As filed with the Securities and Exchange Commission on August 1, 1995
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
First Commerce Corporation
(Exact name of registrant as specified in its charter)
Louisiana 6711 72-0701203
(State or other (Primary Standard Industrial (I.R.S.
jurisdiction of incorporation Classification Code Number) Identification
or organization) Number)
210 Baronne Street
New Orleans, Louisiana 70112
(504) 561-1371
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
Copy to: THOMAS L. CALLICUTT, Jr. Copy to:
ANTHONY J. CORRERO,III 925 Common St., 7th Floor BRIAN W.SMITH
Correro, Fishman & New Orleans, Louisiana 70112 Mayer, Brown & Platt
Casteix, L.L.P. (504) 582-2913 2000 Pennsylvania
47th Floor (Name, address, including zip code Avenue, N.W.
201 St. Charles Avenue number, including area code, of Washington, D.C.
New Orleans, Louisiana agent for service) 20006-1882
70170-4700
____________________________
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
Upon the date of the shareholders' meeting of Central Corporation
described in this registration statement.
If the securities being registered on this Form are being offered
in connection with the formation of a holding company and there is
compliance with General Instruction G, please check the following box. ___
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===================================================================================================
Proposed Proposed
Maximum Maximum
Title of Each Number of Shares Offering Aggregate
Class of Securities to be Price Per Offering Amount of
to be Registered Registered Share<F1> Price<F1> Registration Fee<F1>
___________________________________________________________________________________________________
<S> <C> <C> <C> <C>
Common Stock
$5 par value . . . . 6,792,453 $18.57 $126,135,852 $43,495.14
===================================================================================================
<FN>
<F1> Calculated in accordance with Rule 457(f)(2), based on the aggregate book value as of
June 30, 1995 of the shares of common stock of Central Corporation.
</FN>
</TABLE>
______________________________
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this
registration statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until this registration
statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE>
FIRST COMMERCE CORPORATION
CROSS REFERENCE SHEET
Item of Form S-4 Location in Prospectus
________________ ______________________
A. Information About the Transaction
1. Forepart of Registration Statement and Cover Page
Outside Front Cover Page of Prospectus
2. Inside Front and Outside Back Cover Inside Cover;
Pages of Prospectus Table of Contents
3. Risk Factors, Ratio of Earnings to Fixed Summary
Charges and Other Information
4. Terms of the Transaction Summary; The Plan;
The Option Agreement
5. Pro Forma Financial Information Pro Forma Condensed
Combined Financial Statements
(Unaudited)
6. Material Contracts with the Company Background of and Reasons for
Being Acquired the Plan
7. Additional Information Required for *
Reoffering by Persons and Parties
Deemed to be Underwriters
8. Interests of Named Experts and Counsel *
9. Disclosure of Commission Position on *
Indemnification for Securities Act Liabilities
B. Information About the Registrant
10. Information with Respect to S-3 Registrants Information About FCC
11. Incorporation of Certain Information by Information About FCC
Reference
12. Information with Respect to S-2 or S-3 *
Registrants
13. Incorporation of Certain Information by *
Reference
14. Information with Respect to Registrants *
Other than S-2 or S-3 Registrants
<PAGE>
C. Information About the Company Being Acquired
15. Information with Respect to S-3 Companies *
16. Information with Respect to S-2 or S-3 Companies Information About
Central
17. Information with Respect to Companies Other than *
S-2 or S-3 Companies
D. Voting and Management Information
18. Information if Proxies, Consents or
Authorizations are to be Solicited
(1) Date, Time and Place Information Introductory Statement
-General
(2) Revocability of Proxy Introductory Statement
-Solicitation, Voting
and Revocation of Proxies
(3) Dissenters' Rights of Appraisal Central Shareholders'
Dissenters' Rights
(4) Persons Making the Solicitation Introductory Statement
-General
(5) Interests of Certain Persons in Summary: The Plan -
Matters to be Acted upon; Interests of Certain
Voting Securities and Principal Persons; Information
Holders Thereof About Central
(6) Vote Required for Approval Information Statement-
Shares entitled to Vote;
Quorum; Vote Required
(7) Directors and Executive Officers; Information About
Executive Compensation; Certain Central; Information
Relationships and Related Transactions About FCC
19. Information if Proxies, Consents or *
Authorizations are not to be Solicited or
in an exchange Offer
_________________
* Not applicable.
<PAGE>
CENTRAL CORPORATION
300 DeSiard Street
Monroe, LA 7l201
, 1995
Dear Shareholder:
You are invited to attend a special meeting of shareholders
of Central Corporation ("Central") to be held on
, 1995 at .m., local time, at Central's main
office, 300 DeSiard Street, Monroe, Louisiana.
At the meeting you will be asked to approve an Agreement and
Plan of Merger (the "Plan") pursuant to which, among other
things, Central will merge into First Commerce Corporation
("FCC"), Central Bank, the wholly owned bank subsidiary of
Central (the "Bank"), will become a wholly owned subsidiary of
FCC, and each outstanding share of common stock of Central will
be converted into 1.67 shares of FCC common stock, subject to
possible adjustment as more fully described in the attached Joint
Proxy Statement and Prospectus. You are urged to read carefully
the Joint Proxy Statement and Prospectus in its entirety for a
more complete description of the terms of the Plan.
The Plan has been approved by your Board of Directors as in
the best interests of shareholders. As a result of the proposed
merger, you, as a new shareholder of FCC, will own common stock
in a bank holding company whose stock is publicly traded on the
Nasdaq National Market. Through its affiliation with FCC, the
Bank will be better able to offer a broad range of banking
services in our market area and to compete more effectively with
bank holding companies and other financial institutions in the
changing economic and legal environment facing all financial
institutions. The Board also believes that the Plan provides
fair financial terms to Central's shareholders.
The Board of Directors recommends that you vote FOR the Plan
and urges you to execute the enclosed proxy and return it
promptly in the accompanying envelope.
Very truly yours,
________________________________
James A. Altick
President and Chief Executive Officer
<PAGE>
CENTRAL CORPORATION
300 DeSiard Street
Monroe, Louisiana 71201
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
Monroe, Louisiana
, 1995
A special meeting of shareholders of Central Corporation
("Central") will be held on , , 1995 at
.m., local time, at Central's main office, 300 DeSiard Street,
Monroe, Louisiana, to vote upon the following matters:
1. A proposal to approve an Agreement and Plan of
Merger (the "Plan") pursuant to which, among other things,
Central will merge into First Commerce Corporation ("FCC"), and
each outstanding share of common stock of Central will be
converted into 1.67 shares of FCC common stock, subject to
possible adjustment as determined in accordance with the terms of
the Plan.
2. Such other matters as may properly come before the
meeting or any adjournments thereof.
Only shareholders of record at the close of business on
, 1995, are entitled to notice of and to vote at the meeting.
Dissenting shareholders who comply with the procedural
requirements of the Business Corporation Law of Louisiana will be
entitled to receive payment of the fair cash value of their
shares if the Plan is effected upon approval by less than eighty
percent of the total voting power of Central.
Your vote is important regardless of the number of shares
you own. Whether or not you plan to attend the meeting, please
mark, date and sign the enclosed proxy and return it promptly in
the enclosed stamped envelope. Your proxy may be revoked by
appropriate notice to Central's Secretary at any time prior to
the voting thereof.
BY ORDER OF THE BOARD OF DIRECTORS
Thomas J. Nicholson, Secretary
<PAGE>
FIRST COMMERCE CORPORATION
P. O. Box 60279
New Orleans, Louisiana 70160
, 1995
Dear Shareholder:
You are invited to attend a special meeting of shareholders
of First Commerce Corporation ("FCC") to be held on
, 1995 at .m., local time, at
_____________________________________, New Orleans, Louisiana.
At the meeting you will be asked to approve an Agreement and
Plan of Merger (the "Plan") pursuant to which, among other
things, Central Corporation ("Central") will merge into FCC,
Central Bank, the wholly owned bank subsidiary of Central, will
become a wholly owned subsidiary of FCC, and each outstanding
share of common stock of Central will be converted into 1.67
shares of FCC common stock, subject to possible adjustment as
more fully described in the attached Joint Proxy Statement and
Prospectus. You are urged to read carefully the Joint Proxy
Statement and Prospectus in its entirety for a more complete
description of the terms of the Plan.
The Plan has been approved by your Board of Directors as in
the best interests of shareholders. As a result of the proposed
merger, FCC will become a significant presence in an important
market area in Louisiana. The Board also believes that the
consideration to be paid to the shareholders of Central is fair
to FCC's shareholders.
The Board of Directors recommends that you vote FOR the Plan
and urges you to execute the enclosed proxy and return it
promptly in the accompanying envelope.
Very truly yours,
_________________________________________
Ian Arnof
President and Chief Executive Officer
<PAGE>
FIRST COMMERCE CORPORATION
P. O. Box 60279
New Orleans, Louisiana 70160
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
New Orleans, Louisiana
, 1995
A special meeting of shareholders of First Commerce
Corporation ("FCC") will be held on , ,
1995 at .m., local time, at ,
New Orleans, Louisiana, to vote upon the following matters:
1. A proposal to approve an Agreement and Plan of
Merger (the "Plan") pursuant to which, among other things,
Central Corporation ("Central") will merge into FCC and each
outstanding share of common stock of Central will be converted
into 1.67 shares of FCC common stock, subject to possible
adjustment as determined in accordance with the terms of the
Plan.
2. Such other matters as may properly come before the
meeting or any adjournments thereof.
Only shareholders of common stock and preferred stock of FCC
of record at the close of business on , 1995, are entitled
to notice of the meeting, and only shareholders of common stock
of FCC of record on such date are entitled to vote at the
meeting.
Your vote is important regardless of the number of shares
you own. Whether or not you plan to attend the meeting, please
mark, date and sign the enclosed proxy and return it promptly in
the enclosed stamped envelope. Your proxy may be revoked by
appropriate notice to FCC's Secretary at any time prior to the
voting thereof.
BY ORDER OF THE BOARD OF DIRECTORS
Michael A. Flick, Secretary
<PAGE>
FIRST COMMERCE CORPORATION
AND
CENTRAL CORPORATION
JOINT PROXY STATEMENT FOR SPECIAL MEETINGS
OF SHAREHOLDERS
TO BE HELD ____________________, 1995
FIRST COMMERCE CORPORATION
PROSPECTUS
Common Stock, $5.00 par value
First Commerce Corporation ("FCC") has filed a Registration
Statement pursuant to the Securities Act of 1933 covering up to
6,792,453 shares of common stock of FCC ("FCC Common Stock")
which may be issued in connection with a proposed merger of
Central Corporation ("Central") into FCC. This document
constitutes a Joint Proxy Statement of FCC and Central in
connection with the transactions described herein and a
Prospectus of FCC with respect to the shares of FCC Common Stock
to be issued if the merger is consummated.
THE SECURITIES TO BE ISSUED IN CONNECTION WITH THE PROPOSED
MERGER HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS JOINT PROXY STATEMENT AND PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
No person has been authorized to give any information or to
make any representations other than those contained herein, and,
if given or made, such information or representations must not be
relied upon as having been authorized by FCC or Central. This
Joint Proxy Statement and Prospectus shall not constitute an
offer by FCC to sell or the solicitation of an offer by FCC to
buy nor shall there be any sale of the securities offered hereby
in any state in which, or to any person to whom, it would be
unlawful prior to registration or qualification under the laws of
such state for FCC to make such an offer or solicitation.
Neither the delivery of this Joint Proxy Statement and Prospectus
nor any sale made hereunder shall, under any circumstances,
create any implication that there has been no change in the
affairs of FCC or Central since the date hereof.
All information herein concerning FCC has been furnished by
FCC and all information herein concerning Central has been
furnished by Central. FCC has represented and warranted to
Central, and Central has represented and warranted to FCC, that
the particular information so furnished is true and complete.
This Joint Proxy Statement and Prospectus was mailed to
shareholders of Central and FCC on approximately ____________,
1995.
This Joint Proxy Statement and Prospectus is dated
, 1995.
<PAGE>
AVAILABLE INFORMATION
FCC and Central are subject to the informational
requirements of the Securities Exchange Act of 1934 and in
accordance therewith are required to file reports and other
information with the Securities and Exchange Commission (the
"Commission"). Such reports, together with proxy statements and
other information filed by FCC and Central can be inspected at,
and copies thereof may be obtained at prescribed rates from, the
public reference facilities maintained by the Commission at Room
1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and from
the Commission's Regional Offices at 7 World Trade Center, 13th
Floor, New York, New York 10048, and Northwestern Atrium Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661.
FCC has filed with the Commission a Registration Statement
on Form S-4 ("Registration Statement") under the Securities Act
of 1933 with respect to the common stock offered hereby. This
Joint Proxy Statement and Prospectus does not contain all of the
information set forth in the Registration Statement or the
exhibits thereto. Statements contained herein as to the contents
of any documents are necessarily summaries of the documents, and
each statement is qualified in its entirety by reference to the
copy of the applicable document filed with the Commission. For
further information with respect to FCC and the transactions
contemplated hereby, reference is made to the Registration
Statement, including the exhibits thereto.
As more fully set forth under "Information about FCC" and
"Information about Central" elsewhere herein, certain information
with respect to FCC and Central has been incorporated by
reference into this Joint Proxy Statement and Prospectus. FCC
hereby undertakes to provide without charge to each person to
whom a copy of this Joint Proxy Statement and Prospectus has been
delivered, upon the written or oral request of such person, a
copy of any or all of the information or documents which have
been incorporated by reference herein, other than exhibits to
such documents. Requests for such copies should be directed to
Mr. Thomas L. Callicutt, Jr., Senior Vice President and
Controller, First Commerce Corporation, P. O. Box 60279, New
Orleans, Louisiana 70160, or 925 Common Street, 7th Floor, New
Orleans, Louisiana 70112, telephone (504) 582-2913. In order to
ensure timely delivery of the documents, any request should be
made by , 1995.
_________________
<PAGE>
TABLE OF CONTENTS
Page
SUMMARY
INTRODUCTORY STATEMENT
General
Purpose of the Special Meetings
Shares Entitled to Vote; Quorum; Vote Required
Solicitation, Voting and Revocation of Proxies
THE PLAN
General
Background of and Reasons for the Plan
General
Central
FCC
Board Recommendations
Opinions of Investment Bankers .
Opinion to Central
Opinion to FCC
Conversion of Central Common Stock
Effective Date
Exchange of Certificates
Conditions
Conduct of Business Prior to the Effective Date
Waiver, Amendment and Termination
Interests of Certain Persons
Indemnification and Insurance
Management
Directors' and Executive Officers' Commitments
Employee Benefits
Expenses
Status Under Federal Securities Laws;
Certain Restrictions on Resales
Accounting Treatment
THE OPTION AGREEMENT
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
CENTRAL SHAREHOLDERS' DISSENTERS' RIGHTS
INFORMATION ABOUT CENTRAL
INFORMATION ABOUT FCC
COMPARATIVE RIGHTS OF SHAREHOLDERS
General
Preferred Stock
Vote Required for Corporate Action
Directors
Business Combinations
LEGAL MATTERS
EXPERTS
OTHER MATTERS
PRO FORMA CONDENSED COMBINED
FINANCIAL STATEMENTS (UNAUDITED)
Appendix A - Fairness Opinion of The Robinson-Humphrey Company,
Inc. .
Appendix B - Fairness Opinion of Keefe, Bruyette & Woods, Inc.
Appendix C - Agreement and Plan of Merger
Appendix D - Stock Option Agreement
<PAGE>
SUMMARY
The following summary is necessarily incomplete and is
qualified in its entirety by the more detailed information
appearing elsewhere herein, the accompanying documents, the
appendices hereto and the documents incorporated herein by
reference. Shareholders are urged to read carefully all such
material.
The Companies
First Commerce Corporation, a Louisiana corporation ("FCC"),
is a multi-bank holding company with five wholly owned bank
subsidiaries in New Orleans, Baton Rouge, Alexandria, Lake
Charles and Lafayette, Louisiana. FCC's principal executive
offices are at 210 Baronne Street, New Orleans, Louisiana 70112,
and its telephone number is (504) 561-1371. See "Information
About FCC."
Central Corporation, a Louisiana corporation ("Central"), is
a one bank holding company that owns all of the outstanding stock
of Central Bank (the "Bank"). Central's principal executive
offices are at 300 DeSiard Street, Monroe, Louisiana 71201, and
its telephone number is (318) 362-8500. See "Information About
Central."
Unless the context otherwise requires, FCC and its
subsidiaries are referred to collectively herein as "FCC", and
Central and the Bank are referred to collectively as "Central".
FCC and Central are collectively referred to as the "Companies."
The Special Meetings
Date; Voting. A special meeting of shareholders of Central
will be held on ____________, 1995 at the time and place set
forth in the accompanying Notice of Special Meeting of
Shareholders of Central (the "Central Meeting"). Only record
holders of the common stock of Central ("Central Common Stock")
on ____________, 1995 are entitled to notice of and to vote at
the Central Meeting. On that date there were 4,066,731 shares of
Central Common Stock outstanding, each of which is entitled to
one vote on each matter properly to come before the Central
Meeting.
A special meeting of shareholders of FCC will be held on
___________, 1995 at the time and place set forth in the
accompanying Notice of Special Meeting of Shareholders of FCC
(the "FCC Meeting"). Only record holders of the common stock of
FCC ("FCC Common Stock") and of the preferred stock of FCC on
______________, 1995 are entitled to notice of the FCC Meeting,
and only record holders of FCC Common Stock on such date are
entitled to vote at the FCC Meeting. On that date there were
_______ shares of FCC Common Stock outstanding, each of which is
entitled to one vote on each matter properly to come before the
FCC Meeting.
The Central Meeting and the FCC Meeting are hereafter
collectively referred to as the "Meetings".
<PAGE>
Purpose. The purpose of the Meetings is to vote upon
proposals to approve an Agreement and Plan of Merger (the
"Plan"), pursuant to which, among other things, Central will
merge into FCC (the "Merger") and shareholders of Central will
receive FCC Common Stock as described below under "Conversion of
Central Common Stock." See "Introductory Statement - Purpose of
the Meetings."
Vote Required. The Plan must be approved by the affirmative
vote of holders of at least two-thirds of the Central Common
Stock present at the Central Meeting and holders of at least two-
thirds of the FCC Common Stock present at the FCC Meeting.
Directors and executive officers of Central beneficially owning
an aggregate of ______ shares, or approximately ____%, of the
outstanding Central Common Stock have agreed, subject to certain
conditions, to vote in favor of the Plan. Directors and
executive officers of FCC owning an aggregate of ____ shares, or
approximately ___%, of the outstanding FCC Common Stock have
advised FCC that they intend to vote in favor of the Plan. See
"Introductory Statement - Shares Entitled to Vote; Quorum; Vote
Required."
The Plan
Board Recommendations. The financial and other terms of the
Plan were arrived at through arm's length negotiations between
representatives of the Companies. The Boards of Directors of
Central and FCC believe that the Plan is in the best interests of
Central and FCC, respectively, and their respective shareholders
and each has, by unanimous vote, approved the Plan and
recommended that its shareholders vote FOR approval of the Plan.
See "The Plan - Background of and Reasons for the Plan" and
"Interests of Certain Persons".
Opinions of Investment Bankers. The Robinson-Humphrey
Company, Inc. has delivered its written opinion to Central to the
effect that, as of the date the Plan was entered into, and based
on and subject to the assumptions made, the factors considered,
the review undertaken and the limitations stated, the exchange
ratio of FCC Common Stock for Central Common Stock ("Exchange
Ratio") is fair to Central and its shareholders from a financial
point of view. Keefe Bruyette & Woods, Inc. has delivered its
written opinion to FCC to the effect that, as of the date the
Plan was entered into, and based on and subject to the
assumptions made, the factors considered, the review undertaken
and the limitations stated, the Exchange Ratio is fair to the
shareholders of FCC from a financial point of view. The opinions
are directed only to the fairness of the Exchange Ratio from a
financial point of view and do not constitute a recommendation to
any shareholder on how to vote at the Meetings. See "The Plan -
Opinions of Investment Bankers."
Conversion of Central Common Stock. On the date the Plan
becomes effective (the "Effective Date"), each outstanding share
of Central Common Stock will be converted into 1.67 shares of FCC
Common Stock, subject to adjustment in the unlikely event the
total expenses of Central in connection with the Plan (subject to
certain exceptions) exceed $1,750,000. To the extent that
expenses exceed this amount, a formula will be applied to reduce
the exchange ratio. See "The Plan - Conversion of Central Common
Stock."
<PAGE>
In lieu of issuing any fractional share of FCC Common Stock,
each shareholder of Central who would otherwise be entitled
thereto will receive a cash payment (without interest) equal to
such fractional share multiplied by the Market Value of a share
of FCC Common Stock, as defined in the Plan. See "The Plan -
Conversion of Central Common Stock."
Exchange of Certificates. Promptly after consummation of
the Plan, a letter of transmittal, together with instructions for
the exchange of Central Common Stock certificates for FCC Common
Stock certificates will be mailed to each shareholder of record
of Central on the Effective Date. Shareholders should not send
in their stock certificates until they have received the letter
of transmittal. FCC Common Stock certificates and payment for
any fractional shares will be sent as promptly as practicable
after receipt of a properly completed letter of transmittal
accompanied by the appropriate Central Common Stock certificates.
Central shareholders who cannot locate their certificates should
contact promptly Diana Fontana or Edward F. Wheland, II, Central
Corporation, 300 DeSiard St., Monroe, Louisiana 71201. See "The
Plan - Exchange of Certificates."
Conditions. In addition to approval by the shareholders of
the Companies, consummation of the Plan is conditioned upon,
among other things, (i) receipt of required regulatory approval,
(ii) the Merger being accounted for as a pooling-of-interests,
(iii) receipt by the Companies of an opinion from Arthur Andersen
LLP as to the qualification of the Merger as a tax-free
reorganization under applicable law, and (iv) certain other
conditions customary for agreements of this sort. The Companies
intend to consummate the Plan as soon as practicable after all of
the conditions have been met or waived. FCC has filed an
application seeking the required regulatory approval and expects
to receive it by October, 1995; however, there can be no
assurance that the approval will be obtained, or that the other
conditions to consummation of the Plan will be satisfied by such
date or at all. See "The Plan - Conditions."
