<PAGE> 1
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): October 22, 1995
REGIONS FINANCIAL CORPORATION
-----------------------------
(Exact name of registrant as specified in its charter)
Delaware 0-6159 63-0589368
- ---------------- ------------- ------------------
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
417 North 20th Street, Birmingham, Alabama 35203
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(Address, including zip code, of principal executive office)
(205) 326-7100
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(Registrant's telephone number, including area code)
Page 1 of 80
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ITEM 5. OTHER EVENTS.
On October 22, 1995, Regions Financial Corporation ("Regions") and
First National Bancorp ("First National") entered into an Agreement and Plan of
Reorganization (the "Agreement"), pursuant to which First National will be
acquired by Regions. The Boards of Directors of Regions and First National
approved the Agreement and the transactions contemplated thereby at separate
meetings held on October 22, 1995.
In accordance with the terms of the Agreement, Regions will
acquire First National pursuant to a merger (the "Merger") of First National
with and into a newly created wholly owned subsidiary of Regions to be
organized under the laws of the State of Georgia ("Regions Merger Subsidiary"),
with Regions Merger Subsidiary as the surviving entity resulting from the
Merger.
Upon consummation of the Merger, each share of the $1.00 par value
common stock of First National ("First National Common Stock") (excluding
shares held by any First National company or by any Regions company, in each
case other than in a fiduciary capacity or as a result of debts previously
contracted) issued and outstanding at the effective time of the Merger (as
described in the Agreement, the "Effective Time") shall be converted into and
exchanged for .76 of a share (the "Exchange Ratio") of the $.625 par value
common stock of Regions ("Regions Common Stock").
In addition, at the Effective Time, all rights with respect to
First National Common Stock, pursuant to stock options, stock appreciation
rights, or stock awards granted by First National under the existing stock
plans of First National, which are outstanding at the Effective Time, whether
or not exercisable, shall be converted into and become rights with respect to
Regions Common Stock on a basis that reflects the Exchange Ratio.
The Merger is intended to constitute a tax-free transaction under
the Internal Revenue Code of 1986, as amended, and be accounted for as a
pooling of interests.
Consummation of the Merger is subject to various conditions,
including: (i) receipt of the approval by the stockholders of First National
of appropriate matters relating to the Agreement and the Merger required
to be approved under applicable law; (ii) receipt of the approval by
the stockholders of Regions of the issuance of shares of Regions Common
Stock pursuant to the Merger as required to be approved under applicable
law; (iii) receipt of certain regulatory approvals from the Board of Governors
of the Federal Reserve System, the Office of Thrift Supervision, the Georgia
Department of Banking and Finance, and the Florida Department of Banking and
Finance and other applicable regulatory authorities; (iv) receipt of an opinion
of counsel as to the tax-free nature of certain aspects of the Merger; (v)
receipt by Regions of a letter from Ernst & Young LLP to the effect that the
Merger will qualify for pooling-of-interests accounting treatment; and (vi)
satisfaction of certain other conditions. The Merger is also subject to a
ten-day due diligence review by Regions of First National's operations.
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<PAGE> 3
Under the Agreement, First National has the right to terminate the
Agreement if the Average Closing Price (as defined below) of Regions Common
Stock (i) is less than $33.20 and (ii) reflects a decline of more than 20%
below a weighted index of the stock prices of a group of 20 bank holding
companies designated in the Agreement. In the event that First National gives
notice of its intention to terminate the Agreement based on such provision,
Regions has the right to elect to adjust the Exchange Ratio in accordance with
the terms of the Agreement, and, thereby remove First National's right to
terminate.
For purposes of the Agreement, the Average Closing price shall
mean the average of the daily last sales prices of Regions Common Stock as
reported on the Nasdaq NMS (as reported by The Wall Street Journal or, if not
reported thereby, another authoritative source as chosen by Regions) for the
ten consecutive full trading days in which such shares are traded on the Nasdaq
NMS ending at the close of trading on the Determination Date. The
Determination Date shall mean the date on which the consent of the Board of
Governors of the Federal Reserve System to the Merger is received.
In connection with executing the Agreement, Regions and First
National entered into a stock option agreement (the "Stock Option Agreement")
pursuant to which First National granted to Regions an option to purchase up to
4,089,234 shares of First National Common Stock, at a purchase price of $27.00
per share, upon certain terms and in accordance with certain conditions.
The Agreement and the Merger will be submitted for approval at a
meeting of the stockholders of First National. Similarly, the issuance of
shares of Regions Common Stock pursuant to the Merger will be submitted for
approval at a meeting of the stockholders of Regions. Prior to either
stockholders meeting, Regions will file a registration statement with the
Securities and Exchange Commission registering under the Securities Act of
1933, as amended, the shares of Regions Common Stock to be issued in exchange
for the outstanding shares of First National Common Stock. Such shares of
stock of Regions will be offered to the First National stockholders pursuant to
a prospectus that will also serve as a joint proxy statement for the separate
meetings of the stockholders of First National and Regions, respectively.
In connection with announcing the Merger, Regions announced that
Regions and First National intend to repurchase up to approximately 1.9 million
shares of First National Common Stock or up to approximately 1.4 million shares
of Regions Common Stock, or a combination of the two.
For additional information regarding the Agreement and the Stock
Option Agreement please refer to the copies of those documents which are
incorporated herein by reference and included as Exhibits to this Current
Report on Form 8-K. The foregoing discussion is qualified in its entirety by
reference to such documents.
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<PAGE> 4
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.
REGIONS FINANCIAL CORPORATION
(Registrant)
By: /s/ Robert P. Houston
-------------------------------------------
Robert P. Houston
Executive Vice President and Comptroller
Date: October 24, 1995
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<PAGE> 5
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequential
Exhibit Page No.
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<S> <C>
2.1 Agreement and Plan of Reorganization, dated as of
October 22, 1995, by and between Regions Financial
Corporation and First National Bancorp . . . . . . . . . . . . . . . . . 6
2.2 Stock Option Agreement, dated as of October 22, 1995,
issued by First National Bancorp to Regions Financial
Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
99.1 Text of joint press release, dated October 23, 1995,
issued by Regions Financial Corporation and First National
Bancorp . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
</TABLE>
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<PAGE> 1
Exhibit 2.1
AGREEMENT AND PLAN OF REORGANIZATION
BY AND BETWEEN
FIRST NATIONAL BANCORP
AND
REGIONS FINANCIAL CORPORATION
DATED AS OF OCTOBER 22, 1995
Page 6 of 80
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 1 - TRANSACTIONS AND TERMS OF MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Time and Place of Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Effective Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.4 Execution of Stock Option Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2 - TERMS OF MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.1 Charter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.2 Bylaws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE 3 - MANNER OF CONVERTING SHARES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.1 Conversion of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.2 Anti-Dilution Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.3 Shares Held by First National or Regions . . . . . . . . . . . . . . . . . . . . . . . . 3
3.4 Fractional Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.5 Conversion of Stock Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE 4 - EXCHANGE OF SHARES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.1 Exchange Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.2 Rights of Former First National Stockholders . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE 5 - REPRESENTATIONS AND WARRANTIES OF FIRST NATIONAL . . . . . . . . . . . . . . . . . . . . 7
5.1 Organization, Standing, and Power . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5.2 Authority; No Breach By Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5.3 Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.4 First National Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.5 SEC Filings; Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.6 Absence of Undisclosed Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.7 Absence of Certain Changes or Events . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.8 Tax Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.9 Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.10 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.11 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.12 Labor Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.13 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.14 Material Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.15 Legal Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.16 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.17 Statements True and Correct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.18 Accounting, Tax, and Regulatory Matters . . . . . . . . . . . . . . . . . . . . . . . . 17
5.19 State Takeover Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
</TABLE>
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<TABLE>
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5.20 Charter Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.21 Derivatives Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 6 - REPRESENTATIONS AND WARRANTIES OF REGIONS . . . . . . . . . . . . . . . . . . . . . . . 17
6.1 Organization, Standing, and Power . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
6.2 Authority; No Breach By Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.3 Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.4 Regions Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.5 SEC Filings; Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.6 Absence of Undisclosed Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.7 Absence of Certain Changes or Events . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.8 Tax Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.9 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6.10 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6.11 Legal Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
6.12 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
6.13 Statements True and Correct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.14 Accounting, Tax, and Regulatory Matters . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE 7 - CONDUCT OF BUSINESS PENDING CONSUMMATION . . . . . . . . . . . . . . . . . . . . . . . . 23
7.1 Affirmative Covenants of First National . . . . . . . . . . . . . . . . . . . . . . . . 23
7.2 Negative Covenants of First National . . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.3 Covenants of Regions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
7.4 Adverse Changes in Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
7.5 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE 8 - ADDITIONAL AGREEMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
8.1 Registration Statement; Proxy Statement; Stockholder Approvals . . . . . . . . . . . . . 27
8.2 Exchange Listing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
8.3 Applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
8.4 Filings with State Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
8.5 Agreement as to Efforts to Consummate . . . . . . . . . . . . . . . . . . . . . . . . . 28
8.6 Investigation and Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
8.7 Press Releases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
8.8 Certain Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
8.9 Accounting and Tax Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
8.10 State Takeover Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
8.11 Charter Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
8.12 Agreement of Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
8.13 Employee Benefits and Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
8.14 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
8.15 Certain Modifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
8.16 Regions Merger Subsidiary Organization . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE 9 - CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE . . . . . . . . . . . . . . . . . . . 32
9.1 Conditions to Obligations of Each Party . . . . . . . . . . . . . . . . . . . . . . . . 32
9.2 Conditions to Obligations of Regions . . . . . . . . . . . . . . . . . . . . . . . . . . 33
</TABLE>
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<TABLE>
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9.3 Conditions to Obligations of First National . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE 10 - TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
10.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
10.2 Effect of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
10.3 Non-Survival of Representations and Covenants . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE 11 - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
11.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
11.2 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
11.3 Brokers and Finders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
11.4 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
11.5 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
11.6 Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
11.7 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
11.8 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
11.9 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
11.10 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
11.11 Captions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
11.12 Interpretations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
11.13 Enforcement of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
11.14 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
</TABLE>
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<PAGE> 5
LIST OF EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
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<S> <C>
1. Form of Stock Option Agreement. (Section 1.4).
2. Form of Plan of Merger. (Section 1.1).
3. Form of Affiliate Agreement. (Section Section 8.13, 9.2(e)).
</TABLE>
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<PAGE> 6
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement") is
made and entered into as of October 22, 1995, by and between FIRST NATIONAL
BANCORP ("First National"), a corporation organized and existing under the laws
of the State of Georgia, with its principal office located in Gainesville,
Georgia; and REGIONS FINANCIAL CORPORATION ("Regions"), a corporation organized
and existing under the laws of the State of Delaware, with its principal office
located in Birmingham, Alabama.
PREAMBLE
The Boards of Directors of First National and Regions are of the
opinion that the transactions described herein are in the best interests of the
parties to this Agreement and their respective stockholders. This Agreement
provides for the acquisition of First National by Regions pursuant to the
merger of First National with and into a wholly owned subsidiary of Regions to
be organized under the laws of the State of Georgia ("Regions Merger
Subsidiary"). At the effective time of such merger, the outstanding shares of
the capital stock of First National shall be converted into shares of the
common stock of Regions (except as provided herein). As a result, stockholders
of First National shall become stockholders of Regions and Regions Merger
Subsidiary shall continue to conduct the business and operations of First
National as a wholly owned subsidiary of Regions. The transactions described
in this Agreement are subject to the approvals of the stockholders of First
National, the stockholders of Regions, the Board of Governors of the Federal
Reserve System, the Office of Thrift Supervision, the Georgia Department of
Banking and Finance, and the Florida Department of Banking and Finance, and the
satisfaction of certain other conditions described in this Agreement. It is
the intention of the parties to this Agreement that the Merger for federal
income tax purposes 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 interests.
Immediately after the execution and delivery of this Agreement, as
a condition and inducement to Regions' willingness to enter into this
Agreement, First National and Regions are entering into a stock option
agreement (the "Stock Option Agreement"), in substantially the form of Exhibit
1, pursuant to which First National is granting to Regions an option to
purchase shares of First National common stock.
Certain terms used in this Agreement are defined in Section 11.1
of this Agreement.
NOW, THEREFORE, in consideration of the above and the mutual
warranties, representations, covenants, and agreements set forth herein, the
Parties agree as follows:
Page 11 of 80
<PAGE> 7
ARTICLE 1
TRANSACTIONS AND TERMS OF MERGER
1.1 Merger. Subject to the terms and conditions of this
Agreement, at the Effective Time, First National shall be merged with and into
Regions Merger Subsidiary in accordance with the provisions of Section
14-2-1101 of the GBCC and with the effect provided in Section 14-2-1106 of the
GBCC (the "Merger"). Regions Merger Subsidiary shall be the Surviving
Corporation resulting from the Merger and shall continue to be governed by the
Laws of the State of Georgia. The Merger shall be consummated pursuant to the
terms of this Agreement, which has been approved and adopted by the respective
Boards of Directors of First National and Regions, and the Plan of Merger, in
substantially the form of Exhibit 2, which has been approved and adopted by the
Board of Directors of First National and will be approved and adopted by the
Board of Directors of Regions Merger Subsidiary upon its organization.
1.2 TIME AND PLACE OF CLOSING. The Closing will take place at
9:00 A.M. on the date that the Effective Time occurs (or the immediately
preceding day if the Effective Time is earlier than 9:00 A.M.), or at such
other time as the Parties, acting through their chief executive officers or
chief financial officers, may mutually agree. The place of Closing shall be at
such location as may be mutually agreed upon by the Parties.
1.3 EFFECTIVE TIME. The Merger and other transactions
contemplated by this Agreement shall become effective on the date and at the
time the Georgia Certificate of Merger reflecting the Merger shall become
effective with the Secretary of State of the State of Georgia (the "Effective
Time"). Subject to the terms and conditions hereof, unless otherwise mutually
agreed upon in writing by the chief executive officers or chief financial
officers of each Party, the Parties shall use their reasonable efforts to cause
the Effective Time to occur on or before the tenth business day (as designated
by Regions) following the last to occur of (i) the effective date (including
expiration of any applicable waiting period) of the last required Consent of
any Regulatory Authority having authority over and approving or exempting the
Merger, and (ii) the date on which the stockholders of Regions and First
National approve the matters relating to this Agreement and the Plan of Merger
required to be approved by such stockholders by applicable Law.
1.4 EXECUTION OF STOCK OPTION AGREEMENT. Immediately after the
execution of this Agreement and as a condition thereto, First National is
executing and delivering to Regions the Stock Option Agreement.
ARTICLE 2
TERMS OF MERGER
2.1 CHARTER. The Articles of Incorporation of Regions Merger
Subsidiary in effect immediately prior to the Effective Time shall be the
Articles of Incorporation of the Surviving Corporation until otherwise amended
or repealed.
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2.2 BYLAWS. The Bylaws of Regions Merger Subsidiary in effect
immediately prior to the Effective Time shall be the Bylaws of the Surviving
Corporation until otherwise amended or repealed.
ARTICLE 3
MANNER OF CONVERTING SHARES
3.1 CONVERSION OF SHARES. Subject to the provisions of this
Article 3, at the Effective Time, by virtue of the Merger and without any
action on the part of Regions or First National, or the stockholders of either
of the foregoing, the shares of the constituent corporations shall be converted
as follows:
(a) Each share of Regions Common Stock issued and
outstanding immediately prior to the Effective Time shall remain issued
and outstanding from and after the Effective Time.
(b) Each share of Regions Merger Subsidiary Common Stock
issued and outstanding immediately prior to the Effective Time shall
remain issued and outstanding from and after the Effective Time.
(c) Each share of First National Common Stock (excluding
shares held by any First National Company or any Regions Company, in
each case other than in a fiduciary capacity or as a result of debts
previously contracted) issued and outstanding at the Effective Time
shall cease to be outstanding and shall be converted into and exchanged
for .76 of a share of Regions Common Stock (subject to adjustment
pursuant to Section 10.1(h) of this Agreement, the "Exchange Ratio").
3.2 ANTI-DILUTION PROVISIONS. In the event Regions changes the
number of shares of Regions Common Stock issued and outstanding prior to the
Effective Time as a result of a stock split, stock dividend, or similar
recapitalization with respect to such stock 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 Exchange Ratio shall be
proportionately adjusted.
3.3 SHARES HELD BY FIRST NATIONAL OR REGIONS. Each of the
shares of First National Common Stock held by any First National Company or by
any Regions Company, in each case other than in a fiduciary capacity or as a
result of debts previously contracted, shall be canceled and retired at the
Effective Time and no consideration shall be issued in exchange therefor.
3.4 FRACTIONAL SHARES. Notwithstanding any other provision of
this Agreement, each holder of shares of First National Common Stock exchanged
pursuant to the Merger who would otherwise have been entitled to receive a
fraction of a share of Regions Common Stock (after taking into account all
certificates delivered by such holder) shall receive, in lieu thereof,
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cash (without interest) in an amount equal to such fractional part of a share
of Regions Common Stock multiplied by the market value of one share of Regions
Common Stock at the Effective Time. The market value of one share of Regions
Common Stock at the Effective Time shall be the closing price of such common
stock on the Nasdaq NMS (as reported by The Wall Street Journal or, if not
reported thereby, any other authoritative source selected by Regions) on the
last trading day preceding the Effective Time. No such holder will be entitled
to dividends, voting rights, or any other rights as a stockholder in respect of
any fractional shares.
3.5 CONVERSION OF STOCK RIGHTS.
(a) At the Effective Time, each award, option, or other
right to purchase or acquire shares of First National Common Stock pursuant to
stock options, stock appreciation rights, or stock awards ("First National
Rights") granted by First National under the First National Stock Plans, which
are outstanding at the Effective Time, whether or not exercisable, shall be
converted into and become rights with respect to Regions Common Stock, and
Regions shall assume each First National Right, in accordance with the terms of
the First National Stock Plan and stock option agreement by which it is
evidenced, except that from and after the Effective Time, (i) Regions and its
Compensation Committee shall be substituted for First National and the
Committee of First National's Board of Directors (including, if applicable, the
entire Board of Directors of First National) administering such First National
Stock Plan, (ii) each First National Right assumed by Regions may be exercised
solely for shares of Regions Common Stock (or cash in the case of stock
appreciation rights), (iii) the number of shares of Regions Common Stock
subject to such First National Right shall be equal to the number of shares of
First National Common Stock subject to such First National 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 First National Right shall be adjusted by dividing the per
share exercise (or threshold) price under each such First National Right by the
Exchange Ratio and rounding up to the nearest cent. Notwithstanding the
provisions of clause (iii) of the preceding sentence, Regions shall not be
obligated to issue any fraction of a share of Regions Common Stock upon
exercise of First National Rights and any fraction of a share of Regions Common
Stock that otherwise would be subject to a converted First National Right shall
represent the right to receive a cash payment equal to the product of such
fraction and the difference between the market value of one share of Regions
Common Stock and the per share exercise price of such Right. The market value
of one share of Regions Common Stock shall be the closing price of such common
stock on the Nasdaq NMS (as reported by The Wall Street Journal or, if not
reported thereby, any other authoritative source selected by Regions) on the
last trading day preceding the Effective Time. In addition, notwithstanding
the provisions of clauses (iii) and (iv) of the first sentence of this Section
3.5, each First National 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. Regions agrees to take all necessary steps to
effectuate the foregoing provisions of this Section 3.5.
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(b) As soon as reasonably practicable after the Effective
Time, Regions shall deliver to the participants in each First National Stock
Plan an appropriate notice setting forth such participant's rights pursuant
thereto and the grants pursuant to such First National Stock Plan shall
continue in effect on the same terms and conditions (subject to the adjustments
required by Section 3.5(a) after giving effect to the Merger), and Regions
shall comply with the terms of each First National Stock Plan to ensure, to the
extent required by, and subject to the provisions of, such First National Stock
Plan, that First National 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, Regions shall
take all corporate action necessary to reserve for issuance sufficient shares
of Regions Common Stock for delivery upon exercise of First National Rights
assumed by it in accordance with this Section 3.5. As soon as reasonably
practicable after the Effective Time, Regions shall file a registration
statement on Form S-3 or Form S-8, as the case may be (or any successor or
other appropriate forms), with respect to the shares of Regions Common Stock
subject to such options and shall use its reasonable efforts to maintain the
effectiveness of such registration statements (and maintain the current status
of the prospectus or prospectuses contained therein) for so long as such
options remain outstanding. With respect to those individuals who subsequent
to the Merger will be subject to the reporting requirements under Section 16(a)
of the Exchange Act, where applicable, Regions shall administer the First
National Stock Plan assumed pursuant to this Section 3.5 in a manner that
complies with Rule 16b-3 promulgated under the Exchange Act to the extent the
First National Stock Plan complied with such rule prior to the Merger.
