AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 14, 2004.
REGISTRATION STATEMENT NO. 33-________
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SUNTRUST BANKS, INC.
(Exact name of registrant as specified in its charter)
GEORGIA 58-1575035
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
303 Peachtree Street, N.E.
Atlanta, Georgia 30308
(Address of Principal Executive Offices)
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National Commerce Financial Corporation 2003 Stock and Incentive Plan
Piedmont Bancorp, Inc. Stock Option Plan
Amended and Restated Salem Trust Bank 1986 Incentive Stock Option Plan
1995 Directors Performance Plan of American Federal Bank, FSB
National Commerce Financial Corporation Amended and Restated Long Term
Incentive Plan
American Federal Bank, FSB Amended and Restated 1988 Stock Option and
Incentive Plan
Stone Street Bancorp, Inc. Stock Option Plan
SouthBanc Shares, Inc. 1998 Stock Option Plan
SouthBanc Shares, Inc. 2001 Stock Option Plan
National Commerce Bancorporation 1994 Stock Plan as Amended and Restated
Effective November 1, 1996 and Further Amended by Amendment No. 1 Effective as
of July 1, 1998 and Amendment No. 2 Effective as of June 29, 2000
National Commerce Financial Corporation Investment Plan.
Perpetual Bank, A Federal Savings Bank 1997 Stock Option Plan
SouthBanc Shares, Inc. Employees' Savings & Profit Sharing Plan
Perpetual Bank, A Federal Savings Bank Employee Stock Ownership Plan
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RAYMOND D. FORTIN
Senior Vice President
SunTrust Banks, Inc.
303 Peachtree Street, N.E.
Atlanta, Georgia 30308
(Name and address of Agent for Service)
404-588-7165
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
TITLE OF EACH CLASS AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM
OF SECURITIES TO TO BE OFFERING PRICE AGGREGATE AMOUNT OF
BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE
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Common Stock, $1.00
par value per share.... 12,000,000 $67.92 $815,040,000 $103,265.57
========================================================================================================
(1) Determined pursuant to Rule 457(c) and (h)(l) based on $67.92, the
average of the high and low prices of the registrant's common stock on
September 10, 2004, as reported on the New York Stock Exchange.
================================================================================
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
This Registration Statement covers 12,000,000 shares of common stock, par
value $1.00 per share (the "Common Stock") of SunTrust Banks, Inc. (the
"Company"), issuable pursuant to the following plans: National Commerce
Financial Corporation 2003 Stock and Incentive Plan; Piedmont Bancorp, Inc.
Stock Option Plan; Amended and Restated Salem Trust Bank 1986 Incentive Stock
Option Plan; 1995 Directors Performance Plan of American Federal Bank, FSB;
National Commerce Financial Corporation Amended and Restated Long Term Incentive
Plan; American Federal Bank, FSB Amended and Restated 1988 Stock Option and
Incentive Plan; Stone Street Bancorp, Inc. Stock Option Plan; SouthBanc Shares,
Inc. 1998 Stock Option Plan; SouthBanc Shares, Inc. 2001 Stock Option Plan;
National Commerce Bancorporation 1994 Stock Plan as Amended and Restated
Effective November 1, 1996 and Further Amended by Amendment No. 1 Effective as
of July 1, 1998 and Amendment No. 2 Effective as of June 29, 2000; National
Commerce Financial Corporation Investment Plan; Perpetual Bank, A Federal
Savings Bank 1997 Stock Option Plan; SouthBanc Shares, Inc. Employees' Savings &
Profit Sharing Plan; and Perpetual Bank, A Federal Savings Bank Employee Stock
Ownership Plan (the "NCF Plans").
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participating employees and directors as specified by
Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act").
These documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II of this Registration Statement, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 2003, and its Quarterly Reports on Form 10-Q for the
quarters ended March 31, 2004 and June 30, 2004, pursuant to Section 13
of the Securities Exchange Act of 1934 (the "Exchange Act").
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(b) The Company's Current Reports on Form 8-K dated January 12, 2004
(information filed under Item 5 only), April 8, 2004 (information filed
under Item 5 only), May 10, 2004, May 20, 2004, August 3, 2004 and
August 26, 2004.
