UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 13D

Under the Securities Exchange Act of 1934

Amendment No. 3

 

 

FIRST CITIZENS BANCSHARES, INC.

(Name of Issuer)

CLASS B COMMON STOCK, $1.00 PAR VALUE

(Title of Class of Securities)

31946M-20-2

(CUSIP Number)

William R. Lathan, Jr.

Ward and Smith, P.A.

1001 College Court

New Bern, North Carolina 28562

(252) 633-1000

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

October 15, 2020

(Date of Event which Requires Filing of this Statement)

 

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box  ☐.

 

*	The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 

SCHEDULE 13D

 

CUSIP No. 31946M-20-2		Page 2 of 17 Pages

 

1		NAME OF REPORTING PERSONS     FRANK B. HOLDING, JR.
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)   (a)  ☐        (b)  ☒
3		SEC USE ONLY
4		SOURCE OF FUNDS (SEE INSTRUCTIONS)     PF, AF, OO
5		CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)     ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION     United States of America

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH				7		SOLE VOTING POWER     145,738
				8		SHARED VOTING POWER     38,258
				9		SOLE DISPOSITIVE POWER     145,738
				10		SHARED DISPOSITIVE POWER     38,258

11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON     183,996
12		CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)     ☒
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)     18.30%
14		TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)     IN

SCHEDULE 13D

 

CUSIP No. 31946M-20-2		Page 3 of 17 Pages

 

1		NAME OF REPORTING PERSONS     HOPE H. BRYANT
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)   (a)  ☐        (b)  ☒
3		SEC USE ONLY
4		SOURCE OF FUNDS (SEE INSTRUCTIONS)     PF, AF, OO
5		CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)     ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION     United States of America

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH				7		SOLE VOTING POWER     103,008
				8		SHARED VOTING POWER     46,825
				9		SOLE DISPOSITIVE POWER     102,753
				10		SHARED DISPOSITIVE POWER     46,825

11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON     149,833
12		CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)     ☒
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)     14.91%
14		TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)     IN

SCHEDULE 13D

 

CUSIP No. 31946M-20-2		Page 4 of 17 Pages

 

1		NAME OF REPORTING PERSONS     OLIVIA B. HOLDING
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)   (a)  ☐        (b)  ☒
3		SEC USE ONLY
4		SOURCE OF FUNDS (SEE INSTRUCTIONS)     PF, AF, OO
5		CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)     ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION     United States of America

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH				7		SOLE VOTING POWER     128,773
				8		SHARED VOTING POWER     38,280
				9		SOLE DISPOSITIVE POWER     128,773
				10		SHARED DISPOSITIVE POWER     38,280

11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON     167,053
12		CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)     ☒
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)     16.62%
14		TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)     IN

SCHEDULE 13D

 

CUSIP No. 31946M-20-2		Page 5 of 17 Pages

 

1		NAME OF REPORTING PERSONS     CLAIRE H. BRISTOW
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)   (a)  ☐        (b)  ☒
3		SEC USE ONLY
4		SOURCE OF FUNDS (SEE INSTRUCTIONS)     PF, AF, OO
5		CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)     ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION     United States of America

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH				7		SOLE VOTING POWER     85,200
				8		SHARED VOTING POWER     28,689
				9		SOLE DISPOSITIVE POWER     85,200
				10		SHARED DISPOSITIVE POWER     28,611

11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON     113,889
12		CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)     ☒
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)     11.33%
14		TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)     IN

SCHEDULE 13D

 

CUSIP No. 31946M-20-2		Page 6 of 17 Pages

 

1		NAME OF REPORTING PERSONS     CARSON H. BRICE
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)   (a)  ☐        (b)  ☒
3		SEC USE ONLY
4		SOURCE OF FUNDS (SEE INSTRUCTIONS)     PF, AF, OO
5		CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)     ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION     United States of America

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH				7		SOLE VOTING POWER     118,216
				8		SHARED VOTING POWER     563
				9		SOLE DISPOSITIVE POWER     118,216
				10		SHARED DISPOSITIVE POWER     563

11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON     118,779
12		CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)     ☒
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)     11.82%
14		TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)     IN

SCHEDULE 13D

 

CUSIP No. 31946M-20-2		Page 7 of 17 Pages

 

1		NAME OF REPORTING PERSONS     ELLA ANN L. HOLDING
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)   (a)  ☐        (b)  ☒
3		SEC USE ONLY
4		SOURCE OF FUNDS (SEE INSTRUCTIONS)     PF, AF, OO
5		CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)     ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION     United States of America

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH				7		SOLE VOTING POWER     0
				8		SHARED VOTING POWER     -0-
				9		SOLE DISPOSITIVE POWER     0
				10		SHARED DISPOSITIVE POWER     -0-

11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON     0
12		CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)     ☒
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)     0.00%
14		TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)     IN

This Amendment No. 3 amends and restates the Reporting Persons’ joint Schedule 13D to report the execution and delivery by certain of the Reporting Persons of a Voting Agreement (in the form attached hereto as Exhibit B) in connection with the Issuer’s entry into the Merger Agreement described herein and to update the numbers of shares and percentages of the Issuer’s Class B Common Stock that may be deemed to be beneficially owned by each of them to reflect changes in their beneficial ownership since the filing of the previous amendment.

Item 1. Security and Issuer.

This Statement relates to the Class B Common Stock, $1 par value per share (“Class B Common Stock”), of First Citizens BancShares, Inc. (the “Issuer”). The Issuer’s principal executive offices are located at 4300 Six Forks Road, Raleigh, North Carolina 27609.

Item 2. Identity and Background.

This statement is filed jointly by Frank B. Holding, Jr., Hope H. Bryant, Olivia B. Holding, Claire H. Bristow, and Carson H. Brice, and their mother, Ella Ann L. Holding. The Reporting Persons are members of the same family, but each of them disclaims membership in a group. Their addresses are as follows:

 

Name		Address		Principal Occupation
Frank B. Holding, Jr.		4300 Six Forks Road Raleigh, NC 27609		Chairman and Chief Executive Officer of the Issuer and its subsidiary
Hope H. Bryant		4300 Six Forks Road Raleigh, NC 27609		Vice Chairman of the Issuer and its subsidiary
Olivia B. Holding		P.O. Box 1352 Smithfield, NC 27577		Business manager
Claire H. Bristow		P. O. Box 1417 Smithfield, NC 27577		Commercial interior designer
Carson H. Brice		P. O. Box 1417 Smithfield, NC 27577		Community Volunteer
Ella Ann L. Holding		409 East Market Street Smithfield, NC 27577		Community Volunteer

During the last five years, none of the Reporting Persons have been convicted in any criminal proceeding (excluding traffic violations or similar misdemeanors), nor have any of them been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which they were or are subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

Each of the Reporting Persons is a citizen of the United States of America.

