AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 16, 2002.
REGISTRATION STATEMENT NO. 33-________
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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 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)
SUNTRUST BANKS, INC. 401(K) PLAN
-------------------------------------------
(Full Title of the 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
==================================================================================================================================
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO TO BE OFFERING PRICE AGGREGATE AMOUNT OF
BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE (1)
----------------------------------------------------------------------------------------------------------------------------------
Common Stock, $1.00
par value per share............ 8,000,000 $66.83 $534,640,000 $49,187
==================================================================================================================================
(1) Determined pursuant to Rule 457(c) and (h)(l) based on $66.83, the
average of the high and low prices of the registrant's common stock on
April 10, 2002, 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 8,000,000 additional shares of
Common Stock, par value $1.00 per share (the "Common Stock") of SunTrust Banks,
Inc. (the "Company"), issuable pursuant to the SunTrust Banks, Inc. 401(k) Plan
(the "Savings Plan"). The Company initially registered the issuance of 2,500,000
shares of Common Stock in connection with the Savings Plan on its Registration
Statement on Form S-8 (Registration No. 33-50796) as filed with the Securities
and Exchange Commission (the "Commission") on August 12, 1992. Subsequently, the
Company registered the issuance of 8,000,000 additional shares of Common Stock
in connection with the Savings Plan on its Registration Statement on Form S-8
(Registration No. 333-91519) as filed with the Commission on November 23, 1999.
The contents of Registration Statement Nos. 33-50796 and 333-91519 are
incorporated by reference herein.
Pursuant to Rule 429, the Prospectus related to shares of Common Stock
registered pursuant to this Registration Statement for the Savings Plan also
relates to shares of Common Stock registered pursuant to Registration Statements
No. 33-50796 and 333-91519.
As permitted by the rules of the Securities and Exchange Commission
(the "Commission"), this registration statement omits the information specified
in Part I (Items 1 and 2) of Form S-8. The documents containing the information
specified in Part I will be delivered to the participants in the Plan as
required by Rule 428(b) under the Securities Act. Such documents are not being
filed with the Commission as part of this registration statement or as
prospectuses or prospectus supplements pursuant to Rule 424.
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 and Form 10-K/A for
the year ended December 31, 2001, pursuant to Section 13 of the
Securities Exchange Act of 1934 (the "Exchange Act").
(b) The Company's Annual Report for the year ended 2000 for the
Company's 401(k) Plan on Form 11-K, filed with the Securities and
Exchange Commission on June 29, 2001.
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(c) The Company's Current Reports on Form 8-K dated February 19,
2002 and on Form 8-K/A dated March 20, 2002.
(d) The description of the Company's Common Stock, par value $1.00
per share, contained on pages 2 to 9 in Amendment No. 1, dated August
4, 1987, to its Registration of Common Stock on Form 8-B, dated June
10, 1985, filed under Section 12(b) of the Exchange Act, including any
amendments or reports filed for the purpose of updating such
description.
All documents subsequently filed by the Company or the Savings Plan
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 7,800 shares of Common Stock which are
unrestricted and 20,800 shares of Common Stock which are restricted and has
options to purchase 28,400 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. 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
3
venture, trust, employee benefit plan, or other entity. A director or
officer is considered to be serving an employee benefit plan at the
corporation's request if his or her duties to the corporation also
impose duties on, or otherwise involve services by, the director or
officer to the plan or to participants in or beneficiaries of the plan.
Director or officer includes, unless the context otherwise requires,
the estate or personal representative of a director or officer.
(3) "Disinterested director" means a director who at the
time of a vote referred to in subsection (c) of Code Section 14-2-853
or a vote or selection referred to in subsection (b) or (c) of Code
Section 14-2-855 or subsection (a) of Code Section 14-2-856 is not:
(A) A party to the proceeding; or
(B) An individual who is a party to a proceeding
having a familial, financial, professional, or employment
relationship with the director whose indemnification or
advance for expenses is the subject of the decision being made
with respect to the proceeding, which relationship would, in
the circumstances, reasonably be expected to exert an
influence on the director's judgment when voting on the
decision being made.
(4) "Expenses" include counsel fees.
(5) "Liability" means the obligation to pay a judgment,
settlement, penalty, fine (including an excise tax assessed with
respect to an employee benefit plan), or reasonable expenses incurred
with respect to a proceeding.
(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 Expenses.
