AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 30, 2003
REGISTRATION NO. 333-____________
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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 ISSUER AS SPECIFIED IN ITS CHARTER)
GEORGIA 58-1575035
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
INCORPORATION OR ORGANIZATION)
303 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30308
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
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LIGHTHOUSE MORTGAGE CORPORATION
1994 STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
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RAYMOND D. FORTIN
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
SUNTRUST BANKS, INC.
303 PEACHTREE STREET
ATLANTA, GEORGIA 30308
(404) 588-7165
(NAME, ADDRESS AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
C. WILLIAM BAXLEY
KING & SPALDING LLP
191 PEACHTREE STREET
ATLANTA, GEORGIA 30303
(404) 572-4600
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Price Aggregate Amount of
to be Registered to be Registered(1) Per Share(2) Offering Price Registration Fee
---------------------------- -------------------- ----------------- ----------------- -------------------
Common Stock, $1.00 par 200,000 shares $59.665 $11,933,000 $966
value per share
(1) Pursuant to Rule 416(a), this Registration Statement also covers such
additional securities as may become issuable under the Lighthouse Mortgage
Corporation 1994 Stock Option Plan to prevent dilution resulting from stock
splits, stock dividends or similar transactions.
(2) Estimated pursuant to Rule 457(h) of the Securities Act of 1933, as
amended, solely for the purpose of calculating the registration fee on the
basis of the average of the high and low sale prices per share of the
SunTrust Banks, Inc.'s common stock as reported on The New York Stock
Exchange on June 25, 2003.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
On May 30, 2003, SunTrust Banks, Inc., a Georgia corporation ("SunTrust"),
completed its acquisition of Lighthouse Financial Services, Inc., a Delaware
corporation ("Lighthouse"), contemplated by the Agreement and Plan of Merger and
Reorganization dated as of January 21, 2003, by and among Lighthouse, SunTrust
and SunTrust Bank Holding Company, a wholly owned subsidiary of SunTrust
("Holding"). The acquisition was effective as of June 2, 2003. Upon completion
of the acquisition, Lighthouse merged into Holding, and Holding remains a wholly
owned subsidiary of SunTrust.
Pursuant to the merger agreement, each option granted under the Lighthouse
Mortgage Corporation 1994 Stock Option Plan to purchase shares of Lighthouse
common stock, $1.00 par value per share, that was outstanding and unexercised
immediately prior to the effective time of the acquisition was automatically
converted into an option to purchase shares of SunTrust common stock, par value
$1.00 per share. The number of shares of SunTrust common stock to be issued
under each Lighthouse stock option will be determined by multiplying the number
of shares of Lighthouse common stock subject to a Lighthouse stock option
immediately prior to the effective time of the acquisition by 0.72672655, which
is the ratio of $42.7962 divided by the average closing price per share of
SunTrust common stock for the ten trading days ending on the third business day
prior to the effective time of the acquisition, and rounding down to the nearest
share. The exercise price per share of SunTrust common stock issuable under each
Lighthouse stock option will be determined by dividing the per share exercise
price under each Lighthouse stock option by 0.72672655, which is the ratio of
$42.7962 divided by the average closing price per share of SunTrust common stock
for the ten trading days ending on the third business day prior to the effective
time of the acquisition, and rounding up to the nearest cent. Except as
described above, each Lighthouse stock option will remain subject to the same
terms and conditions as in effect on the date of the merger agreement.
The documents containing the information specified in Part I will be sent
or given to participants in the Lighthouse Mortgage Corporation 1994 Stock
Option Plan, as specified by Rule 428(b)(1) of the Securities Act of 1933, as
amended (the "Securities Act"). In accordance with the instructions of Part I of
Form S-8, such documents will not be filed with the SEC either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424 of the Securities Act. These documents and the documents incorporated
by reference pursuant to Item 3 of Part II of this Registration Statement, taken
together, constitute a prospectus as required by 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 SunTrust with the SEC are incorporated
herein by reference:
(a) SunTrust's Annual Report on Form 10-K for the year ended December
31, 2002;
(b) SunTrust's Quarterly Report on Form 10-Q for the three months
ended March 31, 2002;
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(c) SunTrust's Current Reports on Form 8-K filed with the SEC on
April 10, 2003 and June 2, 2003; and
(d) The description of SunTrust's common stock contained in
SunTrust's Registration Statement on Form 8-A filed with the SEC
on March 5, 2003.
In addition, all documents subsequently filed by SunTrust pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the time of filing of such documents. Any statement contained in the
documents incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is incorporated or deemed to be incorporated by
reference 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. INTEREST OF NAMED EXPERTS AND COUNSEL.
The legality of the shares of SunTrust common stock covered hereby has
been passed upon for SunTrust by Raymond D. Fortin, Senior Vice President and
General Counsel. Mr. Fortin owns shares of SunTrust common stock, both directly
and as a participant in various SunTrust employee benefit plans. However, Mr.
Fortin is not eligible to participate in the Lighthouse Mortgage Corporation
1994 Stock Option Plan.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Georgia Business Corporation Code Authority.
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
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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.
(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:
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(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.
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.
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(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.
14-2-855. Determination and Authorization of Indemnification.
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(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;
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(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
(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.
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(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.
(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.
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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
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.
(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.
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(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 subsection 2(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
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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.
