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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): September 23, 1997
-------------------------------
American Bancshares, Inc.
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(Exact Name of Registrant as Specified in its Charter)
Florida 0-27474 65-0624640
- ---------------------------- ------------------------ ----------------
(State or Other Jurisdiction (Commission File Number) (IRS Employer
Incorporation) Identification
Number)
4702 Cortez Road West, Bradenton, Florida 34210-2801
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (941) 795-3050
----------------
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ITEM 5. OTHER EVENTS.
American Bancshares, Inc. a Florida corporation ("ABI"), American Bank
of Bradenton, a Florida state chartered bank and wholly-owned subsidiary of ABI
("American Bank"), and Murdock Florida Bank, a Florida state chartered bank
("Murdock"), have entered into an Agreement and Plan of Merger dated September
23, 1997, as amended on October 8, 1997 ("Merger Agreement"), pursuant to which,
among other things, Murdock will be merged with and into American Bank, with
American Bank as the surviving corporation (the "Merger"). A copy of the Merger
Agreement and the amendment thereto are attached hereto as Exhibits 2.1 and 2.2,
respectively, and are incorporated herein by reference. The press release
describing the proposed Merger is attached hereto as Exhibit 99.1.
ABI is a Florida-based bank holding company registered under the Bank
Holding Company Act of 1956, as amended, with total assets of approximately
$256.7 million as of June 30, 1997. Pursuant to the terms of the Merger
Agreement, each share of Murdock common stock, $10.00 par value per share
("Murdock Common Stock") will be converted into 2.40 ("Exchange Ratio") ABI
common shares, $1.175 par value per share ("ABI Common Shares"). No fractional
ABI Common Shares will be issued in the Merger, and Murdock stockholders who
otherwise would be entitled to receive a fractional ABI Common Share will
receive a cash payment in lieu thereof. Outstanding options held by employees of
Murdock will be converted into ABI options at the same Exchange Ratio.
If the average of the last daily sales price of ABI Common Shares as
reported on Nasdaq for a specified period prior to closing ("ABI Average
Price") is less than $11.00, then the Exchange Ratio shall be increased to 2.65
(assuming that the Closing Equity, as defined in the Merger Agreement, of
Murdock is at least $5,000,000). If the Closing Equity is less than $5,000,000,
then the Exchange Ratio shall be adjusted to equal a purchase price of 2.33
times the Closing Equity based on an ABI Common Share price of $12.169 (or
$11.00 if the ABI Average Price is less than $11.00).
The Merger is intended to be a tax-free reorganization under the
Internal Revenue Code of 1986, as amended, and to be accounted for under the
pooling of interest method.
Consummation of the Merger is subject to a number of conditions,
including: (i) receipt of the affirmative approval of the Merger Agreement by at
least two-thirds of the outstanding shares of Murdock Common Stock, (ii) receipt
of all requisite governmental and regulatory approvals (including approval of
the Florida Department of Banking and Finance and the Board of Governors of the
Federal Reserve System), (iii) Murdock's receipt of a fairness opinion from its
investment banker within five days from the date of its proxy statement, (iv)
effectiveness of a registration statement to be filed by ABI with the Securities
and Exchange Commission ("SEC") with respect to the ABI Common Shares to be
issued in the Merger, (v) receipt of a letter from ABI's independent public
accountants that the Merger will be accounted for as a pooling of interests,
(vi) receipt of a favorable opinion of counsel with respect to the tax free
nature of certain aspects of the Merger, and (vii) the satisfaction of certain
other closing conditions customary in a transaction of this type. The Merger
Agreement provides that American Bank will establish after the Merger an
Advisory Board of Directors for its Murdock branch which will include up to
three current members of the Murdock Board of Directors. The Merger Agreement
is subject to termination under certain circumstances, including the failure to
consummate the Merger by April 30, 1998. In addition, in the event that the
ABI Average Price is less than $10.00 or the Closing Equity is less than
$4,875,000, then the parties must attempt to negotiate in good faith a mutually
acceptable purchase price for the Murdock Common Stock. If the parties are
unable to do so, then Murdock shall have the right to terminate the Merger
Agreement in the case of an ABI Average Price of less than $10.00, and ABI
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shall have the right to terminate the Merger Agreement in the case of a Closing
Equity of less than $4,875,000.
The foregoing summary of the contents of the Merger Agreement is
qualified in its entirety by reference to Exhibits 2.1 and 2.2.
On September 24, 1997, ABI announced the execution of the definitive
Merger Agreement with Murdock and its general terms.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Not Applicable
(b) Not Applicable
(c) Exhibits required by Item 601 of Regulation S-B
EXHIBIT NO. DESCRIPTION
2.1 Agreement and Plan of Merger dated September 23, 1997, by and
among American Bancshares, Inc., American Bank of Bradenton,
and Murdock Florida Bank
2.2 First Amendment to Agreement and Plan of Merger, dated October
8, 1997, by and among American Bancshares, Inc., American Bank
of Bradenton, and Murdock Florida Bank
99.1 Press Release, issued September 24, 1997, regarding the
Merger.
[Rest of Page Intentionally Blank. Signatures on following Page.]
3
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
AMERICAN BANCSHARES, INC.
Date: October 8, 1997 By: /s/ Gerald L. Anthony
----------------------------------------
Gerald L. Anthony
President and Chief Executive Officer
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
2.1 Agreement and Plan of Merger dated September 23, 1997, by and
among American Bancshares, Inc., American Bank of Bradenton,
and Murdock Florida Bank
2.2 First Amendment to Agreement and Plan of Merger, dated October
8, 1997, by and among American Bancshares, Inc., American Bank
of Bradenton, and Murdock Florida Bank
99.1 Press Release, issued September 24, 1997, regarding the
Merger.
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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
AMERICAN BANCSHARES, INC.,
AMERICAN BANK OF BRADENTON
AND
MURDOCK FLORIDA BANK
DATED AS OF SEPTEMBER 23, 1997
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TABLE OF CONTENTS
<TABLE>
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Page
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PREAMBLE
ARTICLE I
The Merger and Related Transactions....................................................................-1-
1.1 The Merger...........................................................................-1-
1.2 Time and Place of Closing............................................................-1-
1.3 Effective Time.......................................................................-2-
ARTICLE II
Terms of Merger........................................................................................-2-
2.1 Articles of Incorporation............................................................-2-
2.2 Bylaws...............................................................................-2-
2.3 Directors and Officers...............................................................-2-
ARTICLE III
Manner of Converting Shares............................................................................-2-
3.1 Conversion...........................................................................-2-
3.2 Anti-Dilution Provisions.............................................................-3-
3.3 Shares held by Murdock...............................................................-3-
3.4 Fractional Shares....................................................................-3-
3.5 Conversion of Stock Options..........................................................-4-
3.6 Dissenter's Shares...................................................................-5-
3.7 Transfers............................................................................-5-
ARTICLE IV
Exchange of Shares.....................................................................................-6-
4.1 Exchange Procedures..................................................................-6-
4.2 Rights of Former Murdock Shareholders................................................-6-
4.3 Termination of Exchange Fund.........................................................-7-
ARTICLE V
Representations and Warranties of Murdock..............................................................-7-
5.1 Organization, Standing, and Power....................................................-7-
5.2 Authority; No Conflict...............................................................-7-
5.3 Capitalization.......................................................................-9-
5.4 No Subsidiaries......................................................................-9-
5.5 Regulatory Filings; Financial Statements.............................................-9-
5.6 Absence of Certain Changes or Events................................................-10-
5.7 No Undisclosed Liabilities..........................................................-10-
5.8 Tax Matters.........................................................................-10-
5.9 Assets..............................................................................-12-
5.10 Allowance for Loan or Credit Losses.................................................-12-
5.11 Notes and Obligations...............................................................-12-
5.12 Insurance...........................................................................-13-
5.13 Environmental Matters...............................................................-13-
</TABLE>
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<TABLE>
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5.14 Compliance with Laws; No Violations.................................................-14-
5.15 Labor Matters.......................................................................-15-
5.16 Employee Benefit Plans..............................................................-15-
5.17 Commitments and Contracts...........................................................-16-
5.18 Material Contract Defaults..........................................................-16-
5.19 Legal Proceedings...................................................................-17-
5.20 Intellectual Property...............................................................-17-
5.21 Brokers and Finders.................................................................-17-
5.22 Statements True and Correct.........................................................-17-
5.23 Accounting, Tax and Regulatory Matters..............................................-18-
5.24 Opinion of Financial Advisor........................................................-18-
5.25 State Takeover Laws.................................................................-18-
5.26 Corporate Governance Provisions.....................................................-18-
5.27 Derivative Contracts................................................................-18-
5.28 Support of Stockholders.............................................................-19-
ARTICLE VI
Representations and Warranties of ABI.................................................................-19-
6.1 Organization, Standing, and Power...................................................-19-
6.2 Authority; No Conflict..............................................................-19-
6.3 Capitalization......................................................................-20-
6.4 Subsidiaries........................................................................-20-
6.5 SEC Filings; Financial Statements...................................................-21-
6.6 Absence of Certain Changes or Events................................................-21-
6.7 No Undisclosed Liabilities..........................................................-21-
6.8 Tax Matters.........................................................................-21-
6.9 Environmental Matters...............................................................-22-
6.10 Compliance with Laws; No Violations.................................................-23-
6.11 Legal Proceedings...................................................................-23-
6.12 Brokers and Finders.................................................................-24-
6.14 Accounting, Tax, and Regulatory Matters.............................................-24-
6.15 Material Contracts..................................................................-24-
ARTICLE VII
Conduct of Business Prior to the Effective Time.......................................................-24-
7.1 Conduct of Business by Murdock......................................................-24-
7.2 Forbearance.........................................................................-25-
7.3 Covenants of ABI....................................................................-27-
7.4 Notification of Adverse Changes in Condition........................................-27-
7.5 Government Filings and Reports......................................................-27-
ARTICLE VIII
Additional Agreements.................................................................................-28-
8.1 Registration Statement; Proxy Statement; Regulatory Matters.........................-28-
8.2 Access to Information; Confidentiality..............................................-28-
8.3 Stockholders' Approvals.............................................................-29-
8.4 Filings with State Offices..........................................................-29-
8.5 Agreements As To Efforts to Consummate..............................................-29-
8.6 No Solicitation.....................................................................-30-
</TABLE>
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<TABLE>
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8.7 Employee Benefits...................................................................-30-
8.8 Current Information.................................................................-30-
8.9 Other Actions.......................................................................-30-
8.10 Press Releases......................................................................-30-
8.11 Pooling and Tax-Free Reorganization Treatment.......................................-31-
8.12 State Takeover Laws.................................................................-31-
8.13 Corporate Governance Provisions.....................................................-31-
8.14 Agreement of Affiliates.............................................................-31-
8.15 Officer Agreement...................................................................-31-
8.16 American Bank/Murdock Local Advisory Board..........................................-32-
8.17 Indemnification.....................................................................-32-
Conditions............................................................................................-34-
9.1 Conditions to Obligations of Each Party.............................................-34-
9.2 Conditions to Obligations of ABI to Effect the Merger...............................-35-
9.3 Conditions to Obligation of Murdock to Effect the Merger............................-36-
ARTICLE X
Termination...........................................................................................-37-
10.1 Termination.........................................................................-37-
10.2 Effect of Termination...............................................................-39-
10.3 Termination Fee.....................................................................-39-
ARTICLE XI
Definitions...........................................................................................-40-
11.1 Definitions.........................................................................-40-
11.2 Expenses............................................................................-45-
11.3 Non-Survival of Representations, Warranties and Covenants Following
the Effective Time..................................................................-46-
11.4 Entire Agreement....................................................................-46-
11.5 Obligation of ABI...................................................................-46-
11.6 Amendment and Modification..........................................................-46-
11.7 Waivers.............................................................................-46-
11.8 No Assignment.......................................................................-46-
11.9 Notices.............................................................................-47-
11.10 Governing Law.......................................................................-48-
11.11 Fiduciary Duty......................................................................-48-
11.12 Enforcement of Agreement............................................................-48-
11.13 Counterparts........................................................................-48-
11.14 Captions............................................................................-48-
</TABLE>
Exhibit A Plan of Merger
Exhibit B Voting Letter Agreement
Exhibit C Affiliate's Letter
Exhibit D Opinion of Counsel for Murdock
Exhibit E Opinion of Counsel for ABI
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "Agreement") dated as of September
23, 1997 by and among AMERICAN BANCSHARES, INC. ("ABI"), a Florida corporation
having its principal office located in Bradenton, Florida, AMERICAN BANK OF
BRADENTON ("American Bank"), a Florida state chartered bank, and MURDOCK FLORIDA
BANK ("Murdock"), a Florida state chartered bank having its principal office
located in Murdock, Florida.
PREAMBLE
The Boards of Directors of ABI, American Bank, and Murdock are of the
opinion that the transactions described herein are in best interest of the
parties and their respective shareholders and have approved the transactions
described herein. This Agreement provides for the acquisition of Murdock by ABI
pursuant to the merger of Murdock with and into, American Bank (the "Merger"), a
wholly owned subsidiary of ABI. At the effective time of the Merger, the
outstanding shares of capital stock of Murdock shall be converted into the right
to receive shares of the capital stock of the ABI (except as provided herein).
As a result, stockholders of Murdock shall become stockholders of ABI. The
transactions contemplated by this Agreement are subject to the approval of the
shareholders of Murdock, the Florida Department of Banking and Finance, the
Board of Governors of the Federal Reserve System, and the Federal Deposit
Insurance Corporation ("FDIC"), and the satisfaction of certain other conditions
described in this Agreement. It is the intention of the parties to this
Agreement that for federal income tax purposes the Merger shall qualify as a
"reorganization" within the meaning of Section 368(a) of the Internal Revenue
Code, and for accounting purposes shall qualify for treatment as a "pooling of
interest".
Certain capitalized terms used in this Agreement are defined in Section
11.1 of this Agreement.
NOW, THEREFORE, in consideration of the above and the mutual
representations, warranties, covenants, and agreements herein contained, the
parties hereby agree as follows:
ARTICLE I
THE MERGER AND RELATED TRANSACTIONS
1.1 THE MERGER. Subject to the terms and conditions of this Agreement,
at the Effective Time, Murdock shall be merged with and into American Bank in
accordance with the provisions of the FFIC. At the Effective Time, the separate
corporate existence of Murdock shall cease, and American Bank, which shall
remain a wholly-owned subsidiary of ABI, shall be the surviving corporation
resulting from the Merger (the "Surviving Corporation") and shall continue to be
governed by the laws of the State of Florida. The Merger will be consummated
pursuant to the terms of this Agreement, which has been approved and adopted by
the respective Board of Directors of ABI, American Bank, and Murdock, and the
Plan of Merger in substantially the form set forth in Exhibit A and is
incorporated herein by reference, which has been approved and adopted by the
Board of Directors of American Bank and Murdock. From and after the Effective
Time, the Merger shall have the effects set forth in the FFIC.
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1.2 TIME AND PLACE OF CLOSING. The closing of the transactions
contemplated hereby (the "Closing"), including the Merger, will take place at
the offices of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., One
Harbour Place, 777 South Harbour Island Drive, Tampa, Florida 33601, at 10:00
a.m. local time on a date specified by the parties as they, acting through their
chief executive officers or Chairman of the Board of Directors, may mutually
agree. Subject to the terms and conditions hereof, unless mutually agreed upon
in writing by each party, the parties shall use their reasonable best efforts to
cause the Closing to occur on or before the fifth business day following the
Determination Date.
1.3 EFFECTIVE TIME. The Merger and other transactions contemplated by
this Agreement shall become effective on the date and at the time on which the
articles of merger ("Articles of Merger") containing the provisions required by,
and executed in accordance with, the Florida Business Corporation Act ("FBCA"),
shall have been accepted for filing by the Secretary of State of the State of
Florida or such later date and time as is agreed upon in writing by ABI and
Murdock and specified in the Articles of Merger (the "Effective Time"). Unless
ABI and Murdock otherwise mutually agree in writing, the parties to this
Agreement shall use their best efforts to cause the Effective Time to occur on
the date of Closing.
ARTICLE II
TERMS OF MERGER
2.1 ARTICLES OF INCORPORATION. Pursuant to the Merger, the articles of
incorporation of American Bank in effect immediately prior to the Effective Time
shall be the articles of incorporation of the Surviving Corporation until
otherwise amended and repealed in accordance with applicable law.
2.2 BYLAWS. Pursuant to the Merger, the Bylaws of the American Bank in
effect immediately prior to the Effective Time shall be the bylaws of the
Surviving Corporation until otherwise amended or repealed in accordance with
applicable law.
2.3 DIRECTORS AND OFFICERS. From and after the Effective Time, the
directors and officers of American Bank immediately prior to the Effective Time
shall be the directors and officers of the Surviving Corporation, each to hold
office in accordance with the articles of incorporation and bylaws of the
Surviving Corporation.
ARTICLE III
MANNER OF CONVERTING SHARES
3.1 CONVERSION. Subject to the provisions of this Article III, at the
Effective Time, by virtue of the Merger and without any action on the part of
the shareholders of ABI or Murdock, the shares of the constituent corporations
shall be converted as follows:
(a) Except for shares of Murdock Common Stock issued and
outstanding immediately prior to the Effective Time as to which dissenters'
rights have been perfected and not withdrawn, and subject to Section 3.4
relating to fractional shares, each share of Murdock Common Stock (excluding
shares to be cancelled pursuant to Section 3.3 of this Agreement) issued and
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outstanding at the Effective Time shall cease to be outstanding and shall be
converted into and exchanged for 2.40 ABI Common Shares (the "Exchange Ratio").
The Exchange Ratio shall be fixed and no adjustment shall be made except
pursuant to Section 3.2 of this Agreement unless the Designated Price of the ABI
Common Shares is less than $11.00, the Closing Equity is less than $5,000,000,
or both, in which case the Exchange Ratio shall be adjusted in accordance with
Section 3.1(b) of this Agreement.
(b) If the Designated Price of ABI Common Shares is less than
$11.00 and the Closing Equity is at least $5,000,000, then the Exchange Ratio
shall be increased to equal the quotient, rounded to the third decimal point,
of: (x) the product of $11.00 and the Exchange Ratio divided by (y) the
Designated Price. If the Designated Price shall be less than $10.00, then ABI
and Murdock shall in good faith attempt to negotiate a mutually acceptable
Merger Consideration for the Murdock Common Stock; provided, however, that if a
mutually agreed upon Merger Consideration is not negotiated within four days
following the Determination Date, then Murdock may terminate this Agreement
pursuant to Section 10.1(i) of this Agreement. If the Closing Equity shall be
less than $5,000,000, then the Exchange Ratio shall be adjusted as follows: (i)
if the Designated Price is $11.00 or more, then the Exchange Ratio shall be
decreased to equal the quotient, rounded to the third decimal point, of (A) the
quotient of [Closing Equity multiplied by 2.25, divided by 385,015] divided by
(B) 12.169, or (ii) if the Designated Price is less than $11.00, then the
Exchange Ratio shall be adjusted to equal the quotient, rounded to the third
decimal point, of (A) the quotient of [Closing Equity multiplied by 2.25,
divided by 385,015] divided by (B) 11.00. If the Closing Equity shall be less
than $4,875,000, then ABI and Murdock shall in good faith attempt to negotiate a
mutually acceptable Merger Consideration for the Murdock Common Stock; provided,
however, that if a mutually agreed upon Merger Consideration is not negotiated
within four days following the determination of Closing Equity, then ABI may
terminate the Agreement pursuant to Section 10.1(j) of this Agreement.
(c) Each of the Surviving Corporation common shares, $1.175
par value per share, issued and outstanding immediately prior to the Effective
Time shall remain issued and outstanding from and after the Effective Time.
(d) Each of the ABI Common Shares issued and outstanding
immediately prior to the Effective Time shall remain issued and outstanding from
and after the Effective Time.
3.2 ANTI-DILUTION PROVISIONS. In the event that ABI changes the number
of ABI Common Shares issued and outstanding prior to the Effective Time as a
result of a stock split, stock dividend, recapitalization, reclassification, or
other similar transaction with respect to such ABI Common Shares and the record
date therefor (in the case of a stock dividend) or the effective date thereof
(in the case of a stock split or similar recapitalization for which a record
date is not established) shall be prior to the Effective Time, the Merger
Consideration shall be proportionately adjusted so as to prevent any dilutive
effect to the stockholders of Murdock which would otherwise result from any such
transaction on a percentage of ownership basis.
