, on the 10th day of
February, 1998.
SUNTRUST BANKS, INC.
By: /s/ JAMES B. WILLIAMS
-----------------------------------
James B. Williams
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints JAMES B.
WILLIAMS, Chairman of the Board, Chief Executive Officer and a Director of the
Corporation, L. PHILLIP HUMANN, President and a Director of the Corporation,
JOHN W. SPIEGEL, Executive Vice President and Chief Financial Officer of the
Corporation, RAYMOND D. FORTIN, Secretary of the Corporation, or any one of
them, his true and lawful attorney for him and in his name for the purpose of
executing on his behalf (i) any amendments or supplements to this Registration
Statement or any related registration statement filed pursuant to Rule 462(b) of
the Securities Act of 1933; (ii) any application for registration or
qualification (or exemption therefrom) of such debt securities under the Blue
Sky or other federal or state securities laws and regulations; and (iii) any
other document or instrument deemed necessary or appropriate by any of them in
connection with such application for registration or qualification (or exemption
therefrom); and for the purpose of causing any such registration statement or
any subsequent amendment or supplement to such registration statement to be
filed with the Securities and Exchange Commission pursuant to the Securities Act
of 1933, as amended, together with all exhibits thereto and other documents in
connection therewith.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <C> <C>
/s/ JAMES B. WILLIAMS Chairman of the Board and February 10, 1998
- ----------------------------------------------------- Chief Executive Officer
James B. Williams
/s/ L. PHILLIP HUMANN President and Director February 10, 1998
- -----------------------------------------------------
L. Phillip Humann
/s/ JOHN W. SPIEGEL Executive Vice President and February 10, 1998
- ----------------------------------------------------- Chief Financial Officer
John W. Spiegel
/s/ WILLIAM P. O'HALLORAN Senior Vice President and February 10, 1998
- ----------------------------------------------------- Chief Accounting Officer
William P. O'Halloran
/s/ J. HYATT BROWN Director February 10, 1998
- -----------------------------------------------------
J. Hyatt Brown
/s/ JAMES D. CAMP, JR. Director February 10, 1998
- -----------------------------------------------------
James D. Camp, Jr.
</TABLE>
II-13
<PAGE> 32
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <C> <C>
/s/ A. W. DAHLBERG Director February 10, 1998
- -----------------------------------------------------
A. W. Dahlberg
Director February , 1998
- -----------------------------------------------------
Alston D. Correll
/s/ SUMMERFIELD K. JOHNSTON, JR. Director February 10, 1998
- -----------------------------------------------------
Summerfield K. Johnston, Jr.
/s/ DAVID H. HUGHES Director February 10, 1998
- -----------------------------------------------------
David H. Hughes
/s/ JOSEPH L. LANIER, JR. Director February 10, 1998
- -----------------------------------------------------
Joseph L. Lanier, Jr.
/s/ LARRY L. PRINCE Director February 10, 1998
- -----------------------------------------------------
Larry L. Prince
/s/ SCOTT L. PROBASCO, JR. Director February 10, 1998
- -----------------------------------------------------
Scott L. Probasco, Jr.
/s/ R. RANDALL ROLLINS Director February 10, 1998
- -----------------------------------------------------
R. Randall Rollins
</TABLE>
II-14
<PAGE> 1
EXHIBIT 1
SunTrust Banks, Inc.
Underwriting Agreement
New York, New York
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
SunTrust Banks, Inc., a Georgia corporation (the "Company"), proposes
to sell to the underwriters named in Schedule II hereto (the "Underwriters"),
for whom you (the "Representatives") are acting as representatives, the
principal amount of its securities identified in Schedule I hereto (the
"Securities"), to be issued under an indenture identified in Schedule I hereto
(the "Indenture") between the Company and the trustee identified in Schedule I
hereto (the "Trustee"). If the firm or firms listed in Schedule II hereto
include only the firm or firms listed in Schedule I hereto, then the terms
"Underwriters" and "Representatives", as used herein, shall each be deemed to
refer to such firm or firms.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, each Underwriter as set forth below in this Section 1.
Certain terms used in this Section 1 are defined in paragraph (c) hereof.
(a) If the offering of the Securities is a Delayed Offering (as
specified in Schedule I hereto), paragraph (i) below is applicable and, if
the offering of the Securities is a Non-Delayed Offering (as so specified),
paragraph (ii) below is applicable.
<PAGE> 2
(i) The Company meets the requirements for the use of Form
S-3 under the Securities Act of 1933 (the "Act") and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement (the file number of which is set forth in Schedule I hereto)
on such Form, including a basic prospectus, for registration under the
Act of the offering and sale of the Securities. The Company may have
filed one or more amendments thereto, and may have used a Preliminary
Final Prospectus, each of which has previously been furnished to you.
Such registration statement, as so amended, has become effective. The
offering of the Securities is a Delayed Offering and, although the
Basic Prospectus may not include all the information with respect to
the Securities and the offering thereof required by the Act and the
rules thereunder to be in cluded in the Final Prospectus, the Basic
Prospectus includes all such information required by the Act and the
rules thereunder to be included therein as of the Effective Date. The
Company will next file with the Commission pursuant to Rules 415 and
424(b)(2) or (5) a final supplement to the form of prospectus included
in such registration statement relating to the Securities and the
offering thereof. As filed, such final prospectus supplement shall
include all required information with respect to the Securities and the
offering thereof and, except to the extent the Representatives shall
agree in writing to a modi fication, shall be in all substantive
respects in the form furnished to you prior to the Execution Time or,
to the extent not completed at the Execution Time, shall contain only
such specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final Prospectus)
as the Company has advised you, prior to the Execution Time, will be
included or made therein.
(ii) The Company meets the requirements for the use of Form
S-3 under the Act and has filed with the Commission a registration
statement (the file number of which is set forth in
2
<PAGE> 3
Schedule I hereto) on such Form, including a basic prospectus, for
registration under the Act of the offering and sale of the Securities.
The Company may have filed one or more amendments thereto, including a
Preliminary Final Prospectus, each of which has previously been
furnished to you. The Company will next file with the Commission either
(x) a final prospectus supplement relating to the Securities in
accordance with Rules 430A and 424(b)(l) or (4), or (y) prior to the
effectiveness of such registration statement, an amendment to such
registration statement, including the form of final prospectus
supplement. In the case of clause (x), the Company has included in such
registration statement, as amended at the Ef fective Date, all
information (other than Rule 430A In formation) required by the Act and
the rules thereunder to be included in the Final Prospectus with
respect to the Securities and the offering thereof. As filed, such
final prospectus supplement or such amendment and form of final
prospectus supplement shall contain all Rule 430A Information, together
with all other such re quired information, with respect to the
Securities and the offering thereof and, except to the extent the
Representatives shall agree in writing to a modification, shall be in
all substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other
changes (beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did or will, and
when the Final Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date (as hereinafter defined), the Final
Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act, the Securities
Exchange Act of 1934 (the "Exchange Act") and the Trust Indenture Act of
1939 (the "Trust Inden-
3
<PAGE> 4
ture Act") and the respective rules thereunder; on the Effective Date, the
Registration Statement did not or will not 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 not misleading;
on the Effective Date and on the Closing Date the Indenture did or will
comply in all material respects with the requirements of the Trust Indenture
Act and the rules thereunder; and, on the Effective Date, the Final
Prospectus, if not filed pursuant to Rule 424(b), did not or will not, and
on the date of any filing pursuant to Rule 424(b) and on the Closing Date,
the Final Prospectus (together with any supplement thereto) will not,
include any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Company makes no representations or warranties as to (i) that part
of the Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-l) under the Trust Indenture Act of
the Trustee or (ii) the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any supplement thereto)
in reliance upon and in conformity with information furnished in writing to
the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the Final
Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall have the
meanings indicated. The term "the Effective Date" shall mean each date that
the Registration Statement and any post-effective amendment or amendments
thereto became or become effective and each date after the date hereof on
which a document incorporated by reference in the Registration Statement is
filed. "Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto. "Basic Prospectus" shall mean
the prospectus referred to in paragraph (a) above contained in the
Registration Statement at the Effective Date including, in the case of a
Non-Delayed Offering, any
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<PAGE> 5
Preliminary Final Prospectus. "Preliminary Final Prospectus" shall mean any
preliminary prospectus supplement to the Basic Prospectus which describes
the Securities and the offering thereof and is used prior to filing of the
Final Prospectus. "Final Prospectus" shall mean the prospectus supplement
relating to the Securities that is first filed pursuant to Rule 424(b) after
the Execution Time, together with the Basic Prospectus or, if, in the case
of a Non-Delayed Offering, no filing pursuant to Rule 424(b) is required,
shall mean the form of final prospectus relat ing to the Securities,
including the Basic Prospectus, included in the Registration Statement at
the Effective Date. "Registration Statement" shall mean the registration
statement referred to in paragraph (a) above, including incorporated
documents, exhibits and financial statements, as amended at the Execution
Time (or, if not effective at the Execution Time, in the form in which it
shall become effective) and, in the event any post-effective amendment
thereto becomes effective prior to the Closing Date (as hereinafter
defined), shall also mean such registration statement as so amended. Such
term shall include any Rule 430A Information deemed to be included therein
at the Effec tive Date as provided by Rule 430A. "Rule 415", "Rule 424",
"Rule 430A" and "Regulation S-K" refer to such rules or regulation under the
Act. "Rule 430A Information" means information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A. Any
reference herein to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on
or before the Effective Date of the Registration Statement or the issue date
of the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing of any
document under the
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<PAGE> 6
Exchange Act after the Effective Date of the Registration Statement or the
issue date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be, deemed to be incorporated therein by
reference. A "Non-Delayed Offering" shall mean an offering of securities
which is intended to commence promptly after the effective date of a
registration statement, with the result that, pursuant to Rules 415 and
430A, all information (other than Rule 430A Information) with respect to the
securities so offered must be included in such registration statement at the
effective date thereof. A "Delayed Offering" shall mean an offering of
securities pursuant to Rule 415 which does not commence promptly after the
effective date of a registration statement, with the result that only
information required pursuant to Rule 415 need be included in such
registration statement at the effective date thereof with respect to the
securities so offered. Whether the offering of the Secu rities is a
Non-Delayed Offering or a Delayed Offering shall be set forth in Schedule I
hereto.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to pur chase from the Company, at the purchase price set forth in
Schedule I hereto the principal amount of the Securities set forth opposite such
Underwriter's name in Schedule II hereto, except that, if Schedule I hereto
provides for the sale of Securities pursuant to delayed delivery arrangements,
the respec tive principal amounts of Securities to be purchased by the
Underwriters shall be as set forth in Schedule II hereto less the respective
amounts of Contract Securities (as defined) determined as provided below.
Securities to be purchased by the Underwriters are herein sometimes called the
"Underwriters' Securities" and Securities to be purchased pursuant to Delayed
Delivery Contracts as hereinafter provided are herein called "Contract
Securities".
If so provided in Schedule I hereto, the Underwriters are authorized to
solicit offers to purchase Securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts"), substantially
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<PAGE> 7
in the form of Schedule III hereto but with such changes therein as the Company
may authorize or ap prove. The Underwriters will endeavor to make such
arrangements and, as compensation therefor, the Company will pay to the
Representatives, for the account of the Underwriters, on the Closing Date, the
percentage set forth in Schedule I hereto of the principal amount of the
Securities for which Delayed Delivery Contracts are made. Delayed Delivery
Contracts are to be with institutional investors, including commercial and
savings banks, insurance companies, pension funds, investment companies and
educational and charitable institutions. The Company will enter into Delayed
Delivery Contracts in all cases where sales of Contract Securities arranged by
the Underwriters have been approved by the Company but, except as the Company
may otherwise agree, each such Delayed Delivery Contract must be for not less
than the minimum principal amount set forth in Schedule I hereto and the
aggregate principal amount of Contract Securities may not exceed the maximum
aggregate principal amount set forth in Schedule I hereto. The Underwriters will
not have any responsibility in respect of the validity or performance of
Delayed Delivery Contracts. The principal amount of Securities to be purchased
by each Underwriter as set forth in Schedule II hereto shall be reduced by an
amount which shall bear the same proportion to the total principal amount of
Contract Securities as the principal amount of Securities set forth opposite the
name of such Underwriter bears to the aggregate principal amount set forth in
Schedule II hereto, except to the extent that you determine that such reduction
shall be otherwise than in such proportion and so advise the Company in writing;
provided, howev er, that the total principal amount of Securities to be
purchased by all Underwriters shall be the aggregate principal amount set forth
in Schedule II hereto less the aggregate principal amount of Contract
securities.
