AGREEMENT AND PLAN OF MERGER

Exhibit 2.1

AGREEMENT AND PLAN OF MERGER

dated as of

December 20, 2006

by and between

BB&T CORPORATION

and

COASTAL FINANCIAL CORPORATION

TABLE OF CONTENTS

 

 

i

 

ii

 

 

iii

This AGREEMENT AND PLAN OF MERGER , dated as of December 20, 2006 (this “Agreement” ), is by and between BB&T Corporation ( “BB&T” ), a North Carolina corporation, having its principal place of business in Winston-Salem, North Carolina, and Coastal Financial Corporation ( “CFC” ), a unitary thrift holding company incorporated in Delaware, having its principal place of business in Myrtle Beach, South Carolina.

RECITALS

A. The Proposed Transaction . The parties intend to effect a strategic business combination through the merger of CFC with and into BB&T (the “Parent Merger” ).

B. Board Determination . The respective boards of directors of BB&T and CFC have each determined that the Parent Merger and the other transactions contemplated hereby are consistent with, and will further, their respective business strategies and goals and are in the best interests of their respective shareholders and, therefore, have approved the Parent Merger, this Agreement and the plan of merger contained in this Agreement.

C. Employment Agreement . As an inducement to, and condition of, BB&T’s willingness to enter into this Agreement, as of the date hereof, Michael C. Gerald has entered into a seven-year employment/consulting agreement with BB&T or its specified Subsidiary.

D. Intended Tax Treatment . The parties intend the Parent Merger to be treated as a reorganization under Section 368(a) of the Internal Revenue Code of 1986, as amended, and the rules and regulations thereunder (the “Code” ), and intend for this Agreement to constitute a “plan of reorganization” within the meaning of the Code.

NOW, THEREFORE , in consideration of the foregoing premises and of the mutual covenants, representations, warranties and agreements contained herein, intending to be legally bound hereby, the parties agree as follows:

ARTICLE I

Certain Definitions

1.01 Certain Definitions . The following terms are used in this Agreement with the meanings set forth below:

“Acquisition Proposal” means any tender or exchange offer, proposal for a merger, consolidation or other business combination involving CFC or any of its Subsidiaries, or any proposal or offer to acquire in any manner a substantial equity interest in, or a substantial portion of the assets or deposits of, CFC or any of its Subsidiaries, other than the transactions contemplated by this Agreement.

“Agreement” means this Agreement, as amended or modified from time to time in accordance with Section 9.02.

“Agreement to Merge” has the meaning set forth in Section 2.02.

 

1

“Bank” means Coastal Federal Bank, a federal savings bank and a wholly-owned subsidiary of CFC.

“BB&T 401(k) Plan” has the meaning set forth in Section 6.13(b).

“BB&T Articles” means the Articles of Incorporation of BB&T, as amended.

“BB&T Bank” means Branch Banking and Trust Company, a banking corporation organized under the laws of North Carolina and a wholly-owned subsidiary of BB&T.

“BB&T Board” means the Board of Directors of BB&T.

“BB&T Bonus Plan” has the meaning set forth in Section 6.13(e).

“BB&T Bylaws” means the Bylaws of BB&T, as amended.

“BB&T Common Stock” means the common stock, $5.00 par value, of BB&T.

“BB&T Option Plan” has the meaning set forth in Section 3.06.

“BB&T Preferred Stock” means the preferred stock, par value $5.00 per share, of BB&T.

“BB&T SEC Documents” has the meaning set forth in Section 5.04(f)(i).

“Benefit Plan Determination Date” means the date or dates as determined by BB&T.

“BHC Act” means the Bank Holding Company Act of 1956, as amended.

“CFC” has the meaning set forth in the preamble to this Agreement.

“CFC Affiliate” has the meaning set forth in Section 6.07.

“CFC Board” means the Board of Directors of CFC.

“CFC Bonus Arrangements” has the meaning set forth in Section 6.13(e).

“CFC Bylaws” means the Bylaws of CFC, as amended.

“CFC Certificate” means the Certificate of Incorporation of CFC, as amended.

“CFC Common Stock” means the common stock, par value $.01 per share, of CFC.

“CFC Financial Statements” has the meaning set forth in Section 5.03(g).

“CFC Meeting” has the meaning set forth in Section 6.02.

“CFC Off Balance Sheet Transaction” has the meaning set forth in Section 5.03(u).

“CFC Preferred Stock” means the preferred stock, with no par value, of CFC.

 

2

“CFC Stock” means CFC Common Stock and CFC Preferred Stock.

“CFC Stock Option” has the meaning set forth in Section 3.06.

“CFC Stock Plans” means the option plans and agreements of CFC and its Subsidiaries pursuant to which rights to purchase CFC Common Stock are outstanding immediately prior to the Effective Time pursuant to (i) the Coastal Financial Corporation 1990 Stock Option and Incentive Plan, (ii) the Coastal Financial Corporation Directors Performance Plan, and (iii) the Coastal Financial Corporation 2000 Stock Option Plan.

“Closing” has the meaning set forth in Section 2.04.

“Code” has the meaning set forth in Recital D.

“Company-Owned Stock” shall mean shares of CFC Stock held by CFC or any of its Subsidiaries or by BB&T or any of its Subsidiaries, in each case other than in a fiduciary capacity or as a result of debts previously contracted in good faith.

“Compensation and Benefit Plans” has the meaning set forth in Section 5.03(m)(i).

“Consultants” has the meaning set forth in Section 5.03(m)(i).

“DGCL” means the Delaware General Corporation Law, as amended.

“Directors” has the meaning set forth in Section 5.03(m)(i).

“Disclosure Schedule” has the meaning set forth in Section 5.01.

“Effective Date” means the date on which the Effective Time occurs, as provided for in Section 2.04.

“Effective Time” means the time on the Effective Date as provided for in Section 2.03.

“Employees” has the meaning set forth in Section 5.03(m)(i). All references herein to “employees of CFC” or “CFC employees” shall be deemed to mean employees of CFC, Bank or any of their respective Subsidiaries or affiliates.

“ Employer Entity ” has the meaning set forth in Section 6.13(b).

“Employment/Consulting Agreement” has the meaning set forth in Section 6.13(a).