3.3 SHARES HELD BY MURDOCK. Each share of Murdock Common Stock held by
Murdock as treasury stock, other than those shares of Murdock Common Stock held
in a fiduciary capacity or as a result of debts previously contracted, shall be
cancelled and retired at the Effective Time and shall cease to exist and no
consideration shall be exchanged therefor. All ABI Common Shares that are owned
by Murdock shall become treasury stock of ABI.
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3.4 FRACTIONAL SHARES. Notwithstanding any other provision of this
Agreement, each holder of shares of Murdock Common Stock exchanged pursuant to
the Merger who would otherwise have been entitled to receive a fraction of an
ABI Common Share (after taking into account all certificates delivered by such
holder) shall receive, in lieu thereof, cash (without any interest thereon) in
an amount equal to such fractional part of an ABI Common Share multiplied by the
"market price" of one ABI Common Share at the Closing. The "market price" of one
ABI Common Share at the Closing shall be the closing price of such common shares
on Nasdaq (as reported by the Wall Street Journal or, if not reported thereby,
any other authoritative source selected by ABI) on the last trading day
preceding the Closing. No such holder will be entitled to dividends, voting
rights, or any other rights as a shareholder in respect of any fractional share.
3.5 CONVERSION OF STOCK OPTIONS.
(a) At the Effective Time, each award, option, or other right
to purchase or acquire ABI Common Shares pursuant to any stock awards, stock
options, stock appreciation rights or other benefits ("Murdock Rights") granted
and under any employee stock option or compensation plan or arrangement of
Murdock ("Murdock Stock Plans") which are outstanding at the Effective Time,
whether or not vested or exercisable, without any action on the part of the
holder thereof, shall be converted into and become rights with respect to ABI
Common Shares, and ABI shall assume each Murdock Right, in accordance with the
terms of the Murdock Stock Plan and stock option agreement or award by which it
is evidenced, except that from and after the Effective Time (i) ABI and its
Compensation Committee shall be substituted for Murdock and the committee of
Murdock's Board of Directors (including, if applicable, the entire Board of
Directors of Murdock) administering such Murdock Stock Plan, (ii) each Murdock
Right assumed by ABI may be exercised solely for ABI Common Shares (or cash in
the case of stock appreciation rights), (iii) the number of ABI Common Shares
subject to such Murdock Right shall be equal to the number of ABI Common Shares
subject to such Murdock Right immediately prior to the Effective Time multiplied
by the Exchange Ratio, and (iv) the per share exercise price (or similar
threshold price, in the case of stock awards) under each such Murdock Right
shall be adjusted by dividing the per share exercise (or threshold) price under
each such Murdock Right by the Exchange Ratio and rounding up to the nearest
cent. Notwithstanding the provisions of clause (iii) of the proceeding sentence,
ABI shall not be obligated to issue any fraction of an ABI Common Share upon
exercise of Murdock Rights and any fraction of an ABI Common Share that
otherwise would be subject to a converted Murdock Right shall represent the
right to receive a cash payment equal to the product of such fraction and the
difference between the market price of one ABI Common Share and the per share
exercise price of such right. In addition, notwithstanding the provisions of
clauses (iii) and (iv) of the first sentence of this Section 3.5(a), each
Murdock Right which is an "incentive stock option" shall be adjusted as required
by Section 424 of the Internal Revenue Code, and the regulations promulgated
thereunder, so as not to constitute a modification, extension, or renewal of the
option, within the meaning of Section 424(h) of the Internal Revenue Code. ABI
agrees to take all necessary steps to effectuate the foregoing provisions of
this Section 3.5.
(b) As soon as practicable after the Effective Time, ABI shall
deliver to the participants in each Murdock Stock Plan an appropriate notice
setting forth such participant's rights pursuant thereto and the grants pursuant
to such Murdock Stock Plan shall continue in effect on the same terms and
conditions (subject to the adjustments required by Section 3.5(a) of this
Agreement after giving effect to the Merger), and ABI shall comply with the
terms of each Murdock Stock Plan to ensure, to the extent required by, and
subject to the provisions of, such Murdock Stock Plan, that
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the Murdock Rights which qualified as incentive stock options prior to the
Effective Time continue to qualify as incentive stock options after the
Effective Time. At or prior to the Effective Time, ABI shall take all corporate
action necessary to reserve for issuance sufficient ABI Common Shares for
delivery upon exercise of Murdock Rights assumed by ABI in accordance with this
Section 3.5. None of the ABI Common Shares to be issued upon conversion or
exercise of converted Murdock Rights will be required to be registered under the
Securities Act or any blue sky or state securities Laws.
(c) All restrictions or limitations on transfer with respect
to Murdock Common Stock awarded under the Murdock Stock Plans, to the extent
that such restrictions or limitations shall not have already lapsed, and except
as otherwise expressly provided in such plan, program, or arrangement, shall
remain in full force and effect with respect to ABI Common Shares into which
such restricted stock is converted pursuant to Section 3.1 of this Agreement.
(d) Prior to the Effective Time, Murdock will make any
amendments to the terms of the Murdock Stock Plans that are necessary to give
effect to the transactions contemplated by this Section 3.5. Murdock represents
that neither the execution of this Agreement nor the consummation of the
transactions contemplated hereby will cause the acceleration of vesting, the
lapse of repurchase rights or obligations, or the triggering of any other
benefits, rights, or protections occurring upon a change of control of Murdock
with respect to any Murdock Rights under any Murdock Stock Plan or otherwise.
Except as contemplated by this Section 3.5(d), Murdock will not, after the date
hereof, without the written consent of ABI, amend any outstanding Murdock Rights
or other options or rights to purchase shares of Murdock Common Stock (including
accelerating the vesting or lapse of repurchase rights or obligations).
3.6 DISSENTER'S SHARES. Notwithstanding Section 3.1(a) of this
Agreement, shares of Murdock Common Stock issued and outstanding at the
Effective Time which are held by a holder who has not voted in favor of the
Merger and who has demanded payment for such shares in accordance with Section
658.44 of the Florida Statutes ("Dissenting Murdock Shares") shall not be
converted into or represent the right to receive the ABI Common Shares payable
thereon pursuant to Section 3.1 of this Agreement, and shall be entitled only to
such rights of appraisal as are granted by Section 658.44 of the Florida
Statutes ("Dissent Provisions"), unless and until such holder fails to perfect
or effectively withdraws or otherwise loses his or her right to appraisal. If
after the Effective Time any such holder fails to perfect or effectively
withdraws or loses his right to appraisal, such shares of Murdock Common Stock
shall be treated as if they had been converted at the Effective Time into the
right to receive the ABI Common Shares payable thereon pursuant to Section 3.1
of this Agreement. Murdock shall give ABI prompt notice upon receipt by Murdock
of any written objection to the Merger and such written demands for payment for
shares of Murdock Common Stock under the Dissent Provisions, and the withdrawals
of such demands, and any other instruments provided to Murdock pursuant to the
Dissent Provisions (any shareholder duly making such demand being hereinafter
called a "Dissenting Shareholder"). Each Dissenting Shareholder that becomes
entitled, pursuant to the Dissent Provisions, to payment for any shares of
Murdock Common Stock held by such Dissenting Shareholder shall receive payment
therefor from ABI (but only after the amount thereof shall have been agreed upon
or at the times and in the amounts required by the Dissent Provisions) and all
of such Dissenting Shareholders shares of Murdock Common Stock shall be
cancelled. Murdock shall not, except with the prior written consent of ABI,
voluntarily make any payment with respect to, or settle or offer to settle, any
demand for payment by a Dissenting Shareholder.
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3.7 TRANSFERS. At the Effective Time, the stock transfer books of
Murdock shall be closed as to holders of Murdock Common Stock immediately prior
to the Effective Time and no transfers of Murdock Common Stock by any such
holder shall thereafter be made or recognized. If, after the Effective Time,
certificates representing Murdock Common Stock are properly presented in
accordance with Section 4.1 of this Agreement to the exchange agent, which shall
be selected by ABI ("Exchange Agent"), such certificates shall be cancelled and
exchanged for certificates representing the number of whole ABI Common Shares
and a check representing the amount of cash for fractional shares, if any, into
which the Murdock Common Stock represented thereby were converted in the Merger
(the "Merger Consideration").
ARTICLE IV
EXCHANGE OF SHARES
4.1 EXCHANGE PROCEDURES. As of the Effective Time, ABI shall deposit or
shall cause to be deposited with the Exchange Agent for exchange in accordance
with this Article IV, certificates representing ABI Common Shares and cash in
such amounts necessary to provide all the Merger Consideration required to be
exchanged by ABI pursuant to the terms of this Agreement (such Merger
Consideration, together with any dividends or other distributions with respect
thereto, referred to herein as the "Exchange Fund"). As soon as reasonably
practicable after the Effective Time, ABI shall cause the Exchange Agent to mail
to each holder of record of shares of Murdock Common Stock immediately prior to
the Effective Time whose shares were converted pursuant to Section 3.1 of this
Agreement into the right to receive the Merger Consideration: (i) a letter of
transmittal (which shall specify that delivery shall be effected, and risk of
loss and title to the certificates theretofore representing shares of Murdock
Common Stock shall pass, only upon proper delivery of such certificates to the
Exchange Agent, and which shall be in such form and have such other provisions
as ABI may reasonably specify) and (ii) instructions for use in effecting the
surrender of the Murdock Common Stock certificates in exchange for the Merger
Consideration. After the Effective Time, each holder of shares of Murdock Common
Stock issued and outstanding at the Effective Time (other than shares as to
which dissenters' rights have been perfected under the Dissent Provisions and
not withdrawn and other than shares to be cancelled pursuant to Section 3.3 of
this Agreement) shall surrender the certificate or certificates theretofore
representing such shares, together with such transmittal materials properly and
duly executed, to the Exchange Agent and promptly upon surrender shall receive
in exchange therefor the Merger Consideration, together with all declared but
unpaid dividends or distributions in respect of such shares (without any
interest thereon), and the Murdock Common Stock certificates so surrendered
shall forthwith be cancelled. The certificate or certificates for Murdock Common
Stock shall be duly endorsed as the Exchange Agent may require. ABI shall not be
obligated to deliver the consideration to which any former holder of Murdock
Common Stock is entitled as the result of the Merger until such holder
surrenders his certificate or certificates representing shares of Murdock Common
Stock for exchange as provided in this Section 4.1. If any certificate for ABI
Common Shares, or check representing cash in lieu of fractional shares and/or
declared by unpaid dividends or distributions, is to be issued in a name other
than that in which a certificate surrendered for exchange is issued, the
certificate so surrendered shall be properly endorsed and otherwise in proper
form for transfer and the person requesting such exchange shall affix any
requisite transfer tax stamps to the certificate surrendered or provide funds
for their purchase or establish to the reasonable satisfaction of the Exchange
Agent that no such taxes are payable.
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4.2 RIGHTS OF FORMER MURDOCK SHAREHOLDERS. Until surrendered for
exchange in accordance with the provisions of Section 4.1 of this Agreement,
each certificate theretofore representing shares of Murdock Common Stock (other
than those shares as to which dissenter's rights have been perfected under the
Dissent Provisions and not withdrawn, and other than shares to be cancelled
pursuant to Section 3.3 of this Agreement) shall from and after the Effective
Time represent for all purposes only the right to receive ABI Common Shares and
cash in lieu of fractional shares as set forth in this Agreement (without any
interest thereon). Whenever a dividend or other distribution is declared by ABI
on the ABI Common Shares, the record date for which is at or after the Effective
Time, the declaration shall include dividends or other distributions on all
shares issuable pursuant to this Agreement, but no dividend or other
distribution payable to the holders of record of ABI Common Shares at or
subsequent to the Effective Time shall be delivered to the holder of any
certificate representing shares of Murdock Common Stock issued and outstanding
at the Effective Time until such holder physically surrenders such certificate
for exchange as provided in Section 4.1 of this Agreement, promptly after which
time all such dividends or distributions shall be paid (without any interest
thereon).
4.3 TERMINATION OF EXCHANGE FUND. Any portion of the Exchange Fund
(including the proceeds of any investments thereof) which had been made
available to the Exchange Agent pursuant to Section 4.1 of this Agreement that
remain unclaimed by the former shareholders of Murdock for six (6) months after
the Effective Time shall be paid to ABI. Any former shareholders of Murdock who
have not theretofore complied with this Article IV shall thereafter look only to
ABI for payment of the Merger Consideration, and any unpaid dividends and
distributions on the ABI Common Shares deliverable in respect of each share of
Murdock Common Stock such shareholder holds as determined pursuant to this
Agreement, in each case, without any interest thereon. Any other provision of
this Agreement notwithstanding, neither ABI, American Bank, the Surviving
Corporation, nor shall the Exchange Agent be liable to a holder of Murdock
Common Stock for any amount paid or property delivered in good faith to a public
official pursuant to any abandoned property, escheat, or similar law.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF MURDOCK
Murdock hereby represents and warrants to ABI and American Bank as
follows:
5.1 ORGANIZATION, STANDING, AND POWER. Murdock is a state banking
corporation duly organized, validly existing, and in active status under the
laws of the State of Florida, and has the requisite corporate power and
authority to own, lease, and operate its properties and to carry on its business
as it is now being conducted . Murdock is not required to be qualified or
licensed to do business as a foreign corporation in any other jurisdiction.
Murdock's deposits are insured by the FDIC to the maximum extent permitted by
Law. Murdock has provided to ABI true, complete, and correct copies of the
articles of incorporation and bylaws of Murdock, in each case as amended and in
effect on the date of this Agreement.
5.2 AUTHORITY; NO CONFLICT.
(a) Murdock has all the requisite corporate power and
authority to execute and deliver this Agreement and, subject to the requisite
approval and adoption of this Agreement by the
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<PAGE> 12
stockholders of Murdock, to perform its obligations under this Agreement and
consummate the transactions contemplated hereby. The execution, delivery, and
performance of this Agreement by Murdock and the consummation by Murdock of the
transactions contemplated hereby, have been duly and validly authorized by all
necessary corporate action in respect thereof on the part of Murdock, subject in
the case of the consummation of the Merger contemplated hereby to the requisite
approval and adoption of this Agreement by the stockholders of Murdock as
contemplated by Section 8.3 of this Agreement. The affirmative vote of the
holders of a majority of the outstanding shares of Murdock Common Stock is the
only vote required of Murdock's capital stock necessary in connection with the
consummation of the Merger. No other vote of the holders of Murdock's capital
stock is necessary in conjunction with this Agreement or consummation of the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by Murdock and, subject to such requisite stockholder approval of the
Agreement (and assuming due authorization, execution and delivery by ABI and
American Bank), the Agreement constitutes a legal, valid, and binding obligation
of Murdock enforceable against Murdock in accordance with its terms (except in
all cases to the extent as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, or similar Laws affecting
the enforcement of creditors' rights and remedies generally and except that the
availability of the equitable remedy of specific performance and injunctive
relief is subject to the discretion of the court before which any proceedings
may be brought).
(b) At a meeting duly called and held, the Board of Directors
of Murdock has determined that this Agreement and the transactions contemplated
hereby, including the Merger, are fair to and in the best interests of Murdock's
stockholders, approved and adopted this Agreement and the transactions
contemplated hereby, and resolved (subject to Section 8.3 of this Agreement) to
recommend approval and adoption of this Agreement by its stockholders. Murdock
has been advised that all of Murdock's directors and its President and Chief
Executive Officer intend to vote in favor of the approval and adoption of this
Agreement at the Stockholders' Meeting and have executed a letter agreement to
this effect with ABI in substantially the form as set forth in Exhibit B to this
Agreement.
(c) Except as disclosed in Section 5.2(c) of the Murdock
Disclosure Memorandum, neither the execution and delivery of this Agreement by
Murdock, nor the consummation by Murdock of the transactions contemplated
hereby, nor compliance by Murdock with any of the terms or provisions herein,
will (i) conflict with or violate any provision of the Articles of Incorporation
or Bylaws of Murdock, (ii) violate, conflict with, constitute or result in a
breach of any term, condition, or provision of, or constitute a default (with or
without notice or the lapse of time, or both) under, or give rise to any right
of termination, cancellation, or acceleration of any obligation or the loss of a
benefit under, or require a Consent pursuant to, or result in the creation of
any claims, lien, pledge, security interest, charge, or other encumbrance of any
kind whatsoever ("Liens") upon any assets or properties of Murdock pursuant to,
any of the terms, provisions, or conditions of any loan or credit agreement,
note, bond, mortgage, indenture, deed of trust, license, agreement, contract,
lease, Permit, concession, franchise, plan, or other instrument or obligation to
which Murdock is a party, or by which any of its assets or properties may be
bound or affected, except for such violations, conflicts, breaches, defaults,
creation of Liens, or failure to obtain such a Consent that would not,
individually or in the aggregate, have a Material Adverse Effect on Murdock or
the Surviving Corporation or materially threaten, impede, or impair the
consummation of the transactions contemplated by this Agreement, or (iii)
subject to receipt of the requisite approvals and Consents referred to in
Sections 9.1(a), 9.1(b), and 9.1(e) of this Agreement, conflict with or violate
any judgment, order, writ, Injunction, decree, or Law applicable to Murdock or
any of its assets or
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<PAGE> 13
properties, which conflict or violation, individually or in the aggregate, would
have or be reasonably likely to have a Material Adverse Effect on Murdock.
(d) Other than (i) in connection or compliance with the
provisions of applicable state corporate and securities Laws, the Securities
Laws, and rules of Nasdaq, (ii) Consents required from, or notification, to or
filings with Regulatory Authorities, and (iii) notices to or filings with the
Internal Revenue Service, or the Pension Benefit Guaranty Corporation with
respect to any employee benefit plans, or under the HSR Act, no notice to,
registration, declaration, or filing with, order, authorization, or Permit of,
exemption or waiver by, or Consent of, or any action by any court, governmental,
regulatory, or administrative agency, commission, authority, instrumentality, or
other public body, domestic or foreign (a "Governmental Entity") is necessary or
required as a pre-condition to the execution and delivery of this Agreement by
Murdock or the consummation by Murdock of the Merger and the other transactions
contemplated hereby, other than such notices, registrations, declarations, or
filings, which if not made or obtained would not have or be reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on Murdock.
5.3 CAPITALIZATION.
(a) The authorized capital stock of Murdock consists of, and
as of the Closing will consist of 800,000 shares of Murdock Common Stock, of
which 385,015 shares are, and as of Closing will be, issued and outstanding.
There are no treasury shares. All of the issued and outstanding shares of
Murdock Common Stock are duly and validly issued and are fully paid and
nonassessable. None of the outstanding shares of Murdock Common Stock has been
issued in violation of any preemptive rights. Except for 14,000 shares of
Murdock Common Stock reserved for issuance and issuable upon the exercise of
outstanding options granted to the President of Murdock, as of the date hereof,
there are no shares of Murdock Common Stock issuable pursuant to any options,
warrants, or other outstanding rights to purchase shares of Murdock Common
Stock.
(b) Except as set forth in Section 5.3(a) of this Agreement,
there are no shares of capital stock or other voting or equity securities of
Murdock outstanding and Murdock has not granted and there are not outstanding
any options, warrants, scrip, rights to subscribe to or acquire, calls or
commitments of any character whatsoever relating to, or securities or rights
convertible into or exchangeable for, shares of the capital stock of Murdock or
any contracts, commitments, undertakings, or other arrangements of any kind to
which Murdock is a party or by which Murdock may be bound to issue, deliver, or
sell additional shares of its capital stock or other voting securities of
Murdock, or any options, warrants, scrip, or rights to purchase or acquire any
additional shares of its capital stock. There are no outstanding obligations of
Murdock to repurchase, redeem, or otherwise acquire any shares of the capital
stock of Murdock.