(c) All restrictions or limitations on transfer with
respect to First National Common Stock awarded under the First National Stock
Plans or any other plan, program, or arrangement of any First National Company,
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 shares of
Regions Common Stock into which such restricted stock is converted pursuant to
Section 3.1 of this Agreement.
ARTICLE 4
EXCHANGE OF SHARES
4.1 EXCHANGE PROCEDURES. Promptly after the Effective Time,
Regions and First National shall cause the exchange agent selected by Regions
(the "Exchange Agent") to mail to the former stockholders of First National
appropriate transmittal materials (which shall specify that delivery shall be
effected, and risk of loss and title to the certificates theretofore
representing shares of First National Common Stock shall pass, only upon proper
delivery of such certificates to the Exchange Agent). After the Effective
Time, each holder of shares of First National Common Stock (other than shares
to be canceled pursuant to Section 3.3 of this Agreement) issued and
outstanding at the Effective Time shall surrender the certificate or
certificates representing such shares to the Exchange Agent and shall promptly
upon surrender thereof receive in exchange therefor the consideration provided
in Section 3.1 of this Agreement, together with all undelivered dividends or
distributions in respect of such shares (without interest thereon) pursuant to
Section 4.2 of this Agreement. To the extent required by Section 3.4 of this
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Agreement, each holder of shares of First National Common Stock issued and
outstanding at the Effective Time also shall receive, upon surrender of the
certificate or certificates representing such shares, cash in lieu of any
fractional share of Regions Common Stock to which such holder may be otherwise
entitled (without interest). Regions shall not be obligated to deliver the
consideration to which any former holder of First National Common Stock is
entitled as a result of the Merger until such holder surrenders such holder's
certificate or certificates representing the shares of First National Common
Stock for exchange as provided in this Section 4.1. The certificate or
certificates of First National Common Stock so surrendered shall be duly
endorsed as the Exchange Agent may require. Any other provision of this
Agreement notwithstanding, neither the Surviving Corporation nor the Exchange
Agent shall be liable to a holder of First National Common Stock for any
amounts paid or property delivered in good faith to a public official pursuant
to any applicable abandoned property Law.
4.2 RIGHTS OF FORMER FIRST NATIONAL STOCKHOLDERS. At the
Effective Time, the stock transfer books of First National shall be closed as
to holders of First National Common Stock immediately prior to the Effective
Time and no transfer of First National Common Stock by any such holder shall
thereafter be made or recognized. Until surrendered for exchange in accordance
with the provisions of Section 4.1 of this Agreement, each certificate
theretofore representing shares of First National Common Stock (other than
shares to be canceled pursuant to Section 3.3 of this Agreement) shall from and
after the Effective Time represent for all purposes only the right to receive
the consideration provided in Sections 3.1 and 3.4 of this Agreement in
exchange therefor, subject, however, to the Surviving Corporation's obligation
to pay any dividends or make any other distributions with a record date prior
to the Effective Time which have been declared or made by First National in
respect of such shares of First National Common Stock in accordance with the
terms of this Agreement and which remain unpaid at the Effective Time. To the
extent permitted by Law, former stockholders of record of First National shall
be entitled to vote after the Effective Time at any meeting of Regions
stockholders the number of whole shares of Regions Common Stock into which
their respective shares of First National Common Stock are converted,
regardless of whether such holders have exchanged their certificates
representing First National Common Stock for certificates representing Regions
Common Stock in accordance with the provisions of this Agreement. Whenever a
dividend or other distribution is declared by Regions on the Regions Common
Stock, 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 beginning 30 days after the Effective
Time no dividend or other distribution payable to the holders of record of
Regions Common Stock as of any time subsequent to the Effective Time shall be
delivered to the holder of any certificate representing shares of First
National Common Stock issued and outstanding at the Effective Time until such
holder surrenders such certificate for exchange as provided in Section 4.1 of
this Agreement. However, upon surrender of such First National Common Stock
certificate, both the Regions Common Stock certificate (together with all such
undelivered dividends or other distributions without interest) and any
undelivered dividends and cash payments to be paid for fractional share
interests (without interest) shall be delivered and paid with respect to each
share represented by such certificate.
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ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF FIRST NATIONAL
Except as set forth in the First National Disclosure Memorandum,
First National hereby represents and warrants to Regions as follows:
5.1 ORGANIZATION, STANDING, AND POWER. First National is a
corporation duly organized, validly existing, and in good standing under the
Laws of the State of Georgia, and has the corporate power and authority to
carry on its business as now conducted and to own, lease, and operate its
material Assets. First National is duly qualified or licensed to transact
business as a foreign corporation in good standing in the States of the United
States and foreign jurisdictions where the character of its Assets or the
nature or conduct of its business requires it to be so qualified or licensed,
except for such jurisdictions in which the failure to be so qualified or
licensed is not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on First National.
5.2 AUTHORITY; NO BREACH BY AGREEMENT.
(a) First National has the corporate power and authority
necessary to execute, deliver, and perform its obligations under this Agreement
and the Plan of Merger and to consummate the transactions contemplated hereby
and thereby. The execution, delivery, and performance of this Agreement and
the Plan of Merger, as appropriate, and the consummation of the transactions
contemplated herein and therein, including the Merger, have been duly and
validly authorized by all necessary corporate action in respect thereof on the
part of First National, subject to the approval of this Agreement and the Plan
of Merger by the holders of a majority of the outstanding shares of First
National Common Stock, which is the only stockholder vote required for approval
of this Agreement and the Plan of Merger and consummation of the Merger by
First National. Subject to such requisite stockholder approval, this Agreement
and the Plan of Merger represent legal, valid, and binding obligations of First
National, enforceable against First National in accordance with their
respective terms (except in all cases as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or similar Laws
affecting the enforcement of creditors' rights generally and except that the
availability of the equitable remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any proceeding
may be brought).
(b) Neither the execution and delivery of this Agreement
or the Plan of Merger by First National, nor the consummation by First National
of the transactions contemplated hereby or thereby, nor compliance by First
National with any of the provisions hereof or thereof, will (i) conflict with
or result in a breach of any provision of First National's Articles of
Incorporation or Bylaws, or, (ii) constitute or result in a Default under, or
require any Consent pursuant to, or result in the creation of any Lien on any
Asset of any First National Company under, any Contract or Permit of any First
National Company, where such Default or Lien, or any failure to obtain such
Consent, is reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on First National, or, (iii) subject to receipt of the
requisite Consents referred to in Section
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9.1(b) of this Agreement, violate any Law or Order applicable to any First
National Company or any of their respective material Assets.
(c) Other than in connection or compliance with the
provisions of the Securities Laws, applicable state corporate and securities
Laws, and rules of the NASD, and other than Consents required from Regulatory
Authorities, and other than 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, and other than Consents, filings,
or notifications which, if not obtained or made, are not reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on First
National, no notice to, filing with, or Consent of, any public body or
authority is necessary for the consummation by First National of the Merger and
the other transactions contemplated in this Agreement and the Plan of Merger.
5.3 CAPITAL STOCK.
(a) The authorized capital stock of First National
consists of 30,000,000 shares of First National Common Stock, of which
20,548,917 shares are issued and outstanding as of the date of this Agreement
and not more than 21,001,539 shares will be issued and outstanding at the
Effective Time. All of the issued and outstanding shares of First National
Common Stock are duly and validly issued and outstanding and are fully paid and
nonassessable under the GBCC. None of the outstanding shares of First National
Common Stock has been issued in violation of any preemptive rights of the
current or past stockholders of First National.
(b) Except as set forth in Section 5.3(a) of this
Agreement, or as provided pursuant to the Stock Option Agreement, there are no
shares of capital stock or other equity securities of First National
outstanding and no outstanding Rights relating to the capital stock of First
National.
5.4 FIRST NATIONAL SUBSIDIARIES. First National has disclosed
in Section 5.4 of the First National Disclosure Memorandum all of the First
National Subsidiaries as of the date of this Agreement. First National or one
of its Subsidiaries owns all of the issued and outstanding shares of capital
stock of each First National Subsidiary. No equity securities of any First
National Subsidiary are or may become required to be issued (other than to
another First National Company) by reason of any Rights, and there are no
Contracts by which any First National Subsidiary is bound to issue (other than
to another First National Company) additional shares of its capital stock or
Rights or by which any First National Company is or may be bound to transfer
any shares of the capital stock of any First National Subsidiary (other than to
another First National Company). There are no Contracts relating to the rights
of any First National Company to vote or to dispose of any shares of the
capital stock of any First National Subsidiary. All of the shares of capital
stock of each First National Subsidiary held by a First National Company are
fully paid and nonassessable under the applicable corporation Law of the
jurisdiction in which such Subsidiary is incorporated or organized and are
owned by the First National Company free and clear of any Lien. Each First
National Subsidiary is either a bank or a corporation, and is duly organized,
validly existing, and (as to corporations) in good standing under the Laws of
the jurisdiction in which it is incorporated or organized, and has the
corporate power and authority
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necessary for it to own, lease, and operate its Assets and to carry on its
business as now conducted. Each First National Subsidiary is duly qualified or
licensed to transact business as a foreign corporation in good standing in the
States of the United States and foreign jurisdictions where the character of
its Assets or the nature or conduct of its business requires it to be so
qualified or licensed, except for such jurisdictions in which the failure to be
so qualified or licensed is not reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on First National. Each First
National Subsidiary that is a depository institution is an "insured
institution" as defined in the Federal Deposit Insurance Act and applicable
regulations thereunder, and the deposits in which are insured by the Bank
Insurance Fund or Savings Association Insurance Fund.
5.5 SEC FILINGS; FINANCIAL STATEMENTS.
(a) First National has filed and made available to
Regions all forms, reports, and documents required to be filed by First
National with the SEC since December 31, 1991 (collectively, the "First
National SEC Reports"). The First National SEC Reports (i) at the time filed,
complied in all material respects with the applicable requirements of the
Securities Act and the Exchange Act, as the case may be, and (ii) did not at
the time they were filed (or if amended or superseded by a filing prior to the
date of this Agreement, then on the date of such filing) contain any untrue
statement of a material fact or omit to state a material fact required to be
stated in such First National SEC Reports or necessary in order to make the
statements in such First National SEC Reports, in light of the circumstances
under which they were made, not misleading. Except for First National
Subsidiaries that are registered as a broker, dealer, or investment advisor,
none of First National's Subsidiaries is required to file any forms, reports,
or other documents with the SEC.
(b) Each of the First National Financial Statements
(including, in each case, any related notes) contained in the First National
SEC Reports, including any First National SEC Reports filed after the date of
this Agreement until the Effective Time, complied as to form in all material
respects with the applicable published rules and regulations of the SEC with
respect thereto, was prepared in accordance with GAAP applied on a consistent
basis throughout the periods involved (except as may be indicated in the notes
to such financial statements, or, in the case of unaudited statements, as
permitted by Form 10-Q of the SEC), and fairly presented the consolidated
financial position of First National and its Subsidiaries as at the respective
dates and the consolidated results of its operations and cash flows 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.
5.6 ABSENCE OF UNDISCLOSED LIABILITIES. To the Knowledge of
First National, no First National Company has any Liabilities that are
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on First National, except Liabilities which are accrued or reserved
against in the consolidated balance sheets of First National as of June 30,
1995 included in the First National Financial Statements or reflected in the
notes thereto. No First National Company has incurred or paid any Liability
since June 30, 1995, except for such Liabilities incurred or paid in the
ordinary course of business consistent with past business practice and
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which are not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on First National.
5.7 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since June 30, 1995,
(i) there have been no events, changes, or occurrences which have had, or are
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on First National, and (ii) the First National Companies have not taken
any action, or failed to take any action, 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 any of the covenants
and agreements of First National provided in Article 7 of this Agreement.
5.8 TAX MATTERS.
(a) All Tax Returns required to be filed by or on behalf
of any of the First National Companies have been timely filed or requests for
extensions have been timely filed, granted, and have not expired for periods
ended on or before December 31, 1994, and on or before the date of the most
recent fiscal year end 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 First National, and all Tax Returns
filed are complete and accurate in all material respects. All Taxes shown on
filed Tax Returns have been paid. There is no audit examination, deficiency, or
refund Litigation with respect to any Taxes that is reasonably likely to result
in a determination that would have, individually or in the aggregate, a
Material Adverse Effect on First National, except as reserved against in the
First National Financial Statements delivered prior to the date of this
Agreement. All Taxes and other Liabilities due with respect to completed and
settled examinations or concluded Litigation have been paid.
(b) None of the First National Companies has 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) Adequate provision for any Taxes due or to become due
for any of the First National Companies for the period or periods through and
including the date of the respective First National Financial Statements has
been made and is reflected on such First National Financial Statements.
(d) Deferred Taxes of the First National Companies have
been adequately provided for in the First National Financial Statements.
(e) Each of the First National Companies is in compliance
with, and its records contain all information and documents (including properly
completed IRS 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 as are not reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on First
National.
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(f) None of the First National Companies has made any
payments, is obligated to make any payments, or is a party to any contract,
agreement, or other arrangement that could obligate it 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 assets of the First National Companies.
(h) There has not been an ownership change, as defined in
Internal Revenue Code Section 382(g), of the First National Companies that
occurred during or after any Taxable Period in which the First National
Companies incurred a net operating loss that carries over to any Taxable Period
ending after December 31, 1994.
(i) No First National Company has filed any consent under
Section 341(f) of the Internal Revenue Code concerning collapsible
corporations.
(j) All material elections with respect to Taxes
affecting the First National Companies as of the date of this Agreement have
been or will be timely made as set forth in Section 5.8 of the First National
Disclosure Memorandum. After the date hereof, no election with respect to
Taxes will be made without the prior written consent of Regions, which consent
will not be unreasonably withheld.
(k) No First National Company has or has had a permanent
establishment in any foreign country, as defined in any applicable tax treaty
or convention between the United States and such foreign country.
5.9 ASSETS. The First National Companies have good and
marketable title, free and clear of all Liens, to all of their respective
Assets. All tangible properties used in the businesses of the First National
Companies are in good condition, reasonable wear and tear excepted, and are
usable in the ordinary course of business consistent with First National's past
practices. All Assets which are material to First National's business on a
consolidated basis, held under leases or subleases by any of the First National
Companies, are held under valid Contracts enforceable in accordance with their
respective terms (except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, or other Laws affecting the
enforcement of creditors' rights generally and except that the availability of
the equitable remedy of specific performance or injunctive relief is subject to
the discretion of the court before which any proceedings may be brought), and
each such Contract is in full force and effect. The First National Companies
currently maintain insurance similar in amounts, scope, and coverage to that
maintained by other peer banking organizations. None of the First National
Companies has received notice from any insurance carrier that (i) such
insurance will be canceled or that coverage thereunder will be reduced or
eliminated, or (ii) premium costs with respect to such policies of insurance
will be substantially increased. There are presently no claims pending under
such policies of insurance and no notices have been given by any First National
Company under such
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policies. The Assets of the First National Companies include all Assets
required to operate the business of the First National Companies as presently
conducted.
5.10 ENVIRONMENTAL MATTERS.
(a) To the Knowledge of First National, each First
National Company, its Participation Facilities, and its Loan Properties are,
and have been, in compliance with all Environmental Laws, except for violations
which are not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on First National.
(b) There is no Litigation pending, or, to the Knowledge
of First National, threatened before any court, governmental agency, or
authority or other forum in which any First National Company or any of its Loan
Properties or Participation Facilities (or any First National Company in
respect of any such Loan Property or Participation Facility) has been or, with
respect to threatened Litigation, may be named as a defendant or 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
any of its Loan Properties or Participation Facilities, except for such
Litigation pending or threatened that is not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on First National.
(c) To the Knowledge of First National, there is no
reasonable basis for any Litigation of a type described in subsections (b) or
(c), except such as is not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on First National.
(d) To the Knowledge of First National, there have been
no releases of Hazardous Material in, on, under, or affecting any Participation
Facility or Loan Property of a First National Company, except such as are not
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on First National.
5.11 COMPLIANCE WITH LAWS. First National is duly registered as
a bank holding company under the BHC Act and as a savings and loan holding
company under the HOLA. Each First National Company has in effect all Permits
necessary for it to own, lease, or operate its material Assets and to carry on
its business as now conducted, except for those Permits the absence of which
are not reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on First National, and there has occurred no Default under any
such Permit, other than Defaults which are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on First National.
None of the First National Companies:
(a) is in violation of any Laws, Orders, or Permits
applicable to its business or employees conducting its business, except
for violations which are not reasonably likely to have, individually or
in the aggregate, a Material Adverse Effect on First National; and
(b) has received any notification or communication from
any agency or department of federal, state, or local government or any
Regulatory Authority or the staff
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thereof (i) asserting that any First National Company is not in
compliance with any of the Laws or Orders which such governmental
authority or Regulatory Authority enforces, where such noncompliance is
reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on First National, (ii) threatening to revoke any
Permits, the revocation of which is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on First
National, or (iii) requiring any First National Company to enter into or
consent to the issuance of a cease and desist order, formal agreement,
directive, commitment, or memorandum of understanding, which restricts
materially the conduct of its business, or in any manner relates to its
capital adequacy, its credit or reserve policies, its management, or the
payment of dividends.
5.12 LABOR RELATIONS. No First National Company is the subject
of any Litigation asserting that it or any other First National Company has
committed an unfair labor practice (within the meaning of the National Labor
Relations Act or comparable state law) or seeking to compel it or any other
First National Company to bargain with any labor organization as to wages or
conditions of employment, nor is there any strike or other labor dispute
involving any First National Company, pending or threatened, or to the
Knowledge of First National, is there any activity involving any First National
Company's employees seeking to certify a collective bargaining unit or engaging
in any other organization activity.
5.13 EMPLOYEE BENEFIT PLANS.
(a) First National has disclosed in Section 5.13 of the
First National Disclosure Memorandum, and has delivered or made available to
Regions prior to the execution of this Agreement copies in each case of, all
pension, retirement, profit-sharing, deferred compensation, stock option,
employee stock ownership, severance pay, vacation, bonus, or other incentive
plan, all other written employee programs, arrangements, or agreements, all
medical, vision, dental, or other health plans, all life insurance plans, and
all other employee benefit plans or fringe benefit plans, including "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
any First National Company or ERISA Affiliate (as defined below) thereof for
the benefit of employees, retirees, dependents, spouses, directors, independent
contractors, or other beneficiaries and under which employees, retirees,
dependents, spouses, directors, independent contractors, or other beneficiaries
are eligible to participate (collectively, the "First National Benefit Plans").
Any of the First National 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 "First National ERISA Plan." Each First National ERISA Plan which is also
a "defined benefit plan" (as defined in Section 414(j) of the Internal Revenue
Code) is referred to herein as a "First National Pension Plan." No First
National Pension Plan is or has been a multiemployer plan within the meaning of
Section 3(37) of ERISA.
(b) All First National Benefit Plans are in compliance
with the applicable terms of ERISA, the Internal Revenue Code, and any other
applicable Laws the breach or violation of which are reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on First National,
and each First National ERISA Plan which is intended to be qualified under
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Section 401(a) of the Internal Revenue Code has received a favorable
determination letter from the Internal Revenue Service, and First National is
not aware of any circumstances likely to result in revocation of any such
favorable determination letter. To the Knowledge of First National, no First
National Company has engaged in a transaction with respect to any First
National Benefit Plan that, assuming the taxable period of such transaction
expired as of the date hereof, would subject any First National Company to a
Tax imposed by either Section 4975 of the Internal Revenue Code or Section
502(i) of ERISA in amounts which are reasonably likely to have, individually or
in the aggregate, a Material Adverse Effect on First National.
(c) No First National Pension Plan has any "unfunded
current liability," as that term is defined in Section 302(d)(8)(A) of ERISA,
and the fair market value of the assets of any such plan exceeds the plan's
"benefit liabilities," as that term is defined in Section 4001(a)(16) of ERISA,
when determined under actuarial factors that would apply if the plan terminated
in accordance with all applicable legal requirements. Since the date of the
most recent actuarial valuation, there has been (i) no material change in the
financial position of any First National Pension Plan, (ii) no change in the
actuarial assumptions with respect to any First National Pension Plan, and
(iii) no increase in benefits under any First National Pension Plan as a result
of plan amendments or changes in applicable Law which is reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on First
National or materially adversely affect the funding status of any such plan.