“Environmental Laws” means all applicable local, state and federal environmental, health and safety laws and regulations, including, without limitation, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Clean Water Act, the Federal Clean Air Act, and the Occupational Safety and Health Act, each as amended, the regulations promulgated thereunder, and their respective state counterparts.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

 

3

“ERISA Affiliate” has the meaning set forth in Section 5.03(m)(iii).

“ERISA Affiliate Plan” has the meaning set forth in Section 5.03(m)(iii).

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.

“Exchange Agent” has the meaning set forth in Section 3.04.

“FDIA” means the Federal Deposit Insurance Act, as amended, and the rules and regulations thereunder.

“FDIC” means the Federal Deposit Insurance Corporation.

“FRB” means the Federal Reserve Board.

“GAAP” means accounting principles generally accepted in the United States.

“Governmental Authority” means any court, administrative agency or commission or other federal, state or local governmental authority or instrumentality.

“Hazardous Material” means, collectively, (i) any “hazardous substance” as defined by CERCLA, (ii) any “hazardous waste” as defined by the Resource Conservation and Recovery Act, as amended through the date hereof, and (iii) other than common office supplies, any pollutant or contaminant or hazardous, dangerous or toxic chemical, material or substance within the meaning of any other applicable Federal, state or local law, regulation, ordinance or requirement (including consent decrees and administrative orders) relating to or imposing liability or standards of conduct concerning any hazardous, toxic or dangerous waste, substance or material, all as now in effect.

“HOLA” means the Home Owners’ Loan Act, as amended, and the rules and regulations thereunder.

“Indemnified Party” has the meaning set forth in Section 6.12(a).

“Information” has the meaning set forth in Section 6.22.

“IRS” has the meaning set forth in Section 5.03(m)(ii).

The term “knowledge” means, with respect to a party hereto, actual knowledge after reasonable investigation by any officer of that party with the title of not less than a senior vice president or that party’s in-house counsel, if any.

“Lien” means any charge, mortgage, pledge, security interest, restriction, claim, lien, or encumbrance of any kind.

“Material Adverse Effect” means, with respect to CFC or BB&T, any effect that (i) is material and adverse to the financial position, results of operations or business of CFC and its Subsidiaries taken as a whole, or BB&T and its Subsidiaries taken as a whole, respectively, or

 

4

(ii) would materially impair the ability of either CFC or BB&T to perform its obligations under this Agreement or otherwise materially threaten or materially impede the consummation of the Merger and the other transactions contemplated by this Agreement; provided, however , that Material Adverse Effect shall not be deemed to include the impact of (a) changes in banking and similar laws of general applicability or interpretations thereof by courts or governmental authorities, (b) any modifications or changes to valuation policies and practices in connection with the Merger or restructuring charges taken in connection with the Merger, in each case in accordance with GAAP, (c) changes resulting from expenses (such as legal, accounting and investment bankers’ fees) incurred in connection with this Agreement or the transactions contemplated herein, (d) actions or omissions of a party which have been waived in accordance with Section 9.02 hereof, (e) any modifications or changes made by CFC to its general business practices or policies as may be required by BB&T so as to be consistent with the practices or policies of BB&T, (f) changes in prevailing interest rates or in other general economic or market conditions, or (g) changes in global or national political conditions (including the outbreak of war or acts of terrorism) or due to natural disasters.

“Material Contracts” has the meaning set forth in Section 5.03(k).

“Merger” collectively refers to the Parent Merger and the Subsidiary Merger, as set forth in Section 2.01 and Section 2.02, respectively.

“Merger Consideration” has the meaning set forth in Section 3.01.

“NASD” means The National Association of Securities Dealers.

“NASDAQ” means the NASDAQ Stock Market, Inc.

“NCBCA” shall mean the North Carolina Business Corporation Act, as amended.

“New Certificates” has the meaning set forth in Section 3.04.

“NYSE” shall mean the New York Stock Exchange, Inc.

“Old Certificates” has the meaning set forth in Section 3.04.

“OTS” means the Office of Thrift Supervision.

“Parent Merger” has the meaning set forth in Recital A.

“PBGC” means the Pension Benefit Guaranty Corporation.

“Pension Plan” has the meaning set forth in Section 5.03(m)(ii).

“Person” has the meaning set forth in Section 5.03(k)(D).

“Previously Disclosed” by a party shall mean information set forth in its Disclosure Schedule. Disclosure of any information, agreement, or other item in a party’s Disclosure Schedule referenced by a particular Section in this Agreement shall, should the existence of such

 

5

information, agreement, or other item or its contents be relevant to any other Section, be deemed to be disclosed with respect to that Section only if such information is explicitly discussed in that Section of the Disclosure Schedule or is specifically incorporated by reference to another Section of the Disclosure Schedule where such information is explicitly discussed.

“Proxy/Prospectus” has the meaning set forth in Section 6.03(a).

“Proxy Statement” has the meaning set forth in Section 6.03(a).

“Registration Statement” has the meaning set forth in Section 6.03(a).

“Regulatory Authority” shall mean any federal or state governmental agency or authority charged with the supervision or regulation of financial institutions and their subsidiaries (including their holding companies) or issuers of securities (including, without limitation, the North Carolina State Banking Commission, the FRB, the FDIC, the OTS and the SEC).

“Rights” means, with respect to any Person, securities or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, or any options, calls or commitments relating to, or any stock appreciation right or other instrument the value of which is determined in whole or in part by reference to the market price or value of, shares of capital stock of such Person.

“Sarbanes-Oxley Act” means the Sarbanes-Oxley Act of 2002 and the rules and regulations thereunder.

“SEC” means the Securities and Exchange Commission.

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations thereunder.

“Stock Exchange Ratio” has the meaning set forth in Section 3.01.

“Subsidiary”, “Subsidiaries” and “Significant Subsidiary” have the meanings ascribed to them in Rule 1-02 of Regulation S-X of the SEC.

“Subsidiary Merger” has the meaning set forth in Section 2.02.

“Surviving Corporation” has the meaning set forth in Section 2.01.

“ Takeover Laws ” has the meaning set forth in Section 5.03(o).

“Takeover Provisions” has the meaning set forth in Section 5.03(o).