5.4 NO SUBSIDIARIES. Murdock does not have any Subsidiaries.
5.5 REGULATORY FILINGS; FINANCIAL STATEMENTS.
(a) Murdock (i) has delivered to ABI copies of the balance
sheets (including related notes and schedules, if any) of Murdock as of June 30,
1997, December 31, 1996, 1995, and 1994, and the related statements of income,
changes in shareholders' equity, and cash flows (including related notes and
schedules, if any) for the six months ended June 30, 1997, and for each of the
three fiscal years ended December 31, 1996, 1995, and 1994, as filed by Murdock
with the
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<PAGE> 14
FDIC and the Florida Department of Banking and Finance (the "Department"), and
(ii) will deliver to ABI the balance sheets (including the related notes and
schedules, if any) of Murdock and the related statements of income, changes in
shareholders' equity, and cash flows (including related notes and available
schedules, if any) included in Murdock's call reports filed and published in
accordance with applicable federal and state regulations with respect to the
periods ended subsequent to June 30, 1997 (the financial statements described in
this Section 5.5(a)(i) and (ii), collectively, the "Murdock Financial
Statements"). Murdock has furnished ABI with all management letters of its
outside independent certified public accountants relating to audits performed in
connection with the Murdock Financial Statements. Each of the Murdock Financial
Statements, including, in each case, any related notes: (A) is true or will be
true, complete, and correct in all material respects as of their respective
dates, (B) is or, if dated after the date of this Agreement, will be in
accordance with and supported by and consistent with the books and records of
Murdock, including, without limitation, a general ledger and detailed trial
balances, which books and records have been made available to ABI and which have
been or will have been maintained in accordance with good business practices,
(C) is or will be prepared in accordance with GAAP (except as may be indicated
therein or in the notes thereto), and (D) presents or will present fairly the
consolidated financial position and the consolidated results of operations,
changes in shareholders' equity, and statements of cash flows of Murdock as of
the dates and for the periods indicated subject, in the case of interim
financial statements, to normal year-end adjustments and any other adjustments
described therein which were not or are not expected to be material in amount,
and except for the absence of certain footnote information in the unaudited
statements. All Murdock Financial Statements presented for any fiscal year ended
December 31 are and will be audited.
(b) Since January 1, 1994, Murdock has timely filed all forms,
reports, documents, and statements, including any call reports, required to be
filed by Murdock with any Regulatory Authority, together with any amendments or
supplements required to be made with respect thereto (collectively referred to
as the "Murdock Regulatory Documents"), and all such Murdock Regulatory
Documents have been filed on the appropriate form and prepared in all material
respects in accordance with such form's instruction and the rules and
regulations of the applicable Regulatory Authority and all other applicable
Laws. None of the Murdock Regulatory Documents, including any financial
statements, exhibits, and schedules thereto, filed with a Regulatory Authority,
as of their respective filing dates, contained, and no such Murdock Regulatory
Documents filed after the date of this Agreement will contain, any untrue
statements of a material fact or omit to state any material fact necessary in
order to make the statements made therein, in light of the circumstances under
which they were made, not misleading. Murdock is not required to file any forms,
reports, or other documents with the SEC.
5.6 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as disclosed in
Section 5.6 of the Murdock Disclosure Memorandum, since December 31, 1996: (i)
Murdock has conducted its business in all material respects only in the ordinary
course and in a manner consistent with past practices, (ii) there have been no
events, changes, developments, or occurrences which have had, or which would
have, individually or in the aggregate, a Material Adverse Effect on Murdock,
and (iii) Murdock has not taken any action, or failed to take any action
(whether or not in the ordinary course and consistent with past practices),
prior to the date of this Agreement, which action or failure, if taken after the
date of this Agreement, would represent or result in a material breach or
violation of the covenants and agreements of Murdock provided in Articles VII
and VIII of this Agreement.
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5.7 NO UNDISCLOSED LIABILITIES. Except as disclosed in Section 5.7 of
the Murdock Disclosure Memorandum, Murdock does not have any material
obligations or liabilities (contingent or otherwise whether accrued or
reserved), and there is no existing condition, situation, or set of
circumstances which could reasonably be expected to result in such obligation or
liability, except obligations and liabilities (i) which are fully accrued or
reserved against in the balance sheets of Murdock as of June 30, 1997, included
in the Murdock Financial Statements or reflected in the notes thereto, or (ii)
which were fully incurred or paid after June 30, 1997 in the ordinary course of
business consistent with past practices. Except as set forth in Section 5.7 of
the Murdock Disclosure Memorandum, since June 30, 1997, Murdock has not incurred
or paid any obligation or liability which would have a Material Adverse Effect
on Murdock.
5.8 TAX MATTERS.
(a) All Tax Returns required to be filed by or on behalf of
Murdock have been timely filed, or requests for extensions have been timely
filed, granted, and have not expired, for periods ending on or after December
31, 1994, and on or before the date of the most recent fiscal year and
immediately preceding the Effective Time, and all such Tax Returns filed are
true, complete, and accurate in all material respects. To the Knowledge of
Murdock, all Taxes shown to be due on such Tax Returns have been timely paid by
Murdock. There is no audit examination, deficiency, or refund litigation or
matter in controversy in which Murdock has been joined as a party with respect
to any Taxes, except as reserved against in the Murdock Financial Statements or
as disclosed in Section 5.8 of the Murdock Disclosure Memorandum. All Taxes and
other liabilities due with respect to completed and settled examinations or
concluded litigation have been paid, accrued, or provided for as disclosed in
Section 5.8 of the Murdock Disclosure Memorandum.
(b) Except as disclosed in Section 5.8 of the Murdock
Disclosure Memorandum, Murdock has not executed an extension or waiver of any
statute of limitations on the assessment or collection of any Tax due that is
currently in effect.
(c) Except as disclosed in Section 5.8 of the Murdock
Disclosure Memorandum, adequate provision for any Taxes due or to become due for
Murdock for any period or periods through June 30, 1997, has been made and is
reflected on the June 30, 1997 financial statements included in the Murdock
Financial Statements.
(d) Deferred Taxes of Murdock have been provided for in the
Murdock Financial Statements in accordance with GAAP.
(e) All Taxes which Murdock is required by Law to withhold or
to collect for payment have been duly withheld and collected, and have been paid
to the proper Governmental Entity or are being withheld by Murdock, except for
such failures which are not, individually or in the aggregate, material in
amount. Murdock is in compliance with, and its records contain all information
and documents (including properly completed Internal Revenue Service Forms W-9)
necessary to comply with, all applicable information reporting and Tax
withholding requirements under federal, state, and local Tax Laws and such
records identify with specificity all accounts subject to backup withholding
under Section 3406 of the Internal Revenue Code, except for such instances of
noncompliance and such omissions which would not have, individually or in the
aggregate, a Material Adverse Effect on Murdock.
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(f) Except as disclosed in Section 5.8 of the Murdock
Disclosure Memorandum, Murdock has not made any payments, is not obligated to
make any payments, and is not a party to any contract, agreement, or other
arrangement that could obligate Murdock to make any payments that would be
disallowed as a deduction under Section 280G or 162(m) of the Internal Revenue
Code.
(g) There are no Liens with respect to Taxes upon any of the
material assets or properties of Murdock, except for loans on Murdock's books
generated in the ordinary and normal course of business consistent with past
practices.
(h) There has not been an ownership change, as defined in
Internal Revenue Code Section 383(g), of Murdock that occurred during or after
any taxable period in which Murdock or any Murdock Subsidiary incurred a net
operating loss that carries over to any taxable period ending after December 31,
1995.
(i) Murdock has not filed any consent under Section 341(f) of
the Internal Revenue Code concerning collapsible corporations.
(j) All material elections with respect to Taxes affecting
Murdock as of the date of this Agreement have been or will be timely made as set
forth in Section 5.8 of the Murdock Disclosure Memorandum. After the date
hereof, other than as set forth in Section 5.8 of the Murdock Disclosure
Memorandum, no election with respect to Taxes will be made without the prior
written consent of ABI, which consent will not be unreasonably withheld.
5.9 ASSETS. A true, complete, and correct list of all real property,
owned or leased by Murdock, including without limitation real property acquired
in foreclosure of mortgages in the ordinary course of business, is set forth in
Section 5.9 of the Murdock Disclosure Memorandum. Except as set forth in Section
5.9 of the Murdock Disclosure Memorandum, Murdock has good, valid and marketable
title to all of its assets and properties, whether tangible or intangible, real,
personal, or mixed, free and clear of all Liens, mortgages, conditional and
installment sale agreements, and secondary interests, of any kind whatsoever,
except for (i) Liens for current taxes and assessments not-yet-past due, (ii)
inchoate mechanic and materialmen Liens for construction in progress, (iii)
workmen's, repairmen's, warehouse men's, and carriers' Liens arising in the
ordinary course of business, (iv) Liens incurred in the ordinary course of its
banking business, and (v) such imperfections or irregularities of title, or
Liens as do not materially affect the use of such asset or property which are
subject thereto or otherwise materially impair or affect the business operation
of Murdock. All real property which is identified as owned in Section 5.9 of the
Murdock Disclosure Memorandum is held in fee simple by Murdock and none of the
Liens thereon which are disclosed in Section 5.9 of the Murdock Disclosure
Memorandum interfere with the enjoyment or use of such real property. All
buildings, and all fixtures, equipment, and other assets and properties which
are material or necessary to the business of Murdock held under leases or
subleases by Murdock are held under valid instruments enforceable in accordance
with their respective terms (except in all cases to the extent as such
enforcement may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, or other Laws, laws affecting creditors' rights and remedies
generally and except that the availability of equitable remedy of the specific
performance or injunctive relief is subject to the discretion of the court
before which any proceedings may be brought), and each such instrument is in
full force and effect. Substantially all of the equipment and other assets
regularly used in the business of Murdock is in good and serviceable condition,
reasonable wear and tear excepted.
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5.10 ALLOWANCE FOR LOAN OR CREDIT LOSSES. The allowance for loan or
credit losses (the "Allowance") shown on the statements of the financial
condition of Murdock as of June 30, 1997 included in the Murdock Financial
Statements was, and the Allowance shown on the statements of financial condition
of Murdock as of the dates subsequent to the execution of this Agreement
included in the Murdock Financial Statements will be, in each case as of the
dates thereof, adequate to provide for losses relating to or inherent in the
loan and lease portfolios (including accrued interest receivable) of Murdock and
other extensions of credit (including letters of credit and commitments to make
loans or extend credit) by Murdock and all off balance sheet expenses of
Murdock. Except as set forth in Section 5.10 of the Murdock Disclosure
Memorandum, as of the Effective Time the ratio of Allowance, as established on
such date in good faith by management of Murdock, to total loans outstanding at
such time, shall not exceed the ratio of Allowance to the total loans
outstanding as reflected on the consolidated balance sheet of Murdock as of June
30, 1997 (without regard to recoveries by Murdock and except as otherwise agreed
to by ABI).
5.11 NOTES AND OBLIGATIONS.
Except as set forth in Section 5.11 of the Murdock Disclosure
Memorandum or as provided in the Allowance as described in Section 5.10 of this
Agreement, Murdock is not aware of any facts which would cause management of
Murdock to believe that any loan or note receivable or any other obligation
owned by Murdock or due to it as shown on the balance sheets as of June 30, 1997
included in the Murdock Financial Statements or any such loan or note receivable
or other obligations on the date hereof and as of the Effective Time has not
been and will not be genuine, legal, valid, and collectible obligations of the
respective makers thereof and is not and will not be subject to any offset or
counterclaim.
5.12 INSURANCE. Set forth in Section 5.12 of the Murdock Disclosure
Memorandum is a true, complete, and correct list of all insurance policies
maintained by Murdock, including, but not limited to life, casualty, fire,
general liability, employers' liability, workers' compensation, title,
directors' and officers' liability, credit, fidelity, business interruption,
errors and omissions, and all other forms of insurance, in each case indicating
the name of the insurer, and the amount, scope, and coverage of such policies
(including the effective dates of the policy, deductibles, and any aggregate
limits). All material policies set forth in Section 5.12 of the Murdock
Disclosure Memorandum are in full force and effect, and with respect to all
policies, all premiums payable with respect to all periods up to and including
the date of Closing have been, or will be fully paid. Murdock has not received
any notice from any insurance carrier or otherwise that: (i) such insurance will
be cancelled or terminated or that coverage thereunder will be reduced or
eliminated, or (ii) premium costs with respect to such policies of insurance
will be substantially increased. Except as disclosed in Section 5.12 of the
Murdock Disclosure Memorandum, there are no claims pending under such policies
of insurance and no notices have been given by Murdock under such polices.
5.13 ENVIRONMENTAL MATTERS.
(a) Except as disclosed in Section 5.13 of the Murdock
Disclosure Memorandum, to the Knowledge of Murdock, Murdock, its Participation
Facilities, and its Loan Properties are, and have been, in compliance in all
material respects with all applicable Environmental Laws, except for violations
which do not and would not have a Material Adverse Effect, individually or in
the aggregate, on Murdock or the Surviving Corporation.
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(b) Except as disclosed in Section 5.13 of the Murdock
Disclosure Memorandum, to the Knowledge of Murdock there is no suit, claim,
action, or proceeding pending or threatened before any Governmental Entity or
other forum in which Murdock or any Participation Facility or Loan Property has
been or, with respect to threatened proceedings, may be named as a defendant or
a potentially responsible party (i) for alleged noncompliance (including by any
predecessor) with any Environmental Law, or (ii) relating to the release into
the environment of any Hazardous Material in violation of applicable law,
whether or not occurring at, on, under, or involving a site owned, leased, or
operated by Murdock, or any of its Participation Facilities or Loan Properties
(or Murdock in respect of any Participation Facility or Loan Property). To the
Knowledge of Murdock, except as disclosed in Section 5.13 of the Murdock
Disclosure Memorandum, no notice, notification, demand, request for information,
citation, summons, or order has been received, no complaint has been filed, no
penalty has been assessed, and no investigation or review is pending or, to the
Knowledge of Murdock, is threatened by any Governmental Entity or other person
relating to or arising out of any Environmental Law which has, or which seeks,
or which if adversely determined would have or would be reasonably likely to
have, individually or in the aggregate, a total cost to Murdock of $75,000 or
more.
(c) Except as disclosed in Section 5.13 of the Murdock
Disclosure Memorandum, to the Knowledge of Murdock there is no reasonable basis
for any suit, claim, action, or proceeding, or any notice, notification, demand,
request for information, citation, summons, order, complain, penalty,
investigation, or review of the type as described in Section 5.13(b) of this
Agreement.
(d) Except as disclosed in Section 5.13 of the Murdock
Disclosure Memorandum, to the Knowledge of Murdock, there have been no releases
of Hazardous Material in violation of any Environmental Law, in, on, under, or
affecting any current or previously owned or leased real properties of Murdock,
or any Participation Facility or any Loan Property of Murdock, except where such
release does not and would not have, individually or in the aggregate, a
Material Adverse Effect on Murdock or the Surviving Corporation.
5.14 COMPLIANCE WITH LAWS; NO VIOLATIONS.
(a) Murdock has in effect and holds all permits, licenses,
variances, certificates, authorizations, filings, franchises, notices, rights,
Consents, and approvals of and from all Governmental Entities (collectively,
"Permits") necessary for it to own, lease, and operate its assets and properties
and to carry on its business as now conducted, except for such Permits the
absence of which do not have, individually or in the aggregate, a Material
Adverse Effect on Murdock.
(b) Except as set forth in Section 5.14(b) of the Murdock
Disclosure Memorandum, Murdock is not presently in conflict with or, in default
under, or in violation of, (i) its Articles of Incorporation, Bylaws, or
comparable organizational documents, (ii) any Law, Permit, order, judgment,
writ, Injunction, or decree applicable to its businesses or to its employees
conducting such business or by which its assets or properties are bound or
affected, other than those conflicts, defaults, or violations of Permits that do
not have, individually or in the aggregate, a Material Adverse Effect on
Murdock, or (iii) any Regulatory Agreement (as defined in Section 5.14(c) of
this Agreement).
(c) Except as set forth in Section 5.14(c) of the Murdock
Disclosure Memorandum, since January 1, 1994 Murdock has not received any
notification or communication
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from any Governmental Entity, or from any of the Department, the FDIC, the SEC,
the United States Department of Justice ("DOJ"), the Federal Trade Commission
("FTC"), all state regulatory authorities having jurisdiction over Murdock, or
the staffs thereof (the Department, the FDIC, the SEC, DOJ, FTC, such state
regulatory authorities, and the staffs thereof are sometimes referred to herein
collectively as "Regulatory Authorities") (i) asserting that Murdock is not in
compliance with any of the Laws, orders, judgments, writs, Injunctions, or
decrees which such Governmental Entity enforces, (ii) threatening to revoke any
Permits, or (iii) requiring or threatening to require Murdock, or indicating
that Murdock may be required, to enter into or consent to the issuance of a
cease and desist order, formal agreement, directive, commitment, or memorandum
of understanding, or to adopt any Board resolution or similar undertaking, or
any other agreement restricting or limiting or purporting to restrict or limit
in any manner the operations or conduct of business of Murdock, or in any manner
relates to its capital adequacy, its credit or reserve policies, its management,
or the payment of dividends (any such notice, communication, memorandum,
agreement, or order herein referred to as a "Regulatory Agreement"). Except as
Disclosed in Section 5.14(c) of the Murdock Disclosure Memorandum, Murdock has
not consented to, entered into, or agreed to enter into, any Regulatory
Agreement. True and complete copies of all Regulatory Agreements have been
delivered to ABI. Except for routine examinations by the Department and the
FDIC, as of the date of this Agreement, to the Knowledge of Murdock no
investigation by any Governmental Entity with respect to Murdock is pending or
threatened.
5.15 LABOR MATTERS. Murdock is not a party to, or bound by, any
collective bargaining agreement, contract, or other agreement or understanding
with any labor union or labor organization, nor has Murdock been joined as a
party in any action, suit, claim or proceeding asserting that Murdock has
committed an unfair labor practice (within the meaning of the National Labor
Relations Act or comparable state law) or seeking to compel Murdock to bargain
with any labor organization as to wages or conditions of employment, nor is
there any strike, work stoppage, or other labor dispute involving Murdock
pending or threatened, other than routine disputes with individual employees or
former employees which routine disputes would not have or be reasonably likely
to have, individually or in the aggregate, a Material Adverse Effect on Murdock.
To the Knowledge of Murdock, there is no any activity involving employees of
Murdock seeking to certify a collective bargaining unit or engaging in any other
organizing activity. To the Knowledge of Murdock, no material employment related
dispute, arbitration, action, suit, claim, or proceeding is pending or
threatened.
5.16 EMPLOYEE BENEFIT PLANS.
(a) Murdock has disclosed in Section 5.16(a) of the Murdock
Disclosure Memorandum, and has delivered to ABI prior to the execution of this
Agreement, true, complete, and correct copies or summaries thereof, and
financial data with respect to, all pension, retirement, profit-sharing,
deferred compensation, stock option, employee stock ownership, severance pay,
vacation, bonus, or other incentive plans, all other material written employee
programs, arrangements, or agreements, all medical, vision, dental, or other
health plans, all life insurance plans, and all other material employee benefit
plans or fringe benefit plans, including, without limitation, all "employee
benefit plans" (as that term is defined in Section 3(3) of ERISA), currently
adopted, maintained by, sponsored in whole or in part by, or contributed to by
Murdock or any affiliate thereof for the benefit of employees, retirees,
dependents, spouses, directors, independent contractors, or other beneficiaries
who are eligible to participate (collectively, the "Murdock Benefit Plans"). Any
of the Murdock Benefit Plans which is an "employee pension benefit plan" (as
that term is defined in Section 3(2) of ERISA) is referred to herein as a
"Murdock ERISA Plan." No
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Murdock Benefit Plan is or has been a multi-employer plan within the meaning of
Section 3(37) of ERISA.
(b) Except as disclosed in Section 5.16(b) of the Murdock
Disclosure Memorandum, all Murdock Benefit Plans are in compliance in all
material respects with the applicable terms of ERISA, the Internal Revenue Code,
and any other applicable Laws, the breach or violation of which would be
reasonably likely to have a Material Adverse Effect on Murdock.
(c) Murdock does not have any plans which are a "defined
benefit pension plan" (as defined in Section 4140 of the Internal Revenue Code).
(d) Except as set forth in Section 5.16(d) of the Murdock
Disclosure Memorandum, no Murdock Benefit Plan provides death or medical
benefits (whether or not insured) with respect to current or former employees of
Murdock or any ERISA affiliate beyond their retirement or other termination of
service, other than (i) coverage mandated under applicable Law, including but
not limited to the continuation of group health plan coverage requirements of
Section 4980B of the Internal Revenue Code and ERISA Section 601 et seq. (ii)
death benefits or retirement benefits under any "employee pension plan" (as that
term is defined in Section 3(2) of ERISA), or (iii) benefits the full cost of
which is borne by current or former employee (or his or her beneficiary).
(e) No Murdock Benefit Plan or other arrangement authorizes
grants of either stock appreciation rights or restricted stock of Murdock and
there are no outstanding stock appreciation rights or restricted stock of
Murdock.