(c) The description of SunTrust's common stock, $1.00 par value per
share, contained in our Registration Statement on Form 8-A, under
Section 12(b) of the Exchange Act, filed March 5, 2003, including any
amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Company or the NCF Plans pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the effective
date of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of the
filing of such documents. Any statement contained in a document incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the securities offered hereby has been passed upon by
Raymond D. Fortin, Esq., General Counsel and Senior Vice President of the
Company, who beneficially owns 20,200 shares of Common Stock and has exercisable
options to purchase 16,400 shares of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Part 5 of Article 8 of the Georgia Business Corporation Code states:
14-2-850. 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,
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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" includes counsel fees.
(5) "Liability" means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to an
employee benefit plan), or reasonable expenses incurred with respect to a
proceeding.
(6) "Official capacity" means:
(A) When used with respect to a director, the office of
director in a corporation; and
(B) When used with respect to an officer, as contemplated in
Code Section 14-2-857, the office in a corporation held by the
officer.
Official capacity does not include service for any other
domestic or foreign corporation or any partnership, joint venture,
trust, employee benefit plan, or other entity.
(7) "Party" means an individual who was, is, or is threatened to be
made a named defendant or respondent in a proceeding.
(8) "Proceeding" means any threatened, pending, or completed action,
suit, or proceeding, whether civil, criminal, administrative, arbitrative,
or investigative and whether formal or informal.
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14-2-851. Authority to indemnify.
(a) Except as otherwise provided in this Code section, a corporation may
indemnify an individual who is a party to a proceeding because he or she is or
was a director against liability incurred in the proceeding if:
(1) Such individual conducted himself or herself in good faith; and
(2) Such individual reasonably believed:
(A) In the case of conduct in his or her official capacity,
that such conduct was in the best interests of the corporation;
(B) In all other cases, that such conduct was at least not
opposed to the best interests of the corporation; and
(C) In the case of any criminal proceeding, that the
individual had no reasonable cause to believe such conduct was
unlawful.
(b) A director's conduct with respect to an employee benefit plan for a
purpose he or she believed in good faith to be in the interests of the
participants in and beneficiaries of the plan is conduct that satisfies the
requirement of subparagraph (a)(2)(B) of this Code section.
(c) The termination of a proceeding by judgment, order, settlement, or
conviction, or upon a plea of nolo contendere or its equivalent is not, of
itself, determinative that the director did not meet the standard of conduct
described in this Code section.
(d) A corporation may not indemnify a director under this Code section:
(1) In connection with a proceeding by or in the right of the
corporation, except for reasonable expenses incurred in connection with
the proceeding if it is determined that the director has met the relevant
standard of conduct under this Code section; or
(2) In connection with any proceeding with respect to conduct for
which he or she was adjudged liable on the basis that personal benefit was
improperly received by him or her, whether or not involving action in his
or her official capacity.
14-2-852. Mandatory indemnification.
A corporation shall indemnify a director who was wholly successful, on the
merits or otherwise, in the defense of any proceeding to which he or she was a
party because he or she was a director of the corporation against reasonable
expenses incurred by the director in connection with the proceeding.
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14-2-853. Advance for or reimbursement of 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.
(a) A director who is a party to a proceeding because he or she is a
director may apply for indemnification or advance for expenses to the court
conducting the proceeding or to another court of competent jurisdiction. After
receipt of an application and after giving any notice it considers necessary,
the court shall:
(1) Order indemnification or advance for expenses if it determines
that the director is entitled to indemnification under this part; or
6
(2) Order indemnification or advance for expenses if it determines,
in view of all the relevant circumstances, that it is fair and reasonable
to indemnify the director or to advance expenses to the director, even if
the director has not met the relevant standard of conduct set forth in
subsections (a) and (b) of Code Section 14-2-851, failed to comply with
Code Section 14-2-853, or was adjudged liable in a proceeding referred to
in paragraph (1) or (2) of subsection (d) of Code Section 14-2-851, but if
the director was adjudged so liable, the indemnification shall be limited
to reasonable expenses incurred in connection with the proceeding.
(b) If the court determines that the director is entitled to
indemnification or advance for expenses under this part, it may also order the
corporation to pay the director's reasonable expenses to obtain court-ordered
indemnification or advance for expenses.
14-2-855. Determination and authorization of indemnification.
(a) A corporation may not indemnify a director under Code Section 14-2-851
unless authorized thereunder and a determination has been made for a specific
proceeding that indemnification of the director is permissible in the
circumstances because he or she has met the relevant standard of conduct set
forth in Code Section 14-2-851.