Neither any First National Pension Plan nor any "single-employer plan," within
the meaning of Section 4001(a)(15) of ERISA, currently or formerly maintained
by any First National Company, or the single-employer plan of any entity which
is considered one employer with First National under Section 4001 of ERISA or
Section 414 of the Internal Revenue Code or Section 302 of ERISA (whether or
not waived) (an "ERISA Affiliate") has an "accumulated funding deficiency"
within the meaning of Section 412 of the Internal Revenue Code or Section 302
of ERISA, which is reasonably likely to have a Material Adverse Effect on First
National. No First National Company has provided, or is required to provide,
security to a First National Pension Plan or to any single- employer plan of an
ERISA Affiliate pursuant to Section 401(a)(29) of the Internal Revenue Code.
(d) Within the six-year period preceding the Effective
Time, no Liability under Subtitle C or D of Title IV of ERISA has been or is
expected to be incurred by any First National Company with respect to any
ongoing, frozen, or terminated single-employer plan or the single-employer plan
of any ERISA Affiliate, which Liability is reasonably likely to have a Material
Adverse Effect on First National. No First National Company has incurred any
withdrawal Liability with respect to a multiemployer plan under Subtitle B of
Title IV of ERISA (regardless of whether based on contributions of an ERISA
Affiliate), which Liability is reasonably likely to have a Material Adverse
Effect on First National. No notice of a "reportable event," within the
meaning of Section 4043 of ERISA for which the 30-day reporting requirement has
not been waived, has been required to be filed for any First National Pension
Plan or by any ERISA Affiliate within the 12-month period ending on the date
hereof.
(e) No First National Company has any Liability for
retiree health and life benefits under any of the First National Benefit Plans
and there are no restrictions on the rights of such First National Company to
amend or terminate any such Plan without incurring any Liability
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thereunder, which Liability is reasonably likely to have a Material Adverse
Effect on First National.
(f) Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby will (i) result in
any payment (including severance, unemployment compensation, golden parachute,
or otherwise) becoming due to any director or any employee of any First
National Company from any First National Company under any First National
Benefit Plan or otherwise, (ii) increase any benefits otherwise payable under
any First National Benefit Plan, or (iii) result in any acceleration of the
time of payment or vesting of any such benefit, where such payment, increase,
or acceleration is reasonably likely to have, individually or in the aggregate,
a Material Adverse Effect on First National.
(g) The actuarial present values of all accrued deferred
compensation entitlements (including entitlements under any executive
compensation, supplemental retirement, or employment agreement) of employees
and former employees of any First National Company and their respective
beneficiaries, other than entitlements accrued pursuant to funded retirement
plans subject to the provisions of Section 412 of the Internal Revenue Code or
Section 302 of ERISA, have been fully reflected on the First National Financial
Statements to the extent required by and in accordance with GAAP.
5.14 MATERIAL CONTRACTS. None of the First National Companies,
nor any of their respective Assets, businesses, or operations, is a party to,
or is bound or affected by, or receives benefits under, (i) any employment,
severance, termination, consulting, or retirement Contract providing for
aggregate payments to any Person in any calendar year in excess of $100,000,
(ii) any Contract relating to the borrowing of money by any First National
Company or the guarantee by any First National Company of any such obligation
(other than Contracts evidencing deposit liabilities, purchases of federal
funds, fully-secured repurchase agreements, and Federal Home Loan Bank advances
of depository institution Subsidiaries, trade payables, and Contracts relating
to borrowings or guarantees made in the ordinary course of business), and (iii)
any other Contract or amendment thereto that would be required to be filed as
an exhibit to a Form 10-K filed by First National with the SEC as of the date
of this Agreement that has not been filed as an exhibit to First National's
Form 10-K filed for the fiscal year ended December 31, 1994, or in another SEC
Document and identified to Regions (together with all Contracts referred to in
Sections 5.8 and 5.13(a) of this Agreement, the "First National Contracts").
With respect to each First National Contract: (i) the Contract is in full
force and effect; (ii) no First National Company is in Default thereunder,
other than Defaults which are not reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on First National; (iii) no First
National Company has repudiated or waived any material provision of any such
Contract; and (iv) no other party to any such Contract is, to the Knowledge of
First National, in Default in any respect, other than Defaults which are not
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on First National, or has repudiated or waived any material provision
thereunder. Except for Federal Home Loan Bank advances, all of the
indebtedness of any First National Company for money borrowed is prepayable at
any time by such First National Company without penalty or premium.
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5.15 LEGAL PROCEEDINGS.
(a) There is no Litigation instituted or pending, or, to
the Knowledge of First National, 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 First National Company, or
against any Asset, employee benefit plan, interest, or right of any of them,
that is reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on First National, nor are there any Orders of any Regulatory
Authorities, other governmental authorities, or arbitrators outstanding against
any First National Company, that are reasonably likely to have, individually or
in the aggregate, a Material Adverse Effect on First National.
(b) Section 5.15(b) of the First National Disclosure
Memorandum includes a summary report of all Litigation as of the date of this
Agreement to which any First National Company is a party and which names a
First National Company as a defendant or cross-defendant and where the maximum
exposure is estimated to be $100,000 or more.
5.16 REPORTS. Since January 1, 1992, or the date of organization
if later, each First National Company has timely filed all reports and
statements, together with any amendments required to be made with respect
thereto, that it was required to file with any Regulatory Authorities (except,
in the case of state securities authorities, failures to file which are not
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on First National). As of their respective dates, each of such reports
and documents, including the financial statements, exhibits, and schedules
thereto, complied in all material respects with all applicable Laws. As of its
respective date, each such report and document did not, in all material
respects, contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
made therein, in light of the circumstances under which they were made, not
misleading.
5.17 STATEMENTS TRUE AND CORRECT. None of the information
supplied or to be supplied by any First National Company or any Affiliate
thereof for inclusion in the Registration Statement to be filed by Regions 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 First National Company or any
Affiliate thereof for inclusion in the Joint Proxy Statement to be mailed to
Regions' and First National's stockholders in connection with the Stockholders'
Meetings, and any other documents to be filed by a First National Company or
any Affiliate thereof 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 to the Joint Proxy Statement,
when first mailed to the stockholders of Regions and First National, be false
or misleading with respect to any 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 Joint Proxy
Statement or any amendment thereof or supplement thereto, at the time of the
Stockholders' Meetings, 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'
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Meetings. All documents that any First National 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.
5.18 ACCOUNTING, TAX, AND REGULATORY MATTERS. No First National
Company or any Affiliate thereof has taken or agreed to take any action or has
any 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 accounting 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.
5.19 STATE TAKEOVER LAWS. Each First National Company has taken
all necessary action to exempt the transactions contemplated by this Agreement
from any applicable "moratorium," "control share," "fair price," "business
combination," or other anti-takeover laws and regulations of the State of
Georgia (collectively, "Takeover Laws"), including Sections 14-2-1111 and
14-2-1132 of the GBCC.
5.20 CHARTER PROVISIONS. Each First National Company has taken
all action so that the entering into of this Agreement and the Plan of Merger
and the consummation of the Merger and the other transactions contemplated by
this Agreement and the Plan of Merger do not and will not result in the grant
of any rights to any Person under the Articles of Incorporation, Bylaws, or
other governing instruments of any First National Company or restrict or impair
the ability of Regions or any of its Subsidiaries to vote, or otherwise to
exercise the rights of a stockholder with respect to, shares of any First
National Company that may be directly or indirectly acquired or controlled by
it.
5.21 DERIVATIVES CONTRACTS. Neither First National nor any of
its Subsidiaries is a party to or has agreed to enter into an exchange-traded
or over-the-counter 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).
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF REGIONS
Regions hereby represents and warrants to First National as
follows:
6.1 ORGANIZATION, STANDING, AND POWER. Regions is a corporation
duly organized, validly existing, and in good standing under the Laws of the
State of Delaware, and has the corporate power and authority to carry on its
business as now conducted and to own, lease, and operate its material Assets.
Regions is duly qualified or licensed to transact business as a foreign
corporation in good standing in the States of the United States and foreign
jurisdictions where the
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<PAGE> 23
character of its Assets or the nature or conduct of its business requires it to
be so qualified or licensed, except for such jurisdictions in which the failure
to be so qualified or licensed is not reasonably likely to have, individually
or in the aggregate, a Material Adverse Effect on Regions.
6.2 AUTHORITY; NO BREACH BY AGREEMENT.
(a) Regions has the corporate power and authority
necessary to execute, deliver, and perform its obligations under this Agreement
and to consummate the transactions contemplated hereby. The execution,
delivery, and performance of this Agreement and the consummation of the
transactions contemplated herein, including the Merger, have been duly and
validly authorized by all necessary corporate action in respect thereof on the
part of Regions, subject to the approval of the issuance of the shares of
Regions Common Stock pursuant to the Merger by a majority of the votes cast at
the Regions Stockholders' Meeting by holders of shares of Regions Common Stock,
which is the only stockholder vote required for the consummation of the Merger
by Regions. Subject to such requisite stockholder approval, this Agreement
represents a legal, valid, and binding obligation of Regions, enforceable
against Regions in accordance with its terms (except in all cases as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar Laws affecting the enforcement of
creditors' rights generally and except that the availability of the equitable
remedy of specific performance or injunctive relief is subject to the
discretion of the court before which any proceeding may be brought).
(b) Neither the execution and delivery of this Agreement
by Regions, nor the consummation by Regions of the transactions contemplated
hereby, nor compliance by Regions with any of the provisions hereof, will (i)
conflict with or result in a breach of any provision of Regions' Certificate of
Incorporation or Bylaws, or (ii) constitute or result in a Default under, or
require any Consent pursuant to, or result in the creation of any Lien on any
Asset of any Regions Company under, any Contract or Permit of any Regions
Company, where such Default or Lien, or any failure to obtain such Consent, is
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on Regions, or, (iii) subject to receipt of the requisite Consents
referred to in Section 9.1(b) of this Agreement, violate any Law or Order
applicable to any Regions Company or any of their respective material Assets.
(c) Other than in connection or compliance with the
provisions of the Securities Laws, applicable state corporate and securities
Laws, and rules of the NASD, and other than Consents required from Regulatory
Authorities, and other than 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, and other than Consents, filings,
or notifications which, if not obtained or made, are not reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on Regions,
no notice to, filing with, or Consent of, any public body or authority is
necessary for the consummation by Regions of the Merger and the other
transactions contemplated in this Agreement.
6.3 CAPITAL STOCK. The authorized capital stock of Regions
consists of 120,000,000 shares of Regions Common Stock, of which 45,397,944
shares were issued and outstanding and
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1,474,579 shares were held as treasury shares as of June 30, 1995. All of the
issued and outstanding shares of Regions Common Stock are, and all of the
shares of Regions Common Stock to be issued in exchange for shares of First
National 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 under the DGCL. None of the
outstanding shares of Regions Common Stock has been, and none of the shares of
Regions Common Stock to be issued in exchange for shares of First National
Common Stock upon consummation of the Merger will be, issued in violation of
any preemptive rights of the current or past stockholders of Regions.
6.4 REGIONS SUBSIDIARIES. Regions has disclosed in Section 6.4
of the Regions Disclosure Memorandum all of the Regions Subsidiaries as of the
date of this Agreement. Except as disclosed in Section 6.4 of the Regions
Disclosure Memorandum, Regions or one of its Subsidiaries owns all of the
issued and outstanding shares of capital stock of each Regions Subsidiary. No
equity securities of any Regions Subsidiary are or may become required to be
issued (other than to another Regions Company) by reason of any Rights, and
there are no Contracts by which any Regions Subsidiary is bound to issue (other
than to another Regions Company) additional shares of its capital stock or
Rights or by which any Regions Company is or may be bound to transfer any
shares of the capital stock of any Regions Subsidiary (other than to another
Regions Company). There are no Contracts relating to the rights of any Regions
Company to vote or to dispose of any shares of the capital stock of any Regions
Subsidiary. All of the shares of capital stock of each Regions Subsidiary held
by a Regions Company are fully paid and nonassessable under the applicable
corporation Law of the jurisdiction in which such Subsidiary is incorporated or
organized and are owned by the Regions Company free and clear of any Lien.
Each Regions Subsidiary is either a bank or a corporation, and is duly
organized, validly existing, and (as to corporations) in good standing under
the Laws of the jurisdiction in which it is incorporated or organized, and has
the corporate power and authority necessary for it to own, lease, and operate
its Assets and to carry on its business as now conducted. Each Regions
Subsidiary is duly qualified or licensed to transact business as a foreign
corporation in good standing in the States of the United States and foreign
jurisdictions where the character of its Assets or the nature or conduct of its
business requires it to be so qualified or licensed, except for such
jurisdictions in which the failure to be so qualified or licensed is not
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on Regions. Each Regions Subsidiary that is a depository institution is
an "insured institution" as defined in the Federal Deposit Insurance Act and
applicable regulations thereunder, and the deposits in which are insured by the
Bank Insurance Fund or Savings Association Insurance Fund.
6.5 SEC FILINGS; FINANCIAL STATEMENTS.
(a) Regions has filed and made available to First
National all forms, reports, and documents required to be filed by Regions with
the SEC since December 31, 1991, other than registration statements on Forms
S-4 and S-8 (collectively, the "Regions SEC Reports"). The Regions SEC Reports
(i) at the time filed, complied in all material respects with the applicable
requirements of the Securities Act and the Exchange Act, as the case may be,
and (ii) did not at the time they were filed (or if amended or superseded by a
filing prior to the date of this
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Agreement, then on the date of such filing) contain any untrue statement of a
material fact or omit to state a material fact required to be stated in such
Regions SEC Reports or necessary in order to make the statements in such
Regions SEC Reports, in light of the circumstances under which they were made,
not misleading.
(b) Each of the Regions Financial Statements (including,
in each case, any related notes) contained in the Regions SEC Reports,
including any Regions SEC Reports filed after the date of this Agreement until
the Effective Time, complied as to form in all material respects with the
applicable published rules and regulations of the SEC with respect thereto, was
prepared in accordance with GAAP applied on a consistent basis throughout the
periods involved (except as may be indicated in the notes to such financial
statements or, in the case of unaudited statements, as permitted by Form 10-Q
of the SEC), and fairly presented the consolidated financial position of
Regions and its Subsidiaries as at the respective dates and the consolidated
results of its operations and cash flows 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.
6.6 ABSENCE OF UNDISCLOSED LIABILITIES. Except as disclosed in
Section 6.6 of the Regions Disclosure Memorandum, and to the Knowledge of
Regions, no Regions Company has any Liabilities that are reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on Regions,
except Liabilities which are accrued or reserved against in the consolidated
balance sheets of Regions as of June 30, 1995 included in the Regions Financial
Statements or reflected in the notes thereto. Except as disclosed in Section
6.6 of the Regions Disclosure Memorandum, no Regions Company has incurred or
paid any Liability since June 30, 1995, except for such Liabilities incurred or
paid in the ordinary course of business consistent with past business practice
and which are not reasonably likely to have, individually or in the aggregate,
a Material Adverse Effect on Regions.
6.7 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since June 30, 1995,
except as disclosed in the Regions Financial Statements delivered prior to the
date of this Agreement or in Section 6.7 of the Regions Disclosure Memorandum,
(i) there have been no events, changes or occurrences which have had, or are
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on Regions, and (ii) the Regions Companies have not taken any action, or
failed to take any action, 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 any of the covenants and agreements of
Regions provided in Article 7 of this Agreement.
6.8 TAX MATTERS.
(a) All Tax Returns required to be filed by or on behalf
of any of the Regions Companies have been timely filed or requests for
extensions have been timely filed, granted, and have not expired for periods
ended on or before December 31, 1994, and on or before the date of the most
recent fiscal year end 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 Regions, and all Tax Returns filed
are complete and accurate in all material respects. All
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Taxes shown on filed Tax Returns have been paid. There is no audit
examination, deficiency, or refund Litigation with respect to any Taxes that is
reasonably likely to result in a determination that would have, individually or
in the aggregate, a Material Adverse Effect on Regions, except as reserved
against in the Regions Financial Statements delivered prior to the date of this
Agreement. All Taxes and other Liabilities due with respect to completed and
settled examinations or concluded Litigation have been paid.
(b) Adequate provision for any Taxes due or to become due
for any of the Regions Companies for the period or periods through and
including the date of the respective Regions Financial Statements has been made
and is reflected on such Regions Financial Statements.
(c) Deferred Taxes of the Regions Companies have been
adequately provided for in the Regions Financial Statements.
6.9 ENVIRONMENTAL MATTERS.
(a) To the Knowledge of Regions, each Regions Company,
its Participation Facilities, and its Loan Properties are, and have been, in
compliance with all Environmental Laws, except for violations which are not
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on Regions.
(b) There is no Litigation pending, or, to the Knowledge
of Regions, threatened before any court, governmental agency, or authority or
other forum in which any Regions Company or any of its Loan Properties or
Participation Facilities (or any Regions Company in respect of any such Loan
Property or Participation Facility) has been or, with respect to threatened
Litigation, may be named as a defendant or 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 any of its Loan
Properties or Participation Facilities, except for such Litigation pending or
threatened that is not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Regions.
(c) To the Knowledge of Regions, there is no reasonable
basis for any Litigation of a type described in subsections (b) or (c), except
such as is not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Regions.
(d) To the Knowledge of Regions, there have been no
releases of Hazardous Material in, on, under, or affecting any Participation
Facility or Loan Property of a Regions Company, except such as are not
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on Regions.
6.10 COMPLIANCE WITH LAWS. Regions is duly registered as a bank
holding company under the BHC Act and as a savings and loan holding company
under the HOLA. Each Regions Company has in effect all Permits necessary for
it to own, lease, or operate its material Assets and
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to carry on its business as now conducted, except for those Permits the absence
of which are not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Regions, and there has occurred no Default under any
such Permit, other than Defaults which are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Regions. No
Regions Company:
(a) is in violation of any Laws, Orders, or Permits
applicable to its business or employees conducting its business, except
for violations which are not reasonably likely to have, individually or
in the aggregate, a Material Adverse Effect on Regions; and
(b) has received any notification or communication from
any agency or department of federal, state, or local government or any
Regulatory Authority or the staff thereof (i) asserting that any Regions
Company is not in compliance with any of the Laws or Orders which such
governmental authority or Regulatory Authority enforces, where such
noncompliance is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Regions, (ii) threatening to
revoke any Permits, the revocation of which is reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on
Regions, or (iii) requiring any Regions Company to enter into or consent
to the issuance of a cease and desist order, formal agreement,
directive, commitment, or memorandum of understanding, which restricts
materially the conduct of its business, or in any manner relates to its
capital adequacy, its credit or reserve policies, its management, or the
payment of dividends.
6.11 LEGAL PROCEEDINGS. There is no Litigation instituted or
pending, or, to the Knowledge of Regions, 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 Regions Company,
or against any Asset, interest, or right of any of them, that is reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
Regions, nor are there any Orders of any Regulatory Authorities, other
governmental authorities, or arbitrators outstanding against any Regions
Company, that are reasonably likely to have, individually or in the aggregate,
a Material Adverse Effect on Regions.
6.12 REPORTS. Since January 1, 1992, or the date of organization
if later, each Regions Company has filed all reports and statements, together
with any amendments required to be made with respect thereto, that it was
required to file with Regulatory Authorities (except, in the case of state
securities authorities, failures to file which are not reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on Regions).
As of their respective dates, each of such reports and documents, including the
financial statements, exhibits, and schedules thereto, complied in all material
respects with all applicable Laws. As of its respective date, each such report
and document did not, in all material respects, contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements made therein, in light of the circumstances
under which they were made, not misleading.
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6.13 STATEMENTS TRUE AND CORRECT. None of the information
supplied or to be supplied by any Regions Company or any Affiliate thereof for
inclusion in the Registration Statement to be filed by Regions 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 Regions Company or any Affiliate thereof for
inclusion in the Joint Proxy Statement to be mailed to Regions' and First
National's stockholders in connection with the Stockholders' Meetings, and any
other documents to be filed by any Regions Company or any Affiliate thereof
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 to the Joint Proxy Statement, when first mailed to
the stockholders of Regions and First National, be false or misleading with
respect to any 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 Joint Proxy Statement or any
amendment thereof or supplement thereto, at the time of the Stockholders'
Meetings, 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' Meetings. All documents that any Regions 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 Regions Company
or any Affiliate thereof has taken or agreed to take any action or has any
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 accounting 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.
ARTICLE 7
CONDUCT OF BUSINESS PENDING CONSUMMATION
7.1 AFFIRMATIVE COVENANTS OF FIRST NATIONAL. Unless the prior
written consent of Regions shall have been obtained, and except as otherwise
expressly contemplated herein, First National shall and shall cause each of its
Subsidiaries to (i) operate its business only in the usual, regular, and
ordinary course, (ii) preserve intact its business organization and Assets and
maintain its rights and franchises, (iii) use its reasonable efforts to
maintain its current employee relationships, and (iv) take no action which
would (a) adversely affect the ability of any Party to obtain any Consents
required for the transactions contemplated hereby without imposition of a
condition or restriction of the type referred to in the last sentence of
Section 9.1(b) of this Agreement, or (b) adversely affect the ability of any
Party to perform its covenants and agreements under this Agreement.