Item 3. Source and Amount of Funds or Other Consideration.

The shares of the Issuer’s Class B Common Stock held individually by Frank B. Holding, Jr., Hope H. Bryant, Olivia B. Holding, Claire H. Bristow and Carson H. Brice, respectively, were acquired in part through gifts from their parents, Frank B. Holding and Ella Ann L. Holding, in part with their personal funds, and in part, directly or indirectly, from or through the estate of their father, Frank B. Holding. Shares held by their children and grandchildren were acquired through gifts from them and Frank B. Holding and Ella Ann L. Holding. Shares held by the various entities listed in the tables below were acquired by those entities with their separate funds or, in the case of the two charitable foundations, contributions by Lewis R. Holding and Frank B. Holding and Ella Ann L. Holding.

 

Page 8 of 17

Item 4. Purpose of the Transaction.

Frank B. Holding, Jr., Hope H. Bryant, and Claire H. Bristow’s spouse, Peter M. Bristow, serve as executive officers and directors of the Issuer and, therefore, participate with the Issuer’s management and Board of Directors in the making of policy and the consideration of and taking of action on significant corporate events involving the Issuer. However, shares of the Issuer’s Class B Common Stock beneficially owned by each of them and by each of the other individuals and entities named in the tables below are held as described below for investment purposes.

On October 15, 2020, the Issuer entered into an Agreement and Plan of Merger (the “Merger Agreement”) by and among the Issuer, First-Citizens Bank & Trust Company, a North Carolina chartered commercial bank and direct, wholly owned subsidiary of the Issuer (“FCB”), FC Merger Subsidiary IX, Inc., a direct, wholly owned subsidiary of FCB (“Merger Sub”), and CIT Group Inc., a Delaware corporation (“CIT”) and the parent company of CIT Bank, N.A., a national banking association (“CIT Bank”). Pursuant to the terms and subject to the conditions set forth in the Merger Agreement, Merger Sub will merge with and into CIT, with CIT as the surviving entity (the “First-Step Merger”), and as soon as reasonably practicable following the effective time of the First-Step Merger, CIT will merge with and into FCB, with FCB as the surviving entity (together with the First-Step Merger, the “Mergers”). The Merger Agreement further provides that immediately following the consummation of the Mergers, CIT Bank will merge with and into FCB, with FCB as the surviving bank (together with the Mergers, the “Transaction”).

Upon the terms and subject to the conditions set forth in the Merger Agreement, at the effective time of the First-Step Merger (the “Effective Time”), each share of the common stock, par value $0.01 per share, of CIT issued and outstanding immediately prior to the Effective Time (“CIT Common Stock”), except for certain shares of CIT Common Stock owned by CIT or the Issuer, will be converted into the right to receive 0.06200 shares (the “Exchange Ratio,” and such shares, the “Merger Consideration”) of the Issuer’s Class A Common Stock. In addition, at the Effective Time, each share of Fixed-to-Floating Rate Non-Cumulative Perpetual Preferred Stock, Series A, par value $0.01 per share, of CIT (“CIT Series A Preferred Stock”) and 5.625% Non-Cumulative Perpetual Preferred Stock, Series B, par value $0.01 per share, of CIT (“CIT Series B Preferred Stock”) issued and outstanding immediately prior to the Effective Time will automatically be converted into the right to receive one share of a newly created series of preferred stock, Series B, of the Issuer and one share of a newly created series of preferred stock, Series C, of the Issuer, respectively, having such rights, preferences, privileges and voting powers, and limitations and restrictions, taken as a whole, that are not materially less favorable to the holders thereof than the rights, preferences, privileges and voting powers, and limitations and restrictions, taken as a whole, of the CIT Series A Preferred Stock and the CIT Series B Preferred Stock, respectively (taking into account that CIT will not survive the consummation of the Transaction and any adjustment to the right of optional redemption by the Issuer that is reasonably necessary to obtain Tier 1 Capital treatment from the Board of Governors of the Federal Reserve System for such preferred stock. Pursuant to the terms set forth in the Merger Agreement, effective as of the Effective Time, the Boards of Directors of the combined company and the combined bank will consist of 14 directors, (i) 11 of whom will be the current Board of Directors of the Issuer, and (ii) three of whom will be selected from among the current Board of Directors of CIT and will include as one of those three Ellen R. Alemany, Chairwoman and Chief Executive Officer of CIT.

As an inducement for CIT to enter into the Merger Agreement, contemporaneously with the execution of the Merger Agreement, Frank B. Holding, Jr. Hope H. Bryant, Claire H. Bristow, and her spouse, Peter M. Bristow, entered into a Voting Agreement (the “Voting Agreement”) with CIT, pursuant to which each such person agreed, among other things:

 

(a)

to vote a number of shares of the Issuer’s Class B Common Stock and Class A Common Stock beneficially owned by them, respectively (the “Shares,” as specified in Schedule A to the Voting Agreement), (i) in favor of the approval of the issuance of shares of the Issuer’s capital stock pursuant to the Merger Agreement, (ii) in favor of any proposals for the approval and adoption of the Merger Agreement or any other proposal submitted to the

 

Page 9 of 17

Issuer’s shareholders pursuant to or necessary for the consummation of the transactions contemplated by the Merger Agreement, (iii) against certain other proposals described therein (including without limitation any other proposal made in opposition to or that is otherwise in competition or inconsistent with the transactions contemplated by the Merger Agreement), without regard to any recommendation to the Issuer’s shareholders by its Board of Directors concerning such proposals, and without regard to the terms of such proposals, (iv) against any agreement, amendment of any agreement or organizational document inconsistent with the Voting Agreement or the Merger Agreement and (v) against any action, agreement, transaction or proposal that would reasonably be expected to result in a material breach of any representation, warranty, covenant, agreement or other obligation of the issuer under the Merger Agreement or that would reasonably be expected to prevent, impede or materially delay the consummation of the transactions contemplated by the Merger Agreement; and

 

(b)

not to, directly or indirectly, subject to certain exceptions, sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of any of the Shares, or enter into any agreement, arrangement or understanding to take any of the foregoing actions.