Waiver, Amendment and Termination. Each of the Companies
may waive any of the conditions to its obligation to consummate
the Plan other than shareholder and regulatory approvals. The
Plan may also be amended at any time before or after shareholder
approval by mutual agreement, but no amendment made after such
shareholder approval may alter the amount or type of shares into
which Central Common Stock will be converted or alter the Plan in
a manner that would adversely affect any shareholder of the
Companies. The Plan may be terminated at any time before the
Effective Date by mutual consent or by either party (i) if the
other party breaches any representation, warranty or covenant in
the Plan which cannot be cured within 30 days after written
notice of such breach, (ii) if by June 30, 1996 the Merger has
not occurred, (iii) if any person or group acquires more than 25%
of the outstanding shares of common stock of the other party, or
(iv) on the basis of certain other grounds specified in the Plan.
See "The Plan - Waiver, Amendment and Termination."
Certain Federal Income Tax Consequences. Consummation of
the Plan is conditioned upon receipt by the Companies of an
opinion from Arthur Andersen LLP to the effect that, among other
things, each Central shareholder who receives FCC Common Stock
pursuant to the Plan will not recognize gain or loss except with
respect to the receipt of cash in lieu of fractional shares of
FCC Common Stock or pursuant to the exercise of dissenters'
rights. Because of the complexity of the tax laws, each
shareholder should consult his tax advisor concerning the
applicable federal, state and local income tax consequences of
the Merger. See "Certain Federal Income Tax Consequences."
<PAGE>
Dissenters' Rights. Under certain conditions, and by
complying with the specific procedures required by statute and
described herein, shareholders of Central will have the right to
dissent from the Plan, in which event, if the Plan is
consummated, they may be entitled to receive in cash the fair
value of their shares of Central Common Stock. See "Central
Shareholders' Dissenters' Rights." Shareholders of FCC are not
entitled to dissenters' rights.
Interests of Certain Persons.
Indemnification and Insurance. FCC has agreed to provide
and to cause the Bank to continue to provide for a period of 10
years after the Effective Date rights of indemnification to
officers and directors of Central or the Bank against certain
expenses and liability arising out of their service. FCC has
also agreed to provide, under certain conditions, officers and
directors liability insurance to Central's and the Bank's
directors and officers, and to indemnify Central's and the Bank's
officers, directors and controlling persons against expenses and
liabilities arising out of alleged misstatements or omissions in
this Joint Proxy Statement and Prospectus or the Registration
Statement of which it is a part. See "The Plan - Interests of
Certain Persons - Indemnification and Insurance."
Management; Employment Contracts. On the Effective Date,
Messrs. Robert C. Cudd, III, Hugh G. McDonald, Jr., Saul A. Mintz
and Tom H. Scott, who are members of Central's Board of
Directors, will become directors of FCC, and James A. Altick,
President and Chief Executive Officer and a director of Central
and the Bank, will become an executive officer of FCC and retain
his position at the Bank. In addition, Mr. Altick and four other
executive officers of Central will enter into employment
contracts with FCC and the Bank, and certain officers of the Bank,
including such executive officers, will receive stock options and
stock appreciation rights covering in the aggregate up to 200,000
shares of FCC Common Stock. The Board of Directors and
management of the Bank will not change as a result of the Merger,
except that Howard C. Gaines, an executive officer of FCC, will
become a director of the Bank. See "The Plan - Interests of
Certain Persons - Management" and "- Employment Contracts."
Directors' and Executive Officers' Commitments. Each
director and executive officer of Central has agreed, among other
things, to vote as a shareholder in favor of the Plan and against
any other proposal that would prevent the Merger, and that for
two years after the Effective Date he or she will not compete
with the Bank. The agreements to vote were entered into solely
in such persons' individual capacities as beneficial owners of
shares of Central and not in their capacities as directors or
officers, and the agreements are terminable if the fiduciary
duties of those individuals as a directors or officers so
require. See "The Plan - Interests of Certain Persons -
Directors' and Executive Officers' Commitments."
Employee Benefits. Subject to certain limitations, FCC will
provide employees of Central or the Bank who become employees of
FCC or remain employees of the Bank the same employee benefits as
are provided by FCC to its employees. FCC has also agreed to
provide certain additional benefits under plans of Central and
the Bank. See "The Plan - Interests of Certain Persons -
Employee Benefits."
<PAGE>
Option Agreement.
Central has granted FCC an option to purchase newly issued
shares equal to 19.9% of the currently outstanding shares of
Central Common Stock with an exercise price of $30 per share,
exercisable only upon the occurrence of certain events. At the
request of FCC, under limited circumstances Central will
repurchase the option and any shares acquired upon exercise for a
formula price. See "The Option Agreement."
Selected Financial Data of Central
The following selected financial data with respect to each
of the years in the five-year period ended December 31, 1994 have
been derived from the consolidated financial statements of
Central and should be read in conjunction with Central's 1994
Report on Form 10-K and Central's Quarterly Report on Form 10-Q
for the quarter ended March 31, 1995, which have been
incorporated by reference in this Joint Proxy Statement and
Prospectus.
(In thousands of dollars, except per share data)
Years Ended December 31
___________________________________________________
1994 1993 1992 1991 1990
Average Balance
Sheet Data:
Total assets $ 778,333 $ 741,044 $ 750,812 $ 708,566 $ 621,223
Earning assets 725,631 689,341 698,387 654,749 656,193
Loans and leases* 555,931 502,699 463,851 420,635 383,471
Securities 113,406 154,343 206,142 206,667 156,879
Deposits 696,238 664,023 673,220 635,854 551,537
Long-term debt 693 1,067 5,322 4,798 4,664
Stockholders' equity 65,786 57,498 50,509 45,209 41,910
Income Statement Data:
Total interest income $ 56,314 $ 52,889 $ 56,309 $ 62,448 $ 59,698
Net interest income 35,230 32,805 30,330 26,739 23,189
Provision for loan losses 1,025 3,080 4,185 4,500 4,175
Other income (exclusive of
securities transactions) 16,132 15,773 14,498 12,736 11,746
Operating expense 34,531 32,404 30,270 28,282 26,362
Net income 10,527 9,025 7,052 5,071 3,714
Per Share Data:
Fully diluted earnings
per share $ 2.59 $ 2.22 $ 1.73 $ 1.25 $ .91
Primary earnings
per share 2.59 2.22 1.73 1.25 .91
Cash dividends .38 .31 .27 .21 .21
Book value (period-end) 17.24 15.14 13.19 11.72 10.69
High stock price 24.00 16.67 9.25 8.00 8.18
Low stock price 14.67 8.89 7.55 7.47 7.29
KEY RATIOS:
Net income as a percent of
average assets 1.35% 1.22% .94% .72% .60%
Net income as a percent of
average total equity 16.00% 15.70% 13.96% 11.22% 8.86%
Net income as a percent of
average common equity 16.00% 15.70% 13.96% 11.22% 8.86%
Net interest margin 4.92% 4.84% 4.44% 4.20% 4.27%
Allowance for loan losses
to loans and leases* 1.66% 1.80% 1.75% 1.64% 1.65%
Leverage ratio 8.49% 7.79% 6.84% 6.09% 6.25%
Dividend payout ratio 14.68% 13.82% 15.37% 17.12% 23.37%
___________________________
*Net of unearned income.
___________________________________
Selected Financial Data of FCC
The following selected financial data with respect to each
of the years in the five-year period ended December 31, 1994 have
been derived from the consolidated financial statements of FCC
and should be read in conjunction with FCC's 1994 Report on Form
10-K, FCC's Report on Form 8-K dated May 5, 1995, FCC's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1995, and
FCC's Report on Form 8-K dated May 31, 1995, which have been
incorporated by reference in this Joint Proxy Statement and
Prospectus. Selected financial data for the years 1992 through
1994 have been restated to reflect the merger, effective February
17, 1995, of First Bancshares, Inc. into FCC, which was accounted
for as a pooling-of-interests. Selected financial data for the
years 1990 and 1991 would not be materially different if
restated.
(In thousands of dollars, except per share data)
Years Ended December 31
____________________________________________________________
1994 1993 1992 1991 1990
____________ ____________ ____________ __________ __________
(Restated) (Restated) (Restated)
Average Balance
Sheet Data:
Total assets $6,695,681 $6,568,960 $5,969,877 $4,671,478 $4,482,019
Earning assets 6,148,715 6,028,927 5,486,604 4,257,388 4,035,104
Loans and leases* 2,975,045 2,555,754 2,329,899 2,323,018 2,402,541
Securities 3,094,496 3,166,901 2,786,965 1,515,299 1,290,487
Deposits 5,438,314 5,391,832 5,164,378 3,931,612 3,552,578
Long-term debt 89,266 98,244 100,816 101,246 103,033
Stockholders' equity 521,668 486,256 366,786 235,385 239,011
Income Statement Data:
Total interest
income $ 427,790 $ 413,973 $ 419,196 $ 393,922 $ 408,996
Net interest income 271,268 265,620 249,165 191,862 168,021
Provision for loan
losses (11,443) (5,804) 22,720 43,734 47,425
Other income (exclusive
of securities
transactions) 113,049 105,387 98,338 83,419 73,213
Operating expense 253,659 231,665 213,515 185,963 165,325
Net income 66,762 101,202 76,155 34,029 22,038
Per Share Data:
Fully diluted earnings
per share $ 2.10 $ 3.11 $ 2.58 $ 1.56 $ .94
Primary earnings
per share 2.15 3.36 2.73 1.56 .94
Cash dividends 1.10 .85 .70 .64 .64
Book value (period-end) 14.95 16.31 13.59 11.38 10.45
High stock price 30.00 32.20 27.86 18.14 12.54
Low stock price 21.75 23.90 16.94 7.20 6.66
KEY RATIOS:
Net income as a percent of
average assets 1.00% 1.54% 1.28% .73% .49%
Net income as a percent of
average total equity 12.80% 20.81% 20.76% 14.46% 9.22%
Net income as a percent of
average common equity 14.46% 23.74% 24.53% 14.46% 9.11%
Net interest margin 4.50% 4.46% 4.63% 4.69% 4.37%
Allowance for loan losses
to loans and leases* 1.65% 2.49% 3.37% 3.11% 2.44%
Leverage ratio 8.07% 7.61% 6.72% 4.87% 4.66%
Dividend payout ratio 51.16% 25.30% 25.64% 41.03% 68.09%
___________________________
*Net of unearned income.
__________________________________
Comparative Per Share Data (Unaudited)
The following table presents certain information for FCC and Central on an
historical, unaudited pro forma combined and unaudited pro forma equivalent
basis. The unaudited pro forma combined information is based upon the
historical financial condition and results of operations of the Companies and
adjustments directly attributable to the Plan based on estimates derived from
information currently available. They do not purport to be indicative of the
results that would actually have been obtained if the Plan had been consummated
on the date or for the periods indicated below, or the results that may be
obtained in the future.
Historical
_____________________ Pro Forma Central
FCC Central Combined <F1><F2> Equivalent
_________ ___________ __________________ ___________
Primary earnings per
common share <F3>:
Years ended:
December 31, 1994 $ 2.15 $ 2.59 $ 2.04 $ 3.41
December 31, 1993 3.36 2.22 2.97 4.96
December 31, 1992 2.73 1.73 2.38 3.97
Three months ended
March 31, 1995 $ .33 $ .73 $ .35 $ .58
Dividends declared per
common share<F4>:
Years ended:
December 31, 1994 $ 1.10 $ .38 $ .93 $ 1.84
December 31, 1993 .85 .31 .72 1.42
December 31, 1992 .70 .27 .59 1.17
Three months ended
March 31, 1995 $ .30 $ .10 $ .25 $ .50
Book value per
common share<F5>:
As of March 31, 1995 $16.87 $17.90 $15.70 $26.22
As of December 31, 1994 $14.95 $17.24 $14.07 $23.50
____________________________
<F1> In accordance with generally accepted accounting principles, FCC expects
to account for the Merger using the pooling-of-interests method.
<F2> To calculate pro forma combined per share information, it has been assumed
that the number of outstanding shares of FCC common stock includes shares
to be issued by FCC upon consummation of Merger. Under the terms of the
Plan, the shareholders of Central will receive 1.67 (the "Conversion
Rate") shares, subject to reduction in certain limited circumstances not
expected to occur, of FCC common stock for each share of Central common
stock outstanding. For purposes of this table, it has been assumed that
the number of shares issued is 6,791,441 based on the number of shares of
Central common stock outstanding as of March 31, 1995.
<F3> Pro forma primary earnings per common share was calculated by dividing the
combined net income, adjusted for preferred stock dividends, of FCC and
Central during the periods presented by the weighted average outstanding
shares of FCC common stock during such periods, after adjustment for
shares of FCC common stock assumed to be issued in connection with the
Merger. The Central equivalent data presented is the product of the
pro forma combined per share information multiplied by the Conversion
Rate.
<F4> Pro forma dividends were calculated by multiplying FCC's and Central's
dividend rates by the applicable weighted average outstanding shares of
FCC and Central common stock. Pro forma dividends per common share were
then calculated by dividing pro forma total dividends by the weighted
average outstanding shares of FCC common stock during such periods, after
adjustment for shares of FCC common stock assumed to be issued in
connection with the Merger. The Central equivalent data presented was
calculated by multiplying the historical per share FCC common stock
dividend by the Conversion Rate.
<F5> Pro forma combined book value per common share was calculated by dividing
the total of FCC's and Central's common stockholders' equity by the total
number of shares of FCC common stock outstanding after adjustment for
unearned shares of FCC restricted stock and for shares of FCC common
stock assumed to be issued in connection with the Merger. The Central
equivalent data presented is the product of the pro forma combined per
share information multiplied by the Conversion Rate.
___________________________________
In addition to the Plan, FCC has two other merger transactions pending.
There can be no assurance that any or all of these transactions will be
completed. Pro forma information giving effect to all of these transactions is
included beginning at page F-1 of this Joint Proxy Statement and Prospectus.
Recent Market Prices
On May 15, 1995, the day before the public announcement that the Companies
entered into the Plan, the closing sales price for a share of FCC Common Stock,
as quoted on the NASDAQ National Market, was $28.00. On _______________,1995,
the closing sales price for a share of FCC Common Stock was $______. No
assurance can be given as to the sales price of a share of FCC Common Stock on
the Effective Date.
Central Common Stock is not traded on any exchange, and there is no
established public trading market for the stock. There is, however, very
limited and sporadic trading of Central Common Stock in Central's local area.
Based on the limited information available to management, during the 60 days
prior to the public announcement that the Companies entered into the Plan sales
of 124 shares, 16 shares and 2,497 shares were effected at prices per share of
$24, $24.125 and $25, respectively. There can be no assurance that such sales
represent all sales effected during the period or that they were effected on an
arms-length basis.
<PAGE>
INTRODUCTORY STATEMENT
General
This Joint Proxy Statement and Prospectus is furnished to
the shareholders of Central Corporation ("Central") and First
Commerce Corporation ("FCC") in connection with the solicitation of
proxies on behalf of their respective Boards of Directors for use at
special meetings of shareholders of Central (the "Central Meeting")
and FCC (the "FCC Meeting") to be held on the date and at the time
and place specified in the accompanying notices.
Central and FCC (collectively, the "Companies") have each
supplied all information included herein with respect to it and its
consolidated subsidiaries. Unless the context otherwise requires,
Central and Central Bank, its wholly owned bank subsidiary (the
"Bank"), are collectively referred to herein as "Central," FCC and
its subsidiaries are collectively referred to herein as "FCC," and
the Central Meeting and the FCC Meeting are collectively referred to
as the "Meetings."
Purpose of the Special Meetings
The purpose of the Meetings is to consider and vote upon
proposals to approve an Agreement and Plan of Merger between FCC and
Central (the "Plan"), pursuant to which, among other things, Central
will merge into FCC (the "Merger"), the Bank will as a result become
a wholly owned banking subsidiary of FCC, and each outstanding share
of common stock of Central ("Central Common Stock") will be
converted into 1.67 shares of common stock of FCC ("FCC Common
Stock"), subject to possible adjustment as described under "The Plan
- Conversion of Central Common Stock."
Shares Entitled to Vote; Quorum; Vote Required
Only holders of record of Central Common Stock at the close
of business on ____________, 1995 are entitled to notice of and to
vote at the Central Meeting. On that date, there were 4,066,731
shares of Central Common Stock outstanding, each of which is
entitled to one vote on each matter properly brought before the
Central Meeting. Only holders of record of FCC Common Stock and FCC
preferred stock at the close of business on _____________, 1995 are
entitled to notice of the FCC Meeting, and only holders of FCC
Common Stock on that date are entitled to vote at the FCC Meeting.
On that date, there were ________ shares of FCC Common Stock
outstanding, each of which is entitled to one vote on each matter
properly brought before the FCC Meeting. The presence at the
Meetings, in person or by proxy, of the holders of a majority of the
outstanding shares of common stock of the respective Companies is
necessary to constitute a quorum.
The Plan must be approved by the affirmative vote of the
holders of at least two-thirds of the Central Common Stock present
at the Central Meeting and by the holders of at least two-thirds of
the FCC Common Stock present at the FCC Meeting. An abstention will
have the effect of a vote against the Plan and will cause a Central
shareholder otherwise entitled to dissenters' rights to forfeit any
claim to such rights. A broker non-vote will be counted for
purposes of determining a quorum but will not be counted in
determining the voting power present with respect to the vote on the
Plan.
Directors and executive officers of Central beneficially
owning an aggregate of _______ shares, or approximately ___%, of the
outstanding Central Common Stock, have agreed to vote in favor of
the Plan, and directors and executive officers of FCC beneficially
owning an aggregate of ____ shares, or approximately ___%, of the
outstanding FCC Common Stock, have indicated that they intend to
vote in favor of the Plan.
Solicitation, Voting and Revocation of Proxies
In addition to soliciting proxies by mail, directors,
officers and employees of Central and FCC, without receiving
additional compensation therefor, may solicit proxies by telephone
and in person. Arrangements will also be made with brokerage firms
and other custodians, nominees and fiduciaries to forward solicita-
tion materials to the beneficial owners of shares of Central Common
Stock and FCC Common Stock, and FCC and Central will reimburse such
parties for reasonable out-of-pocket expenses incurred in connection
therewith. The cost of soliciting proxies is being paid by FCC and
Central. In addition, FCC has retained Corporate Investor
Communications, Inc. at its expense to aid in the solicitation of
proxies for a fee of $8,000, plus out-of-pocket expenses.
The form of proxy that accompanies this Joint Proxy
Statement and Prospectus permits each holder of record of Central
Common Stock and FCC Common Stock on the respective record date to
vote on all matters that properly come before the respective
Meetings. Where a shareholder specifies his choice on the
accompanying form of proxy with respect to the proposal to approve
the Plan, the shares represented by the proxy will be voted in
accordance with such specification. If no such specification is
made, the shares will be voted in favor of the Plan. If a Central
shareholder does not sign and return a proxy and specify on the
proxy an instruction to vote against the Plan, he will not be able
to exercise dissenters' rights unless he attends the Meeting in
person and votes against the Plan and gives written notice of his
dissent from the Plan at or prior to the Meeting. See "Central
Shareholders' Dissenters' Rights." A proxy may be revoked by (i)
giving written notice of revocation at any time before its exercise
to the Secretary of Central or FCC, as the case may be, (ii)
executing and delivering to the Secretary at any time before its
exercise a later dated proxy or (iii) attending the Meeting and
voting in person.
THE PLAN
General
The following brief description does not purport to be
complete and is qualified in its entirety by reference to the Plan,
a copy of which is attached as Appendix C.
Background of and Reasons for the Plan
General. The financial and other terms of the Plan were
arrived at through arm's length negotiations between representatives
of the Companies. Determination of the consideration to be received
by Central's shareholders in exchange for their stock was based upon
various factors considered by the Boards of Directors of FCC and
Central, including primarily the comparative financial condition,
historical results of operations, current business and future
prospects of the Companies, the market price, dividends, and
historical earnings per share of the common stock of the Companies,
and the desirability of combining the financial and managerial
resources of FCC and the Bank to pursue available consumer and
commercial banking business in the market area served by Central.
Central. As part of its continuing efforts to maximize
shareholder value, Central has considered various options from time
to time, including the possibility of merging with another bank
holding company. Since 1985, when the prohibition against multi-
bank holding companies owning banks located in different parishes
was lifted, Central received from various bank holding companies in
Arkansas, Mississippi and Louisiana informal expressions of interest
regarding possible business combinations. Central did not respond
to these interests because, at the time, Central's Board of
Directors deemed it in the best interest of Central's shareholders
to remain an independent company. Beginning in late 1994, Central
noted the industry trend of consolidation in the Louisiana market.
Central expects further competition to result from the relaxation of
interstate branching laws. Although Central has continued to
operate profitably, it believes its growth and success could be
enhanced by affiliating with a larger banking organization.
Central began to consider strategic alternatives aimed
at enhancing shareholder value and increasing its market share.
During 1994, James A. Altick, President and Chief Executive Officer
of Central, had a number of conversations with individual Board
members concerning the strategic alternatives available to Central.
The issues discussed by Mr. Altick and the directors included how a
possible strategic combination may enhance shareholder value, enable
Central to offer new products and services to its customers, enable
Central to control expenses and enable Central to expand its market
coverage.
During December 1994 and January 1995, the Chief
Executive Officer of a regional bank holding company (not FCC) which
had previously expressed strong interest in Central approached Mr.
Altick to discuss a possible combination transaction with Central.
These exploratory discussions included discussions of potential
transaction structures, an informal exchange of information about
both parties and consideration of a variety of other matters, but no
specific transaction was proposed.