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7.2 NEGATIVE COVENANTS OF FIRST NATIONAL. From the date of this
Agreement until the earlier of the Effective Time or the termination of this
Agreement, First National covenants and agrees that it will not do or agree or
commit to do, or permit any of its Subsidiaries to do or agree or commit to do,
any of the following without the prior written consent of the chief executive
officer or chief financial officer of Regions:
(a) amend the Articles of Incorporation, Bylaws, or other
governing instruments of any First National Company, or
(b) incur any additional debt obligation or other
obligation for borrowed money (other than indebtedness of a First
National Company to another First National Company) in excess of an
aggregate of $250,000 (for the First National Companies on a
consolidated basis) except in the ordinary course of the business of
First National Subsidiaries consistent with past practices (which shall
include, for First National Subsidiaries that are depository
institutions, creation of deposit liabilities, 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 impose, or suffer the imposition, on any Asset
of any First National Company 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, the satisfaction of legal requirements in
the exercise of trust powers, and Liens in effect as of the date hereof
that are disclosed in the First National Disclosure Memorandum); or
(c) repurchase, redeem, or otherwise acquire or exchange
(other than exchanges in the ordinary course under employee benefit
plans), directly or indirectly, any shares, or any securities
convertible into any shares, of the capital stock of any First National
Company, or declare or pay any dividend or make any other distribution
in respect of First National's capital stock, provided that First
National may (to the extent legally and contractually permitted to do
so), but shall not be obligated to, declare and pay regular quarterly
cash dividends on the shares of First National Common Stock at a rate of
$.2150 per share with such increases and usual and regular record and
payment dates in accordance with past practice disclosed in Section
7.2(c) of the First National Disclosure Memorandum and such dates may
not be changed without the prior written consent of Regions; provided,
that, notwithstanding the provisions of Section 1.3 of this Agreement,
the Parties shall cooperate in selecting the Effective Time to ensure
that, with respect to the quarterly period in which the Effective Time
occurs, the holders of First National Common Stock do not receive both a
dividend in respect of their First National Common Stock and a dividend
in respect of Regions Common Stock or fail to receive any dividend; or
(d) except for this Agreement, or pursuant to the Stock
Option Agreement or pursuant to the exercise of stock options
outstanding as of the date hereof and pursuant to the terms thereof in
existence on the date hereof, issue, sell, pledge, encumber, authorize
the issuance of, enter into any Contract to issue, sell, pledge,
encumber, or authorize the issuance of, or otherwise permit to become
outstanding, any additional shares of First
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<PAGE> 30
National Common Stock or any other capital stock of any First National
Company, 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
(e) adjust, split, combine, or reclassify any capital
stock of any First National Company or issue or authorize the issuance
of any other securities in respect of or in substitution for shares of
First National Common Stock, or sell, lease, mortgage, or otherwise
dispose of or otherwise encumber (x) any shares of capital stock of any
First National Subsidiary (unless any such shares of stock are sold or
otherwise transferred to another First National Company) or (y) any
Asset other than in the ordinary course of business for reasonable and
adequate consideration; or
(f) except for purchases of U.S. Treasury securities or
U.S. Government agency securities, which in either case have maturities
of three years or less, purchase any securities or make any material
investment, either by purchase of stock or securities, contributions to
capital, Asset transfers, or purchase of any Assets, in any Person other
than a wholly owned First National Subsidiary, or otherwise acquire
direct or indirect control over any Person, other than in connection
with (i) foreclosures in the ordinary course of business, (ii)
acquisitions of control by a depository institution Subsidiary in its
fiduciary capacity, or (iii) the creation of new wholly owned
Subsidiaries organized to conduct or continue activities otherwise
permitted by this Agreement; or
(g) grant any increase in compensation or benefits to the
employees or officers of any First National Company, except in
accordance with past practice disclosed in Section 7.2(g) of the First
National Disclosure Memorandum or as required by Law; pay any severance
or termination pay or any bonus other than pursuant to written policies
or written Contracts in effect on the date of this Agreement; enter into
or amend any severance agreements with officers of any First National
Company; grant any material increase in fees or other increases in
compensation or other benefits to directors of any First National
Company except in accordance with past practice disclosed in Section
7.2(g) of the First National Disclosure Memorandum; or voluntarily
accelerate the vesting of any stock options or other stock-based
compensation or employee benefits; or
(h) enter into or amend any employment Contract between
any First National Company and any Person (unless such amendment is
required by Law) that the First National Company 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
(i) adopt any new employee benefit plan of any First
National Company or make any material change in or to any existing
employee benefit plans of any First National Company 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
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(j) make any significant change in any Tax or accounting
methods or systems of internal accounting controls, except as may be
appropriate to conform to changes in Tax Laws or regulatory accounting
requirements or GAAP; or
(k) commence any Litigation other than in accordance with
past practice or settle any Litigation involving any Liability of any
First National Company for material money damages or restrictions upon
the operations of any First National Company; or
(l) except in the ordinary course of business, modify,
amend, or terminate any material Contract or waive, release, compromise,
or assign any material rights or claims.
7.3 COVENANTS OF REGIONS. From the date of this Agreement until
the earlier of the Effective Time or the termination of this Agreement, Regions
covenants and agrees that it shall (i) 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 Regions Common Stock and the business
prospects of the Regions Companies, and (ii) take no action which would (a)
materially adversely affect the ability of any Party to obtain any Consents
required for the transactions contemplated hereby without imposition of a
condition or restriction of the type referred to in the last sentence of
Section 9.1(b) of this Agreement, or (b) 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 Regions Company
from discontinuing or disposing of any of its Assets or business if such action
is, in the judgment of Regions, desirable in the conduct of the business of
Regions and its Subsidiaries.
7.4 ADVERSE CHANGES IN CONDITION. Each Party agrees to give
written notice promptly to the other Party upon becoming aware of the
occurrence or impending occurrence of any event or circumstance relating to it
or any of its Subsidiaries which (i) is reasonably likely to have, individually
or in the aggregate, a Material Adverse Effect on it or (ii) would cause or
constitute a material breach of any of its representations, warranties, or
covenants contained herein, and to use its reasonable efforts to prevent or
promptly to remedy the same.
7.5 REPORTS. Each Party and its Subsidiaries shall file all
reports required to be filed by it with Regulatory Authorities between the date
of this Agreement and the Effective Time and shall deliver 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 will fairly present the consolidated financial position of the
entity filing such statements as of the dates indicated and the consolidated
results of operations, changes in stockholders' equity, and cash flows for the
periods then ended in accordance with GAAP (subject in the case of interim
financial statements to normal recurring year-end adjustments that are not
material). 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 or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Any financial statements contained in any other reports to another
Regulatory Authority shall be prepared in accordance with Laws applicable to
such reports.
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ARTICLE 8
ADDITIONAL AGREEMENTS
8.1 REGISTRATION STATEMENT; JOINT PROXY STATEMENT; STOCKHOLDER
APPROVALS. As soon as reasonably practicable after execution of this
Agreement, Regions shall file the Registration Statement with the SEC, and
shall use its reasonable efforts to cause the Registration Statement to become
effective under the 1933 Act (provided that the Parties shall cooperate to
cause the Registration Statement to be declared effective and the Joint Proxy
Statement to be mailed to the Parties' respective stockholders at such time as
will afford the Parties the maximum opportunity to purchase shares of Regions
Common Stock or First National Common Stock in the open market) and take any
action required to be taken under the applicable state Blue Sky or securities
Laws in connection with the issuance of the shares of Regions Common Stock upon
consummation of the Merger. First National shall furnish all information
concerning it and the holders of its capital stock as Regions may reasonably
request in connection with such action. First National shall call a
Stockholders' Meeting, to be held as soon as reasonably practicable after the
Registration Statement is declared effective by the SEC, for the purpose of
voting upon approval of this Agreement and the Plan of Merger and such other
related matters as it deems appropriate. Regions shall call a Stockholders'
Meeting, to be held as soon as reasonably practicable after the Registration
Statement is declared effective by the SEC, for the purpose of voting upon the
issuance of shares of Regions Common Stock pursuant to the Merger and such
other related matters as it deems appropriate. In connection with the
Stockholders' Meetings, (i) Regions and First National shall prepare and file
with the SEC a Joint Proxy Statement and mail such Joint Proxy Statement to
their respective stockholders, (ii) the Parties shall furnish to each other all
information concerning them that they may reasonably request in connection with
such Joint Proxy Statement, (iii) the Boards of Directors of Regions and First
National shall recommend (subject to compliance with their fiduciary duties as
advised by counsel) to their respective stockholders the approval of the
matters submitted for approval, and (iv) the Boards of Directors and officers
of Regions and First National shall (subject to compliance with their fiduciary
duties as advised by counsel) use their reasonable efforts to obtain such
stockholders' approvals.
8.2 EXCHANGE LISTING. Regions shall use its reasonable efforts
to list, prior to the Effective Time, on the Nasdaq NMS, subject to official
notice of issuance, the shares of Regions Common Stock to be issued to the
holders of First National Common Stock pursuant to the Merger.
8.3 APPLICATIONS. Regions shall promptly prepare and file, and
First National shall cooperate in the preparation and, where appropriate,
filing of, applications with all Regulatory Authorities having jurisdiction
over the transactions contemplated by this Agreement seeking the requisite
Consents necessary to consummate the transactions contemplated by this
Agreement.
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8.4 FILINGS WITH STATE OFFICES. Upon the terms and subject to
the conditions of this Agreement, Regions Merger Subsidiary shall execute and
file the Georgia Certificate of Merger with the Secretary of State of the State
of Georgia in connection with the Closing.
8.5 AGREEMENT AS TO EFFORTS TO CONSUMMATE. Subject to the terms
and conditions of this Agreement, each Party agrees to use, and to cause its
Subsidiaries to use, its reasonable 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, as soon as
reasonably practicable after the date of this Agreement, the transactions
contemplated by this Agreement, including using its reasonable efforts to lift
or rescind any Order adversely affecting its ability to consummate the
transactions contemplated herein and to cause to be satisfied the conditions
referred to in Article 9 of this Agreement; provided, that nothing herein shall
preclude either Party from exercising its rights under this Agreement. The
Parties shall cooperate and take all reasonable effort to prevent Regions from
becoming an interstate multiple savings and loan holding company as a result of
the Merger. Each Party shall use, and shall cause each of its Subsidiaries to
use, its reasonable efforts to obtain all Consents necessary or desirable for
the consummation of the transactions contemplated by this Agreement.
8.6 INVESTIGATION AND CONFIDENTIALITY.
(a) Prior to the Effective Time, each Party shall keep
the other Party advised of all material developments relevant to its business
and to consummation of the Merger and shall permit the other Party to make or
cause to be made such investigation of the business and properties of it and
its Subsidiaries and of their respective financial and legal conditions as the
other Party reasonably requests, provided that such investigation shall be
reasonably related to the transactions contemplated hereby and, after November
1, 1995, shall not interfere unnecessarily with normal operations. No
investigation by a Party shall affect the representations and warranties of the
other Party.
(b) In addition to the Parties' respective obligations
under the Confidentiality Agreements, each Party shall, and shall cause its
advisers and agents to, maintain the confidentiality of all confidential
information furnished to it by the other Party concerning its and its
Subsidiaries' businesses, operations, and financial positions and shall not use
such information for any purpose except in furtherance of the transactions
contemplated by this Agreement. If this Agreement is terminated prior to the
Effective Time, each Party shall promptly return or certify the destruction of
all documents and copies thereof, and all work papers containing confidential
information received from the other Party.
(c) Each Party agrees to give the other Party notice as
soon as practicable after any determination by it of any fact or occurrence
relating to the other Party which it has discovered through the course of its
investigation and which represents, or is reasonably likely to represent,
either a material breach of any representation, warranty, covenant, or
agreement of the other Party or which has had or is reasonably likely to have a
Material Adverse Effect on the other Party.
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8.7 PRESS RELEASES. Prior to the Effective Time, Regions and
First National shall consult with each other as to the form and substance of
any press release or other public disclosure materially related to this
Agreement or any other transaction contemplated hereby; provided, that nothing
in this Section 8.7 shall be deemed to 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.
8.8 CERTAIN ACTIONS. Except with respect to this Agreement and
the Plan of Merger and the transactions contemplated hereby or thereby, no
First National Company nor any Affiliate thereof nor any Representatives
thereof retained by any First National Company shall directly or indirectly
solicit any Acquisition Proposal by any Person. Except to the extent necessary
to comply with the fiduciary duties of First National's Board of Directors as
advised by counsel, no First National Company or any Affiliate or
Representative thereof shall furnish any non-public information that it is not
legally obligated to furnish, negotiate with respect to, or enter into any
Contract with respect to, any Acquisition Proposal, but First National may
communicate information about such an Acquisition Proposal to its stockholders
if and to the extent that it is required to do so in order to comply with its
legal obligations as advised by counsel. First National shall promptly notify
Regions orally and in writing in the event that it receives any inquiry or
proposal relating to any such transaction. First National shall (i)
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, and (ii) direct and use its reasonable efforts to
cause of all its Representatives not to engage in any of the foregoing.
8.9 ACCOUNTING AND TAX TREATMENT. Each of the Parties
undertakes and agrees to use its reasonable efforts to cause the Merger, and to
take no action which would cause the Merger not, to qualify for treatment as a
pooling of interests for accounting purposes or as a "reorganization" within
the meaning of Section 368(a) of the Internal Revenue Code for federal income
tax purposes.
8.10 STATE TAKEOVER LAWS. Each First National Company shall take
all necessary steps to exempt the transactions contemplated by this Agreement
from, or if necessary challenge the validity or applicability of, any
applicable Takeover Laws, including Sections 14-2-1111 and 14-2-1132 of the
GBCC.
8.11 CHARTER PROVISIONS. Each First National Company shall take
all necessary action to ensure that the entering into of this Agreement and the
Plan of Merger and the consummation of the Merger and the other transactions
contemplated hereby or thereby do not and will not result in the grant of any
rights to any Person under the Articles of Incorporation, Bylaws, or other
governing instruments of any First National Company or restrict or impair the
ability of Regions or any of its Subsidiaries to vote, or otherwise to exercise
the rights of a stockholder with respect to, shares of any First National
Company that may be directly or indirectly acquired or controlled by it.
8.12 AGREEMENT OF AFFILIATES. First National has disclosed in
Section 8.12 of the First National Disclosure Memorandum each Person whom it
reasonably believes is an "affiliate"
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of First National for purposes of Rule 145 under the 1933 Act. First National
shall use its reasonable efforts to cause each such Person to deliver to
Regions not later than 30 days prior to the Effective Time, a written
agreement, in substantially the form of Exhibit 3, providing that such Person
will not sell, pledge, transfer, or otherwise dispose of the shares of First
National 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 shares of Regions Common Stock to be received by such
Person upon consummation of the Merger except in compliance with applicable
provisions of the 1933 Act and the rules and regulations thereunder and until
such time as financial results covering at least 30 days of combined operations
of Regions and First National have been published within the meaning of Section
201.01 of the SEC's Codification of Financial Reporting Policies. Shares of
Regions Common Stock issued to such affiliates of First National in exchange
for shares of First National Common Stock shall not be transferable until such
time as financial results covering at least 30 days of combined operations of
Regions and First National 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 8.12 (and Regions shall be entitled to place restrictive legends
upon certificates for shares of Regions Common Stock issued to affiliates of
First National pursuant to this Agreement to enforce the provisions of this
Section 8.12). Regions shall not be required to maintain the effectiveness of
the Registration Statement under the 1933 Act for the purposes of resale of
Regions Common Stock by such affiliates.
8.13 EMPLOYEE BENEFITS AND CONTRACTS. Following the Effective
Time, but in no event earlier than the consolidation of First National's
banking Subsidiaries with Regions' banking Subsidiaries located in the same
states, Regions shall provide generally to officers and employees of the First
National Companies, who at or after the Effective Time become employees of a
Regions Company, employee benefits under employee benefit plans (other than
stock option or other plans involving the potential issuance of Regions Common
Stock except as set forth in this Section 8.13), on terms and conditions which
when taken as a whole are substantially similar to those currently provided by
the Regions Companies to their similarly situated officers and employees. For
purposes of participation and vesting (but not accrual of benefits) under such
employee benefit plans, (i) service under any qualified defined benefit plans
of First National should be treated as service under Regions' qualified defined
benefit plans, (ii) service under any qualified defined contribution plans of
First National shall be treated as service under Regions' qualified defined
contribution plans, and (iii) service under any other employee benefit plans of
First National shall be treated as service under any similar employee benefit
plans maintained by Regions. Regions also shall cause First National and its
Subsidiaries to honor on terms reasonably agreed upon by the Parties all
employment, severance, consulting, and other compensation Contracts disclosed
in Section 8.13 of the First National Disclosure Memorandum to Regions between
any First National Company and any current or former director, officer, or
employee thereof, and all provisions for vested benefits or other vested
amounts earned or accrued through the Effective Time under the First National
Benefit Plans.
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8.14 INDEMNIFICATION.
(a) Regions shall indemnify, defend, and hold harmless
the present and former directors, officers, employees, and agents of the First
National Companies (each, an "Indemnified Party") against all Liabilities
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 Georgia Law and by First National's Articles of Incorporation
and Bylaws as in effect on the date hereof, including provisions relating to
advances of expenses incurred in the defense of any Litigation. Without
limiting the foregoing, in any case in which approval by Regions is required to
effectuate any indemnification, Regions shall 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 Regions and the Indemnified
Party.
(b) If Regions or any of its successors or assigns shall
consolidate with or merge into any other Person and shall not be the continuing
or surviving Person of such consolidation or merger or shall transfer all or
substantially all of its assets to any Person, then and in each case, proper
provision shall be made so that the successors and assigns of Regions shall
assume the obligations set forth in this Section 8.14.
(c) The provisions of this Section 8.14 are intended to
be for the benefit of and shall be enforceable by, each Indemnified Party, his
or her heirs and representatives.
8.15 CERTAIN MODIFICATIONS. Regions and First National shall
consult with respect to their loan, litigation, and real estate valuation
policies and practices (including loan classifications and levels of reserves)
and First National shall make such modifications or changes to its policies and
practices, if any, prior to the Effective Time, as may be mutually agreed upon.
Regions and First National also shall consult with respect to the character,
amount, and timing of restructuring and Merger-related expense charges to be
taken by each of the Parties in connection with the transactions contemplated
by this Agreement and the Plan of Merger and shall take such charges in
accordance with GAAP, prior to the Effective Time, as may be mutually agreed
upon by the Parties. Neither Parties' representations, warranties, and
covenants contained in this Agreement shall be deemed to be inaccurate or
breached in any respect as a consequence of any modifications or charges
undertaken solely on account of this Section 8.15.
8.16 REGIONS MERGER SUBSIDIARY ORGANIZATION. Regions shall
organize Regions Merger Subsidiary under the Laws of the State of Georgia.
Prior to the Effective Time, the outstanding capital stock of Regions Merger
Subsidiary shall consist of 1,000 shares of Regions Merger Subsidiary Common
Stock, all of which shares shall be owned by Regions. Prior to the Effective
Time, Regions Merger Subsidiary shall not (i) conduct any business operations
whatsoever or (ii) enter into any Contract or agreement of any kind, acquire
any assets or incur any Liability, except as may be specifically contemplated
by this Agreement or the Plan of Merger or as the Parties may otherwise agree.
Regions, as the sole stockholder of Regions Merger Subsidiary, shall vote prior
to the Effective Time the shares of Regions Merger Subsidiary Common Stock in
favor of the Plan of Merger.
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ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE
9.1 CONDITIONS TO OBLIGATIONS OF EACH PARTY. The respective
obligations of each Party to perform this Agreement and the Plan of Merger and
to consummate the Merger and the other transactions contemplated hereby and
thereby are subject to the satisfaction of the following conditions, unless
waived by both Parties pursuant to Section 11.6 of this Agreement:
(a) STOCKHOLDER APPROVALS. The stockholders of First
National shall have approved this Agreement and the Plan of Merger, and
the consummation of the transactions contemplated hereby and thereby,
including the Merger, as and to the extent required by Law, by the
provisions of any governing instruments, or by the rules of the NASD.
The stockholders of Regions shall have approved the issuance of shares
of Regions Common Stock pursuant to the Merger, as and to the extent
required by Law, by the provisions of any governing instruments, or by
the rules of the NASD.