(b) The determination shall be made:
(1) If there are two or more disinterested directors, by the board
of directors by a majority vote of all the disinterested directors (a
majority of whom shall for such purpose constitute a quorum) or by a
majority of the members of a committee of two or more disinterested
directors appointed by such a vote;
(2) By special legal counsel:
(A) Selected in the manner prescribed in paragraph (1) of this
subsection; or
(B) If there are fewer than two disinterested directors,
selected by the board of directors (in which selection directors who
do not qualify as disinterested directors may participate); or
(3) By the shareholders, but shares owned by or voted under the
control of a director who at the time does not qualify as a disinterested
director may not be voted on the determination.
(c) Authorization of indemnification or an obligation to indemnify and
evaluation as to reasonableness of expenses shall be made in the same manner as
the determination that indemnification is permissible, except that if there are
fewer than two disinterested directors or if the determination is made by
special legal counsel, authorization of indemnification and evaluation as to
reasonableness of expenses shall be made by those entitled under subparagraph
(b) (2) (B) of this Code section to select special legal counsel.
7
14-2-856. Indemnification of directors.
(a) If authorized by the articles of incorporation or a bylaw, contract,
or resolution approved or ratified by the shareholders by a majority of the
votes entitled to be cast, a corporation may indemnify or obligate itself to
indemnify a director made a party to a proceeding including a proceeding brought
by or in the right of the corporation, without regard to the limitations in
other Code sections of this part, but shares owned or voted under the control of
a director who at the time does not qualify as a disinterested director with
respect to any existing or threatened proceeding that would be covered by the
authorization may not be voted on the authorization.
(b) The corporation shall not indemnify a director under this Code section
for any liability incurred in a proceeding in which the director is adjudged
liable to the corporation or is subjected to injunctive relief in favor of the
corporation:
(1) For any appropriation, in violation of the director's duties, of
any business opportunity of the corporation;
(2) For acts or omissions which involve intentional misconduct or a
knowing violation of law;
(3) For the types of liability set forth in Code Section 14-2-832;
or
(4) For any transaction from which he or she received an improper
personal benefit.
(c) Where approved or authorized in the manner described in subsection (a)
of this Code section, a corporation may advance or reimburse expenses incurred
in advance of final disposition of the proceeding only if:
(1) The director furnishes the corporation a written affirmation of
his or her good faith belief that his or her conduct does not constitute
behavior of the kind described in subsection (b) of this Code section; and
(2) The director furnishes the corporation a written undertaking,
executed personally or on his or her behalf, to repay any advances if it
is ultimately determined that the director is not entitled to
indemnification under this Code section.
14-2-857. Indemnification of officers, employees, and agents.
(a) A corporation may indemnify and advance expenses under this part to an
officer of the corporation who is a party to a proceeding because he or she is
an officer of the corporation:
(1) To the same extent as a director; and
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(2) If he or she is not a director, to such further extent as may be
provided by the articles of incorporation, the bylaws, a resolution of the
board of directors, or contract except for liability arising out of
conduct that constitutes:
(A) Appropriation, in violation of his or her duties, of any
business opportunity of the corporation;
(B) Acts or omissions which involve intentional misconduct or
a knowing violation of law;
(C) The types of liability set forth in Code Section 14-2-832;
or
(D) Receipt of an improper personal benefit.
(b) The provisions of paragraph (2) of subsection (a) of this Code section
shall apply to an officer who is also a director if the sole basis on which he
or she is made a party to the proceeding is an act or omission solely as an
officer.
(c) An officer of a corporation who is not a director is entitled to
mandatory indemnification under Code Section 14-2-852, and may apply to a court
under Code Section 14-2-854 for indemnification or advances for expenses, in
each case to the same extent to which a director may be entitled to
indemnification or advances for expenses under those provisions.
(d) A corporation may also indemnify and advance expenses to an employee
or agent who is not a director to the extent, consistent with public policy,
that may be provided by its articles of incorporation, bylaws, general or
specific action of its board of directors, or contract.
14-2-858. Insurance.