3. Delivery and Payment. Delivery of and payment for the Underwriters'
Securities shall be made on the date and at the time specified in Schedule I
hereto (or such later date not later than five business days after such
specified date as the Representatives shall designate), which date and time may
be postponed by agreement between the Representatives and the Company or as
provided in Section 8 hereof (such date and time of delivery and payment for the
Underwriters' Securities
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<PAGE> 8
being herein called the "Closing Date"). Delivery of the Underwriters'
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer, or certified or official bank check or checks drawn on
or by a New York bank and payable in such funds as are specified in Schedule I
hereto. Delivery of the Underwriters' Securities shall be made at such location
as the Representatives shall reasonably designate at least one business day in
advance of the Closing Date and payment for the Securities shall be made at the
office specified in Schedule I hereto. Certificates for the Underwriters'
Securities shall be registered in such names and in such denominations as the
Representatives may request not less than two full business days in advance of
the Closing Date.
The Company agrees to have the Underwriters' Securities available for
inspection, checking and packaging by the Represen tatives in New York, New
York, not later than 1:00 PM on the business day prior to the Closing Date.
4. Agreements. The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereto, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus or any Preliminary
Final Prospectus) to the Basic Prospectus unless the Company has furnished
you a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object. Subject to
the foregoing sentence, the Company will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within the
time period prescribed and will provide evidence satisfactory to the
Representa tives of such timely filing. The Company will promptly advise the
Representatives (i)
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<PAGE> 9
when the Registration Statement, if not effective at the Execution Time,
and any amendment thereto, shall have become effective, (ii) when the Final
Prospectus, and any supplement thereto, shall have been filed with the
Commission pursuant to Rule 424(b), (iii) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (iv) of any request by the
Commission for any amendment of the Registration Statement or supplement to
the Final Prospectus or for any additional information, (v) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (vi) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein in the light of the circum stances under which
they were made not misleading, or if it shall be necessary to amend the
Registration Statement or supplement the Final Prospectus to comply with the
Act or the Exchange Act or the respective rules thereunder, the Company
promptly will (i) prepare and file with the Commis sion, subject to the
second sentence of paragraph (a) of this Section 4, an amendment or
supplement which will cor rect such statement or omission or effect such
compliance and (ii) supply any supplemented Prospectus to you in such
quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which
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<PAGE> 10
will satisfy the provisions of Section 11(a) of the Act and Rule 158 under
the Act.
(d) The Company will furnish to the Representatives and counsel for the
Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies of any
Preliminary Final Prospectus and the Final Prospectus and any supplement
thereto as the Representatives may reasonably request. The Company will pay
the expenses of printing or other production of all documents relating to
the offering.
(e) The Company will arrange for the qualification of the Securities
for sale under the laws of such jurisdictions as the Representatives may
designate, will maintain such qualifications in effect so long as required
for the distribution of the Securities and will arrange for the
determination of the legality of the Securities for purchase by
institutional investors.
(f) Until the business day following the Closing Date, the Company will
not, without the consent of the Representatives, offer, sell or contract to
sell, or otherwise dispose of, directly or indirectly, or announce the
offering of, any debt securities issued or guaranteed by the Company (other
than the Securities).
(g) The Company confirms as of the date hereof that it is in compliance
with all provisions of Section 1 of Laws of Florida, Chapter 92-198, An Act
Relating to Disclosure of Doing Business with Cuba, and the Company further
agrees that if it commences engaging in business with the government of
Cuba or with any person or affiliate located in Cuba after the date the
Registration Statement becomes or has become effective with the Securities
and Exchange Commission or with the Florida Department of Banking and
Finance (the "Department"), whichever date is later, or if the information
reported in the Prospectus, if any, concerning the Company's business with
Cuba or with any person or affiliate located in Cuba changes in any material
way, the Company will
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<PAGE> 11
provide the Department notice of such business or change, as appropriate, in
a form acceptable to the Department.
5. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Underwriters' Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the
Execution Time, unless the Represen tatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 12:00 Noon on the business day following
the day on which the public offering price was determined, if such determi
nation occurred after 3:00 PM New York City time on such date; if filing of
the Final Prospectus, or any supplement thereto, is required pursuant to
Rule 424(b), the Final Prospectus, and any such supplement, shall have been
filed in the manner and within the time period required by Rule 424(b); and
no stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Company shall have furnished to the Representatives the
opinion of Raymond D. Fortin, Senior Vice President - Legal of the Company,
or of other counsel for the Company satisfactory to the Representatives,
dated the Closing Date, to the effect that:
(i) each of the Company, SunTrust Banks of Florida, Inc.,
SunTrust Banks of Georgia, Inc., SunTrust Banks of Tennessee, Inc.,
SunTrust Bank, Central Florida and SunTrust Bank, At-
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<PAGE> 12
lanta (individually a "Subsidiary" and collectively the
"Subsidiaries"), has been duly incorporated or organized and is validly
existing as a corporation or banking association in good standing under
the laws of the jurisdiction of its incorporation or organization, with
full corporate power and authority to own its properties and conduct
its business as described in the Final Prospectus, and is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such
qualification wherein it owns or leases material properties or con
ducts material business; and the Company is duly registered as a bank
holding company under the Bank Holding Company Act of 1956, as amended;
(ii) each of the Indenture, the Securities, this Agreement
and any Delayed Delivery Contract has been duly authorized by the
Company;
(iii) except as otherwise set forth in the Final Prospectus,
all the outstanding shares of capital stock of each Subsidiary have
been duly and validly authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in the Final
Prospectus, all outstanding shares of capital stock of the Subsidiaries
are owned of record by the Company either directly or through wholly
owned subsidiaries free and clear of any perfected security interest
and, to the knowledge of such counsel, any other security interests,
claims, liens or encumbrances;
(iv) to the knowledge of such counsel, (a) there is no
pending or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries, of a character required to be
disclosed in the Registration Statement which is not adequately
disclosed in the Final Prospectus, and (b) there is no contract or
other document of a character required to be described in
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<PAGE> 13
the Registration Statement or Final Prospectus, or to be filed as an
exhibit, which is not described or filed as required; and the
statements included or incorporated in the Final Prospectus describing
any legal proceedings or material contracts or agreements (or
provisions thereof) relating to the Company fairly summarize in all
material respects such proceedings, material contracts or agreements
(or provisions thereof);
(v) the Registration Statement has become effective under
the Act; any required filing of the Basic Prospectus, any Preliminary
Final Prospectus and the Final Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b); to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement
has been issued, no proceedings for that purpose have been instituted
or threatened; and the Registration Statement and the Final Prospectus
(other than the financial statements and schedules and other financial
and statistical information contained or incorporated therein and the
Form T-1 Statements of Eligibility and Qualification filed as
exhibits to the Registration Statement, as to which such counsel need
express no opinion), as of their respective effective or issue dates,
complied as to form in all material respects with the applicable
requirements of the Act, the Exchange Act and the Trust Indenture Act
and the respective rules thereunder;
(vi) no consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation by the
Company of the transactions contemplated herein or in any Delayed
Delivery Contract, except such as have been obtained under the Act and
such as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
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<PAGE> 14
Underwriters and such other approvals (specified in such opinion) as
have been obtained;
(vii) neither the issue and sale of the Securities, nor the
consummation by the Company of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof or of any Delayed
Delivery Contracts will conflict with, result in a breach or violation
of, or constitute a default under any law or the charter or by-laws of
the Company or the terms of any indenture or other material agreement
or instrument known to such counsel and to which the Company or any of
its subsidiaries is a party or bound or any judgment, order or decree
known to such counsel to be applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Company or
any of its subsidiaries; and
(viii) to the knowledge of such counsel, no holders of
securities of the Company have rights to the registration of such
securities under the Registration Statement.
In addition, such counsel shall state that, although such counsel is not
passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Final Prospectus, such counsel has no reason to believe
that the Registration Statement (other than the financial statements and
schedules and other financial and statistical information contained or
incorporated therein and the Form T-1 Statements of Eligibility and
Qualification filed as exhibits to the Registration Statement, as to which
such counsel need express no belief), at its effective date, contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading or that the Final Prospectus (other than the financial
statements and schedules and other financial and statistical information
contained or incorporated therein, as to which such counsel need express no
belief), as of its issue date and as of the Closing Date, included or
includes any untrue statement of a material fact or omitted or omits to
state a material fact necessary to make the statements
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<PAGE> 15
therein, in the light of the circumstances under which they were made, not
misleading.
In rendering such opinion, such counsel may rely (A) as to matters involving
the application of laws of any jurisdiction other than the State of Georgia
or the United States, to the extent deemed proper and specified in such
opinion, upon the opinion of other counsel of good standing believed to be
reliable and who are satisfactory to counsel for the Underwriters and (B) as
to matters of fact, without independent verification, on certificates of
officers of the Company and public officials. Further, in rendering such
opinion, such counsel may state that whenever any opinion with respect to
any matters set forth above is stated to be based upon such counsel's
knowledge or to be given "to such counsel's knowledge" or as "known to such
counsel," such qualification shall signify that no information has come to
the attention of such counsel that would give such counsel actual current
awareness of the existence or absence of the matter in question. References
to the Final Prospectus in this paragraph (b) include any supplements
thereto at the Closing Date.
(c) The Company shall have furnished to the Representatives the opinion
of King & Spalding, counsel for the Company, dated the Closing Date, to the
effect that:
(i) the Company's authorized equity capitalization is as set
forth in the Final Prospectus; the Securities conform to the
description thereof contained in the Final Prospectus; and, if the
Securities are to be listed on the New York Stock Exchange,
authorization therefor has been given, subject to official notice of
issuance and evidence of satisfactory distribution, or the Company has
filed a preliminary listing application and all required supporting
documents with respect to the Securities with the New York Stock
Exchange and such counsel has no reason to believe that the Securities
will not be authorized for listing, subject to official notice of
issuance and evidence of satisfactory distribution;
(ii) the Indenture has been duly executed and delivered by the
Company, has been duly qualified under the Trust Indenture Act, and
constitutes a legal, valid and binding instrument enforceable against
the Company in accordance with its terms (subject, as to enforcement of
remedies, to general principles of equity and to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws
15
<PAGE> 16
affecting creditors' rights generally from time to time in effect); and
the Securities, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the
Underwriters pursuant to this Agreement, in the case of the
Under-writers' Securities, or by the purchasers thereof pursuant to
Delayed Delivery Contracts, in the case of any Contract Securities,
will constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture;
(iii) this Agreement and any Delayed Delivery Contracts have
been duly executed and delivered by the Company; and
(iv) The Registration Statement has become effective under
the Act; any required filing of the Basic Prospectus, any Preliminary
Final Prospectus and the Final Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b); to the best knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or threatened.
In rendering such opinion, such counsel may rely (A) upon the opinion
of Raymond D. Fortin, Senior Vice President - Legal of the Company, or of
other counsel for the Company satisfactory to the Representatives, as to the
matters described in clauses (i), (ii), (vi) and (vii) of the preceding
paragraph (b), (B) as to matters involving the application of laws of any
jurisdiction other than the State of Georgia or the United States, to the
extent deemed proper and specified in such opinion, upon the opinion of
other counsel of good standing believed to be reliable and who are
satisfactory to counsel for the Underwriters and (C) as to matters of fact,
to the extent deemed proper, on certificates of responsible officers of the
Company and public officials. References to the Final Prospec-
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<PAGE> 17
tus made in this paragraph (c) include any supplements thereto at the
Closing Date.
(d) The Representatives shall have received from Skadden, Arps, Slate,
Meagher & Flom LLP, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to the issuance and sale of the Securi
ties, the Indenture, any Delayed Delivery Contracts, the Registration
Statement, the Final Prospectus (together with any supplement thereto) and
other related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they request
for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Represen tatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that the signers of such certificate
have carefully examined the Registration Statement, the Final Prospectus,
any supplement to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in
this Agreement are true and correct in all material respects on and as
of the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Final Prospectus (exclusive of any supplement thereto),
there has been no material adverse change in the condition (financial
or other), earnings, business or properties of the Company and
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<PAGE> 18
its subsidiaries, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in
the Final Prospectus (exclusive of any supplement thereto).