(b) REGULATORY APPROVALS. 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) which in the reasonable judgment of the Board of
Directors of Regions 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, Regions would not,
in its reasonable judgment, have entered into this Agreement.
(c) CONSENTS AND APPROVALS. Each Party shall have
obtained any and all Consents required for consummation of the Merger
(other than those referred to in Section 9.1(b) of this Agreement) or
for the preventing of any Default under any Contract or Permit of such
Party which, if not obtained or made, is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on such
Party.
(d) LEGAL PROCEEDINGS. No court or governmental or
regulatory authority of competent jurisdiction shall have enacted,
issued, promulgated, enforced, or entered any Law or Order (whether
temporary, preliminary, or permanent) or taken any other action which
prohibits, restricts, or makes illegal consummation of the transactions
contemplated by this Agreement or the Plan of Merger.
(e) REGISTRATION STATEMENT. The Registration Statement
shall be effective under the 1933 Act, no stop orders suspending the
effectiveness of the Registration Statement shall have been issued, 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 under state securities Laws or the 1933 Act or
1934 Act relating to the
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issuance or trading of the shares of Regions Common Stock issuable
pursuant to the Merger shall have been received.
(f) EXCHANGE LISTING. The shares of Regions Common Stock
issuable pursuant to the Merger shall have been approved for listing on
the Nasdaq NMS, subject to official notice of issuance.
(g) TAX MATTERS. Each Party shall have received a
written opinion or opinions from Alston & Bird in a form reasonably
satisfactory to such Parties (the "Tax Opinion"), to the effect that (i)
the Merger will constitute a reorganization within the meaning of
Section 368(a) of the Internal Revenue Code and (ii) the exchange in the
Merger of First National Common Stock for Regions Common Stock will not
give rise to gain or loss to the stockholders of First National with
respect to such exchange (except to the extent of any cash received).
In rendering such Tax Opinion, such counsel shall be entitled to rely
upon representations of officers of First National and Regions
reasonably satisfactory in form and substance to such counsel.
(h) POOLING LETTER. Each of the Parties shall have
received a letter, dated as of the Effective Time, in form and substance
reasonably acceptable to such Party, from Ernst & Young LLP to the
effect that the Merger will qualify for pooling-of-interests accounting
treatment.
9.2 CONDITIONS TO OBLIGATIONS OF REGIONS. The obligations of
Regions 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 Regions pursuant to Section 11.6(a) of
this Agreement:
(a) REPRESENTATIONS AND WARRANTIES. For purposes of this
Section 9.2(a), the accuracy of the representations and warranties of
First National set forth in this Agreement shall be assessed as of the
date of this Agreement and as of the Effective Time with the same effect
as though all such representations and warranties had been made on and
as of the Effective Time (provided that representations and warranties
which are confined to a specified date shall speak only as of such
date). The representations and warranties of First National set forth
in Section 5.3 of this Agreement shall be true and correct (except for
inaccuracies which are de minimus in amount). The representations and
warranties of First National set forth in Sections 5.18, 5.19, and 5.20
of this Agreement shall be true and correct in all material respects.
There shall not exist inaccuracies in the representations and warranties
of First National set forth in this Agreement (including the
representations and warranties set forth in Sections 5.3, 5.18, 5.19,
and 5.20) such that the aggregate effect of such inaccuracies has, or is
reasonably likely to have, a Material Adverse Effect on First National;
provided that, for purposes of this sentence only, those representations
and warranties which are qualified by references to "material" or
"Material Adverse Effect" or to the "Knowledge" of First National or to
a matter being "known" by First National shall be deemed not to include
such qualifications.
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<PAGE> 39
(b) PERFORMANCE OF AGREEMENTS AND COVENANTS. Each and
all of the agreements and covenants of First National to be performed
and 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) CERTIFICATES. First National shall have delivered to
Regions (i) a certificate, dated as of the Effective Time and 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 9.2(a) and 9.2(b) of this Agreement have been satisfied, and
(ii) certified copies of resolutions duly adopted by First National's
Board of Directors and stockholders evidencing the taking of all
corporate action necessary to authorize the execution, delivery, and
performance of this Agreement and the Plan of Merger, and the
consummation of the transactions contemplated hereby and thereby, all in
such reasonable detail as Regions and its counsel shall request.
(d) AFFILIATE AGREEMENTS. Regions shall have received
from each affiliate of First National the affiliates agreement referred
to in Section 8.12 of this Agreement, to the extent necessary to assure
in the reasonable judgment of Regions that the transactions contemplated
hereby will qualify for pooling-of-interests accounting treatment.
9.3 CONDITIONS TO OBLIGATIONS OF FIRST NATIONAL. The
obligations of First National to perform this Agreement and the Plan of Merger
and consummate the Merger and the other transactions contemplated hereby and
thereby are subject to the satisfaction of the following conditions, unless
waived by First National pursuant to Section 11.6(b) of this Agreement:
(a) REPRESENTATIONS AND WARRANTIES. For purposes of this
Section 9.3(a), the accuracy of the representations and warranties of
Regions set forth in this Agreement shall be assessed as of the date of
this Agreement and as of the Effective Time with the same effect as
though all such representations and warranties had been made on and as
of the Effective Time (provided that representations and warranties
which are confined to a specified date shall speak only as of such
date). The representations and warranties of Regions set forth in
Section 6.3 of this Agreement shall be true and correct (except for
inaccuracies which are de minimus in amount). The representations and
warranties of Regions set forth in Section 6.14 of this Agreement shall
be true and correct in all material respects. There shall not exist
inaccuracies in the representations and warranties of Regions set forth
in this Agreement (including the representations and warranties set
forth in Sections 6.3 and 6.14) such that the aggregate effect of such
inaccuracies has, or is reasonably likely to have, a Material Adverse
Effect on Regions; provided that, for purposes of this sentence only,
those representations and warranties which are qualified by references
to "material" or "Material Adverse Effect" or to the "Knowledge" of
Regions or to a matter being "known" by Regions shall be deemed not to
include such qualifications.
(b) PERFORMANCE OF AGREEMENTS AND COVENANTS. Each and
all of the agreements and covenants of Regions to be performed and
complied with pursuant to this
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<PAGE> 40
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) CERTIFICATES. Regions shall have delivered to First
National (i) a certificate, dated as of the Effective Time and 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) and 9.3(b) of this Agreement have been satisfied, and
(ii) certified copies of resolutions duly adopted by Regions' Board of
Directors and stockholders 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 First National and its counsel shall
request.
ARTICLE 10
TERMINATION
10.1 Termination. Notwithstanding any other provision of this
Agreement, and notwithstanding the approval of this Agreement by the
stockholders of First National or Regions, this Agreement and the Plan of
Merger may be terminated and the Merger abandoned at any time prior to the
Effective Time:
(a) By mutual consent of the Board of Directors of
Regions and the Board of Directors of First National; or
(b) By the Board of Directors of either Party (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 First
National and Section 9.3(a) of this Agreement in the case of Regions or
in material breach of any covenant or other agreement contained in this
Agreement) 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 30 days after the giving of written notice
to the breaching Party of such inaccuracy and which inaccuracy would
provide the terminating Party the ability to refuse to consummate the
Merger under the applicable standard set forth in Section 9.2(a) of this
Agreement in the case of First National and Section 9.3(a) of this
Agreement in the case of Regions; or
(c) By the Board of Directors of either Party in the
event of a material breach by the other Party of any covenant or
agreement contained in this Agreement which cannot be or has not been
cured within 30 days after the giving of written notice to the breaching
Party of such breach; or
(d) By the Board of Directors of either Party 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 final nonappealable action of such
authority or if any action taken by such authority is not appealed
within the time limit
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<PAGE> 41
for appeal, or (ii) the stockholders of Regions or First National fail
to vote their approval of the matters submitted for the approval by such
stockholders at the Stockholders' Meetings where the transactions were
presented to such stockholders for approval and voted upon; or
(e) By the Board of Directors of either Party in the
event that the Merger shall not have been consummated by September 30,
1996, if the failure to consummate the transactions contemplated hereby
on or before such date is not caused by any breach of this Agreement by
the Party electing to terminate pursuant to this Section 10.1(e); or
(f) By the Board of Directors of either Party (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 First
National and Section 9.3(a) of this Agreement in the case of Regions 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(e) of this Agreement;
or
(g) By the Board of Directors of Regions, at any time
prior to 5:00 p.m. Eastern time, on November 1, 1995, without any
Liability if it determines in its reasonable good faith judgment that
the Asset quality of First National, the status of litigation involving
First National (or any other liability or undisclosed contingency of
First National), any information in the First National Disclosure
Memorandum, or the projected ability of First National to reduce its
non-interest expenses are materially less favorable to Regions than as
set forth in materials previously disclosed or provided to Regions by
First National and its financial advisor; or
(h) By the Board of Directors of First National, if it
determines by a vote of a majority of the members of its entire Board,
at any time during the ten-day period commencing two days after the
Determination Date, if both of the following conditions are satisfied:
(1) the Average Closing Price of shares of Regions
Common Stock shall be less than $33.20; and
(2) (i) the quotient obtained by dividing the
Average Closing Price by $41.50 (such number being referred to
herein as the "Regions Ratio") shall be less than (ii) the
quotient obtained by dividing the Index Price on the
Determination Date by the Index Price on the Starting Date and
subtracting 0.20 from the quotient in this clause (2)(ii) (such
number being referred to herein as the "Index Ratio");
subject, however, to the following three sentences. If First National
refuses to consummate the Merger pursuant to this Section 10.1(h), it
shall give prompt written notice thereof to Regions; provided, that such
notice of election to terminate may be withdrawn at any time within the
aforementioned ten-day period. During the five-day period commencing
with its receipt of such notice, Regions shall have the option to elect
to increase the Exchange Ratio
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to equal the lesser of (i) the quotient obtained by dividing (1) the
product of $33.20 and the Exchange Ratio (as then in effect) by (2) the
Average Closing Price, and (ii) the quotient obtained by dividing (1)
the product of the Index Ratio and the Exchange Ratio (as then in
effect) by (2) the Regions Ratio. If Regions makes an election
contemplated by the preceding sentence, within such five-day period, it
shall give prompt written notice to First National of such election and
the revised Exchange Ratio, whereupon no termination shall have occurred
pursuant to this Section 10.1(h) and this Agreement shall remain in
effect in accordance with its terms (except as the Exchange Ratio shall
have been so modified), and any references in this Agreement to
"Exchange Ratio" shall thereafter be deemed to refer to the Exchange
Ratio as adjusted pursuant to this Section 10.1(h).
For purposes of this Section 10.1(h), the following terms
shall have the meanings indicated:
"Average Closing Price" shall mean the average
of the daily last sales prices of Regions Common Stock as
reported on the Nasdaq NMS (as reported by The Wall Street
Journal or, if not reported thereby, another authoritative source
as chosen by Regions) for the ten consecutive full trading days
in which such shares are traded on the Nasdaq NMS ending at the
close of trading on the Determination Date.
"Determination Date" shall mean the date on
which the Consent of the Board of Governors of the Federal
Reserve System shall be received.
"Index Group" shall mean the 20 bank holding
companies listed below, the common stocks of all of which shall
be publicly traded and as to which there shall not have been,
since the Starting Date and before the Determination Date, any
public announcement of a proposal for such company to be acquired
or for such company to acquire another company or companies in
transactions with a value exceeding 25% of the acquiror's market
capitalization. In the event that any such company or companies
are removed from the Index Group, the weights (which shall be
determined based upon the number of outstanding shares of common
stock) shall be redistributed proportionately for purposes of
determining the Index Price. The 20 bank holding companies and
the weights attributed to them are as follows:
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<PAGE> 43
<TABLE>
<CAPTION>
Bank Holding Companies Weighting
---------------------- ---------
<S> <C>
AmSouth Bancorporation 4.73%
Barnett Banks, Inc. 7.80
Central Fidelity Banks, Inc. 3.23
Compass Bancshares, Inc. 3.09
Crestar Financial Corporation 3.05
Deposit Guaranty Corporation 1.52
First American Corporation 2.06
First Commerce Corporation 2.35
First Maryland Bancorp 1.37
First Tennessee National Corporation 2.72
First Union Corporation 13.91
First Virginia Banks, Inc. 2.75
Hibernia Corporation 9.65
Mercantile Bankshares Corporation 3.84
National Commerce Bancorporation 2.00
SouthTrust Corporation 6.75
SunTrust Banks, Inc. 9.24
Trustmark Corporation 2.83
Union Planters Corporation 3.31
Wachovia Corporation 13.80
-----
TOTAL 100.00%
</TABLE>
"Index Price" on a given date shall mean the
weighted average (weighted in accordance with the factors listed
above) of the closing prices of the companies composing the Index
Group.
"Starting Date" shall mean October 20, 1995.
If any company belonging to the Index Group or Regions
declares or effects a stock dividend, reclassification,
recapitalization, split-up, combination, exchange of shares, or similar
transaction between the Starting Date and the Determination Date, the
prices for the common stock of such company or Regions shall be
appropriately adjusted for the purposes of applying this Section
10.1(h).
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 and the Plan of Merger shall become void and have no effect, except
that (i) the provisions of this Section 10.2 and Article 11 and Section 8.6(b)
of this Agreement shall survive any such termination and abandonment, and (ii)
a termination pursuant to Sections 10.1(b), 10.1(c), or 10.1(f) of this
Agreement shall not relieve the breaching Party from Liability for an uncured
willful breach of a representation, warranty, covenant, or agreement giving
rise to such termination. The Stock Option Agreement shall be governed by its
own terms as to its termination.
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<PAGE> 44
10.3 NON-SURVIVAL OF REPRESENTATIONS AND COVENANTS. The
respective representations, warranties, obligations, covenants, and agreements
of the Parties shall not survive the Effective Time except this Section 10.3
and Articles 2, 3, 4, and 11 and Sections 8.12 and 8.14 of this Agreement.
ARTICLE 11
MISCELLANEOUS
11.1 DEFINITIONS.
(a) Except as otherwise provided herein, the capitalized
terms set forth below shall have the following meanings:
"ACQUISITION PROPOSAL" with respect to a Party shall mean
any tender offer or exchange offer or any proposal for a merger,
acquisition of all of the stock or assets of, or other business
combination involving such Party or any of its Subsidiaries or the
acquisition of a substantial equity interest in, or a substantial
portion of the assets of, such Party or any of its Subsidiaries.
"AFFILIATE" of a Person shall mean: (i) any other Person
directly, or indirectly through one or more intermediaries, controlling,
controlled by or under common control with such Person; (ii) any
officer, director, partner, employer, or direct or indirect beneficial
owner of any 10% or greater equity or voting interest of such Person; or
(iii) any other Person for which a Person described in clause (ii) acts
in any such capacity.
"AGREEMENT" shall mean this Agreement and Plan of
Reorganization, including the Exhibits (other than the Stock Option
Agreement) delivered pursuant hereto and incorporated herein by
reference.
"ASSETS" of a Person shall mean all of the assets,
properties, businesses, and rights of such Person of every kind, nature,
character, and description, whether real, personal, or mixed, tangible
or intangible, accrued or contingent, or otherwise relating to or
utilized in such Person's business, directly or indirectly, in whole or
in part, whether or not carried on the books and records of such Person,
and whether or not owned in the name of such Person or any Affiliate of
such Person and wherever located.
"BHC ACT" shall mean the federal Bank Holding Company Act of
1956, as amended.
"CLOSING DATE" shall mean the date on which the Closing
occurs.
"CONFIDENTIALITY AGREEMENTS" shall mean those certain
Confidentiality Agreements, dated October 21, 1995, between First
National and Regions.
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<PAGE> 45
"CONSENT" shall mean any consent, approval, authorization,
clearance, exemption, waiver, or similar affirmation by any Person
pursuant to any Contract, Law, Order, or Permit.
"CONTRACT" shall mean any written or oral agreement,
arrangement, authorization, commitment, contract, indenture, instrument,
lease, obligation, plan, practice, restriction, understanding, or
undertaking of any kind or character, or other document to which any
Person is a party or that is binding on any Person or its capital stock,
Assets, or business.
"DEFAULT" shall mean (i) any breach or violation of or
default under any Contract, Order, or Permit, (ii) any occurrence of any
event that with the passage of time or the giving of notice or both
would constitute a breach or violation of or default under any Contract,
Order, or Permit, or (iii) any occurrence of any event that with or
without the passage of time or the giving of notice would give rise to a
right to terminate or revoke, change the current terms of, or
renegotiate, or to accelerate, increase, or impose any Liability under,
any Contract, Order, or Permit, where, in any such event, such Default
is reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on a Party.
"DGCL" shall mean the Delaware General Corporation Law.
"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. ("CERCLA"), the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. 6901 et seq. ("RCRA"), 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.
"EXHIBITS" 1 through 3, inclusive, shall mean the Exhibits
so marked, copies of which are attached to this Agreement. Such
Exhibits are hereby incorporated by reference herein and made a part
hereof, and may be referred to in this Agreement and any other related
instrument or document without being attached hereto.
"FIRST NATIONAL COMMON STOCK" shall mean the $1.00 par value
common stock of First National.
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<PAGE> 46
"FIRST NATIONAL COMPANIES" shall mean, collectively, First
National and all First National Subsidiaries.
"FIRST NATIONAL DISCLOSURE MEMORANDUM" shall mean the
written information entitled "First National Bancorp Disclosure
Memorandum" delivered prior to 5:00 p.m., Eastern time, on October 27,
1995, to Regions describing in reasonable detail the matters contained
therein and, with respect to each disclosure made therein, specifically
referencing each Section or subsection of this Agreement under which
such disclosure is being made. Information disclosed with respect to
one Section or subsection shall not be deemed to be disclosed for
purposes of any other Section or subsection not specifically referenced
with respect thereto.
"FIRST NATIONAL FINANCIAL STATEMENTS" shall mean (i) the
consolidated balance sheets (including related notes and schedules, if
any) of First National as of June 30, 1995, and as of December 31, 1994
and 1993, and the related statements of income, changes in stockholders'
equity, and cash flows (including related notes and schedules, if any)
for the six months ended June 30, 1995, and for each of the three fiscal
years ended December 31, 1994, 1993, and 1992, as filed by First
National in SEC Documents, and (ii) the consolidated balance sheets of
First National (including related notes and schedules, if any) and
related statements of income, changes in stockholders' equity, and cash
flows (including related notes and schedules, if any) included in SEC
Documents filed with respect to periods ended subsequent to June 30,
1995.
"FIRST NATIONAL STOCK PLANS" shall mean the existing stock
option and other stock-based compensation plans of First National
disclosed in Section 3.5(b) of the First National Disclosure Memorandum.
"FIRST NATIONAL SUBSIDIARIES" shall mean the Subsidiaries of
First National, which shall include the First National Subsidiaries
described in Section 5.4 of this Agreement and any corporation, bank,
savings association, or other organization acquired as a Subsidiary of
First National in the future and owned by First National at the
Effective Time.
"GAAP" shall mean generally accepted accounting principles,
consistently applied during the periods involved.
"GBCC" shall mean the Georgia Business Corporation Code.
"GEORGIA CERTIFICATE OF MERGER" shall mean the Certificate
of Merger to be executed by Regions Merger Subsidiary and filed with the
Secretary of State of the State of Georgia relating to the Merger as
contemplated by Section 1.1 of this Agreement.
"HAZARDOUS MATERIAL" shall mean (i) any hazardous substance,
hazardous material, hazardous waste, regulated substance, or toxic
substance (as those terms are
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<PAGE> 47
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).
"HOLA" shall mean the Home Owners' Loan Act of 1933, as
amended.
"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.
"INTERNAL REVENUE CODE" shall mean the Internal Revenue Code
of 1986, as amended, and the rules and regulations promulgated
thereunder.
"JOINT PROXY STATEMENT" shall mean the joint proxy statement
used by Regions and First National to solicit the approval of their
respective stockholders of the transactions contemplated by this
Agreement, which shall include the prospectus of Regions relating to the
issuance of the Regions Common Stock to holders of First National Common
Stock.
"KNOWLEDGE" as used with respect to a Person (including
references to such Person being aware of a particular matter) shall mean
the personal knowledge of the chairman, president, chief financial
officer, chief accounting officer, chief credit officer, general
counsel, any assistant or deputy general counsel, or any senior or
executive vice president of such Person and the knowledge of any such
persons obtained or which would have been obtained from a reasonable
investigation.
"LAW" shall mean any code, law, ordinance, regulation,
reporting or licensing requirement, rule, or statute applicable to a
Person or its Assets, Liabilities, or business, including those
promulgated, interpreted, or enforced by any Regulatory Authority.