During these two months, the exploratory discussions
with the interested party were conducted by Mr. Altick. Central's
President's Advisory Committee was constantly kept informed of these
discussions. The purpose of the President's Advisory Committee is
to provide Mr. Altick with the guidance of the Board in important
decisions involving Central. The President's Advisory Committee
consists of directors Robert C. Cudd, III, Hugh G. McDonald, Jr.,
Saul A. Mintz, and T.H. Scott, whose combined holdings of Central
equal approximately 30.0% of the outstanding shares of Central
Common Stock. Each member of the President's Advisory Committee
will serve on FCC's Board of Directors after consummation of the
merger.
On December 5, 1994, Central received a written
communication from the regional bank holding company with which it
had exploratory conversations in early December 1994. The
communication expressed interest in discussing a possible
combination with Central and set forth a preliminary proposal which
contemplated a stock for stock merger pursuant to which stockholders
would receive a fixed number of shares which had a value equal to a
multiple of Central's book value, based on the market price of the
regional bank holding company's stock at that time. The
communication further provided that if a merger was consummated,
Central Bank would be held as a separate subsidiary of the company.
Within a few days, the Chief Executive Officer of the regional bank
holding company contacted Mr. Altick to increase the number of
shares and the multiple of Central's book value initially proposed.
During the month of January 1995, Mr. Altick contacted
The Robinson-Humphrey Company, Inc. ("Robinson-Humphrey"), a
nationally recognized investment banking firm with substantial
experience in mergers and acquisition transactions, regarding the
services it offered in the merger context. Although Central did not
immediately retain Robinson-Humphrey, pursuant to Mr. Altick's
request, Robinson-Humphrey performed a preliminary analysis for the
President's Advisory Committee which identified recommended
strategic merger partners for Central. The two noted companies that
could provide outstanding opportunities for Central were the
regional bank holding company with which Central had exploratory
discussions and FCC.
At the direction of the President's Advisory Committee,
Mr. Altick approached FCC to ascertain its interest, if any, in a
possible combination with Central. On February 6, 1995, Mr. Altick
met with FCC's President and Chief Executive Officer, Ian Arnof, who
presented an information booklet that highlighted the potential
advantages of a merger between the two companies, including
increased market share and profitability and returns to
shareholders. Copies of the information booklet were forwarded to
the President's Advisory Committee. In February and March 1995,
Central received letters from FCC which expressed interest in
merging with Central and proposed a general framework for an
agreement. The letters suggested a stock for stock exchange,
pursuant to which Central's shareholders would receive approximately
2.6 times Central's December 1994 book value, on a nominal value
basis based on the then current market value of FCC's common stock.
FCC's letters also stated that the Bank would become a wholly-owned
subsidiary of FCC when the merger was completed.
In late February 1995, Central hired Robinson-Humphrey
to advise Central on its strategic alternatives. Central also
retained special merger counsel with respect to a possible business
combination.
During February and March, Mr. Altick, with the
approval of the President's Advisory Committee, had conversations
with the Chief Executive Officers of FCC and the other party to gain
a better understanding of the extent of their interest in Central.
The President's Advisory Committee was informed of all such
discussions. During this time period, in response to an inquiry
from the President of the regional bank holding company, Mr. Altick
notified him that Central had received a higher proposal. The other
regional bank holding company for a second time increased the number
of shares offered and its stock price had risen during this time.
Nevertheless, the aggregate price proposed by the regional bank
holding company still fell short of the current value offered by
FCC.
During the last several weeks of March and the first
week of April, Robinson-Humphrey conducted preliminary due diligence
of FCC and the regional bank holding company in order to determine
the quality of their respective earnings and their future prospects.
On April 6, 1995, at a meeting of the President's
Advisory Committee, Robinson-Humphrey presented a preliminary
analysis and recommendations to Central concerning independent
internal growth and development prospects as well as merger
possibilities, particularly as to FCC and the other interested bank
holding company. During the following few days, Mr. Altick discussed
his conversations with FCC and the other interested party with the
individual members of the Central Board and informed them of the
specific results of the Robinson-Humphrey analysis.
On April 12, 1995, at a regular meeting of Central's
Board of Directors, the Board discussed the informal expressions of
interest regarding the possible acquisition of Central by FCC and
the interest expressed by the other regional bank holding company.
The Board expressed a concern that although Central would appear
likely to continue to grow and prosper on its own, it might not
achieve its greatest potential without a strategic combination. The
Board recognized that a merger transaction would enable Central to
gain access to additional products and services, such as proprietary
mutual funds, and to achieve economies of scale for its expenses
through consolidation of certain functions and operations. A merger
would also assist Central in expanding its franchise in the region
through acquisitions paid for with the more liquid stock of a larger
holding company. Further, as a part of a larger organization,
Central would have access to substantially more capital with which
to fund its expansion.
The Board also discussed in general terms the strategic
benefits of a merger transaction for Central's shareholders. The
value of Central's shares and dividends paid to Central's
shareholders would be significantly increased in the near term due
to the significant value which an exchange of Central's shares for
those of a larger company would bring. In the long term, Central's
shareholders would benefit from the expected increase in value
resulting from the franchise strength of the combined entity in the
marketplace. Shareholders would also benefit from the ownership of
more liquid stock when selling in the secondary market.
The Board discussed the benefits of possible
transactions with the two parties who had expressed interest in a
possible merger. Mr. Altick reported the increased proposal from
the regional bank holding company and FCC's proposal. A comparison
of the two proposals showed that Central's shareholders would
receive a higher nominal value for their shares with FCC than the
other interested party. The Board also discussed the long-term
values that would result from a merger with FCC or the other
regional bank holding company, based on the Robinson-Humphrey
presentation on April 6, 1995. The Robinson-Humphrey analysis
illustrated that, based on currently available information, it is
anticipated that Central's shareholders could experience
significantly higher per share returns over the next four-year
period by a merger with FCC rather than either a merger with the
previously described regional bank holding company or remaining
independent. FCC's strong presence in the state of Louisiana
would also provide a vehicle for the Bank to expand its market into
other areas and to provide additional products to the areas it
currently served. Further, as FCC's deposit area did not
substantially overlap with Central's, a merger of the two companies
would not require large divestitures. The Board also agreed that
FCC's excellent reputation in the Louisiana banking market would be
advantageous to the Bank, as would its intent to hold the Bank as a
separate subsidiary.
After discussing the Board's fiduciary duties with
respect to its consideration of such a transaction, particularly
those owed to Central's shareholders and the advantages and
disadvantages of the two offers, as well as of remaining
independent, the Board unanimously authorized the President's
Advisory Committee and Mr. Altick in consultation with investment
bankers and legal counsel to focus its efforts on reaching an
agreement with FCC. If acceptable terms could not be reached with
FCC, the Board instructed Mr. Altick and the President's Advisory
Committee to pursue further discussions with the other interested
party.
On April 13, 1995, the President's Advisory Committee
held a telephonic meeting with their special legal counsel to
discuss how to proceed. The Committee discussed negotiation
strategies with its counsel based on information presented in FCC's
letters and from conversations with FCC's management.
On April 18, 1995, FCC sent an initial draft of an
agreement and plan of merger to Central. The draft was distributed
to and reviewed by certain senior officers of Central, its special
merger counsel and Robinson-Humphrey. Material terms of the
agreement were communicated by Mr. Altick to the President's
Advisory Committee. The draft contained provisions which required
the parties to enter into a stock option agreement whereby FCC would
receive an option to purchase 19.9% of Central's common stock if
certain events occurred. The draft also contemplated that executive
officers and directors would sign an "insider commitment" to vote
their shares in favor of the merger. FCC did not provide copies of
the proposed stock option agreement and insider commitment at this
time. The draft agreement also contained a provision under which
expenses incurred by Central in connection with the merger which
exceeded an unspecified limit would be deducted proportionately from
the shares to be received by individual shareholders. Central and
its advisors reviewed the proposed agreement and responded on April
29, 1995. Thereafter, the parties engaged in intensive negotiations
over the terms of the agreement.
On May 8, 1995, a meeting was held in New Orleans
between FCC and Central which included Mr. Altick, Central's special
merger counsel, a representative of Robinson-Humphrey, executive
officers of FCC, including Ian Arnof, FCC's President and Chief
Executive Officer, and FCC's outside counsel. A second draft of the
agreement was presented which provided for, among other things, a
conversion ratio of 1.67 shares of FCC common stock for every share
of Central common stock, subject to a deduction for expenses which
exceeded an undetermined amount, the stock option agreement
provision and the insider commitments. These provisions were
vigorously negotiated. After lengthy negotiations, it was clear
that although FCC was willing to negotiate the individual terms of
the agreements, FCC would not agree to a merger with Central in the
absence of a stock option agreement, insider commitments and a limit
on expenses. Central's President's Advisory Committee determined
that the advantages associated with a merger with FCC outweighed the
possible disadvantages which might be associated with the stock
option agreement, insider commitments and an expense limit.
Therefore, the President's Advisory Committee instructed Mr. Altick
and Central's outside counsel to continue to negotiate with FCC to
reach the most favorable terms which could be obtained from FCC. A
third draft of the merger agreement and initial drafts of the stock
option agreement and the insider commitment were sent by FCC on May
9, 1995.
In addition to the negotiations between counsel during
the months of April and May, Mr. Altick and Mr. Arnof conducted
ongoing conversations concerning the possible terms of the merger
agreement and related agreements.
On May 8, 1995, Central received a letter from a
Louisiana bank holding company expressing its interest in discussing
a possible merger with Central. The letter generally addressed the
benefits of a merger between Central and the Louisiana bank holding
company, but did not set forth any specific terms.
On May 11, 1995, the President's Advisory Committee
held a telephonic meeting with its special merger counsel and
Robinson-Humphrey to discuss the terms of the proposed agreement and
the conversion ratio offered by FCC. The President's Advisory
Committee also discussed the terms of the proposed stock option
agreement. The Committee discussed the third letter of interest and
the advantages and disadvantages of such a merger, assuming that
party was to make a proposal more favorable than the FCC proposal.
The Committee also discussed its fiduciary duties in light of
receipt of this letter. The Committee, having considered the
interests of Central and its shareholders as well as the social,
legal and economic effects on employees, customers and the
community, determined to continue with negotiations of a merger with
FCC and not the third interested party. This conclusion was based
in part on the Committee's understanding as to the third interested
party's prospects for remaining independent and the possible
necessity of divestiture in markets where Central and the third
party may have overlapping business operations which could have the
effect of boosting a competitor's business as well as altering existing
relationships with customers.
Over the following weekend, outside counsel for Central
and FCC negotiated the Plan, the stock option agreement and the
insider commitments. Further negotiations regarding the limit on
expenses also took place.
On May 15, 1995, the Central Board of Directors held a
special meeting to discuss the terms of the proposed merger
agreement with FCC. Robinson-Humphrey reviewed the proposed
financial terms of the Plan with the Central Board and compared the
terms of the FCC offer with the preliminary proposal of the regional
bank holding company, as well as Central's prospects for remaining a
stand-alone company. After further discussion, Robinson-Humphrey
delivered their written opinion that, as of that date, from a
financial point of view, the terms of the merger as provided in the
Plan were fair to the shareholders of Central. See "-- Opinion of
Investment Bankers." Central's special merger counsel also attended
the meeting and assisted the Board in understanding the legal
implications of the Plan and the stock option agreement. The
President's Advisory Committee reported to the Board regarding the
interest expressed by the Louisiana bank holding company and
recommended that a merger with such company not be pursued. After
deliberating with respect to the merger and the other matters
contemplated by the Plan, considering among other things, the
matters discussed below and the opinion of Robinson-Humphrey
referred to above, the Central Board, by unanimous vote of all
directors, approved the Plan and the transactions contemplated
thereby as being in the best interest of Central and its
stockholders. Immediately following the Board vote, Central entered
into the Plan and the stock option agreement (the "Option
Agreement") with FCC. Central also entered into a confidentiality
agreement with FCC in connection with the proposed transaction.
In reaching its conclusion to approve the Plan and the
Option Agreement, the Central Board considered a number of factors,
including the following:
(a) Information with respect to Central's financial
condition on both a historical and pro forma basis and future
dividends. The Central Board considered the financial prospects for
Central and its shareholders if Central determined to remain a
stand-alone company.
(b) The written opinion of Robinson-Humphrey, that as
of May 15, 1995, from a financial point of view, the terms of the
merger as provided in the Plan were fair to Central shareholders.
See "-- Opinion of Investment Bankers."
(c) The financial highlights of FCC and the effect of
the merger on FCC.
(d) A comparison of the terms of the Plan with recent
transactions involving similar companies. Specifically, the Board
discussed the premium to be paid to shareholders of Central and how
it compared with recent bank merger transactions involving selling
institutions with assets between $500 million and $1.5 billion as
well as with recent transactions involving Louisiana banks as
sellers.
(e) The terms of FCC's offer, including the provision
that the Bank would be held as a separate subsidiary of FCC
following the merger; the tax free nature of the merger for Central
shareholders; the exchange ratio; and the stock option agreement.
(f) The effect on Central's shareholders' value if
Central continued as a stand-alone entity as compared to the effect
of a merger with FCC, including a comparison of earnings per share
and book value per share on a pro forma basis. The Board analyzed
future dividends for Central shareholders and post-merger
shareholder dividends.
(g) The interests of Central and its shareholders as
well as the social, legal and economic effects on employees,
customers and the community.
(h) The other potential benefits to Central
shareholders in light of the financial condition and prospects of
the two companies as a combined company and the current economic and
financial environment, including, but not limited to, other possible
strategic alternatives.
In addition, in reaching its conclusion to approve the
Plan and the transactions contemplated thereby, the Central Board
considered the terms of the Option Agreement and the fact that the
Plan generally prohibits Central from proposing, discussing,
negotiating or entering into agreements relating to alternative
transactions prior to the Effective Date. The Central Board
determined that the price offered by FCC, the projected value of
FCC's shares as a result of the merger with Central and the
potential growth for the combined organization made a merger
transaction with FCC an extremely attractive opportunity for Central
and its shareholders. Because FCC made it clear that the Option
Agreement and the insider commitments were essential to its
willingness to enter into the transaction, the Board determined that
it was in the best interest of Central shareholders to enter into
the Option Agreement and insider commitments in order to obtain the
strong benefits of the proposed merger with FCC on the outstanding
economic terms which had been negotiated and agreed to by FCC.
In the two months following the signing of the Plan,
issues pertaining to the Option Agreement arose which necessitated
certain clarifying changes to the Plan and the Option Agreement.
Pursuant to these changes, in the unlikely event that FCC exercises
the stock option, sells the shares acquired pursuant to such
exercise ("Option Shares") to a third party and then attempts to
consummate the Merger, the Board of Directors of Central would have
the right to terminate the Plan if all of the Option Shares would
not be cancelled by virtue of the Merger. The Board of Directors
could determine, pursuant to its fiduciary duty, not to exercise such
termination right even though all Option Shares would not be so
cancelled and to consummate the transaction with FCC. In any such
event, Central shareholders would experience some dilution when their
shares of Central Common Stock are exchanged for shares of FCC
Common Stock. The amount of such dilution would be
calculable at the time the Central Board makes its determination
as to whether or not to consummate the transaction under these
circumstances. Any dillution would depend upon, among other factors,
the number of Option Shares not cancelled, the stock price of FCC
Common Stock at the time of the Merger and the aggregate price paid
to FCC for the Option Shares. In addition, a termination provision
was added to the Option Agreement under which FCC's right to exercise
the stock option will expire upon the earlier of March 31, 1997 or
the date that is one year following the termination of the Plan, if
such termination occurs after the first "Purchase Event" to occur. See
"The Option Agreement" for a description of the material terms
thereunder.
On July 12, 1995, upon the advice of Robinson-Humphrey
that the aforementioned changes to the Plan and the Option Agreement
would not cause Robinson-Humphrey to change its opinion that the
consideration to be received pursuant to the Plan is fair, from a
financial point of view, to Central's shareholders, the Central
Board unanimously ratified these changes to the Plan and the Option
Agreement. See "-Opinions of Investment Bankers - Opinion to
Central."
The foregoing discussion of the information and factors
considered by the Central Board is not intended to be exhaustive,
but is believed to include all material factors considered by the
Central Board. In reaching its determination to approve and
recommend the merger, the Central Board did not assign any relative
or specific weight to different factors. The Central Board is
unanimous in its recommendation that Central shareholders vote for
approval of the merger.
FCC. FCC's initial expansion in 1985 outside the New
Orleans, Louisiana area occurred in the southern region of the
State, and subsequent acquisitions have focused on expanding FCC's
market share within that region, which is the more populous part of
the State and, generally, has had greater economic activity. As a
result, FCC has not had a physical presence in the North Louisiana
region. However, the Board of Directors of FCC has for some time
considered it desirable for FCC to enter the North Louisiana region
if an appropriate acquisition opportunity arose.
An acquisition opportunity in North Louisiana was
considered appropriate if the financial institution to be acquired
were of substantial size, were located in a metropolitan area within
the region, had stable management capable in FCC's judgment of
continuing to manage the acquired institution as a part of the FCC
group of banks, and were consistently profitable. Central was one
of a small number of institutions in North Louisiana identified by
management of FCC as meeting these criteria, and from time to time
in recent years FCC management indicated to Central that FCC had a
strong interest in participating in discussions with Central should
Central desire to explore the possible benefits of affiliation with
FCC.
After Central contacted FCC in early 1995 indicating a
desire to explore its available options, including an affiliation
with FCC, management of FCC and the Executive Committee of FCC's
Board of Directors confirmed that an affiliation with Central
remained highly desirable and that, moreover, given other
acquisitions and events that had taken place in North Louisiana in
recent years, in 1995 Central best met FCC's criteria for expansion
into the region. In so concluding, FCC management and the Executive
Committee noted the following:
(1) Central was the largest remaining potential
acquisition candidate in the region; the second largest institution
in the region that had not affiliated with another institution is
less than one third the size of Central.
(2) Central is located in a sizable city and
metropolitan area in North Louisiana, and, moreover, has a market
presence in other parts of the region.
(3) Central has a stable, experienced management
team that is fully supportive of an affiliation with a larger
financial institution and able and willing to continue to manage the
Bank cooperatively with FCC after the affiliation.
(4) Central had maintained profitability and
growth during the recent period of economic adversity in Louisiana
and in the face of substantially increased competition resulting
from the entry of larger financial institutions into its markets.
According to an independent source, Central actually increased its
deposit share in its primary market from 27.9% in 1990 to 37.5% in
1994 and was first in deposit share during all periods.
(5) Central's asset quality was strong, with non-
performing assets only .023 percent of assets, low non-performing
assets and healthy reserves.
(6) Other opportunities for expansion such as
denovo branching or affiliation with other financial institutions in
the area were considerably less desirable than an affiliation with
Central, because of size, geographical location or other factors.
In recommending to the FCC Board of Directors the
consideration to be offered by FCC to shareholders of Central, FCC
management and the Executive Committee took into account (i) the
foregoing factors, (ii) the likelihood that Central would also
receive one or more aggressive proposals from other financial
institutions for which Central was also a highly desirable
acquisition candidate, and (iii) FCC management's estimates that
through consolidation of functions and other cost-saving techniques,
Central could achieve additional annual pre-tax earnings in the
range of $10-12 million as a result of an affiliation with FCC. It
was recognized that after taking into account the cost saving
estimates, the consideration proposed by FCC was, on a pro-forma
basis, slightly dilutive to FCC's post-merger earnings per share,
but management and the Executive Committee believed such potential
dilution was acceptable in light of the opportunities an affiliation
with Central presented to FCC to further enhance revenue and
earnings and thus overcome the potential dilution by providing a
base for further market penetration in the North Louisiana region
and through offering additional products and services to Central's
substantial customer base.
On the basis of the foregoing, FCC presented a merger
proposal to Central and negotiated the terms of the proposal with
Central as described under "-Central", above. On May 15, 1995, the
Board of Directors of FCC met to consider the recommendations of
management and the Executive Committee and the terms of the Plan and
related documents as negotiated by management. The Board reviewed
and considered the factors described in the preceding paragraphs,
additional information about Central provided by management, the
financial and other terms of the Plan as set forth in the Plan
documents and as further described by FCC's management and outside
counsel, and the written opinion of Keefe, Bruyette & Woods, Inc.,
that as of May 15, 1995, from a financial point of view, the
proposed exchange ratio of FCC Common Stock for Central Common Stock
was fair to FCC's shareholders. In reaching its conclusion to
approve and recommend the Plan, FCC's Board did not assign relative
or specific weight to the different factors considered.
Board Recommendations. The Boards of Directors of
Central and FCC have each unanimously approved the Plan and recom-
mend that their respective shareholders vote FOR approval of the
Plan.
Opinions of Investment Bankers
Opinion to Central. Central retained The Robinson-
Humphrey Company, Inc. ("Robinson-Humphrey") to act as its financial
adviser in connection with the Merger. Robinson-Humphrey has
rendered an opinion to Central's Board of Directors that, based on
the matters set forth therein, the consideration to be received
pursuant to the Merger is fair, from a financial point of view, to
Central's shareholders. The text of such opinion is set forth in
Appendix A and should be read in its entirety by shareholders of
Central.
The consideration to be received by Central
shareholders in the Merger was determined by Central and FCC in
their negotiations. No limitations were imposed by the Board of
Directors or management of Central upon Robinson-Humphrey with
respect to the investigations made or the procedures followed by
Robinson-Humphrey in rendering its opinion.
In connection with rendering its opinion to Central's
Board of Directors, Robinson-Humphrey performed a variety of
financial analyses. However, the preparation of a fairness opinion
involves various determinations as to the most appropriate and
relevant methods of financial analysis and the application of those
methods to the particular circumstances, and, therefore, such an
opinion is not readily susceptible to summary description.