The Voting Agreement covers shares totaling approximately 29.43% of the total outstanding voting power of the Issuer’s common stock. Any shares or other voting securities of the Issuer with respect to which one of the signers of the Voting Agreement acquires sole voting power or sole power of disposition (including, without limitation, by purchase, as a result of a stock dividend, stock split, recapitalization, combination, reclassification, exchange or change of such shares or upon exercise or conversion of any securities of the Issuer, if any) after the date of the Voting Agreement will automatically become subject to the terms of the Voting Agreement for all purposes thereunder.

The Voting Agreement and all obligations thereunder will terminate upon the earlier to occur of: (i) the Effective Time and (ii) the date of termination of the Merger Agreement in accordance with its terms; provided, however, that certain obligations may continue for 6 months following the termination of the Merger Agreement related to a bona fide Acquisition Proposal (as defined in the Merger Agreement).

The foregoing description of the Voting Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Voting Agreement, which is attached hereto as Exhibit B and is incorporated herein by reference.

Item 5. Interest in Securities of the Issuer.

The following tables list shares of the Issuer’s Class B Common Stock as to which each of the Reporting Persons may be considered to have sole or shared voting and/or dispositive power as of the filing date of this Schedule 13D/A, and the percentage of the outstanding shares of the Issuer’s Class B Common Stock (1,005,185 outstanding shares as of October 15, 2020) represented by the shares listed for each Reporting Person. In the aggregate, the reporting persons may be considered to beneficially own 712,594 shares of Class B Common Stock, or approximately 70.89% of the outstanding shares of that class. Other entities in which certain of the Reporting Persons are shareholders and serve as directors hold 26,769 shares of Class B Common Stock, or approximately 2.66% of the outstanding shares of the class. The Reporting Persons disclaim voting and dispositive power with respect to the shares held by those other entities.

In addition to the shares of Class B Common Stock described in the tables below, the Reporting Persons may be considered to beneficially own, in the aggregate, approximately 34.17% of the outstanding shares of the Issuer’s outstanding Class A Common Stock which is a separate class of common stock and 0.80% of the Issuer’s outstanding Depositary Shares, and other entities in which certain of the Reporting Persons are shareholders and serve as directors hold approximately 5.29% of the outstanding shares of Class A Common and 2.03% of the outstanding Depositary Shares . The Reporting Persons disclaim voting and dispositive power with respect to the shares held by those other entities.

 

Page 10 of 17

Frank B. Holding, Jr. Mr. Holding is, or may be deemed to be, the beneficial owner of an aggregate of 183,996 shares of Class B Common Stock, amounting to 18.30% of the outstanding Class B Common Stock, as described in the table below.

 

Holder of Shares		Number of Shares				Voting Power								Dispositive Power
						Sole				Shared				Sole				Shared
Frank B Holding, Jr.			105,275				105,275				-0-				105,275				-0-
As beneficiary of trust			2,122				2,122				-0-				2,122				-0-
By spouse			1,399				-0-				1,399				-0-				1,399
By son			134				-0-				134				-0-				134
As custodian for son			178				178				-0-				178				-0-
As custodian for daughter			13,609				13,609				-0-				13,609				-0-
As custodian for son			14,344				14,344				-0-				14,344				-0-
As custodian for grandson			3,160				3,160				-0-				3,160				-0-
As custodian for grandson			50				50				-0-				50				-0-
As trustee of trust			1,750				1,750				-0-				1,750				-0-
As trustee of trust			1,750				1,750				-0-				1,750				-0-
As trustee of trust			1,750				1,750				-0-				1,750				-0-
As trustee of trust			1,750				1,750				-0-				1,750				-0-
By Robert P. Holding Foundation (1)			36,525				-0-				36,525				-0-				36,525
By Ella Ann and Frank B. Holding Foundation (1)			200				-0-				200				-0-				200
Total			183,996				145,738				38,258				145,738				38,258

 

(1)

Each Foundation is a charitable foundation organized as a non-profit corporation under Section 501(c)(3) of the Internal Revenue Code. Mr. Holding serves as an officer and one of five directors of each of the Foundations and, as a result, may be considered to have shared voting and/or dispositive power with respect to shares held by the Foundations. Mr. Holding disclaims beneficial ownership of those shares.

Mr. Holding, his spouse and son, respectively, receive, or have the sole or shared power to direct the receipt of dividends from, or the proceeds from the sale of, the shares beneficially owned by them individually. Mr. Holding, for the benefit of his children and grandchildren, receives or has the power to direct the receipt of dividends and sale proceeds from the shares held by him as custodian. The distribution of dividends and sale proceed from shares held as a trustee and/or beneficiary of trusts is determined based on the terms of the governing instruments of the trusts. The Foundations receive, or their managements have the power to direct the receipt of, dividends and sale proceeds from the shares they hold.

During the 60 days preceding the filing of this Schedule 13D/A, neither Mr. Holding nor any of the other holders of shares listed above purchased or sold any shares of, or effected any other transactions in, Class B Common Stock.

Mr. Holding disclaims voting and dispositive power with respect to certain shares of the Issuer’s Class B Common Stock which are not listed in the table above as follows.

 

(a)

an aggregate of 11,095 shares held by family members as trustees of irrevocable trusts for the benefit of his children;

 

(b)

an aggregate of 32,468 shares held by adult children and their spouses; and

 

(c)

an aggregate of 28,324 shares held by corporations in which Mr. Holding and/or his spouse are shareholders but of which neither of them serves as a director or officer as follows: Southern BancShares (N.C.), Inc., Mt. Olive, N.C. – 22,619 shares; Yadkin Valley Company, and its subsidiary – 4,150 shares; Twin States Farming, Inc. – 1,355 shares; and E&F Properties, Inc. – 200 shares.

 

Page 11 of 17

Hope H. Bryant. Mrs. Bryant is, or may be deemed to be, the beneficial owner of an aggregate of 149,833 shares of Class B Common Stock, amounting to 14.91% of the outstanding Class B Common Stock, as described in the table below.