A corporation may purchase and maintain insurance on behalf of an
individual who is a director, officer, employee, or agent of the corporation or
who, while a director, officer, employee, or agent of the corporation, serves at
the corporation's request as a director, officer, partner, trustee, employee, or
agent of another domestic or foreign corporation, partnership, joint venture,
trust, employee benefit plan, or other entity against liability asserted against
or incurred by him or her in that capacity or arising from his or her status as
a director, officer, employee, or agent, whether or not the corporation would
have power to indemnify or advance expenses to him or her against the same
liability under this part.
14-2-859. Obligation for indemnification or advance for expenses in advance of
act or omission.
(a) A corporation may, by a provision in its articles of incorporation or
bylaws or in a resolution adopted or a contract approved by its board of
directors or shareholders, obligate itself in advance of the act or omission
giving rise to a proceeding to provide indemnification or advance funds to pay
for or reimburse expenses consistent with this part. Any such obligatory
provision shall be deemed to satisfy the requirements for authorization referred
to in subsection (c) of Code Section 14-2-853 or subsection (c) of Code Section
14-2-855. Any such provision
9
that obligates the corporation to provide indemnification to the fullest extent
permitted by law shall be deemed to obligate the corporation to advance funds to
pay for or reimburse expenses in accordance with Code Section 14-2-853 to the
fullest extent permitted by law, unless the provision specifically provides
otherwise.
(b) Any provision pursuant to subsection (a) of this Code section shall
not obligate the corporation to indemnify or advance expenses to a director of a
predecessor of the corporation, pertaining to conduct with respect to the
predecessor, unless otherwise specifically provided. Any provision for
indemnification or advance for expenses in the articles of incorporation,
bylaws, or a resolution of the board of directors or shareholders, partners, or,
in the case of limited liability companies, members or managers of a predecessor
of the corporation or other entity in a merger or in a contract to which the
predecessor is a party, existing at the time the merger takes effect, shall be
governed by paragraph (3) of subsection (a) of Code Section 14-2-1106.
(c) A corporation may, by a provision in its articles of incorporation,
limit any of the rights to indemnification or advance for expenses created by or
pursuant to this part.
(d) This part does not limit a corporation's power to pay or reimburse
expenses incurred by a director or an officer in connection with his or her
appearance as a witness in a proceeding at a time when he or she is not a party.
(e) Except as expressly provided in Code Section 14-2-857, this part does
not limit a corporation's power to indemnify, advance expenses to, or provide or
maintain insurance on behalf of an employee or agent.
Articles of Incorporation Authority
Article 14 of the Company's Amended and Restated Articles of Incorporation
provides:
In addition to any powers provided by law, in the Bylaws, or otherwise,
the Corporation shall have the power to indemnify any person who becomes a party
or who is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (including any action by or in the right of the Corporation), by
reason of the fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise.
Bylaw Authority
The Company is referred to in its Bylaws as the "Corporation". Article VII
of the Company's Amended and Restated 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.
10
(B) "Director" means an individual who is or was a director of the
Corporation or an individual who, while a director of the Corporation, is or was
serving at the Corporation's request as a director, officer, partner, trustee,
employee, or agent of another foreign or domestic corporation, partnership,
joint venture, trust, employee benefit plan, or other entity. A "director" is
considered to be serving an employee benefit plan at the Corporation's request
if his duties to the Corporation also impose duties on, or otherwise involve
services by, him to the plan or to participants in or beneficiaries of the plan.
"Director" includes, unless the context requires otherwise, the estate or
personal representative of a director.
(C) "Disinterested director" means a director who at the time of a vote
referred to in Section 3(C) or a vote or selection referred to in Section 4(B),
4(C) or 7(A) is not: (i) a party to the proceeding; or (ii) an individual who is
a party to a proceeding having a familial, financial, professional, or
employment relationship with the director whose indemnification or advance for
expenses is the subject of the decision being made with respect to the
proceeding, which relationship would, in the circumstances, reasonably be
expected to exert an influence on the director's judgment when voting on the
decision being made.
(D) "Employee" means an individual who is or was an employee of the
Corporation or an individual who, while an employee of the Corporation, is or
was serving at the Corporation's request as a director, officer, partner,
trustee, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan, or other enterprise.
An "Employee" is considered to be serving an employee benefit plan at the
Corporation's request if his duties to the Corporation also impose duties on, or
otherwise involve services by, him to the plan or to participants in or
beneficiaries of the plan. "Employee" includes, unless the context requires
otherwise, the estate or personal representative of an employee.