“Tax” and “Taxes” means all federal, state, local or foreign taxes, charges, fees, levies or other assessments, however denominated, including, without limitation, all net income, gross income, gains, gross receipts, sales, use, ad valorem, goods and services, capital, production, transfer, franchise, windfall profits, license, withholding, payroll, employment, disability, employer health, excise, estimated, severance, stamp, occupation, property, environmental,

 

6

unemployment or other taxes, custom duties, fees, assessments or charges of any kind whatsoever, together with any interest and any penalties, additions to tax or additional amounts imposed by any taxing authority whether arising before, on or after the Effective Date.

“Tax Returns” means any return, amended return or other report (including elections, declarations, disclosures, schedules, estimates and information returns) required to be filed with respect to any Tax.

“Transferred Employee” has the meaning set forth in Section 6.13(b).

ARTICLE II

The Merger

2.01 The Parent Merger. At the Effective Time, (i) CFC shall be merged with and into BB&T, and (ii) the separate corporate existence of CFC shall cease and BB&T shall survive and continue to exist as a North Carolina corporation (BB&T, as the surviving corporation in the Parent Merger, sometimes being referred to herein as the “Surviving Corporation” ). The BB&T Articles, as in effect immediately prior to the Effective Time, shall be the Articles of Incorporation of the Surviving Corporation, and the BB&T Bylaws, as in effect immediately prior to the Effective Time, shall be the Bylaws of the Surviving Corporation. BB&T may at any time prior to the Effective Time change the method of effecting the Merger (including, without limitation, the provisions of this Article II other than this sentence) if and to the extent it deems such change to be necessary, appropriate or desirable; provided, however , that no such change shall (i) alter or change the amount or kind of consideration to be issued to holders of CFC Stock as provided for in Article III of this Agreement (subject to adjustment as provided in Section 3.05), (ii) adversely affect the tax treatment of CFC’s shareholders as a result of receiving the Merger Consideration, or (iii) materially impede or delay consummation of the transactions contemplated by this Agreement.

2.02 The Subsidiary Merger. At the time specified by BB&T Bank in its Articles of Merger filed with the North Carolina Secretary of State (which shall not be earlier than the Effective Time), Bank shall merge with and into BB&T Bank (the “ Subsidiary Merger ”) pursuant to an agreement to merge (the “ Agreement to Merge ”) to be executed by Bank and BB&T Bank and filed with the North Carolina Secretary of State and the OTS, as required. Upon consummation of the Subsidiary Merger, the separate corporate existence of Bank shall cease and BB&T Bank shall survive and continue to exist as a North Carolina state banking corporation and BB&T Bank shall surrender the Bank’s Charter to the OTS as required by Section 552.13(k) of the rules and regulations of the OTS. (The Parent Merger and the Subsidiary Merger shall sometimes collectively be referred to herein as the “ Merger” .)

2.03 Effectiveness of the Parent Merger. Subject to the satisfaction or waiver of the conditions set forth in Article VII, the Parent Merger shall become effective upon the occurrence of the filing of articles of merger with the North Carolina Secretary of State in accordance with Section 55-11-05 of the NCBCA and the filing of the certificate of merger with the Delaware Secretary of State in accordance with Section 252 of the DGCL, or such later date and time as may be set forth in such filings (the time the Merger becomes effective on the Effective Date being referred to as the “Effective Time”).

 

7

2.04 Effective Date and Effective Time . Subject to the satisfaction or waiver of the conditions set forth in Article VII, the closing of the Merger (the “Closing” ) will take place in the offices of the BB&T Legal Department at 200 West Second Street, Third Floor, Winston-Salem, North Carolina, at 11:00 a.m. on (i) the date designated by BB&T that is within thirty (30) days following the satisfaction or waiver of the conditions set forth in Article VII, other than those conditions that by their nature are to be satisfied at the Closing (the “Effective Date” ); provided, however, that no such designation shall cause the Effective Date to fall after the date specified in Section 8.01(c) hereof or after the date or dates on which any Regulatory Authority approval or any extension thereof expires, or (ii) such other date to which the parties may agree in writing.

ARTICLE III

Consideration; Exchange Procedures

3.01 Merger Consideration . Subject to the provisions of this Agreement, at the Effective Time, automatically by virtue of the Parent Merger and without any action on the part of any Person, each share of CFC Common Stock (excluding Company-Owned Stock) issued and outstanding immediately prior to the Effective Time shall be converted into shares of BB&T Common Stock based upon a fixed exchange ratio (the “Stock Exchange Ratio” ) of .385 of a share of BB&T Common Stock for each share of CFC Common Stock (subject to adjustment as set forth in Section 3.05) (the “Merger Consideration” ).

(a) Company-Owned Stock . Each share of CFC Common Stock held as Company-Owned Stock immediately prior to the Effective Time shall be canceled and retired at the Effective Time and no consideration shall be issued in exchange therefor.

(b) Outstanding BB&T Common Stock . Each share of BB&T Common Stock issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding and unaffected by the Merger.

3.02 Rights as Shareholders; Stock Transfers . At the Effective Time, holders of CFC Common Stock shall cease to be, and shall have no rights as, shareholders of CFC, other than to receive any dividend or other distribution with respect to such CFC Common Stock with a record date occurring prior to the Effective Time, and the consideration provided under this Article III, and each certificate previously representing any such shares of CFC Common Stock shall thereafter represent only the right to receive without interest (i) the number of whole shares of BB&T Common Stock and (ii) cash in lieu of fractional shares into which the shares of CFC Common Stock represented by such certificate have been converted pursuant to this Article III. After the Effective Time, there shall be no transfers on the stock transfer books of CFC or the Surviving Corporation of any shares of CFC Stock.

3.03 Fractional Shares . Notwithstanding any other provision hereof, no fractional shares of BB&T Common Stock and no certificates or scrip therefor, or other evidence of ownership thereof, will be issued in the Merger. Instead, BB&T shall pay to each holder of CFC Common Stock who would otherwise be entitled to a fractional share of BB&T Common Stock

 

8

(after taking into account all Old Certificates (as defined below) delivered by such holder) an amount in cash (without interest) determined by multiplying such fractional share of BB&T Common Stock to which the holder would be entitled by the average of the last sale price of BB&T Common Stock as of the market close (as reported on NYSEnet.com or, if not reported thereon, in another authoritative source) for the five (5) trading days immediately preceding the Effective Date.

