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Notice of Pendency of Class Action

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Notice of Pendency of Class Action STATE OF SOUTH CAROLINA COUNTY OF GREENVILLE IN THE COURT OF COMMON PLEAS In re THE SOUTH FINANCIAL GROUP, INC. Consolidated Case No. 2010-CP-23-5001 NOTICE OF PENDENCY OF CLASS ACTION, PROPOSED CLASS ACTION DETERMINATION, PROPOSED SETTLEMENT OF CLASS ACTION CLAIMS, SETTLEMENT HEARING, RIGHT TO OBJECT AND RIGHT TO APPEAR TO: ALL PUBLIC RECORD AND BENEFICIAL HOLDERS OF COMMON STOCK OF THE SOUTH FINANCIAL GROUP, INC. AT ANY TIME FROM AND INCLUDING MAY 17, 2010 THROUGH THE CONSUMMATION OF THE MERGER ON SEPTEMBER 30, 2010. PLEASE READ THIS NOTICE CAREFULLY. YOUR RIGHTS WILL BE AFFECTED BY THE LEGAL PROCEEDINGS IN THIS ACTION. IF YOU HELD THE COMMON STOCK OF THE SOUTH FINANCIAL GROUP, INC. FOR THE BENEFIT OF ANOTHER, PLEASE PROMPTLY TRANSMIT THIS DOCUMENT TO SUCH BENEFICIAL OWNER. 1. PURPOSE OF NOTICE The purpose of this Notice is to inform you of the pendency and proposed settlement (the “Settlement”) of the above-captioned action (the “Consolidated Action”) pending in the Court of Common Pleas of South Carolina, Thirteenth Judicial Circuit, Greenville County. The Settlement dated as of August 6, 2010, was entered into by and between: (i) plaintiffs G.A. Milner, III; W. Gordon Parrott, III; Harold D. Enloe; Wade Brodie; John H. Robison; and Odell Suero (collectively, the “Plaintiffs”), each on their own behalf and on behalf of a putative class of the public stockholders of The South Financial Group, Inc.; and (ii) the following defendants: John C.B. Smith, Jr.; William R. Timmons, III; H. Lynn Harton; J.W. Davis; M. Dexter Hagy; William S. Hummers, III; Challis M. Lowe; Jon W. Pritchett; H. Earle Russell Jr.; David C. Wakefield, III (collectively, the TSFG Director Defendants); The South Financial Group, Inc. (“TSFG” or the “Company,” and, together with the TSFG Director Defendants, the “TSFG Defendants”); TD Bank Financial Group; The Toronto-Dominion Bank (“TD”); and Hunt Merger Sub, Inc. (together with TD Bank Financial Group and TD, the “TD Defendants,” and, together with TD Bank Financial Group, TD and the TSFG Defendants, the “Settling Defendants”), by and through their undersigned counsel. This Notice also informs you of the Court’s certification of a Class for purposes of the Settlement (as defined below), and notifies you of your right to object and to participate in a hearing to be held on December 9, 2010 at 2:30 p.m., in the Greenville County Courthouse, 305 E. North Street, Greenville, South Carolina 29601 (the “Settlement Hearing”). At the Settlement Hearing, the Court will, among other things: (i) determine whether the Court’s preliminary certification of the Class should be made final; (ii) determine whether the Court should approve the Settlement as fair, reasonable, adequate and in the best interests of the Class; and (iii) consider the application of Plaintiffs’ counsel for an award of attorneys’ fees and expenses. The Court has determined that, for purposes of the Settlement only, the Consolidated Action shall be maintained as a class action under South Carolina Rule of Civil Procedure 23 by Plaintiffs G.A. Milner, III; W. Gordon Parrott, III; Harold D. Enloe; Wade Brodie; and John H. Robison as representatives of the Class. TSFG announced on May 17, 2010 that it had entered into an Agreement and Plan of Merger (the “Merger Agreement”) with TD and Hunt Merger Sub, Inc., a direct wholly-owned subsidiary of TD, pursuant to which Hunt Merger Sub, Inc. will be merged with and into TSFG, with TSFG becoming a wholly-owned subsidiary of TD (the “Merger”). The Class consists of all public record and beneficial holders of common stock of TSFG at any time from May 17, 2010 (the date the proposed Merger was publicly announced) through and including the date of the consummation of the proposed Merger, and their respective legal representatives, heirs, successors in interest, transferees and assigns of all such foregoing holders and/or owners, immediate and remote, excluding the Settling Defendants (the “Class”). This Notice describes the rights you may have under the Settlement and what steps you may, but are not required to, take in relation to the Settlement. 1 If the Court approves the Settlement, the parties will ask the Court at the Settlement Hearing to enter an Order and Final Judgment dismissing the Consolidated Action with prejudice on the merits as to all Settling Defendants. * * * THE FOLLOWING RECITATION DOES NOT CONSTITUTE FINDINGS OF THE COURT. IT IS BASED ON STATEMENTS OF THE SETTLING PARTIES AND SHOULD NOT BE UNDERSTOOD AS AN EXPRESSION OF ANY OPINION OF THE COURT AS TO THE MERITS OF ANY OF THE CLAIMS OR DEFENSES RAISED BY ANY OF THE SETTLING PARTIES. 