(f) Except as disclosed in Section 5.16(f) of the Murdock
Disclosure Memorandum, neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby will (i) result in any
payment (including, without limitation, severance or golden parachute payments)
becoming due to any director or any employee of Murdock from Murdock under any
Murdock Benefit Plan or otherwise, except as may result from the payment of
unemployment insurance premiums or similar payments required by applicable Law
as a result of the termination of the employment of one or more employees of
Murdock, (ii) increase any benefits otherwise payable under any Murdock Benefit
Plan, or (iii) result in any acceleration of the time of payment or vesting of
any such benefits.
5.17 COMMITMENTS AND CONTRACTS. Except as disclosed in Section 5.17 of
the Murdock Disclosure Memorandum, Murdock is not a party or subject to any of
the following (whether written or oral, expressed or implied): (i) any
employment, severance, termination, consulting, or retirement agreement,
contract, arrangement or understanding or other obligation understanding
(including any understandings or obligations with respect to severance or
termination pay liabilities or fringe benefits) with any present or former
officer, director, or employee providing for aggregate payments to any person in
any calendar year in excess of $50,000; (ii) any real property lease or
sublease; (iii) any contract, agreement, arrangement, or other instrument
containing noncompetition covenants which limits the ability of Murdock to
compete in any line of business or which involves any restriction of the
geographical area in which Murdock or any of its affiliates may carry on its
business; (iv) any agreement, contract, or other instrument or commitment
relating to the borrowing of money by Murdock or the guarantee by Murdock of any
such obligation (other than agreements, contracts, or other instruments, or
commitments evidencing deposit liabilities, purchases of federal
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<PAGE> 21
funds, sales of certificate of deposits, advances from the Federal Reserve Bank
or the Federal Home Loan Bank, fully-secured repurchase agreements, or
agreements, contracts, or other instruments and understandings relating to
borrowings or guarantees made in the ordinary course of business); (v) any
agreement, contract, personal property or equipment lease, or instrument
requiring payments in excess of $25,000 or having a term of greater than one
year (in each case other than agreement, contract, or instrument relating to
loans, extensions of credit, trusts or other banking or fiduciary service
provided to customers of Murdock in the ordinary course of its banking
business); and (vii) any other agreement, contract, lease, commitment, or other
instrument or understanding or amendment thereto as of the date of this
Agreement material to the assets, business, conditions, or prospects of Murdock
or not made in the ordinary course of business to which Murdock is a party or by
which it is bound (together with all contracts, agreements, leases, commitments,
or other instruments or understandings referred to in Sections 5.9 and 5.16(a)
of this Agreement, the "Murdock Contracts").
5.18 MATERIAL CONTRACT DEFAULTS. Except as set forth in Section 5.18 of
the Murdock Disclosure Memorandum, Murdock is not, or has not received any
notice or has any Knowledge that any other party is, in default in any respect
under any Murdock Contract or any other material contract, agreement,
commitment, arrangement, lease, insurance policy, or other instrument to which
Murdock is a party or by which Murdock or any of its assets, business, or
operations thereof may be bound or affected or under which its assets, business,
or operations receives benefits except for those defaults which would not have,
individually or in the aggregate, a Material Adverse Effect on Murdock; and
there has not occurred any event that with the lapse of time or the giving of
notice or both would constitute such a default. With respect to each Murdock
Contract, except as disclosed in Section 5.18 of the Murdock Disclosure
Memorandum: (i) each contract, agreement, commitment, lease, policy, or other
instrument is in full force and effect, (ii) Murdock is not in material default
thereunder, and (iii) Murdock has not repudiated or knowingly waived any
material provision of any such Murdock Contract. All of the indebtedness of
Murdock for money borrowed may be prepaid at any time by Murdock without penalty
or premium.
5.19 LEGAL PROCEEDINGS. Except as disclosed in Section 5.19 of the
Murdock Disclosure Memorandum, there are no actions, suits, or proceedings
instituted or pending or, to the Knowledge of Murdock, threatened (or unasserted
but considered probable of assertion and which if asserted would have at least a
reasonable probability of an unfavorable outcome) against Murdock, or against
any asset, property, employee benefit plan, interest, or right of any of them,
that would have, individually or in the aggregate, a Material Adverse Effect on
Murdock or that might reasonably be expected to materially threaten, impede, or
impair the consummation of the transactions contemplated by this Agreement.
Except as disclosed in Section 5.19 of the Murdock Disclosure Memorandum,
Murdock is not a party to any agreement, contract, or other instrument or is
subject to any restriction under its Articles of Incorporation or Bylaws, or
other corporate restriction, nor is there any judgment, order, writ, Injunction,
or decree of any Governmental Entity or arbitrator that would have, individually
or in the aggregate, a Material Adverse Effect on Murdock or that might
reasonably be expected to materially threaten, impede, or impair the
consummation of the transactions contemplated by this Agreement. Section 5.19 of
the Murdock Disclosure Memorandum includes a summary report of all actions,
suits, or proceedings as of the date of this Agreement to which Murdock is a
party and which names Murdock as a defendant or a cross-defendant, and where the
estimated maximum exposure is $15,000 or more.
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5.20 INTELLECTUAL PROPERTY. Section 5.20 of the Murdock Disclosure
Memorandum sets forth a true, complete, and correct list of all material
software, computer programs, trade secrets, trademarks, trademark rights,
copyrights, service marks, service names, trade names, proprietary processes,
patents, inventions, or similar rights, or applications for any of the foregoing
(collectively, "Intellectual Property"), which are necessary to operate or
conduct or are used in the business of Murdock. Murdock owns or possess all
material licenses or other rights necessary to use such Intellectual Property
free and clear of any Lien and without infringing upon or otherwise acting
adversely to the Intellectual Property rights of any other person, except for
those Intellectual Property rights as to which the absence of ownership rights
or existence of infringement would not, individually or in the aggregate, have
or be reasonably likely to have a Material Adverse Effect on Murdock. Murdock
has not received notice claiming that it is infringing upon or otherwise acting
adversely to any Intellectual Property of any other person.
5.21 BROKERS AND FINDERS. No broker or finder has acted directly or
indirectly for Murdock in connection with this Agreement or the transactions
contemplated hereby.
5.22 STATEMENTS TRUE AND CORRECT. None of the information supplied or
to be supplied by Murdock for inclusion in the registration statement on Form
S-4, or other appropriate form, to be filed with the SEC by ABI under the
Securities Act or the Exchange Act in connection with the transactions
contemplated by this Agreement (the "Registration Statement"), the proxy
statement to be used by Murdock to solicit any required approval of its
stockholders as contemplated by this Agreement (the "Proxy Statement"), or any
other document to be filed with the SEC or any other Regulatory Authority in
connection with the transactions contemplated hereby will, at the respective
time such documents are filed, and with respect of the Proxy Statement, when it
is first mailed to the stockholders of Murdock contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements made therein, in light of the circumstances under which such
statements are made, not misleading, or, in the case of the Registration
Statement, when it is filed with the SEC and at the time it becomes effective,
be false or misleading with respect to any material fact, or omit to state any
material fact necessary in order to make the statements therein not misleading,
or, in the case of the Proxy Statement or any amendment thereof or supplement
thereto, at the time of the Stockholders Meeting of Murdock to be held pursuant
to Section 8.3 of this Agreement, including any adjournments thereof, be false
or misleading with respect to any material fact or omit to state any material
fact necessary to correct any statement or remedy any omission in any earlier
communication with respect to the solicitation of any proxy for the
Stockholders' Meeting. All documents that Murdock is responsible for filing with
any Regulatory Authority in connection with the transactions contemplated hereby
will comply as to form in all material respects with the provisions of
applicable law, including applicable provisions of the Securities Laws.
5.23 ACCOUNTING, TAX AND REGULATORY MATTERS. To the Knowledge of
Murdock, neither Murdock nor any of its affiliates has taken or agreed to take
any action that would, or has Knowledge of any fact or circumstance that is
reasonably likely to (i) prevent the transactions contemplated hereby, including
the Merger, from qualifying for "pooling of interests" treatment or as a
reorganization within the meaning of Section 368(a) of the Internal Revenue
Code, or (ii) materially impede or delay receipt of any Consents of any
Regulatory Authority referred to in Section 9.1(b) of this Agreement or result
in the imposition of a condition or restriction of the type referred to in the
last sentence of such Section 9.1(b).
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5.24 OPINION OF FINANCIAL ADVISOR. Murdock has received an opinion of
Allen C. Ewing & Co., to the effect that, as of the date of this Agreement, the
Merger Consideration is fair to the Murdock stockholders from a financial point
of view, and a true, complete, and correct copy of such opinion will be
delivered to ABI.
5.25 STATE TAKEOVER LAWS. The Board of Directors of Murdock has duly
and validly taken or will take in a timely manner all necessary actions to
exempt the transactions contemplated by this Agreement, including the Merger,
from the provisions of Sections 607.0901 through 607.0903, inclusive, of the
FBCA, and no other state takeover statute or similar Law applies or purports to
apply to the Agreement, or the transactions contemplated hereby or thereby
(collectively, "Takeover Laws").
5.26 CORPORATE GOVERNANCE PROVISIONS. Murdock has taken or will take in
a timely manner all action so that the entering into this Agreement and the
consummation of the Merger and the other transactions contemplated by this
Agreement do not and will not result in any super-majority voting requirement or
the grant of any rights to any person under the Articles of Incorporation,
Bylaws, or other governing instruments of Murdock or restrict or impair the
ability of ABI or any of its Subsidiaries to vote, or otherwise exercise the
rights of a stockholder with respect to, shares of Murdock Common Stock that may
be directly or indirectly acquired or controlled by it.
5.27 DERIVATIVE CONTRACTS. Except as disclosed in Section 5.27 of the
Murdock Disclosure Memorandum, Murdock is not a party to nor has Murdock agreed
to enter into any swap, forward, future, option, cap, floor, or collar financial
contract, or any other interest rate or foreign currency protection contract not
included on its balance sheet which is a financial derivative contract
(including various combinations thereof) (each a "Derivatives Contract").
5.28 SUPPORT OF STOCKHOLDERS. As an inducement to ABI to enter into
this Agreement, Murdock has obtained and delivered to ABI letter agreements with
each of the Murdock stockholders who serve as directors and officers of Murdock
in substantially the form as set forth in Exhibit A hereto committing these
stockholders to actively support the Merger by, among other things, voting all
shares beneficially owned by each of them, except with respect to certain shares
beneficially held by their spouses ("Spouse Shares") in favor of the Merger at
the Stockholders' Meeting and not disposing of the Murdock Common Stock other
than pursuant to the Merger.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF ABI
ABI represents and warrants to Murdock as follows:
6.1 ORGANIZATION, STANDING, AND POWER.
(a) ABI is a corporation duly organized, validly existing, and
in active status under the laws of the State of Florida, and has the requisite
corporate power and authority to own, lease, and operate its properties and to
carry on its business as it is now being conducted. ABI is duly qualified or
licensed to do business as a foreign corporation, and is in good standing in
each jurisdiction (whether federal, state, or local) where the nature of its
business or the ownership of
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leasing of its properties make such qualification or licensing necessary, except
for such jurisdictions where the failure to be so qualified or licensed is not
reasonably likely to have a Material Adverse Effect on ABI.
(b) American Bank is a state banking corporation duly
organized, validly existing, and in active status under the laws of the State of
Florida, and has the requisite corporate power and authority to own, lease, and
operate its properties and to carry on its business as it is now being
conducted. American Bank is duly qualified or licensed to do business as a
foreign corporation, and is in good standing, in each jurisdiction (whether
federal, state, or local) where the nature of its business or the ownership or
leasing of its properties make such qualification or licensing necessary, except
for such jurisdictions where the failure to be so qualified or licensed is not
reasonably likely to have a Material Adverse Effect on American Bank.
6.2 AUTHORITY; NO CONFLICT.
(a) Each of ABI and American Bank has the requisite corporate
power and authority to execute and deliver this Agreement, to perform its
obligations under this Agreement, and to consummate the transactions
contemplated hereby. The execution, delivery, and performance of this Agreement
by ABI and American Bank and the consummation by ABI and American Bank of the
transactions contemplated hereby, including the Merger, have been duly and
validly authorized by all necessary corporate action in respect thereof on the
part of ABI and American Bank. This Agreement has been duly executed and
delivered by ABI and American Bank and (assuming due authorization, execution,
and delivery by Murdock) constitutes a legal, valid, and binding obligation of
ABI and American Bank enforceable against ABI and American Bank in accordance
with its terms (except in all cases to the extent as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium, or
similar Laws affecting the enforcement of creditors' rights and remedies
generally and except that the availability of the equitable remedy of general
specific performance and injunctive relief is subject to the discretion of the
court before which any proceedings may be brought).
(b) Neither the execution and delivery of this Agreement by
ABI or American Bank, nor the consummation by ABI or American Bank of the
transactions contemplated hereby, nor compliance by ABI or American Bank with
any of the terms or provisions herein, will (i) conflict with or violate any
provision of the Articles of Incorporation or Bylaws of any ABI Company, or (ii)
violate, conflict with, constitute or result in a breach of any term, condition,
or provision of, or constitute a default (with or without notice or the lapse of
time, or both) under, or give rise to any right of termination, cancellation, or
acceleration of any obligation or the loss of any benefit under, or require a
Consent pursuant to, or result in the creation of any Lien upon any material
assets or properties of any ABI Company pursuant to, any of the terms,
provisions, or conditions of any loan or credit agreement, note, bond, mortgage,
indenture, deed of trust, license, agreement, contract, lease, Permit,
concession, franchise, plan, or other instrument or obligation to which ABI any
ABI Company is a party, or by which any of their properties or assets may be
bound or affected, when such violation, conflict, breach, default, creation of
Lien, or failure to obtain a Consent would, in the aggregate have a Material
Adverse Effect on ABI and its Subsidiary on a consolidated basis or (iii)
subject to receipt of the Consents referred to in Section 9.1(c) of this
Agreement, conflict with or violate any judgment, order, writ, Injunction,
decree, or Law applicable to any ABI Company or any of their properties or
assets which in the aggregate would have a Material Adverse Effect on ABI and
American Bank on a consolidated basis.
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(c) Other than (i) in connection or compliance with the
provisions of applicable state corporate and securities Laws, the Securities
Laws, and rules of the Nasdaq, (ii) consents or approvals Consents required from
Regulatory Authorities, and (iii) notices to or filings with the Internal
Revenue Service, or the Pension Benefit Guaranty Corporation with respect to any
employee benefit plans, or under the HSR Act, no notice to, registration,
declaration, or filing with, order, authorization, or Permit of, exemption or
waiver by, or Consent of, or any action by any Government Entity is necessary or
required in connection with the execution and delivery of this Agreement and the
consummation by ABI and American Bank of the Merger and the other transactions
contemplated by this Agreement.
6.3 CAPITALIZATION. The authorized capital stock of ABI consists of
10,000,000 ABI Common Shares, of which 4,040,927 shares were issued and
outstanding as of September 23, 1997. All of the issued and outstanding ABI
Common Shares are, and all of the ABI Common Shares to be issued in exchange for
shares of Murdock Common Stock upon consummation of the Merger when issued in
accordance with the terms of this Agreement, will be, duly and validly issued
and outstanding and fully paid and nonassessable. All of the ABI Common Shares
to be issued in the Merger will be authorized and reserved for issuance prior to
the Effective Time. None of the outstanding ABI Common Shares has been, and none
of the ABI Common Shares to be issued in exchange for shares of Murdock Common
Stock upon consummation of the Merger will be, issued in violation of any
preemptive rights.
6.4 SUBSIDIARIES. Except as disclosed in Section 6.4 of the ABI
Disclosure Memorandum, the list of Subsidiaries of ABI filed by ABI with its
most recent SEC Report (as defined in Section 6.5 of this Agreement) on Form
10-KSB for the fiscal year ended December 31, 1996 (or incorporated therein by
reference) is a true and complete list of all of the ABI Subsidiaries. ABI or
one of its Subsidiaries own all of the issued and outstanding shares of capital
stock of each ABI Subsidiary.
6.5 SEC FILINGS; FINANCIAL STATEMENTS.
(a) ABI has filed and made available to Murdock copies of all
forms, reports, and documents required to be filed by ABI with the SEC since
February 6, 1996 (collectively referred to as the "SEC Reports"). As of their
respective filing dates, each SEC Report complied as to form in all material
respects with the applicable requirements under the Securities Act and the
Exchange Act. As of their respective filing dates, no SEC Report filed contained
any untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading (except any statement
or omission therein which has been corrected or otherwise disclosed or updated
in a subsequent SEC Reports). None of the ABI Subsidiaries, including American
Bank, is required to file any forms, reports, or documents under the Exchange
Act with the SEC or with any other Regulatory Authority.
(b) The audited consolidated financial statements and the
unaudited interim financial statements of ABI (including, in each case, the
notes thereto) contained in the SEC Reports filed on Form 10-KSB or Form 10-QSB,
including any SEC Reports filed subsequent to the date of this Agreement until
the Effective Time (the "ABI Financial Statements") (as of the dates thereof and
for the periods covered thereby) (i) are or will be prepared in accordance with
GAAP (except as may be indicated in the notes to such financial statements or,
in the case of unaudited financial statements,
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as permitted by Form 10-QSB promulgated by the SEC), and (ii) present or will
present fairly the consolidated financial position of ABI and its Subsidiaries
as of their respective dates and the consolidated results of operations and cash
flows of for the periods indicated, except that the unaudited interim financial
statements were or are subject to normal and recurring year-end adjustments
which were not or are not expected to be material in amount, and except for the
absence of certain footnote information in the unaudited statements.
6.6 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since June 30, 1997, except
as disclosed in the ABI Financial Statements or in Section 6.6 of the ABI
Disclosure Memorandum, there have been no events, changes, developments, or
occurrences which have had, or are reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on ABI and its Subsidiaries on a
consolidated basis.
6.7 NO UNDISCLOSED LIABILITIES. Except as disclosed in Section 6.7 of
the ABI Disclosure Memorandum, no ABI Company has any obligations or liabilities
(contingent or otherwise whether accrued or reserved) that might reasonably be
expected to have a Material Adverse Effect on ABI and its Subsidiaries on a
consolidated basis, except obligations and liabilities (i) which are accrued or
reserved against in the ABI Financial Statements or reflected in the notes
thereto, or (ii) which were incurred or paid since June 30, 1997 in the ordinary
course of business consistent with past practices and are not reasonably likely
to have a Material Adverse Effect on ABI and its Subsidiaries.
6.8 TAX MATTERS.
(a) All Tax Returns required to be filed by or on behalf of
ABI or any of its Subsidiaries have been filed, or requests for extensions have
been filed, granted, and have not expired for periods ending on or after
February 6, 1996, and on or before the date of the most recent fiscal year and
immediately preceding the Effective Time, except to the extent that all such
failures to file, taken together, are not reasonably likely to have a Material
Adverse Effect on ABI and its Subsidiaries on a consolidated basis, and all such
returns filed are true, complete, and accurate in all material respects. ABI has
paid or caused to be paid all Taxes shown to be due on such Tax Returns. There
is no audit examination, deficiency, or refund litigation or matter in
controversy with respect to any Taxes that is reasonably likely to result in a
determination that would have a Material Adverse Effect on ABI and its
Subsidiaries on consolidated basis, except as reserved against in the ABI
Financial Statements or disclosed in Section 6.8 of the ABI Disclosure
Memorandum. All Taxes and other liabilities due with respect to completed and
settled examinations or concluded litigation have been paid accrued, or provided
for as disclosed in Section 6.8 of the ABI Disclosure Memorandum.
(b) Adequate provision for any Taxes due or to become due for
ABI or any of its Subsidiaries for any period or periods through the date of the
ABI Financial Statements, has been made and is reflected on such ABI Financial
Statements.
(c) Deferred Taxes of ABI and its Subsidiaries have been
provided for in the ABI Financial Statements in accordance with GAAP.
(d) ABI and each of its Subsidiaries are in compliance with,
and their records contain all information and documents (including properly
completed Internal Revenue Service Forms W-9) necessary to comply with, all
applicable information reporting and Tax withholding requirements under federal,
state, and local Tax Laws and such records identify with specificity all
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accounts subject to backup withholding under Section 3406 of the Internal
Revenue Code, except for such instances of noncompliance and such omissions
which are not reasonably likely to have a Material Adverse Effect on ABI and its
Subsidiaries on a consolidated basis.