Robinson-Humphrey, in conducting its analysis and in arriving at its
opinion, has not conducted a physical inspection of any of the
properties or assets of Central, and has not made or obtained any
independent valuation or appraisals of any properties, assets or
liabilities of Central. Robinson-Humphrey has assumed and relied
upon the accuracy and completeness of the financial and other
information that was provided to it by Central or that was publicly
available. Its opinion is necessarily based on economic, market and
other conditions as in effect on, and the information made available
to it as of, the date of its analyses.
In connection with its opinion on the Merger and the
presentation of that opinion to Central's Board of Directors,
Robinson-Humphrey performed two valuation analyses with respect to
Central: (i) an analysis of comparable prices and terms of recent
transactions involving banks buying banks; and (ii) a discounted
cash flow analysis. For purposes of the comparable transaction
analyses, FCC's Common Stock was valued at $28.125 per share, the
closing price per share on May 12, 1995. Each of these
methodologies is discussed briefly below.
Comparable Transaction Analysis. Robinson-Humphrey
performed two analyses of premiums paid for selected banks with
comparable characteristics to Central. Comparable transactions were
considered to be (i) transactions since January 1, 1994, where the
seller was a bank with assets between $500 million and $1.5 billion,
and (ii) all transactions since January 1, 1994, where the seller
was a bank located in Louisiana.
Based on the first of the foregoing transactions, banks
buying banks since January 1, 1994, the analysis yielded a range of
transaction values to book value of 1.34 times to 2.48 times, with a
mean of 2.02 times and a median of 1.92 times. These compare to a
transaction value for the Merger of approximately 2.62 times
Central's book value as of March 31, 1995.
The analysis yielded a range of transaction values as a
multiple of tangible book value for the comparable transactions
ranging from 1.34 times to 2.64 times, with a mean of 2.14 times and
a median of 2.19 times. These compare to a transaction value to
tangible book value at March 31, 1995 of approximately 2.65 times
for the Merger.
The analysis yielded a range of transaction values as a
multiple of trailing twelve month earnings per share. These values
ranged from 10.29 times to 21.62 times, with a mean of 16.28 times
and a median of 16.46 times. These compare to a transaction value
to the March 31, 1995 trailing twelve months earnings per share of
17.27 times for the Merger.
The analysis yielded a range of transaction values as a
percent of total assets. These values ranged from 7.34 percent to
25.75 percent, with a mean of 16.47 percent and a median of 17.07
percent. These compare to a transaction value of 22.90 percent of
assets at March 31, 1995 for the Merger.
Based on transactions since January 1, 1994, where the
seller was a bank located in Louisiana, the analysis yielded a range
of transaction values to book value of 1.24 times to 3.73 times,
with a mean of 2.12 times and a median of 2.18 times. These compare
to a transaction value for the Merger of approximately 2.62 times
Central's book value as of March 31, 1995.
The analysis yielded a range of transaction values as a
multiple of tangible book value for the comparable transactions
ranging from 1.24 times to 3.74 times, with a mean of 2.14 times and
a median of 2.20 times. These compare to a transaction value to
tangible book value at March 31, 1995 of approximately 2.65 times
for the Merger.
The analysis yielded a range of transaction values as a
multiple of trailing twelve month earnings per share. These values
ranged from 6.17 times to 27.80 times, with a mean of 14.08 times
and a median of 12.81 times. These compare to a transaction value
to the March 31, 1995 trailing twelve months earnings per share of
17.27 times for the Merger.
The analysis yielded a range of transaction values as a
percent of total assets. These values ranged from 10.70 percent to
30.69 percent, with a mean of 18.52 percent and a median of 18.70
percent. These compare to a transaction value of 22.90 percent of
assets at March 31, 1995 for the Merger.
No company or transaction used in the comparable
transaction analyses is identical to Central. Accordingly, an
analysis of the foregoing necessarily involves complex considerations
and judgments, as well as other factors that affect the public
trading value or the acquisition value of the company to which it is
being compared.
Discounted Cash Flow Analysis. Using discounted cash
flow analysis, Robinson-Humphrey estimated the present value of the
future stream of after-tax cash flows that Central could produce
through 1999, under various circumstances, assuming that Central
performed in accordance with the earnings/return projections of
management at the time that Central entered into acquisition
discussions in April 1995. Robinson-Humphrey estimated the terminal
value for Central at the end of the period by applying multiples of
earnings ranging from 9.0 to 11.0x and then discounting the cash
flow streams, dividends paid to shareholders and terminal value
using differing discount rates (ranging from 9.0 percent to 11.0
percent) surrounding the underlying projections. This discounted
cash flow analysis indicated a reference range of $130.6 million to
$158.5 million, or $32.12 to $38.98 per share, for Central.
Pursuant to an engagement letter dated February 23,
1995 between Central and Robinson-Humphrey, Central agreed to pay
Robinson-Humphrey a $100,000 Fairness Opinion Fee and an incremental
Success Fee (to be paid at closing) equal to $500,000 less the
Fairness Opinion Fee. Central has also agreed to indemnify and hold
harmless Robinson-Humphrey and its officers and employees against
certain liabilities in connection with its services under the
engagement letter, except for liabilities resulting from the
negligence of Robinson-Humphrey.
As part of its investment banking business, Robinson-
Humphrey is regularly engaged in the valuation of securities in
connection with mergers and acquisitions, negotiated underwritings,
secondary distributions of listed and unlisted securities, private
placements, and valuations for estate, corporate and other purposes.
Central's Board of Directors decided to retain Robinson-Humphrey
based on its experience as a financial advisor in mergers and
acquisitions of financial institutions, particularly transactions in
the Southeastern region of the U.S., and its knowledge of financial
institutions and Central in particular.
Opinion to FCC. The Board of Directors of FCC retained
the investment banking firm of Keefe, Bruyette & Woods, Inc. ("KBW")
to render its opinion as to the fairness to the shareholders of FCC
of the exchange ratio of 1.67 shares of FCC Common Stock to be
issued for each share of Central Common Stock (the "Exchange Ratio")
pursuant to the Merger Agreement.
KBW has delivered its written opinion to the Board of
Directors of FCC to the effect that, as of May 15, 1995 the Exchange
Ratio pursuant to the Merger Agreement is fair to the shareholders
of FCC.
A copy of KBW's written opinion dated May 15, 1995,
which sets forth the assumptions made, matters considered and limits
on the review taken is attached as Appendix B to this Joint Proxy
Statement and Prospectus and is incorporated herein by reference.
FCC shareholders are urged to read the opinion in its entirety. The
description of the opinion set forth herein is qualified in its
entirety by reference to the full text of such opinion. KBW's
opinion is directed only to the Exchange Ratio and does not
constitute a recommendation to any FCC shareholder as to how such
shareholder should vote at the FCC Meeting.
In arriving at its written opinion dated May 15, 1995,
KBW, among other things: (i) reviewed the Plan; (ii) reviewed
Central's Annual Reports, Forms 10-K and related financial
information for the three fiscal years ending December 31, 1992
through December 31, 1994, and Central's Form 10-Q for the quarter
ending March 31 1995; (iii) reviewed FCC's Annual Reports, Forms 10-
K for each of the three years ending December 31, 1992 through
December 31, 1994, and the Quarterly Report on Form 10-Q for the
quarter ending March 31, 1995; (iv) held discussions with members of
the senior management of FCC regarding the Merger, certain aspects
of past and current business operation, financial condition and
future prospects of FCC and Central; (v) reviewed the historical
market prices and trading activity for the FCC Common Stock and
Central Common Stock and compared them with those of certain
publicly traded companies which it deemed to be relevant; (vi)
compared the financial terms of the transaction contemplated by the
Plan with the financial terms of certain other mergers and
acquisitions which it deemed to be relevant; (vii) considered the
pro forma effect of the Merger on FCC's capitalization ratios,
earnings, and book value per share; and (viii) reviewed such other
financial studies and analyses and performed such other
investigations and took into account such other matters as it deemed
necessary.
KBW has relied, without independent verification, upon
the accuracy and completeness of all of the financial and other
information reviewed by it for the purpose of its opinion. KBW also
relied upon the management of FCC as to the reasonableness and
achievability of the financial and other operating forecasts (and
the assumptions and bases therefor) provided to it. In that regard,
KBW assumed with FCC's consent that such forecasts, including
without limitation, projected cost savings and operating synergies
resulting from the Merger and projections regarding underperforming
and nonperforming assets, net charge-offs and the adequacy of
reserves, reflected the best currently available estimates and
judgments of such representative matters . KBW is not an expert in
the evaluation of allowances for loan losses and it has not made an
independent evaluation of the adequacy of the allowance for loan
losses of FCC or Central nor has it reviewed any individual credit
files. In addition, KBW has not made an independent evaluation or
appraisal of the assets and liabilities of FCC or Central or any of
their subsidiaries, and has not been furnished with any such
evaluation or appraisal.
KBW's opinion has been rendered without regard to the
necessity for, or level of, any restrictions which may be imposed or
divestitures which may be required in the course of obtaining
regulatory approvals for the Merger.
Set forth below is a summary of selected analyses
performed by KBW in reaching its opinion delivered on May 15, 1995.
Summary of Proposal. KBW described the terms of the
proposed transaction as reflected in the Plan, including the
Exchange Ratio. Based on the aggregate consideration offered, using
a May 12, 1995 price for the FCC Common Stock, KBW calculated the
price to book and price to earnings multiples for Central. This
analysis yielded a price to book multiple of 2.61x and a price to
earnings multiple of 17.2x, based on Central's net earnings for the
twelve months ended March 31, 1995 and 15.6x based on Central's
annualized three month earnings ending March 31, 1995.
Pro Forma Merger Analysis. KBW analyzed certain pro
forma effects resulting from the Merger. This analysis indicated
that the core earnings of Central could be enhanced through cost
savings and revenue enhancements. Accounting for only estimates of
core earnings and cost savings provided to KBW by FCC, KBW's
analysis showed approximately 1.0% earnings per share dilution in
years one and two. KBW also noted certain possible areas of revenue
enhancement that were not factored into the Central projections and
concluded the transaction could be modestly accretive to FCC if such
areas of enhancement could be achieved. Furthermore, KBW estimated
that FCC's book value per share would decline initially by
approximately 7.7% on a proforma basis and begin to increase
thereafter through the retention of proforma consolidated earnings.
Internal Rate of Return Analysis. Using a projected
net income stream, KBW estimated the rate of return of the future
streams of after tax earnings that Central could produce through
2004. In this analysis, KBW assumed that Central performed in
accordance with the earnings forecasts and merger synergies provided
to KBW by FCC's management. KBW applied a range of terminal values
from nine to sixteen times Central's earnings in the year 2004. The
net income stream and terminal values were then applied to an
internal rate of return analysis, which reflected returns from 13.0%
and 15.0. This analysis was based upon FCC's management
projections, which were based upon many factors and assumptions,
many of which are beyond the control of FCC and Central. As
indicated below, this analysis is not necessarily indicative of
actual future results and does not purport to reflect the prices at
which any securities may trade at the present or at any time in the
future.
Analysis of Selected Bank Merger Transactions. KBW
reviewed a number of merger transactions which occurred since
January 1, 1994. These transactions included mergers and
acquisitions within the southern region of the United States for
which the transaction size ranged between $50 million and $600
million in value. KBW calculated the price to earnings, price to
book value and price to tangible book value ratios in the
contemplated transaction and such selected bank merger transactions.
This analysis, (using a May 12, 1995 price of FCC Common Stock),
yielded a range of price to earnings multiples of approximately
10.29x to 21.80x with a mean of 16.13x and a median of 15.39x, a
range of price to book value multiples of approximately 1.63x to
3.73x with a mean of 2.38x and a median of 2.40x and a range of
price to tangible book value multiples of approximately 1.63x to
3.73x with a mean of 2.48x and a median of 2.47x.
No company or transaction used in the above analyses as
a comparison is identical to FCC, Central or the contemplated
transaction. Accordingly, an analysis of the results of the
foregoing necessarily involves complex considerations and judgments
concerning differences in the financial and operating
characteristics of the companies and other factors that could affect
the public trading value of the companies which were compared.
Mathematical analysis (such as determining the mean or the median)
is not, in itself, a meaningful method of using comparable company
or transaction data.
Comparison of Selected Companies. In connection with
the rendering of its opinion, KBW compared selected operating data
for Central to the corresponding data of First United Bancshares,
Inc., Carolina First Corporation, Piedmont Bankgroup, Simmons First
National Corp, F&M Bancorp, Triangle Bancorp, ArgentBank, Allied
Bankshares, FCNB Corporation, Century South Banks, Inc. and Mason
Dixon Bancshares (collectively, the "Peers"). This comparison
showed, among other things, that (i) for the three month period
annualized ending March 31, 1995, Central's return on the average
assets was 1.42%, compared to a mean of 1.14% and a median of 1.12%
for the Peers; (ii) for the three month period annualized ending
March 31, 1995, Central's return on average equity was 16.28%,
compared to a mean of 12.44% and a median of 12.58% for the Peers;
(iii) for the period ended March 31, 1995, Central's equity to asset
ratio was 8.72%, compared to a mean of 9.26% and a median of 9.08%
for the Peers; and (iv) for the period ended March 31, 1995,
Central's nonperforming assets to asset ratio was .27%, compared to
a mean of .48% and a median of .47% for the Peers.
The summary of the KBW fairness opinion set forth above
provides a description of the principal elements of the analyses
performed by KBW in arriving at its opinion. It does not purport to
be a complete description of such analyses. The preparation of the
fairness opinion is not necessarily susceptible to partial analysis
or summary description. KBW believes that its analyses and the
summary set forth above must be considered as a whole and that
selected portions of its analyses, without considering all the
analyses, or selecting all or part of the above summary, without
considering all factors and analyses, would create an incomplete
view of the procedures underlying the KBW opinion. In addition,
while KBW gave the various analyses approximately similar weight it
may have used them for different purposes, and may have deemed
various assumptions more or less reliable than other assumptions, so
that the ranges of valuations resulting from any particular analysis
described above should not be taken to be KBW's view of the actual
value of Central or FCC. The fact that any specific analysis has
been referred to in the summary above is not meant to indicate that
such analysis was given more weight than any other analyses.
In performing its analyses, KBW made numerous
assumptions with respect to industry performance, general business
and economic conditions and other matters, many of which are beyond
the control of Central or FCC. The analyses performed by KBW are not
necessarily indicative of actual values or actual future results,
which may be significantly more or less favorable than suggested by
such analyses. Such analyses were prepared solely as part of KBW's
analysis of the fairness of the Exchange Ratio to shareholders of
FCC, the conclusions of which were provided to FCC's Board of
Directors. The analyses do not purport to be appraisals or to
reflect the prices at which a company might actually be sold or the
prices at which any securities may trade at the present time or at
any time in the future. In addition, as described above, KBW's
opinion to the FCC Board of Directors is just one of many factors
taken into consideration by the FCC Board of Directors.
KBW is a nationally recognized investment banking firm
with substantial experience in transactions similar to the Merger
and is familiar with FCC and its business. KBW regularly engages in
the valuation of banking businesses and their securities in
connection with mergers and acquisitions, negotiated underwritings,
competitive biddings, secondary distributions of listed and unlisted
securities, private placements, and valuations for estate, corporate
and other purposes.
Pursuant to its engagement letter, KBW will receive a
fee of $100,000 for the delivery of its fairness opinion to the
FCC's Board of Directors. KBW will also be reimbursed for its
reasonable out-of-pocket expenses incurred in connection with its
services, including reasonable attorneys' fees and disbursements,
and will be indemnified against certain liabilities, including
liabilities arising under the securities laws.
Conversion of Central Common Stock
Each share of Central Common Stock outstanding on the
date the Plan becomes effective (the "Effective Date") will be
converted into 1.67 shares of FCC Common Stock, less the "Deductible
Shares," defined in the next sentence. "Deductible Shares" are such
number of shares of FCC Common Stock, if any, equal to the quotient
of (i) (a) the amount by which the total expenses of Central in
connection with the Plan (subject to certain exceptions) exceed
$1,750,000, divided by (b) the average of the closing sales prices
of a share of FCC Common Stock on the NASDAQ National Market for the
fifteen business days ending on the day before the Effective Date
("Market Value"), divided by (ii) the number of shares of Central
Common Stock outstanding on the Effective Date. It is not expected
that there will be any Deductible Shares.
Shareholders of Central who perfect dissenters' rights
will not receive FCC Common Stock but instead will be entitled to
receive the "fair cash value" of their shares as determined under
Section 131 of the Louisiana Business Corporation Law (the "LBCL").
See "Dissenters' Rights."
In lieu of issuing any fractional shares of FCC Common
Stock, each shareholder of Central who would otherwise be entitled
thereto will receive a cash payment (without interest) equal to such
fractional share multiplied by the Market Value.
For information regarding restrictions on the transfer
of FCC Common Stock received pursuant to the Plan applicable to
certain of Central's shareholders, see "- Status Under Federal
Securities Laws; Certain Restrictions on Resales."
Effective Date
A Certificate of Merger will be filed for recordation
with the Secretary of State of Louisiana as soon as practicable
after shareholder and regulatory approval of the Plan is obtained
and all other conditions to the consummation of the Merger have been
satisfied or waived, and the Merger will be effective at the date
and time specified in a certificate issued by the Secretary of
State. The Companies are not able to predict the effective date of
the Merger and no assurance can be given that the Merger will be
effected at any time. See "Conditions."
Exchange of Certificates
On the Effective Date, each Central shareholder will
cease to have any rights as a shareholder of Central, and his sole
rights will pertain to the shares of FCC Common Stock into which his
shares of Central Common Stock have been converted pursuant to the
Plan, except for any Central shareholder who exercises statutory
dissenters' rights and except for the right to receive cash for any
fractional shares.
Promptly after consummation of the Plan, a letter of
transmittal, together with instructions for the exchange of
certificates representing shares of Central Common Stock for
certificates representing shares of FCC Common Stock, will be mailed
to each person who was a shareholder of record of Central on the
Effective Date. Shareholders are requested not to send in their
Central Common Stock certificates until they have received a letter
of transmittal and further written instructions. FCC Common Stock
certificates and payment for any fractional shares will be sent as
promptly as practicable after receipt of a properly completed letter
of transmittal accompanied by the appropriate Central Common Stock
certificates.
After the Effective Date and until surrendered,
certificates representing Central Common Stock will be deemed for
all purposes, other than the payment of dividends or other
distributions, if any, in respect of FCC Common Stock, to represent
the number of whole shares of FCC Common Stock into which such
shares of Central Common Stock have been converted. FCC, at its
option, may decline to pay former shareholders of Central who become
holders of FCC Common Stock pursuant to the Plan any dividends or
other distributions that may have become payable to holders of
record of FCC Common Stock following the Effective Date until they
have surrendered their certificates for Central Common Stock. Any
dividends not paid after one year from the date they first became
payable will revert in full ownership to FCC, and FCC will have no
further obligation to pay such dividends.
Central shareholders who cannot locate their
certificates are urged to contact promptly, Ms. Diana Fontana or Mr.
Edward F. Wheland, II, Central Corporation, 300 DeSiard St., Monroe,
Louisiana 71201, telephone number (318) 362-8548. A new certificate
will be issued to replace the missing certificates only upon
execution by the shareholder of an affidavit certifying that his or
her certificates cannot be located and an agreement to indemnify
against any claim that may be made by the holder of the certificates
claimed to have been missing. Central will, and FCC may, also require
the shareholder to post a bond in such sum as is sufficient to
indemnify Central and FCC against any claim made as a result of
issuing such certificate.
Conditions
In addition to shareholder approvals, consummation of
the Merger will require the approval of the Board of Governors of
the Federal Reserve System ("Federal Reserve Board"). FCC has filed
an application seeking the required approval and expects to receive
it by October, 1995; however, there can be no assurance that the
approval will be obtained by that time or at all.
The obligations of the parties to consummate the Merger
are also subject to customary conditions for transactions of this
sort and, in addition, to the receipt of an opinion of Arthur
Andersen LLP as to certain tax aspects of the Merger. The
obligation of FCC to consummate the Merger is also subject to the
condition that neither the Securities and Exchange Commission (the
"Commission") nor FCC's or Central's independent public accountants
shall have taken the position that FCC is not permitted to account
for the Merger as a pooling-of-interests.
The Companies intend to consummate the Plan as soon as
practicable after all of the conditions to the Plan have been met or
waived; however, there can be no assurance that the conditions will
be satisfied.
Conduct of Business Prior to the Effective Date
FCC and Central have agreed that unless the prior
written consent of the other party is obtained, except as otherwise
contemplated or permitted by the Plan or previously disclosed, each
of them will, and will cause its subsidiaries to, operate its
business only in the ordinary course consistent with past practices,
preserve intact its business organizations and assets and maintain
its rights and franchises, and take no action which would adversely
affect its ability to consummate the Merger. Central and FCC have
also agreed that until the earlier of the Effective Date or the
termination of the Plan, neither of them will, without the prior
written consent of the other, make any changes in its dividend
record or payment dates, except as required to coordinate with one
another as to the declaration and payment of cash dividends on the
shares of FCC Common Stock and Central Common Stock to be declared
in 1995 and 1996 so as to ensure that FCC and Central have declared,
with the record dates prior to the Effective Date, the same number
of quarterly dividends from January 1, 1995 through the Effective
Date.