(f) At the Closing Date, Arthur Andersen LLP shall have furnished to the
Representatives a letter or letters (which may refer to letters previously
delivered to one or more of the Representatives), dated as of the Closing Date,
in form and substance satisfactory to the Representatives, confirming that they
are independent accountants within the meaning of the Act and the Exchange Act
and the respective applicable published rules and regulations thereunder and
stating in effect that:
(i) in their opinion the audited financial statements and financial
statement schedules included or incorporated in the Registration Statement
and the Final Prospectus and reported on by them comply in form in all
material respects with the applicable accounting requirements of the Act and
the Exchange Act and the related published rules and regulations;
(ii) on the basis of a reading of the amounts included or incorporated
in the Registration Statement and the Final Prospectus in response to Item
301 of Regulation S-K and of the latest unaudited financial statements made
available by the Company and its subsidiaries; carrying out certain
specified procedures (but not an audit in accordance with generally accepted
auditing standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such letter; a
reading of the minutes of the meetings of the stockholders, directors and
executive committee of the Company and its subsidiaries; and inquiries of
certain officials of the Company who have responsibility for financial and
accounting matters of the Company and its subsidiaries as to transactions
and events subsequent to the date of the most recent audited financial
statements in or incorporated in the Final Prospectus, nothing came to their
attention which caused them to believe that:
(1) the amounts in the "Selected Historical Financial Data"
included or incorporated in the Registration Statement and the Final
Prospectus do
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<PAGE> 19
not agree with the corresponding amounts in the audited and unaudited
financial statements from which such amounts were derived;
(2) any unaudited financial statements in cluded or
incorporated in the Registration Statement and the Final Prospectus do
not comply in form in all material respects with applicable ac counting
requirements and with the published rules and regulations of the
Commission with respect to financial statements included or
incorporated in quarterly reports on Form l0-Q under the Exchange Act;
and said unaudited financial statements are not in conformity with
generally accepted account ing principles applied on a basis
substantially consistent with that of the audited financial statements
included or incorporated in the Regis tration Statement and the Final
Prospectus;
(3) with respect to the period subsequent to the date of the
most recent financial statements (other than any capsule information),
audited or unaudited, included or incorporated in the Regis tration
Statement and the Final Prospectus, there were any changes, at a
specified date not more than five business days prior to the date of
the letter, in the long-term debt of the Company and its subsidiaries
or capital stock of the Company or decreases in the shareholders'
equity of the Company and its subsidiaries as compared with the amounts
shown on the most recent consolidated balance sheet included or
incorporated in the Registration Statement and the Final Prospectus, or
for the period from the date of the most recent financial statements
included or incorporated in the Registration Statement and the Final
Prospec tus to such specified date there were any decreas es, as
compared with the corresponding period in the preceding year (on a
consolidated basis), in net interest income; net interest income after
provision for loan losses or in income before income taxes, or in the
total or per share amount of net income of the Company and its
subsidiaries, except in all instances for changes or decreases set
forth in such letter, in which case the letter shall be accompanied by
an explanation by the Company as to the significance thereof unless
said
19
<PAGE> 20
explanation is not deemed necessary by the Representatives; or
(4) the amounts included in any unaudited "capsule"
information included or incorporated in the Registration Statement and
the Final Prospectus do not agree with the amounts set forth in the
unaudited financial statements for the same periods or were not
determined on a basis substantially consistent with that of the
corresponding amounts in the audited financial statements included or
incorporated in the Registration Statement and the Final Prospectus;
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial
or statistical information derived from the general accounting records of
the Company and its subsidiaries) set forth in the Registration Statement
and the Final Prospectus and in Exhibit 12 to the Registration Statement,
including the information included or incorporated in Items l, 2, 6, 7 and
11 of the Company's Annual Report on Form l0-K, incorporated in the
Registration Statement and the Prospectus, and the information included in
the Company's Quarterly Reports on Form l0-Q, incorporated in the
Registration Statement and the Final Prospectus, agrees with the accounting
records of the Company and its subsidiaries, excluding any questions of
legal interpretation; and
(iv) if unaudited pro forma financial statements are included or
incorporated in the Registration Statement and the Final Prospectus, on the
basis of a reading of the unaudited pro forma financial statements,
carrying out certain specified procedures, inquiries of certain officials of
the Company and the acquired company who have responsibility for financial
and accounting matters, and proving the arithmetic accuracy of the
application of the pro forma adjustments to the historical amounts in the
pro forma financial statements, nothing came to their attention which caused
them to believe that the pro forma financial statements do not comply in
form in all material respects with the applicable accounting requirements of
Rule 11-02 of Regulation S-X or that the pro forma adjustments have
20
<PAGE> 21
not been properly applied to the historical amounts in the compilation
of such statements.
References to the Final Prospectus in this paragraph (f) include any
supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at the Execution
Time, Arthur Andersen LLP shall have furnished to the Representatives a
letter or letters, dated as of the Execution Time, in form and substance
satisfactory to the Representatives, to the effect set forth in the
introductory paragraph to this paragraph (f), in subparagraphs (i) and (ii)
(2)above and, to the extent referring to information contained in Exchange
Act reports incorporated in the Registration Statement and the Final
Prospectus in subparagraphs (ii)(l) and (iii) above.
(g) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (f) of this Section 5 or (ii)
any change, or any development involving a prospective change, in or
affecting the business or properties of the Company and its subsidiaries the
effect of which, in any case referred to in clause (i) or (ii) above, is, in
the judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto).
(h) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purpose of Rule 436(g) under the Act) or any notice given of any intended or
potential decrease in any such rating or of a possible change in any such
rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
21
<PAGE> 22
(j) The Company shall have accepted Delayed Delivery Contracts in any
case where sales of Contract Securities arranged by the Underwriters have
been approved by the Company.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Under writers, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall be
delivered at the office of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for
the Underwriters, at 919 Third Avenue, New York, New York 10022, on the Closing
Date.
6. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 5 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the
22
<PAGE> 23
registration of the Securities as originally filed or in any amendment thereof,
or in the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indem nified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through the Representatives specifically for inclu sion therein.
This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Represen tatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the statements
set forth in the last paragraph of the cover page, under the heading
"Underwriter" or "Plan of Distribution" and, if Schedule I hereto provides for
sales of Securities pursuant to delayed delivery arrangements, in the last
sentence under the heading "Delayed Delivery Arrangements" in any Preliminary
Final Prospectus or the Final Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for inclusion
in the documents referred to in the foregoing indemnity, and you, as the
Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section 7
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement
23
<PAGE> 24
thereof; but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses and
(ii) will not, in any event, relieve the indemnifying party from any obligations
to any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel (plus any local counsel), approved by
the Representatives in the case of paragraph (a) of this Section 7, representing
the indemnified parties under such paragraph (a) who are parties to such action)
if (i) the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest, (ii)
the actual or potential defendants in, or targets of, any such action include
both the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified party
to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an
24
<PAGE> 25
unconditional release of each indemnified party from all liability arising out
of such claim.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 7 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company and the Underwriters agree to contribute to
the aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more of the Underwriters
may be subject in such proportion as is appropriate to reflect the relative
benefits received by the Company and by the Underwriters from the offering of
the Securities; provided, however, that in no case shall any Under writer
(except as may be provided in any agreement among under writers relating to the
offering of the securities) be responsible for any amount in excess of the
underwriting discount or commission applicable to the Securities purchased by
such Under writer hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the
Underwriters shall contribute in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the Company and
of the Underwriters in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by the Company shall be deemed to be equal to the total net
proceeds from the offering (before deducting expenses), and benefits received by
the Underwriters shall be deemed to be equal to the total underwriting discounts
and commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to whether any
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information provided by the Company
or the Underwriters, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 7,
each person who controls an Underwriter within the meaning of either the Act or
the Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such Underwriter, and
each person who controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who
25
<PAGE> 26
shall have signed the Registration Statement and each director of the Company
shall have the same rights to contribution as the Company, subject in each case
to the applicable terms and conditions of this paragraph (d). The Underwriters'
obligations to contribute as provided in this Section 7 shall be several in
proportion to their respective underwriting obligations and not joint.
8. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Under writers hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated several ly to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Securities which the default ing Underwriter or Underwriters agreed
but failed to purchase shall exceed 10% of the aggregate amount of Securities
set forth in Schedule II hereto, the remaining Underwriters shall have the right
to purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by any Underwriter as set
forth in this Section 8, the Closing Date shall be postponed for such period,
not exceeding seven days, as the Representatives shall determine in order that
the required changes in the Regis tration Statement and the Final Prospectus or
in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Company and any nondefaulting Underwriter for damages occasioned by
its default hereunder.
9. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i) trading
in the Company's Common Stock shall have been suspended by the Commis sion or
the New York Stock Exchange or trading in securities generally on the New York
Stock Exchange shall have been suspend ed or limited or minimum prices shall
have been established on such Exchange, (ii) a banking moratorium shall have
been declared either by Federal or Florida, Georgia, Tennessee or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of
26
<PAGE> 27
a national emergency or war or other calamity or crisis the effect of which on
financial markets is such as to make it, in the judgment of the Representatives,
impracticable or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Final Prospectus (exclusive of any supplement
thereto).
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 7 hereof,
and will survive delivery of and payment for the Securities. The provisions of
Sections 6 and 7 hereof shall survive the termination or cancellation of this
Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telegraphed and confirmed to them, at the address specified in
Schedule I hereto; or, if sent to the Company, will be mailed, delivered or tele
graphed and confirmed to it at 303 Peachtree Street, N.E., Atlan ta, Georgia
30308, attention of the Treasurer.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and con trolling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
27
<PAGE> 28
If the foregoing is in accordance with your understand ing of our
agreement, please sign and return to us the enclosed duplicate hereof whereupon
this Letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
SunTrust Banks, Inc.
by:
--------------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified below.
by:
by:
-------------------------------
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
Date:
<PAGE> 29
SCHEDULE I
Underwriting Agreement dated ______________
Registration Statement No. 333-______
Indenture: Indenture dated May 1, 1993
Trustee: ____________________________
Representative(s):
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Purchase price (include accrued
interest or amortization, if any):
Sinking fund provisions:
Redemption provisions:
Other provisions:
29
<PAGE> 30
Closing Date, Time and Location:
Closing Date:
Time:
Location:
Type of Offering:
Payment of Funds:
Delayed Delivery Arrangements:
Fee:
Minimum principal amount of each contract: $
Maximum aggregate principal amount of all contracts: $
Modification of items to be covered by the letter from Arthur Andersen LLP
delivered pursuant to Section 5(f) at the Execution Time: [No modification
except that Letter will be delivered at Closing Time, not Execution Time.]
30
<PAGE> 31
SCHEDULE II
<TABLE>
<CAPTION>
Principal Amount
of Securities to
Underwriters Be Purchased
<S> <C>
Total....................................................... $
============
</TABLE>
31
<PAGE> 32
SCHEDULE III
Delayed Delivery Contract
, 19
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from SunTrust Banks, Inc.
(the "Company"), and the Company agrees to sell to the undersigned, on
, 19 (the "Delivery Date"), $ principal amount of the
Company's (the "Securities") offered by the Company's
Prospectus dated , 19 , and related Prospectus Supplement dated
, 19 , receipt of a copy of which is hereby acknowledged, at a
purchase price of % of the principal amount thereof, plus [accrued interest]
[amortization of original issue discount], if any, thereon from ,
19 , to the date of payment and delivery, and on the further terms and
conditions set forth in this contract.
Payment for the Securities to be purchased by the under signed shall be
made on or before 11:00 AM, New York City time, on the Delivery Date to or upon
the order of the Company in New York Clearing House (next day) funds, at your
office or at such other place as shall be agreed between the Company and the
undersigned, upon delivery to the undersigned of the Securities in definitive
fully registered form and in such authorized denominations and registered in
such names as the undersigned may request by written or telegraphic
communication addressed to the Company not less than five full business days
prior to the Delivery Date. If no request is received, the Securities will be
registered in the name of the undersigned and issued in a denomination equal to
the aggregate principal amount of Securities to be purchased by the undersigned
on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date, and the obligation of the Company to sell
and deliver Securities on the Delivery Date, shall be subject to the conditions
(and neither party shall incur any liability by reason of the failure thereof)
that (l) the
32
<PAGE> 33
purchase of Securities to be made by the undersigned, which purchase the
undersigned represents is not prohibited on the date hereof, shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject, and (2) the Company, on or before the Delivery Date,
shall have sold to certain underwriters (the "Underwriters") such principal
amount of the Securities as is to be sold to them pursuant to the Underwriting
Agreement referred to in the Prospectus and Prospectus Supplement mentioned
above. Promptly after completion of such sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith. The obligation of the
undersigned to take delivery of and make payment for the Securities, and the
obligation of the Company to cause the Securities to be sold and delivered,
shall not be affected by the failure of any purchaser to take delivery of and
make payment for the Securities pursuant to other contracts similar to this
contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract is
acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
33
<PAGE> 34
This agreement shall be governed by and construed in accordance with
the laws of the State of New York.
Very truly yours,
--------------------------------------
(Name of Purchaser)
By
-----------------------------------------
(Signature and Title of Officer)
-----------------------------------------
(Address)
Accepted:
SunTrust Banks, Inc.
By
---------------------------
(Authorized Signature)
34
<PAGE> 1
EXHIBIT 3
SUNTRUST BANKS, INC.