 

Holder of Shares		Number of Shares				Voting Power								Dispositive Power
						Sole				Shared				Sole				Shared
Hope H. Bryant			1,680				1,680				-0-				1,680				-0-
As beneficiary of trust			1,225				1,225				-0-				1,225				-0-
As Trusteed and beneficiary of Hope H. Bryant 2020 Grantor Retained Annuity Trust			90,682				90,682				-0-				90,682				-0-
As Trustee and beneficiary of Hope H. Bryant Revocable Trust			84				84				-0-				84				-0-
By spouse			194				-0-				194				-0-				194
By revocable Trust for son			8,351				-0-				8,351				-0-				8,351
As Trustee of trust			348				348				-0-				348				-0-
As Trustee of trust			8,734				8,734				-0-				8,734				-0-
By various Trusts (1)			255				255				-0-				-0-				-0-
By Ella Ann and Frank B. Holding Foundation (2)			200				-0-				200				-0-				200
By Robert P. Holding Foundation (2)			36,525				-0-				36,525				-0-				36,525
By E&F Properties, Inc. (3).			200				-0-				200				-0-				200
By Twin States Farming, Inc. (3)			1,355				-0-				1,355				-0-				1,355
Total			149,833				103,008				46,825				102,753				46,825

 

(1) Includes two trusts of which Mrs. Bryant does not serve as a trustee but has the power to vote shares held by the trusts.

(2)

Each Foundation is a charitable foundation organized as a non-profit corporation under Section 501(c)(3) of the Internal Revenue Code. Mrs. Bryant serves as an officer and one of five directors of each Foundation and, as a result, may be considered to have shared voting and/or dispositive power with respect to shares held by the Foundations. Mrs. Bryant disclaims beneficial ownership of those shares.

(3)	Mrs. Bryant is a shareholder and serves as an officer and director of E&F Properties, Inc. and Twin States Farming, Inc., and, as a result, may be considered to have shared voting and/or dispositive power with respect to shares held by those entities.

Mrs. Bryant and her spouse, respectively, receive or have the sole or shared power to direct the receipt of dividends from, or the proceeds from the sale of, the shares beneficially owned by them individually. The distribution of dividends and sale proceeds from shares held as a trustee and/or beneficiary of trusts is determined based on the terms of the governing instruments of those trusts. Each of the entities and foundations listed above receives, or its management has the power to direct the receipt of, dividends and sale proceeds from the shares it holds.

During the 60 days preceding the filing of this Schedule 13D/A, neither Mrs. Bryant nor any of the other holders of shares listed in the table above purchased or sold any shares of, or effected any other transactions in, Class B Common Stock.

Mrs. Bryant disclaims voting and dispositive power with respect to certain shares of the Issuer’s Class B Common Stock which are not listed in the table above as follows:

 

(a)

an aggregate of 7,000 shares held by a family member as trustee of trusts for the benefit of her adult children and step-son;

 

(b)

an aggregate of 17,256 shares held by her adult children and step-son or by her adult children as trustees of their own trusts;

 

Page 12 of 17

(c)

an aggregate of 22,619 shares held by a corporation, Southern BancShares (N.C.), Inc., Mt. Olive, N.C., and its wholly-owned bank subsidiary, of which Mrs. Bryant is a shareholder and a director; and

 

(d)

an aggregate of 4,150 shares held by Yadkin Valley Company, and its subsidiary of which Mrs. Bryant is a shareholder of the parent company but does not serve as a director or executive officer.

Olivia B. Holding. Ms. Holding is, or may be deemed to be, the beneficial owner of an aggregate of 167,053 shares of Class B Common Stock, constituting 16.62% of the outstanding Class B Common Stock, as described in the table below.

 

Holder of Shares		Number of Shares				Voting Power								Dispositive Power
						Sole				Shared				Sole				Shared
Olivia B. Holding			4,244				4,244				-0-				4,244				-0-
As Trustee and beneficiary of Olivia B. Holding Revocable Trust			116,973				116,973				-0-				116,973				-0-
As beneficiary of trust			1,225				1,225				-0-				1,225				-0-
As Trustee of Irrevocable Trusts			1,370				1,370				-0-				1,370				-0-
As Trustee of Irrevocable Trusts			2,805				2,805				-0-				2,805				-0-
By Robert P. Holding Foundation (1)			36,525				-0-				36,525				-0-				36,525
By Ella Ann and Frank B. Holding Foundation (1)			200				-0-				200				-0-				200
By Holding Properties, LLC (2)			2,156				2,156				-0-				2,156				-0-
By E&F Properties, Inc. (2)			200				-0-				200				-0-				200
By Twin States Farming, Inc. (2)			1,355				-0-				1,355				-0-				1,355
Total			167,053				128,773				38,280				128,773				38,280

 

(1)

Each Foundation is a charitable foundation organized as a non-profit corporation under Section 501(c)(3) of the Internal Revenue Code. Ms. Holding serves as an officer and one of five directors of each of the Foundations and, as a result may be considered to have shared voting and/or dispositive power with respect to shares held by the Foundations. Ms. Holding disclaims beneficial ownership of those shares.

(2)

Ms. Holding serves as Manager of Holding Properties, LLC, and as an officer and director of E&F Properties, Inc. and Twin States Farming, Inc. She may be considered to have sole voting and/or dispositive power with respect to shares held by the limited liability company and shared voting and/or dispositive power with respect to shares held by the two corporations.

Ms. Holding receives or has the sole or shared power to direct the receipt of dividends from, or the proceeds from the sale of, the shares beneficially owned by her individually. The distribution of dividends and sale proceeds from shares held as a trustee and/or beneficiary of trusts is determined based on the terms of the governing instruments of those trusts. Each of the entities and foundations listed above receives, or its respective officers and directors or manager have the power to direct the receipt of, dividends and sale proceeds from the shares it holds.

During the 60 days preceding the filing of this Schedule 13D/A, neither Ms. Holding nor any of the other holders of shares listed in the table above purchased or sold any shares of, or effected any other transactions in, Class B Common Stock.

 

Page 13 of 17

Ms. Holding disclaims voting and dispositive power with respect to certain shares of the Issuer’s Class B Common Stock which are not listed in the table above as follows:

 

(a)

an aggregate of 26,769 shares held by corporations, of which Ms. Holding is a shareholder and a director as follows: Southern BancShares (N.C.), Inc., Mt. Olive, N.C. and its wholly-owned bank subsidiary — 22,619 shares, and Yadkin Valley Company and its subsidiary — 4,150 shares.