Central has agreed that until the earlier of the
Effective Date or the termination of the Plan, neither it nor the
Bank will, without the prior written consent of the chief executive
officer or chief administrative officer of FCC:
(a) except as previously disclosed or as
expressly contemplated by the Plan, amend its articles of
incorporation or association or by-laws;
(b) impose, or suffer the imposition, on any
share of stock held by it, of any material lien, charge or
encumbrance, or permit any such lien, charge or encumbrance to
exist;
(c) except as otherwise expressly permitted by
the Plan, repurchase, redeem, or otherwise acquire or exchange,
directly or indirectly, any shares of its capital stock or any
securities convertible into any shares of its capital stock,
(d) except as expressly contemplated by the Plan
or as previously disclosed, acquire direct or indirect control over
any entity, other than in connection with (i) internal
reorganizations or consolidations involving existing subsidiaries,
(ii) good faith foreclosures in the ordinary course of business,
(iii) acquisitions of control by the Bank in a bona fide fiduciary
capacity, (iv) investments made by small business investment
corporations or by subsidiaries that invest in unaffiliated
companies in the ordinary course of business, or (v) the creation of
new subsidiaries organized to conduct or continue activities
otherwise permitted by the Plan;
(e) except as previously disclosed, sell or
otherwise dispose of (i) any shares of its capital stock, (ii) any
substantial part of its assets or earning power, or (iii) any asset
other than in the ordinary course of business for reasonable and
adequate consideration;
(f) except as previously disclosed, incur any
additional material debt obligation or other obligation for borrowed
money other than (i) in replacement of existing short-term debt with
other short-term debt, (ii) financing of banking related activities
consistent with past practices, (iii) indebtedness to any of its
affiliates, except in the ordinary course of the business consistent
with past practices, or (iv) inter-company indebtedness;
(g) except as contemplated by the Plan, grant any
general increase in compensation or benefits to its employees or to
its officers, except in accordance with past practice or as required
by law; pay any bonus except in accordance with past practice or the
provisions of any applicable program or plan as in effect prior to
May 15, 1995, and which was previously disclosed; enter into any
severance agreements with any of its directors or officers except as
previously disclosed; grant any increase in fees or other increases
in compensation or other benefits to any of its present or former
directors; or effect any change in retirement benefits for any class
of its employees or officers (unless such change is required by
applicable law or, in the opinion of counsel, is necessary or
advisable to maintain the tax qualification of any plan under which
the retirement benefits are provided) that would materially increase
its retirement benefit liabilities on a consolidated basis;
(h) except as contemplated by the Plan or as
previously disclosed, amend any existing employment contract with
any person having a salary thereunder in excess of $50,000 per year
(unless such amendment is required by law) to increase the
compensation or benefits payable thereunder or extend the term
thereof or enter into any new employment contract with any person
having a salary thereunder in excess of $50,000 that it 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 Date; or
(i) except as contemplated by the Plan, adopt any
new employee benefit plan or make any material change in or to any
existing employee benefit plan other than (i) as previously
disclosed or (ii) 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.
Central has also agreed that until the earlier of the
Effective Date or the termination of the Plan, it will not declare
or pay any dividend or other distribution to its shareholders except
regular quarterly cash dividends on the shares of Central Common
Stock, at a rate not in excess of the regular quarterly cash
dividend most recently declared by Central prior to May 15, 1995.
Central has also agreed that neither it nor the
Bank will (except as may, in the written opinion of its counsel
promptly delivered to FCC, be required by fiduciary duty) solicit,
initiate, participate in discussions of, or encourage or take any
other action to facilitate (including by way of the disclosing or
furnishing of any information that it is not legally obligated to
disclose or furnish) any inquiry or the making of any proposal
relating to an acquisition transaction or a potential acquisition
transaction involving it (and, if any information is furnished, it
will be furnished only under a confidentiality agreement containing
the same provisions as the confidentiality agreement between Central
and FCC.) Central must instruct and otherwise use its best efforts
to cause its directors, officers, employees, agents, advisors,
consultants and other representatives to comply with the foregoing
prohibitions. Central also agreed to cease and cause to be
terminated any existing activities, discussions or negotiations with
any parties conducted heretofore with respect to any such
activities. Except as may, in the written opinion of its counsel
promptly delivered to FCC, be required by fiduciary duty, Central
may not negotiate with respect to any such proposal, nor reach any
agreement or understanding (formal or informal, written or
otherwise) with respect to any such proposal; Central also must
promptly notify FCC orally and in writing if it receives any such
inquiry or proposal. This agreement does not prohibit accurate
disclosure to the extent required by the securities laws or other
applicable law if in the opinion of Central's Board of Directors
disclosure is required under applicable law as to transactions
contemplated by the Plan.
Waiver, Amendment and Termination
The parties may waive in writing any of the conditions
to their respective obligations to consummate the Plan other than
the receipt of necessary regulatory and shareholder approvals. The
Plan, including all related agreements, may also be amended or
modified at any time, before or after its approval by the sharehold-
ers of Central or FCC, by mutual agreement, provided that any
amendment made after shareholder approval may not alter the amount
or type of shares into which Central Common Stock will be converted
or alter any term or condition of the Plan in a manner that would
adversely affect any shareholder of FCC or Central, without the
additional approval of shareholders.
The Plan may be terminated at any time prior to the
Effective Date by mutual consent or by either of the Companies if
(i) there is a material breach by the other Company of any
representation, warranty or covenant by it contained in the Plan
which cannot be cured by the earlier of 30 days after written notice
of such breach or June 30, 1996, (ii) all conditions to consummating
the Merger have not been met or waived, cannot be met, or the Merger
has not occurred, by June 30, 1996, (iii) any person or group
acquires beneficial ownership of 25% or more of the Common Stock of
the other Company; (iv) required regulatory applications are denied
or the shareholders of either Company fail to approve the Plan by
the requisite vote at either of the Meetings; or (v) the other
Company suffers a Material Adverse Change, as defined in the Plan
that is uncured after 30 days notice. The Board of Directors of
Central may terminate the Plan if all or a portion of the shares of
Central Common Stock issued pursuant to the exercise of the stock
option granted by the Option Agreement would not be cancelled by
virtue of the Merger. See "The Plan-Background and Reasons for the
Plan." The Board of Directors of FCC may terminate the Plan if
Central's Board of Directors resolves to withdraw, modify or
change its recommendation to Central's shareholders of the Plan, or
recommends any acquisition of Central other than the
Merger, and Central may terminate the Plan within 30 days of notice
to it by FCC that its Common Stock has been converted into or
exchanged for securities of another issuer.
Interests of Certain Persons
Indemnification and Insurance. FCC has agreed to
provide and to cause Central and the Bank to continue to provide,
for a period of 10 years from the Effective Date, all rights of
indemnification currently provided by Central and the Bank in favor
of their respective current and former employees, directors and
officers, on terms no less favorable than those provided in the
charter and by-laws of Central and the Bank, respectively, on May
15, 1995, or as otherwise in effect on that date, with respect to
matters occurring prior to the Effective Date, except that (i) the
aggregate liability of FCC, Central and the Bank shall not exceed
$30 million less the amount of any indemnification liability
incurred by Central or the Bank in favor of their respective current
and former employees, directors and officers after May 15, 1995, but
prior to the Effective Date; and (ii) no person shall be entitled to
indemnification unless, with respect to the matter for which
indemnification is sought, such person acted in good faith and in a
manner such person reasonably believed to be in, or not opposed to,
the best interests of Central or the Bank, as the case may be, and,
with respect to any criminal action or proceeding, had no reasonable
cause to believe such person's conduct was unlawful.
FCC has also agreed to indemnify and hold harmless
Central and the Bank, and each of their respective directors and
officers, and each controlling person of Central within the meaning
of the Securities Act of 1933, against any claims, suits,
proceedings, investigations or other actions ("Claims"), and any
related losses, damages, costs, expenses, liabilities or judgments,
whether joint, several or solidary, insofar as they arise out of or
are based upon an untrue statement or alleged untrue statement of a
material fact made in this Joint Proxy Statement and Prospectus or
the Registration Statement of which it is a part, or an omission or
alleged omission therefrom of a material fact necessary in order to
make the statements made therein, in light of the circumstances
under which they were made, not misleading, and will reimburse each
such person promptly as incurred for legal and other expenses
reasonably incurred in connection with investigating or defending
any such Claims; provided, that FCC will not be liable to the extent
that any such Claim arises out of or is based upon any such untrue
statement or omission or alleged untrue statement or omission made
in reliance on and in conformity with information furnished to FCC
by Central or the Bank or, with respect to any indemnified person,
by that person.
For ten years after the Effective Date, FCC will also
provide, if available, officers' and directors' liability insurance
in respect of acts or omissions of officers and directors of Central
and the Bank occurring prior to the Effective Date, including but
not limited to the transactions contemplated by the Plan, covering
each such person currently covered by Central's officers' and
directors' liability insurance policy, or who becomes covered by
such policy prior to the Effective Date, on terms with respect to
coverage and amount not materially less favorable than those of such
policy in effect on May 15, 1995, provided that FCC is not obligated
to pay premiums in excess of $150,000 per year. If the foregoing
insurance is not available for that amount, then FCC will provide
the maximum coverage that can be obtained for that amount.
Management. On the Effective Date, the Bank will
become a wholly-owned subsidiary of FCC. The Plan provides that the
Bank will retain its name and bank charter thereafter for the
foreseeable future to no less an extent as FCC's other principal
banking subsidiaries retain theirs. After the Effective Date, FCC
will amend the Articles of Incorporation and By-laws of the Bank so
as to be substantially identical to the Articles of Incorporation
and By-laws of its other Louisiana state bank subsidiary.
On the Effective Date, the Board of Directors of FCC
will consist of those persons who were directors of FCC on that date
(currently 20 persons) and, in addition, Messrs. Robert C. Cudd,
III, Hugh G. McDonald, Jr., Saul A. Mintz and Tom H. Scott, each of
whom is a director of Central and the Bank. All directors of FCC,
including such persons, will serve until the next annual meeting of
FCC shareholders or until their successors have been elected and
qualified. The Merger will not itself change the Board of Directors
of the Bank, except that it is anticipated that Messrs. Howard C.
Gaines and Thomas C. Jaeger, executive officers of FCC, will become
directors of the Bank at the Effective Date. After the Effective
Date, the Board of Directors of the Bank will serve at the
discretion of FCC, which will be the Bank's sole shareholder.
Employment Agreements. FCC and the Bank will enter into
employment contracts with each of Messrs. James A. Altick, Edmund L.
Pennington, Thomas J. Nicholson, Willis T. McGhinnis and Cary S. Davis
(collectively, the "Executives") for a term of five years in the case
of Mr. Altick and three years in the cases of the other Executives.
Mr. Altick will be employed as President and Chief
Executive Officer of the Bank and an Executive Vice President of
FCC, and the other Executives will be initially employed in
executive positions with the Bank.
Generally, each Executive will each be paid a base
salary equal to the base salary he was receiving from the Bank as of
the effective date of the Merger (plus an amount equal to the value of
certain benefits he received from the Bank that will not be received
after the Merger) and will be entitled to participate in FCC's bonus
and benefit plans. The base salary will be reviewed annually and may
be increased. If the Executive's employment is terminated for any
reason other than "cause," as defined in the contract, or his death
or disability, he will continue to receive his base salary and
certain benefits for the remainder of the term of the contract. In
addition, if his employment is terminated without cause or his
termination is "involuntary," as defined, he will also receive a
pro rata portion of his bonus for the year in which his employment
terminates. The forgoing payments are subject to the condition that
the Executive does not engage in the business of banking which is
directly competitive with FCC or its affiliates in the State of
Louisiana for a period that is the lesser of two years or the
remaining term of the contract.
Each Executive will receive a lump sum cash payment
within 45 days of the consummation of the Merger of $50,000 in the
case of Mr. Altick and $35,000 in the cases of the other Executives.
The Compensation Committee of the Board of Directors of
FCC will award within 30 days after the Effective Date, to officers
of the Bank to be selected by the Bank's Board of Directors, stock
options and stock appreciation rights under FCC's 1992 Stock
Incentive Plan covering in the aggregate up to 200,000 shares of FCC
Common Stock. It is anticipated that the options and rights would
be exercisable at the fair market value of FCC Common Stock on the
date of grant, the options will entitle the holder to purchase
shares of FCC Common Stock at the exercise price, and the rights
will entitle the holder to receive cash in an amount equal to the
appreciation of FCC Common Stock from the date of grant until the
date of exercise. It is also anticipated that the options and
rights will not be exercisable for one year from the date of grant,
will become exercisable thereafter in 25% increments each year
(unless accelerated by reason of certain events affecting FCC or by
action of the FCC Compensation Committee) and will expire eight
years from the date of grant.
As of the date of the Joint Proxy Statement and
Prospectus, the officers of the Bank who will receive such options
and rights, and the number of shares subject to such options and
rights that each would receive, had not been determined, but it is
anticipated that each of the above-named executive officers of the
Bank will receive options and rights.
For information as to benefits to be provided employees
of Central and the Bank generally, including the above-named
executive officers, see "Employee Benefits".
Directors' and Officers' Commitments. Each Central
director and executive officer has executed an agreement with FCC
pursuant to which he or she has agreed, solely in his or her
capacity as an owner of shares of Central Common Stock and not in
his or her capacity as a director or officer of Central, (i) to vote
in favor of the Plan and against any other proposal that would
prevent or impede the Merger, unless compliance with this provision
would be a breach of fiduciary duty as a director or officer of
Central, (ii) not to transfer any of his or her Central Common
Stock, or grant any proxy or other rights with respect thereto not
approved by FCC, except for transfers by operation of law or
transfers in connection with which the transferee agrees to be bound
by the agreement, (iii) to release FCC, as of the Effective Date,
from any obligation to indemnify such shareholder for acts taken as
an officer, director or employee of Central, except to the extent
set forth in the Plan, and (iv) for a period of two years following
the Effective Date not to serve as a management official or advisor
of any business that competes with the business of the Bank in the
Parishes of Ouachita, Lincoln, Rapides and Natchitoches (the
"Restricted Parishes"), or to solicit customers of the business of
the Bank within the Restricted Parishes.
Employee Benefits. After the Effective Date, FCC will
perform the obligations of Central under its Severance Plan
established in connection with the transactions described herein to
provide severance benefits to eligible employees of the Bank who are
terminated on or before the first anniversary of the consummation of
the Merger. The executive officers named under "Employment
Agreements" are not eligible for benefits under the Severance Plan.
The Severance Plan will generally provide a lump sum
cash benefit to eligible employees whose employment with the Bank is
terminated for reasons other than voluntary resignation, death,
cause or disability. No benefits are payable under the Severance
Plan on account of an employee's termination of employment with the
Bank if (a) the Bank transfers him to a position with an affiliate,
or (b) his termination occurs in connection with the sale or other
disposition of any assets, business, division, facility or operating
unit of the Bank and he is offered employment with the purchaser or
transferee or with an affiliate in a position at least comparable in
pay and position to that held with the Bank immediately prior to his
termination and is within 50 miles of his principal place of
employment with the Bank immediately prior to his termination. The
amount of the benefit generally depends on his years of service and
his pay: 3 months' pay if he has completed less than 4 years of
service, 4 months' if he has completed between 4 and 10 years, 7
months if he has completed between 10 and 20 years, and 9 months if
he has completed 20 or more years. "Pay" means the employee's
salary or wages at the rate in effect immediately prior to his
termination, excluding bonuses, overtime and premium pay, shift
differentials, incentive compensation and all other compensation.
At or prior to the Effective Date, all contributions to
be made to the Central Employee Stock Ownership Plan ("ESOP") and
the Bank's 401(k) Plan on behalf of participants in such plans for
periods prior to the Effective Date will be made, and all
participants in such plans will at the Effective Date have a fully
vested and nonforfeitable interest in their respective account
balances thereunder. No contributions will be made to such plans
for periods after the Effective Date. As soon as possible after the
Effective Date, FCC will take all actions that may be necessary or
required to terminate the ESOP and make available to participants
distributions from the ESOP in accordance with the terms of the ESOP
and applicable law, and to the extent that the ESOP does not provide
for distributions to a participant prior to such participant's
termination of employment, FCC will amend the ESOP to permit such
distributions to the extent permitted by law.
For periods after the Effective Date employees of
Central and the Bank will be eligible to participate in the FCC
Savings Plan, subject to the terms and conditions of such plan, as
it may be amended from time to time.
At the election of FCC at any time after the Effective
Date, Central's Retirement Plan may be terminated and/or future
benefit accruals thereunder may be frozen. Until such time as such
plan is terminated, to the extent not prohibited by applicable law,
the plan will continue to be maintained by the Bank or FCC after the
Effective Date for the benefit of each person who was employed by
Central or the Bank as of the Effective Date. If (i) the plan is
terminated, or (ii) future benefit accruals under the plan are
frozen, then highly compensated employees of Central will thereupon
be permitted to participate in FCC's Retirement Benefit Restoration
Plan if they meet the eligibility criteria set forth in such
Retirement Benefit Restoration Plan.
To the extent not prohibited by applicable law, the
Bank or FCC will continue to maintain the Central Retiree Benefit
Plan for the benefit of any employee or former employee of Central
or the Bank (or their eligible dependents) who, as of the Effective
Date (i) was receiving benefits thereunder, or (ii) had satisfied
the requirements for benefits thereunder (without regard to any
requirement that the employee terminate employment or commence
receipt of benefits under any other plan).
To the extent applicable, employees of Central and the
Bank will be given credit under each employee benefit plan, policy,
program and arrangement maintained by FCC after the Effective Date
for their service with Central or the Bank prior to the Effective
Date for all purposes other than benefit accrual under a defined
benefit plan (as defined in section 3(35) of the Employee Retirement
Income Security Act), including eligibility to participate, vesting,
satisfying any waiting periods, evidence of insurability
requirements, seniority or the application of any pre-existing
condition limitations.
Expenses
The Plan provides generally that expenses incurred in
connection with the Plan and the transactions contemplated thereby
will be borne by the party that has incurred them. Notwithstanding
the foregoing, a party (the "Expense Paying Party") must pay all of
the costs and expenses incurred by the other party (the "Reimbursed
Party") in connection with the Plan, including fees and expenses of
such Reimbursed Party's financial or other consultants, investment
bankers, accountants and counsel, if
(a) (i) the Plan is terminated by reason of a material
breach by the Expense Paying Party, (ii) the Reimbursed Party was
the party who terminated it, and (iii) the Expense Paying Party is
at the time of the termination not also entitled to terminate the
Plan by reason of a material breach of the Reimbursed Party; or
(b) a Purchase Event (as defined below under the
caption "The Option Agreement") occurs with respect to the Option
Agreement if Central is the Expense Paying Party and the Merger has
not been, or thereafter is not, consummated for any reason other
than a termination because of a material breach by the Reimbursed
Party.
In addition, if Central's expenses in connection with
the Plan, subject to certain exceptions, exceed $1,750,000, the
exchange ratio in the Merger will be reduced in proportion to the
amount of the excess. See "-Conversion of Central Common Stock."
Status Under Federal Securities Laws; Certain Restrictions on
Resales
The shares of FCC Common Stock to be issued pursuant to
the Plan have been registered under the Securities Act of 1933 (the
"Securities Act"), thereby allowing such shares to be freely traded
without restriction by persons who will not be "affiliates" of FCC
or who were not "affiliates" of Central, as that term is defined in
Rule 405 under the Securities Act.
Directors and certain officers of Central may be deemed
to be "affiliates" of Central, and those directors of Central who
will become directors of FCC may also be deemed to be "affiliates"
of FCC. Such persons will not be able to resell the FCC Common
Stock received by them unless such stock is registered for resale
under the Securities Act or an exemption from the registration re-
quirements of the Securities Act is available. All such affiliates
have entered into agreements not to sell shares of FCC Common Stock
received by them in violation of the Securities Act and the rules
and regulations thereunder.
In accordance with the requirements for using the
pooling-of-interests method of accounting, Central shareholders who
are deemed "affiliates" have agreed not to sell the shares of FCC
Common Stock received by them until at least 30 days of combined
earnings of FCC and Central have been published by FCC.
Accounting Treatment
It is a condition to FCC's obligation to consummate the
Plan that its or Central's independent public accountants or the
Commission shall not have taken the position that the Merger may not
be accounted for as a pooling-of-interests. Under the pooling-of-
interests method of accounting, after certain adjustments, the
recorded assets and liabilities of the Companies will be carried
forward to FCC's consolidated financial statements at their recorded
amounts, the consolidated earnings of FCC will include earnings of
the Companies for the entire fiscal year in which the Plan is
consummated, and the reported earnings of the Companies for prior
periods will be combined and restated as consolidated earnings of
FCC. See "- Conditions" and "- Status Under Federal Securities
Laws; Certain Restrictions on Resales."
THE OPTION AGREEMENT
As an inducement to FCC to enter into the Plan, Central
executed the Option Agreement, pursuant to which it granted an
option to FCC to acquire Central Common Stock (the "Option"). One
effect of the Option Agreement is to increase the likelihood that
the Merger will be consummated by making it more difficult and more
expensive for another party to obtain control of or acquire Central.
Among other things, the exercise of the Option would likely bar any
acquiror from accounting for an acquisition of Central using the
pooling-of-interests accounting method for a period of up to two
years. The following description does not purport to be complete
and is qualified in its entirety by reference to the Option
Agreement attached hereto as Appendix D.
The Option Agreement provides for the purchase by FCC
of up to 809,279 shares (the "Option Shares") of Central Common
Stock at an exercise price of $30 per share, subject to adjustment
as provided therein, payable in cash. The Option Shares, if issued
pursuant to the Option Agreement, would represent approximately
19.9% of the Central Common Stock outstanding on the date hereof.
The number of Option Shares will be increased to the extent that
additional shares of Central Common Stock are issued or otherwise
become outstanding (otherwise than pursuant to an exercise of the
Option) such that, after such issuance, the number of Option Shares
will continue to equal 19.9% of the Central Common Stock then
outstanding without giving any effect to the issuance of any Central
Common Stock subject to the Option. The number of shares of Central
Common Stock subject to the Option, and the applicable exercise
price per Option Share, also will be appropriately adjusted in the
event of any stock dividends, split-ups, mergers, recapitalizations,
combinations, subdivisions, conversions, exchanges of shares, or the
like, relating to Central.