"LIABILITY" shall mean any direct or indirect, primary or
secondary, liability, indebtedness, obligation, penalty, cost, or
expense (including costs of investigation, collection, and defense),
claim, deficiency, guaranty, or endorsement of or by any Person (other
than endorsements of notes, bills, checks, and drafts presented for
collection or deposit in the ordinary course of business) of any type,
whether accrued, absolute or contingent, liquidated or unliquidated,
matured or unmatured, or otherwise.
"LIEN" shall mean any conditional sale agreement, default of
title, easement, encroachment, encumbrance, hypothecation, infringement,
lien, mortgage, pledge, reservation, restriction, security interest,
title retention, or other security arrangement, or any adverse right or
interest, charge, or claim of any nature whatsoever of, on, or with
respect to any property or property interest, other than (i) Liens for
current property Taxes not yet due and payable, and (ii) for depository
institution Subsidiaries of a Party, pledges to secure deposits, and
other Liens incurred in the ordinary course of the banking business.
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<PAGE> 48
"LITIGATION" shall mean any action, arbitration, cause of
action, claim, complaint, criminal prosecution, demand letter,
governmental or other examination or investigation, hearing, inquiry,
administrative or other proceeding, or notice (written or oral) by any
Person alleging potential Liability or requesting information relating
to or affecting a Party, its business, its Assets (including Contracts
related to it), or the transactions contemplated by this Agreement, but
shall not include regular, periodic examinations of depository
institutions and their Affiliates by Regulatory Authorities.
"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 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.
"MATERIAL" for purposes of this Agreement shall be
determined in light of the facts and circumstances of the matter in
question; provided that any specific monetary amount stated in this
Agreement shall determine materiality in that instance.
"MATERIAL ADVERSE EFFECT" on 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, 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 regional bank holding companies
generally, and (e) the Merger and compliance with the provisions of this
Agreement on the operating performance of the Parties.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"NASDAQ NMS" shall mean the National Market Service of
Nasdaq.
"1933 ACT" shall mean the Securities Act of 1933, as amended.
"1934 ACT" shall mean the Securities Exchange Act of 1934,
as amended.
"ORDER" shall mean any administrative decision or award,
decree, injunction, judgment, order, quasi-judicial decision or award,
ruling, or writ of any federal, state, local, or foreign or other court,
arbitrator, mediator, tribunal, administrative agency, or Regulatory
Authority.
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<PAGE> 49
"PARTICIPATION FACILITY" shall mean any facility or 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.
"PARTY" shall mean either First National or Regions, and
"PARTIES" shall mean both First National and Regions.
"PERMIT" shall mean any federal, state, local, and foreign
governmental approval, authorization, certificate, easement, filing,
franchise, license, notice, permit, or right to which any Person is a
party or that is or may be binding upon or inure to the benefit of any
Person or its securities, Assets, or business.
"PERSON" shall mean a natural person or any legal,
commercial, or governmental entity, such as, but not limited to, a
corporation, general partnership, joint venture, limited partnership,
limited liability company, trust, business association, group acting in
concert, or any person acting in a representative capacity.
"PLAN OF MERGER" shall mean the plan of merger providing for
the Merger, in substantially the form of Exhibit 2.
"REGIONS COMMON STOCK" shall mean the $.625 par value common
stock of Regions.
"REGIONS COMPANIES" shall mean, collectively, Regions and
all Regions Subsidiaries.
"REGIONS DISCLOSURE MEMORANDUM" shall mean the written
information entitled "Regions Financial Corporation Disclosure
Memorandum" delivered prior to the execution of this Agreement to First
National describing in reasonable detail the matters contained therein
and, with respect to each disclosure made therein, specifically
referencing each Section or subsection of this Agreement under which
such disclosure is being made. Information disclosed with respect to
one Section or subsection shall not be deemed to be disclosed for
purposes of any other Section or subsection not specifically referenced
with respect thereto.
"REGIONS FINANCIAL STATEMENTS" shall mean (i) the
consolidated statements of condition (including related notes and
schedules, if any) of Regions as of June 30, 1995, and as of December
31, 1994 and 1993, and the related statements of income, changes in
stockholders' equity, and cash flows (including related notes and
schedules, if any) for the six months ended June 30, 1995, and for each
of the three years ended December 31, 1994, 1993, and 1992, as filed by
Regions in SEC Documents, and (ii) the consolidated statements of
condition of Regions (including related notes and schedules, if any) and
related statements of income, changes in stockholders' equity, and cash
flows (including related
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<PAGE> 50
notes and schedules, if any) included in SEC Documents filed with
respect to periods ended subsequent to June 30, 1995.
"REGIONS MERGER SUBSIDIARY" shall mean the wholly owned
subsidiary of Regions to be organized to effect the Merger under the
Laws of the State of Georgia and with the name of Regions Merger
Subsidiary, Inc.
"REGIONS MERGER SUBSIDIARY COMMON STOCK" shall mean the
$1.00 par value common stock of Regions Merger Subsidiary.
"REGIONS SUBSIDIARIES" shall mean the Subsidiaries of
Regions, which shall include the Regions Subsidiaries described in
Section 6.4 of this Agreement and any corporation, bank, savings
association, or other organization acquired as a Subsidiary of Regions
in the future and owned by Regions at the Effective Time.
"REGISTRATION STATEMENT" shall mean the Registration
Statement on Form S-4, or other appropriate form, including any
pre-effective or post-effective amendments or supplements thereto, filed
with the SEC by Regions under the 1933 Act with respect to the shares of
Regions Common Stock to be issued to the stockholders of First National
in connection with the transactions contemplated by this Agreement.
"REGULATORY AUTHORITIES" shall mean, collectively, the
Federal Trade Commission, the United States Department of Justice, the
Board of the Governors of the Federal Reserve System, the Office of the
Comptroller of the Currency, the Federal Deposit Insurance Corporation,
the Office of Thrift Supervision, all state regulatory agencies having
jurisdiction over the Parties and their respective Subsidiaries, the
NASD, and the SEC.
"REPRESENTATIVE" shall mean any investment banker, financial
advisor, attorney, accountant, consultant, or other representative of a
Person.
"RIGHTS" shall mean all arrangements, calls, commitments,
Contracts, options, rights to subscribe to, scrip, understandings,
warrants, or other binding obligations of any character whatsoever
relating to, or securities or rights convertible into or exchangeable
for, shares of the capital stock of a Person or by which a Person is or
may be bound to issue additional shares of its capital stock or other
Rights.
"SEC DOCUMENTS" shall mean all forms, proxy statements,
registration statements, reports, schedules, and other documents filed,
or required to be filed, by a Party or any of its Subsidiaries with any
Regulatory Authority pursuant to the Securities Laws.
"SECURITIES LAWS" shall mean the 1933 Act, the 1934 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.
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<PAGE> 51
"STOCK OPTION AGREEMENT" shall mean the stock option
agreement by and between First National and Regions, in substantially
the form of Exhibit 1.
"STOCKHOLDERS' MEETINGS" shall mean the respective meetings
of the stockholders of Regions and First National to be held pursuant to
Section 8.1 of this Agreement, including any adjournment or adjournments
thereof.
"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 securities either
directly or through an unbroken chain of entities as to each of which
50% or more of the outstanding equity securities is owned directly or
indirectly by its parent; provided, 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 mean Regions Merger Subsidiary
as the surviving corporation resulting from the Merger.
"TAX" OR "TAXES" shall mean all federal, state, local, and
foreign taxes, charges, fees, levies, imposts, duties, or other
assessments, including income, gross receipts, excise, employment,
sales, use, transfer, license, payroll, franchise, severance, stamp,
occupation, windfall profits, environmental, federal highway use,
commercial rent, customs duties, capital stock, paid-up capital,
profits, withholding, Social Security, single business and unemployment,
disability, real property, personal property, registration, ad valorem,
value added, alternative or add-on minimum, estimated, or other tax or
governmental fee of any kind whatsoever, imposed or required to be
withheld by the United States or any state, local, foreign government or
subdivision or agency thereof, including any interest, penalties or
additions thereto.
"TAXABLE PERIOD" shall mean any period prescribed by any
governmental authority, including the United States or any state, local,
foreign government or subdivision or agency thereof for which a Tax
Return is required to be filed or Tax is required to be paid.
"TAX RETURN" shall mean any report, return, information
return, or other information required to be supplied to a taxing
authority in connection with Taxes, including any return of an
affiliated or combined or unitary group that includes a Party or its
Subsidiaries.
(b) The terms set forth below shall have the meanings
ascribed thereto in the referenced sections:
<TABLE>
<S> <C>
Average Closing Price Section 10.1(h)
Closing Section 1.2
Determination Date Section 10.1(h)
Effective Time Section 1.3
</TABLE>
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<PAGE> 52
<TABLE>
<S> <C>
ERISA Affiliate Section 5.13(c)
Exchange Agent Section 4.1
Exchange Ratio Section 3.1(c)
First National Benefit Plans Section 5.13(a)
First National Contracts Section 5.14
First National ERISA Plan Section 5.13(a)
First National Rights Section 3.5(a)
First National Pension Plan Section 5.13(a)
First National SEC Reports Section 5.5(a)
Indemnified Party Section 8.14
Index Group Section 10.1(h)
Index Price Section 10.1(h)
Index Ratio Section 10.1(h)
Merger Section 1.1
Regions Ratio Section 10.1(h)
Regions SEC Reports Section 6.5(a)
Starting Date Section 10.1(h)
Takeover Laws Section 5.19
Tax Opinion Section 9.1(g)
</TABLE>
(c) 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.
(a) Except as otherwise provided in this Section 11.2,
each of the Parties shall bear and pay all direct costs and expenses incurred
by it or on its behalf in connection with the transactions contemplated
hereunder, including filing, registration, and application fees, printing fees,
and fees and expenses of its own financial or other consultants, investment
bankers, accountants, and counsel, except that each of the Parties shall bear
and pay one-half of the printing costs incurred in connection with the printing
of the Registration Statement and the Joint Proxy Statement.
(b) Nothing contained in this Section 11.2 shall
constitute or shall be deemed to constitute liquidated damages for the willful
breach by a Party of the terms of this Agreement or otherwise limit the rights
of the nonbreaching Party.
11.3 BROKERS AND FINDERS. Except for Morgan Stanley & Co.
Incorporated as to First National and except for Bear, Stearns & Co. Inc. as to
Regions, each of the Parties represents and warrants that neither it nor any of
its officers, directors, employees, or Affiliates has employed any broker or
finder or incurred any Liability for any financial advisory fees, investment
bankers' fees, brokerage fees, commissions, or finders' fees in connection with
this Agreement or the transactions contemplated hereby. In the event of a
claim by any broker or finder based upon his, her, or its representing or
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<PAGE> 53
being retained by or allegedly representing or being retained by First National
or Regions, each of First National and Regions, as the case may be, agrees to
indemnify and hold the other Party harmless of and from any Liability in
respect of any such claim.
11.4 ENTIRE AGREEMENT. Except as otherwise expressly provided
herein, this Agreement (including the documents and instruments referred to
herein) constitutes the entire agreement between the Parties with respect to
the transactions contemplated hereunder and supersedes all prior arrangements
or understandings with respect thereto, written or oral (except for the
Confidentiality Agreements). Nothing in this Agreement expressed or implied,
is intended to confer upon any Person, other than the Parties or their
respective successors, any rights, remedies, obligations, or liabilities under
or by reason of this Agreement, other than as provided in Sections 8.12 and
8.14 of this Agreement.
11.5 AMENDMENTS. To the extent permitted by Law, this Agreement
may be amended by a subsequent writing signed by each of the Parties upon the
approval of the Boards of Directors of each of the Parties, whether before or
after stockholder approval of this Agreement has been obtained; provided, that
the provisions of this Agreement or the Plan of Merger relating to the manner
or basis in which shares of First National Common Stock will be exchanged for
Regions Common Stock shall not be amended after the Stockholders' Meetings
without the requisite approval of the holders of the issued and outstanding
shares of Regions Common Stock and First National Common Stock entitled to vote
thereon.
11.6 WAIVERS.
(a) Prior to or at the Effective Time, Regions, acting
through its Board of Directors, chief executive officer, chief financial
officer, or other authorized officer, shall have the right to waive any Default
in the performance of any term of this Agreement by First National, to waive or
extend the time for the compliance or fulfillment by First National of any and
all of its obligations under this Agreement, and to waive any or all of the
conditions precedent to the obligations of Regions under this Agreement, except
any condition which, if not satisfied, would result in the violation of any
Law. No such waiver shall be effective unless in writing signed by a duly
authorized officer of Regions.
(b) Prior to or at the Effective Time, First National,
acting through its Board of Directors, chief executive officer, chief financial
officer, or other authorized officer, shall have the right to waive any Default
in the performance of any term of this Agreement by Regions, to waive or extend
the time for the compliance or fulfillment by Regions of any and all of its
obligations under this Agreement, and to waive any or all of the conditions
precedent to the obligations of First National under this Agreement, except any
condition which, if not satisfied, would result in the violation of any Law.
No such waiver shall be effective unless in writing signed by a duly authorized
officer of First National.
(c) 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 of the breach of
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<PAGE> 54
any term 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 of the breach of any other term of
this Agreement.
11.7 ASSIGNMENT. Except as expressly contemplated hereby,
neither this Agreement nor any of the rights, interests, or obligations
hereunder shall be assigned by any Party hereto (whether by operation of Law or
otherwise) without the prior written consent of the other Party. Subject to
the preceding sentence, this Agreement will be binding upon, inure to the
benefit of, and be enforceable by the Parties and their respective successors
and assigns.
11.8 NOTICES. All notices or other communications which are
required or permitted hereunder shall be in writing and sufficient if delivered
by hand, by facsimile transmission, by registered or certified mail, postage
pre- paid, or by courier or overnight carrier, to the persons at the addresses
set forth below (or at such other address as may be provided hereunder), and
shall be deemed to have been delivered as of the date so delivered:
First National: First National Bancorp
303 Jesse Jewell Parkway
Suite 700
Gainesville, Georgia 30501
Telecopy Number: (770) 503-2700
Attention: Peter D. Miller
President, Chief Administrative, and
Chief Financial Officer
Copy to Counsel: Stewart, Melvin & Frost
Hunt Tower
200 Main Street
Gainesville, Georgia 30501
Telecopy Number: (770) 532-5071
Attention: T. Treadwell Syfan
Powell, Goldstein, Frazer & Murphy
Sixteenth Floor
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Telecopy Number: (404) 572-5958
Attention: Walter G. Moeling IV
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<PAGE> 55
Regions: Regions Financial Corporation
417 N. 20th Street
Birmingham, Alabama 35203
Telecopy Number: (205) 326-7571
Attention: Richard D. Horsley
Vice Chairman and Executive
Financial Officer
Copy to Counsel: Regions Financial Corporation
417 N. 20th Street
Birmingham, Alabama 35203
Telecopy Number: (205) 326-7571
Attention: Samuel E. Upchurch, Jr.
General Counsel
11.9 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the Laws of the State of Delaware, without regard
to any applicable conflicts of Laws, except to the extent that the Laws of the
State of Georgia relate to the consummation of the Merger.
11.10 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
11.11 CAPTIONS. The captions contained in this Agreement are for
reference purposes only and are not part of this Agreement.
11.12 INTERPRETATIONS. Neither this Agreement nor any uncertainty
or ambiguity herein shall be construed or resolved against any party, whether
under any rule of construction or otherwise. No Party to this Agreement shall
be considered the draftsman. The Parties acknowledge and agree that this
Agreement has been reviewed, negotiated, and accepted by all Parties and their
attorneys and shall be construed and interpreted according to the ordinary
meaning of the words used so as fairly to accomplish the purposes and
intentions of the Parties.
11.13 ENFORCEMENT OF AGREEMENT. The Parties hereto agree 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 or any state having jurisdiction, this being in addition to any
other remedy to which they are entitled at law or in equity.
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<PAGE> 56
11.14 SEVERABILITY. Any term or provision of this Agreement which
is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable.
IN WITNESS WHEREOF, each of the Parties has caused this Agreement
to be executed on its behalf and its corporate seal to be hereunto affixed and
attested by officers thereunto as of the day and year first above written.
ATTEST: FIRST NATIONAL BANCORP
By: /s/ C. Talmadge Garrison By: /s/ Peter D. Miller
------------------------- --------------------
C. Talmadge Garrison Peter D. Miller
Secretary President, Chief Administrative, and
Chief Financial Officer
[CORPORATE SEAL]
ATTEST: REGIONS FINANCIAL CORPORATION
By: /s/ Samuel E. Upchurch, Jr. By: /s/ J. Stanley Mackin
---------------------------- ----------------------
Samuel E. Upchurch, Jr. J. Stanley Mackin
Corporate Secretary Chairman of the Board and Chief
Executive Officer
[CORPORATE SEAL]
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<PAGE> 1
Exhibit 2.2
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of October 22, 1995 (the "Agreement"),
by and between First National BancorpFirst National Bancorp, a Georgia
corporation ("Issuer"), and Regions Financial Corporation, a Delaware
corporation ("Grantee").
WHEREAS, Grantee and Issuer have entered into that certain Agreement and
Plan of Reorganization, dated as of October 22, 1995 (the "Merger Agreement"),
providing for, among other things, the merger of Issuer with and into a wholly
owned Subsidiary of Grantee with such Subsidiary as the surviving entity; and
WHEREAS, as a condition and inducement to Grantee's execution of the
Merger Agreement, Grantee has required that Issuer agree, and Issuer has
agreed, to grant Grantee the Option (as defined below);
NOW, THEREFORE, in consideration of the respective representations,
warranties, covenants, and agreements set forth herein and in the Merger
Agreement, and intending to be legally bound hereby, Issuer and Grantee agree
as follows:
1. DEFINED TERMS. Capitalized terms which are used but not defined
herein shall have the meanings ascribed to such terms in the Merger Agreement.
2. GRANT OF OPTION. Subject to the terms and conditions set forth
herein, Issuer hereby grants to Grantee an irrevocable option (the "Option") to
purchase up to 4,089,234 shares (as adjusted as set forth herein) (the "Option
Shares," which shall include the Option Shares before and after any transfer of
such Option Shares) of Common Stock, par value $1.00 per share ("Issuer Common
Stock"), of Issuer at a purchase price per Option Share (the "Purchase Price")
equal to $27.00.
3. EXERCISE OF OPTION.
(a) Provided that (i) Grantee shall not be in material breach
of the agreements or covenants contained in this Agreement or the Merger
Agreement, and (ii) no preliminary or permanent injunction or other order
against the delivery of shares covered by the Option issued by any court of
competent jurisdiction in the United States shall be in effect, Grantee may
exercise the Option, in whole or in part, at any time and from time to time
following the occurrence of a Purchase Event; provided that the Option shall
terminate and be of no further force and effect upon the earliest to occur of
(A) the Effective Time, (B) termination of the Merger Agreement in accordance
with the terms thereof prior to the occurrence of a Purchase Event or a
Preliminary Purchase Event (other than a termination of the Merger Agreement by
Grantee pursuant to Section 10.1(b) (but only if such termination was a result
of a willful breach by Issuer) or by Grantee pursuant to Section 10.1(c)
thereof or by Grantee and Issuer pursuant to Section 10.1(a) thereof if
Grantee shall at that time have been entitled to terminate the Merger Agreement
pursuant to Section 10.1(b)(but only if such termination was a result of a
willful breach by Issuer)
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<PAGE> 2
or Section 10.1(c) thereof (each a "Default Termination")), (C) 15 months after
the termination of the Merger Agreement by Grantee pursuant to a Default
Termination, and (D) 15 months after termination of the Merger Agreement (other
than pursuant to a Default Termination) following the occurrence of a Purchase
Event or a Preliminary Purchase Event; provided, further, that any purchase of
shares upon exercise of the Option shall be subject to compliance with
applicable law, including, without limitation, the Bank Holding Company Act of
1956, as amended (the "BHC Act"). The rights set forth in Section 8 shall
terminate when the right to exercise the Option terminates (other than as a
result of a complete exercise of the Option) as set forth herein.