Claire H. Bristow. Mrs. Bristow is, or may be deemed to be, the beneficial owner of an aggregate of 113,889 shares of Class B Common Stock, amounting to 11.33% of the outstanding Class B Common Stock, as described in the table below.

 

Holder of Shares		Number of Shares				Voting Power								Dispositive Power
						Sole				Shared				Sole				Shared
As beneficiary of trust			1,250				1,250				-0-				1,250				-0-
As Trustee and beneficiary of Claire H. Bristow 2nd Amended & Restated Trust			33,950				33,950				-0-				33,950				-0-
As Trustee and beneficiary of Claire H. Bristow 2020 Grantor Retained Annuity Trust			50,000				50,000				-0-				50,000				-0-
By Peter M. Bristow 2nd Amended and Restated Trust (1)			538				-0-				538				-0-				538
By daughter			2,163				-0-				2,163				-0-				2,163
By PMB Investments LLC (1) (2)			8,350				-0-				8,350				-0-				8,350
By CRB Investments LLC (1) (2)			8,850				-0-				8,850				-0-				8,850
By EHB Investments LLC (1) (2)			8,710				-0-				8,710				-0-				8,710
By various Trusts (3)			78				-0-				78				-0-				-0-
Total			113,889				85,200				28,689				85,200				28,611

 

(1)

All shares are held separately by Mrs. Bristow’s spouse as trustee and beneficiary of his own trust and by him as manager of limited liability companies for the benefit of their children. While Mrs. Bristow may be considered to have shared voting and dispositive power with respect to the shares because of their spousal relationship, she has no actual power. She disclaims beneficial ownership of the shares held by her spouse, and this Schedule 13D/A shall not be construed as an admission that Mrs. Bristow is the beneficial owner of those shares.

(2)	In the case of each limited liability company, Mrs. Bristow’s spouse serves as manager and one of their children is the majority owner.

(3)

Includes two trusts of which Mrs. Bristow’s spouse does not serve as a trustee but has the power to vote shares held by the trusts. While Mrs. Bristow may be considered to have shared voting power with respect to the shares because of their spousal relationship, she has no actual power. She disclaims beneficial ownership for the shares voted by her spouse, and this Schedule 13D/A shall not be construed as an admission that Mrs. Bristow is the beneficial owner of those shares.

Mrs. Bristow and her daughter, respectively, receive or have the power to direct the receipt of dividends from, or the proceeds from the sale of, the shares beneficially owned by them individually. The distribution of dividends and sale proceeds from shares held as a trustee and/or beneficiary of trusts is determined based on the terms of the governing instruments of those trusts. The distribution of dividends and sale proceeds from shares held by the limited liability companies is determined by Mrs. Bristow’s spouse, as manager, based on the terms of the governing instruments of those entities.

During the 60 days preceding the filing of this Schedule 13D/A, neither Mrs. Bristow nor any of the other holders of shares listed in the table above purchased or sold any shares of, or effected any other transactions in, Class B Common Stock.

 

Page 14 of 17

Mrs. Bristow disclaims voting and dispositive power with respect to certain shares of the Issuer’s Class B Common Stock which are not listed in the table above as follows:

 

(a)

200 shares held by the Ella Ann and Frank B. Holding Foundation of which Mrs. Bristow serves as one of five directors but not as an officer;

 

(b)

an aggregate of 4,325 shares held by her adult children; and

 

(c)

an aggregate of 28,324 shares held by certain other corporations of which Mrs. Bristow and/or her spouse are shareholders but of which neither of them serves as a director or officer as follows: Southern BancShares (N.C.), Inc., Mt. Olive, N.C. – 22,619 shares; Yadkin Valley Company and its subsidiary – 4,150 shares; Twin States Farming, Inc. – 1,355 shares; and E&F Properties, Inc. – 200 shares.

Carson H. Brice. Mrs. Brice is, or may be deemed to be, the beneficial owner of an aggregate of 118,779 shares of Class B Common Stock, amounting to 11.82% of the outstanding Class B Common Stock, as described in the table below.

 

Holder of Shares		Number of Shares				Voting Power								Dispositive Power
						Sole				Shared				Sole				Shared
Carson H. Brice			108,215				108,215				-0-				108,215				-0-
As Trustee and beneficiary of Carson H. Brice Revocable Trust			369				369				-0-				369				-0-
As beneficiary of Trust			1,250				1,250				-0-				1,250				-0-
By spouse			563				-0-				563				-0-				563
As custodian for son			3,074				3,074				-0-				3,074				-0-
Trust for son (1)			83				83				-0-				83				-0-
As custodian for daughter			2,877				2,877				-0-				2,877				-0-
As custodian for daughter			2,348				2,348				-0-				2,348				-0-
Total			118,779				118,216				563				118,216				563

 

(1)	Includes one trust of which Mrs. Brice does not serve as trustee but has the power to vote and direct receipt of dividends and sale proceeds.

Mrs. Brice and her spouse, respectively, receive or have the power to direct the receipt of dividends from, or the proceeds from the sale of, the shares beneficially owned by them individually. Mrs. Brice receives or has the power to direct the receipt of dividends and sale proceeds, for the benefit of her children, from the shares held by her as custodian. The distribution of dividends and sale proceeds from shares held as a trustee and/or beneficiary of trusts is determined based on the terms of the governing instruments of those trusts.

During the 60 days preceding the filing of this Schedule 13D/A, neither Mrs. Brice nor any of the other holders of shares listed in the table above has purchased or sold any shares of, or effected any other transactions in, Class B Common Stock.

Mrs. Brice disclaims voting and dispositive power with respect to certain shares of the Issuer’s Class B Common Stock which are not listed in the table above as follows:

 

(a)

an aggregate of 2,805 shares held by a family member as trustee of irrevocable trusts for the benefit of her children;

 

(b)

an aggregate of 36,725 shares held by the Robert P. Holding Foundation and the Ella Ann and Frank B. Holding Foundation on each of which Mrs. Brice serves as one of five directors but not as an officer; and

 

(c)

an aggregate of 28,324 shares held by certain corporations of which Mrs. Brice and/or her spouse are shareholders but of which neither of them serves as a director or officer as follows: Southern BancShares (N.C.), Inc., Mt. Olive, N.C. – 22,619 shares; Yadkin Valley Company and its subsidiary – 4,150 shares; Twin States Farming, Inc. – 1,355 shares; and E&F Properties, Inc. – 200 shares.