6.9 ENVIRONMENTAL MATTERS.
(a) Except as disclosed in Section 6.9 of the ABI Disclosure
Memorandum, to the Knowledge of ABI each ABI Company, their Participation
Facilities, and their Loan Properties are, and have been, in compliance in all
material respects with all applicable Environmental Laws, except for violations
which are not reasonably likely to have a Material Adverse Effect on ABI and its
Subsidiaries on a consolidated basis.
(b) Except as disclosed in Section 6.9 of the ABI Disclosure
Memorandum, to the Knowledge of ABI there is no suit, claim, action, or
proceeding pending or threatened before any Governmental Entity, or other forum
in which any ABI Company or any of their Loan Properties or Participation
Facilities has been or, with respect to threatened proceedings may be named as a
defendant or a potentially responsible party (i) for alleged noncompliance
(including by any predecessor) with any Environmental Law, or (ii) relating to
the release into the environment of any Hazardous Material, whether or not
occurring at, on, under, or involving a site owned, leased, or operated by any
ABI Company, or any of their Loan Properties or Participation Facilities, except
for such proceedings pending or threatened that are not reasonably likely to
have a Material Adverse Effect on ABI and its Subsidiaries on a consolidated
basis. Except as disclosed in Section 6.9 of the ABI Disclosure Memorandum, to
the knowledge of ABI no notice, notification, demand, request for information,
citation, summons, or order has been received, to the Knowledge of ABI no
complaint has been filed, no penalty has been assessed, and to the Knowledge of
ABI no investigation or review is pending or, to the Knowledge of ABI, is
threatened by any Governmental Entity or other person relating to or arising out
of any Environmental Law.
(c) Except as disclosed in Section 6.9 of the ABI Disclosure
Memorandum, to the Knowledge of ABI there is no reasonable basis for any suit,
claim, action, or proceeding of the type as described in Section 6.9(b) of this
Agreement, except as would not have a Material Adverse Effect on ABI and its
Subsidiaries on a consolidated basis.
(d) Except as disclosed in Section 6.9 of the ABI Disclosure
Memorandum, to the Knowledge of ABI there has been no release of Hazardous
Material in, on, under, or affecting any current or previously owned or leased
real property of ABI Company, or any Participation Facility or any Loan
Property, except where such release does not or is not reasonably likely to
have, in the aggregate, a Material Adverse Effect on ABI and its Subsidiaries on
a consolidated basis.
6.10 COMPLIANCE WITH LAWS; NO VIOLATIONS.
(a) ABI is a bank holding company duly registered under the
BHC Act. Each ABI Company has in effect and holds all Permits of and from all
Governmental Entities necessary for it to own, lease, and operate its material
assets and property and to carry on its business as now conducted, except for
such Permits the absence of which are not reasonably likely to have a Material
Adverse Effect on ABI and its Subsidiaries on a consolidated basis.
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(b) Except as set forth in Section 6.10 of the ABI Disclosure
Memorandum, none of the ABI Companies is presently in conflict with or, in
default under or in violation of, (i) its Articles of Incorporation, Bylaws, or
comparable organizational documents, or (ii) Law, Permit, order, judgment, writ,
Injunction, or decree or any Regulatory Agreement applicable to their respective
businesses or to their employees conducting such business or by which their
assets or properties are bound or affected except for conflicts, defaults, or
violations that are not reasonably likely to have a Material Adverse Effect on
ABI or any of its Subsidiaries on a consolidated basis.
(c) No ABI Company has received any notification or
communication from any Governmental Entity, or from any Regulatory Authority (i)
asserting that any ABI Company is not in compliance with any of the Laws,
orders, judgments, writs, Injunctions, or decrees which such Governmental Entity
or Regulatory Authority enforces, which as a result of such noncompliance is
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on ABI and its Subsidiaries on a consolidated basis, (ii) threatening to
revoke any Permits, or (iii) requiring or threatening to require any ABI
Company, or indicating that any ABI Company may be required, to enter into or
consent to the issuance of a Regulatory Agreement. Except as disclosed in
Section 6.10 of the ABI Disclosure Memorandum, no ABI Company has consented to,
entered into, or agreed to enter into, any Regulatory Agreement. Except for
routine examination by the Federal Reserve, the FDIC, and the Department, as of
the date of this Agreement, to the Knowledge of ABI, no investigation by any
Governmental Entity with respect to ABI or American Bank is pending or
threatened.
6.11 LEGAL PROCEEDINGS. Except as disclosed in Section 6.11 of the ABI
Disclosure Memorandum, there are no actions, suits, or proceedings instituted or
pending or, to the best of the Knowledge of ABI, threatened (or unasserted but
considered probable of assertion and which if asserted would have at least a
reasonable probability of an unfavorable outcome) against any ABI Company, or
against any property, assets, interest, or right of any of them, that is
reasonably likely to have a Material Adverse Effect on ABI and its Subsidiaries
on a consolidated basis. Except as disclosed in Section 6.11 of the ABI
Disclosure Memorandum, no ABI Company is a party to any agreement or instrument
or is subject to any restrictions under their respective Articles of
Incorporation or Bylaws, or other corporate restriction, or any judgment, order,
writ, Injunction, or decree of any Governmental Entity or arbitrators that is
reasonably likely to have a Material Adverse Effect on ABI and its Subsidiaries
on a consolidated basis.
6.12 BROKERS AND FINDERS. Except for Advest, Inc., no ABI Company, nor
any of their respective directors, officers, or employees has employed any
agent, broker, finder, investment banker, or other intermediary or incurred any
liability for any financial advisory services, brokerage fees, commissions, or
finder's fees, and no broker or finder has acted directly or indirectly for ABI
or any of its Subsidiaries in connection with this Agreement or the transactions
contemplated hereby.
6.13 STATEMENTS TRUE AND CORRECT. None of the information supplied or
to be supplied by any ABI Company or any affiliate thereof for inclusion in the
Registration Statement to be filed by ABI with the SEC, will, when the
Registration Statement becomes effective, be false or misleading with respect to
any material fact, or omit to state any material fact necessary to make the
statements therein not misleading. None of the information supplied or to be
supplied by any ABI Company or any affiliate thereof for inclusion in the Proxy
Statement to be mailed to Murdock's shareholders in connection with the
Stockholders' Meeting, and any other documents to be filed by any ABI Company or
any affiliate thereof with the SEC or any other Regulatory Authority in
connection with
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the transactions contemplated hereby, will, at the respective time such
documents are filed, and with respect to the Proxy Statement, when first mailed
to the shareholders of Murdock, contain any untrue statement of a material fact
or omit to state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, or, in
the case of the Proxy Statement or any amendment thereof or supplement thereto,
at the time of the Stockholders' Meeting, be false or misleading with respect to
any material fact, or omit to state any material fact necessary to correct any
statement in any earlier communication with respect to the solicitation of any
proxy for the Stockholders' Meeting. All documents that any ABI Company or any
affiliate thereof is responsible for filing with any Regulatory Authority in
connection with the transactions contemplated hereby will comply as to form in
all material respects with the provisions of applicable Law.
6.14 ACCOUNTING, TAX, AND REGULATORY MATTERS. No ABI Company has taken
or agreed to take any action that would, or has Knowledge of any fact or
circumstance that is reasonably likely to (i) prevent the transactions
contemplated hereby, including the Merger, from qualifying for "pooling of
interests" treatment or as a reorganization within the meaning of Section 368(a)
of the Internal Revenue Code, or (ii) materially impede or delay receipt of any
Consents of Regulatory Authorities referred to in Section 9.1(b) of this
Agreement or result in the imposition of a condition or restriction of the type
referred to in the last sentence of such Section 9.1(b).
6.15 MATERIAL CONTRACTS. Except as disclosed in Section 6.15 of the ABI
Disclosure Memorandum, all material contracts, agreements, leases, commitments,
and other instruments to which ABI is a party and which are required to be filed
as an exhibit to SEC Reports have been so filed.
ARTICLE VII
CONDUCT OF BUSINESS PRIOR TO THE EFFECTIVE TIME
7.1 CONDUCT OF BUSINESS BY MURDOCK. During the period from the date of
this Agreement to the Effective Time, unless the prior written consent of ABI
shall have been obtained, and except as otherwise expressly contemplated by this
Agreement, Murdock shall: (a) operate its business only in the usual, regular,
and ordinary course consistent with past practice, (b) use its reasonable best
efforts to maintain and preserve intact its business organization, assets, and
properties and maintain its rights and franchises, (c) use its reasonable
efforts to maintain its current employee and advantageous business relationships
and retain the services of its officers and key employees, and (d) take no
action which would adversely affect or delay the ability of any party (i) to
obtain any necessary Consents of any Regulatory Authority or other Governmental
Entity required for the transactions contemplated hereby without the imposition
of a condition or restriction of the type referred to in the last sentence of
Section 9.1(b) of this Agreement or (ii) to perform its covenants and agreements
under this Agreement.
7.2 FORBEARANCE. During the period from the date of this Agreement
until the earlier of the Effective Time or the termination of this Agreement,
Murdock covenants and agrees that it will not do or agree to commit to do any of
the following, without the prior written consent of the chief executive officer
of ABI:
(a) amend the Articles of Incorporation, Bylaws, or other
governing instruments of Murdock, except as expressly contemplated by this
Agreement; or
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(b) except for single family residential mortgage loans not in
excess of $200,000, make any loan or other extension of credit to any person in
excess of $100,000; or
(c) (i) incur any additional debt obligation or other
obligation for borrowed money in excess of an aggregate of $50,000 except in the
ordinary course of the business of Murdock consistent with past practices (it
being understood and agreed that incurrence of indebtedness in the ordinary
course of business shall include, without limitation, creation of deposit
liabilities, purchases of federal funds, sales of certificates of deposit,
purchases of federal funds, advances from the Federal Reserve Bank or Federal
Home Loan Bank, and entry into repurchase agreements fully secured by U.S.
government or agency securities), or (ii) assume, guarantee, endorse, or
otherwise as an accommodation become responsible for the obligations of an
individual, corporation, or other entity, or (iii) impose, or suffer the
imposition, on any material asset or property of Murdock of any Lien or permit
any such Lien to exist (other than in connection with deposits, repurchase
agreements, bankers acceptances, "treasury tax and loan" accounts established in
the ordinary course of business, and any Liens in effect as of the date hereof
that are disclosed in Section 5.2(c) of the Murdock Disclosure Memorandum); or
(iv) or make any loan or advance which would be reasonably likely to have a
Material Adverse Effect on Murdock; or
(d) repurchase, redeem, or otherwise acquire or exchange,
directly or indirectly, any shares, or any securities convertible into any
shares, of the capital stock of Murdock, or make, declare, or pay any dividend
or make any other distribution in respect of Murdock's capital stock; or
(e) except as contemplated by Section 8.15 of this Agreement,
issue, sell, pledge, encumber, authorize the issuance of, enter into any
contract, agreement, or other contract, agreement, commitment, or other
instrument to issue, sell, pledge, encumber, or authorize the issuance of, or
otherwise permit to become outstanding any additional shares of Murdock Common
Stock or any other capital stock of Murdock (or permit the exercise of any
option, warrant, or other right requiring the issuance of any securities by
Murdock), or any stock appreciation rights, or any option, warrant, conversion,
or other right to acquire any such stock, or any security convertible into any
such stock; or
(f) adjust, split, combine, or reclassify any capital stock of
Murdock or authorize the issuance of any other securities in respect of or in
substitution for shares of Murdock Common Stock, or sell, lease, mortgage, or
otherwise dispose of or otherwise encumber any property or asset other than in
the ordinary course of business for reasonable and adequate consideration; or
(g) except for purchases of United States Treasury securities
or United States Government agency securities, which in either case have
maturities of five years or less, purchase any securities or make any material
investment, either by purchase of stock or securities, contributions to capital,
assets transfers, or purchase of any assets or property, in any person, entity,
partnership, or corporation, or otherwise acquire direct or indirect control
over any person, entity, partnership, or corporation, other than in connection
with (i) foreclosures in the ordinary course of business or (ii) acquisitions of
control in its fiduciary capacity.
(h) grant any increase in compensation or benefits to the
employees or officers of Murdock, except in accordance with past practice
disclosed in Section 7.2(h) of the Murdock Disclosure Memorandum or as required
by Law; except as disclosed in Section 7.2(h) of the Murdock Disclosure
Memorandum, pay any severance or termination pay or any bonus other than
pursuant to written policies or written contracts, agreements, or other
instruments in effect on the date of this Agreement; enter into or amend any
severance agreements with officers or employees of Murdock, grant any material
increase
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in fees or other increases in compensation or other benefits to directors of
Murdock, except in accordance with past practice disclosed in Section 7.2(h) of
the Murdock Disclosure Memorandum; or voluntarily accelerate the vesting of any
stock options or other stock-based compensation or employee benefits; or
(i) except as contemplated by Section 8.15 of this Agreement,
enter into or amend any employment agreement, contract, or other instrument
between Murdock and any person (unless such amendment is required by Law) that
Murdock does not have the unconditional right to terminate without liability
(other than liability for services already rendered), at any time on or after
the Effective Time; or
(j) adopt any new employee benefit plan of Murdock or make any
material change in or to any existing employee benefit plans of Murdock other
than any such change that is required by Law or that, in the opinion of counsel,
is necessary or advisable to maintain the Tax qualified status of any such plan;
or
(k) make any significant change in any Tax or accounting
methods or systems of internal accounting controls in effect on June 30, 1997,
except as may be appropriate to conform to changes in Tax Laws or regulatory
accounting requirements, or GAAP; or
(l) commence any action, suit, proceeding, or litigation other
than in accordance with past practice or settle any action, suit, proceeding, or
litigation involving any liability of Murdock for material money damages or
restrictions upon the operations of Murdock; or
(m) except in the ordinary course of business consistent with
past practice, modify, amend, or terminate any material contract, agreement, or
other instrument, other than renewals without material adverse change of terms,
or waive, release, compromise, or assign any material rights or claims; or
(n) except for transactions in the ordinary course of business
consistent with past practice, make any investment in excess of $50,000 either
by purchase of stock or securities, contributions to capital, property
transfers, or purchase of property or assets of any other individual,
corporation, or other entity; or
(o) sell, transfer, mortgage, encumber, or otherwise dispose
of any of its properties or assets to any individual, corporation, or other
entity or cancel, release, or assign any indebtedness to any such person or any
claims held by any such person, except in the ordinary course of business
consistent with past practice or pursuant to contracts, agreements, or other
instruments in force at the date of this Agreement; or
(p) agree to, or make any commitment to, take any of the
actions prohibited by this Section 7.2 of this Agreement.
7.3 COVENANTS OF ABI. From the date of this Agreement until the earlier
of the Effective Time or the termination of this Agreement, ABI covenants and
agrees that it shall (a) continue to conduct its business and the business of
its Subsidiaries in a manner designed in its reasonable judgment, to enhance the
long-term value of the ABI Common Shares and the business prospects of ABI and
its Subsidiaries, and (b) take no action which would (i) materially adversely
affect the ability of any party to this Agreement to obtain any Consents
required for the transactions contemplated hereby without
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imposition of a condition or restriction of the type referred to in the last
sentence of Section 9.1(b) of this Agreement, or (ii) materially adversely
affect the ability of any party to perform its covenants and agreements under
this Agreement; provided, that the foregoing shall not prevent any ABI Company
from discontinuing or disposing of any of its properties, assets, or business if
such action is, in the judgment of ABI, desirable in the conduct of the business
of ABI and its Subsidiaries.
7.4 NOTIFICATION OF ADVERSE CHANGES IN CONDITION. Each party agrees to
promptly advise the other parties to this Agreement, orally and in writing, upon
becoming aware of the occurrence or pending occurrence of any event or
circumstance relating to it or any of its Subsidiaries which is (i) reasonably
likely to have a Material Adverse Effect on such party or its Subsidiaries, if
any, or (ii) which would cause or constitute a material breach of any of the
representations, warranties, or covenants of such party contained herein, and
shall use its reasonable best efforts to prevent or promptly remedy the same.
7.5 GOVERNMENT FILINGS AND REPORTS. Each party and their respective
Subsidiaries, if any, shall file all reports required to be filed by each of
them with Regulatory Authorities between the date of this Agreement and the
Effective Time and shall deliver to the other parties copies of all such reports
promptly after the same are filed. Murdock and American Bank shall file all call
reports with the appropriate bank regulator and all other reports, applications,
and other documents required to be filed with the appropriate bank regulators
between the date hereof and the Effective Time and shall make available to the
other party copies of all such reports promptly after the same are filed. If
financial statements are contained in any such reports filed with the SEC, such
financial statements shall fairly present the consolidated financial position of
the entity filing such statements as of the dates indicated thereon and the
consolidated results of operations, changes in shareholders' equity, and cash
flows for the periods then ended in accordance with GAAP (subject in the case of
interim financial statements to normal year-end adjustments or any other
adjustments described therein which are not expected to be material in amount,
and except for the absence of certain footnote information in the unaudited
statements). As of their respective dates, such reports filed with the SEC will
comply in all material respects with the Securities Laws and will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein, in light of the circumstances under which they
were made, not misleading (except to the extent that any such statement or
omission therein has been corrected or otherwise disclosed or updated in a
subsequent report filed by such party with the SEC). Any financial statements
contained in any other reports to another Regulatory Authority shall be prepared
in accordance with the Laws applicable to such reports.
ARTICLE VIII
ADDITIONAL AGREEMENTS
8.1 REGISTRATION STATEMENT; PROXY STATEMENT; REGULATORY MATTERS.
(a) ABI shall (i) prepare and file with the SEC as soon as is
reasonably practicable after execution of this Agreement, the Registration
Statement including the Proxy Statement, (ii) use its reasonable best efforts to
cause the Registration Statement to become effective under the Securities Act
and remain effective through the Effective Time, and (iii) take any action
reasonably required to be taken under any applicable state blue sky or
securities Laws in connection therewith. Murdock shall furnish ABI with all
information concerning Murdock and the holders of Murdock Common Stock as ABI
may reasonably request in connection with the foregoing.
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(b) ABI shall promptly prepare and file, and Murdock shall
cooperate in the preparation and, where appropriate, filing of, (i) all
applications and documentation with third parties and Regulatory Authorities
having jurisdiction over the transactions contemplated by this Agreement seeking
the requested Consents and Permits to consummate the transactions contemplated
by this Agreement, and (ii) thereafter to use its reasonable best efforts to
cause the Merger to be consummated as expeditiously as reasonably practicable.
8.2 ACCESS TO INFORMATION; CONFIDENTIALITY. From the date hereof until
the earlier of the Effective Time or the termination of this Agreement, upon
reasonable notice and subject to applicable Laws, ABI and Murdock shall afford
each other, and each other's accountants, counsel, and other representatives,
during normal business hours during the period of time prior to the Effective
Time, reasonable access to all of its properties, books, contracts, commitments,
and records and, during such period, each of Murdock and ABI shall furnish
promptly to the other (a) a copy of each report, schedule, and other document
filed or received by it during such period pursuant to the requirements of the
Securities Laws or federal or state banking laws (other than reports or
documents which such party is not permitted to disclose under applicable Law),
(b) a copy of all filings made with any Regulatory Authorities or other
Governmental Entities in connection with the transactions contemplated by this
Agreement and all written communications received from such Regulatory
Authorities and Governmental Entities related thereto, and (c) all other
information concerning its business, properties, and personnel as such other
party may reasonably request, including reports of condition filed with
Regulatory Authorities. In this regard, without limiting the generality of the
foregoing, each of the parties hereto shall notify the other parties hereto
promptly upon the receipt by it of any comments from the SEC, or its staff, and
any requests by the SEC for amendments or supplements to the Registration
Statement or the Proxy Statement or for additional information and will supply
the other parties hereto with copies of all correspondence between it and its
representatives, on the one hand, and the SEC or the members of its staff or any
other government official, on the other hand, with respect to the Registration
Statement or the Proxy Statement. Each party hereto shall, and shall cause its
advisors and representatives to (x) conduct its investigation in such a manner
which will not unreasonably interfere with the normal operations, customers or
employee relations of the other and shall be in accordance with procedures
established by the parties having due regard for the foregoing, and (y) refrain
from using for any purposes other than as set forth in this Agreement and shall
treat as confidential all such information obtained by each hereunder or in
connection herewith and not otherwise known to them prior to the Effective Time.