(b) As used herein, a "Purchase Event" means any of the
following events subsequent to the date of this Agreement:
(i) without Grantee's prior written consent, Issuer shall
have authorized, recommended, publicly proposed, or publicly announced
an intention to authorize, recommend, or propose, or entered into an
agreement with any person (other than Grantee or any Subsidiary of
Grantee) to effect an Acquisition Transaction (as defined below). As
used herein, the term Acquisition Transaction shall mean (A) a merger,
consolidation, or similar transaction involving Issuer or any of its
Subsidiaries (other than transactions solely between Issuer's
Subsidiaries), (B) except as permitted pursuant to Section 7.2 of the
Merger Agreement, the disposition, by sale, lease, exchange, or
otherwise, of Assets of Issuer or any of its Subsidiaries representing
in either case 20% or more of the consolidated Assets of Issuer and its
Subsidiaries, or (C) the issuance, sale, or other disposition of
(including by way of merger, consolidation, share exchange, or any
similar transaction) securities representing 20% or more of the voting
power of Issuer or any of its Subsidiaries (any of the foregoing an
"Acquisition Transaction"); or
(ii) any person (other than Grantee or any Subsidiary of
Grantee) shall have acquired beneficial ownership (as such term is
defined in Rule 13d-3 promulgated under the Exchange Act) of or the
right to acquire beneficial ownership of, or any "group" (as such term
is defined under the Exchange Act) shall have been formed which
beneficially owns or has the right to acquire beneficial ownership of,
20% or more of the then-outstanding shares of Issuer Common Stock.
(c) As used herein, a "Preliminary Purchase Event" means any of
the following events:
(i) any person (other than Grantee or any Subsidiary of
Grantee) shall have commenced (as such term is defined in Rule 14d-2
under the Exchange Act), or shall have filed a registration statement
under the Securities Act with respect to, a tender offer or exchange
offer to purchase any shares of Issuer Common Stock such that, upon
consummation of such offer, such person would own or control 15% or more
of the then-outstanding shares of Issuer Common Stock (such an offer
being referred to herein as a "Tender Offer" or an "Exchange Offer,"
respectively); or
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<PAGE> 3
(ii) the holders of Issuer Common Stock shall not have
approved the Merger Agreement at the meeting of such stockholders held
for the purpose of voting on the Merger Agreement, such meeting shall
not have been held or shall have been canceled prior to termination of
the Merger Agreement, or Issuer's Board of Directors shall have
withdrawn or modified in a manner adverse to Grantee the recommendation
of Issuer's Board of Directors with respect to the Merger Agreement, in
each case after it shall have been publicly announced that any person
(other than Grantee or any Subsidiary of Grantee) shall have (A) made,
or disclosed an intention to make, a proposal to engage in an
Acquisition Transaction, (B) commenced a Tender Offer or filed a
registration statement under the Securities Act with respect to an
Exchange Offer, or (C) filed an application (or given a notice), whether
in draft or final form, under the BHC Act, the Bank Merger Act, or the
Change in Bank Control Act of 1978, for approval to engage in an
Acquisition Transaction.
As used in this Agreement, "person" shall have the meaning specified in
Sections 3(a)(9) and 13(d)(3) of the Exchange Act.
(d) In the event Grantee wishes to exercise the Option, it shall
send to Issuer a written notice (the date of which being herein referred to as
the "Notice Date") specifying (i) the total number of Option Shares it intends
to purchase pursuant to such exercise and (ii) a place and date not earlier
than three business days nor later than 15 business days from the Notice Date
for the closing (the "Closing") of such purchase (the "Closing Date"). If
prior notification to or approval of the Board of Governors of the Federal
Reserve System (the "Federal Reserve Board") or any other regulatory authority
is required in connection with such purchase, Issuer shall cooperate with
Grantee in the filing of the required notice or application for approval and
the obtaining of such approval and the Closing shall occur immediately
following such regulatory approvals (and any mandatory waiting periods).
4. PAYMENT AND DELIVERY OF CERTIFICATES.
(a) On each Closing Date, Grantee shall (i) pay to Issuer, in
immediately available funds by wire transfer to a bank account designated by
Issuer, an amount equal to the Purchase Price multiplied by the number of
Option Shares to be purchased on such Closing Date, and (ii) present and
surrender this Agreement to the Issuer at the address of the Issuer specified
in Section 13(f).
(b) At each Closing, simultaneously with the delivery of
immediately available funds and surrender of this Agreement as provided in
Section 4(a), (i) Issuer shall deliver to Grantee (A) a certificate or
certificates representing the Option Shares to be purchased at such Closing,
which Option Shares shall be free and clear of all liens, claims, charges, and
encumbrances of any kind whatsoever and subject to no pre-emptive rights, and
(B) if the Option is exercised in part only, an executed new agreement with the
same terms as this Agreement evidencing the right to purchase the balance of
the shares of Issuer Common Stock purchasable hereunder, and (ii) Grantee shall
deliver to Issuer a letter agreeing that Grantee shall not offer to sell or
otherwise
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<PAGE> 4
dispose of such Option Shares in violation of applicable federal and state law
or of the provisions of this Agreement.
(c) In addition to any other legend that is required by
applicable law, certificates for the Option Shares delivered at each Closing
shall be endorsed with a restrictive legend which shall read substantially as
follows:
THE TRANSFER OF THE STOCK REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO
RESTRICTIONS ARISING UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
PURSUANT TO THE TERMS OF A STOCK OPTION AGREEMENT DATED AS OF OCTOBER
22, 1995. A COPY OF SUCH AGREEMENT WILL BE PROVIDED TO THE HOLDER
HEREOF WITHOUT CHARGE UPON RECEIPT BY THE ISSUER OF A WRITTEN REQUEST
THEREFOR.
It is understood and agreed that the above legend shall be removed by delivery
of substitute certificate(s) without such legend if Grantee shall have
delivered to Issuer a copy of a letter from the staff of the SEC, or an opinion
of counsel in form and substance reasonably satisfactory to Issuer and its
counsel, to the effect that such legend is not required for purposes of the
Securities Act.
5. REPRESENTATIONS AND WARRANTIES OF ISSUER. Issuer hereby
represents and warrants to Grantee as follows:
(a) Issuer has all requisite corporate power and authority to
enter into this Agreement and, subject to any approvals referred to
herein, to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Issuer. This Agreement has
been duly executed and delivered by Issuer.
(b) Issuer has taken all necessary corporate and other action to
authorize and reserve and to permit it to issue, and, at all times from
the date hereof until the obligation to deliver Issuer Common Stock upon
the exercise of the Option terminates, will have reserved for issuance,
upon exercise of the Option, the number of shares of Issuer Common Stock
necessary for Grantee to exercise the Option, and Issuer will take all
necessary corporate action to authorize and reserve for issuance all
additional shares of Issuer Common Stock or other securities which may
be issued pursuant to Section 7 upon exercise of the Option. The shares
of Issuer Common Stock to be issued upon due exercise of the Option,
including all additional shares of Issuer Common Stock or other
securities which may be issuable pursuant to Section 7, upon issuance
pursuant hereto, shall be duly and validly issued, fully paid, and
nonassessable, and shall be delivered free and clear of all liens,
claims, charges, and encumbrances of any kind or nature whatsoever,
including any preemptive rights of any stockholder of Issuer.
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<PAGE> 5
6. REPRESENTATIONS AND WARRANTS OF GRANTEE. Grantee hereby
represents and warrants to Issuer that:
(a) Grantee has all requisite corporate power and authority to
enter into this Agreement and, subject to any approvals or consents
referred to herein, to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Grantee. This Agreement has
been duly executed and delivered by Grantee.
(b) This Option is not being, and any Option Shares or other
securities acquired by Grantee upon exercise of the Option will not be,
acquired with a view to the public distribution thereof and will not be
transferred or otherwise disposed of except in a transaction registered
or exempt from registration under the Securities Laws.
7. ADJUSTMENT UPON CHANGES IN CAPITALIZATION, ETC.
(a) In the event of any change in Issuer Common Stock by
reason of a stock dividend, stock split, split-up, recapitalization,
combination, exchange of shares, or similar transaction, the type and number of
shares or securities subject to the Option, and the Purchase Price therefor,
shall be adjusted appropriately, and proper provision shall be made in the
agreements governing such transaction so that Grantee shall receive, upon
exercise of the Option, the number and class of shares or other securities or
property that Grantee would have received in respect of Issuer Common Stock if
the Option had been exercised immediately prior to such event, or the record
date therefor, as applicable. If any additional shares of Issuer Common Stock
are issued after the date of this Agreement (other than pursuant to an event
described in the first sentence of this Section 7(a)), the number of shares of
Issuer Common Stock subject to the Option shall be adjusted so that, after such
issuance, it, together with any shares of Issuer Common Stock previously issued
pursuant hereto, equals 19.9% of the number of shares of Issuer Common Stock
then issued and outstanding, without giving effect to any shares subject to or
issued pursuant to the Option.
(b) In the event that Issuer shall enter in an agreement: (i) to
consolidate with or merge into any person, other than Grantee or one of its
Subsidiaries, and shall not be the continuing or surviving corporation of such
consolidation or merger; (ii) to permit any person, other than Grantee or one
of its Subsidiaries, to merge into Issuer and Issuer shall be the continuing or
surviving corporation, but, in connection with such merger, the then
outstanding shares of Issuer Common Stock shall be changed into or exchanged
for stock or other securities of Issuer or any other person or cash or any
other property or the outstanding shares of Issuer Common Stock immediately
prior to such merger shall after such merger represent less than 50% of the
outstanding shares and share equivalents of the merged company; or (iii) to
sell or otherwise transfer all or substantially all of its Assets to any
person, other than Grantee or one of its Subsidiaries, then, and in each such
case, the agreement governing such transaction shall make proper provisions so
that the Option shall, upon the consummation of any such transaction and upon
the terms and conditions set forth herein, be converted into, or exchanged for,
an option
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<PAGE> 6
(the "Substitute Option"), at the election of Grantee, of either (x) the
Acquiring Corporation (as defined below), (y) any person that controls the
Acquiring Corporation, or (z) in the case of a merger described in clause (ii),
the Issuer (in each case, such person being referred to as the "Substitute
Option Issuer").
(c) The Substitute Option shall have the same terms as the
Option, provided that, if the terms of the Substitute Option cannot, for legal
reasons, be the same as the Option, such terms shall be as similar as possible
and in no event less advantageous to Grantee. The Substitute Option Issuer
shall also enter into an agreement with the then-holder or holders of the
Substitute Option in substantially the same form as this Agreement, which shall
be applicable to the Substitute Option.
(d) The Substitute Option shall be exercisable for such number
of shares of the Substitute Common Stock (as hereinafter defined) as is equal to
the Assigned Value (as hereinafter defined) multiplied by the number of shares
of the Issuer Common Stock for which the Option was theretofore exercisable,
divided by the Average Price (as hereinafter defined). The exercise price of
the Substitute Option per share of the Substitute Common Stock (the "Substitute
Purchase Price") shall then be equal to the Purchase Price multiplied by a
fraction in which the numerator is the number of shares of the Issuer Common
Stock for which the Option was theretofore exercisable and the denominator is
the number of shares for which the Substitute Option is exercisable.
(e) The following terms have the meanings indicated:
(i) "Acquiring Corporation" shall mean (x) the continuing
or surviving corporation of a consolidation or merger with Issuer (if
other than Issuer), (y) Issuer in a merger in which Issuer is the
continuing or surviving person, and (z) the transferee of all or any
substantial part of the Issuer's Assets (or the Assets of its
Subsidiaries).
(ii) "Substitute Common Stock" shall mean the common stock
issued by the Substitute Option Issuer upon exercise of the Substitute
Option.
(iii) "Assigned Value" shall mean the highest of (x) the
price per share of the Issuer Common Stock at which a Tender Offer or
Exchange Offer therefor has been made by any person (other than Grantee),
(y) the price per share of the Issuer Common Stock to be paid by any
person (other than the Grantee) pursuant to an agreement with Issuer, and
(z) the highest closing sales price per share of Issuer Common Stock
quoted on the Nasdaq National Market (or if Issuer Common Stock is not
quoted on the Nasdaq National Market, the highest bid price per share on
any day as quoted on the principal trading market or securities exchange
on which such shares are traded as reported by a recognized source chosen
by Grantee) within the six-month period immediately preceding the
agreement; provided, that in the event of a sale of less than all of
Issuer's Assets, the Assigned Value shall be the sum of the price paid in
such sale for such Assets and the current market value of the remaining
Assets of Issuer as determined by a nationally recognized investment
banking firm selected by Grantee (or by a majority in interest of the
Grantees if there shall
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<PAGE> 7
be more than one Grantee (a "Grantee Majority")), divided by the number
of shares of the Issuer Common Stock outstanding at the time of such
sale. In the event that an exchange offer is made for the Issuer Common
Stock or an agreement is entered into for a merger or consolidation
involving consideration other than cash, the value of the securities or
other property issuable or deliverable in exchange for the Issuer Common
Stock shall be determined by a nationally recognized investment banking
firm mutually selected by Grantee and Issuer (or if applicable, Acquiring
Corporation), provided that if a mutual selection cannot be made as to
such investment banking firm, it shall be selected by Grantee. (If there
shall be more than one Grantee, any such selection shall be made by a
Grantee Majority.)
(iv) "Average Price" shall mean the average closing price
of a share of the Substitute Common Stock for the one year immediately
preceding the consolidation, merger, or sale in question, but in no event
higher than the closing price of the shares of the Substitute Common
Stock on the day preceding such consolidation, merger, or sale; provided
that if Issuer is the Issuer of the Substitute Option, the Average Price
shall be computed with respect to a share of common stock issued by
Issuer, the person merging into Issuer or by any company which controls
or is controlled by such merger person, as Grantee may elect.
(f) In no event pursuant to any of the foregoing paragraphs
shall the Substitute Option be exercisable for more than 19.9% of the aggregate
of the shares of the Substitute Common Stock outstanding prior to exercise of
the Substitute Option. In the event that the Substitute Option would be
exercisable for more than 19.9% of the aggregate of the shares of Substitute
Common Stock but for this clause (f), the Substitute Option Issuer shall make a
cash payment to Grantee equal to the excess of (i) the value of the Substitute
Option without giving effect to the limitation in this clause (f) over (ii) the
value of the Substitute Option after giving effect to the limitation in this
clause (f). This difference in value shall be determined by a nationally
recognized investment banking firm selected by Grantee (or a Grantee Majority).
(g) Issuer shall not enter into any transaction described in
subsection (b) of this Section 7 unless the Acquiring Corporation and any
person that controls the Acquiring Corporation assume in writing all the
obligations of Issuer hereunder and take all other actions that may be
necessary so that the provisions of this Section 7 are given full force and
effect (including, without limitation, any action that may be necessary so that
the shares of Substitute Common Stock are in no way distinguishable from or
have lesser economic value than other shares of common stock issued by the
Substitute Option Issuer).
(h) The provisions of Sections 8, 9, 10 and 11 shall apply, with
appropriate adjustments, to any securities for which the Option becomes
exercisable pursuant to this Section 7 and, as applicable, references in such
sections to "Issuer," "Option," "Purchase Price," and "Issuer Common Stock"
shall be deemed to be references to "Substitute Option Issuer," "Substitute
Option," "Substitute Purchase Price," and "Substitute Common Stock,"
respectively.
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<PAGE> 8
8. REPURCHASE AT THE OPTION OF GRANTEE.
(a) Subject to the last sentence of Section 3(a), at the request
of Grantee at any time commencing upon the first occurrence of a Repurchase
Event (as defined in Section 8(d)) and ending 12 months immediately thereafter,
Issuer shall repurchase from Grantee the Option and all shares of Issuer Common
Stock purchased by Grantee pursuant hereto with respect to which Grantee then
has beneficial ownership. The date on which Grantee exercises its rights under
this Section 8 is referred to as the "Request Date." Such repurchase shall be
at an aggregate price (the "Section 8 Repurchase Consideration") equal to the
sum of:
(i) the aggregate Purchase Price paid by Grantee for any
shares of Issuer Common Stock acquired pursuant to the Option with
respect to which Grantee then has beneficial ownership;
(ii) the excess, if any, of (x) the Applicable Price (as
defined below) for each share of Issuer Common Stock over (y) the
Purchase Price (subject to adjustment pursuant to Section 7), multiplied
by the number of shares of Issuer Common Stock with respect to which the
Option has not been exercised; and
(iii) the excess, if any, of the Applicable Price over the
Purchase Price (subject to adjustment pursuant to Section 7) paid (or,
in the case of Option Shares with respect to which the Option has been
exercised but the Closing Date has not occurred, payable) by Grantee for
each share of Issuer Common Stock with respect to which the Option has
been exercised and with respect to which Grantee then has beneficial
ownership, multiplied by the number of such shares.
(b) If Grantee exercises its rights under this Section 8, Issuer
shall, within ten business days after the Request Date, pay the Section 8
Repurchase Consideration to Grantee in immediately available funds, and
contemporaneously with such payment Grantee shall surrender to Issuer the
Option and the certificates evidencing the shares of Issuer Common Stock
purchased thereunder with respect to which Grantee then has beneficial
ownership, and Grantee shall warrant that it has sole record and beneficial
ownership of such shares and that the same are then free and clear of all
liens, claims, charges, and encumbrances of any kind whatsoever.
Notwithstanding the foregoing, to the extent that prior notification to or
approval of the Federal Reserve Board or other regulatory authority is required
in connection with the payment of all or any portion of the Section 8
Repurchase Consideration, Grantee shall have the ongoing option to revoke its
request for repurchase pursuant to Section 8, in whole or in part, or to
require that Issuer deliver from time to time that portion of the Section 8
Repurchase Consideration that it is not then so prohibited from paying and
promptly file the required notice or application for approval and expeditiously
process the same (and each party shall cooperate with the other in the filing
of any such notice or application and the obtaining of any such approval). If
the Federal Reserve Board or any other regulatory authority disapproves of any
part of Issuer's proposed repurchase pursuant to this Section 8, Issuer shall
promptly give notice of such fact to Grantee. If the Federal Reserve Board or
other agency prohibits the repurchase in part but not in whole, then Grantee
shall have the right (i) to revoke the repurchase request or (ii) to the extent
permitted by
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<PAGE> 9
the Federal Reserve Board or other agency, determine whether the repurchase
should apply to the Option and/or Option Shares and to what extent to each, and
Grantee shall thereupon have the right to exercise the Option as to the number
of Option Shares for which the Option was exercisable at the Request Date less
the sum of the number of shares covered by the Option in respect of which
payment has been made pursuant to Section 8(a)(ii) and the number of shares
covered by the portion of the Option (if any) that has been repurchased.
Grantee shall notify Issuer of its determination under the preceding sentence
within five business days of receipt of notice of disapproval of the
repurchase.
Notwithstanding anything herein to the contrary, all of
Grantee's rights under this Section 8 shall terminate on the date of
termination of this Option pursuant to Section 3(a).
(c) For purposes of this Agreement, the "Applicable Price" means
the highest of (i) the highest price per share of Issuer Common Stock paid for
any such share by the person or groups described in Section 8(d)(i), (ii) the
price per share of Issuer Common Stock received by holders of Issuer Common
Stock in connection with any merger or other business combination transaction
described in Section 7(b)(i), 7(b)(ii), or 7(b)(iii), or (iii) the highest
closing sales price per share of Issuer Common Stock quoted on the Nasdaq
National Market (or if Issuer Common Stock is not quoted on the Nasdaq National
Market, the highest bid price per share as quoted on the principal trading
market or securities exchange on which such shares are traded as reported by a
recognized source chosen by Grantee) during the 60 business days preceding the
Request Date; provided, however, that in the event of a sale of less than all
of Issuer's Assets, the Applicable Price shall be the sum of the price paid in
such sale for such Assets and the current market value of the remaining Assets
of Issuer as determined by an independent nationally recognized investment
banking firm selected by Grantee and reasonably acceptable to Issuer (which
determination shall be conclusive for all purposes of this Agreement), divided
by the number of shares of the Issuer Common Stock outstanding at the time of
such sale. If the consideration to be offered, paid, or received pursuant to
either of the foregoing clauses (i) or (ii) shall be other than in cash, the
value of such consideration shall be determined in good faith by an independent
nationally recognized investment banking firm selected by Grantee and
reasonably acceptable to Issuer, which determination shall be conclusive for
all purposes of this Agreement.
(d) As used herein, "Repurchase Event" shall occur if (i) any
person (other than Grantee or any Subsidiary of Grantee) shall have acquired
beneficial ownership (as such term is defined in Rule 13d-3 promulgated under
the Exchange Act), or the right to acquire beneficial ownership, or any "group"
(as such term is defined under the Exchange Act) shall have been formed which
beneficially owns or has the right to acquire beneficial ownership of 50% or
more of the then-outstanding shares of Issuer Common Stock, or (ii) any of the
transactions described in Section 7(b)(i), 7(b)(ii), or 7(b)(iii) shall be
consummated.
10. REGISTRATION RIGHTS.
(a) Issuer shall, subject to the conditions of subparagraph (c)
below, if requested by Grantee (or if applicable, a Grantee Majority), as
expeditiously as possible prepare and file a registration statement under the
Securities Laws if necessary in order to permit the sale or other
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<PAGE> 10
disposition of any or all shares of Issuer Common Stock or other securities
that have been acquired by or are issuable to Grantee upon exercise of the
Option in accordance with the intended method of sale or other disposition
stated by Grantee in such request, including, without limitation, a "shelf"
registration statement under Rule 415 under the Securities Act or any successor
provision, and Issuer shall use its best efforts to qualify such shares or
other securities for sale under any applicable state securities laws.