(E) "Expenses" includes counsel fees.
(F) "Liability" means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to an employee
benefit plan), or reasonable expenses incurred with respect to a proceeding.
(G) "Officer" means an individual who is or was an officer of the
Corporation which for purposes of this Article VII shall include an assistant
officer, or an individual who, while an Officer of the Corporation, is or was
serving at the Corporation's request as a director, officer, partner, trustee,
employee, or agent of another foreign or domestic corporation, partnership,
joint venture, trust, employee benefit plan, or other entity. An "Officer" is
considered to be serving an employee benefit plan at the Corporation's request
if his duties to the Corporation also impose duties on, or otherwise involve
services by, him to the plan or to participants in or beneficiaries of the plan.
"Officer" includes, unless the context requires otherwise, the estate or
personal representative of an Officer.
(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
11
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 subsection (D) below and, if required by Section
4 below, upon a determination pursuant to Section 4 in the specific case that
such indemnification is permissible in the circumstances under this subsection
because the individual has met the standard of conduct set forth in this
subsection (A), the Corporation shall indemnify an individual who is made a
party to a proceeding because he is or was a director or Officer against
liability incurred by him in the proceeding if he conducted himself in good
faith and, in the case of conduct in his official capacity, he reasonably
believed such conduct was in the best interest of the Corporation, or in all
other cases, he reasonably believed such conduct was at least not opposed to the
best interests of the Corporation and, in the case of any criminal proceeding,
he had no reasonable cause to believe his conduct was unlawful.
(B) A person's conduct with respect to an employee benefit plan for a
purpose he believes in good faith to be in the interests of the participants in
and beneficiaries of the plan is conduct that satisfies the requirement of
subsection 2(A) above.
(C) The termination of a proceeding by judgment, order, settlement, or
conviction, or upon a plea of nolo contendere or its equivalent is not, of
itself, determinative that the proposed indemnitee did not meet the standard of
conduct set forth in subsection 2(A) above.
(D) The Corporation shall not indemnify a person under this Article in
connection with (i) a proceeding by or in the right of the Corporation, except
for reasonable expenses incurred in connection with the proceeding if it is
determined that such person has met the relevant standard of conduct under this
section, or (ii) with respect to conduct for which such person was adjudged
liable on the basis that personal benefit was improperly received by him,
whether or not involving action in his official capacity.
SECTION 3.ADVANCES FOR EXPENSES.
(A) The Corporation may advance funds to pay for or reimburse the
reasonable expenses incurred by a director or Officer who is a party to a
proceeding because he is a director or Officer in advance of final disposition
of the proceeding if: (i) such person furnishes the 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
12
liability has been eliminated under the Corporation's Articles of Incorporation;
and (ii) such person furnishes the Corporation a written undertaking meeting the
qualifications set forth below in subsection 3(B), executed personally or on his
behalf, to repay any funds advanced if it is ultimately determined that he is
not entitled to any indemnification under this Article or otherwise.
(B) The undertaking required by subsection 3(A)(ii) above must be an
unlimited general obligation of the director or Officer but need not be secured
and shall be accepted without reference to financial ability to make repayment.
(C) Authorizations under this Section shall be made: (i) By the Board of
Directors: (a) when there are two or more disinterested directors, by a majority
vote of all disinterested directors (a majority of whom shall for such purpose
constitute a quorum) or by a majority of the members of a committee of two or
more disinterested directors appointed by such a vote; or (b) when there are
fewer than two disinterested directors, by a majority of the directors present,
in which authorization directors who do not qualify as disinterested directors
may participate; or (ii) by the shareholders, but shares owned or voted under
the control of a director who at the time does not qualify as a disinterested
director with respect to the proceeding may not be voted on the authorization.
SECTION 4. AUTHORIZATION OF AND DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION.
(A) The Corporation shall not indemnify a director or Officer under
Section 2 above unless authorized thereunder and a determination has been made
for a specific proceeding that indemnification of such person is permissible in
the circumstances because he has met the relevant standard of conduct set forth
in subsection 2(A) above; provided, however, that regardless of the result or
absence of any such determination, to the extent that a director or Officer has
been wholly successful, on the merits or otherwise, in the defense of any
proceeding to which he was a party because he is or was a director or Officer,
the Corporation shall indemnify such person against reasonable expenses incurred
by him in connection therewith.