(a) A corporation may, before final disposition of a proceeding,
advance funds to pay for or reimburse the reasonable expenses incurred by a
director who is a party to a proceeding because he or she is a director if he or
she delivers to the corporation:
(1) A written affirmation of his or her good faith belief
that he or she has met the relevant standard of conduct described in
Code Section 14-2-851 or that the proceeding involves conduct for which
liability has been eliminated under a provision of the articles of
incorporation as authorized by paragraph (4) of subsection (b) of Code
Section 14-2-202; and
(2) His or her written undertaking to repay any funds
advanced if it is ultimately determined that the director is not
entitled to indemnification under this part.
(b) The undertaking required by paragraph (2) of subsection (a) of
this Code section must be an unlimited general obligation of the director but
need not be secured and may be accepted without reference to the financial
ability of the director to make repayment.
(c) Authorizations under this Code section shall be made:
(1) By the board of directors:
(A) When there are two or more disinterested
directors, by a majority vote of all the disinterested
directors (a majority of whom shall for such purpose
constitute a quorum) or by a majority of the members of a
committee of two or more disinterested directors appointed by
such a vote; or
(B) When there are fewer than two disinterested
directors, by the vote necessary for action by the board in
accordance with subsection (c) of Code Section 14-2-824, in
which authorization directors who do not qualify as
disinterested directors may participate; or
(2) By the shareholders, but shares owned or voted under
the control of a director who at the time does not qualify as a
disinterested director with respect to the proceeding may not be voted
on the authorization.
14-2-854. Court-Ordered Indemnification and Advances for Expenses.
(a) A director who is a party to a proceeding because he or she is
a director may apply for indemnification or advance for expenses to the court
conducting the proceeding or to another court of competent jurisdiction. After
receipt of an application and after giving any notice it considers necessary,
the court shall:
(1) Order indemnification or advance for expenses if it
determines that the director is entitled to indemnification under this
part; or
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(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. Shareholder Approved Indemnification.
(a) If authorized by the articles of incorporation or a bylaw,
contract, or resolution approved or ratified by the shareholders by a majority
of the votes entitled to be cast, a corporation may indemnify or obligate itself
to indemnify a director made a party to a proceeding including a proceeding
brought by or in the right of the corporation, without regard to the limitations
in other Code sections of this part, but shares owned or voted under the control
of a director who at the time does not qualify as a disinterested director with
respect to any existing or threatened proceeding that would be covered by the
authorization may not be voted on the authorization.
(b) The corporation shall not indemnify a director under this Code
section for any liability incurred in a proceeding in which the director is
adjudged liable to the corporation or is subjected to injunctive relief in favor
of the corporation:
(1) For any appropriation, in violation of the director's
duties, of any business opportunity of the corporation;
(2) For acts or omissions which involve intentional
misconduct or a knowing violation of law;
(3) For the types of liability set forth in Code Section
14-2-832; or
(4) For any transaction from which he or she received an
improper personal benefit.
(c) Where approved or authorized in the manner described in
subsection (a) of this Code section, a corporation may advance or reimburse
expenses incurred in advance of final disposition of the proceeding only if:
(1) The director furnishes the corporation a written
affirmation of his or her good faith belief that his or her conduct
does not constitute behavior of the kind described in subsection (b) of
this Code section; and
(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
8
(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. 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
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
Article VII of the Company's Amended and Restated Bylaws provides:
SECTION 1. Definitions.
As used in this Article, the term:
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(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.
(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.
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(H) "Official capacity" means: (i) when used with respect to a
director, the office of a director in a corporation; and (ii) when used with
respect to an Officer, the office in a corporation held by the Officer. Official
capacity does not include service for any other domestic or foreign corporation
or any partnership, joint venture, trust, employee benefit plan, or other
entity.
(I) "Party" means an individual who was, is, or is threatened to
be made a named defendant or respondent in a proceeding.
(J) "Proceeding" means any threatened, pending or completed
action, suit, or proceeding, whether civil, criminal, administrative,
arbitrative or investigative and whether formal or informal.
SECTION 2. Basic Indemnification Arrangement.
(A) Except as provided in subsections 2(D) and 2(E) below and, if
required by Section 4 below, upon a determination pursuant to Section 4 in the
specific case that such indemnification is permissible in the circumstances
under this subsection because the individual has met the standard of conduct set
forth in this subsection (A), the Corporation shall indemnify an individual who
is made a party to a proceeding because he is or was a director or Officer
against liability incurred by him in the proceeding if he conducted himself in
good faith and, in the case of conduct in his official capacity, he reasonably
believed such conduct was in the best interest of the Corporation, or in all
other cases, he reasonably believed such conduct was at least not opposed to the
best interests of the Corporation and, in the case of any criminal proceeding,
he had no reasonable cause to believe his conduct was unlawful.