Except as otherwise agreed to in writing by Murdock, until the Effective Time,
ABI and its Subsidiaries and affiliates will be bound by, and all information
received with respect to Murdock pursuant to this Section 8.2 shall be subject
to that certain confidentiality agreement entered into with ABI on August 11,
1997. Except as otherwise agreed to in writing by ABI, until the Effective Time,
Murdock will be bound by, and all information received with respect to ABI
pursuant to this Section 8.2 shall be subject to that certain confidentiality
agreement entered into with Murdock on August 15, 1997.
8.3 STOCKHOLDERS' APPROVALS. Murdock shall call a meeting of its
stockholders to be held on a date to be mutually agreed to by the parties as
soon as reasonably practicable after the Registration Statement is declared
effective by the SEC under the Securities Act for the purpose of considering and
voting upon approval of the Merger and such other related matters as it deems
appropriate (the "Stockholders' Meeting"). In connection with the Stockholders'
Meeting, (a) Murdock shall prepare a Proxy Statement relating to the Merger and
mail such Proxy Statement to the stockholders of Murdock, (b) the parties shall
furnish to each other all information concerning them that they may reasonably
request in connection with the preparation of the Proxy Statement, (c) the Board
of Directors of Murdock shall submit for approval of its stockholders the
matters to be voted upon at the Stockholders' Meeting,
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and shall recommend (unless the Board of Directors of Murdock shall have
concluded in good faith and based upon advice of counsel, that such
recommendation would be inconsistent with its fiduciary obligations under
applicable Law) to its stockholders the approval of this Agreement, (d) each
member of the Board of Directors of and the Chief Executive Officer of Murdock
shall vote all Murdock Common Stock beneficially owned by each in favor of
approval of this Agreement and consummation of the Merger, and (e) the Board of
Directors and executive officers of Murdock shall use their reasonable efforts
to obtain such stockholder approvals (subject to compliance with their fiduciary
duties as advised by counsel). ABI shall approve and shall cause the Board of
Directors of the Surviving Corporation to approve the Merger.
8.4 FILINGS WITH STATE OFFICES. Upon the terms and subject to the
conditions of this Agreement, Murdock and the Surviving Corporation shall
execute and file the Articles of Merger with the Secretary of State of the State
of Florida in connection with the Closing.
8.5 AGREEMENTS AS TO EFFORTS TO CONSUMMATE. Subject to the terms and
conditions of this Agreement, each of the parties hereto agrees to use, and
cause its Subsidiaries, if any, to use, its reasonable best efforts to take, or
cause to be taken, all actions, and to do, or cause to be done, all things
necessary, proper, or advisable under applicable Laws to consummate and make
effective the transactions contemplated by this Agreement as expeditiously as
practicable after the date of this Agreement, including the use of their
respective reasonable best efforts to lift or rescind any judgment, order, writ,
Injunction or other decree adversely affecting the ability of the parties to
consummate the transactions contemplated hereby and to cause to be satisfied the
conditions referred to in Article IX of this Agreement; provided, however, that
nothing herein shall preclude either party from exercising its rights under this
Agreement. ABI and Murdock shall use their reasonable best efforts to obtain all
Consents and Permits of all third parties and Regulatory Authorities necessary
or desirable for the consummation of the transactions contemplated by this
Agreement. Each party hereto agrees that to the extent practicable, it will
consult with the other parties to this Agreement with respect to obtaining all
such Permits and Consents of third parties and Governmental Entities and each
will keep the other parties apprised of the status of matters relating to the
completion of the transactions contemplated hereby.
8.6 NO SOLICITATION. Except with respect to this Agreement and the
transactions contemplated hereby, from the date of this Agreement until the
Effective Time or the termination of this Agreement pursuant to Article X,
neither Murdock nor any affiliate or representative of Murdock, shall, directly
or indirectly, solicit an Acquisition Proposal by any person. Neither Murdock
nor any affiliate or representative of any of them shall negotiate with, or
provide any information to with respect to an Acquisition Proposal. Murdock
shall promptly advise ABI orally and in writing of any such inquiries or
proposals relating to any such transaction, including all of the material terms
thereof. Murdock and any of its affiliates or representatives shall immediately
cease and cause to be terminated any existing activities, discussions, or
negotiations with any persons conducted heretofore with respect to any of the
foregoing.
8.7 EMPLOYEE BENEFITS. Following the Effective Time, ABI shall provide
generally to officers and employees of Murdock employee benefits, including
without limitation, pension benefits, health and welfare benefits, life
insurance and vacation, and severance arrangements, on terms and conditions
provided from time to time by ABI and its Subsidiaries to their similarly
situated officers and employees. For purposes of participation and vesting under
any employee benefit plan of ABI and its Subsidiaries, the service of the
employees of Murdock or its Subsidiaries prior to the Effective Time shall be
treated as service with the ABI or its Subsidiaries participating in such
employee benefit plans.
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8.8 CURRENT INFORMATION. During the period from the date of this
Agreement until the Effective Time or the termination of this Agreement, each of
ABI and Murdock shall, and shall cause its representatives to, confer on a
regular and frequent basis with representatives of the other. Each of Murdock
and ABI shall promptly notify the other of (i) any material change in its
business or operations, (ii) any material complaints, investigations or hearings
(or communications indicating that the same may be contemplated) of any
Regulatory Authority, (iii) the institution or the threat of material action,
suit, claim, or proceeding involving such party, or (iv) the occurrence, or
nonoccurrence, of any event or condition the occurrence, or nonoccurrence, of
which would be reasonably expected to cause any of such party's representations
or warranties set forth herein that are qualified as to materiality to become
untrue or inaccurate in any respect as of the Closing, and these representations
and warranties not so qualified to become untrue or inaccurate in any material
respect as of the Closing; and in each case shall keep the other fully informed
with respect thereto.
8.9 OTHER ACTIONS. No party shall take any action, except in every
case as may be required by applicable Law, that would or is intended to result
in (i) any of its representations and warranties set forth in this Agreement
that are qualified as to materiality being or becoming untrue, (ii) any of such
representations and warranties that are not so qualified becoming untrue in any
material manner having a Material Adverse Effect, (iii) any of the conditions
set forth in this Agreement not being satisfied or in a violation of any
provision of this Agreement, or (iv) adversely affecting the ability of any of
them to obtain any of the Consents or Permits from the Regulatory Authorities
(unless such action is required by sound banking practice).
8.10 PRESS RELEASES. From the date of this Agreement until the
Effective Time or the termination of this Agreement, Murdock and ABI shall
consult with each other as to the form and substance of any press release or
other public disclosure materially related to this Agreement, the Merger, or any
other transaction contemplated hereby; provided, that nothing in this Section
8.10 of this Agreement shall prohibit any party from making any disclosure which
its counsel deems necessary or advisable in order to satisfy such party's
disclosure obligations imposed by Law.
8.11 POOLING AND TAX-FREE REORGANIZATION TREATMENT. Neither Murdock nor
ABI shall take or cause to be taken any action, whether before or after the
Effective Time, which would disqualify the Merger from being treated as a
"pooling of interests" for accounting purposes or cause the Merger not to
qualify for treatment as a "reorganization" within the meaning of Section 368(a)
of the Internal Revenue Code for federal income tax purposes.
8.12 STATE TAKEOVER LAWS. Murdock shall take all action necessary to
exempt the transactions contemplated by this Agreement from, or if necessary
challenge the validity or applicability of, any applicable Takeover Laws.
8.13 CORPORATE GOVERNANCE PROVISIONS. Murdock shall take all necessary
action to ensure that the entering into of this Agreement and the consummation
of the Merger and the other transactions contemplated hereby do not and will not
result in any super-majority voting requirements under the Articles of
Incorporation, Bylaws, or other governing instruments of Murdock or restrict or
impair the ability of ABI or any of its Subsidiaries to vote, or otherwise to
exercise the rights of a shareholder with respect to, shares of Murdock Common
Stock.
8.14 AGREEMENT OF AFFILIATES. Murdock has disclosed in Section 8.14 of
the Murdock Disclosure Memorandum all persons whom it reasonably believes are
"affiliates" of Murdock for
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purposes of Rule 145 under the Securities Act or under applicable SEC accounting
releases with respect to "pooling of interests" accounting treatment. Murdock
shall cause each such person to deliver to ABI not later than thirty (30) days
prior to the Effective Time, a written agreement, substantially in the form of
Exhibit B hereto, providing that such person will not sell, pledge, transfer, or
otherwise dispose of the shares of Murdock Common Stock held by such person
except as contemplated by such agreement or by this Agreement and will not sell,
pledge, transfer, or otherwise dispose of the ABI Common Shares to be received
by such person upon consummation of the Merger except in compliance with
applicable provisions of the Securities Act and the rules and regulations
thereunder and until such time as financial results covering at least thirty
(30) days of combined operations of ABI and Murdock have been published within
the meaning of Section 201.01 of the SEC's Codification of Financial Reporting
Policies. ABI Common Shares issued to such affiliates of Murdock in exchange for
shares of Murdock Common Stock shall not be transferable until such time as
financial results covering at least thirty (30) days of combined operations of
ABI and Murdock have been published within the meaning of Section 201.01 of the
SEC's Codification of Financial Reporting Policies, regardless of whether each
such affiliate has provided the written agreement referred to in this Section
8.14, and ABI shall be entitled to place restrictive legends upon certificates
for ABI Common Shares issued to affiliates of Murdock pursuant to this Agreement
to enforce the provisions of this Section 8.14.
8.15 OFFICER AGREEMENT. On or before the date of Closing, Murdock shall
deliver to ABI an agreement from Robert L. Andreasen in a form satisfactory to
ABI and its counsel (the "Officer Agreement") to the effect that (a) the option
to purchase 14,000 shares of Murdock Common Stock referenced in Section 5.3(a)
of this Agreement constitutes all of the options, warrants, rights to subscribe
to or acquire, or otherwise receive shares of Murdock Common Stock from, or
issued by, Murdock under any agreement, contract, or other instrument or
commitment, written or oral, whether as a result of his employment or otherwise,
and that he has no other right or claim to any additional shares of Murdock
Common Stock or rights to acquire Murdock Common Stock, and (b) Mr. Andreasen
waives his right, if any, to any additional compensation payable to him under
Section Seven of the Amended and Restated Employment Agreement by and between
Murdock and Mr. Andreasen dated August 29, 1995 upon a "change of control" as
defined therein, provided that he is retained by the Surviving Corporation and
his base compensation which, as of the date of this Agreement is $102,500
annually, is not reduced and the Surviving Corporation specifically assures
Murdock's obligations under such Restated Employment Agreement and performs in
accordance with the terms thereof.
8.16 AMERICAN BANK/MURDOCK LOCAL ADVISORY BOARD. ABI will establish or
cause to be established an advisory board of directors for the Murdock branch of
American Bank consisting of 7 to 9 members. The advisory board will meet no less
frequently than on a quarterly basis and whose members will receive a payment of
$100 for each meeting attended. At the Effective Time, ABI shall appoint at
least three current members of the Board of Directors of Murdock (to the extent
that at least three such directors are interested in serving in such position)
to such advisory board together with such other persons as ABI, in its sole
discretion, may deem advisable or desirable to serve on such board. ABI also
will cause to be established, a loan committee of the advisory board consisting
of five to seven members which shall meet weekly, or as needed, and whose
members will receive a payment of $100 per meeting. The current members of the
Board of Directors of Murdock selected to the advisory board shall be given
preference to serve as members of the loan committee.
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8.17 INDEMNIFICATION.
(a) ABI shall, and shall cause the Surviving Corporation (and
its successors and assigns) to, indemnify, defend, and hold harmless the present
directors, officers, employees, and agents of Murdock (each, an "Indemnified
Party) after the Effective Time against all costs, fees, or expenses (including
reasonable attorneys' fees) judgements, fines, penalties, losses, damages,
liabilities, and amounts paid in settlement in connection with any claim,
action, suit, proceeding, or investigation, whether civil, administrative, or
investigative, arising out of actions or omissions occurring at or prior to the
Effective Time (including the transactions contemplated by this Agreement) to
the full extent permitted under Florida Law and by Murdock's Articles of
incorporation and Bylaws as in effect as of the date hereof, including any
provisions relating to advances of expenses incurred in the defense of any
action, suit, or proceeding. If indemnification is sought hereunder, the
Indemnified Party shall notify ABI of the commencement of the litigation,
proceeding, or other action, or any overt threat with respect to any of the
foregoing; provided, however, that the failure to provide such notification
shall not relieve ABI from its indemnification obligations hereunder or
otherwise to such Indemnified Party unless and only to the extent that such
failure shall materially and adversely affect the ability of ABI to defend such
litigation, proceeding, or other action. Following such notification, ABI may
elect to assume the defense of such litigation, proceeding, or other action (and
the costs related thereto) and, upon such election, ABI shall not be liable for
any legal costs subsequently incurred by such Indemnified Party (other than the
costs of investigation or the production of documents or witnesses) unless (i)
ABI fails to provide legal counsel reasonably satisfactory to such Indemnified
Party in a timely manner, or (ii) such Indemnified Party shall have reasonably
concluded that (A) the representation of such Indemnified Party by legal counsel
selected by ABI would be inappropriate due to actual or potential conflicts of
interest or (B) there may be a legal defense available to such Indemnified Party
that are different from or additional to those available to the Company or any
other Indemnified Party represented by such legal counsel. Nothing set forth
herein shall preclude any Indemnified Party from retaining its own counsel at
its own expense. ABI agrees that it will not, without the prior written consent
of the Indemnified Parties, settle, compromise, or consent to the entry of
judgment in any pending or threatened claim, proceeding, or action in respect of
which indemnification could be sought hereunder (whether or not any Indemnified
Party is a party to such claim or proceeding) unless such settlement includes a
provision unconditionally releasing each Indemnified Party from and holding each
of them harmless against all liability in respect of claims by any releasing
party related to or arising out of such matters or any transaction or conduct in
connection therewith. Without limiting the generality of the foregoing, in any
case in which the approval of ABI is required to effectuate such
indemnification, ABI shall direct, or cause such ABI Company to direct, at the
election of the Indemnified Party, that the determination of any such approval
shall be made by independent counsel mutually agreed upon between ABI and the
Indemnified Party. ABI shall, and shall cause the Surviving Corporation and all
other relevant ABI Companies to apply such rights of indemnification in good
faith and to the fullest extent permitted by applicable Law.
(b) Incident to any information furnished or disclosed by ABI
or any ABI Company in connection with the Registration Statement and the Proxy
Statement, and subject to applicable Law, ABI shall indemnify, defend, and hold
harmless Indemnified Parties against all costs, fees, or expenses (including
reasonable attorneys' fees) judgements, fines, penalties, losses, damages,
liabilities, and amounts paid in settlement in connection with any claim,
action, suit, proceeding, or investigation, whether civil, administrative, or
investigative, arising out of or under the Securities Laws or any state blue sky
or securities Laws based in whole or in part on (i) any untrue statement or
alleged untrue statement of a material fact contained in such documents
including any amendment or supplement to such document), (ii) any omission or
alleged omission to state in such documents a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
(iii) any violation of ABI or an ABI Company of the Securities Laws or any state
blue sky or securities Laws in connection with
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such documents; provided, however, that neither ABI or any ABI Company will be
liable in any such case to the extent that any such claim, action, suit, or
investigation is based on any untrue statement or alleged untrue statement or
omission or alleged omission made in such Registration Statement or Proxy
Statement or any amendment or supplement thereto in reliance upon and in
conformity with information furnished in writing to ABI or any ABI Company by
Murdock or any Indemnified Party specifically for use therein.
(c) Murdock shall indemnify, and each Indemnified Party shall,
severally and not jointly, indemnify, defend, and hold harmless ABI, any ABI
Company, each of their directors, officers, employees, and agents, and each
person who controls ABI or any ABI Company against all costs, fees, or expenses
(including reasonable attorneys' fees) judgements, fines, penalties, losses,
damages, liabilities, and amounts paid in settlement in connection with any
claim, action, suit, proceeding, or investigation, whether civil,
administrative, or investigative, arising out of or under the Securities Laws or
any state blue sky or securities Laws based in whole or in part on (i) any
untrue statement or alleged untrue statement of a material fact contained in
such documents including any amendment or supplement to such document), (ii) any
omission or alleged omission to state in such documents a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or (iii) any violation of Murdock or such Indemnified Party of the Securities
Laws or any state blue sky or securities Laws in connection with such documents;
provided, however, that each Indemnified Party will be liable only for, and
Murdock will be liable in any such case only to the extent that, any such claim,
action, suit, or investigation is based on any untrue statement or alleged
untrue statement or omission or alleged omission made in such Registration
Statement or Proxy Statement or any amendment or supplement thereto in reliance
upon and in conformity with information furnished in writing by Murdock or such
Indemnified Party, as the case may be, specifically for use therein.
(d) If ABI or the Surviving Corporation or any of its
successors or assigns shall consolidate with or merge into any other corporation
or entity and shall not be the continuing or surviving corporation or entity of
such consolidation or merger or shall transfer all or substantially all of its
assets to any person, corporation or entity, then in each case, proper provision
shall be made so that the successors and assigns of ABI shall assume the
obligations set forth in this Section 8.17
(e) The provisions of this Section 8.17 are intended to be for
the benefit of and shall be enforceable by, each Indemnified Party, his or her
heirs and representatives, and shall survive the consummation of the Merger and
be binding on all successors and assigns of ABI and the Surviving Corporation.
8.18 SPOUSES SHARES. Murdock shall obtain and deliver to ABI prior to
the Stockholders' Meeting, letter agreements with respect to the Spouses Shares
in substantially the form set forth in Exhibit A hereto committing the holder of
such Spouses Shares in favor of the Merger at the Stockholders' Meeting and not
disposing of the Murdock Common Stock other than pursuant to the Merger.
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ARTICLE IX
CONDITIONS
9.1 CONDITIONS TO OBLIGATIONS OF EACH PARTY. The respective obligations
of each party to perform this Agreement and consummate the Merger and the other
transactions contemplated hereby shall be subject to the satisfaction of the
following conditions, unless waived by both parties pursuant to Section 11.7 of
this Agreement:
(a) Stockholder Approval. The Stockholders of Murdock shall
have approved this Agreement, and the consummation of the transactions
contemplated hereby, including the Merger, as and to the extent required by Law.
(b) Regulatory Approval. Other than the filing of the Articles
of Merger contemplated by Section 1.3 hereof, all Consents of, filings and
registrations with, and notifications to, all Regulatory Authorities required
for consummation of the Merger shall have been obtained or made and shall be in
full force and effect and all waiting periods required by Law shall have
expired. No Consent obtained from any Regulatory Authority which is necessary to
consummate the transactions contemplated hereby shall be conditioned or
restricted in a manner (including requirements relating to the raising of
additional capital or the disposition of assets or properties) which in the
reasonably judgement of the Board of Directors of either party would so
materially adversely impact the economic or business benefits of the
transactions contemplated by this Agreement that, had such condition or
requirement been known, such party would not, in its reasonable judgment, have
entered into this Agreement.
(c) Legal Proceedings. No Governmental Entity of competent
jurisdiction shall have issued any injunction, order, decree, ruling, or other
legal restraint or prohibition, whether temporary, preliminary, or permanent (an
"Injunction") which is in effect and has the effect of preventing the
consummation of the Merger or any of the transactions contemplated thereby, nor
shall any such action or proceeding been commenced or be pending for the
purposes of obtaining an Injunction. No Law, judgment, order, Injunction, writ,
or decree shall have been enacted, entered, promulgated, or enforced by any
Governmental Entity which prohibits, restricts or makes illegal consummation of
the Merger.
(d) Registration Statement. The Registration Statement shall
have been declared effective under the Securities Act, and no stop orders
suspending the effectiveness of the Registration Statement shall have been
issued, and no action, suit, proceeding, or investigation by the SEC to suspend
the effectiveness thereof shall have been initiated and be continuing, and all
necessary approvals and Consents under blue sky or state securities Laws or the
Securities Act or the Exchange Act relating to the issuance or trading of the
ABI Common Shares issuable pursuant to the Merger shall have been received.
(e) Pooling of Interests. Coopers & Lybrand L.L.P., ABI's
independent public accountants, shall have issued a letter, dated as of the
Effective Time, to ABI to the effect that the Merger will qualify for "pooling
of interests" accounting treatment under GAAP.