BYLAWS
(AS AMENDED AND RESTATED FEBRUARY 10, 1998)
ARTICLE I
SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the shareholders for
the election of Directors and for the transaction of such other business as may
properly come before the meeting shall be held at such place, on such date and
at such time as the Board of Directors may by resolution provide. If the Board
of Directors fails to provide such date and time, then such meeting shall be
held at the corporate headquarters at 9:30 A.M. local time on the third Tuesday
in April of each year, or, if such date is a legal holiday, on the next
succeeding business day. The Board of Directors may specify by resolution prior
to any special meeting of shareholders held within the year that such meeting
shall be in lieu of the annual meeting.
SECTION 2. SPECIAL MEETING; CALL OF MEETINGS. Special meetings of the
shareholders may be called at any time by the Chairman of the Board or the
President. Special meetings of the shareholders may also be called at any time
by the Board of Directors or the holders of at least twenty-five percent (25%)
of the outstanding common stock of the Corporation. Such meetings shall be held
at such place as is stated in the call and notice thereof.
SECTION 3. NOTICE OF MEETINGS. Written notice of each meeting of
shareholders, stating the place, day and hour of the meeting, and the purpose or
purposes for which the meeting is called if a special meeting, shall be mailed
to each shareholder entitled to vote at or to notice of such meeting at his
address shown on the books of the Corporation not less than ten (10) nor more
than sixty (60) days prior to such meeting unless such shareholder waives notice
of the meeting. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail, addressed to the shareholder at his address
as it appears on the records of shareholders of the Corporation, with postage
thereon prepaid. Any shareholder may execute a waiver of notice, in person or by
proxy, either before or after any meeting, and shall be deemed to have waived
notice if he is present at such meeting in person or by proxy. Neither the
business transacted at, nor the purpose of, any meeting need be stated in a
waiver of notice of such meeting. Notice of any meeting may be given by the
Chairman of the Board, President, the Corporate Secretary or any Assistant
Secretary. No notice need be given of the time and place of reconvening of any
adjourned meeting, if the time and place to which the meeting is adjourned are
announced at the adjourned meeting.
SECTION 4. QUORUM; REQUIRED SHAREHOLDER VOTE. Each outstanding share of
common stock of the Corporation is entitled to one vote on each matter submitted
to a vote. A majority of the shares entitled to vote, represented in person or
by proxy, shall constitute a quorum at any meeting of the shareholders. If a
quorum is present, the affirmative vote of the majority of the shares
represented at the meeting and entitled to vote on the subject matter shall be
the act of the shareholders, unless a different
<PAGE> 2
vote is required by law, the Articles of Incorporation or these Bylaws, except
in the case of elections for Director, for which the vote of a plurality of the
votes cast by the shares entitled to vote for such election shall be the act of
the shareholders. When a quorum is once present to organize a meeting, the
shareholders present may continue to do business at the meeting or at any
adjournment thereof (unless a new record date is or must be set for the
adjourned meeting) notwithstanding the withdrawal of enough shareholders to
leave less than a quorum, and the holders of a majority of the voting shares
present at such meeting shall be the act of the shareholders unless a different
vote is required by law, the Articles of Incorporation or these Bylaws. The
holders of a majority of the voting shares represented at a meeting, whether or
not a quorum is present, may adjourn such meeting from time to time.
SECTION 5. PROXIES. A shareholder may vote either in person or by
proxy. A shareholder may appoint a proxy: (i) by executing a written document,
which may be accomplished by any reasonable means, including facsimile
transmission; (ii) orally, which may be by telephone; or (iii) by any other form
of electronic communication. No proxy shall be valid for more than eleven (11)
months after the date of such appointment, unless, in the case of a written
proxy, a longer period is expressly provided for in the written document.
SECTION 6. JUDGES OF ELECTIONS. At every meeting of shareholders, the
vote shall be conducted by two or more judges appointed for that purpose by the
Board of Directors or by the chairman of the meeting. All questions concerning
the qualification of voters, the validity of proxies, or the acceptance or
rejection of votes shall be decided by such judges.
ARTICLE II
DIRECTORS
SECTION 1. BOARD OF DIRECTORS. The Board of Directors shall manage the
business and affairs of the Corporation and may exercise all of the powers of
the Corporation subject to any restrictions imposed by law.
SECTION 2. COMPOSITION OF THE BOARD. The Board of Directors of the
Corporation shall consist of not less than ten (10) nor more than sixteen (16)
natural persons, the exact number to be set from time to time by the Board of
Directors. No decrease in the number of Directors shall shorten the term of an
incumbent Director. Each Director shall be a shareholder of the Corporation and
a citizen of the United States of America. In the absence of the Board of
Directors setting the number of Directors, the number shall be twelve (12). The
Directors of the Corporation shall be divided into three classes, as nearly
equal in size as practicable. The term of each class shall be three years. Each
Director shall hold office for the term for which elected, which term shall end
at the annual meeting of the shareholders, and until his successor has been
elected and qualified, or until his earlier retirement, resignation, removal
from office, or death.
SECTION 3. ELECTION OF DIRECTORS. Nominations for election to the Board
of Directors may be made by the Board of Directors, or by any shareholder of any
outstanding class of capital stock of the Corporation entitled to vote for the
election of Directors. Nominations shall specify the class of Directors to which
each person is nominated, and nominations, other than those made by the existing
2
<PAGE> 3
Board of Directors, shall be made in writing and shall be delivered or mailed to
the Chairman of the Board not less than thirty (30) days nor more than
seventy-five (75) days prior to any meeting of the shareholders called for the
election of Directors; provided, however, that if less than thirty-five (35)
days notice of the meeting is given to shareholders such nomination shall be
mailed or delivered to the Chairman of the Board not later than the close of
business on the seventh day following the day on which the notice of meeting was
mailed. Such nomination and notification shall contain the following
information:
(i) The names and addresses of the proposed nominee or nominees;
(ii) The principal occupation of each proposed nominee;
(iii) The total number of shares that, to the knowledge of the
notifying or nominating shareholder, will be voted for each of
the proposed nominees;
(iv) The name and residence address of each notifying or nominating
shareholder;
(v) The number of shares owned by the notifying or nominating
shareholder;
(vi) The total number of shares that, to the knowledge of the
notifying or nominating shareholder, are owned by the proposed
nominee; and
(vii) The signed consent of the proposed nominee to serve, if
elected.
Nominations not made in accordance herewith may, in his discretion, be
disregarded by the chairman of the meeting, and upon his instructions, the
judges of election shall disregard all votes cast for each such nomination.
SECTION 4. VACANCIES. Subject to the rights of the holders of any
series of Preferred Stock then outstanding to fill director vacancies, vacancies
resulting from retirement, resignation, removal from office (with or without
cause), death or a vacancy resulting from an increase in the number of Directors
comprising the Board, shall be filled by the Board of Directors. Any Director so
elected shall hold office until the next annual meeting of shareholders. No
decrease in the number of Directors constituting the Board of Directors shall
shorten the term of any incumbent Director.
SECTION 5. RETIREMENT. Each Director serving as an officer of the
Corporation or any of its direct or indirect subsidiaries shall cease to be a
Director on the date of the first to occur of (a) such Director's 65th birthday,
(b) the date of his termination of employment, (c) the date of his resignation
from employment, or (d) the date of his retirement from employment. The
foregoing shall not apply to any Director serving as an officer of the
Corporation who is the Chairman of the Executive Committee. Each Director who is
not an officer of the Corporation or any of its direct or indirect subsidiaries,
including any Director serving pursuant to the previous sentence, shall cease to
be a Director on the date of the annual meeting of shareholders immediately
succeeding or coinciding with such Director's 70th birthday.
SECTION 6. REMOVAL. Subject to the rights of the holders of any series
of Preferred Stock then outstanding, any Director, or all Directors, may be
removed from office at any time with or without
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cause, but only by the same affirmative vote of the shareholders required to
amend this Article II as provided in the Corporation's Articles of
Incorporation.
SECTION 7. RESIGNATIONS. Any Director of the Corporation may resign at
any time by giving written notice thereof to the Chairman of the Board, the
President, or the Corporate Secretary. Such resignation shall take effect when
delivered unless the notice specifies a later effective date; and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
ARTICLE III
ACTION OF THE BOARD OF DIRECTORS; COMMITTEES
SECTION 1. QUORUM; VOTE REQUIREMENT. A majority of the Directors
holding office shall constitute a quorum for the transaction of business; if a
quorum is present, a vote of a majority of the Directors present at such time
shall be the act of the Board of Directors, unless a greater vote is required by
law, the Articles of Incorporation, or by these Bylaws.
SECTION 2. EXECUTIVE COMMITTEE. There is hereby established an
Executive Committee which shall consist of not less than four (4) Directors. The
Board of Directors shall at the Board of Directors' meeting immediately
following the Corporation's annual shareholders' meeting, and may at such other
time as the Board of Directors determines, elect the Directors who shall be
members of the Executive Committee. The Executive Committee shall have and may
exercise all the authority of the Board of Directors as permitted by law. The
Board of Directors shall elect the Chairman of the Executive Committee who shall
preside at all meetings of the Executive Committee and shall perform such other
duties as may be designated by the Executive Committee. The Board of Directors
may also elect one member of the Executive Committee as Vice Chairman of the
Executive Committee who shall preside at Executive Committee meetings in the
absence of the Chairman of the Executive Committee. The Executive Committee
shall serve as the Nominating Committee and shall have the power to recommend
candidates for election to the Board of Directors and shall consider other
issues related to the size and composition of the Board of Directors.
SECTION 3. AUDIT COMMITTEE. There is hereby established an Audit
Committee which shall consist of not less than four (4) Directors. No Director
who is an officer of the Corporation or any direct or indirect subsidiary of the
Corporation shall be a member of the Audit Committee. The Board of Directors
shall at the Board of Directors' meeting immediately following the Corporation's
annual shareholders' meeting, and may at such other time as the Board of
Directors determine, elect the members of the Audit Committee. The Audit
Committee shall require that an audit of the books and affairs of the
Corporation be made at such time or times as the members of the Audit Committee
shall choose. The Board of Directors shall elect the Chairman of the Audit
Committee who shall preside at all meetings of the Audit Committee and shall
perform such other duties as may be designated by the Audit Committee.
SECTION 4. OTHER COMMITTEES. The Board of Directors may designate from
among its members one or more other committees, each consisting of one (1) or
more Directors, and each of which,
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to the extent provided in the resolution establishing such committee, shall have
and may exercise all authority of the Board of Directors to the extent permitted
by law.
SECTION 5. COMMITTEE MEETINGS. Regular meetings of committees, of which
no notice shall be necessary, shall be held at such times and at such places as
shall be fixed, from time to time, by resolution adopted by such committees.
Special meetings of any committee may be called by the Chairman of the Board or
the President, or by the Chairman of such committee or by any other two members
of the committee, at any time. Notice of any special meeting of any committee
may be given in the manner provided in the Bylaws for giving notice of a special
meeting of the Board of Directors, but notice of any such meeting need not be
given to any member of the committee if waived by him before or after the
meeting, in writing (including telegram, cablegram, facsimile, or radiogram) or
if he shall be present at the meeting; and any meeting of any committee shall be
a legal meeting, without any notice thereof having been given, if all the
members shall be present thereat. A majority of any committee shall constitute a
quorum for the transaction of business, and the act of a majority of those
present at any meeting at which a quorum is present shall be the act of the
committee.
SECTION 6. COMMITTEE RECORDS. Each committee shall keep a record of its
acts and proceedings and shall report the same, from time to time, to the Board
of Directors.
SECTION 7. ALTERNATE MEMBERS; VACANCIES. The Board of Directors may
designate one or more Directors as alternate members of any committee, and such
alternate members may act in the place and stead of any absent member or members
at any meeting of such committee. The Board of Directors may fill any vacancy or
vacancies occurring in any committee.
SECTION 8. PLACE, TIME, NOTICE AND CALL OF DIRECTORS' MEETINGS. The
annual meeting of the Board of Directors for the purpose of electing officers
and transacting such other business as may be brought before the meeting shall
be held each year immediately following the annual meeting of shareholders or at
such other time and place as the Chairman of the Board may designate. Regular
meetings of the Board of Directors shall be held at such times as the Board of
Directors may determine from time to time. Regular meetings of the Board of
Directors may be held without notice. Special meetings of the Board of Directors
shall be held upon notice of the date, time and place of such special meetings
as shall be given to each Director orally, either by telephone or in person, or
in writing, either by personal delivery or by mail, telegram, facsimile, or
cablegram no later than the day before such meeting. Notice of a meeting of the
Board of Directors need not be given to any Director who signs and delivers to
the Corporation a waiver of notice either before or after the meeting.
Attendance of a Director at a meeting shall constitute a waiver of notice of
such meeting and waiver of any and all objections to the place of the meeting,
the time of the meeting, or the manner in which it has been called or convened,
except when a Director states, at the beginning of the meeting (or promptly upon
his arrival), any such objection or objections to the transaction of business
and thereafter does not vote for or assent to action taken at the meeting.
Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting unless required by law or these
Bylaws.
A majority of the Directors present, whether or not a quorum exists,
may adjourn any meeting of the Board of Directors to another time and place. No
notice of any adjourned meeting need be given.
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Meetings of the Board of Directors may be called by the Chairman of the
Board, the President or any two Directors.
SECTION 9. ACTION BY DIRECTORS WITHOUT A MEETING; PARTICIPATION IN
MEETING BY TELEPHONE. Except as limited by law, any action to be taken at a
meeting of the Board, or by any committee of the Board, may be taken without a
meeting if written consent, setting forth the action so taken, shall be signed
by all the members of the Board or such Committee and shall be filed with the
minutes of the proceedings of the Board or such committee. Such written consent
shall have the same force and effect as a unanimous vote of the Board or such
committee and any document executed on behalf of the Corporation may recite that
the action was duly taken at a meeting of the Board or such committee.
Members of the Board or any committee of the Board may participate in a
meeting of the Board or such committee by means of conference telephone or
similar communications equipment by which means all persons participating in the
meeting can hear each other, and participation in a meeting of the Board or such
committee by such means shall constitute personal presence at such meeting.
SECTION 10. DIRECTORS' COMPENSATION. The Board of Directors shall have
authority to determine from time to time the amount of compensation which shall
be paid to its members for attendance at meetings of, or services on, the Board
of Directors or any committee of the Board. The Board of Directors shall also
have the power to reimburse Directors for reasonable expenses of attendance at
Directors' meetings and committee meetings.
ARTICLE IV
OFFICERS
SECTION 1. EXECUTIVE STRUCTURE. The Board of Directors shall elect the
following officers: Chairman of the Board, President, Chief Financial Officer,
Corporate Secretary, and Treasurer, and may elect one or more Vice Chairmen,
Executive Vice Presidents and Senior Vice Presidents, as the Board of Directors
may deem necessary. The Board of Directors shall designate from among such
elected officers a Chief Executive Officer. The Chief Executive Officer may
appoint such assistant officers, whose duties shall consist of assisting one or
more of the Officers in the discharge of the duties of any such Officer, as may
be specified from time to time by the Chief Executive Officer, whose titles may
include such designations as the Chief Executive Officer shall deem appropriate.
All Officers (including assistant officers) shall be elected for a term of
office running until the meeting of the Board of Directors following the next
annual meeting of shareholders. All assistant officers shall be appointed for a
term specified by the Chief Executive Officer but not later than the meeting of
the Board of Directors following the next annual meeting of shareholders. Any
two or more offices may be held by the same person.
SECTION 2. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall
be the most senior officer of the Corporation, and all other officers and agents
of the Corporation shall be subject to his direction. He shall be accountable to
the Board of Directors for the fulfillment of his duties and responsibilities
and, in the performance and exercise of all his duties, responsibilities and
powers, he shall be subject to the supervision and direction of, and any
limitations imposed by, the Board of
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Directors. The Chief Executive Officer shall be responsible for interpretation
and required implementation of the policies of the Corporation as determined and
specified from time to time by the Board of Directors and he shall be
responsible for the general management and direction of the business and affairs
of the Corporation. For the purpose of fulfilling his duties and
responsibilities, the Chief Executive Officer shall have, subject to these
Bylaws and the Board of Directors, plenary authorities and powers, including
general executive powers, the authority to delegate and assign duties,
responsibilities and authorities, and, in the name of the Corporation and on its
behalf, to negotiate and make any agreements, waivers or commitments which do
not require the express approval of the Board of Directors.
SECTION 3. CHAIRMAN OF THE BOARD. The Chairman of the Board shall be a
member of the Board of Directors and shall preside at all meetings of the
shareholders and Board of Directors.
SECTION 4. PRESIDENT. The President shall have such powers and perform
such duties as may be assigned by the Board of Directors, the Chairman of the
Board of Directors or the Chief Executive Officer.
SECTION 5. VICE CHAIRMAN. Any Vice Chairman elected shall be a member
of the Board of Directors and shall have such duties and authority as may be
conferred upon him by the Board of Directors or delegated to him by the Chief
Executive Officer.
SECTION 6. CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall
have the care, custody, control and handling of the funds and assets of the
Corporation, and shall render a statement of the assets, liabilities and
operations of the Corporation to the Board of Directors at its regular meetings.
SECTION 7. TREASURER. The Treasurer shall perform such duties as may be
assigned to the Treasurer and shall report to the Chief Financial Officer or, in
the absence of the Chief Financial Officer, to the President.
SECTION 8. CORPORATE SECRETARY. Due notice of all meetings of the
shareholders and directors shall be given by the Corporate Secretary or the
person or persons calling such meeting. The Corporate Secretary shall report the
proceedings of all meetings in a book of minutes and shall perform all the
duties pertaining to his office including authentication of corporate documents
and shall have custody of the Seal of the Corporation. Each assistant Corporate
Secretary appointed by the Chief Executive Officer may perform all duties of the
Corporate Secretary.
SECTION 9. OTHER DUTIES AND AUTHORITY. Each officer, employee and agent
of the Corporation shall have such other duties and authority as may be
conferred upon him by the Board of Directors or delegated to him by the Chief
Executive Officer.
SECTION 10. REMOVAL OF OFFICERS. Any officer may be removed by the
Board of Directors with or without cause whenever in its judgment the best
interests of the Corporation will be served thereby. In addition, an officer of
the Corporation shall cease to be an officer upon ceasing to be an employee of
the Corporation or any of its subsidiaries.
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ARTICLE V
STOCK
SECTION 1. STOCK CERTIFICATES. The shares of stock of the Corporation
shall be represented by certificates in such form as may be approved by the
Board of Directors, which certificates shall be issued to the shareholders of
the Corporation and shall be signed by the Chairman of the Board, or the
President, together with the Corporate Secretary or an Assistant Secretary of
the Corporation; and which shall be sealed with the seal of the Corporation. The
signatures of such officers upon a certificate may be facsimile if the
certificate is countersigned by a transfer agent or registrar other than the
Corporation itself or an employee of the Corporation. No share certificates
shall be issued until consideration for the shares represented thereby has been
fully paid. In case any officer who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer before such
certificate is issued, it may be issued by the Corporation with the same effect
as if he were such officer at the date of issue.
SECTION 2. TRANSFER OF STOCK. Shares of stock of the Corporation shall
be transferred on the books of the Corporation only upon surrender to the
Corporation of the certificate or certificates representing the shares to be
transferred accompanied by an assignment in writing of such shares properly
executed by the shareholder of record or his duly authorized attorney-in-fact
and with all taxes on the transfer having been paid. The Corporation may refuse
any requested transfer until furnished evidence satisfactory to it that such
transfer is proper. Upon the surrender of a certificate for transfer of stock,
such certificate shall be marked on its face "Canceled". The Board of Directors
may make such additional rules concerning the issuance, transfer and
registration of stock and requirements regarding the establishment of lost,
destroyed or wrongfully taken stock certificates (including any requirement of
an indemnity bond prior to issuance of any replacement certificate and provision
for appointment of a transfer agent and a registrar) as it deems appropriate.
SECTION 3. REGISTERED SHAREHOLDERS. The Corporation may deem and treat
the holder of record of any stock as the absolute owner thereof for all purposes
and shall not be required to take any notice of any right or claim of right of
any other person.
SECTION 4. RECORD DATE. For the purpose of determining shareholders
entitled to notice of or to vote at any meeting of shareholders or any
adjournment thereof, or entitled to receive payment of any dividend, or in order
to make a determination of shareholders for any other purpose, the Board of
Directors of the Corporation may fix in advance a date as the record date for
any such determination of shareholders, such date in any case to be not more
than seventy (70) days and, in the case of a meeting of shareholders, not less
than ten (10) days prior to the date on which the particular action requiring
such determination of shareholders is to be taken.
ARTICLE VI
DEPOSITORIES, SIGNATURES AND SEAL
SECTION 1. DEPOSITORIES. All funds of the Corporation shall be
deposited in the name of the Corporation in such bank, banks, or other financial
institutions as the Board of Directors may from
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time to time designate and shall be drawn out on checks, drafts or other orders
signed on behalf of the Corporation by such person or persons as the Board of
Directors may from time to time designate.
SECTION 2. SEAL. The seal of the Corporation shall be as follows:
[SEAL]
If the seal is affixed to a document, the signature of the Corporate
Secretary or an Assistant Secretary shall attest the seal. The seal and its
attestation may be lithographed or otherwise printed on any document and shall
have, to the extent permitted by law, the same force and effect as if it has
been affixed and attested manually.
SECTION 3. EXECUTION OF INSTRUMENTS. All bills, notes, checks, and
other instruments for the payment of money, all agreements, indentures,
mortgages, deeds, conveyances, transfers, certificates, declarations, receipts,
discharges, releases, satisfactions, settlements, petitions, schedules,
accounts, affidavits, bonds, undertakings, proxies and other instruments or
documents may be signed, executed, acknowledged, verified, delivered, or
accepted on behalf of the Corporation by the Chairman of the Board, the
President, any Vice Chairman, Executive Vice President, Senior Vice President or
Vice President, the Secretary or the Treasurer. Any such instruments may also be
signed, executed, acknowledged, verified, delivered or accepted on behalf of the
Corporation in such manner and by such other officers, employees or agents of
the Corporation as the Board of Directors or Executive Committee may from time
to time direct.
ARTICLE VII
INDEMNIFICATION OF OFFICERS, DIRECTORS, AND EMPLOYEES
SECTION 1. DEFINITIONS. As used in this Article, the term:
(A) "Corporation" includes any domestic or foreign predecessor entity
of this Corporation in a merger or other transaction in which the predecessor's
existence ceased upon consummation of the transaction.
(B) "Director" means an individual who is or was a director of the
Corporation or an individual who, while a director of the Corporation, is or was
serving at the Corporation's request as a director, officer, partner, trustee,
employee, or agent of another foreign or domestic corporation, partnership,
joint venture, trust, employee benefit plan, or other entity. A "director" is
considered to be serving an employee benefit plan at the Corporation's request
if his duties to the Corporation also impose duties on, or otherwise involve
services by, him to the plan or to participants in or beneficiaries of the plan.
"Director" includes, unless the context requires otherwise, the estate or
personal representative of a director.
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(C) "Disinterested director" means a director who at the time of a vote
referred to in Section 3(C) or a vote or selection referred to in Section 4(B),
4(C) or 7(A) is not: (i) a party to the proceeding; or (ii) an individual who is
a party to a proceeding having a familial, financial, professional, or
employment relationship with the director whose indemnification or advance for
expenses is the subject of the decision being made with respect to the
proceeding, which relationship would, in the circumstances, reasonably be
expected to exert an influence on the director's judgment when voting on the
decision being made.
(D) "Employee" means an individual who is or was an employee of the
Corporation or an individual who, while an employee of the Corporation, is or
was serving at the Corporation's request as a director, officer, partner,
trustee, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan, or other enterprise.
An "Employee" is considered to be serving an employee benefit plan at the
Corporation's request if his duties to the Corporation also impose duties on, or
otherwise involve services by, him to the plan or to participants in or
beneficiaries of the plan. "Employee" includes, unless the context requires
otherwise, the estate or personal representative of an employee.
(E) "Expenses" includes counsel fees.
(F) "Liability" means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to an employee
benefit plan), or reasonable expenses incurred with respect to a proceeding.
(G) "Officer" means an individual who is or was an officer of the
Corporation which for purposes of this Article VII shall include an assistant
officer, or an individual who, while an Officer of the Corporation, is or was
serving at the Corporation's request as a director, officer, partner, trustee,
employee, or agent of another foreign or domestic corporation, partnership,
joint venture, trust, employee benefit plan, or other entity. An "Officer" is
considered to be serving an employee benefit plan at the Corporation's request
if his duties to the Corporation also impose duties on, or otherwise involve
services by, him to the plan or to participants in or beneficiaries of the plan.
"Officer" includes, unless the context requires otherwise, the estate or
personal representative of an Officer.
(H) "Official capacity" means: (i) when used with respect to a
director, the office of a director in a corporation; and (ii) when used with
respect to an Officer, the office in a corporation held by the Officer. Official
capacity does not include service for any other domestic or foreign corporation
or any partnership, joint venture, trust, employee benefit plan, or other
entity.
(I) "Party" means an individual who was, is, or is threatened to be
made a named defendant or respondent in a proceeding.
(J) "Proceeding" means any threatened, pending or completed action,
suit, or proceeding, whether civil, criminal, administrative, arbitrative or
investigative and whether formal or informal.
SECTION 2. BASIC INDEMNIFICATION ARRANGEMENT.