Unless FCC shall have breached in any material respect
any covenant or agreement contained in the Plan and such breach
shall not have been cured after notice from Central, FCC may
exercise the Option, in whole or in part, subject to regulatory
approval, at any time after a Purchase Event (as defined below)
shall have occurred prior to termination of the Option. A "Purchase
Event" is the occurrence of any of the following:
(a)any person (other than FCC) shall have
commenced a bona fide tender or exchange offer to purchase shares of
Central Common Stock such that upon consummation of such offer such
person would own or control 20% or more of the outstanding shares of
Central Common Stock;
(b)Central or the Bank, without having received
FCC's prior written consent, shall have entered into an agreement
with any person (other than FCC), or any person other than FCC shall
have filed an application or notice with the Federal Reserve Board
or any other federal or state regulatory agency for clearance or
approval to, (i) merge or consolidate, or enter into any similar
transaction with Central or the Bank other than with respect to any
requirement of divestiture in connection with the Plan under the
federal banking or antitrust laws, (ii) purchase, lease, or
otherwise acquire any substantial portion of the assets of Central
or the Bank other than in the ordinary course of business, or
(iii) purchase or otherwise acquire (including by way of merger,
consolidation, share exchange, or any similar transaction)
securities representing 20% or more of the voting power of Central
or the Bank;
(c)any person (other than FCC, any FCC subsidiary,
or the Bank in a fiduciary capacity) shall have acquired beneficial
ownership or the right to acquire beneficial ownership of 10% or
more of the outstanding shares of Central Common Stock or common
stock of the Bank, excluding shares beneficially owned prior to May
15, 1995;
(d)any person (other than FCC or any FCC
subsidiary) shall have made a bona fide proposal to Central by
public announcement or written communication that is or becomes the
subject of public disclosure to (i) acquire Central or the Bank by
merger, consolidation, share exchange, purchase of all or
substantially all of its assets or any other similar transaction or
(ii) make an offer described in clauses (a) or (b), above; or
(e)Any person shall have solicited proxies in a
proxy solicitation subject to Regulation 14A under the Exchange Act
in opposition to approval of the Plan by Central's shareholders.
The Option terminates (a) on the Effective Date of the
Merger, (b) upon termination of the Plan in accordance with the
terms thereof prior to the occurrence of the first Purchase Event,
or (c) upon the earlier of (i) March 31, 1997, or (ii) the date that
is one year following the termination of the Plan, if such
termination occurs after the first Purchase Event.
Upon the occurrence of a Purchase Event that occurs
prior to the termination of the Option, FCC may demand while the
Option is exercisable that the Option (or part thereof) and the
related Option Shares (or part thereof) be registered under the
Securities Act of 1933 at Central's expense. Upon receipt of such
notice, Central must promptly effect such registration, subject to
certain exceptions. FCC is entitled to a second such registration
at FCC's expense.
Upon the occurrence of a Purchase Event prior to
termination of the Option, subject to applicable law and regulatory
approval, Central is required (a) at the request of FCC delivered
while the Option (in whole or in part) is exercisable, to repurchase
the Option at a price equal to the amount by which (i) the
market/offer price (as defined below) exceeds (ii) the option
exercise price multiplied by the number of shares for which the
Option may then be exercised; and (b) at the request of the owner of
Option Shares from time to time (the "Owner"), delivered while the
Option is exercisable (or if it has been fully exercised, would have
been exercisable had such exercise not been made), to repurchase
such number of the Option Shares from the Owner as the Owner
designates at a price equal to the market/offer price multiplied by
the number of shares so designated. The term "market/offer price"
means the highest of (i) the price per share of Central Common Stock
at which a tender offer or exchange offer therefor has been made
after May 15, 1995, (ii) the price per share of Central Common Stock
to be paid by any third party pursuant to any merger, consolidation,
share exchange or other agreement with Central entered into after
May 15, 1995, (iii) the highest closing price for shares of Central
Common Stock within the 30-day period immediately preceding the date
FCC gives notice of the required repurchase of the Option or the
Owner gives notice of the required repurchase of Option Shares, as
the case may be, or (iv) in the event of a sale of all or
substantially all of Central's assets, the sum of the price paid in
such sale for such assets and the current market value of the
remaining assets of Central as determined by a nationally recognized
investment banking firm selected by the parties (or by an arbitrator
if they cannot agree) divided by the number of shares of Central
Common Stock outstanding at the time of such sale. In determining
the market/offer price, the value of consideration other than cash
shall be determined by a nationally recognized investment banking
firm selected by the parties (or by an arbitrator if they cannot
agree), and such determination shall be conclusive and binding on
all parties.
Neither Central nor FCC may assign any of its
respective rights and obligations under the Option Agreement or the
Option to any other person without the express written consent of
the other party, except that if a Purchase Event shall have occurred
and be continuing, FCC, subject to the terms of the Option
Agreement, may assign in whole or in part its rights and obligations
thereunder, provided that until 30 days after the date on which the
Federal Reserve Board approves an application by FCC to acquire the
Option Shares, FCC may not assign its rights under the Option except
in (a) a widely dispersed public distribution, (b) a private
placement in which no one party acquires the right to purchase in
excess of 2% of the Central Common Stock, (c) an assignment to a
single party for the purpose of conducting a widely dispersed public
distribution on FCC's behalf, or (d) any other manner approved by
the Federal Reserve Board.
The rights and obligations of Central and FCC under the
Option Agreement are subject to receipt of any required regulatory
approvals. Without the prior approval of the Federal Reserve Board,
FCC may not acquire more than 5% of the outstanding Central Common
Stock. FCC intends to file an application for such approval as soon
as practicable.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following is a summary of the opinion of Arthur
Andersen LLP which the Companies expect to receive concerning the
material federal income tax consequences to holders of Central
Common Stock resulting from the Plan. Consummation of the Merger is
conditioned upon receipt by the Companies of such opinion dated the
date set for consummation of the Plan. The following is based upon
applicable federal law and judicial and administrative
interpretations on the date hereof, any of which is subject to
change at any time:
(a) The Merger qualifies as a reorganization under
Section 368(a)(1)(A) of the Internal Revenue Code (the "Code"), and
Central and FCC each will be a "party to a reorganization" within
the meaning of Section 368(b) of the Code.
(b) No material gain or loss will be recognized by
Central or FCC as a result of the Merger.
(c) No gain or loss will be recognized by a
shareholder of Central on the receipt solely of FCC Common Stock in
exchange for his shares of Central Common Stock.
(d) The basis of the shares of FCC Common Stock to be
received by Central's shareholders pursuant to the Plan will, in
each instance, be the same as the basis of the shares of Central
Common Stock surrendered in exchange therefor, increased by any gain
recognized on the exchange.
(e) The holding period of the shares of FCC Common
Stock to be received by Central's shareholders pursuant to the Plan
will, in each instance, include the holding period of the respective
shares of Central Common Stock exchanged therefor, provided that the
shares of Central Common Stock are held as capital assets on the
date of the consummation of the Plan.
(f) The payment of cash to Central's shareholders in
lieu of fractional share interests of FCC Common Stock will be
treated as if the fractional shares were distributed as part of the
exchange and then redeemed by FCC. These cash payments will be
treated as having been received as a distribution in redemption of
that fractional share interest subject to the conditions and
limitations of Section 302 of the Code. If a fractional share of
FCC Common Stock would constitute a capital asset in the hands of a
redeeming shareholder, any resulting gain or loss will be
characterized as capital gain or loss in accordance with the
provisions and limitations of Subchapter P of Chapter 1 of the Code.
(g) A Central shareholder who perfects his statutory
right to dissent and who receives solely cash in exchange for his
Central Common Stock will be treated as having received such cash
payment as a distribution in redemption of his shares of Central
Common Stock, subject to the provisions and limitations of Section
302 of the Code. After such distribution, if the former Central
shareholder does not actually or constructively own any Central
Common Stock, the redemption will constitute a complete termination
of interest and be treated as a distribution in full payment in
exchange for Central Common Stock redeemed.
The opinion of Arthur Andersen LLP is not binding on
the Internal Revenue Service, which could take positions contrary to
the conclusions in such opinion.
As a result of the complexity of the tax laws, and
because the tax consequences to any particular shareholder may be
affected by matters not discussed herein, it is recommended that
each shareholder consult his personal tax advisor concerning the
applicable federal, state and local income tax consequences of the
Plan.
CENTRAL SHAREHOLDERS' DISSENTERS' RIGHTS
With respect to Central, unless the Plan is approved by
the holders of at least 80% of its outstanding Common Stock, Section
131 of the LBCL allows a shareholder of Central who objects to the
Plan and who complies with the provisions of that section to dissent
from the Plan and to have paid to him in cash the fair cash value of
his shares of Central Common Stock as of the day before the Central
Meeting, as determined by agreement between the shareholder and FCC
or by the Civil District Court for the Parish of Orleans if the
shareholder and FCC are unable to agree. Shareholders of FCC are
not entitled to dissenters' rights.
To exercise the right of dissent, a Central shareholder
(i) must file with Central a written objection to the Plan prior to
or at the Central Meeting and (ii) must also vote his shares (in
person or by proxy) against the Plan at such Meeting. Neither a
vote against the Plan nor a specification in a proxy to vote against
the Plan will in and of itself constitute the necessary written
objection to the Plan. Moreover, by voting in favor of, or
abstaining from voting on, the Plan, or by returning the enclosed
proxy without instructing the proxy holders to vote against the
Plan, a shareholder waives his rights under Section 131. The right
to dissent may be exercised only by the record owners of the shares
and not by persons who hold shares only beneficially. Beneficial
owners who wish to dissent to the Plan should have the record
ownership of the shares transferred to their names or instruct the
record owner to follow the Section 131 procedure on their behalf.
If the Plan is approved by less than 80% of the total
number of shares of Central Common Stock outstanding, then promptly
after the Effective Date written notice of the consummation of the
Plan will be given by FCC by registered mail to each former
shareholder of Central who filed a written objection to the Plan and
voted against it at such shareholder's last address on Central's
records. Within 20 days after the mailing of such notice, the
shareholder must file with FCC a written demand for payment for his
shares at their fair cash value as of the day before the Central
Meeting and must state the amount demanded and a post office address
to which FCC may reply. He must also deposit the certificates
formerly representing his shares of Central Common Stock in escrow
with a bank or trust company located in Orleans Parish, Louisiana.
The certificates must be duly endorsed and transferred to FCC upon
the sole condition that they be delivered to FCC upon payment of the
value of the shares in accordance with Section 131. With the above-
mentioned demand, the shareholder must also deliver to FCC the
written acknowledgment of such bank or trust company that it holds
the certificate(s), duly endorsed as described above.
Unless the shareholder objects to and votes against the
Plan, demands payment, endorses and deposits his certificates and
delivers the required acknowledgment in accordance with the
procedures and within the time periods set forth above, the
shareholder will conclusively be presumed to have acquiesced to the
Plan and will forfeit any right to seek payment pursuant to Section
131.
If FCC does not agree to the amount demanded by the
shareholder, or does not agree that payment is due, it will, within
20 days after receipt of such demand and acknowledgment, notify such
shareholder in writing at the designated post office address of
either (i) the value it will agree to pay or (ii) its belief that no
payment is due. If the shareholder does not agree to accept
the offered amount, or disagrees with FCC's assertion that no
payment is due, he must, within 60 days after receipt of such
notice, file suit against FCC in the Civil District Court for the
Parish of Orleans for a judicial determination of the fair cash
value of the shares. Any shareholder entitled to file such suit
may, within such 60-day period but not thereafter, intervene as a
plaintiff in any suit filed against FCC by another former share-
holder for a judicial determination of the fair cash value of such
other shareholder's shares. If a shareholder fails to bring or to
intervene in such a suit within the applicable 60-day period, he
will be deemed to have consented to accept FCC's statement that no
payment is due or, if FCC does not contend that no payment is due,
to accept the amount specified by FCC in its notice of disagreement.
If upon the filing of any such suit or intervention FCC
deposits with the court the amount, if any, which it specified in
its notice of disagreement, and if in that notice FCC offered to pay
such amount to the shareholder on demand, then the costs (not
including legal fees) of the suit or intervention will be taxed
against the shareholder if the amount finally awarded to him,
exclusive of interest and costs, is equal to or less than the amount
so deposited; otherwise, the costs (not including legal fees) will
be taxed against FCC.
Upon filing a demand for the value of his shares, a
shareholder ceases to have any rights of a shareholder except the
rights created by Section 131. The shareholder's demand may be
withdrawn voluntarily at any time before FCC gives its notice of
disagreement, but thereafter only with the written consent of FCC.
If his demand is properly withdrawn, or if the shareholder otherwise
loses his dissenters' rights, he will be restored to his rights as a
shareholder as of the time of filing of his demand for fair cash
value.
Until the Effective Date, dissenting shareholders of
Central should send any communications regarding their rights to Mr.
Thomas J. Nicholson, Secretary, Central Corporation, 300 DeSiard
Street, Monroe, Louisiana 71201. After the Effective Date,
dissenting shareholders should send any communications regarding
their rights to Ms. Holly E. Hobson, Director of Investor Relations,
First Commerce Corporation, 925 Common Street, 7th Floor, New
Orleans, Louisiana 70112, or P. O. Box 60279, New Orleans, Louisiana
70160. All such communications should be signed by or on behalf of
the dissenting shareholder in the form in which his shares are
registered on the books of Central.
INFORMATION ABOUT CENTRAL
Copies of Central's Annual Report to Shareholders and
Quarterly Report on Form 10-Q accompany this Joint Proxy Statement
and Prospectus and should be read in conjunction herewith. In
addition, the following documents have been filed by Central with
the Commission and are incorporated by reference into this Joint
Proxy Statement and Prospectus: Central's Annual Report on Form 10-
K for the year ended December 31, 1994, Central's Quarterly Report
on Form 10-Q for the quarter ended March 31, 1995, and Central's
Report on Form 8-K dated May 25, 1995. See "Available Information"
for information with respect to securing copies of documents
incorporated by reference in this Joint Proxy Statement and
Prospectus.
INFORMATION ABOUT FCC
The following documents, or the indicated portions
thereof, have been filed by FCC with the Commission, and are
incorporated by reference into this Joint Proxy Statement and
Prospectus: FCC's Annual Report on Form 10-K for the fiscal year
ended December 31, 1994; FCC's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1995; FCC's Report on Form 8-K dated March
3, 1995, as amended by FCC's report on Form 8-K/A dated March 31,
1995; FCC's Report on Form 8-K dated May 8, 1995; FCC's Report on
Form 8-K dated May 31, 1995; and the description of FCC Common Stock
set forth in FCC's Applications for Registration on Form 8-A filed
with the Commission on November 9, 1972 and December 22, 1976, as
amended by a report on Form 8 filed with the Commission on June 19,
1989 and by a report on Form 8-A/A filed with the Commission on
August 12, 1993.
In addition, all other documents that will be filed by
FCC with the Commission pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 between the date of
this Joint Proxy Statement and Prospectus and the date of FCC's
Meeting are incorporated herein by reference from the date of
filing. See "Available Information" for information with respect to
securing copies of documents incorporated by reference in this Joint
Proxy Statement and Prospectus.
Any statement contained in a document incorporated or
deemed to be incorporated by reference shall be deemed to be
modified or superseded to the extent that a statement contained
herein or in any other document subsequently filed and incorporated
or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to
constitute a part of this Joint Proxy Statement and Prospectus.
COMPARATIVE RIGHTS OF SHAREHOLDERS
General
If the shareholders of Central approve the Plan and it
is subsequently consummated, all shareholders of Central, other than
those exercising dissenters' rights, will become shareholders of FCC
and their rights will be governed by and be subject to the Articles
of Incorporation ("Articles") and Bylaws of FCC rather than the
Articles and Bylaws of Central. The following is a brief summary of
certain of the principal differences between the rights of
shareholders of FCC and Central not described elsewhere herein.
Preferred Stock
The Board of Directors of FCC is authorized, without
action of its shareholders, to issue FCC preferred stock (the
"Preferred Stock") from time to time and to establish the designa-
tions, preferences and relative, optional or other special rights
and qualifications, limitations and restrictions thereof, as well as
to establish and fix variations in the relative rights as between
holders of any one or more series of such FCC Preferred Stock. The
authority of the Board of Directors includes but is not limited to
the determination or fixing of the following with respect to each
series of FCC Preferred Stock which may be issued: (i) the
designation of such series; (i) the number of shares initially
constituting such series; (i) the dividend rate and conditions and
the dividend preferences, if any, in respect of the FCC Common Stock
and among the series of FCC Preferred Stock; (i) whether, and upon
what terms, the FCC Preferred Stock would be convertible into or
exchanged for shares of any other class or other series of the same
class; (i) whether, and to what extent, holders of one or more
shares of a series of FCC Preferred Stock will have voting rights;
and (i) the restrictions, if any, that are to apply on the issue or
reissue of any additional FCC Preferred Stock.
Shares of FCC Preferred Stock that are authorized would
be available for issuance in connection with the acquisition of
other businesses, infusion of capital, or for other lawful corporate
purposes, at the discretion of the Board of Directors. The Board of
Directors could issue FCC Preferred Stock to a person or persons who
would support management in connection with a proxy contest to
replace an incumbent director or in opposition to an unsolicited
tender offer. As a result, such proposals or tender offers could be
defeated even though favored by the holders of a majority of the FCC
Common Stock. As of the FCC Record Date, FCC had ______ shares of
Preferred Stock outstanding.
The Articles of Central authorize the issuance of
preferred stock and authorize Central's Board of Directors to fix
the terms thereof, but any preferred stock so issued is required to
be
non-voting stock, and the vote of 80% of the total number of
directors of Central is required to authorize the issuance of any
preferred stock.
Vote Required for Corporate Action
In general, the affirmative vote of the holders of two-
thirds of the voting power of FCC present at a meeting of
shareholders is necessary whenever FCC shareholder approval is
required for an amendment of its Articles or a merger,
consolidation, sale of assets or dissolution. Central's Articles
generally have higher vote requirements, up to 80% of the total
voting power of Central, for similar actions not approved by at
least 80% of the number of directors of Central.
Directors
All of FCC's directors are elected annually and may be
removed without cause at any time by the vote of shareholders owning
a majority of FCC's voting power. Vacancies in FCC's Board of
Directors may be filled by a majority vote of the remaining
directors. The Board of Directors of Central is divided into three
approximately equal classes, with only one class elected each year
for three year terms. Directors may be removed only by shareholders
holding at least 70% of Central's voting power, and vacancies may be
filled only by the vote of two-thirds of the remaining directors.
In addition, Central's By-Laws contain provisions requiring advance
notice of intended director nominations; FCC's By-Laws do not
contain a similar requirement.
Business Combinations
Central's Articles contain extensive provisions
requiring the vote of up to 80% of Central's voting power to approve
a merger, consolidation or sale of assets not approved by at least
80% of the members of the Board of Directors of Central. FCC's
Articles do not contain similar provisions. Central's Articles also
require its Board of Directors, in considering a business
combination, to consider factors that the Board deems relevant,
including the effect on employees, customers and the community.
FCC's Articles do not have a similar provision but the LBCL allows
its directors to consider such factors.
LEGAL MATTERS
Correro, Fishman & Casteix, L.L.P., New Orleans,
Louisiana, has rendered its opinion that the shares of FCC Common
Stock to be issued in connection with the Plan have been duly
authorized and, if and when issued pursuant to the terms of the
Plan, will be validly issued, fully paid and non-assessable.
EXPERTS
The 1994 and 1993 consolidated financial statements of
Central incorporated in this Joint Proxy Statement and Prospectus by
reference from Central's Annual Report on Form 10-K for the year
ended December 31, 1994 have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report, which has been
incorporated herein by reference, and have been so incorporated in
reliance upon the report of such firm given upon their authority as
experts in accounting and auditing.
The 1992 consolidated financial statements of Central
incorporated by reference in Central's Annual Report (Form 10-K) for
the year ended December 31, 1994, have been audited by Ernst & Young
LLP, independent auditors, as set forth in their report thereon
included therein and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by
reference in reliance upon such report given upon the authority of
such firm as experts in accounting and auditing.
The audited consolidated financial statements of FCC
and its subsidiaries incorporated by reference herein have been
audited by Arthur Andersen LLP, independent public accountants, as
indicated in their report with respect thereto, and have been so
incorporated by reference in reliance upon the authority of such
firm as experts in accounting and auditing.
With respect to the unaudited consolidated interim
financial information of FCC and its subsidiaries incorporated by
reference herein from FCC's quarterly report on Form 10-Q, Arthur
Andersen LLP has applied limited procedures in accordance with
professional standards for a review of that information. However,
their separate report thereon states that they did not audit and
they do not express an opinion on that interim financial
information. Accordingly, the degree of reliance on their report on
that information should be restricted in light of the limited nature
of the review procedures applied. In addition, Arthur Andersen LLP
is not subject to the liability provisions of Section 11 of the
Securities Act for their report on the unaudited interim financial
information because that report is not a "report" or a "part" of the
registration statement prepared or certified by them within the
meaning of Sections 7 and 11 of the Securities Act.
OTHER MATTERS
At the time of the preparation of this Joint Proxy
Statement and Prospectus, neither Central nor FCC had been informed
of any matters to be presented for action at the Meetings other than
consideration of approval of the Plan. If any other matters come
before the Meetings or any adjournment thereof, the persons named in
the enclosed proxy will vote on such matters according to their best
judgment.
Shareholders are urged to sign the enclosed proxy and
return it at once in the enclosed envelope.
<PAGE>
FIRST COMMERCE CORPORATION
PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENTS
(Unaudited)
In addition to the proposed merger with Central Corporation
(Central), First Commerce Corporation (FCC) has two other
transactions pending which are described below. The unaudited
pro forma condensed combined balance sheet as of March 31, 1995
and the unaudited pro forma condensed combined statements of
income for the three months ended March 31, 1995 and for the
years ended December 31, 1994, 1993 and 1992 appearing on the
following pages give effect to the proposed mergers of Central,
Lakeside Bancshares, Inc. (Lakeside) and Peoples Bancshares, Inc.
(Peoples) into FCC. A brief description of each of the proposed
mergers follows.