(B) The determination referred to in subsection 4(A) above shall be made:
(i) If there are two or more disinterested directors, by the board
of directors by a majority vote of all the disinterested directors (a
majority of whom shall for such purpose constitute a quorum) or by a
majority of the members of a committee of two or more disinterested
directors appointed by such a vote;
(ii) by special legal counsel:
(1) selected by the Board of Directors or its committee in the
manner prescribed in subdivision (i); or
13
(2) If there are fewer than two disinterested directors,
selected by the Board of Directors (in which selection directors who
do not qualify as disinterested directors may participate); or
(iii) by the shareholders; but shares owned by or voted under the
control of a director who at the time does not qualify as a disinterested
director may not be voted on the determination.
(C) Authorization of indemnification or an obligation to indemnify and
evaluation as to reasonableness of expenses of a director or Officer in the
specific case shall be made in the same manner as the determination that
indemnification is permissible, as described in subsection 4(B) above, except
that if there are fewer than two disinterested directors or if the determination
is made by special legal counsel, authorization of indemnification and
evaluation as to reasonableness of expenses shall be made by those entitled
under subsection 4(B)(ii)(2) above to select counsel.
(D) The Board of Directors, a committee thereof, or special legal counsel
acting pursuant to subsection (B) above or Section 5 below, shall act
expeditiously upon an application for indemnification or advances, and cooperate
in the procedural steps required to obtain a judicial determination under
Section 5 below.
(E) The Corporation may, by a provision in its Articles of Incorporation
or Bylaws or in a resolution adopted or a contract approved by its Board of
Directors or shareholders, obligate itself in advance of the act or omission
giving rise to a proceeding to provide indemnification or advance funds to pay
for or reimburse expenses consistent with this part. Any such obligatory
provision shall be deemed to satisfy the requirements for authorization referred
to in Section 3(C) or Section 4(C).
SECTION 5.COURT-ORDERED INDEMNIFICATION AND ADVANCES FOR EXPENSES. A
director or Officer who is a party to a proceeding because he is a director or
Officer may apply for indemnification or advances for expenses to the court
conducting the proceeding or to another court of competent jurisdiction. After
receipt of an application and after giving any notice it considers necessary,
the court shall order indemnification or advances for expenses if it determines
that:
(i) The director is entitled to indemnification under this part; or
(ii) In view of all the relevant circumstances, it is fair and
reasonable to indemnify the director or Officer or to advance expenses to
the director or Officer, even if the director or Officer has not met the
relevant standard of conduct set forth in subsection 2(A) above, failed to
comply with Section 3, or was adjudged liable in a proceeding referred to
in subsections (i) or (ii) of Section 2(D), but if the director or Officer
was adjudged so liable, the indemnification shall be limited to reasonable
expenses incurred in connection with the proceeding, unless the Articles
of Incorporation of the Corporation or
14
a Bylaw, contract or resolution approved or ratified by shareholders
pursuant to Section 7 below provides otherwise.
If the court determines that the director or Officer is entitled to
indemnification or advance for expenses, it may also order the Corporation to
pay the director's or Officer's reasonable expenses to obtain court-ordered
indemnification or advance for expenses.
SECTION 6.INDEMNIFICATION OF OFFICERS AND EMPLOYEES.
(A) Unless the Corporation's Articles of Incorporation provide otherwise,
the Corporation shall indemnify and advance expenses under this Article to an
employee of the Corporation who is not a director or Officer to the same extent,
consistent with public policy, as to a director or Officer.
(B) The Corporation may indemnify and advance expenses under this Article
to an Officer of the Corporation who is a party to a proceeding because he is an
Officer of the Corporation: (i) to the same extent as a director; and (ii) if he
is not a director, to such further extent as may be provided by the Articles of
Incorporation, the Bylaws, a resolution of the Board of Directors, or contract
except for liability arising out of conduct that is enumerated in subsections
(A)(i) through (A)(iv) of Section 7.
The provisions of this Section shall also apply to an Officer who is also
a director if the sole basis on which he is made a party to the proceeding is an
act or omission solely as an Officer.
SECTION 7.SHAREHOLDER APPROVED INDEMNIFICATION.