(A) Except as provided in subsections 2(D) and 2(E) below and, if
required by Section 4 below, upon a determination pursuant to Section 4 in the
specific case that such indemnification is
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permissible in the circumstances under this subsection because the individual
has met the standard of conduct set forth in this subsection (A), the
Corporation shall indemnify an individual who is made a party to a proceeding
because he is or was a director or Officer against liability incurred by him in
the proceeding if he conducted himself in good faith and, in the case of conduct
in his official capacity, he reasonably believed such conduct was in the best
interest of the Corporation, or in all other cases, he reasonably believed such
conduct was at least not opposed to the best interests of the Corporation and,
in the case of any criminal proceeding, he had no reasonable cause to believe
his conduct was unlawful.
(B) A person's conduct with respect to an employee benefit plan for a
purpose he believes in good faith to be in the interests of the participants in
and beneficiaries of the plan is conduct that satisfies the requirement of
subsection 2(A) above.
(C) The termination of a proceeding by judgment, order, settlement, or
conviction, or upon a plea of nolo contendere or its equivalent is not, of
itself, determinative that the proposed indemnitee did not meet the standard of
conduct set forth in subsection 2(A) above.
(D) The Corporation shall not indemnify a person under this Article in
connection with (i) a proceeding by or in the right of the Corporation, except
for reasonable expenses incurred in connection with the proceeding if it is
determined that such person has met the relevant standard of conduct under this
section, or (ii) with respect to conduct for which such person was adjudged
liable on the basis that personal benefit was improperly received by him,
whether or not involving action in his official capacity.
SECTION 3. ADVANCES FOR EXPENSES.
(A) The Corporation may advance funds to pay for or reimburse the
reasonable expenses incurred by a director or Officer who is a party to a
proceeding because he is a director or Officer in advance of final disposition
of the proceeding if: (i) such person furnishes the Corporation a written
affirmation of his good faith belief that he has met the relevant standard of
conduct set forth in subsection 2(A) above or that the proceeding involves
conduct for which liability has been eliminated under the Corporation's Articles
of Incorporation; and (ii) such person furnishes the Corporation a written
undertaking meeting the qualifications set forth below in subsection 3(B),
executed personally or on his behalf, to repay any funds advanced if it is
ultimately determined that he is not entitled to any indemnification under this
Article or otherwise.
(B) The undertaking required by subsection 3(A)(ii) above must be an
unlimited general obligation of the director or Officer but need not be secured
and shall be accepted without reference to financial ability to make repayment.
(C) Authorizations under this Section shall be made: (i) By the Board
of Directors: (a) when there are two or more disinterested directors, by a
majority vote of all disinterested directors (a majority of whom shall for such
purpose constitute a quorum) or by a majority of the members of a committee of
two or more disinterested directors appointed by such a vote; or (b) when there
are fewer than two disinterested directors, by a majority of the directors
present, in which authorization directors who do not qualify as disinterested
directors may participate; or (ii) by the shareholders, but shares owned or
voted under the control of a director who at the time does not qualify as a
disinterested director with respect to the proceeding may not be voted on the
authorization.
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SECTION 4. AUTHORIZATION OF AND DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION.
(A) The Corporation shall not indemnify a director or Officer
under Section 2 above unless authorized thereunder and a determination has been
made for a specific proceeding that indemnification of such person is
permissible in the circumstances because he has met the relevant standard of
conduct set forth in subsection 2(A) above; provided, however, that regardless
of the result or absence of any such determination, to the extent that a
director or Officer has been wholly successful, on the merits or otherwise, in
the defense of any proceeding to which he was a party because he is or was a
director or Officer, the Corporation shall indemnify such person against
reasonable expenses incurred by him in connection therewith.
(B) The determination referred to in subsection 4(A) above shall
be made:
(i) If there are two or more disinterested directors, by
the board of directors by a majority vote of all the disinterested
directors (a majority of whom shall for such purpose constitute a
quorum) or by a majority of the members of a committee of two or more
disinterested directors appointed by such a vote;
(ii) by special legal counsel:
(1) selected by the Board of Directors or its
committee in the manner prescribed in subdivision (i); or
(2) If there are fewer than two disinterested
directors, selected by the Board of
Directors (in which selection directors who do not qualify as
disinterested directors may participate); or
(iii) by the shareholders; but shares owned by or voted
under the control of a director who at the time does not qualify as a
disinterested director may not be voted on the determination.
(C) Authorization of indemnification or an obligation to indemnify
and evaluation as to reasonableness of expenses of a director or Officer in the
specific case shall be made in the same manner as the determination that
indemnification is permissible, as described in subsection 4(B) above, except
that if there are fewer than two disinterested directors or if the determination
is made by special legal counsel, authorization of indemnification and
evaluation as to reasonableness of expenses shall be made by those entitled
under subsection 4(B)(ii)(2) above to select counsel.
(D) The Board of Directors, a committee thereof, or special legal
counsel acting pursuant to subsection (B) above or Section 5 below, shall act
expeditiously upon an application for indemnification or advances, and cooperate
in the procedural steps required to obtain a judicial determination under
Section 5 below.
(E) The Corporation may, by a provision in its Articles of
Incorporation or Bylaws or in a resolution adopted or a contract approved by its
Board of Directors or shareholders, obligate itself in advance of the act or
omission giving rise to a proceeding to provide indemnification or advance funds
to
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pay for or reimburse expenses consistent with this part. Any such obligatory
provision shall be deemed to satisfy the requirements for authorization referred
to in Section 3(C) or Section 4(C).
SECTION 5. COURT-ORDERED INDEMNIFICATION AND ADVANCES FOR EXPENSES. A
director or Officer who is a party to a proceeding because he is a director or
Officer may apply for indemnification or advances for expenses to the court
conducting the proceeding or to another court of competent jurisdiction. After
receipt of an application and after giving any notice it considers necessary,
the court shall order indemnification or advances for expenses if it determines
that:
(i) The director is entitled to indemnification under
this part; or
(ii) In view of all the relevant circumstances, it is fair
and reasonable to indemnify the director or Officer or to advance
expenses to the director or Officer, even if the director or Officer
has not met the relevant standard of conduct set forth in subsection
2(A) above, failed to comply with Section 3, or was adjudged liable in
a proceeding referred to in subsections (i) or (ii) of Section 2(D),
but if the director or Officer was adjudged so liable, the
indemnification shall be limited to reasonable expenses incurred in
connection with the proceeding, unless the Articles of Incorporation of
the Corporation or a Bylaw, contract or resolution approved or ratified
by shareholders pursuant to Section 7 below provides otherwise.
If the court determines that the director or Officer is entitled to
indemnification or advance for expenses, it may also order the Corporation to
pay the director's or Officer's reasonable expenses to obtain court-ordered
indemnification or advance for expenses.
SECTION 6. INDEMNIFICATION OF OFFICERS AND EMPLOYEES.
(A) Unless the Corporation's Articles of Incorporation provide
otherwise, the Corporation shall indemnify and advance expenses under this
Article to an employee of the Corporation who is not a director or Officer to
the same extent, consistent with public policy, as to a director or Officer.
(B) The Corporation may indemnify and advance expenses under this
Article to an Officer of the Corporation who is a party to a proceeding because
he is an Officer of the Corporation: (i) to the same extent as a director; and
(ii) if he is not a director, to such further extent as may be provided by the
Articles of Incorporation, the Bylaws, a resolution of the Board of Directors,
or contract except for liability arising out of conduct that is enumerated in
subsections (A)(i) through (A)(iv) of Section 7.
The provisions of this Section shall also apply to an Officer who is
also a director if the sole basis on which he is made a party to the proceeding
is an act or omission solely as an Officer.
SECTION 7. SHAREHOLDER APPROVED INDEMNIFICATION.
(A) If authorized by the Articles of Incorporation or a Bylaw,
contract or resolution approved or ratified by shareholders of the Corporation
by a majority of the votes entitled to be cast, the Corporation may indemnify or
obligate itself to indemnify a person made a party to a proceeding, including a
proceeding brought by or in the right of the Corporation, without regard to the
limitations in other sections of this Article, but shares owned or voted under
the control of a director who at the time does not qualify as a disinterested
director with respect to any existing or threatened proceeding that
13
<PAGE> 14
would be covered by the authorization may not be voted on the authorization. The
Corporation shall not indemnify a person under this Section 7 for any liability
incurred in a proceeding in which the person is adjudged liable to the
Corporation or is subjected to injunctive relief in favor of the Corporation:
(i) for any appropriation, in violation of his duties, of
any business opportunity of the Corporation;
(ii) for acts or omissions which involve intentional
misconduct or a knowing violation of law;
(iii) for the types of liability set forth in Section
14-2-832 of the Georgia Business Corporation Code; or
(iv) for any transaction from which he received an
improper personal benefit.
(B) Where approved or authorized in the manner described in
subsection 7(A) above, the Corporation may advance or reimburse expenses
incurred in advance of final disposition of the proceeding only if:
(i) the proposed indemnitee furnishes the Corporation a
written affirmation of his good faith belief that his conduct does not
constitute behavior of the kind described in subsection 7(A)(i)-(iv)
above; and
(ii) the proposed indemnitee furnishes the Corporation a
written undertaking, executed personally, or on his behalf, to repay
any advances if it is ultimately determined that he is not entitled to
indemnification.
SECTION 8. LIABILITY INSURANCE. The Corporation may purchase and
maintain insurance on behalf of an individual who is a director, officer,
employee, or agent of the Corporation or who, while a director, officer,
employee, or agent of the Corporation, is or was serving at the request of the
Corporation as a director, officer, partner, trustee, employee, or agent of
another foreign or domestic corporation, partnership, joint venture, trust,
employee benefit plan, or other entity against liability asserted against or
incurred by him in that capacity or arising from his status as a director,
officer, employee, or agent, whether or not the Corporation would have power to
indemnify him against the same liability under Section 2 or Section 3 above.
SECTION 9. WITNESS FEES. Nothing in this Article shall limit the
Corporation's power to pay or reimburse expenses incurred by a person in
connection with his appearance as a witness in a proceeding at a time when he is
not a party.
SECTION 10. REPORT TO SHAREHOLDERS. If the Corporation indemnifies or
advances expenses to a director in connection with a proceeding by or in the
right of the Corporation, the Corporation shall report the indemnification or
advance, in writing, to shareholders with or before the notice of the next
shareholders' meeting.
SECTION 11. SEVERABILITY. In the event that any of the provisions of
this Article (including any provision within a single section, subsection,
division or sentence) is held by a court of competent
14
<PAGE> 15
jurisdiction to be invalid, void or otherwise unenforceable, the remaining
provisions of this Article shall remain enforceable to the fullest extent
permitted by law.
SECTION 12. INDEMNIFICATION NOT EXCLUSIVE. The rights of
indemnification provided in this Article VII shall be in addition to any rights
which any such director, Officer, employee or other person may otherwise be
entitled by contract or as a matter of law.
ARTICLE VIII
AMENDMENTS OF BYLAWS
The Board of Directors shall have the power to alter, amend or repeal
the Bylaws or adopt new Bylaws, but any Bylaws adopted by the Board of Directors
may be altered, amended or repealed and new Bylaws adopted by the shareholders.
Action by the Directors with respect to the Bylaws shall be taken by an
affirmative vote of a majority of all of the Directors then elected and serving,
unless a greater vote is required by law, the Articles of Incorporation or these
Bylaws.
ARTICLE IX
EMERGENCY TRANSFER OF RESPONSIBILITY
SECTION 1. EMERGENCY DEFINED. In the event of a national emergency
threatening national security or a major disaster declared by the President of
the United States or the person performing his functions, which directly or
severely affects the operations of the Corporation, the officers and employees
of this Corporation will continue to conduct the affairs of the Corporation
under such guidance from the Directors as may be available except as to matters
which by law or regulation require specific approval of the Board of Directors
and subject to conformance with any applicable laws, regulations, and
governmental directives during the emergency.
SECTION 2. OFFICERS PRO TEMPORE. The Board of Directors shall have the
power, in the absence or disability of any officer, or upon the refusal of any
officer to act as a result of said national emergency directly and severely
affecting the operations of the Corporation, to delegate and prescribe such
officer's powers and duties to any other officer, or to any Director.
In the event of a national emergency or state of disaster of sufficient
severity to prevent the conduct and management of the affairs and business of
this Corporation by its Directors and officers as contemplated by the Bylaws,
any two or more available members or alternate members of the then incumbent
Executive Committee shall constitute a quorum of such Committee for the full
conduct and management of the Corporation in accordance with the provisions of
Articles II and III of the Bylaws. If two members or alternate members of the
Executive Committee cannot be expeditiously located, then three available
Directors shall constitute the Executive Committee for the full conduct and
management of the affairs and business of the Corporation until the then
remaining Board can be convened. These provisions shall be subject to
implementation by resolutions of the Board of Directors passed from time to
time, and any provisions of the Bylaws (other than this Section) and any
resolutions which are contrary to the provisions of this Section or the
provisions of any such implementary resolutions shall be
15
<PAGE> 16
suspended until it shall be determined by any such interim Executive Committee
acting under this Section that it shall be to the advantage of this Corporation
to resume the conduct and management of its affairs and business under all of
the other provisions of these Bylaws.