(B) A person's conduct with respect to an employee benefit plan
for a purpose he believes in good faith to be in the interests of the
participants in and beneficiaries of the plan is conduct that satisfies the
requirement of subsection 2(A) above.
(C) The termination of a proceeding by judgment, order,
settlement, or conviction, or upon a plea of nolo contendere or its equivalent
is not, of itself, determinative that the proposed indemnitee did not meet the
standard of conduct set forth in subsection 2(A) above.
(D) The Corporation shall not indemnify a person under this
Article in connection with: (i) a proceeding by or in the right of the
Corporation, except for reasonable expenses incurred in connection with the
proceeding if it is determined that such person has met the relevant standard of
conduct under 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
12
Corporation a written affirmation of his good faith belief that he has met the
relevant standard of conduct set forth in subsection 2(A) above or that the
proceeding involves conduct for which liability has been eliminated under the
Corporation's Articles of Incorporation; and (ii) such person furnishes the
Corporation a written undertaking meeting the qualifications set forth below in
subsection 3(B), executed personally or on his behalf, to repay any funds
advanced if it is ultimately determined that he is not entitled to any
indemnification under this Article or otherwise.
(B) The undertaking required by subsection 3(A)(ii) above must be
an unlimited general obligation of the director or Officer but need not be
secured and shall be accepted without reference to financial ability to make
repayment.
(C) Authorizations under this Section shall be made: (i) By the
Board of Directors: (a) when there are two or more disinterested directors, by a
majority vote of all disinterested directors (a majority of whom shall for such
purpose constitute a quorum) or by a majority of the members of a committee of
two or more disinterested directors appointed by such a vote; or (b) when there
are fewer than two disinterested directors, by a majority of the directors
present, in which authorization directors who do not qualify as disinterested
directors may participate; or (ii) by the shareholders, but shares owned or
voted under the control of a director who at the time does not qualify as a
disinterested director with respect to the proceeding may not be voted on the
authorization.
SECTION 4. Authorization of and Determination of Entitlement to Indemnification.
(A) The Corporation shall not indemnify a director or Officer
under Section 2 above unless authorized thereunder and a determination has been
made for a specific proceeding that indemnification of such person is
permissible in the circumstances because he has met the relevant standard of
conduct set forth in subsection 2(A) above; provided, however, that regardless
of the result or absence of any such determination, to the extent that a
director or Officer has been wholly successful, on the merits or otherwise, in
the defense of any proceeding to which he was a party because he is or was a
director or Officer, the Corporation shall indemnify such person against
reasonable expenses incurred by him in connection therewith.
(B) The determination referred to in subsection 4(A) above shall
be made:
(i) If there are two or more disinterested directors, by
the Board of Directors by a majority vote of all the disinterested
directors (a majority of whom shall for such purpose constitute a
quorum) or by a majority of the members of a committee of two or more
disinterested directors appointed by such a vote;
(ii) by special legal counsel:
(1) selected by the Board of Directors or its
committee in the manner prescribed in subdivision (i); or
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
14
of the Corporation or a Bylaw, contract or resolution approved or
ratified by shareholders pursuant to Section 7 below provides
otherwise.
If the court determines that the director or Officer is entitled to
indemnification or advance for expenses, it may also order the Corporation to
pay the director's or Officer's reasonable expenses to obtain court-ordered
indemnification or advance for expenses.
SECTION 6. Indemnification of Officers and Employees.
(A) Unless the Corporation's Articles of Incorporation provide
otherwise, the Corporation shall indemnify and advance expenses under this
Article to an employee of the Corporation who is not a director or Officer to
the same extent, consistent with public policy, as to a director or Officer.
(B) The Corporation may indemnify and advance expenses under this
Article to an Officer of the Corporation who is a party to a proceeding because
he is an Officer of the Corporation: (i) to the same extent as a director; and
(ii) if he is not a director, to such further extent as may be provided by the
Articles of Incorporation, the Bylaws, a resolution of the Board of Directors,
or contract except for liability arising out of conduct that is enumerated in
subsections (A)(i) through (A)(iv) of Section 7.
The provisions of this Section shall also apply to an Officer who is
also a director if the sole basis on which he is made a party to the proceeding
is an act or omission solely as an Officer.
SECTION 7. Shareholder Approved Indemnification.
(A) If authorized by the Articles of Incorporation or a Bylaw,
contract or resolution approved or ratified by shareholders of the Corporation
by a majority of the votes entitled to be cast, the Corporation may indemnify or
obligate itself to indemnify a person made a party to a proceeding, including a
proceeding brought by or in the right of the Corporation, without regard to the
limitations in other sections of this Article, but shares owned or voted under
the control of a director who at the time does not qualify as a disinterested
director with respect to any existing or threatened proceeding that 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
15
(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.