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:
11
(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 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.
12
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;
(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
13
(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.
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 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 indemnification protections to the fullest extent provided by such
amendments to the Georgia Business Corporation Code.
14
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS
The following exhibits are filed as part of this Registration Statement:
3.1 Amended and Restated Articles of Incorporation of SunTrust
Banks, Inc. ("Registrant") effective as of November 14, 1989,
and amendment effective as of April 24, 1998 (incorporated by
reference to Exhibit 3.1 to Registrant's 1998 Annual Report on
Form 10-K).
3.2 Amendment to Restated Articles of Incorporation of Registrant,
effective April 18, 2000 (incorporated by reference to Exhibit
3.1 of Registrant's Form 10-Q as of March 31, 2000).
3.3 Bylaws of Registrant, amended effective as of April 16, 2002
(incorporated by reference to Exhibit 3.3 to Registrant's Form
10-Q as of March 31, 2002).
4.1 Lighthouse Mortgage Corporation 1994 Stock Option Plan.
5.1 Opinion of Raymond D. Fortin.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Raymond D. Fortin (included in Exhibit 5.1).
24.1 Power of Attorney (included in signature pages to this
Registration Statement).
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 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
value 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 change in volume and
price
15
represent no more than a 20 percent change
in the maximum aggregate offering price set
forth in the "Calculation of Registration
Fee" table in the effective Registration
Statement;
(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;
provided, however, that paragraphs (a)(l)(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 SunTrust 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 the
purposes of determining any liability under the Securities Act
of 1933, each filing of SunTrust'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) 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.
16
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-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 June 30, 2003.
SUNTRUST BANKS, INC.
By: /s/ L. Phillip Humann
---------------------------------------------
Name: L. Phillip Humann
Title: Chairman of the Board, President
and Chief Executive Officer
We, the undersigned directors and officers of SunTrust Banks, Inc., do
hereby constitute and appoint Raymond D. Fortin and John W. Spiegel, and each or
either of them, our true and lawful attorneys-in-fact and agents, to do any and
all acts and things in our names and on our behalf in our capacities as
directors and officers and to execute any and all instruments necessary or
advisable to enable said corporation to comply with the Securities Act of 1933
and any rules, regulations and requirements of the Securities and Exchange
Commission, in connection with this registration statement, or any registration
statement for this offering that is to be effective upon filing pursuant to Rule
462(b) under the Securities Act of 1933, including specifically, but without
limitation, power and authority to sign for us or any of us in our names in the
capacities indicated below, any and all amendments (including post-effective
amendments) hereto; and we do hereby ratify and confirm all that said attorneys
and agents, or any of them, shall do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement or amendment thereto has been signed below by the
following persons in the capacities indicated as of June 30, 2003.
SIGNATURES TITLE
/s/ John W. Spiegel Vice Chairman and
----------------------------------- Chief Financial Officer
John W. Spiegel
/s/ Jorge Arrieta Senior Vice President and
----------------------------------- Chief Accounting Officer
Jorge Arrieta
/s/ J. Hyatt Brown Director
-----------------------------------
J. Hyatt Brown
Director
-----------------------------------
Alston D. Correll
S-1
/s/ Douglas N. Daft Director
-----------------------------------
Douglas N. Daft
Director
-----------------------------------
A. W. Dahlberg
/s/ Patricia C. Frist Director
-----------------------------------
Patricia C. Frist
/s/ David H. Hughes Director
-----------------------------------
David H. Hughes
/s/ L. Phillip Humann Director
-----------------------------------
L. Phillip Humann
/s/ M. Douglas Ivester Director
-----------------------------------
M. Douglas Ivester
/s/ Summerfield K. Johnston, Jr. Director
-----------------------------------
Summerfield K. Johnston, Jr.
/s/ G. Gilmer Minor, III Director
-----------------------------------
G. Gilmer Minor, III
/s/ Larry L. Prince Director
-----------------------------------
Larry L. Prince
/s/ R. Randall Rollins Director
-----------------------------------
R. Randall Rollins
/s/ Frank S. Royal, M.D. Director
-----------------------------------
Frank S. Royal, M.D.
/s/ James B. Williams Director
-----------------------------------
James B. Williams
/s/ Karen Hastie Williams Director
-----------------------------------
Karen Hastie Williams
S-2
EXHIBIT INDEX
Exhibit
-------
3.1 Amended and Restated Articles of Incorporation of SunTrust
Banks, Inc. ("Registrant") effective as of November 14, 1989,
and amendment effective as of April 24, 1998, incorporated by
reference to Exhibit 3.1 to Registrant's 1998 Annual Report on
Form 10-K.
3.2 Amendment to Restated Articles of Incorporation of Registrant,
effective April 18, 2000, incorporated by reference to Exhibit
3.1 of Registrant's Form 10-Q as of March 31, 2000.
3.3 Bylaws of Registrant, amended effective as of April 16, 2002,
incorporated by reference to Exhibit 3.3 to Registrant's Form
10-Q as of March 31, 2002.
4.1 Lighthouse Mortgage Corporation 1994 Stock Option Plan
5.1 Opinion of Raymond D. Fortin.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Raymond D. Fortin (included in Exhibit 5.1)
24.1 Power of Attorney (included in signature pages to this
Registration Statement).