(A) If authorized by the Articles of Incorporation or a Bylaw, contract or
resolution approved or ratified by shareholders of the Corporation by a majority
of the votes entitled to be cast, the Corporation may indemnify or obligate
itself to indemnify a person made a party to a proceeding, including a
proceeding brought by or in the right of the Corporation, without regard to the
limitations in other sections of this Article, but shares owned or voted under
the control of a director who at the time does not qualify as a disinterested
director with respect to any existing or threatened proceeding that would be
covered by the authorization may not be voted on the authorization. The
Corporation shall not indemnify a person under this Section 7 for any liability
incurred in a proceeding in which the person is adjudged liable to the
Corporation or is subjected to injunctive relief in favor of the Corporation:
(i) for any appropriation, in violation of his duties, of any
business opportunity of the Corporation;
(ii) for acts or omissions which involve intentional misconduct or a
knowing violation of law;
15
(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.
16
SECTION 13. AMENDMENTS TO GEORGIA BUSINESS CORPORATION CODE. In the event
that, following the date of these Bylaws, the Georgia Business Corporation Code
is amended to expand the indemnification protections that a Georgia corporation
is permitted to provide to its directors, Officers and/or Employees, as
applicable, the indemnification protections set forth in this Article VII shall
be automatically amended, without any further action by the Board of Directors,
the shareholders of the Corporation or the Corporation, to provide the same
indemnification protections to the fullest extent provided by such amendments to
the Georgia Business Corporation Code.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed as part of this Registration Statement:
EXHIBIT
NUMBER DESCRIPTION
------ -----------
4.1 Articles 5, 6, 7, 8, 11 and 13 of the Amended and Restated Articles
of Incorporation of the Company, effective as of November 14, 1989,
incorporated by reference to Exhibit 3.1 to the Company's Annual
Report on Form 10-K for the year ended December 31, 1998.
4.2 Articles I, II, IV, V, VII, VIII, X and XI of the Amended and
Restated Bylaws of the Company, effective as of April 16, 2002,
incorporated by reference to Exhibit 3.3 to the Company's Quarterly
Report on Form 10-Q for the quarter ended March 31, 2002.
4.3 National Commerce Financial Corporation 2003 Stock and Incentive
Plan.
4.4 Piedmont Bancorp, Inc. Stock Option Plan.
4.5 Amended and Restated Salem Trust Bank 1986 Incentive Stock
Option Plan.
4.6 1995 Directors Performance Plan of American Federal Bank, FSB.
4.7 National Commerce Financial Corporation Amended and Restated
Long Term Incentive Plan.
17
4.8 American Federal Bank, FSB Amended and Restated 1988 Stock Option
and Incentive Plan.
4.9 Stone Street Bancorp, Inc. Stock Option Plan.
4.10 SouthBanc Shares, Inc. 1998 Stock Option Plan.
4.11 SouthBanc Shares, Inc. 2001 Stock Option Plan.
4.12 National Commerce Bancorporation 1994 Stock Plan as Amended and
Restated Effective November 1, 1996 and Further Amended by Amendment
No. 1 Effective as of July 1, 1998 and Amendment No. 2 Effective as
of June 29, 2000.
4.13 National Commerce Financial Corporation Investment Plan.
4.14 Perpetual Bank, A Federal Savings Bank 1997 Stock Option Plan.
4.15 SouthBanc Shares, Inc. Employees' Savings & Profit Sharing Plan.
4.16 Perpetual Bank, A Federal Savings Bank Employee Stock Ownership Plan.
5.1 Opinion of Raymond D. Fortin, Esq., as to the legality of the Common
Stock being registered.
23.1 Consent of Independent Registered Public Accounting Firm.
23.2 Consent of Raymond D. Fortin, Esq. (contained in his opinion filed
as Exhibit 5.1).
24.1 Power of Attorney (included on Signature Page).
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
18
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change in such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against pubic policy as expressed in the Securities Act, and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
19
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of
1933, SunTrust Banks, Inc. certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Atlanta, State of Georgia, on the 10th
day of August, 2004.
SUNTRUST BANKS, INC.