SECTION 3. OFFICER SUCCESSION. If, in the event of a national emergency
or disaster which directly and severely affects the operations of the
Corporation, the Chief Executive Officer cannot be located expeditiously or is
unable to assume or to continue normal duties, then the authority and duties of
the office shall be automatically assumed, without Board of Directors action, in
order of title, and subject only to willingness and ability to serve, by the
Chairman of the Board, President, Vice Chairman, Executive Vice President,
Senior Vice President, Vice President, Corporate Secretary or their successors
in office at the time of the emergency or disaster. Where two or more officers
hold equivalent titles and are willing and able to serve, seniority in title
controls initial appointment. If, in the same manner, the Corporate Secretary or
Treasurer cannot be located or is unable to assume or continue normal duties,
the responsibilities attached thereto shall, in like manner as described
immediately above, be assumed by any Executive Vice President, Senior Vice
President, or Vice President. Any officer assuming authority and position
hereunder shall continue to serve until the earlier of his resignation or the
elected officer or a more senior officer shall become available to perform the
duties of the position of Chief Executive Officer, Corporate Secretary, or
Treasurer.
SECTION 4. CERTIFICATION OF AUTHORITY. In the event of a national
emergency or disaster which directly and severely affects the operations of the
Corporation, anyone dealing with this Corporation shall accept a certification
by the Corporate Secretary or any three officers that a specified individual is
acting as Chairman of the Board, Chief Executive Officer, President, Corporate
Secretary, or Treasurer, in accordance with these Bylaws; and that anyone
accepting such certification shall continue to consider it in force until
notified in writing of a change, such notice of change to carry the signature of
the Corporate Secretary or three officers of the Corporation.
SECTION 5. ALTERNATIVE LOCATIONS. In the event of a national emergency
or disaster which destroys, demolishes, or renders the Corporation's offices or
facilities unserviceable, or which causes, or in the judgment of the Board of
Directors or the Executive Committee probably will cause, the occupancy or use
thereof to be a clear and imminent hazard to personal safety, the Corporation
shall temporarily lease or acquire sufficient facilities to carry on its
business as may be designated by the Board of Directors. Any temporarily
relocated place of business of this Corporation shall be returned to its legally
authorized location as soon as practicable and such temporary place of business
shall then be discontinued.
SECTION 6. AMENDMENTS TO ARTICLE IX. At any meeting called in
accordance with Section 2 of this Article IX, the Board of Directors or
Executive Committee, as the case may be, may modify, amend or add to the
provisions of this Article IX so as to make any provision that may be practical
or necessary for the circumstances of the emergency.
ARTICLE X
BUSINESS COMBINATIONS WITH INTERESTED SHAREHOLDERS
All of the requirements of Article 11A of the Georgia Business
Corporation Code (currently codified in Sections 14-2-1131 through 14-2-1133
thereof), as may be in effect from time to time (the
16
<PAGE> 17
"Business Combination Statute"), shall apply to all "business combinations" (as
defined in Section 14-2- 1131 of the Georgia Business Corporation Code)
involving the Corporation. The requirements of the Business Combination Statute
shall be in addition to the requirements of Article XI of the Corporation's
Articles of Incorporation. Nothing contained in the Business Combination Statute
shall be deemed to limit the provisions contained in Article XI of the
Corporation's Articles of Incorporation, and nothing contained in Article XI of
the Corporation's Articles of Incorporation shall be deemed to limit the
provisions contained in the Business Combination Statute.
ARTICLE XI
INSPECTION OF BOOKS AND RECORDS
The Board of Directors shall determine whether and to what extent the
accounts and books of the Corporation, or any of them, other than the share
records, shall be open to the inspection of shareholders, and no shareholder
shall have any right to inspect any account or books or document of the
Corporation except as conferred by law or by resolution of the shareholders or
the Board of Directors. Without prior approval of the Board of Directors in
their discretion, the right of inspection set forth in Section 14-2-1602(c) of
the Georgia Business Corporation Code shall not be available to any shareholder
owning two (2%) percent or less of the shares outstanding.
17
<PAGE> 1
EXHIBIT 5
[LETTERHEAD]
February 11, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Registration of $500,000,000 of Debt Securities
Gentlemen:
I have acted as counsel for SunTrust Banks, Inc., a Georgia corporation
("SunTrust") in connection with the registration pursuant to a Registration
Statement on Form S-3 (the "Registration Statement") filed today by SunTrust
under the Securities Act of 1933 (the "Act") and the rules and regulations of
the Securities and Exchange Commission (the "Commission") thereunder, of
$500,000,000 aggregate principal amount of either (i) Senior Debt Securities of
SunTrust (the "Senior Debt Securities"), to be issued pursuant to that certain
Indenture (the "Senior Indenture"), dated as of May 1, 1993, between SunTrust
and PNC Bank, National Association, as Trustee (the "Senior Trustee") or (ii)
Subordinated Debt Securities of SunTrust (the "Subordinated Debt Securities"),
to be issued pursuant to that certain Indenture (the "Subordinated Indenture"),
dated as of May 1, 1993, between SunTrust and The First National Bank of
Chicago, as Trustee (the "Subordinated Trustee").
In so acting, I have examined and relied upon the accuracy of original,
certified, conformed or photographic copies of such records, agreements,
certificates and other documents as I have deemed necessary or appropriate to
enable me to render the opinions set forth below. In all such examinations, I
have assumed the genuineness of signatures on original documents and the
conformity to such original documents of all copies submitted to me as
certified, conformed or photographic copies and, as to certificates of public
officials, I have assumed the same to have been properly given and to be
accurate.
I have assumed that the execution and delivery of, and the performance
of all obligations under, the Senior Indenture and the Subordinated Indenture
have been duly authorized by all requisite action by each party thereto (other
than SunTrust), and that such documents are valid and binding agreements of the
parties thereto (other than SunTrust) enforceable against the parties thereto
(other than SunTrust) in accordance with their respective terms. This opinion
is limited to the matters stated herein, and no opinion is implied or may be
inferred beyond the matters expressly stated herein.
Based upon the foregoing, I am of the opinion that:
(i) SunTrust has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Georgia;
(ii) The Senior Indenture has been duly executed and
delivered by SunTrust, is validly authorized and constitutes the valid
and binding obligation of SunTrust in accordance with its terms
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from
<PAGE> 2
time to time in effect and, as to rights of acceleration and the
enforcement of remedies, to general principles of equity);
(iii) The Subordinated Indenture has been duly executed and
delivered by SunTrust, is validly authorized and constitutes the valid
and binding obligation of SunTrust in accordance with its terms
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and, as to
rights of acceleration and the enforcement of remedies, to general
principles of equity);
(iv) The Senior Debt Securities, when duly authorized by
SunTrust, executed and delivered on behalf of SunTrust, authenticated
by the Senior Trustee under the Senior Indenture and sold by SunTrust,
will be validly issued, will constitute valid and binding obligations
of SunTrust in accordance with their terms (subject, as to enforcement
of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally from
time to time in effect and, as to rights of acceleration and the
enforcement of remedies, to general principles of equity) and will be
entitled to the benefits of the Senior Indenture in accordance with
their terms and the terms of the Senior Indenture subject as aforesaid;
and
(v) The Subordinated Debt Securities, when duly
authorized by SunTrust, executed and delivered on behalf of SunTrust,
authenticated by the Subordinated Trustee under the Subordinated
Indenture and sold by SunTrust, will be validly issued, will constitute
valid and binding obligations of SunTrust in accordance with their
terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in effect and,
as to rights of acceleration and the enforcement of remedies, to
general principles of equity) and will be entitled to the benefits of
the Subordinated Indenture in accordance with their terms and the terms
of the Subordinated Indenture subject as aforesaid.
This opinion is given as of the date hereof, and I assume no obligation
to update this opinion to reflect any fact or circumstance that may hereafter
come to my attention or any change in any law or regulation that may hereafter
occur.
I consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to me under the caption "Legal
Matters" in the prospectus that forms a part thereof. In giving such consent, I
do not thereby admit that I am in the category of persons whose consent is
required under Section 7 of the Securities Act.
Sincerely,
/s/ Raymond D. Fortin
---------------------------------------------
Raymond D. Fortin
Senior Vice President and Corporate Secretary
2
<PAGE> 1
EXHIBIT 12
SUNTRUST BANKS, INC.
Ratio of Earnings to Fixed Charges
(In thousands)
<TABLE>
<CAPTION>
Nine Months Ended
September 30 Year Ended December 31
------------------------ --------------------------------------
1997 1996 1996 1995 1994
---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
RATIO 1 - INCLUDING DEPOSIT INTEREST
Earnings:
Income before income taxes $ 503,353 $ 435,590 $ 903,200 $ 825,925 $ 781,965
Fixed charges 837,057 718,850 1,476,392 1,363,702 946,283
---------- ---------- ---------- ---------- ----------
Total $1,340,410 $1,154,440 $2,379,592 $2,189,627 $1,728,248
========== ========== ========== ========== ==========
Fixed charges:
Interest on deposits 566,898 537,828 1,083,035 988,725 704,803
Interest on funds purchased 155,445 110,417 245,502 239,080 122,055
Interest on other short-term borrowings 43,315 26,676 48,264 54,843 42,519
Interest on long-term debt 63,631 36,661 85,031 68,114 63,119
Portion of rents representative of the
interest factor (1/3) of rental expense 7,768 7,268 14,560 12,940 13,787
---------- ---------- ---------- ---------- ----------
Total $ 837,057 $ 718,850 $1,476,392 $1,363,702 $ 946,283
========== ========== ========== ========== ==========
Earnings to fixed charges 1.60x 1.61x 1.61x 1.61x 1.83x
RATIO 2 - EXCLUDING DEPOSIT INTEREST
Earnings:
Income before income taxes $ 503,353 $ 435,590 $ 903,200 $ 825,925 $ 781,965
Fixed charges 270,159 181,022 393,357 374,977 241,480
---------- ---------- ---------- ---------- ----------
Total $ 773,512 $ 616,612 $1,296,557 $1,200,902 $1,023,445
========== ========== ========== ========== ==========
Fixed charges:
Interest on funds purchased 155,445 110,417 245,502 239,080 122,055
Interest on other short-term borrowings 43,315 26,676 48,264 54,843 42,519
Interest on long-term debt 63,631 36,661 85,031 68,114 63,119
Portion of rents representative of the
interest factor (1/3) of rental expense 7,768 7,268 14,560 12,940 13,787
---------- ---------- ---------- ---------- ----------
Total $ 270,159 $ 181,022 $ 393,357 $ 374,977 $ 241,480
========== ========== ========== ========== ==========
Earnings to fixed charges 2.86x 3.41x 3.30x 3.20x 4.24x
<CAPTION>
Year Ended December 31
------------------------
1993 1992
---------- ----------
<S> <C> <C>
RATIO 1 - INCLUDING DEPOSIT INTEREST
Earnings:
Income before income taxes $ 700,662 $ 575,768
Fixed charges 804,281 988,111
---------- ----------
Total $1,504,943 $1,563,879
========== ==========
Fixed charges:
Interest on deposits 632,307 832,372
Interest on funds purchased 87,900 87,038
Interest on other short-term borrowings 21,623 7,027
Interest on long-term debt 48,839 48,560
Portion of rents representative of the
interest factor (1/3) of rental expense 13,612 13,114
---------- ----------
Total $ 804,281 $ 988,111
========== ==========
Earnings to fixed charges 1.87x 1.58x
RATIO 2 - EXCLUDING DEPOSIT INTEREST
Earnings:
Income before income taxes $ 700,662 $ 575,768
Fixed charges 171,974 155,739
---------- ----------
Total $ 872,636 $ 731,507
========== ==========
Fixed charges:
Interest on funds purchased 87,900 87,038
Interest on other short-term borrowings 21,623 7,027
Interest on long-term debt 48,839 48,560
Portion of rents representative of the
interest factor (1/3) of rental expense 13,612 13,114
---------- ----------
Total $ 171,974 $ 155,739
========== ==========
Earnings to fixed charges 5.07x 4.70x
</TABLE>
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 31, 1997
incorporated by reference in SunTrust Banks, Inc.'s Form 10-K for the year ended
December 31, 1996 and to all references to our Firm included in this
registration statement.