16
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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed as part of this Registration
Statement:
EXHIBIT DESCRIPTION
NUMBER
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, and amendment
effective as of April 24, 1998 incorporated by
reference to Exhibit 3.1 to the Company's Annual
Report on Form 10-K for the year ended December 31,
1998, and amendment effective as of April 18, 2000,
incorporated by reference to Exhibit 3.1 to the
Company's Form 10-Q as of March 31, 2000.
4.2 Articles I, IV, VII, VIII, X and XI of the Amended
and Restated Bylaws of the Company, effective as of
February 13, 2001, incorporated by reference to
Exhibit 3.3 to the Company's Annual Report on Form
10-K for the year ended December 31, 2001.
4.3 Amended and Restated SunTrust Banks, Inc. 401(k)
Plan (the "Plan"), effective January 1, 2002.
4.4 SunTrust Banks, Inc. 401(k) Trust Agreement
(formerly known as the SunTrust Banks, Inc. Employee
Stock Ownership Trust), as amended, incorporated by
reference to Exhibit 4.4 of Registration Statement
Number 333-91519.
5.1(1) Opinion of Raymond D. Fortin, Esq., as to the
legality of the Common Stock being registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Raymond D. Fortin, Esq. (contained in his
opinion filed as Exhibit 5.1).
17
24.1 Power of Attorney (included on Signature Page).
99 Acknowledgment regarding letter from Arthur Andersen
LLP.
(1) The undersigned registrant hereby undertakes that it has submitted or
will submit the Plan and any amendments thereto to the Internal Revenue Service
in order to qualify the Plan.
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;
(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
18
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 16th
day of April, 2002.
SUNTRUST BANKS, INC.
By: /s/ L. Phillip Humann
--------------------------------------
L. Phillip Humann
Chairman of the Board, President
and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below, constitutes and appoints John W. Spiegel 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 16th day of April, 2002.
/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/ William P. O'Halloran
-------------------------------------
William P. O'Halloran Senior Vice President and
Chief Accounting Officer
(Principal Accounting Officer)
/s/ J. Hyatt Brown
-------------------------------------
J. Hyatt Brown Director
/s/ Alston D. Correll
-------------------------------------
Alston D. Correll Director
/s/ Douglas N. Daft
-------------------------------------
Douglas N. Daft Director
/s/ A. W. Dahlberg
-------------------------------------
A. W. Dahlberg 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/ Summerfield K. Johnston, Jr.
-------------------------------------
Summerfield K. Johnston, Jr. Director
/s/ G. Gilmer Minor, III
-------------------------------------
G. Gilmer Minor, III Director
/s/ Larry L. Prince
-------------------------------------
Larry L. Prince Director
21
/s/ R. Randall Rollins
-------------------------------------
R. Randall Rollins Director
/s/ Frank S. Royal, M.D.
-------------------------------------
Frank S. Royal, M.D. Director
/s/ James B. Williams
-------------------------------------
James B. Williams Director
/s/ Karen Hastie Williams
-------------------------------------
Karen Hastie Williams Director
22
INDEX TO EXHIBITS
EXHIBIT DESCRIPTION
NUMBER
-------- ---------------------------------------------------------------------
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,
and amendment effective as of April 24, 1998 incorporated by
reference to Exhibit 3.1 to the Company's Annual Report on Form
10-K for the year ended December 31, 1998, and amendment effective
as of April 18, 2000, incorporated by reference to Exhibit 3.1 to
the Company's Form 10-Q as of March 31, 2000.
4.2 Articles I, IV, VII, VIII, X and XI of the Amended and Restated
Bylaws of the Company, effective as of February 13, 2001,
incorporated by reference to Exhibit 3.3 to the Company's Annual
Report on Form 10-K for the year ended December 31, 2001.
4.3 Amended and Restated SunTrust Banks, Inc. 401(k) Plan (the "Plan"),
effective January 1, 2002.
4.4 SunTrust Banks, Inc. 401(k) Trust Agreement (formerly known as the
SunTrust Banks, Inc. Employee Stock Ownership Trust), as amended,
incorporated by reference to Exhibit 4.4 of Registration Statement
Number 333-91519.
5.1 Opinion of Raymond D. Fortin, Esq., as to the legality of the
Common Stock being registered.
23.1 Consent of Arthur Andersen LLP.
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).
99 Acknowledgment regarding letter from Arthur Andersen LLP.