 

Page 15 of 17

Ella Ann L. Holding. Mrs. Holding is no longer the beneficial owner of any shares of Class B Common Stock.

During the 60 days preceding the filing of this Schedule 13D/A, Mrs. Holding has not purchased or sold any shares of, or effected any other transactions in, Class B Common Stock.

Mrs. Holding disclaims voting and dispositive power with respect to certain shares of the Issuer’s Class B Common Stock as follows:

 

(a)

shares listed in the other Reporting Person’s tables above which are held by or for Mrs. Holding’s adult children and their spouses, and her grandchildren and great-grandchildren;

 

(b)

an aggregate of 40,436 shares held by certain companies in which Mrs. Holding has equity interests but of which she does not serve as a director or officer, and by two charitable foundations of which Mrs. Holding does not serve as a director or officer, as follows: Holding Properties, LLC - 2,156 shares; E&F Properties, Inc. - 200 shares; and Twin States Farming, Inc. - 1,355 shares; Robert P. Holding Foundation - 36,525 shares; and Ella Ann and Frank B. Holding Foundation - 200 shares; and

 

(c)

an aggregate of 26,769 shares held by certain other corporations in which Mrs. Holding is a shareholder but of which she does not serve as a director or officer as follows: Southern BancShares (N.C.), Inc., Mt Olive, N.C. and its wholly owned bank subsidiary - 22,619 shares; and Yadkin Valley Company and its subsidiary - 4,150 shares.

 

Item 6.

Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

The information set forth in Item 4 of this Amendment No. 3 is hereby incorporated by reference into this Item 6.

 

Item 7.

Material to be Filed as Exhibits.

 

Exhibit		Description
A		Joint Filing Agreement (incorporated by reference from exhibits to the Reporting Persons’ Amendment No.  2 dated October 16, 2014, to Schedule 13D regarding the Issuer’s Class A Common Stock)
B		Form of Voting Agreement dated as of October  15, 2020, by and among CIT Group, Inc., Frank B. Holding, Jr., Hope H. Bryant, Claire H. Bristow and Peter M. Bristow

[SIGNATURES APPEAR ON FOLLOWING PAGE.]

 

Page 16 of 17

SIGNATURES

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

October 19, 2020    

 

[Schedule 13D/A Signature Page - Class B]

 

Page 17 of 17

EXHIBIT B

VOTING AGREEMENT

This VOTING AGREEMENT (this “Agreement”), dated as of October 15, 2020, is by and among CIT Group Inc., a Delaware corporation (“CIT”), and each of the persons whose name appears in the signature block to this Agreement (each, a “Stockholder” and, collectively, the “Stockholders”). Capitalized terms used herein but not defined shall have the meanings specified in the Merger Agreement (as defined below).

W I T N E S S E T H:

WHEREAS, concurrently with the execution and delivery of this Agreement, CIT, First Citizens BancShares, Inc., a Delaware corporation (“BancShares”), First-Citizens Bank & Trust Company, a North Carolina chartered commercial bank and direct, wholly owned subsidiary of BancShares (“FCB”), and FC Merger Subsidiary IX, Inc., a Delaware corporation and a direct, wholly owned subsidiary of FCB (“Merger Sub”) are entering into an Agreement and Plan of Merger (the “Merger Agreement”) pursuant to which, on the terms and subject to the conditions set forth therein, (i) at the Effective Time, Merger Sub will be merged with and into CIT, and CIT will continue as the surviving corporation (in such capacity, the “Interim Surviving Entity”), (ii) at the Second Step Effective Time, BancShares will cause the Interim Surviving Entity to be, and the Interim Surviving Entity will be, merged with and into FCB, and FCB will continue as the surviving entity (in such capacity, the “Surviving Entity”), and (iii) immediately following the Second Step Effective Time, CIT Bank, National Association, a wholly owned subsidiary of CIT, will merge with and into FCB, and FCB will continue as the surviving entity;

WHEREAS, as of the date hereof, each Stockholder is the record and beneficial owner of the number of shares of BancShares common stock set forth on Schedule A hereto (the “Shares”);

WHEREAS, as an inducement to CIT to enter into the Merger Agreement and incur the obligations therein, CIT has required that the Stockholders individually enter into this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

Section 1. Agreement to Vote; Restrictions on Transfers.

(a) Agreement to Vote the Shares. Each Stockholder hereby irrevocably and unconditionally agrees that from the date hereof until the termination of this Agreement (the “Expiration Time”), at any meeting (whether annual or special and each adjourned or postponed meeting) of BancShares’ stockholders, however called, such Stockholder will (i) appear at such meeting or otherwise cause all of the Shares to be counted as present thereat for purposes of calculating a quorum and (ii) vote or cause to be voted all of the Shares, (A) in favor of the approval of the issuance of the shares of BancShares capital stock pursuant to the Merger Agreement, (B) in favor of any proposals for the approval and adoption of the Merger Agreement or any other proposal submitted to the BancShares stockholders pursuant to or

 

B-1

necessary for the consummation of the transactions contemplated by the Merger Agreement, (C) against any Acquisition Proposal, without regard to any recommendation to the stockholders of BancShares by the Board of Directors of BancShares concerning such Acquisition Proposal, and without regard to the terms of such Acquisition Proposal, or other proposal made in opposition to or that is otherwise in competition or inconsistent with the transactions contemplated by the Merger Agreement, (D) against any agreement, amendment of any agreement or organizational document inconsistent with this Agreement or the Merger Agreement and (E) against any action, agreement, transaction or proposal that would reasonably be expected to result in a material breach of any representation, warranty, covenant, agreement or other obligation of BancShares under the Merger Agreement or that would reasonably be expected to prevent, impede or materially delay the consummation of the transactions contemplated by the Merger Agreement. In the event that, after the date hereof and prior to the termination of the Merger Agreement, a bona fide Acquisition Proposal (I) shall have been communicated to or otherwise made known to the Board of Directors or senior management of BancShares or (II) shall have been made directly to the stockholders of BancShares or any person shall have publicly announced (and not withdrawn at least two (2) business days prior to the BancShares Meeting) an Acquisition Proposal, in each case with respect to BancShares, and thereafter the Merger Agreement is terminated without the Requisite BancShares Vote having been obtained, then each Stockholder hereby irrevocably and unconditionally agrees that from the date hereof until the date that is six (6) months after the date of the termination of the Merger Agreement, at any meeting (whether annual or special and each adjourned or postponed meeting) of BancShares’ stockholders, however called, such Stockholder will vote or cause to be voted all Shares against any Acquisition Proposal (whether or not the same Acquisition Proposal as that referred to above), without regard to any recommendation to the stockholders of BancShares by the Board of Directors of BancShares concerning such Acquisition Proposal, and without regard to the terms of such Acquisition Proposal; provided, however, that with respect to clause (I) above, such obligation with respect to a Stockholder who is not on the Board of Directors or a member of senior management of BancShares shall be limited to such Stockholder’s actual knowledge of such Acquisition Proposal.