(f) Tax Opinion. Each party shall have received a written tax
opinion of Carlton, Fields, Ward, Emmanuel, Smith, & Cutler, P.A. in form and
substance reasonably satisfactory to such parties substantially to the effect
that (i) the Merger will constitute a reorganization within the meaning
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of Section 368(a) of the Internal Revenue Code and that (ii) the exchange in the
Merger of the shares of Murdock Common Stock for ABI Common Shares will not give
rise to gain or loss to the shareholders of Murdock with respect to such
exchange (except to the extent of any cash received). In rendering such Tax
Opinion, Carlton, Fields, Ward, Emmanuel, Smith, & Cutler, P.A. may require and
shall be entitled to rely upon representations contained in certificates of
officers of Murdock and ABI and others in form and substance reasonably
satisfactory to such counsel.
9.2 CONDITIONS TO OBLIGATIONS OF ABI TO EFFECT THE MERGER. The
obligations of ABI to perform this Agreement and to consummate the Merger and
the other transactions contemplated hereby are subject to the satisfaction of
the following additional conditions, unless waived by ABI pursuant to Section
11.7 of this Agreement:
(a) Representations and Warranties. The representations and
warranties of Murdock set forth in this Agreement shall be true and correct as
of the date of this Agreement and (except to the extent such representations and
warranties are by their express provisions made as of a specified date shall
speak only as of such date) as of the date of Closing as though made on and as
of the date of Closing, subject to such exceptions as do not have, and would not
be reasonably expected to have, individually or in the aggregate, a Material
Adverse Effect on Murdock or the Surviving Corporation following the Effective
Time. Notwithstanding any of the foregoing, the representations and warranties
of Murdock set forth in Section 5.3 of this Agreement shall be true and correct
in all respects (except for inaccuracies which are de minimis in amount).
(b) Performance of Covenants and Agreements. Each and all of
the agreements and covenants of Murdock to be performed or complied with
pursuant to this Agreement and the other agreements contemplated hereby prior to
the Effective Time shall have been duly performed and complied with in all
material respects.
(c) Consents and Approvals. Murdock shall have obtained any
and all Consents (other than those referred to in Section 9.1(b) of this
Agreement) required for consummation of the Merger and the other transactions
contemplated hereby, or for preventing any default under any agreement,
contract, other instrument or Permit to which Murdock is a party, which, if not
obtained or made, is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect after the Effective Time on the Surviving
Corporation.
(d) Certificates. Murdock shall have delivered to ABI (i) a
certificate, dated as of the date of Closing, signed on its behalf by its chief
executive officer and its chief financial officer, to the effect that the
conditions of its obligations set forth in Sections 9.2(a), 9.2(b), 9.2(c), and
9.2(g) of this Agreement have been satisfied, and (ii) copies of all documents
that ABI may reasonably request relating to the existence of Murdock and
certified copies of resolutions or written consents duly adopted by Murdock's
Board of Directors evidencing the taking of all corporate action necessary to
authorize the execution, delivery, and performance of this Agreement, and the
consummation of the transactions contemplated hereby, all in such reasonable
detail as ABI and its counsel may request.
(e) Affiliates Agreements. ABI shall have received from each
affiliate of Murdock, the affiliates letter referred to in Section 8.16 of this
Agreement, to the extent necessary to assure in the reasonable judgment of ABI
that the transactions contemplated hereby will qualify for pooling of interests
accounting treatment.
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(f) Officer Agreement. Murdock shall have delivered to ABI the
Officer Agreement from Robert L. Andreasen.
(g) Minimum Closing Equity. Murdock shall have Closing Equity
of no less than $4,875,000; provided, however, that in such event ABI shall be
subject to the requirements of Section 10.1(j) of this Agreement.
(h) Opinion of Counsel. ABI shall have received a written
opinion of Trenam, Kemker, Scarf, Barkin, Frye, O'Neill & Mullis, counsel to
Murdock, dated as of the Closing, containing such opinions as set forth in
Exhibit C to this Agreement.
9.3 CONDITIONS TO OBLIGATION OF MURDOCK TO EFFECT THE MERGER. The
obligations of Murdock to perform this Agreement and consummate the Merger and
the other transactions contemplated hereby are subject to the satisfaction of
the following conditions, unless waived by Murdock pursuant to Section 11.7 of
this Agreement:
(a) Representations and Warranties. The representations and
warranties of ABI set forth in this Agreement shall be true and correct as of
the date of this Agreement and (except to the extent such representations and
warranties are by their express provisions made as of a specified date shall
speak only as of such date) as of the date of Closing as though made on and as
of the date of Closing, subject to such exceptions as do not have, and would not
be reasonably expected to have, individually or in the aggregate, a Material
Adverse Effect on Murdock or the Surviving Corporation following the Effective
Time.
(b) Performance of Covenants and Agreements. Each and all of
the agreements and covenants of ABI to be performed or complied with pursuant to
this Agreement and the other agreements contemplated hereby prior to the
Effective Time shall have been duly performed and complied with in all respects.
(c) Consents and Approvals. ABI shall have obtained any and
all Consents (other than those referred to in Section 9.1(b) of this Agreement)
required for consummation of the Merger and the other transactions contemplated
hereby, or for preventing any default under any agreement, contract, other
instrument or Permit to which ABI is a party, which, if not obtained or made, is
reasonably likely to have a Material Adverse Effect after the Effective Time on
ABI and its Subsidiaries on a consolidated basis.
(d) Certificates. ABI shall have delivered to Murdock (i) a
certificate, dated as of the Effective Time, signed on its behalf by its chief
executive officer and its chief financial officer, to the effect that the
conditions of its obligations set forth in Section 9.3(a), 9.3(b), and 9.3(c) of
this Agreement have been satisfied, and (ii) copies of all documents that
Murdock may reasonably request relating to the existence of ABI and certified
copies of resolutions or written consents duly adopted by ABI's Board of
Directors evidencing the taking of all corporate action necessary to authorize
the execution, delivery, and performance of this Agreement, and the consummation
of the transactions contemplated hereby, all in such reasonable detail as
Murdock and its counsel shall request.
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(e) Nasdaq Listing. The ABI Common Shares to be issued
pursuant to the Merger shall have been approved and authorized for quotation on
the Nasdaq Stock Market upon official notice of issuance.
(f) Opinion of Counsel. Murdock shall have received a written
opinion of Carlton, Fields, Ward, Emmanuel, Smith, & Cutler, P.A., counsel to
ABI, dated as of the Effective Time, containing such opinions set forth in
Exhibit D to this Agreement.
(g) Fairness Opinion. Murdock shall have received from Allen
C. Ewing & Co. a letter, dated not more than five business days prior to the
date of the Proxy Statement, in form and substance reasonably satisfactory to
Murdock, to the effect that in the opinion of such firm, the Merger
Consideration is fair, from a financial point of view, to the holders of the
Murdock Common Stock.
(h) Payment of Consideration. ABI shall have delivered to the
Exchange Agent the aggregate Merger Consideration payable to all holders of
Murdock Common Stock pursuant to the terms of this Agreement.
ARTICLE X
TERMINATION
10.1 TERMINATION. Notwithstanding any other provision of this
Agreement, this Agreement may be terminated and the Merger abandoned at any time
prior to the Effective Time by action taken or authorized by the Board of
Directors of the terminating party or parties, whether before or after approval
of the matters presented in connection with the Merger by the stockholders of
Murdock:
(a) by mutual written consent of ABI and Murdock; or
(b) by either ABI or Murdock: (i) in the event of an
inaccuracy of any representation or warranty of the other party contained in
this Agreement which cannot be or has not been cured within thirty (30) days
after the giving of written notice of such inaccuracy and which inaccuracy would
provide the terminating party with the ability to refuse to consummate the
Merger under applicable standard set forth in Section 9.2(a) of this Agreement
in the case of Murdock and 9.3(a) in the case of ABI (provided that the
terminating party is not then in material breach of any representation or
warranty contained in this Agreement under the applicable standard set forth in
Section 9.2(a) of this Agreement in the case of Murdock and Section 9.3(a) in
the case of ABI, or in material breach of any covenant or other agreement
contained in this Agreement), or (ii) in the event of a material breach by the
other party of any covenant, agreement, or obligation contained in this
Agreement which breach cannot be or has not been cured within thirty (30) days
after giving of written notice to the breaching party of such breach; or
(c) by either ABI or Murdock, in the event (i) any Consent of
any Regulatory Authority required for consummation of the Merger and the other
transactions contemplated hereby shall have been denied by a final nonappealable
action of such Regulatory Authority or if such action taken by such Regulatory
Authority is not appealed within the time limit for appeal, or (ii) the
stockholders of Murdock fail to vote their approval of this Agreement and the
transactions contemplated hereby as required by the FFIC at the Stockholders'
Meeting where the transactions were presented to the stockholders for approval
and voted upon; or
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(d) by either ABI or Murdock, in the event that the Merger
shall not have been consummated by April 30, 1998; provided, however, that the
right to terminate this Agreement pursuant to this Section 10.1(d) shall not be
available to any party whose breach of its obligations under this Agreement has
been the cause of, or resulted in the failure of the Merger to be consummated on
or before such date; or
(e) by ABI in the event dissenters' rights are claimed,
pursuant to the Dissent Provisions, by persons owning in the aggregate more than
10% of the issued and outstanding shares of Murdock Common Stock; or
(f) by ABI or Murdock (provided that the terminating party is
not then in breach of any representation or warranty contained in this Agreement
under the applicable standard set forth in Section 9.2(a) of this Agreement in
the case of Murdock and Section 9.3(a) in the case of ABI or in material breach
of any covenant or other agreement contained in this Agreement) in the event
that any of the conditions precedent to the obligations of such party to
consummate the Merger cannot be satisfied or fulfilled by the date specified in
Section 10.1(d) of this Agreement; or
(g) by Murdock, if prior to the Effective Time a corporation,
partnership, person, or other entity or group shall have made a bona fide
Acquisition Proposal that the Board of Directors of Murdock determines in its
good faith and in the exercise of its fiduciary duties based on, with respect to
legal matters, the written opinion of counsel, and with respect to financial
matters, in the written opinion of an investment banking firm of national
reputation with respect to the business conducted by Murdock, ABI, and similar
banks and bank holding companies, that the Acquisition Proposal is more
favorable to the stockholders of Murdock and that the failure to terminate this
Agreement and accept such Acquisition Proposal would be inconsistent with the
proper exercise of such fiduciary duties (it being agreed for purposes of this
Agreement that the firm of Allen C. Ewing & Co. is an investment banking firm of
such national reputation); provided, however, that termination under this
Section 10.1(g) shall not have been deemed effective until the termination fee
required by Section 10.3 hereof has been paid to ABI; or
(h) by ABI, if the Board of Directors of Murdock (i) shall
withdraw, modify, or change its recommendation to its stockholders with respect
to approval of this Agreement or the Merger contemplated thereby or shall have
resolved to engage in any Acquisition Proposal, (ii) shall have recommended to
the stockholders of Murdock any Acquisition Proposal, or (iii) shall have made
any public announcement of a proposal, plan, or intention to do any of the
foregoing or shall have entered into and have any agreement, written or oral, to
enter into, any agreement, contract, understanding, or arrangement to engage in
any of the foregoing.
(i) by Murdock, if the Designated Price is less than $10.00
and its Board of Directors determines by a vote of a majority of the members of
its entire Board of Directors, at any time commencing on the fourth day
following the Determination Date and ending on the close of business on the day
before Closing, to terminate; provided, however, before exercising its rights to
effect termination under this Section 10.1(i), Murdock shall first have
satisfied the good faith procedures specified in Section 3.2(b)of this
Agreement, it being agreed that it shall not be a failure to negotiate in good
faith if the Murdock Board of Directors declines to agree to a new Merger
Consideration because it has determined in its reasonable business judgment that
there has been a Material Adverse Change in the financial condition, results of
operations, business or prospects of ABI.
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(j) by ABI, if the Closing Equity shall be less than
$4,875,000; provided, however, that before exercising its rights to effect
termination under this Section 10.1(j), ABI shall have first satisfied the good
faith procedures specified in Section 3.2(b) of this Agreement, it being agreed
that it shall not be a failure to negotiate in good faith if the ABI Board of
Directors declines to agree to a new Merger Consideration because it has
determined in its reasonable business judgment that there has been a Material
Adverse Change in the financial condition, results of operations, business or
prospects of Murdock.
10.2 EFFECT OF TERMINATION. In the event of the termination and
abandonment of this Agreement pursuant to Section 10.1 of this Agreement, this
Agreement shall become void and have no effect and no party shall have any
obligation to the other parties hereto with respect to this Agreement, except
that (i) the provisions of this Section 10.2 and Sections 10.3, 11.1, and 11.2
of this Agreement shall survive any termination and abandonment, and (ii) that a
termination pursuant to Sections 10.1(b) of this Agreement shall not relieve or
release the breaching party from liability for an uncured willful breach of a
representation, warranty, consent, or agreement giving rise to such termination,
of this Agreement.
10.3 TERMINATION FEE. (a) In the event that this Agreement is
terminated or the transactions contemplated hereby are abandoned pursuant to
Section 10.1(b) of this Agreement due to the failure or breach of Murdock under
this Agreement, Murdock shall reimburse ABI for its reasonable out-of-pocket
expenses relating to the Merger (consisting of costs and expenses of outside
legal counsel, printing expenses, fiscal expense reimbursements for its
financial advisor and accountants) in an amount not to exceed $250,000.
(b) In the event this Agreement is terminated or the
transactions contemplated hereby are abandoned pursuant to Sections 10.1(g) or
10.1(h) of this Agreement, ABI shall be entitled to a cash payment from Murdock
in an amount equal to $750,000. In the event of a termination of this Agreement
pursuant to Section 10.1(g) or 10.1(h) of this Agreement, the payments provided
under this Section 10.3(b) shall be the sole and exclusive remedy available to
ABI.
(c) In the event this Agreement is terminated as a result of
ABI's failure or breach under Section 10.1(b), ABI shall reimburse Murdock for
its reasonable out-of-pocket expenses relating to the Merger (consisting of
costs and expenses of outside legal counsel, printing expenses, fees and expense
reimbursement for its financial advisor and accountants) in an amount not to
exceed $200,000.
ARTICLE XI
DEFINITIONS
11.1 DEFINITIONS.
(a) Except as otherwise provided herein, the capitalized terms
set forth below shall have the following meanings:
"ABI" shall have the meaning set forth in the first paragraph
of this Agreement.
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"ABI Capital Stock" shall mean, collectively, the ABI Common
Shares and any other class or series of capital stock of ABI.
"ABI Companies" shall mean, collectively, ABI and all ABI
Subsidiaries.
"ABI Common Shares" shall mean the common shares, $1.175 par
value per share, of ABI.
"ABI Disclosure Memorandum" shall mean the written information
entitled "ABI Disclosure Memorandum" delivered prior to or on the date of this
Agreement to Murdock describing in reasonable detail the matters contained
therein and, with respect to each disclosure made therein, specifically
referencing the Section of this Agreement under which such disclosure is being
made.
"ABI Financial Statements" shall have the meaning set forth in
Section 6.5(b) of this Agreement.
"ABI Subsidiaries" shall mean the Subsidiaries of ABI which
shall include any corporation, bank, savings association, or other organization
acquired as a Subsidiary of ABI in the future and owned by ABI at the Effective
Time.
"Acquisition Proposal" shall mean any offer or proposal, or
any indication of interest in, a merger, consolidation, or other business
combination involving Murdock, or any tender or exchange offer, or any proposed
offer to acquire, or the acquisition of, any equity interest in, or a
substantial portion of the assets and properties, of Murdock other than
contemplated pursuant to this Agreement.
"affiliate" means, with respect to any person, any other
person that directly or indirectly, through one or more intermediaries,
controls, is controlled by, or under common control with, the first mentioned
person.
"Agreement" shall mean this Agreement and Plan of Merger,
including the exhibits and schedules delivered pursuant hereto and incorporated
herein by reference.
"American Bank" shall have the meaning set forth in the first
paragraph of this Agreement.
"Articles of Merger" shall mean the Articles of Merger to be
executed by the Parties and filed with the Secretary of State of Florida
relating to the Merger as contemplated in Section 1.3 of this Agreement.
"BHC Act" shall mean the Federal Bank Holding Company Act of
1956, as amended.
"Closing" shall have the meaning set forth in Section 1.2 of
this Agreement.
"Closing Equity" shall mean the stockholders' equity of
Murdock as of the close of business on the day immediately preceding the date of
Closing as determined in accordance with GAAP and as verified by ABI plus (i)
any cash expenditures up to a maximum of $270,000 made and actually paid in
connection with the cancellation of the Information Processing Agreement, dated
March 24, 1994,
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by and between Murdock and Florida Informanagement Services, Inc., and the
Software License Addendum to Information Processing Agreement, dated July 18,
1997, by and between Murdock and FIS, Inc. and (ii) any other amounts or
adjustments agreed to in writing by the parties to this Agreement.
"Consent" shall mean any consent, approval, authorization,
clearance, exemption, waiver, ratification, or similar affirmation by any
person.
"Department" shall have the meaning set forth in Section
5.5(a) of this Agreement.
"Designated Price" shall mean the average of the last daily
sales price of ABI Common Shares as reported on Nasdaq (as reported by the Wall
Street Journal, or if not reported thereby, another authoritative source
selected by ABI) for the twenty (20) consecutive full trading days in which such
shares are traded ending at the close of trading on the fifth business day
preceding the Determination Date.
"Determination Date" shall mean the date on which the last of
the following occurs: (i) the effective date (including the expiration of any
applicable waiting period required by Law) of the last required Consent or order
of any Regulatory Authority having authority over and approving or exempting the
Merger, and (ii) the date on which the stockholders of Murdock approve this
Agreement.
"Derivatives Contract" shall have the meaning set forth in
Section 5.27 of this Agreement.
"Dissent Provisions" shall have the meaning set forth in
Section 3.6 of this Agreement.
"Dissenting Murdock Shares" shall have the meaning set forth
in Section 3.6 of this Agreement.
"Dissenting Shareholders" shall have the meaning set forth in
Section 3.6 of this Agreement.
"DOJ" shall have the meaning set forth in Section 5.14(c) of
this Agreement.
"Effective Time" shall have the meaning set forth in Section
1.3 of this Agreement.
"Environmental Laws" shall mean all Laws relating to pollution
or protection of human health or the environment (including ambient air, surface
water, ground water, land surface, or subsurface strata) and which are
administered, interpreted, or enforced by the United States Environmental
Protection Agency and state and local agencies with jurisdiction over, and
including common law in respect of, pollution or protection of the environment,
including the Comprehensive Environmental Response Compensation and Liability
Act, as amended, 42 U.S.C. 9601 et seq., the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. 6901 et seq., and other Laws relating to emissions,
discharges, releases, or threatened releases of any Hazardous Material, or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport, or handling of any Hazardous Material.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
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"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Exchange Agent" shall have the meaning set forth in Section
3.7 of this Agreement.
"Exchange Fund" shall have the meaning set forth in Section
4.1 of this Agreement.
"Exchange Ratio" shall have the meaning set forth in Section
3.1(a) of this Agreement.
"FBCA" shall have the meaning set forth in Section 1.3 of this
Agreement.
"FDIC" shall have the meaning set forth in the Preamble to
this Agreement.
"FFIC" shall mean the Florida Financial Institutions Code,
which includes those Florida Laws identified in Section 655.005(j) of the
Florida Statutes.
"FTC" shall have the meaning set forth in Section 5.14(c) of
this Agreement.
"GAAP" shall mean the generally accepted accounting principles
in the United States consistently applied during the periods involved applicable
to banks, savings associations, or bank holding companies, as the case may be.
"Governmental Entity" shall have the meaning set forth in
Section 5.2(d) of this Agreement.
"Hazardous Material" shall mean (i) any hazardous substance,
hazardous material, hazardous waste, regulated substance, or toxic substance (as
those terms are defined by any applicable Environmental Laws) and (ii) any
chemicals, pollutants, contaminants, petroleum, petroleum products, or oil and
(specifically shall include asbestos requiring abatement, removal, or
encapsulation pursuant to the requirements of governmental authorities and any
polychlorinated biphenyls).
"HSR Act" shall mean Section 7A of the Clayton Act, as added
by Title II of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, and the rules and regulations promulgated thereunder.
"Indemnified Party" shall have the meaning set forth in
Section 8.17 of this Agreement.
"Injunction" shall have the meaning set forth in Section
9.1(e) of this Agreement.
"Intellectual Property" shall have the meaning set forth in
Section 5.20 of this Agreement.
"Internal Revenue Code" shall mean the Internal Revenue Code
of 1986, as amended, and the rules and regulations promulgated thereunder.