FCC and Central, the parent company of Central Bank, Monroe,
Louisiana, have signed a definitive agreement to merge Central
into FCC. Under the terms of the agreement, Central Bank will
retain separate bank status and will become a wholly owned
subsidiary of FCC. Shareholders of Central will receive 1.67
shares, subject to reduction in certain limited circumstances not
expected to occur, of FCC common stock for each share of Central
common stock outstanding. The exact number of shares will be
determined at the time the merger is effected but in no event
will exceed 6,792,453 shares.
FCC and Lakeside have signed a definitive agreement to merge the
two companies and their respective subsidiaries, The First
National Bank of Lake Charles (FNBLC) and Lakeside National Bank
of Lake Charles (LNB). Shareholders of Lakeside will receive
shares of FCC common stock with a value of approximately $30
million. The exact number of shares will be determined at the
time the mergers are effected. All approvals have been received
for this merger and it is expected that the merger will be closed
on August 3, 1995.
FCC and Peoples have signed a definitive agreement to merge the
two companies. Peoples' majority owned subsidiary, Peoples Bank
and Trust Company of St. Bernard (Peoples Bank), will be merged
with FCC's wholly owned subsidiary, First National Bank of
Commerce. Shareholders of Peoples and the minority shareholders
of Peoples Bank will receive shares of FCC common stock with a
value of approximately $30.6 million. The exact number of shares
will be determined at the time the mergers are effected. Also,
under the terms of the Merger Agreement with Peoples, upon the
closing of the merger, certain properties which are leased by
Peoples from Peoples Properties Limited Partnership (Partnership)
will be purchased by FCC for a price of $2,678,000. The payment
of this consideration will be effected through the assumption by
FCC of the debt owed on these properties with an outstanding
principal balance of $2,678,000.
The proposed mergers are expected to be accounted for as
poolings-of-interests. The pro forma financial statements have
been prepared to reflect the consummation of all of the proposed
mergers. No assurance can be given, however, that any or all of
the mergers will be consummated, and consummation of one or more
of the proposed mergers is not a condition to the consummation of
any other proposed merger.
On February 17, 1995, FCC completed mergers with First
Bancshares, Inc. (First) and City Bancorp, Inc. (City). The
First merger was accounted for as a pooling-of-interests;
accordingly, FCC's financial statements have been restated. The
City merger was accounted for using the purchase method of
accounting. FCC's results of operations include nonrecurring
costs associated with these mergers of approximately $1.5 million
after taxes for the three months ended March 31, 1995 and $2
million after taxes for the year ended December 31, 1994.
No provision has been made for nonrecurring charges or credits
directly related to the proposed mergers in the pro forma
financial statements. Such charges are estimated to be $6 to $11
million after taxes. The unaudited pro forma condensed combined
balance sheet includes adjustments directly attributable to the
proposed mergers based on estimates derived from information
currently available.
The pro forma financial statements do not purport to be
indicative of the financial position or results of operations
that would actually have been obtained if the proposed mergers
had been in effect at such dates or for such periods, or of the
results that may be obtained in the future.
<PAGE>
FIRST COMMERCE CORPORATION
PRO FORMA CONDENSED COMBINED BALANCE SHEET (UNAUDITED)
March 31, 1995
(In thousands)
<TABLE>
<CAPTION>
Historical
_____________________________________ Lakeside Pro Forma Pro Forma
FCC Central Lakeside Peoples<F6> Divestiture<F1> Adjustments<F2> Combined
________ _________ _________ ____________ _______________ _________________ __________
<S> <C> <C> <C> <C> <C> <C> <C>
ASSETS
Cash and due from banks $343,176 $38,408 $12,562 $7,285 ($6,904) $- $394,527
Interest-bearing deposits
in other banks 151 137 8,990 - - - 9,278
Securities held to
maturity 10,179 84,751 39,564 20,953 - - 155,447
Securities available for
sale 2,590,376 35,742 9,010 68,210 - - 2,703,338
Trading account securities 13,613 - - - - - 13,613
Federal funds sold and
securities purchased
under resale agreements 2,825 56,035 2,123 17,000 - - 77,983
Loans and leases, net of
unearned income 3,577,687 594,709 92,913 54,706 (25,534) - 4,294,481
Allowance for loan
losses (57,828) (9,929) (3,028) (2,298) - - (73,083)
--------- -------- -------- ---------- ----------- ------------ ----------
Net loans and leases 3,519,859 584,780 89,885 52,408 (25,534) - 4,221,398
Premises and equipment 129,264 19,199 8,013 6,445 (701) - 162,220
Goodwill and other
intangible assets 21,064 826 - 397 - - 22,287
Other assets 248,819 14,174 1,756 4,951 (105) - 269,595
--------- -------- -------- ---------- ----------- ------------ ----------
Total assets $6,879,326 $834,052 $171,903 $177,649 $(33,244) - $8,029,686
========= ======== ======== ========== =========== ============ ==========
LIABILITIES
Noninterest-bearing
deposits $1,233,515 $114,959 $44,795 $33,093 ($11,067) $- $1,415,295
Interest-bearing
deposits 4,434,589 629,035 108,484 122,838 (25,735) - 5,269,211
--------- -------- -------- ---------- ----------- ------------ ----------
Total deposits 5,668,104 743,994 153,279 155,931 (36,802) - 6,684,506
Short-term borrowings 489,215 8,179 - - - - 497,394
Other liabilities 85,965 8,322 1,084 5,656 1,218 - 102,245
Long-term debt 88,665 774 - 479 - - 89,918
--------- -------- -------- ---------- ----------- ------------ ----------
Total liabilities 6,331,949 761,269 154,363 162,066 (35,584) - 7,374,063
--------- -------- -------- ---------- ----------- ------------ ----------
STOCKHOLDERS' EQUITY
Preferred stock 59,934 - - - - - 59,934
Common stock 147,234 4,067 1,250 602 - 38,333 <F3> 191,486
Capital surplus 140,262 15,904 2,500 3,026 - (38,599)<F3> 123,093
Retained earnings 232,139 52,975 13,882 12,733 2,340 - 314,069
Unearned restricted
stock compensation (1,056) - - - - - (1,056)
Treasury stock (13,760) - - (266) - 266<F3> (13,760)
Unrealized gain(loss) on
securities available
for sale (17,376) (163) (92) (512) - - (18,143)
--------- -------- -------- ---------- ----------- ------------ ----------
Total stockholders'
equity 547,377 72,783 17,540 15,583 2,340 - 655,623
--------- -------- -------- ---------- ----------- ------------ ----------
Total liabilities
and stockholders'
equity $6,879,326 $834,052 $171,903 $177,649 ($33,244) $8,029,686
========= ======== ======== ========== =========== ============ ==========
(See accompanying notes)
</TABLE>
<PAGE>
PRO FORMA CONDENSED COMBINED STATEMENT OF INCOME (UNAUDITED)
Three Months Ended March 31, 1995
(In thousands, except share data)
<TABLE>
<CAPTION>
Historical
-------------------------------------------------------------------- Pro Pro
Forma Forma
FCC Central Lakeside Peoples<F6> Adjustments Combined
-------------- -------------- -------------- -------------- -------------- --------------
<S> <C> <C> <C> <C> <C> <C>
Interest income $118,754 $16,295 $2,990 $2,958 $ - $140,986
Interest expense 48,508 6,551 692 1,048 - 56,799
-------------- -------------- -------------- -------------- -------------- --------------
Net interest income 70,246 9,744 2,298 1,899 - 84,187
Provision for loan losses 3,007 230 (75) - - 3,162
-------------- -------------- -------------- -------------- -------------- --------------
Net interest income after
provision for loan losses 67,239 9,514 2,373 1,899 - 81,025
Other income 16,204 4,201 743 444 - 21,592
Operating expense 67,668 9,000 2,130 1,915 - 80,713
-------------- -------------- -------------- -------------- -------------- --------------
Income before income tax
expense 15,775 4,715 986 428 - 21,904
Income tax expense 5,142 1,752 352 140 - 7,386
-------------- -------------- -------------- -------------- -------------- --------------
Net income 10,633 2,963 634 288 - 14,518
Preferred dividend
requirements 1,087 - - - - 1,087
-------------- -------------- -------------- -------------- -------------- --------------
Income applicable to
common shares $9,546 $2,963 $634 $288 $ - $13,431
============== ============== ============== ============== ============== ==============
Earnings per share <F4>
Primary $0.33 $0.73 $1.27 $11.84 $0.35
Fully diluted $0.33 $0.73 $1.27 $11.84 $0.35
Weighted average shares
outstanding <F4>
Primary 29,103,906 4,061,731 500,000 24,326 37,954,483
Fully diluted 29,103,906 4,061,731 500,000 24,326 37,954,483
(See accompanying notes)
</TABLE>
<PAGE>
PRO FORMA CONDENSED COMBINED STATEMENT OF INCOME (UNAUDITED)
Year Ended December 31, 1994
(In thousands, except share data)
<TABLE>
<CAPTION>
Historical
------------------------------------------------------------------ Pro Pro
Forma Forma
FCC Central Lakeside Peoples <FN6> Adjustments Combined
-------------- -------------- -------------- -------------- -------------- --------------
<S> <C> <C> <C> <C> <C> <C>
Interest income $427,790 $56,314 $11,533 $11,601 $- $507,238
Interest expense 156,522 21,084 2,724 3,625 - 183,955
-------------- -------------- -------------- -------------- -------------- --------------
Net interest income 271,268 35,230 8,809 7,976 - 323,283
Provision for loan losses (11,443) 1,025 - - - (10,418)
-------------- -------------- -------------- -------------- -------------- --------------
Net interest income after
provision for loan losses 282,711 34,205 8,809 7,976 - 333,701
Other income 69,564 16,132 3,238 1,707 - 90,641
Operating expense 253,659 34,531 9,710 7,624 - 305,524
-------------- -------------- -------------- -------------- -------------- --------------
Income before income
tax expense 98,616 15,806 2,337 2,059 - 118,818
Income tax expense 31,854 5,279 775 619 - 38,527
-------------- -------------- -------------- -------------- -------------- --------------
Net income 66,762 10,527 1,562 1,440 - 80,291
Preferred dividend
requirements 4,347 - - - - 4,347
-------------- -------------- -------------- -------------- -------------- --------------
Income applicable to
common shares $62,415 $10,527 $1,562 $1,440 $- $75,944
============== ============== ============== ============== ============== ==============
Earnings per share <F4>
Primary $2.15 $2.59 $3.12 $59.20 $2.01
Fully diluted $2.10 $2.59 $3.12 $59.20 $1.97
Weighted average shares
outstanding <F4>
Primary 29,022,779 4,066,731 500,000 24,326 37,873,356
Fully diluted 31,817,158 4,066,731 500,000 24,326 40,667,735
(See accompanying notes)
</TABLE>
<PAGE>
PRO FORMA CONDENSED COMBINED STATEMENT OF INCOME (UNAUDITED)
Year Ended December 31, 1993
(In thousands, except share data)
<TABLE>
<CAPTION>
Historical
---------------------------------------------------------------- Pro Pro
Forma Forma
FCC Central Lakeside Peoples<F6> Adjustments Combined
-------------- -------------- -------------- -------------- -------------- --------------
<S> <C> <C> <C> <C> <C> <C>
Interest income $413,973 $52,889 $11,999 $12,525 $- $491,386
Interest expense 148,353 20,084 3,207 3,819 - 175,463
-------------- -------------- -------------- -------------- -------------- --------------
Net interest income 265,620 32,805 8,792 8,706 - 315,923
Provision for loan losses (5,804) 3,080 - 300 - (2,424)
-------------- -------------- -------------- -------------- -------------- --------------
Net interest income after
provision for loan losses 271,424 29,725 8,792 8,406 - 318,347
Other income 104,964 15,898 3,256 1,816 - 125,934
Operating expense 231,665 32,404 9,764 7,859 - 281,692
-------------- -------------- -------------- -------------- -------------- --------------
Income before income
tax expense 144,723 13,219 2,284 2,363 - 162,589
Income tax expense 43,521 4,194 822 804 - 49,341
-------------- -------------- -------------- -------------- -------------- --------------
Net income <F5> 101,202 9,025 1,462 1,559 - 113,248
Preferred dividend
requirements 4,348 - - - - 4,348
Income applicable
to common shares $96,854 $9,025 $1,462 $1,559 $- $108,900
============== ============== ============== ============== ============== ==============
Earnings per share <F4>
Primary $3.36 $2.22 $2.92 $64.09 $2.89
Fully diluted $3.11 $2.22 $2.92 $64.09 $2.75
Weighted average shares
outstanding <F4>
Primary 28,837,748 4,066,731 500,000 24,326 37,688,325
Fully diluted 34,830,540 4,066,731 500,000 24,326 33,681,117
(See accompanying notes)
</TABLE>
<PAGE>
PRO FORMA CONDENSED COMBINED STATEMENT OF INCOME (UNAUDITED)
Year Ended December 31, 1992
(In thousands, except share data)
<TABLE>
<CAPTION>
Historical
-------------------------------------------------------------- Pro Pro
Forma Forma
FCC Central Lakeside Peoples <F6> Adjustments Combined
-------------- -------------- -------------- -------------- -------------- -------------
<S> <C> <C> <C> <C> <C> <C>
Interest income $419,196 $56,309 $13,593 $14,633 $- $503,731
Interest expense 170,031 25,979 4,798 5,197 - 206,005
-------------- -------------- -------------- -------------- -------------- -------------
Net interest income 249,165 30,330 8,795 9,436 - 297,726
Provision for loan losses 22,720 4,185 675 1,506 - 29,086
-------------- -------------- -------------- -------------- -------------- -------------
Net interest income after
provision for loan losses 226,445 26,145 8,120 7,930 - 268,640
Other income 98,682 14,498 4,167 1,882 - 119,229
Operating expense 213,515 30,270 10,383 7,862 - 262,030
-------------- -------------- -------------- -------------- -------------- -------------
Income before income tax
expense and minority
interest 111,612 10,373 1,904 1,950 - 125,839
Income tax expense 34,539 3,321 689 660 - 39,209
-------------- -------------- -------------- -------------- -------------- -------------
Net income before
minority interest 77,073 7,052 1,215 1,290 - 86,630
Earnings of minority
interest 918 - - - - 918
-------------- -------------- -------------- -------------- -------------- -------------
Net income 76,155 7,052 1,215 1,290 - 85,712
Preferred dividend
requirements 4,076 - - - - 4,076
-------------- -------------- -------------- -------------- -------------- -------------
Income applicable to
common shares $72,079 $7,052 $1,215 $1,290 $- $81,636
============== ============== ============== ============== ============== =============
Earnings per share <F4>
Primary $2.73 $1.73 $2.43 $53.03 $2.31
Fully diluted $2.58 $1.73 $2.43 $53.03 $2.26
Weighted average shares
outstanding <F4>
Primary 26,434,077 4,066,731 500,000 24,326 35,284,654
Fully diluted 32,273,902 4,066,731 500,000 24,326 41,124,479
(See accompanying notes)
</TABLE>
<PAGE>
NOTES TO PRO FORMA CONDENSED COMBINED
FINANCIAL STATEMENTS (Unaudited)
(1)In order to eliminate any concern about the competitive impact of the
proposed merger with Lakeside, FCC and Lakeside have committed to the
divestiture of two branches of LNB as required by regulators. The sale
of the two branches will include loans, deposits, premises and equipment,
and cash related to the branches. The amounts shown represent the
estimated book values of the assets and liabilities to be sold as a result
of these divestitures, for a premium of $3.6 million before taxes. The pro
forma condensed combined income statements do not reflect any adjustments
for the divestiture. Any such adjustments are estimated to be immaterial
to the pro forma combined results of operations.
(2)In connection with the proposed mergers, FCC will issue shares of its
common stock to the shareholders of Central, Lakeside and Peoples and
to the minority shareholders of Peoples Bank. To calculate pro forma
information, it has been assumed that the number of outstanding shares
of FCC common stock includes shares to be issued upon consummation of the
mergers.
Under the terms of the proposed merger with Central, the number of shares
of FCC common stock to be issued will be 1.67 times the number of Central
common shares outstanding at the date of the merger, not to exceed
6,792,453 shares. These pro formas assume the issuance of 6,791,441
shares of FCC common stock based on the number of shares of Central
common stock outstanding as of March 31, 1995.
Under the terms of the proposed merger with Lakeside, the number of
shares of FCC common stock to be delivered will be determined by
reference to the average of the closing sales prices of a share of FCC
common stock for the 20 trading days ending on the fifth trading day
before the closing date for the merger. For purposes of these pro
formas, the conversion rate has been assumed to be 2.05, based on the
average closing sales prices of a share of FCC common stock for the 20
trading days ending July 5, 1995 of $29.20.
Under the terms of the proposed merger with Peoples, the number of
shares of FCC common stock to be delivered will be determined by
reference to the average of the closing sales prices of a share of FCC
common stock for the 10 trading days ending on the last trading day
before the closing date for the merger. For purposes of these pro
formas , the conversion rate has been assumed to be 42.46 for each
share of Peoples common stock and 41.25 for each share of Peoples Bank
common stock owned by the minority interest, based on the average
closing sales prices of a share of FCC common stock for the 10 trading
days ending July 5, 1995 of $29.68.
(3)Calculation of Pro Forma Capital. As required by generally accepted
accounting principles under the pooling-of-interests method of accounting,
FCC's common stock account has been decreased by the balance in common
stock for Central, Lakeside and Peoples and increased by the par value
of the FCC common stock assumed to be issued under the proposed mergers.
An analysis of these adjustments follows (in thousands):
<TABLE>
<CAPTION>
Stockholders' Equity
----------------------------------------------------------------------
Loss On
Securities Total
Common Capital Retained Treasury Available Stockholders'
Stock Surplus Earnings Stock For Sale Equity
----------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Central (A) $33,957 $(13,986) $- $- $- $19,971
(4,067) (15,904) - - - (19,971)
Lakeside (B) 5,137 (1,387) - - - 3,750
(1,250) (2,500) - - - (3,750)
Peoples (C) 5,158 (1,796) - - - 3,362
(602) (3,026) - 266 - (3,362)
----------------------------------------------------------------------
$38,333 $(38,599) $- $266 $- $-
======================================================================
</TABLE>
(A) Issuance of 6,791,441 shares of FCC common stock for
4,066,731 shares of Central common stock in a transaction accounted
for as a pooling-of-interests. FCC's common stock account has been
decreased by the balance in Central's common stock account
($4,067,000) and increased by the par value of the FCC common stock
issued ($33,957,000).
(B) Issuance of 1,027,397 shares of FCC common stock for 500,000 shares
of Lakeside common stock in a transaction accounted for as a pooling-
of-interests. FCC's common stock account has been decreased by the
balance in Lakeside's common stock account ($1,250,000) and increased
by the par value of the FCC common stock issued ($5,137,000).
(C) Issuance of 1,031,739 shares of FCC common stock for 24,082 shares of
Peoples common stock (less 674 shares of treasury stock retired) and
for the minority interest in Peoples Bank in a transaction accounted
for as a pooling-of-interests. FCC's common stock account has been
decreased by the balance in Peoples common stock account ($602,000)
and increased by the par valule of the FCC common stock issued
($5,158,000).
(4)Pro forma earnings per share have been computed on the pro forma combined
weighted average shares outstanding. Pro forma combined weighted average
shares outstanding include weighted average outstanding shares of FCC
common stock, after adjustment for shares of FCC common stock assumed to
be issued in connection with the proposed mergers. Income for primary
earnings per share is adjusted for preferred stock dividends. Income for
fully diluted earnings per share is adjusted for interest related to
convertible debentures, net of the related income tax effect, and
preferred stock dividends. For the first quarter of 1995, convertible
items were antidilutive; therefore, the primary and fully diluted
earnings per share computations were the same.
(5)Lakeside and Peoples adopted Statement of Financial Accounting Standards
No. 109, "Accounting for Income Taxes" in 1993 and reported the cumulative
effect of this change in their respective 1993 consolidated statements of
income. The effect of this change was a $131,000 decrease in net income
for Lakeside and a $36,000 decrease in net income for Peoples. These
amounts are not considered to be components of ongoing results and,
accordingly, have not been included in the historical or combined pro
forma amounts presented.
(6)The Peoples historical information presented reflects Peoples Bancshares,
Inc., the Peoples Bank minority interest, and certain properties of the
Peoples Properties Limited Partnership. They are reflected in the pro
forma financial statements on a combined basis.
<PAGE>
FIRST COMMERCE CORPORATION
PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENTS
(Unaudited)
(Central Corporation Transaction Only)
The unaudited pro forma condensed combined balance sheet as of
March 31, 1995 and the unaudited pro forma condensed combined
statements of income for the three months ended March 31, 1995
and for the years ended December 31, 1994, 1993 and 1992
appearing on the following pages give effect to the proposed
merger of Central Corporation (Central) into First Commerce
Corporation (FCC) using the pooling-of-interests method of
accounting. A brief description of the proposed plan of merger
follows.
FCC and Central, the parent company of Central Bank, Monroe,
Louisiana, have signed a definitive agreement to merge Central
into FCC. Under the terms of the agreement, Central Bank will
retain separate bank status and will become a wholly owned
subsidiary of FCC. Shareholders of Central will receive 1.67
shares, subject to reduction in certain limited circumstances not
expected to occur, of FCC common stock for each share of Central
common stock outstanding. The exact number of shares will be
determined at the time the merger is effected but in no event
will exceed 6,792,453 shares.
On February 17, 1995, FCC completed mergers with First
Bancshares, Inc. (First) and City Bancorp, Inc. (City). The
First merger was accounted for as a pooling-of-interests;
accordingly, FCC's financial statements have been restated. The
City merger was accounted for using the purchase method of
accounting. FCC's results of operations include nonrecurring
costs associated with these mergers of approximately $1.5 million
after taxes for the three months ended March 31, 1995 and $2
million after taxes for the year ended December 31, 1994.
No provision has been made for nonrecurring charges or credits
directly related to the proposed merger in the pro forma
financial statements. Such charges are estimated to be $3 to $7
million after taxes. The unaudited pro forma condensed combined
balance sheet includes adjustments directly attributable to the
proposed merger based on estimates derived from information
currently available.