3.04 Exchange Procedures . (a) At or after the Effective Time, BB&T shall cause BB&T Bank (in such capacity, the “Exchange Agent” ), for the benefit of the holders of certificates formerly representing shares of CFC Common Stock ( “Old Certificates” ), to exchange for outstanding shares of CFC Common Stock in accordance with this Article III, certificates representing shares of BB&T Common Stock ( “New Certificates” ) and an amount of cash for any fractional shares in accordance with Section 3.03 (together with any dividends or distributions with a record date occurring on or after the Effective Date with respect thereto without any interest on any such cash, dividends or distributions).

(b) As promptly as practicable after the Effective Date, upon the shareholder’s delivery to the Exchange Agent of Old Certificates owned by such shareholder representing shares of CFC Common Stock (or an indemnity affidavit reasonably satisfactory to BB&T and the Exchange Agent, if any, if such certificates are lost, stolen or destroyed), BB&T shall cause New Certificates into which such shares of CFC Common Stock are converted on the Effective Date to be delivered to such shareholder and/or any check in respect of cash to be paid as part of the Merger Consideration (and in respect of any fractional share interests, dividends or distributions that such shareholder shall be entitled to receive). No interest will be paid on any such cash to be paid in lieu of fractional share interests or in respect of dividends or distributions that any such shareholder shall be entitled to receive pursuant to this Article III.

(c) Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to any former holder of CFC Common Stock for any amount properly delivered to a public official pursuant to applicable abandoned property, escheat or similar laws.

(d) No dividends or other distributions with respect to BB&T Common Stock with a record date occurring on or after the Effective Date shall be paid to the record holder of any unsurrendered Old Certificate representing shares of CFC Common Stock converted in the Merger into the right to receive shares of such BB&T Common Stock until the holder thereof has delivered properly endorsed Old Certificates in exchange therefor in accordance with the procedures set forth in this Section 3.04. After becoming so entitled in accordance with this Section 3.04, the record holder thereof also shall be entitled to receive any such dividends or other distributions, without any interest thereon, which theretofor had become payable with respect to shares of BB&T Common Stock on or after the Effective Date, and which such holder had the right to receive upon surrender of the Old Certificates.

3.05 Anti-Dilution Provisions . In the event BB&T changes the number of shares of BB&T Common Stock issued and outstanding between the date hereof and the Effective Date as a result of a stock split, stock dividend, recapitalization, reclassification, split up, combination, exchange of shares, readjustment or similar transaction and the record date therefor shall be prior to the Effective Date, the Stock Exchange Ratio shall be proportionately adjusted.

 

9

3.06 Options . (a) On the Effective Date, whether or not then exercisable, each outstanding option to purchase shares of CFC Common Stock under the CFC Stock Plans (each, a “CFC Stock Option” ) shall be converted into and become rights with respect to BB&T Common Stock, and BB&T shall assume each CFC Stock Option in accordance with the terms of the CFC Stock Plans, except that from and after the Effective Time (i) BB&T and its Compensation Committee shall be substituted for CFC and the relevant committee of CFC’s Board of Directors for purposes of administering the CFC Stock Plans, (ii) each CFC Stock Option assumed by BB&T may be exercised solely for shares of BB&T Common Stock, (iii) the number of shares of BB&T Common Stock subject to each such CFC Stock Option shall be the number of whole shares of BB&T Common Stock (omitting any fractional share) determined by multiplying the number of shares of CFC Common Stock subject to such CFC Stock Option immediately prior to the Effective Time by the Stock Exchange Ratio, and (iv) the per share exercise price under each such CFC Stock Option shall be adjusted by dividing the per share exercise price under each such CFC Stock Option by the Stock Exchange Ratio and rounding up to the nearest cent. Notwithstanding the foregoing, BB&T may, at its election, substitute as of the Effective Time options under the BB&T Corporation 2004 Stock Incentive Plan or any other duly adopted comparable plan (in either case, the “ BB&T Option Plan ”) for all or a part of the CFC Stock Options, subject to the following conditions: (A) the requirements of (iii) and (iv) above shall be met; (B) such substitution shall not constitute a modification, extension or renewal of any of the CFC Stock Options; and (C) the substituted options shall continue in effect on the same terms and conditions as provided in the CFC Stock Option Agreements and the CFC Stock Plans governing each CFC Stock Option. BB&T shall cause each grant of a converted or substitute option to any individual who subsequent to the Merger will be a director or an officer of BB&T as construed under Rule 16b-3 of the Exchange Act shall, as a condition to such conversion or substitution, to be approved in accordance with the provisions of Rule 16b-3. Each CFC Stock Option that is an incentive stock option shall be adjusted as required by Section 424 of the Code so as to continue as an incentive stock option under Section 424(a) of the Code, and so as not to constitute a modification, extension or renewal of the option within the meaning of Section 424(h) of the Code. Each CFC Stock Option that is intended to be exempt from the application of Code Section 409A and related regulations or other guidance shall be subject to adjustment as necessary in order to comply with Prop. Reg. Section 1.409A-1(b)(5)(v)(D), or any successor provisions thereto. BB&T and CFC agree to take all necessary steps to effectuate the foregoing provisions of this Section 3.06. BB&T has reserved and shall continue to reserve adequate shares of BB&T Common Stock for delivery upon exercise of any converted or substitute options. Within five (5) business days after the Effective Date, if it has not already done so, BB&T shall file a registration statement on Form S-3 or Form S-8 (or any successor or other appropriate form), as the case may be, with respect to the shares of BB&T Common Stock subject to converted or substitute options and shall use its reasonable efforts to maintain the effectiveness of such registration statement (and maintain the current status of the prospectus or prospectuses contained therein) for so long as such converted or substitute options remain outstanding. With respect to those individuals, if any, who subsequent to the Merger may be subject to the reporting requirements under Section 16(a) of the Exchange Act, BB&T shall administer the CFC Stock Plans assumed pursuant to this Section 3.06 (or the BB&T Option Plan, if applicable) in a manner that complies with Rule 16b-3 promulgated under the Exchange Act to the extent necessary to preserve for such individuals the benefits of Rule 16b-3 to the extent such benefits were available to them prior to the Effective Time. CFC hereby represents that the CFC Stock Plans in their current forms comply with Rule 16b-3 to the extent, if any, required as of the date hereof.

