FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this Amendment), dated as of June 14, 2019, is made by and between SunTrust Banks, Inc., a Georgia Corporation (SunTrust), and BB&T Corporation, a North Carolina corporation (BB&T) (each, a Party, and collectively, the Parties). Capitalized terms used herein and not otherwise defined shall have the same meanings as set forth in the Agreement and Plan of Merger, dated as of February 7, 2019, by and between the Parties (the Agreement).
WHEREAS, Section 9.1 of the Agreement provides that the Agreement may not be amended except by an instrument in writing signed on behalf of each of the Parties; and
WHEREAS, the Parties wish to amend the Agreement as set forth below.
NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements contained herein, and intending to be legally bound hereby, the Parties agree as follows:
1. Amendments to Section 1.7.
(a) In each of Section 1.7(a), Section 1.7(b), Section 1.7(c), Section 1.7(d) and Section 1.7(e) of the Agreement, the phrase issued and outstanding immediately prior to the Effective Time shall automatically be converted into the right to receive a share of a newly created series of preferred stock of BB&T having the same terms is hereby deleted and replaced with the phrase issued and outstanding immediately prior to the Effective Time, other than Dissenting Shares, shall automatically be converted into the right to receive a share of a newly created series of preferred stock of BB&T having substantially the same terms.
(b) A new subsection, Section 1.7(f), shall be inserted, which shall read as follows:
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Notwithstanding anything in this Section 1.7 to the contrary, all shares of SunTrust Preferred Stock that are issued and outstanding immediately prior to the Effective Time and are held by a holder of SunTrust Preferred Stock who exercises dissenters rights in respect of such shares when and in the manner required under Article 13 of the GBCC (Dissenting Shares), shall not be converted as provided in Sections 1.7(a), 1.7(b), 1.7(c), 1.7(d) or 1.7(e), as applicable, but instead, such holder shall be entitled only to such rights as are granted with respect to the payment of the fair value of such shares under the applicable provisions of Article 13 of the GBCC (and at the Effective Time, such Dissenting Shares shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and such holder shall cease to have any rights with respect thereto, except the rights provided for pursuant to the applicable provisions of Article 13 of the GBCC and this Section 1.7(f)), unless and until such holder shall have failed to perfect or effectively withdrawn or lost rights to demand or receive the fair value of such shares under the GBCC. If any holder of Dissenting Shares fails to perfect or effectively withdraws or loses the right to dissent, the applicable Dissenting Shares will thereupon be treated as though such shares had been converted into shares of New BB&T Preferred Stock pursuant to this Section 1.7. If any holder of shares of SunTrust Preferred Stock provides notice to SunTrust of such holders intent to demand or receive fair value of such shares