By: /s/ L. Phillip Humann
------------------------------------
L. Phillip Humann
Chairman of the Board, President
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below, constitutes and appoints Mark A. Chancy and Raymond D. Fortin, and each
of them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, to do any and all acts and things and execute,
in the name of the undersigned, any and all instruments which said
attorneys-in-fact and agents may deem necessary or advisable in order to enable
SunTrust Banks, Inc. to comply with the Securities Act of 1933 and any
requirements of the Securities and Exchange Commission in respect thereof, in
connection with the filing with the Securities and Exchange Commission of the
registration statement on Form S-8 under the Securities Act of 1933, including
specifically but without limitation, power and authority to sign the name of the
undersigned to such registration statement, and to file the same with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and to perform each and
every act and thing requisite or necessary to be done in and about the premises,
as fully and to all intents and purposes as the undersigned might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, and any of them, or their substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated as of the 10th day of August, 2004.
/s/ L. Phillip Humann
---------------------------------
L. Phillip Humann
Chairman of the Board,President, Chief
Executive Officer and Director
(Principal Executive Officer)
/s/ John W. Spiegel
---------------------------------
John W. Spiegel Vice Chairman and Chief Financial Officer
(Principal Financial Officer)
20
/s/ Jorge Arrieta
---------------------------------
Jorge Arrieta Senior Vice President and Controller
(Principal Accounting Officer)
/s/ Robert M. Beall, II
---------------------------------
Robert M. Beall, II Director
/s/ J. Hyatt Brown
---------------------------------
J. Hyatt Brown Director
_________________________________
Alston D. Correll Director
/s/ Jeffrey C. Crowe
---------------------------------
Jeffrey C. Crowe Director
_________________________________
Douglas N. Daft Director
/s/ Patricia C. Frist
---------------------------------
Patricia C. Frist Director
/s/ David H. Hughes
---------------------------------
David H. Hughes Director
/s/ M. Douglas Ivester
---------------------------------
M. Douglas Ivester Director
/s/ J. Hicks Lanier
---------------------------------
J. Hicks Lanier Director
/s/ G. Gilmer Minor, III
---------------------------------
G. Gilmer Minor, III Director
21
/s/ Larry L. Prince
---------------------------------
Larry L. Prince Director
/s/ Frank S. Royal, M.D.
---------------------------------
Frank S. Royal, M.D. Director
/s/ Karen Hastie Williams
---------------------------------
Karen Hastie Williams Director
22
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
------ -----------
4.1 Articles 5, 6, 7, 8, 11 and 13 of the Amended and Restated Articles
of Incorporation of the Company, effective as of November 14, 1989,
incorporated by reference to Exhibit 3.1 to the Company's Annual
Report on Form 10-K for the year ended December 31, 1998.
4.2 Articles I, II, IV, V, VII, VIII, X and XI of the Amended and
Restated Bylaws of the Company, effective as of April 16, 2002,
incorporated by reference to Exhibit 3.3 to the Company's Quarterly
Report on Form 10-Q for the quarter ended March 31, 2002.
4.3 National Commerce Financial Corporation 2003 Stock and Incentive Plan.
4.4 Piedmont Bancorp, Inc. Stock Option Plan.
4.5 Amended and Restated Salem Trust Bank 1986 Incentive Stock Option Plan.
4.6 1995 Directors Performance Plan of American Federal Bank, FSB.
4.7 National Commerce Financial Corporation Amended and Restated Long Term
Incentive Plan.
4.8 American Federal Bank, FSB Amended and Restated 1988 Stock Option
and Incentive Plan.
4.9 Stone Street Bancorp, Inc. Stock Option Plan.
4.10 SouthBanc Shares, Inc. 1998 Stock Option Plan.
4.11 SouthBanc Shares, Inc. 2001 Stock Option Plan.
4.12 National Commerce Bancorporation 1994 Stock Plan as Amended and
Restated Effective November 1, 1996 and Further Amended by Amendment
No. 1 Effective as of July 1, 1998 and Amendment No. 2 Effective as
of June 29, 2000.
4.13 National Commerce Financial Corporation Investment Plan.
4.14 Perpetual Bank, A Federal Savings Bank 1997 Stock Option Plan.
4.15 SouthBanc Shares, Inc. Employees' Savings & Profit Sharing Plan.
4.16 Perpetual Bank, A Federal Savings Bank Employee Stock Ownership Plan.
5.1 Opinion of Raymond D. Fortin, Esq., as to the legality of the Common
Stock being registered.
23.1 Consent of Independent Registered Public Accounting Firm.
23.2 Consent of Raymond D. Fortin, Esq. (contained in his opinion
filed as Exhibit 5.1).
24.1 Power of Attorney (included on Signature Page).