ARTHUR ANDERSEN LLP
Atlanta, Georgia
February 10, 1998
<PAGE> 1
EXHIBIT 25.1
_______________________________________________________________________________
_______________________________________________________________________________
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT
OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) X
PNC BANK, NATIONAL ASSOCIATION
(Exact Name of Trustee as Specified in its Charter)
NOT APPLICABLE
(Jurisdiction of incorporation or
organization if not a U.S. national bank)
25-1197336
(I.R.S. Employer Identification No.)
One PNC Plaza
Fifth Avenue and Wood Street, Pittsburgh, Pennsylvania 15222 (Address
of principal executive offices - Zip code)
Allan K. Poust, Vice President, PNC Bank, National Association
27th Floor, One Oliver Plaza, Pittsburgh, Pennsylvania 15222-2602
(412) 762-2838
(Name, address and telephone number of agent for service)
SUNTRUST BANKS, INC.
(Exact name of obligor as specified in its charter)
Georgia
(State or other jurisdiction of incorporation or organization)
58-1575035
(I.R.S. Employer Identification No.)
303 Peachtree Street, N.E.
Atlanta, Georgia 30308
(Address of principal executive offices - Zip code)
SENIOR DEBT SECURITIES
(Title of the indenture securities)
_______________________________________________________________________________
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
<TABLE>
<S> <C> <C>
(a) Name and address of each examining or supervising
authority to which it is subject.
Comptroller of the Currency Washington, D.C.
Federal Reserve Bank of Cleveland Cleveland, Ohio
Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes. (See Exhibit T-1-3)
</TABLE>
ITEM 2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS.
If the obligor or any underwriter for the obligor is an affiliate of
the trustee, describe each such affiliation.
Neither the obligor nor any underwriter for the obligor is an
affiliate of the trustee.
ITEM 3 THROUGH ITEM 14.
The issuer currently is not in default under any of its outstanding
securities for which PNC Bank is trustee. Accordingly, responses to
Items 3 through 14 of Form T-1 are not required pursuant to Form T-1
General Instructions B.
ITEM 15. FOREIGN TRUSTEE.
Identify the order or rule pursuant to which the foreign trustee is
authorized to act as sole trustee under the indentures qualified or to
be qualified under the Act.
Not applicable (trustee is not a foreign trustee).
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as part of this statement of eligibility.
<TABLE>
<S> <C> <C>
Exhibit T-1-1 - Articles of Association of the trustee, with all amendments
thereto, as presently in effect, filed as Exhibit 1 to Trustee's
Statement of Eligibility and Qualification, Registration No.
333-43153 and incorporated herein by reference.
Exhibit T-1-2 - Copy of Certificate of the Authority of the Trustee to
Commence Business, filed as Exhibit 2 to Trustee's
Statement of Eligibility and Qualification, Registration No.
2-58789 and incorporated herein by reference.
Exhibit T-1-3 - Copy of Certificate as to Authority of the Trustee to
Exercise Trust Powers, filed as Exhibit 3 to Trustee's
</TABLE>
-2-
<PAGE> 3
<TABLE>
<S> <C> <C>
Statement of Eligibility and Qualification, Registration No.
2-58789, and incorporated herein by reference.
Exhibit T-1-4 - The By-Laws of the trustee, filed as Exhibit 4 to Trustee's
Statement of Eligibility and Qualification, Registration No.
333-28711 and incorporated herein by refenence.
Exhibit T-1-5 - The consent of the trustee required by Section 321(b) of the
Act.
Exhibit T-1-6 - The copy of the Balance Sheet taken from the latest Report
of Condition of the trustee published in response to call
made by Comptroller of the Currency under Section 5211
U.S. Revised Statutes.
</TABLE>
NOTE
The answers to this statement, insofar as such answers relate to (a) what
persons have been underwriters for any securities of the obligor within three
years prior to the date of filing this statement, or are owners of 10% or more
of the voting securities of the obligor, or are affiliates or directors or
executive officers of the obligor, and (b) the voting securities of the trustee
owned beneficially by the obligor and each director and executive officer of the
obligor, are based upon information furnished to the trustee by the obligor and
also, in the case of (b) above, upon an examination of the trustee's records.
While the trustee has no reason to doubt the accuracy of any such information
furnished by the obligor, it cannot accept any responsibility therefor.
____________________________________
Signature appears on next page
-3-
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, PNC Bank, National Association, a corporation organized and existing
under the laws of the United States of America, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Pittsburgh and Commonwealth of Pennsylvania on
February 6, 1998.
PNC BANK, NATIONAL ASSOCIATION
(Trustee)
By /s/ Allan K. Poust
---------------------------
Allan K. Poust
Vice President
-4-
<PAGE> 5
EXHIBIT T-1-5
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, as amended by the Trust Indenture Reform Act of 1990, in connection
with the proposed issuance by SUNTRUST BANKS, INC. of its Senior Debt
Securities, we hereby consent that reports of examination by Federal, State,
Territorial, or District authorities may be furnished by such authorities to the
Securities and Exchange Commission upon request therefor.
PNC BANK, NATIONAL ASSOCIATION
(Trustee)
By /s/ Allan K. Poust
---------------------------
Allan K. Poust
Vice President
Dated: February 6, 1998
-5-
<PAGE> 6
EXHIBIT T-1-6
SCHEDULE RC - BALANCE SHEET
FROM
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of
PNC BANK, NATIONAL ASSOCIATION
of PITTSBURGH in the state of PENNSYLVANIA
at the close of business on
September 30, 1997
filed in response to call made by
Comptroller of the Currency,
under title 12, United States Code, Section 161
Charter Number 540
Comptroller of the Currency Northeastern District
BALANCE SHEET
<TABLE>
<CAPTION>
Thousands
of Dollars
----------
ASSETS
<S> <C> <C>
Cash and balances due from depository institutions
Noninterest-bearing balances and currency and coin................................... $ 3,291,380
Interest-Bearing Balances............................................................ 122,778
Securities
Held-to-maturity securities.......................................................... 0
Available-for-sale securities........................................................ 5,669,736
Federal funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBFs:
Federal funds sold and
Securities purchased under agreements to resell...................................... 869,038
Loans and lease financing receivables:
Loans and leases, net of unearned income $44,571,048
LESS: Allowance for loan and lease losses 812,830
LESS: Allocated transfer risk reserve 0
Loans and leases, net of unearned income,
allowance and reserve............................................................ 43,758,218
Trading assets ........................................................................ 134,154
Premises and fixed assets (including capitalized leases)............................... 716,561
Other real estate owned ............................................................... 50,869
Investments in unconsolidated subsidiaries and
associated companies ............................................................... 3,679
Customers' liability to this bank on acceptances
outstanding......................................................................... 50,248
Intangible assets ..................................................................... 1,575,419
Other assets........................................................................... 1,406,879
-----------
Total Assets........................................................................ $ 57,648,959
===========
</TABLE>
<PAGE> 7
<TABLE>
LIABILITIES
<S> <C> <C>
Deposits:
In domestic offices................................................................. $34,197,693
Noninterest-bearing $ 8,472,726
Interest-bearing 25,724,967
In foreign offices, Edge and Agreement subsidiaries,
and IBFs......................................................................... 1,544,664
Noninterest-bearing $ 6,571
Interest-bearing 1,538,093
Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of its
Edge and Agreement subsidiaries, and in IBFs:
Federal funds purchased and
Securities sold under agreements to repurchase................................... 2,156,756
Demand notes issued to U.S. Treasury................................................... 799,995
Trading Liabilities.................................................................... 155,047
Other borrowed money
With original maturity of one year or less.......................................... 10,085,030
With original maturity of more than one year through three years.................... 882,274
With original maturity of more than one year........................................ 1,169,398
Bank's liability on acceptances executed and outstanding............................... 50,248
Subordinated notes and debentures ..................................................... 645,953
Other liabilities...................................................................... 1,080,158
--------------
Total liabilities...................................................................... 52,767,216
EQUITY CAPITAL
Perpetual preferred stock and related surplus.......................................... 0
Common Stock........................................................................... 218,919
Surplus. . . .......................................................................... 1,933,735
Undivided profits and capital reserves................................................. 2,760,127
Net unrealized holding gains (losses) on
available-for-sale securities....................................................... (31,038)
Cumulative foreign currency translation adjustments.................................... 0
Total equity capital................................................................... 4,881,743
-----------
Total liabilities and equity capital................................................... $ 57,648,959
===========
</TABLE>
<PAGE> 1
EXHIBIT 25.2
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
SUNTRUST BANKS, INC.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
GEORGIA 58-1575035
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
303 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30308
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO
THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING
AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C., Federal Deposit
Insurance Corporation, Washington, D.C., The Board of
Governors of the Federal Reserve System, Washington D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST
POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE
OF THE TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART OF
THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the trustee
now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b)
of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the requirements
of its supervising or examining authority.
2
<PAGE> 3
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of Chicago
and the State of Illinois, on this 4th day of February, 1998.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
By /s/ John R. Prendiville
John R. Prendiville
Vice President
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF
CHICAGO, FILED AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF
SUNAMERICA, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER
25, 1996 (REGISTRATION NO. 333-14201).
3
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
February 4, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between
SUNTRUST BANKS, INC. and The First National Bank of Chicago, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended,
hereby consents that the reports of examinations of the undersigned, made by
Federal or State authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange Commission upon its
request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ John R. Prendiville
John R. Prendiville
Vice President
4
<PAGE> 5
EXHIBIT 7
<TABLE>
<S> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR SEPTEMBER 30, 1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION> C400
DOLLAR AMOUNTS IN ------------
THOUSANDS RCFD BIL MIL THOU
----------------- ---- ------------
<S> <C> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1)............. 0081 4,499,157 1.a.
b. Interest-bearing balances(2)...................................... 0071 6,967,103 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)......... 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)...... 1773 5,251,713 2.b.
3. Federal funds sold and securities purchased under agreements to
resell 1350 5,561,976 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C)................................................................ RCFD 2122 24,171,565 4.a.
b. LESS: Allowance for loan and lease losses......................... RCFD 3123 419,216 4.b.
c. LESS: Allocated transfer risk reserve............................. RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c).............................. 2125 23,752,349 4.d.
5. Trading assets (from Schedule RD-D).................................. 3545 6,238,805 5.
6. Premises and fixed assets (including capitalized leases)............. 2145 717,303 6.
7. Other real estate owned (from Schedule RC-M)...................... 2150 7,187 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)....................................... 2130 77,115 8.
9. Customers' liability to this bank on acceptances outstanding......... 2155 614,921 9.
10. Intangible assets (from Schedule RC-M)............................... 2143 277,105 10.
11. Other assets (from Schedule RC-F).................................... 2160 2,147,141 11.
12. Total assets (sum of items 1 through 11)............................. 2170 56,108,875 12.
</TABLE>
- -------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE> 6
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
Thousands BIL MIL THOU
----------------- ------------
<S> <C> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1).................................... RCON 2200 21,496,468 13.a
(1) Noninterest-bearing(1)..................................... RCON 6631 8,918,843 13.a.1
(2) Interest-bearing........................................... RCON 6636 12,577,625 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)................. RCFN 2200 14,164,129 13.b.
(1) Noninterest bearing........................................ RCFN 6631 352,399 13.b.1
(2) Interest-bearing........................................... RCFN 6636 13,811,730 13.b.2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 3,894,469 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 68,268 15.a
b. Trading Liabilities(from Schedule RC-D)........................ RCFD 3548 5,247,232 15.b
16. Other borrowed money:
a. With a remaining maturity of one year or less................. RCFD 2332 2,608,057 16.a
b. With a remaining maturity of more than one year through
three years ...................................................... A547 379,893 16.b
. c. With a remaining maturity of more than three years ........... A548 323,042 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding........... RCFD 2920 614,921 18
19. Subordinated notes and debentures (2)................. RCFD 3200 1,700,000 19
20. Other liabilities (from Schedule RC-G)............................ RCFD 2930 1,222,121 20
21. Total liabilities (sum of items 13 through 20).................... RCFD 2948 51,718,600 21
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus..................... RCFD 3838 0 23
24. Common stock...................................................... RCFD 3230 200,858 24
25. Surplus (exclude all surplus related to preferred stock).......... RCFD 3839 2,989,408 25
26. a. Undivided profits and capital reserves......................... RCFD 3632 1,175,518 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities..................................................... RCFD 8434 26,750 26.b.
27. Cumulative foreign currency translation adjustments............... RCFD 3284 (2,259) 27
28. Total equity capital (sum of items 23 through 27)..... RCFD 3210 4,390,275 28
29. Total liabilities and equity capital (sum of items 21 and 28)..... RCFD 3300 56,108,875 29
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed
for the bank by independent external Number
auditors as of any date during 1996 .......................... RCFD 6724 N/A. M.1
</TABLE>
<TABLE>
<S> <C>
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
- -----------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
6