 

10

(b) As soon as practicable following the Effective Time, BB&T shall deliver to the participants receiving converted options under the BB&T Option Plan an appropriate written notice setting forth each participant’s rights pursuant thereto.

(c) Eligibility to receive stock option grants following the Effective Time with respect to BB&T Common Stock shall be determined by BB&T in accordance with its plans and procedures as in effect from time to time, and subject to any contractual obligations.

ARTICLE IV

Actions Pending Acquisition

4.01 Forbearances of CFC . From the date hereof until the Effective Time, except as expressly contemplated by this Agreement and/or disclosed on the Disclosure Schedule, without the prior written consent of BB&T, CFC will not, and will cause each of its Subsidiaries not to:

(a) Ordinary Course . (i) Conduct the business of CFC and its Subsidiaries other than in the ordinary and usual course or fail to use reasonable efforts to preserve intact their business organizations and assets and maintain their rights, franchises and existing relations with customers, suppliers, employees and business associates, or voluntarily take any action which, at the time taken, has or is reasonably likely to have a material adverse affect upon CFC’s ability to perform any of its material obligations under this Agreement, or (ii) enter into any new line of business or change its lending, investment, underwriting, risk, asset liability management or other banking and operating policies, except as required by applicable law, regulation, policy or directive imposed by any Governmental or Regulatory Authority.

(b) Capital Stock . Other than pursuant to Rights as Previously Disclosed and outstanding on the date hereof, (i) issue, sell or otherwise permit to become outstanding, or authorize the creation of, any additional shares of CFC Stock or any Rights, (ii) enter into any agreement with respect to the foregoing, (iii) permit any additional shares of CFC Stock to become subject to new grants of employee or director stock options, other Rights or similar stock-based employee rights, or (iv) directly or indirectly adjust, split, combine, redeem, reclassify, purchase or otherwise acquire, any shares of its capital stock.

(c) Dividends, Etc. Make, declare, pay or set aside for payment any dividend, other than (A) quarterly cash dividends on CFC Stock in an amount not to exceed the per share amount declared and paid in its most recent regular quarterly cash dividend, with record and payment dates as indicated in Section 6.15 hereof, (B) dividends from Subsidiaries to CFC, and (C) dividends from Coastal Real Estate Investment Corporation to holders of its outstanding shares of preferred stock.

(d) Compensation; Employment Agreements; Etc. Enter into or amend or renew any employment, consulting, severance or similar agreements or arrangements with any director, officer or employee of CFC or its Subsidiaries (other than the Employment/Consulting Agreement and the Employment Agreements described in Section 6.13), or grant any salary or

 

11

wage increase or increase any employee benefit (including incentive or bonus payments), except (i) for normal individual increases in compensation (including bonuses) to employees in the ordinary course of business consistent with past practice, (ii) for bonuses disclosed in the Disclosure Schedule, (iii) for other changes that are required by applicable law, and (iv) to satisfy Previously Disclosed contractual obligations existing as of the date hereof, provided that the Coastal Financial Corporation 2007 Equity Incentive Plan shall not be deemed to be Previously Disclosed for purposes of this Section 4.01(d)(iv).

(e) Benefit Plans . Enter into, establish, adopt or amend (except (i) as may be required by applicable law, (ii) to satisfy Previously Disclosed contractual obligations existing as of the date hereof or (iii) the regular annual renewal of insurance contracts) any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract, plan or arrangement, or any trust agreement (or similar arrangement) related thereto, in respect of any director, officer or employee of CFC or its Subsidiaries, or take any action to accelerate the vesting or exercisability of stock options, restricted stock or other compensation or benefits payable thereunder.

(f) Dispositions . Sell, transfer, mortgage, encumber or otherwise dispose of or discontinue any of its assets, deposits, business or properties except in the ordinary course of business.

(g) Acquisitions . Acquire (other than by way of foreclosures or acquisitions of control in a bona fide fiduciary capacity or in satisfaction of debts previously contracted in good faith, in each case in the ordinary and usual course of business consistent with past practice) all or any portion of, the assets, business, deposits or properties of any other entity.

(h) Governing Documents . Amend the CFC Certificate, CFC Bylaws (or similar governing documents) or the Articles of Incorporation or Bylaws (or similar governing documents) of any of CFC’s Subsidiaries.

(i) Accounting Methods . Implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP, or by BB&T but only after the satisfaction of the conditions set forth in Sections 7.01(a) and (b) and in no event earlier than five (5) business days before the Effective Date.

(j) Contracts . Except in the ordinary course of business consistent with past practice, enter into or terminate any contract or amend or modify in any material respect any of its existing contracts.

(k) Claims . Except in the ordinary course of business consistent with past practice, settle any claim, action or proceeding, except for any claim, action or proceeding that does not create precedent for any other claim, action or proceeding and that involves solely money damages in an amount, individually or in the aggregate, for all such settlements, that is not material to CFC and its Subsidiaries taken as a whole.

(l) Adverse Actions . (i) Take any action while knowing that such action would, or is reasonably likely to, prevent or impede the Merger from qualifying as a

 

12

reorganization within the meaning of Section 368(a) of the Code; or (ii) knowingly take any action that is intended or is reasonably likely to result in (A) any of its representations and warranties set forth in this Agreement being or becoming untrue, subject to Section 5.02, at any time at or prior to the Effective Time, (B) any of the conditions to the Merger set forth in Article VII not being satisfied, or (C) a material violation of any provision of this Agreement except, in each case, as may be required by applicable law or regulation.

(m) Risk Management . Except pursuant to applicable law or regulation, (i) implement or adopt any material change in its interest rate risk management and other risk management policies, procedures or practices; (ii) fail to follow its existing policies or practices with respect to managing its exposure to interest rate and other risk; or (iii) fail to use commercially reasonable means to avoid any material increase in its aggregate exposure to interest rate risk and other risk.

(n) Indebtedness . Incur any indebtedness for borrowed money other than in the ordinary course of business consistent with past practice.

(o) Capital Expenditures . Make any capital expenditure or commitments with respect thereto in an amount in excess of $50,000 for any item or project, or $250,000 in the aggregate for any related items or projects, except as have been previously committed to prior to the date hereof.

(p) New Offices, Office Closures, Etc . Close or relocate any offices at which business is conducted or open any new offices or ATMs, except as Previously Disclosed.