"Knowledge" of any person which is not an individual means, as
of the date relating thereto, the knowledge of such person's senior officers and
the knowledge of such person(s) obtained or which would or should have been
obtained after reasonable investigation, and the knowledge of such person's
directors without any special investigation.
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"Law" shall mean any code, law, ordinances, regulation,
reporting or licensing requirement, rule, or statute applicable to a person or
its assets, properties, assets, liabilities, or business, including those
promulgated, interpreted, or enforced by any Regulatory Authority.
"Liens" shall have the meaning set forth in Section 5.2(c) of
this Agreement.
"Loan Property" shall mean any property owned, leased, or
operated by the party in question or by any of its Subsidiaries or in which such
party or its Subsidiary holds a security or other interest (including an
interest in a fiduciary capacity) and, where required by the context, includes
the owner or operator of such property, but only with respect to such property.
"market price" shall have the meaning set forth in Section 3.4
of this Agreement.
"Material Adverse Effect" or "Material Adverse Change" to a
party shall mean an event, change, or occurrence which, individually or together
with any other event, change, or occurrence, has a material adverse impact on
(i) the financial position, business, or results of operations of such party and
its Subsidiaries, if any, taken as a whole, or (ii) the ability of such party to
perform its obligations under this Agreement or to consummate the Merger or the
other transactions contemplated by this Agreement, provided 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) changes in GAAP or regulatory accounting
principles generally applicable to banks and their holding companies, (c)
actions and omissions of a party (or any of its Subsidiaries) taken with the
prior informed consent of the other party in contemplation of the transactions
contemplated hereby, (d) circumstances affecting Florida based or regional bank
holding companies generally, and (e) the Merger and compliance with the
provisions of this Agreement on the operating performance of ABI or Murdock.
"Merger" shall have the meaning set forth in the Preamble of
this Agreement.
"Merger Consideration" shall have the meaning set forth in
Section 3.7 of this Agreement.
"Murdock" shall have the meaning set forth in the first
paragraph of this Agreement.
"Murdock Benefits Plans" shall have the meaning set forth in
Section 5.16(a) of this Agreement.
"Murdock Common Stock" shall have the meaning set forth in the
Preamble to this Agreement.
"Murdock Disclosure Memorandum" shall mean the written
information entitled "Murdock Disclosure Memorandum" delivered prior to or on
the date of this Agreement to ABI describing in reasonable detail the matters
contained therein and, with respect to each disclosure made therein,
specifically referencing the Section of this Agreement under which such
disclosure is being made.
"Murdock ERISA Plan" shall have the meaning set forth in
Section 5.16(a) of this Agreement.
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"Murdock Financial Documents" shall have the meaning set forth
in 5.5(a) of this Agreement.
"Murdock Regulatory Documents" shall have the meaning set
forth in Section 5.5(b) of this Agreement.
"Murdock Rights" shall have the meaning set forth in Section
3.5(a) of this Agreement.
"Murdock Stock Plans" shall have the meaning set forth in
Section 3.5(a) of this Agreement.
"Nasdaq" shall mean the Nasdaq Stock Market.
"Officer Agreement" shall have the meaning set forth in
Section 8.15 of this Agreement.
"Participation Facility" shall mean any facility in property
in which the party in question or any of its Subsidiaries participates in the
management and, where required by the context, said term means the owner or
operator of such facility or property, but only with respect to such facility or
property.
"Permit" shall have the meaning set forth in Section 5.14 of
this Agreement.
"Proxy Statement" shall have the meaning set forth in Section
5.22 of this Agreement.
"Registration Statement" shall have the meaning set forth in
Section 5.22 of this Agreement.
"Regulatory Authorities" shall have the meaning set forth in
Section 5.14(c) of this Agreement.
"Regulatory Agreement" shall have the meaning set forth in
Section 5.14(c) of this Agreement.
"SEC" shall mean the Securities and Exchange Commission.
"SEC Reports" shall have the meaning set forth in Section 6.5
of this Agreement.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Securities Laws" shall mean the Securities Act, the Exchange
Act, the Investment Company Act of 1940, as amended, the Investment Advisors Act
of 1940, as amended, the Trust Indenture Act of 1939, as amended, and the rules
and regulations of any Regulatory Authority promulgated thereunder.
"Spouses Shares" shall have the meaning set forth in Section
5.28 of this Agreement.
"Stockholders' Meeting" shall have the meaning set forth in
Section 8.3 of this Agreement.
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"Subsidiaries" shall mean all those corporations, banks,
associations, or other entities of which the entity in question owns or controls
50% or more of the outstanding equity or voting securities either directly or
through an unbroken chain of entities as to each of which 50% or more of the
outstanding equity or voting securities is owned directly or indirectly by its
parent; provided, however, there shall not be included any such entity acquired
through foreclosure or any such entity the equity securities of which are owned
or controlled in a fiduciary capacity.
"Surviving Corporation" shall have the meaning set forth in
Section 1.1 of this Agreement.
"Takeover Laws" shall have the meaning set forth in Section
5.24 of this Agreement.
"Taxes" shall mean all federal, state, local and foreign
income, payroll, franchise, property, sales, excise, and all other taxes,
tariffs, duties, assessments or governmental charges of any nature whatsoever,
including all interest, penalties, and additions imposed with respect to such
amounts.
"Tax Return" shall mean all returns, reports, or similar
statements required to be filed with respect to any Tax (including any attached
schedules), including without limitation, any information return, Claims for
refund, amended return or declaration of estimated Tax.
(b) Any singular term in this Agreement shall be deemed to
include the plural, and any plural term the singular. Whenever the words
"include," "includes," or "including" are used in this Agreement, they shall be
deemed followed by the words "without limitation".
11.2 EXPENSES. Except as otherwise provided in Section 10.3 and this
11.2, each party hereto shall bear and pay its own costs and expenses incident
to preparing, entering into and carrying out this Agreement and to consummating
the Merger. The expenses of preparing, printing, and filing the Registration
Statement and the Proxy Statement, and any proxy solicitation expenses,
including mailing shall be borne equally by Murdock and ABI.
11.3 NON-SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
FOLLOWING THE EFFECTIVE TIME. Except for Articles III and IV, and Sections 8.7,
8.16, 8.17, 11.2, 11.3 and 11.4 of this Agreement, none of the respective
representations, warranties, obligations, covenants, and agreements of the
parties shall survive the Effective Time. Such representations, warranties,
covenants and agreements which do survive the Effective Time shall be for the
benefit of the stockholders of Murdock, except for Section 8.17 which is for the
benefit of the Indemnified Parties.
11.4 ENTIRE AGREEMENT. Except as otherwise expressly provided herein,
this Agreement, which includes the Disclosure Memoranda and exhibits hereto, and
the other documents, agreements, and instruments, executed and delivered
pursuant to or in connection with this Agreement, contains the entire agreement
between the parties hereto with respect to the transactions contemplated
hereunder, and such Agreement supersedes all prior arrangements or
understandings with respect to the subject matter hereof, both written and oral.
Other than Section 8.17, nothing in this Agreement, expressed or implied, is
intended to confer upon any individual, corporation or other entity, other than
ABI or Murdock or their respective successors, any rights, remedies, obligations
or liabilities under or by reason of this Agreement.
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<PAGE> 51
11.5 OBLIGATION OF ABI. Whenever this Agreement requires ABI to take
any action, such requirement shall be deemed to include an undertaking by ABI to
cause the ABI Subsidiaries to take such action.
11.6 AMENDMENT AND MODIFICATION. To the extent permitted by Law, this
Agreement may be amended, modified, and supplemented by a subsequent writing
signed by each of Murdock and ABI upon the approval of the Board of Directors of
ABI on the one hand and Murdock on the other hand; provided, however, that the
provisions hereof relating to the manner or basis in which shares of Murdock
Common Stock will be exchanged for ABI Common Shares shall not be amended,
modified, or supplemented after the Stockholders' Meeting without any requisite
approval of the holders of the issued and outstanding shares of Murdock Common
Stock.
11.7 WAIVERS. Prior to or at the Effective Time, each of ABI on the one
hand and Murdock on the other hand, shall have the right to waive any default in
the performance of any term of this Agreement by the other, to waive or extend
the time for the compliance or fulfillment by the other of any and all of the
other's obligations under this Agreement, and to waive any or all of the
conditions precedent to its obligations under this Agreement, except any
condition which, if not satisfied, would result in the violation of any Law or
applicable governmental regulation, which violation would have a Material
Adverse Effect on Murdock on the one hand and on the other hand ABI and its
Subsidiaries on a consolidated basis. The failure of any party at any time or
times to require performance of any provision hereof shall in no manner affect
the right of such party at a later time to enforce the same or any other
provision of this Agreement. No waiver of any condition or the breach of any
provision contained in this Agreement in one or more instances shall be deemed
to be or construed as a further or continuing waiver of such condition or breach
or a waiver of any other condition or at the breach of any other term of this
Agreement.
11.8 NO ASSIGNMENT. None of the parties hereto may assign any of its
rights or delegate any of its obligations under this Agreement to any other
person or entity and any such purported assignment or delegation that is made
without the prior written consent of the other parties to this Agreement shall
be void and of no effect.
11.9 NOTICES. All notices or other communications which are required or
permitted hereunder shall be in writing and shall be (a) delivered by registered
or certified mail, return receipt requested,
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postage prepaid, (b) by expedited mail or package delivery service guaranteeing
next Business Day delivery, or (c) delivered personally, by hand, or facsimile
transmission, to the persons at the addresses set forth below (or at such other
address as may be provided hereunder):
ABI or American Bank: American Bancshares, Inc.
4702 Cortez Road West
Bradenton, FL 34210
Telecopy Number: 941-798-3712
Attention: Gerald L. Anthony
President and Chief
Executive Officer
Copy to Counsel: Carlton, Fields, Ward, Emmanuel,
Smith & Cutler, P.A.
One Harbour Place
777 South Harbour Island Blvd.
Tampa, FL 33602-5799
Telecopy Number: 813-229-4133
Attention: Richard A. Denmon, Esquire
Murdock: Murdock Florida Bank
1777 Tamiami Trail
Murdock, FL 33948-1051
Telecopy Number: 941-629-1729
Attention: Robert L. Andreasen,
President & Chief
Executive Officer
Copy to Counsel: Trenam, Kemker, Scharf, Barkin,
Frye, O'Neill & Mullis
Barnett Plaza, Suite 2700
101 East Kennedy Boulevard
Tampa, Florida 33601-1102
Telecopy Number: 813-229-6553
Attention: Richard M. Leisner, Esquire
Any notice or other communications to be given or that may be given
pursuant to this Agreement shall be deemed to have been given: (x) three
calendar days of the deposit of such notice or communication in the United
States Mail, registered or certified, return receipt requested, with proper
postage affixed thereto; (y) upon the first Business Day after depositing such
notice of communication with Federal Express, Express Mail, or other expedited
mail or package delivery service guaranteeing delivery no later than the next
Business Day if next day delivery service has been required and paid for; or (z)
upon delivery if hand delivered or telecopied to the appropriate address and
person as provided hereinabove or the person to whose attention the notice is to
be given to the other parties in the manner hereinabove provided.
11.10 GOVERNING LAW. This Agreement shall in all respects be governed
by and construed in accordance with the laws of the State of Florida.
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11.11 FIDUCIARY DUTY. Notwithstanding anything to the contrary in this
Agreement, no provision of this Agreement shall be construed to prevent the
exercise by any director of Murdock (or the actions of Murdock thereon) of his
or her fiduciary duty as contemplated to be exercised under Section 8.7 of this
Agreement.
11.12 ENFORCEMENT OF AGREEMENT. Each party hereto agrees that
irreparable damage would occur in the event that any of the provisions of this
Agreement was not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an Injunction or Injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the United
States of any state having jurisdiction, this being in addition to any other
remedy to which they are entitled at law or in equity.
11.13 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to constitute an original, but all
of which together shall constitute one and the same instrument.
11.14 CAPTIONS. The captions contained in this Agreement are for
reference purposes only and are not part of this Agreement.
[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]
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<PAGE> 54
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by their respective officers thereunto duly authorized,
all as of the date first written above.
AMERICAN BANCSHARES, INC.
By: /s/ Gerald L. Anthony
-----------------------------------------
Gerald L. Anthony
President and Chief Executive Officer
AMERICAN BANK OF BRADENTON
By: /s/ Gerald L. Anthony
-----------------------------------------
Gerald L. Anthony
President and Chief Executive Officer
MURDOCK FLORIDA BANK
By: /s/ Robert L. Andreasen
-----------------------------------------
Robert L. Andreasen
President and Chief Executive Officer
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<PAGE> 1
EXHIBIT 2.2
FIRST AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this "First
Amendment") dated as of October 8, 1997 by and among AMERICAN BANCSHARES, INC.
("ABI"), a Florida corporation having its principal office located in Bradenton,
Florida, AMERICAN BANK OF BRADENTON ("American Bank"), a Florida state chartered
bank, and MURDOCK FLORIDA BANK ("Murdock"), a Florida state chartered bank
having its principal office located in Murdock, Florida.
PREAMBLE
The parties hereto entered into an Agreement and Plan of Merger, dated
as of September 23, 1997 ("Merger Agreement"), whereby ABI, American Bank, and
Murdock agreed to the merger of Murdock with and into American Bank. The parties
now desire to amend the Merger Agreement on the terms and conditions set forth
herein for the purpose of making certain corrective revisions.
NOW, THEREFORE, in consideration of the above and the mutual
representations, warranties, covenants, and agreements herein contained, the
parties hereby agree as follows:
1. AMENDMENTS TO THE MERGER AGREEMENT.
(A) CONVERSION OF MURDOCK COMMON STOCK - ADJUSTMENT OF
EXCHANGE RATIO. Section 3.1(b) of the Merger Agreement is hereby
amended by deleting Section 3.1(b) in its entirety and by insertion, in
lieu thereof, of the following:
(b) If the Designated Price of ABI Common Shares is
less than $11.00 and the Closing Equity is at least
$5,000,000, then the Exchange Ratio shall be increased to
2.65. If the Designated Price shall be less than $10.00, then
ABI and Murdock shall in good faith attempt to negotiate a
mutually acceptable Merger Consideration for the Murdock
Common Stock; provided, however, that if a mutually agreed
upon Merger Consideration is not negotiated within four days
following the Determination Date, then Murdock may terminate
this Agreement pursuant to Section 10.1(i) of this Agreement.
If the Closing Equity shall be less than $5,000,000, then the
Exchange Ratio shall be adjusted as follows: (i) if the
Designated Price is $11.00 or more, then the Exchange Ratio
shall be decreased to equal the quotient, rounded to the third
decimal point, of (A) the quotient of [Closing Equity
multiplied by 2.25, divided by 385,015] divided by (B) 12.169,
or (ii) if the Designated Price is less than $11.00, then the
Exchange Ratio shall be adjusted to equal the quotient,
rounded to the third decimal point, of (A) the quotient of
[Closing Equity multiplied by 2.25, divided by 385,015]
divided by (B) 11.00. If the Closing Equity shall be less than
$4,875,000, then ABI and Murdock shall in good faith attempt
to negotiate a mutually acceptable Merger Consideration for
the Murdock Common Stock; provided, however, that if a
mutually agreed upon Merger Consideration is not negotiated
within four days following the determination of Closing
Equity, then ABI may terminate the Agreement pursuant to
Section 10.1(j) of this Agreement.
<PAGE> 2
(B) REVISED DEFINITIONS. The definition of Murdock Common
Stock set forth in Section 11.1(a) of the Merger Agreement is hereby
amended by deleting the definition of Murdock Common Stock set forth in
Section 11.1(a) in its entirety and by insertion, in lieu thereof, of
the following:
"Murdock Common Stock" shall mean the $10.00 par
value common stock of Murdock.
2. DEFINED TERMS. All terms which are capitalized but are not otherwise
defined herein shall have the meanings ascribed to them in the Merger Agreement.
3. INCONSISTENT PROVISIONS. All provisions of the Merger Agreement
which have not been amended by this First Amendment shall remain in full force
and effect. Notwithstanding the foregoing to the contrary, to the extent that
there is any inconsistency between the provisions of the Merger Agreement and
the provisions of this First Amendment, the provisions of this First Amendment
shall control and be binding.
[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]
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<PAGE> 3
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by their respective officers thereunto duly authorized,
all as of the date first written above.
AMERICAN BANCSHARES, INC.
By: /s/ Gerald L. Anthony
-----------------------------------------
Gerald L. Anthony
President and Chief Executive Officer
AMERICAN BANK OF BRADENTON
By: /s/ Gerald L. Anthony
-----------------------------------------
Gerald L. Anthony
President and Chief Executive Officer
MURDOCK FLORIDA BANK
By: /s/ Robert L. Andreasen
-----------------------------------------
Robert L. Andreasen
President and Chief Executive Officer
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<PAGE> 1
EXHIBIT 99.1
[AMERICAN BANCSHARES, INC. LOGO] NEWS
- --------------------------------------------------------------------------------
4702 Cortez Road West - Brandenton, Florida 34210 - Phone: 941/795-3050 -
Fax: 941/798-3712
- --------------------------------------------------------------------------------
FOR IMMEDIATE RELEASE SYMBOL: ABAN
Wednesday, September 24, 1997 TRADED: Nasdaq
AMERICAN BANCSHARES TO ACQUIRE
MURDOCK FLORIDA BANK
BRADENTON, Fla., Sept. 24 -- American Bancshares, Inc., the bank
holding company for American Bank of Bradenton, and Murdock Florida Bank
announced today that they have signed a definitive merger agreement under which
American Bancshares will acquire Murdock on a stock-for-stock basis valued at
$29.22 per share in a tax-free exchange. The merger has an aggregate
transaction value of $11,250,000.
The purchase price is approximately 2.25 times Murdock's book value
and 18.8 times Murdock's June 30, 1997 earnings. The acquisition is expected to
close in the fourth quarter of 1997 and to be accounted for as a pooling of
interests. Based upon information provided by Murdock Florida Bank, American
Bancshares management believes that the transaction will be accretive to 1998
earnings in excess of 10 percent.
The exchange ratio of 2.40 shares of American Bancshares stock for
each share of Murdock Florida Bank stock was fixed at the signing of the
definitive merger agreement. The exchange ratio will be adjusted if the 20-day
average of the daily closing price of American Bancshares' common stock is
below $11.00 per share at closing so that the aggregate transaction value
equals $11,250,000. In addition, Murdock Florida Bank can terminate the
transaction if the 20 day average falls below $10.00 per share at closing.
American Bancshares is a one-bank holding company headquartered in
Bradenton, Florida. Its wholly-owned subsidiary, American Bank of Bradenton,
with six branch offices is the leading and largest independent community bank
in Manatee County. Murdock Florida Bank is a community bank serving Murdock,
Florida and the surrounding area of northern Charlotte County and southern
Sarasota County.
American Bancshares President and CEO Gerald L. Anthony said, "This
acquisition complements our position as one of the leading independent
community banks in our market area." Mr. Anthony said, "Murdock is located in
one of the fastest growing areas in the state of Florida. We are pleased with
this opportunity to strengthen our customer base, and Murdock's operations are
a good match with ours. We feel this transaction benefits the shareholders and
customers of both institutions."
MORE...
<PAGE> 2
PAGE 2 / AMERICAN BANCSHARES TO ACQUIRE MURDOCK FLORIDA BANK
The merger will increase American Bancshares' assets to approximately
$326.4 million and its deposits to approximately $275.7 million. At June 30,
1997, American had assets of $256.7 million, deposits of $214.3 million, loans
of $191.9 million and shareholders' equity of $20.0 million. As of the same
date, Murdock had assets of $62.5 million, deposits of $56.7 million, loans of
$39.4 million, and shareholders' equity of $5.0 million.
Mr. Robert L. Andreason, President and Chief Executive Officer of
Murdock, said, "Our board of directors is unanimous in its belief that the best
long-term interests of shareholders, customers and employees are served by our
merger with American Bancshares. Our institutions share common business
philosophies and a strong commitment to the communities we serve. The merger
increases our capacity to provide financial services to our growing number of
customers."
The merger agreement has been approved by the boards of directors of
both American Bancshares and Murdock. The merger must also be approved by
Murdock shareholders and by federal and state bank regulatory authorities and
is subject to various customary closing conditions.
#####
FOR FURTHER INFO: Gerald L. Anthony, President and Chief Executive Officer, or
Brian Watterson, Senior Vice President and Chief Financial
Officer
941/795-3050
-or-
Investor Relations Consultants, Inc.
813/796-1452
E-mail: [email protected]