(b) Restrictions on Transfers. Each Stockholder hereby agrees that, from the date hereof until the Expiration Time, such Stockholder shall not, directly or indirectly, sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of any Shares, or enter into any agreement, arrangement or understanding to take any of the foregoing actions (each, a “Transfer”) other than any Transfer of Shares (i) as a bona fide gift or gifts, (ii) by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the family of the Stockholder or (iii) by operation of law, in each of (i)-(iii), so long as such transferee executes a joinder to this Agreement, in a form reasonably acceptable to CIT, pursuant to which such transferee agrees to become a party to this Agreement and be subject to the restrictions and obligations applicable to the Stockholder and otherwise become a party for all purposes of this Agreement to the extent relating to such transferred Shares. Any Transfer in violation of this Section 1(b) shall be null and void. Each Stockholder further agrees to authorize and request BancShares to notify BancShares’ transfer agent that there is a stop transfer order with respect to all of the Shares and that this Agreement places limits on the voting and Transfer of the Shares.

 

B-2

(c) Transfer of Voting Rights. Each Stockholder hereby agrees that such Stockholder shall not deposit any Shares in a voting trust, grant any proxy or power of attorney or enter into any voting agreement or similar agreement or arrangement in contravention of the obligations of the Stockholder under this Agreement with respect to any of the Shares owned by such Stockholder.

(d) Acquired Shares. Any shares or other voting securities of BancShares in which a Stockholder acquires sole voting power and sole power of disposition with respect to such shares (including, without limitation, by purchase, as a result of a stock dividend, stock split, recapitalization, combination, reclassification, exchange or change of such shares or upon exercise or conversion of any securities of BancShares, if any) after the date of this Agreement shall automatically become subject to the terms of this Agreement and shall become “Shares” for all purposes hereof.

(e) No Inconsistent Agreements. Each Stockholder hereby agrees that such Stockholder shall not enter into any agreement, contract or understanding with any person prior to the termination of this Agreement in accordance with its terms, directly or indirectly, to vote, grant a proxy or power of attorney or give instructions with respect to the voting of the Shares in any manner which is inconsistent with this Agreement.

Section 2. Non-Solicit. The Stockholders shall not, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate inquiries or proposals with respect to any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to any Acquisition Proposal (except to disclose the existence of the provisions of this Section), or (iv) recommend or endorse an Acquisition Proposal or publicly disclose your intention to do so. For the avoidance of doubt, nothing contained herein shall prohibit each Stockholder, in his or her capacity as a member of the Board of Directors of BancShares, from taking any action in such capacity to the extent such action is permitted by the Merger Agreement or consistent with his or her obligations or rights under the Merger Agreement as a member of the Board of Directors of BancShares.

Section 3. Representations and Warranties of the Stockholder.

(a) Representations and Warranties. Each Stockholder represents and warrants to CIT as follows:

(i) Power and Authority; Consents. Each Stockholder has the requisite capacity and authority to enter into and perform his or her obligations under this Agreement. No filing with, and no permit, authorization, consent or approval of, any Governmental Entity is necessary on the part of such Stockholder for the execution, delivery and performance of this Agreement by such Stockholder or the consummation by the Stockholder of the transactions contemplated hereby.

 

B-3

(ii) Due Authorization. This Agreement has been duly executed and delivered by each Stockholder and, assuming the due authorization, execution and delivery of this Agreement by CIT, this Agreement constitutes the valid and binding agreement of the Stockholder, enforceable against the Stockholder in accordance with its terms (except in all cases as such enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization or similar laws affecting the rights of creditors generally and the availability of equitable remedies).

(iii) Non-Contravention. The execution and delivery of this Agreement by such Stockholder does not, and the performance by such Stockholder of his or her obligations hereunder and the consummation by such Stockholder of the transactions contemplated hereby will not, violate or conflict with, or constitute a default under, any agreement, instrument, contract or other obligation or any order, arbitration award, judgment or decree to which the Stockholder is a party or by which the Stockholder or his or her property or assets is bound, or any statute, rule or regulation to which the Stockholder or his or her property or assets is subject. Such Stockholder has not appointed or granted a proxy or power of attorney to any person with respect to any Shares that remains in effect. Except for this Agreement, such Stockholder is not a party to any voting agreement, voting trust or any other contract with respect to the voting, transfer or ownership of any Shares.

(iv) Ownership of Shares. Except as disclosed in any BancShares Reports and except for restrictions in favor of CIT pursuant to this Agreement and transfer restrictions of general applicability as may be provided under the Securities Act and the “blue sky” laws of the various States of the United States, each Stockholder owns, beneficially and of record, all of the Shares free and clear of any proxy, voting restriction, adverse claim, or other Lien, and has voting power with respect to the Shares with no restrictions on the Stockholder’s rights of voting or disposition pertaining thereto. As of the date hereof, the number of the Shares is set forth on Schedule A hereto.

(v) Legal Actions. There is no action, suit, investigation, complaint or other proceeding pending against such Stockholder or, to the knowledge of the Stockholder, any other person or, to the knowledge of such Stockholder, threatened against such Stockholder or any other person that restricts or prohibits (or, if successful, would restrict or prohibit) the exercise by CIT of its rights under this Agreement or the performance by such Stockholder of its obligations under this Agreement.

(vi) Reliance. The Stockholder understands and acknowledges that CIT is entering into the Merger Agreement in reliance upon the Stockholder’s execution and delivery of this Agreement and the representations and warranties of the Stockholder contained herein.

Section 4. Termination. This Agreement will terminate upon the earlier of (a) the Effective Time and (b) the date of termination of the Merger Agreement in accordance with its terms (the “Expiration Time”); provided, however, that (a) the obligations of each Stockholder under the last sentence of Section 1(a) shall survive for six (6) months following the termination of the Merger Agreement, and (b) this Section 4 and Section 5 shall survive the Expiration Time indefinitely; provided, further that no such termination or expiration shall relieve any party hereto from any liability for any intentional breach of this Agreement occurring prior to such termination.