2. BACKGROUND OF THE CONSOLIDATED ACTION On May 17, 2010, TSFG announced that it had entered into an Agreement and Plan of Merger (the “Merger Agreement”) with TD and Hunt Merger Sub, Inc., a direct wholly-owned subsidiary of TD, pursuant to which Hunt Merger Sub, Inc. will be merged with and into TSFG, with TSFG surviving the merger as a wholly-owned subsidiary of TD (the “Merger”). Under the terms of the Merger Agreement, TSFG’s common shareholders will be entitled to receive, in exchange for each share of TSFG common stock, either $0.28 in cash if a cash election is effectively made with respect to such share or 0.004 TD common shares plus cash in lieu of any fractional share interests. In connection with the Merger Agreement, TD and TSFG entered into a share purchase agreement (the “Share Purchase Agreement”), pursuant to which TD agreed to purchase 100 newly issued shares of TSFG’s Series M Preferred Stock, which vote together with TSFG common stock as a single class and represent 39.9% of the total voting power of holders of TSFG capital stock entitled to vote, for consideration of 1,000 shares of TD’s common stock and TD’s entry into the Merger Agreement. On May 18, 2010, the Treasury Department and TD, in connection with TD entering into the Merger Agreement, entered into a securities purchase agreement (the “Securities Purchase Agreement”), pursuant to which immediately prior to completion of the transaction, the United States Department of the Treasury will sell to TD its $347 million of TSFG Series 2008-T Preferred Stock and the associated warrant acquired under the Treasury’s Capital Purchase Program and discharge all accrued but unpaid dividends on that stock for total cash consideration of approximately $130.6 million. On June 10, 2010, TD filed with the Securities and Exchange Commission (the “SEC”) a registration statement on Form F-4 that included a preliminary Proxy Statement (the “Preliminary Proxy”) for the purpose of soliciting the vote of TSFG shareholders in connection with a special meeting of TSFG shareholders to be held to approve the Merger (the “Special Meeting”). Between June 16, 2010 and June 18, 2010, Plaintiffs filed two purported class actions on behalf of the public shareholders of TSFG, challenging the Merger and the Merger Agreement and seeking injunctive relief, damages, and other relief. Plaintiffs allege, inter alia, that the TSFG Director Defendants breached their fiduciary duties to TSFG’s public shareholders by, among other things: (i) failing to engage in a process best calculated to maximize shareholder value; (ii) failing to provide full and complete disclosures concerning matters that a reasonable shareholder would deem important under the circumstances; and (iii) failing to protect the shareholders’ right to have a majority vote on the proposed transaction. Plaintiffs further allege that the TD Defendants and the Company aided and abetted the other defendants’ breach of their fiduciary duties. The parties thereafter engaged in discussions and voluntarily agreed to expedited discovery with respect to Plaintiffs’ efforts to seek injunctive relief. On July 8, the Court consolidated the two actions and endorsed the agreement among Plaintiffs that Motley Rice LLC serve as Lead Plaintiffs’ Counsel and W. Douglas Smith as Liaison Plaintiffs’ Counsel. On July 9, 2010, the Court entered a Stipulated Scheduling Order proposed by the parties. This Order merged the two actions. Defendants produced to Plaintiffs 8,400 pages of documents pertaining to the Merger, including minutes of meetings of the board of directors of TSFG and minutes of meetings of the Strategic Initiatives Committee of the board of directors of TSFG. Based on the discovery obtained, Plaintiffs and Defendants, through their counsel, held arm’s-length discussions with respect to the demands of Plaintiffs’ counsel to amend the Preliminary Proxy to include additional disclosure to TSFG’s public shareholders in the final proxy materials sufficiently in advance of the shareholder vote on the Merger and to preserve voting rights for the shareholders on the Merger. After arm’s-length negotiations, and as a result of discussions between and among Plaintiffs and Settling Defendants through their respective counsel, Plaintiffs and Settling Defendants reached an agreement-in-principle concerning a proposed settlement of the Consolidated Action pursuant to which they agreed, among other things, (a) that TSFG would make additional disclosures in the Definitive Proxy as set forth in Exhibit A annexed hereto (the “Additional Disclosures”), which disclosures were not set forth in the Preliminary Proxy filed with the SEC prior to the negotiation of the Settlement, and (b) that the TD Defendants will not engage in any additional purchases of the outstanding common 2 stock of TSFG as of July 22, 2010 and prior to the record date for the Special Meeting. Plaintiffs’ and Settling Defendants’ agreement-in-principle concerning a proposed settlement of the Consolidated Action was set forth in a Memorandum of Understanding executed July 22, 2010. On July 22, 2010, Plaintiffs took a confirmatory discovery deposition of H.
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