(b) If Issuer at any time after the exercise of the Option
proposes to register any shares of Issuer Common Stock under the Securities
Laws in connection with an underwritten public offering of such Issuer Common
Stock, Issuer will promptly give written notice to Grantee (and any permitted
transferee) of its intention to do so and, upon the written request of Grantee
(or any such permitted transferee of Grantee) given within 30 days after
receipt of any such notice (which request shall specify the number of shares of
Issuer Common Stock intended to be included in such underwritten public
offering by Grantee (or such permitted transferee)), Issuer will cause all such
shares, the holders of which shall have requested participation in such
registration, to be so registered and included in such underwritten public
offering; provided, that Issuer may elect to not cause any such shares to be so
registered (i) if the underwriters in good faith object for valid business
reasons, or (ii) in the case of a registration solely to implement a dividend
reinvestment or similar plan, an employee benefit plan or a registration filed
on Form S-4; provided, further, that such election pursuant to clause (i) may
only be made one time. If some but not all the shares of Issuer Common Stock,
with respect to which Issuer shall have received requests for registration
pursuant to this subparagraph (b), shall be excluded from such registration,
Issuer shall make appropriate allocation of shares to be registered among
Grantee (and any such permitted transferee desiring to register their shares)
and any other person (other than Issuer) who or which is permitted to register
their shares of Issuer Common Stock in connection with such registration pro
rata in the proportion that the number of shares requested to be registered by
each such holder bears to the total number of shares requested to be registered
by all such holders then desiring to have Issuer Common Stock registered for
sale.
(c) Issuer shall use all reasonable efforts to cause each
registration statement referred to in subparagraph (a) above to become
effective and to obtain all consents or waivers of other parties which are
required therefor and to keep such registration statement effective, provided,
that Issuer may delay any registration of Option Shares required pursuant to
subparagraph (a) above for a period not exceeding 90 days provided Issuer shall
in good faith determine that any such registration would adversely affect an
offering or contemplated offering of other securities by Issuer, and Issuer
shall not be required to register Option Shares under the Securities Laws
pursuant to subparagraph (a) above:
(i) prior to the earliest of (a) termination of the
Merger Agreement pursuant to Section 10.1 thereof, (b) failure to obtain
the requisite stockholder approval pursuant to Section 9.1(a) of the
Merger Agreement, and (c) a Purchase Event or a Preliminary Purchase
Event;
(ii) on more than two occasions;
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<PAGE> 11
(iii) more than once during any calendar year;
(iv) within 90 days after the effective date of a
registration referred to in subparagraph (b) above pursuant to which
the holder or holders of the Option Shares concerned were afforded the
opportunity to register such shares under the Securities Laws and such
shares were registered as requested; and
(v) unless a request therefor is made to Issuer by the
holder or holders of at least 25% or more of the aggregate number of
Option Shares then outstanding.
In addition to the foregoing, Issuer shall not be required
to maintain the effectiveness of any registration statement after the
expiration of nine months from the effective date of such registration
statement. Issuer shall use all reasonable efforts to make any filings, and
take all steps, under all applicable state securities laws to the extent
necessary to permit the sale or other disposition of the Option Shares so
registered in accordance with the intended method of distribution for such
shares, provided, that Issuer shall not be required to consent to general
jurisdiction or qualify to do business in any state where it is not otherwise
required to so consent to such jurisdiction or to so qualify to do business.
(d) Except where applicable state law prohibits such payments,
Issuer will pay all expenses (including without limitation registration fees,
qualification fees, blue sky fees and expenses (including the fees and expenses
of counsel), accounting expenses, legal expenses, including the reasonable fees
and expenses of one counsel to the holders whose Option Shares are being
registered, printing expenses, expenses of underwriters, excluding discounts
and commissions but including liability insurance if Issuer so desires or the
underwriters so require, and the reasonable fees and expenses of any necessary
special experts) in connection with each registration pursuant to subparagraph
(a) or (b) above (including the related offerings and sales by holders of
Option Shares) and all other qualifications, notifications or exemptions
pursuant to subparagraph (a) or (b) above. Underwriting discounts and
commissions relating to Option Shares, fees and disbursements of counsel to the
holders of Option Shares being registered, and any other expenses incurred by
such holders in connection with any such registration shall be borne by such
holders.
(e) In connection with any registration under subparagraph (a)
or (b) above Issuer hereby indemnifies the holder of the Option Shares, and
each underwriter thereof, including each person, if any, who controls such
holder or underwriter within the meaning of Section 15 of the Securities Act,
against all expenses, losses, claims, damages, and liabilities caused by any
untrue statement of a material fact contained in any registration statement or
prospectus or notification or offering circular (including any amendments or
supplements thereto) or any preliminary prospectus, or caused by any omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such expenses,
losses, claims, damages, or liabilities of such indemnified party are caused by
any untrue statement or alleged untrue statement that was included by Issuer in
any such registration statement or prospectus or notification or offering
circular (including any amendments or supplements thereto) in reliance upon and
in conformity with, information furnished in writing to Issuer by such
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<PAGE> 12
indemnified party expressly for use therein, and Issuer and each officer,
director, and controlling person of Issuer shall be indemnified by such holder
of the Option Shares, or by such underwriter, as the case may be, for all such
expenses, losses, claims, damages, and liabilities caused by any untrue, or
alleged untrue, statement, that was included by Issuer in any such registration
statement or prospectus or notification or offering circular (including any
amendments or supplements thereto) in reliance upon, and in conformity with,
information furnished in writing to Issuer by such holder or such underwriter,
as the case may be, expressly for such use.
Promptly upon receipt by a party indemnified under this
subparagraph (e) of notice of the commencement of any action against such
indemnified party in respect of which indemnity or reimbursement may be sought
against any indemnifying party under this subparagraph (e), such indemnified
party shall notify the indemnifying party in writing of the commencement of
such action, but the failure so to notify the indemnifying party shall not
relieve it of any liability which it may otherwise have to any indemnified
party under this subparagraph (e). In case notice of commencement of any such
action shall be given to the indemnifying party as above provided, the
indemnifying party shall be entitled to participate in and, to the extent it
may wish, jointly with any other indemnifying party similarly notified, to
assume the defense of such action at its own expense, with counsel chosen by it
and satisfactory to such indemnified party. The indemnified party shall have
the right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel (other than
reasonable costs of investigation) shall be paid by the indemnified party
unless (i) the indemnifying party either agrees to pay the same, (ii) the
indemnifying party falls to assume the defense of such action with counsel'
satisfactory to the indemnified party, or (iii) the indemnified party has been
advised by counsel that one or more legal defenses may be available to the
indemnifying party that may be contrary to the interest of the indemnified
party, in which case the indemnifying party shall be entitled to assume the
defense of such action notwithstanding its obligation to bear fees and expenses
of such counsel. No indemnifying party shall be liable for any settlement
entered into without its consent, which consent may not be unreasonably
withheld.
If the indemnification provided for in this subparagraph (e)
is unavailable to a party otherwise entitled to be indemnified in respect of
any expenses, losses, claims, damages, or liabilities referred to herein, then
the indemnifying party, in lieu of indemnifying such party otherwise entitled
to be indemnified, shall contribute to the amount paid or payable by such party
to be indemnified as a result of such expenses, losses, claims, damages, or
liabilities in such proportion as is appropriate to reflect the relative
benefits received by Issuer, the selling stockholders, and the underwriters
from the offering of the securities and also the relative fault of Issuer, the
selling stockholders, and the underwriters in connection with the statements or
omissions which resulted in such expenses, losses, claims, damages, or
liabilities, as well as any other relevant equitable considerations. The
amount paid or payable by a party as a result of the expenses, losses, claims,
damages, and liabilities referred to above shall be deemed to include any legal
or other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim; provided, that in no case shall
the holders of the Option Shares be responsible, in the aggregate, for any
amount in excess of the net offering proceeds attributable to its Option Shares
included in the offering. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from
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<PAGE> 13
any person who was not guilty of such fraudulent misrepresentation. Any
obligation by any holder to indemnify shall be several and not joint with other
holders.
In connection with any registration pursuant to subparagraph
(a) or (b) above, Issuer and each holder of any Option Shares (other than
Grantee) shall enter into an agreement containing the indemnification
provisions of this subparagraph (e).
(f) Issuer shall comply with all reporting requirements and will
do all such other things as may be necessary to permit the expeditious sale at
any time of any Option Shares by the holder thereof in accordance with and to
the extent permitted by any rule or regulation promulgated by the SEC from time
to time, including, without limitation, Rules 144 and 144A. Issuer shall at
its expense provide the holder of any Option Shares with any information
necessary in connection with the completion and filing of any reports or forms
required to be filed by them under the Securities Laws, or required pursuant to
any state securities laws or the rules of any stock exchange.
(g) Issuer will pay all stamp taxes in connection with the
issuance and the sale of the Option Shares and in connection with the exercise
of the Option, and will save Grantee harmless, without limitation as to time,
against any and all liabilities, with respect to all such taxes.
11. QUOTATION; LISTING. If Issuer Common Stock or any other
securities to be acquired upon exercise of the Option are then authorized for
quotation or trading or listing on the Nasdaq National Market or any other
securities exchange or any automated quotations system maintained by a
self-regulatory organization, Issuer, upon the request of Grantee, will
promptly file an application, if required, to authorize for quotation or
trading or listing the shares of Issuer Common Stock or other securities to be
acquired upon exercise of the Option on the Nasdaq National Market or any other
securities exchange or any automated quotations system maintained by a
self-regulatory organization and will use its best efforts to obtain approval,
if required, of such quotation or listing as soon as practicable.
12. DIVISION OF OPTION. This Agreement (and the Option granted
hereby) are exchangeable, without expense, at the option of Grantee, upon
presentation and surrender of this Agreement at the principal office of Issuer
for other Agreements providing for Options of different denominations entitling
the holder thereof to purchase in the aggregate the same number of shares of
Issuer Common Stock purchasable hereunder. The terms "Agreement" and "Option"
as used herein include any other Agreements and related Options for which this
Agreement (and the Option granted hereby) may be exchanged. Upon receipt by
Issuer of evidence reasonably satisfactory to it of the loss, theft,
destruction, or mutilation of this Agreement, and (in the case of loss, theft,
or destruction) of reasonably satisfactory indemnification, and upon surrender
and cancellation of this Agreement, if mutilated, Issuer will execute and
deliver a new Agreement of like tenor and date. Any such new Agreement
executed and delivered shall constitute an additional contractual obligation on
the part of Issuer, whether or not the Agreement so lost, stolen, destroyed, or
mutilated shall at any time be enforceable by anyone.
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<PAGE> 14
13. MISCELLANEOUS.
(a) EXPENSES. Except as otherwise provided in Section 11, each
of the parties hereto shall bear and pay all costs and expenses incurred by it
or on its behalf in connection with the transactions contemplated hereunder,
including fees and expenses of its own financial consultants, investment
bankers, accountants, and counsel.
(b) WAIVER AND AMENDMENT. Any provision of this Agreement may
be waived at any time by the party that is entitled to the benefits of such
provision. This Agreement may not be modified, amended, altered, or
supplemented except upon the execution and delivery of a written agreement
executed by the parties hereto.
(c) ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARY; SEVERABILITY.
This Agreement, together with the Merger Agreement and the other documents and
instruments referred to herein and therein, between Grantee and Issuer (a)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof and (b) is not intended to confer upon any person other
than the parties hereto (other than any transferees of the Option Shares or any
permitted transferee of this Agreement pursuant to Section 13(h)) any rights or
remedies hereunder. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction or a federal or state
regulatory agency to be invalid, void, or unenforceable, the remainder of the
terms, provisions, covenants, and restrictions of this Agreement shall remain
in full force and effect and shall in no way be affected, impaired, or
invalidated. If for any reason such court or regulatory agency determines that
the Option does not permit Grantee to acquire, or does not require Issuer to
repurchase, the full number of shares of Issuer Common Stock as provided in
Sections 3 and 8 (as adjusted pursuant to Section 7), it is the express
intention of Issuer to allow Grantee to acquire or to require Issuer to
repurchase such lesser number of shares as may be permissible without any
amendment or modification hereof.
(d) GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware without regard
to any applicable conflicts of law rules.
(e) DESCRIPTIVE HEADINGS. The descriptive headings contained
herein are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
(f) NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally,
telecopied (with confirmation), or mailed by registered or certified mail
(return receipt requested) to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice):
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<PAGE> 15
<TABLE>
<S> <C>
If to Issuer to: First National Bancorp
303 Jesse Jewell Parkway
Suite 700
Gainesville, Georgia 30501
Telecopy Number: (770) 503-2700
Attention: Peter D. Miller
President, Chief Administrative, and
Chief Financial Officer
with a copy to: Stewart, Melvin & Frost
Hunt Tower
200 Main Street
Gainesville, Georgia 30501
Telecopy Number: (770) 532-5071
Attention: T. Treadwell Syfan
and a copy to: Powell, Goldstein, Frazer & Murphy
Sixteenth Floor
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Telecopy Number: (404) 572-5958
Attention: Walter G. Moeling IV
If to Grantee to: Regions Financial Corporation
417 N. 20th Street
Birmingham, Alabama 35203
Telecopy Number: (205) 326-7571
Attention: Richard D. Horsley
Vice Chairman and Executive
Financial Officer
with a copy to: Regions Financial Corporation
417 N. 20th Street
Birmingham, Alabama 35203
Telecopy Number: (205) 326-7571
Attention: Samuel E. Upchurch, Jr.
General Counsel
</TABLE>
(g) COUNTERPARTS. This Agreement and any amendments hereto may
be executed in two counterparts, each of which shall be considered one and the
same agreement and shall
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<PAGE> 16
become effective when both counterparts have been signed, it being understood
that both parties need not sign the same counterpart.
(h) ASSIGNMENT. Neither this Agreement nor any of the rights,
interests, or obligations hereunder or under the Option shall be assigned by
any of the parties hereto (whether by operation of law or otherwise) without
the prior written consent of the other party, except that Grantee may assign
this Agreement to a wholly owned Subsidiary of Grantee and Grantee may assign
its rights hereunder in whole or in part after the occurrence of a Purchase
Event. Subject to the preceding sentence, this Agreement shall be binding
upon, inure to the benefit of, and be enforceable by the parties and their
respective successors and assigns.
(i) FURTHER ASSURANCES. In the event of any exercise of the
Option by Grantee, Issuer and Grantee shall execute and deliver all other
documents and instruments and take all other action that may be reasonably
necessary in order to consummate the transactions provided for by such
exercise.
(j) SPECIFIC PERFORMANCE. The parties hereto agree that this
Agreement may be enforced by either party through specific performance,
injunctive relief, and other equitable relief. Both parties further agree to
waive any requirement for the securing or posting of any bond in connection
with the obtaining of any such equitable relief and that this provision is
without prejudice to any other rights that the parties hereto may have for any
failure to perform this Agreement.
IN WITNESS WHEREOF, Issuer and Grantee have caused this Stock Option
Agreement to be signed by their respective officers thereunto duly authorized,
all as of the day and year first written above.
<TABLE>
<S> <C>
ATTEST: FIRST NATIONAL BANCORP
By: /s/ C. Talmadge Garrison By: /s/ Peter D. Miller
------------------------- -------------------
C. Talmadge Garrison Peter D. Miller
Secretary President, Chief Administrative, and
Chief Financial Officer
</TABLE>
[CORPORATE SEAL]
-16-
Page 77 of 80
<PAGE> 17
<TABLE>
<S> <C>
ATTEST: REGIONS FINANCIAL CORPORATION
By: /s/ Samuel E. Upchurch, Jr. By: /s/ J. Stanley Mackin
---------------------------- ----------------------
Samuel E. Upchurch, Jr. J. Stanley Mackin
Corporate Secretary Chairman of the Board and Chief
Executive Officer
</TABLE>
[CORPORATE SEAL]
-17-
Page 78 of 80
<PAGE> 1
October 23, 1995 Exhibit 99.1
==================================== NEWS RELEASE
[LOGO] REGIONS Financial Corp.
REGIONS FINANCIAL TO ACQUIRE FIRST NATIONAL BANCORP
Regions Financial Corporation and First National Bancorp of Gainesville,
Georgia, announced jointly today that they have signed a definitive agreement
that provides for the acquisition of First National by Regions.
The acquisition by Regions, a multi-bank holding company headquartered in
Birmingham, Alabama, of the $3.1 billion First National, Georgia's
second-largest bank holding company headquartered outside of metropolitan
Atlanta, would increase Regions' asset size to $17.4 billion and substantially
increase its presence in the states of Georgia and Florida.
Under the terms of the agreement, Regions will exchange .76 of a share of its
common stock for each share of First National common stock. Based on Regions'
closing stock price of $41.50 on October 20, 1995, the transaction would be
valued at approximately $647 million and represent an exchange value of $31.54
for each share of First National common stock. The purchase price would be
2.13 times First National's September 30, 1995, book value. The merger, which
will be accounted for as a pooling of interests, is expected to be consummated
during the first half of 1996, pending Regions and First National shareholder
approval, regulatory approval and other customary conditions of closing. The
merger is also subject to a 10-day due diligence review by Regions of First
National's operations.
The transaction is expected to be slightly dilutive to Regions' 1996 earnings
per share. Regions and First National management have jointly agreed upon a
plan to substantially reduce First National's operating expenses during 1996.
The effect of the transaction after 1996 is expected to be accretive to
Regions' earnings per share.
J. Stanley Mackin, chairman and chief executive officer of Regions, expressed
his delight with the agreement, "I am thrilled at the prospect of forming a
partnership with the people of First National who share with us the same
philosophies and corporate vision in serving the needs of customers and
communities. As we have looked to expand our franchise throughout the
Southeast, a priority has been to increase our presence in the fast-growing
Georgia market. This affiliation will bring us into vital communities where we
haven't had a presence before. We look forward to a new relationship with
First National employees, stockholders and customers in those areas."
"We are pleased to be able to associate with a fine institution such as
Regions," said Peter D. Miller, president and chief administrative officer of
First National Bancorp. "We believe that our shareholders will be pleased with
the transaction, that our customers will find that Regions will enhance their
banking relationships and that our officers and employees will find Regions to
be considerate of their needs and interests."
Page 79 of 80
<PAGE> 2
October 23, 1995
Page Two
Approximately 15.6 million shares of Regions common stock are expected to be
issued in the transaction. The companies may repurchase up to 1.9 million
First National shares or up to 1.4 million Regions shares, or some combination
of the two.
In connection with the execution of the merger agreement, First National
granted Regions an option to purchase, under certain circumstances, up to 19.9%
of First National's outstanding shares of common stock. First National
currently has 20,529,000 shares of common stock outstanding. The merger is
expected to be a tax-free reorganization for federal income tax purposes.
First National, based in Gainesville and parent company of The First National
Bank of Gainesville, reported total assets of $3.1 billion as of September 30,
1995. It operates 20 separate banks with 63 full-service banking offices in 20
markets in north Georgia and central Florida. In Georgia, First National
enjoys first place market share in eight counties and second or third place in
nine of the other ten counties in which it operates. In central Florida, the
company holds a top three ranking in two of its three markets.
Regions Financial Corporation operates 286 banking offices in Alabama (where
its flagship bank, First Alabama Bank, is the state's largest bank), Florida,
Louisiana and Tennessee. In Georgia, Regions operates Regions Bank in Columbus
and Rome, and offices of Fidelity Federal Savings Bank in Dalton. Previously
announced acquisitions of two Atlanta-area banks, Enterprise National Bank of
Atlanta and Metro Bank, are pending stockholder and regulatory approval. Other
pending acquisitions are the Cartersville, Georgia office of The Prudential
Savings Bank and First Federal Bank of Northwest Georgia. Once all pending
acquisitions are consummated, Regions' total asset size will be more than $17.4
billion with $3.5 billion in Georgia.
Regions Financial Corporation is a multi-bank holding company providing banking
services and bank-related services in the fields of mortgage banking,
credit-related insurance and securities brokerage. Regions' common stock is
traded in the NASDAQ national market system under the symbol RGBK. First
National Bancorp's common stock is also traded in the NASDAQ national market
system under the symbol FBAC.
For additional information contact:
At First National:
Ronda S. Rich, Vice President and Director of Corporate Communications
404/503-2306
At Regions:
Robert P. Houston, Executive Vice President and Comptroller 334/832-8494
Ronald C. Jackson, Director of Investor Relations 334/832-8493
Page 80 of 80