 

B-4

Section 5. Miscellaneous.

(a) Expenses. All expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement shall be paid by the party incurring such expenses.

(b) Notices. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally, telecopied or emailed (with confirmation), mailed by registered or certified mail (return receipt requested) or delivered by an express courier (with confirmation) to the parties at the following addresses (or at such other address for a party as shall be specified by like notice):

 

 

B-5

(c) Amendments, Waivers, Etc. This Agreement may not be amended, changed, supplemented, waived or otherwise modified or terminated except by an instrument in writing signed by each of the parties hereto.

(d) Successors and Assigns; Third Party Beneficiaries. Neither this Agreement nor any of the rights, interests or obligations contained herein shall be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other parties. Any purported assignment in contravention hereof shall be null and void. Subject to the preceding sentences, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and permitted assigns.

(e) No Partnership, Agency, or Joint Venture. This Agreement is intended to create, and creates, a contractual relationship and is not intended to create, and does not create, any agency, partnership, joint venture or any like relationship between the parties hereto.

(f) Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto relating to the subject matter hereof and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof.

(h) Severability. Whenever possible, each provision or portion of any provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision or portion of any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or portion of any provision in such jurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction such that the invalid, illegal or unenforceable provision or portion thereof shall be interpreted to be only so broad as is enforceable.

(i) Specific Performance. The parties hereto agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and, accordingly, that the parties shall be entitled to an injunction or injunctions to prevent breaches or threatened breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof, in addition to any other remedy to which they are entitled at law or in equity. Each of the parties hereby further waives (a) any defense in any action for specific performance that a remedy at law would be adequate and (b) any requirement under any law to post security or a bond as a prerequisite to obtaining equitable relief.

(j) Liability. The rights and obligations of each of the Stockholders under this Agreement shall be several and not joint. All references to actions to be taken by the Stockholders, or representations and warranties to be made, under this Agreement refer to actions to be taken or representations and warranties to be made by Stockholders acting severally and not jointly. Except for any liability for claims, losses, damages, liabilities or other obligations arising out of a Stockholder’s failure to perform its obligations hereunder, the parties agree that no Stockholder (in its capacity as a Stockholder of BancShares) will be liable for claims, losses, damages, liabilities or other obligations resulting from or relating to the Merger Agreement, including any breach by BancShares of the Merger Agreement, and that BancShares shall not be liable for claims, losses, damages, liabilities or other obligations resulting from or related to any Stockholder’s failure to perform its obligations hereunder.

 

B-6

(k) No Waiver. The failure of any party hereto to exercise any right, power or remedy provided under this Agreement or otherwise available in respect hereof at law or in equity, or to insist upon compliance by any other party hereto with its obligations hereunder, and any custom or practice of the parties at variance with the terms hereof, shall not constitute a waiver by such party of its right to exercise any such or other right, power or remedy or to demand such compliance.

(l) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to any applicable conflicts of law principles.

(m) Submission to Jurisdiction. Each party agrees that it will bring any action or proceeding in respect of any claim arising out of or related to this Agreement or the transactions contemplated hereby exclusively in the Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any federal or state court of competent jurisdiction located in the State of Delaware (the “Chosen Courts”), and, solely in connection with claims arising under this Agreement or the transactions that are the subject of this Agreement, (i) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (ii) waives any objection to laying venue in any such action or proceeding in the Chosen Courts, (iii) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any party and (iv) agrees that service of process upon such party in any such action or proceeding will be effective if notice is given in accordance with Section 5(b).

(n) Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE EXTENT PERMITTED BY LAW AT THE TIME OF INSTITUTION OF THE APPLICABLE LITIGATION, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT: (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 5(n).

 

B-7

(o) Drafting and Representation. The parties have participated jointly in negotiating and drafting this Agreement. In the event that an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement. When a reference is made in this Agreement to Articles, Sections or Schedules, such reference shall be to an Article or Section of or Schedule to this Agreement unless otherwise indicated. Headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The word “or” shall not be exclusive. References to “the date hereof” shall mean the date of this Agreement. This Agreement shall not be interpreted or construed to require any Person to take any action, or fail to take any action, if to do so would violate any applicable law. References to any statute or regulation refer to such statute or regulation as amended, modified, supplemented or replaced from time to time (and, in the case of statutes, include any rules and regulations promulgated under the statute) and references to any section of any statute or regulation include any successor to such section.

(p) Counterparts. This Agreement may be executed in counterparts (including by facsimile or other electronic means), all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart.

(q) Capacity as a Stockholder. This Agreement shall apply to each Stockholder solely in such Stockholder’s capacity as a stockholder of BancShares and shall not apply in any manner to such Stockholder or any family member of such Stockholder in any capacity as a director or officer of BancShares or its Subsidiaries or in any other capacity (and shall not limit or affect any actions taken by such Stockholder or any family member of such Stockholder in the capacity of director or officer of BancShares or its Subsidiaries, and no such action taken by such Stockholder or any family member of such Stockholder in the capacity of director or officer of BancShares or its Subsidiaries shall be deemed to constitute a breach of this Agreement).

(r) Beneficial Ownership. As used in this Agreement, the term “beneficial ownership” has the meaning ascribed to such term in Rule 13d-3 under the Exchange Act. The terms “beneficially own”, “beneficially owned” and “beneficial owner” each have a correlative meaning.

[Signature Pages Follow]

 

B-8

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed as of the date first written above.

 

[Signature Page to Voting Agreement]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed as of the date first written above.

 

[Signature Page to Voting Agreement]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed as of the date first written above.

 

[Signature Page to Voting Agreement]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed as of the date first written above.

 

[Signature Page to Voting Agreement]

SCHEDULE A

 

Stockholder		Class A Common Shares Beneficially Owned				Class B Common Shares Beneficially Owned				Total Voting Power of Shares Beneficially Owned				% of Total Voting Power
Frank B. Holding, Jr.			570,349				145,738				2,902,157				11.66	%
Hope Holding Bryant			498,505				102,405				2,136,985				8.58	%
Peter M. Bristow			90,891				26,448				514,059				2.06	%
Claire Holding Bristow			410,685				85,200				1,773.885				7.13	%
Total			1,570,430				359,791				7,327,086				29.43	%