(q) Taxes . (1) Fail to prepare and file or cause to be prepared and filed in a manner consistent with past practice all Tax Returns (whether separate or consolidated, combined, group or unitary Tax Returns that include CFC or any of its Subsidiaries) that are required to be filed (with extensions) on or before the Effective Date; provided, however, that BB&T shall have a reasonable opportunity, beginning at least fifteen (15) days prior to the due date thereof, to review and comment on the form and substance of any Tax Returns relating to the U.S. Federal income tax, or Delaware State franchise tax, (2) make, change or revoke any material election in respect of Taxes, enter into any material closing agreement, settle any material claim or assessment in respect of Taxes or offer or agree to do any of the foregoing or surrender its rights to do any of the foregoing or to claim any refund in respect of Taxes, (3) file an amended Tax Return, or (4) fail to maintain the books, accounts and records of CFC or any of its Subsidiaries in accordance with past custom and practice, including without limitation, making the proper accruals for Taxes, bonuses, vacation and other liabilities and expenses.

(r) Commitments . Agree or commit to do any of the foregoing.

4.02 Forbearances of BB&T . From the date hereof until the Effective Time, except as expressly contemplated by this Agreement, without the prior written consent of CFC, BB&T will not, and will cause each of its Subsidiaries not to:

(a) Adverse Actions . (i) Agree, commit or take any action while knowing that such action would, or is reasonably likely to, prevent or impede the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code; or (ii) knowingly take any

 

13

action that is intended or is reasonably likely to result in (A) any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect at any time at or prior to the Effective Time, (B) any of the conditions to the Merger set forth in Article VII not being satisfied, (C) a material violation of any provision of this Agreement except, in each case, as may be required by applicable law or regulation, or (D) a substantial delay in the consummation of the Parent Merger.

ARTICLE V

Representations and Warranties

5.01 Disclosure Schedules . On or prior to the date hereof, BB&T has delivered to CFC a schedule and CFC has delivered to BB&T a schedule (each respectively, its “Disclosure Schedule” ) setting forth, among other things, items, the disclosure of which are necessary or appropriate either in response to an express disclosure requirement contained in a provision hereof or as an exception to one or more representations or warranties contained in Section 5.03 or 5.04 or to one or more of its respective covenants contained in Article IV and Article VI; provided, however, the mere inclusion of an item in a Disclosure Schedule as an exception to a representation or warranty shall not be deemed an admission by a party that such item represents a material exception, fact, event or circumstance, or that such item is reasonably likely to have, or result in, a Material Adverse Effect on the party making the representation or warranty.

5.02 Standard . No representation or warranty of CFC or BB&T contained in Section 5.03 or 5.04 (other than representations and warranties contained in Section 5.03(b), which shall be true in all respects except for de minimus variations) shall be deemed untrue or incorrect, and no party hereto shall be deemed to have breached a representation or warranty, as a consequence of the existence of any fact, event or circumstance unless such fact, circumstance or event, individually or taken together with all other facts, events or circumstances inconsistent with any representation or warranty contained in Section 5.03 or 5.04 has had, or is reasonably likely to have, a Material Adverse Effect with respect to CFC or BB&T, as the case may be.

5.03 Representations and Warranties of CFC . Subject to Sections 5.01 and 5.02 and except as Previously Disclosed in a paragraph of its Disclosure Schedule corresponding to the relevant paragraph below, CFC hereby represents and warrants to BB&T:

(a) Organization, Standing and Authority . CFC is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and any foreign jurisdictions where its ownership or leasing of property or assets or the conduct of its business requires it to be so qualified. CFC is registered as a savings and loan holding company under the HOLA. Bank is a federally chartered savings bank and is organized, validly existing under the HOLA and in good standing under the laws of any jurisdiction where its ownership or leasing of property or assets or the conduct of its business requires it to be so qualified.

(b) Capital Structure of CFC . The authorized capital stock of CFC consists of (A) 50,000,000 shares of CFC Common Stock, of which 21,701,967 shares were outstanding as of November 30, 2006, and (B) 1,000,000 shares of CFC Preferred Stock, of which no shares were outstanding as of November 30, 2006. The outstanding shares of CFC Common Stock have been duly authorized, are validly issued and outstanding, fully paid and nonassessable, and

 

14

are not subject to any preemptive rights (and were not issued in violation of any preemptive rights). As of November 30, 2006, (i) there were no shares of CFC Common Stock authorized and reserved for issuance, (ii) CFC did not have any Rights issued or outstanding with respect to CFC Common Stock, and (iii) CFC did not have any commitment to authorize, issue or sell any CFC Common Stock or Rights, except pursuant to the CFC Stock Plans. 239,217 shares of CFC Common Stock were issuable and reserved for issuance upon exercise of CFC Stock Options as of November 30, 2006, and 2,755,258 shares of CFC Common Stock subject to such CFC Stock Options were issued and outstanding as of November 30, 2006.

(c) Subsidiaries .

(i)(A) CFC has Previously Disclosed a list of all of its Subsidiaries, together with the jurisdiction of organization of each such Subsidiary, (B) CFC owns, directly or indirectly, all the issued and outstanding equity securities of each of its Subsidiaries, except as Previously Disclosed, (C) no equity securities of any of CFC’s Subsidiaries are or may become required to be issued (other than to it or its wholly-owned Subsidiaries) by reason of any Rights or otherwise, (D) there are no contracts, commitments, understandings or arrangements by which any of such Subsidiaries is or may be bound to sell or otherwise transfer any equity securities of any such Subsidiaries (other than to it or its wholly-owned Subsidiaries), (E) there are no contracts, commitments, understandings, or arrangements relating to its rights to vote or to dispose of such securities and (F) all the equity securities of each Subsidiary held by CFC or its Subsidiaries are fully paid and nonassessable and are owned by CFC or its Subsidiaries free and clear of any Liens.

(ii) CFC does not own beneficially, directly or indirectly, any equity securities or similar interests of any Person, or any interest in a partnership or joint venture of any kind, other than its Subsidiaries, or except as Previously Disclosed.

(iii) Each of CFC’s Subsidiaries has been organized and is validly existing in good standing under the laws of the jurisdiction of its organization, and is qualified to do business and is in good standing in the jurisdictions where its ownership or leasing of property or the conduct of its business requires it to be so qualified.

(iv) Each Subsidiary of CFC that is a “Federal savings association” (as defined in the HOLA) is an “insured depository institution” as defined in the FDIA.

(d) Corporate Power; Authorized and Effective Agreement . Each of CFC and its Subsidiaries has full corporate power and authority to carry on its business as it is now being conducted and to own all its properties and assets. CFC has the corporate power and authority to execute, deliver and perform its obligations under this Agreement, including the execution and filing of the certificate of merger with the Delaware Secretary of State. Bank has the corporate power and authority to consummate the Subsidiary Merger and to execute, deliver and perform its obligations under the Agreement to Merge in accordance with the terms of this Agreement.

(e) Corporate Authority . Subject to receipt of the requisite adoption of this Agreement by the holders of a majority of the outstanding shares of CFC Common Stock entitled

 

15

to vote thereon (which is the only shareholder vote required), this Agreement and the transactions contemplated hereby have been authorized by all necessary corporate action of CFC and the CFC Board prior to the date hereof. This Agreement is a valid and legally binding obligation of CFC, enforceable in accordance with its terms (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles).

(f) Regulatory Filings; No Defaults .

(i) No consents or approvals of, or filings or registrations with, any Governmental Authority or with any third party are required to be made or obtained by CFC or any of its Subsidiaries in connection with the execution, delivery or performance by CFC of this Agreement or to consummate the Merger except for (A) filings of applications, notices and the Agreement to Merge, as applicable, with federal and state banking authorities, (B) filings with state securities authorities, (C) the filings of the articles of merger with the North Carolina Secretary of State pursuant to the NCBCA and the certificate of merger with the Delaware Secretary of State pursuant to the DGCL, and (D) consents or approvals Previously Disclosed. As of the date hereof, CFC is not aware of any reason why the approvals set forth in Section 7.01(b) will not be received without the imposition of a condition, restriction or requirement of the type described in Section 7.01(b).

(ii) Subject to receipt of the regulatory and shareholder approvals referred to above and the expiration of certain regulatory waiting periods, and required filings under federal and state securities laws, the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby do not and will not (A) constitute a breach or violation of, or a default under, or give rise to any Lien, any acceleration of remedies or any right of termination under, any law, rule or regulation or any judgment, decree, order, governmental permit or license, or agreement, indenture or instrument of CFC or of any of its Subsidiaries or to which CFC or any of its Subsidiaries or properties is subject or bound, (B) constitute a breach or violation of, or a default under, the CFC Certificate or the CFC Bylaws, or (C) require any consent or approval under any such law, rule, regulation, judgment, decree, order, governmental permit or license, agreement, indenture or instrument, except as Previously Disclosed.

(g) Financial Statements .

(i) CFC has previously delivered to BB&T true and complete copies of (A) its balance sheets as of September 30, 2004, 2005 and 2006 and the related statements of operations, stockholders’ equity and cash flows for the fiscal years then ended, including the footnotes thereto, if any, additional or supplemental information supplied therewith and the report prepared in connection therewith by the independent registered public accountants auditing such financial statements; and (B) its interim monthly financial reports and financial statements for the period beginning after September 30, 2006 and ending on October 31, 2006 (as to each, the “ Last Report

 

16

Date” ). The documents described in clauses (A) and (B) above (collectively, the “CFC Financial Statements” ):

 

1)

are in accordance with the books and records of CFC;

 

2)

present fairly and accurately the assets, liabilities, revenues, expenses and financial condition of CFC as of the dates thereof, and the results of operations for the periods then ended;

 

3)

were prepared on a consistent basis throughout the periods involved, except as may be noted therein, and subject to normal year-end adjustments; and

 

4)

have been prepared in accordance with GAAP.

(ii) Neither CFC nor any of its Subsidiaries has any material liability of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether due or to become due), except for those liabilities that are reflected or reserved against on the consolidated balance sheet of CFC included in its annual report on Form 10-K for the fiscal year ended September 30, 2006 (including any notes thereto) and for liabilities incurred in the ordinary course of business consistent with past practice since September 30, 2004 or in connection with this Agreement and the transactions contemplated hereby.

(iii) The records, systems, controls, data and information of CFC and its Subsidiaries are recorded, stored, maintained and operated under means (including any electronic, mechanical or photographic process, whether computerized or not) that are under the exclusive ownership and direct control of CFC or its Subsidiaries or accountants (including all means of access thereto and therefrom), except for any non-exclusive ownership and non-direct control that would not reasonably be expected to have a Material Adverse Effect on the system of internal accounting controls described below in this Section 5.03(g)(iii). CFC (A) has implemented and maintains disclosure controls and procedures (as defined in Rule 13a-15 promulgated under the Exchange Act) to ensure that material information relating to CFC, including its consolidated Subsidiaries, is made known to the chief executive officer and the chief financial officer of CFC by others within those entities, and (B) has disclosed, based on its most recent evaluation prior to the date hereof, to CFC’s outside auditors and the audit committee of the CFC Board (y) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting (as defined in Rule 13a-15 promulgated under the Exchange Act) that are reasonably likely to adversely affect CFC’s ability to record, process, summarize and report financial information and (z) any fraud, whether or not material, that involves management or other employees who have a significant role in CFC’s internal control over financial reporting. These disclosures were made in writing by management to CFC’s auditors and to its audit committee and a copy has previously been made available to BB&T. As of the date hereof, there is no reason to

 

17

believe that CFC’s outside auditors and its Chief Executive Officer and Chief Financial Officer will not be able to give the certifications and attestations required pursuant to the rules and regulations adopted pursuant to Sections 302, 404 and 906 of the Sarbanes-Oxley Act, without qualification, when next due.

(iv) Since September 30, 2005, (A) through the date hereof, neither CFC nor any of its Subsidiaries nor, to CFC’s knowledge, any director, officer, employee, auditor, accountant or representative of CFC or any of its Subsidiaries has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of CFC or any of its Subsidiaries or their respective internal accounting controls, including any material complaint, allegation, assertion or claim that CFC or any of its Subsidiaries has engaged in questionable accounting or auditing practices, and (B) no attorney representing CFC or any of its Subsidiaries, whether or not employed by CFC or any of its Subsidiaries, has reported evidence of a material violation of securities laws, breach of fiduciary duty or similar violation by CFC or any of it Subsidiaries or any of their respective officers, directors, employees or agents to the CFC Board or any committee thereof or to any director or officer of CFC.

(h) Litigation . Except as Previously Disclosed, there is no suit, action, investigation, audit or proceeding (whether judicial, arbitral, administrative or other) pending or, to CFC’s knowledge, threatened against or affecting CFC or any of its Subsidiaries, nor is there any judgment, decree, injunction, rule or order of any Governmental Authority or arbitration outstanding against CFC or any of its Subsidiaries.

(i) Regulatory Matters .

(i) Neither CFC nor any of its Subsidiaries or properties is a party to or is subject to any order, decree, agreement, memorandum of understanding or similar arrangement with, or a commitment letter or similar submission to, or extraordinary supervisory letter from, any Regulatory Authority charged with the supervision or regulation of financial institutions and their subsidiaries (including their holding companies) or issuers of securities.

(ii) Neither CFC nor any of its Subsidiaries has been advised by any Regulatory Authority that such Regulatory Authority is contemplating issuing or requesting (or is considering the appropriateness of issuing or requesting) any such order, decree, agreement, memorandum of understanding, commitment letter, supervisory letter or similar submission nor to its knowledge has any Regulatory Authority commenced an investigation in connection therewith.

(j) Compliance with Laws . Each of CFC and its Subsidiaries:

(i) is in compliance with all applicable federal, state, local and foreign statutes, laws, regulations, ordinances, rules, judgments, orders or decrees applicable thereto or to the employees conducting such businesses, including, without

 

18

limitation, the Equal Credit Opportunity Act, the Fair Housing Act, the Community Reinvestment Act (which includes a CRA Rating of “satisfactory” or better), the Home Mortgage Disclosure Act and all other applicable fair lending laws and other laws relating to discriminatory business practices;

(ii) has all permits, licenses, authorizations, orders and approvals of, and has made all filings, applications and registrations with, all Governmental Authorities that are required in order to permit them to own or lease their properties and to conduct their businesses as presently conducted; all such permits, licenses, certificates of authority, orders and approvals are in full force and effect and, to CFC’s knowledge, no suspension or cancellation of any of them is threatened;

(iii) has not received, since September 30, 2004, any notification or communication from any Governmental Authority (A) asserting that CFC or any of its Subsidiaries is not in compliance with any of the statutes, regulations, or ordinances which such Governmental Authority enforces or (B) threatening to revoke any license, franchise, permit, or governmental authorization (nor, to CFC’s knowledge, do any grounds for any of the foregoing exist); and

(iv) is in compliance with all applicable listing standards, corporate governance standards and other rules and regulations of the NASDAQ.

(k) Material Contracts; Defaults . (i) Except as set forth in CFC’s Disclosure Schedule, neither CFC nor any of its Subsidiaries or affiliates is a party to or is bound by any contract of the following types that involve CFC or any of its Subsidiaries or affiliates, nor is any such contract presently being negotiated or discussed:

(A) Any contract involving commitments to others to make capital expenditures or purchases or sales in excess of $50,000 in any one case or $100,000 in the aggregate in any period of 12 consecutive months;

(B) Any contract relating to any direct or indirect indebtedness for borrowed money (including loan agreements, lease purchase arrangements, guarantees, agreements to purchase goods or services or to supply funds or other undertakings on which others rely in extending credit), or any conditional sales contracts, chattel mortgages, equipment lease agreements and other security arrangements with respect to personal property with an obligation in excess of $50,000 in any one case or $100,000 in the aggregate in any period of 12 consecutive months;

(C) Any employment, severance, consulting or management services contract or any confidentiality or proprietary rights contract with any employee of CFC or any of its Subsidiaries or affiliates or any third party;

(D) Any contract containing covenants limiting the freedom of CFC or any of its Subsidiaries or affiliates to compete in any line of business or with any individual, bank, corporation, partnership, limited liability company, joint

 

19

venture, trust, unincorporated association or organization, government body, agency or instrumentality, or any other entity (each, a “Person” ) or in any area or territory;

(E) Any partnership, joint venture, limited liability company arrangement or other similar agreement;

(F) Any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, issuance, or other plan or arrangement for the benefit of CFC’s or any of its Subsidiaries’ or affiliates’ current or former directors, officers, and employees;

(G) Any license agreement, either as licensor or licensee, or any other contract of any type relating to any patent, trademark or trade name, except for licenses for software where the aggregate purchase price for the license is less than $25,000;

(H) Any contract with any director, officer or key employee of CFC or any of its Subsidiaries or affiliates or any arrangement under which CFC or any of its Subsidiaries or affiliates has advanced or loaned any amount to any of their respective directors, officers, and employees;

(I) Any contract of any kind whatsoever, whether exclusive or otherwise, with any sales agent, representative, franchisee or distributor involving money or property and having an obligation in excess of $50,000 in any one case or $100,000 in the aggregate in a period of 12 consecutive months;

(J) Other than this Agreement and the ancillary agreements being executed in connection with this Agreement, any contract providing for the acquisition or disposition of any portion of CFC or any of its Subsidiaries or affiliates;

(K) Any contract of any kind whatsoever that requires the payment of royalties;

(L) Any contract under which the consequences of a breach, violation or default would reasonably be expected to have a Material Adverse Effect on the business of CFC or any of its Subsidiaries or affiliates as presently conducted;

(M) Any contract pursuant to which CFC or any of its Subsidiaries or affiliates has any obligation to share revenues or profits derived from CFC or any of its Subsidiaries or affiliates with any other person or entity;

(N) Any contract between (i) CFC or any of its Subsidiaries or affiliates, on the one hand, and any officer, director, employee or consultant of CFC or any of its Subsidiaries or affiliates, or any natural person related by blood

 

20

or marriage to such natural person, on the other hand, and (ii) CFC or any of its Subsidiaries or affiliates, on the one hand, and any employee of CFC or any of its Subsidiaries or affiliates, on the other hand (collectively, “Affiliate Agreements”); and

(O) Any other legally binding contract not of the type covered by any of the other items of this Section 5.03(k) involving money or property and having an obligation in excess of $50,000 in the aggregate in any period of 12 consecutive months.

(ii)