The pro forma financial statements do not purport to be
indicative of the financial position or results of operations
that would actually have been obtained if the proposed merger had
been in effect at such dates or for such periods, or of the
results that may be obtained in the future.
<PAGE>
FIRST COMMERCE CORPORATION
PRO FORMA CONDENSED COMBINED BALANCE SHEET (UNAUDITED)
March 31, 1995
(In thousands)
<TABLE>
<CAPTION>
Historical
---------------------------- Pro Pro
Forma Forma
FCC Central Adjustments<FN1> Combined
------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
ASSETS
Cash and due from banks $ 343,176 $ 38,408 $ - $ 381,584
Interest-bearing deposits in
other banks 151 137 - 288
Securities held to maturity 10,179 84,751 - 94,930
Securities available for sale 2,590,376 35,742 - 2,626,118
Trading account securities 13,613 - - 13,613
Federal funds sold and
securities purchased under
resale agreements 2,825 56,035 - 58,860
Loans and leases, net of
unearned income 3,577,687 594,709 - 4,172,396
Allowance for loan losses (57,828) (9,929) - (67,757)
------------- ------------- ------------- -------------
Net loans and leases 3,519,859 584,780 - 4,104,639
Premises and equipment 129,264 19,199 - 148,463
Goodwill and other intangible
assets 21,064 826 - 21,890
Other assets 248,819 14,174 - 262,993
------------- ------------- ------------- -------------
Total assets $ 6,879,326 $ 834,052 $ - $ 7,713,378
============= ============= ============= =============
LIABILITIES
Noninterest-bearing deposits $ 1,233,515 $ 114,959 $ - $ 1,348,474
Interest-bearing deposits 4,434,589 629,035 - 5,063,624
------------- ------------- ------------- -------------
Total deposits 5,668,104 743,994 - 6,412,098
Short-term borrowings 489,215 8,179 - 497,394
Other liabilities 85,965 9,096 - 95,061
Long-term debt 88,665 - - 88,665
------------- ------------- ------------- -------------
Total liabilities 6,331,949 761,269 - 7,093,218
------------- ------------- ------------- -------------
STOCKHOLDERS' EQUITY
Preferred stock 59,934 - - 59,934
Common stock 147,234 4,067 29,890 <FN2> 181,191
Capital surplus 140,262 15,904 (29,890)<FN2> 126,276
Retained earnings 232,139 52,975 - 285,114
Unearned restricted stock
compensation (1,056) - - (1,056)
Treasury stock (13,760) - - (13,760)
Unrealized gain(loss) on
securities available for sale (17,376) (163) - (17,539)
------------- ------------- ------------- -------------
Total stockholders' equity 547,377 72,783 - 620,160
------------- ------------- ------------- -------------
Total liabilities and
stockholdes' equity $ 6,879,326 $ 834,052 $ - $ 7,713,378
============= ============= ============= =============
(See accompanying notes)
</TABLE>
<PAGE>
PRO FORMA CONDENSED COMBINED STATEMENT OF INCOME (UNAUDITED)
Three Months Ended March 31, 1995
(In thousands, except share data)
<TABLE>
<CAPTION>
Historical
---------------------------- Pro Pro
Forma Forma
FCC Central Adjustments Combined
------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Interest income $ 118,754 $ 16,295 $ - $ 135,049
Interest expense 48,508 6,551 - 55,059
------------- ------------- ------------- -------------
Net interest income 70,246 9,744 - 79,990
Provision for loan losses 3,007 230 - 3,237
------------- ------------- ------------- -------------
Net interest income after
provision for loan losses 67,239 9,514 - 76,753
Other income 16,204 4,201 - 20,405
Operating expense 67,668 9,000 - 76,668
------------- ------------- ------------- -------------
Income before income tax expense 15,775 4,715 - 20,490
Income tax expense 5,142 1,752 - 6,894
------------- ------------- ------------- -------------
Net income 10,633 2,963 - 13,596
Preferred dividend requirements 1,087 0 - 1,087
------------- ------------- ------------- -------------
Income applicable to common shares $ 9,546 $ 2,963 $ - $ 12,509
============= ============= ============= =============
Earnings per share <FN3>
Primary $ 0.33 $ 0.73 $ 0.35
Fully diluted $ 0.33 $ 0.73 $ 0.35
Weighted average shares outstanding <FN3>
Primary 29,103,906 4,061,731 35,895,347
Fully diluted 29,103,906 4,061,731 35,895,347
(See accompanying notes)
</TABLE>
<PAGE>
PRO FORMA CONDENSED COMBINED STATEMENT OF INCOME (UNAUDITED)
Year Ended December 31, 1994
(In thousands, except share data)
<TABLE>
<CAPTION>
Historical
------------------------------ Pro Pro
Forma Forma
FCC Central Adjustments Combined
------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Interest income $ 427,790 $ 56,314 $ - $ 484,104
Interest expense 156,522 21,084 - 177,606
------------- ------------- ------------- -------------
Net interest income 271,268 35,230 - 306,498
Provision for loan losses (11,443) 1,025 - (10,418)
------------- ------------- ------------- -------------
Net interest income after
provision for loan losses 282,711 34,205 - 316,916
Other income 69,564 16,132 - 85,696
Operating expense 253,659 34,531 - 288,190
------------- ------------- ------------- -------------
Income before income tax expense 98,616 15,806 - 114,422
Income tax expense 31,854 5,279 - 37,133
------------- ------------- ------------- -------------
Net income 66,762 10,527 - 77,289
Preferred dividend requirements 4,347 - - 4,347
------------- ------------- ------------- -------------
Income applicable to common shares $ 62,415 $ 10,527 $ - $ 72,942
============= ============= ============= =============
Earnings per share <FN3>
Primary $ 2.15 $ 2.59 $ 2.04
Fully diluted $ 2.10 $ 2.59 $ 2.00
Weighted average shares outstanding <FN3>
Primary 29,022,779 4,066,731 35,814,220
Fully diluted 31,817,158 4,066,731 38,608,599
(See accompanying notes)
</TABLE>
<PAGE>
PRO FORMA CONDENSED COMBINED STATEMENT OF INCOME (UNAUDITED)
Year Ended December 31, 1993
(In thousands, except share data)
<TABLE>
<CAPTION>
Historical
------------------------------ Pro Pro
Forma Forma
FCC Central Adjustments Combined
------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Interest income $ 413,973 $ 52,889 $ - $ 466,862
Interest expense 148,353 20,084 - 168,437
------------- ------------- ------------- -------------
Net interest income 265,620 32,805 - 298,425
Provision for loan losses (5,804) 3,080 - (2,724)
------------- ------------- ------------- -------------
Net interest income after
provision for loan losses 271,424 29,725 - 301,149
Other income 104,964 15,898 - 120,862
Operating expense 231,665 32,404 - 264,069
------------- ------------- ------------- -------------
Income before income tax expense 144,723 13,219 - 157,942
Income tax expense 43,521 4,194 - 47,715
------------- ------------- ------------- -------------
Net income 101,202 9,025 - 110,227
Preferred dividend requirements 4,348 - - 4,348
------------- ------------- ------------- -------------
Income applicable to common shares $ 96,854 $ 9,025 $ - $ 105,879
============= ============= ============= =============
Earnings per share <FN3>
Primary $ 3.36 $ 2.22 $ 2.97
Fully diluted $ 3.11 $ 2.22 $ 2.82
Weighted average shares outstanding <FN3>
Primary 28,837,748 4,066,731 35,629,189
Fully diluted 34,830,540 4,066,731 41,621,981
(See accompanying notes)
</TABLE>
<PAGE>
PRO FORMA CONDENSED COMBINED STATEMENT OF INCOME (UNAUDITED)
Year Ended December 31, 1992
(In thousands, except share data)
<TABLE>
<CAPTION>
Historical
------------------------------ Pro Pro
Forma Forma
FCC Central Adjustments Combined
------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Interest income $ 419,196 $ 56,309 $ - $ 475,505
Interest expense 170,031 25,979 - 196,010
------------- ------------- ------------- -------------
Net interest income 249,165 30,330 - 279,495
Provision for loan losses 22,720 4,185 - 26,905
------------- ------------- ------------- -------------
Net interest income after
provision for loan losses 226,445 26,145 - 252,590
Other income 98,682 14,498 - 113,180
Operating expense 213,515 30,270 - 243,785
------------- ------------- ------------- -------------
Income before income tax expense
and minority interest 111,612 10,373 - 121,985
Income tax expense 34,539 3,321 - 37,860
------------- ------------- ------------- -------------
Net income before minority interest 77,073 7,052 - 84,125
Earnings of minority interest 918 0 - 918
------------- ------------- ------------- -------------
Net income 76,155 7,052 - 83,207
Preferred dividend requirements 4,076 - - 4,076
------------- ------------- ------------- -------------
Income applicable to common shares $ 72,079 $ 7,052 $ - $ 79,131
============= ============= ============= =============
Earnings per share <FN3>
Primary $ 2.73 $ 1.73 $ 2.38
Fully diluted $ 2.58 $ 1.73 $ 2.31
Weighted average shares outstanding <FN3>
Primary 26,434,077 4,066,731 33,225,518
Fully diluted 32,273,902 4,066,731 39,065,343
(See accompanying notes)
</TABLE>
<PAGE>
NOTES TO PRO FORMA CONDENSED COMBINED
FINANCIAL STATEMENTS (Unaudited)
(1) In connection with the proposed merger, FCC will issue shares of its
common stock to the shareholders of Central. To calculate pro forma
information, it has been assumed that the number of outstanding shares
of FCC common stock includes shares to be issued upon consummation of
the merger. Under the terms of the proposed merger with Central,
the number of shares of FCC common stock to be issued will be 1.67
times the number of Central common shares outstanding at the date of
the merger, not to exceed 6,792,453 shares. These pro formas assume
the issuance of 6,791,441 shares of FCC common stock based on the
number of shares of Central common stock outstanding as of March 31,
1995.
(2) Calculation of Pro Forma Capital. As required by generally accepted
accounting principles under the pooling-of-interests method of
accounting, FCC's common stock account has been decreased by the
balance in common stock for Central and increased by the par value of
the FCC common stock assumed to be issued under the proposed merger.
An analysis of these adjustments follows (in thousands):
<TABLE>
<CAPTION>
Stockholders' Equity
------------------------------------------------------------------------
Loss On
Securities Total
Common Capital Retained Treasury Available Stockholders'
Stock Surplus Earnings Stock For Sale Equity
------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Central (A) $ 33,957 $ (13,986) $ - $ - $ - $ 19,971
(4,067) (15,904) - - - (19,971)
------------------------------------------------------------------------
Total $ 29,890 $ (29,890) $ - $ - $ - $ -
========================================================================
</TABLE>
(A) Issuance of 6,791,441 shares of FCC common stock for 4,066,731 shares
of Central common stock in a transaction accounted for as a pooling-
of-interests. FCC's common stock account has been decreased by the
balance in Central's common stock account ($4,067,000) and increased
by the par value of the FCC common stock issued ($33,957,000).
(3) Pro forma earnings per share have been computed on the pro forma
combined weighted average shares outstanding. Pro forma combined
weighted average shares outstanding include weighted average
outstanding shares of FCC common stock, after adjustment for shares
of FCC common stock assumed to be issued in connection with the
proposed merger. Income for primary earnings per share is adjusted
for preferred stock dividends. Income for fully diluted earnings per
share is adjusted for interest related to convertible debentures, net
of the related income tax effect, and preferred stock dividends. For
the first quarter of 1995, convertible items were antidilutive;
therefore, the primary and fully diluted earnings per share
computations were the same.
<PAGE>
Appendix A
May 15, 1995
Board of Directors
Central Corporation
300 DeSiard Street
Monroe, Louisiana 71211
Ladies and Gentlemen:
In connection with the proposed acquisition of Central
Corporation ("Central") by First Commerce Corporation ("FCC")
(the "Merger"), you have asked us to render an opinion as to
whether the financial terms of the Merger, as provided in the
Agreement and Plan of Merger dated as of May 15, 1995 among such
parties (the "Merger Agreement"), are fair, from a financial
point of view, to the stockholders of Central. Under the terms
of the Merger, holders of all outstanding shares of Central
common stock will receive consideration equal to 1.67 shares of
FCC common stock per share of Central common stock, subject to
certain conditions.
Our firm, as part of its investment banking business, is
frequently involved in the valuation of securities as related to
public underwritings, private placements, mergers, acquisitions,
recapitalizations and other purposes.
In connection with our study for rendering this opinion, we have
reviewed the Merger Agreement, Central's financial results for
fiscal years 1990 through 1994 and for the quarter ended March
31, 1995, and certain documents and information we deem relevant
to our analysis. We have also held discussions with senior
management of Central for the purpose of reviewing the historical
and current operations of, and outlook for Central, industry
trends, the terms of the proposed Merger, and related matters.
We have also studied published financial data concerning certain
other publicly traded financial institutions which we deem
comparable to Central as well as certain financial data relating
to acquisitions of other financial institutions that we deem
relevant or comparable. In addition, we have reviewed other
published information, performed certain financial analyses and
considered other factors and information which we deem relevant.
We have reviewed similar information and data relating to FCC
including its historical financial statements, from fiscal 1990
up through and including the quarter ended March 31, 1995.
In rendering this opinion, we have relied upon the accuracy of
the Merger Agreement, the financial information listed above, and
other information furnished to us by Central and FCC. We have
not separately verified this information nor have we made an
independent evaluation of any of the assets or liabilities of
Central and FCC.
Based upon the foregoing and upon current market and economic
conditions, we are of the opinion that, from a financial point of
view, the terms of the Merger as provided in the Merger Agreement
are fair to the stockholders of Central.
Very truly yours,
THE ROBINSON-HUMPHREY COMPANY, INC.
<PAGE>
Appendix B
May 15, 1995
The Board of Directors
First Commerce Corporation
210 Baronne Street
New Orleans, LA 70160
Members of the Board:
You have requested our opinion as investment bankers as to the
fairness, from a financial point of view, to the stockholders of
First Commerce Corporation ("First Commerce") of the proposed
merger (the "Proposed Merger") of Central Corporation ("Central")
with and into First Commerce. Pursuant to an Agreement and Plan
of Merger (the "Merger Agreement") dated May 15, 1995 by and
among First Commerce and Central, Central would be merged with
and into First Commerce, with First Commerce as the surviving
entity, and each share of Common Stock of Central issued and
outstanding prior to the effective time of the Proposed Merger
will be exchanged for 1.67 shares of Common Stock of First
Commerce (the "Exchange Ratio"). It is our understanding that
the Proposed Merger will be accounted for as a pooling-of-
interests under generally accepted accounting principles.
Keefe, Bruyette & Woods, Inc., as part of its investment banking
business, is continually engaged in the valuation of bank and
thrift company securities in connection with acquisitions,
negotiated underwritings, secondary distributions of listed and
unlisted securities, private placements and valuations for
various other purposes. As specialists in the securities of
banking companies, we have experience in, and knowledge of, the
valuation of banking enterprises. In the ordinary course of our
business as a broker-dealer, we may, from time to time, purchase
securities from, and sell securities to, First Commerce and
Central, and as a market maker in securities we may from time to
time have a long or short position in, and buy or sell, equity
securities of First Commerce and Central for our own account and
for the accounts of our customers. To the extent we have any
such position as of the date of this opinion it has been
disclosed to First Commerce. We have acted exclusively for the
Board of Directors of First Commerce in rendering this fairness
opinion and will receive a fee from First Commerce for our
services.
In arriving at our opinion, we have reviewed, analyzed and relied
upon material bearing upon the financial and operating condition
of First Commerce and Central, including, among other things, the
following: (i) Annual Reports to Stockholders for the three years
ended December 31, 1994 for First Commerce and Central (ii)
certain interim reports to stockholders of First Commerce and
Central, Quarterly Reports of First Commerce and Central, and
certain other communications from First Commerce and Central to
their respective stockholders; (iii) other financial information
concerning the businesses and operations of First Commerce and
Central furnished to us by First Commerce for purposes of our
analysis, including certain internal financial analyses and
forecasts for First Commerce prepared by the senior management of
First Commerce; (iv) certain publicly available information
concerning trading of, and the trading market for, the Common
Stock of First Commerce and Central; and (v) certain publicly
available information with respect to banking companies and the
nature and terms of certain other transactions that we consider
relevant to our inquiry. Additionally, we have held discussions
with senior management at First Commerce concerning the past and
current operations, financial conditions and prospects and,
results of regulatory examinations.
We have considered such financial and other factors as we have
deemed appropriate under the circumstances, including among
others the following: (i) the historical and current financial
position, results of operations and assets and liabilities of
First Commerce and Central; and (ii) the nature and terms of
certain other transactions involving banks, bank holding
companies and thrift institutions. We have also taken into
account our assessment of general economic, market and financial
conditions and our experience in other transactions, as well as
our experience in securities valuation and our knowledge of
banks, bank holding companies and thrift institutions generally.
Our opinion is necessarily based upon conditions as they exist
and can be evaluated on the date hereof and the information made
available to us through the date hereof.
In conducting our review and arriving at our opinion, we have
relied upon and assumed the accuracy and completeness of all of
the financial and other information provided to us or publicly
available and we have not attempted independently to verify such
information. We have relied upon the management of First
Commerce as to the reasonableness and achievability of the
financial and operating forecasts (and the assumptions and bases
therefor) provided to us, and we have assumed that such forecasts
reflect the best currently available estimates and judgments of
such managements and that such forecasts, will be realized in the
amounts and in the time periods currently estimated by such
managements. We have also assumed, without independent
verification, that the aggregate allowances for loan losses for
First Commerce and Central are adequate to cover such losses.
We have not made or obtained any evaluations or appraisals of
the property of First Commerce and Central, nor have we examined
any individual loan credit files.
Based upon and subject to the foregoing, we are of the opinion
that, as of the date hereof, the Exchange Ratio in the Proposed
Merger is fair, from a financial point of view, to the
stockholders of First Commerce.
Very truly yours,
Keefe, Bruyette & Woods, Inc.
<PAGE>
Appendix C
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Agreement") is made
as of this 15th day of May, 1995, by and among CENTRAL
CORPORATION, a Louisiana corporation ("Central"); and FIRST
COMMERCE CORPORATION, a Louisiana corporation ("FCC").
R E C I T A L S
1. Each of Central and FCC is a registered bank holding
company under the BHC Act (such term and other capitalized terms
used in this Agreement are used as defined in Section I).
2. The Board of Directors of each of Central and FCC
believes that the transactions described in this Agreement are in
the best interests of such Party and its shareholders.
3. By virtue of the reorganization that is effectuated by
this Agreement, (a) Central will be merged into FCC, and (b) as a
result of the foregoing Merger, except as provided in this
Agreement, the then outstanding shares of Central Common Stock
will be converted into shares of FCC Common Stock.
4. The Merger is subject to prior approval of, among
others, the shareholders of each of Central and FCC, and the
Federal Reserve, and the prior satisfaction of certain other
conditions set forth in this Agreement.
5. Central has simultaneously executed and delivered its
Stock Option Agreement to FCC, by which Central grants to FCC an
option to purchase shares of Central Common Stock under certain
circumstances described therein.
6. The Parties intend that the reorganization contemplated
by this Agreement be accounted for as a pooling-of-interests and
that it qualify for federal income tax purposes as a tax-free
reorganization under Section 368(a)(1)(A) of the Internal Revenue
Code.
A G R E E M E N T
In consideration of the foregoing and of the mutual
warranties, representations, covenants and agreements set forth
herein, and for other good and valuable consideration the receipt
and sufficiency of which are acknowledged, the parties to this
Agreement agree as follows:
SECTION I.
DEFINITIONS
Except as may otherwise be provided in this Agreement, the
capitalized terms set forth below shall have the following
respective meanings, in their singular or plural forms as
applicable:
1.1 "Acquisition Transaction" shall mean, with respect to
each Party, any of the following: (i) a merger or consolidation
or share exchange, or any similar transaction (other than the
Merger), (ii) a purchase, lease or other acquisition of all or
substantially all the assets of such Party or any significant
subsidiary (as defined in Rule 1.02 of Regulation S-X of the SEC)
(a "Significant Subsidiary") of such Party, (iii) a purchase or
other acquisition of beneficial ownership by any person or
"group" (as such term is defined in Section 13(d)(3) of the 1934
Act) (including by way of merger, consolidation, share exchange
or otherwise) of securities representing 10% or more of the
voting power of such Party or any Significant Subsidiary of such
Party, but excluding the acquisition of beneficial ownership by
any employee benefit plan maintained or sponsored by such Party,
(iv) a tender or exchange offer to acquire securities
representing 10% or more of the voting power of such Party, (v) a
public proxy or consent solicitation made to shareholders of such
Party seeking proxies in opposition to any proposal that has been
recommended by the Board of Directors of such Party, (vi) the
filing of an application or notice with the Federal Reserve, or
other federal or state bank regulatory authority (which
application has been accepted for processing) seeking approval to
engage in one or more of the transactions referenced in clauses
(i) through (iv) above, or (vii) the making of a bona fide
proposal to such Party or its shareholders by public announcement
or written communication that is or becomes the subject of public
disclosure to engage in one or more of the transactions or events
referenced in clauses (i) through (v) above.
1.2 "Agreement" shall mean this Agreement and Plan of
Merger.
1.3 "BCL" shall mean the Louisiana Business Corporation
Law, as amended.
1.4 "BHC Act" shall mean the federal Bank Holding Company
Act of 1956, as amended.
1.5 "Closing" shall mean the closing of the transactions
contemplated hereunder which will take place as described in
Section 3.1 of this Agreement.
1.6 "Central Bank" shall mean Central Bank, a Subsidiary of
Central.
1.7 "Central Common Stock" shall mean the Common Stock, par
value $1.00 per share, of Central.
1.8 "Central Companies" shall mean, collectively, Central
and all Central Subsidiaries.
1.9 "Central ESOP" shall mean the Central Corporation
Employee Stock Ownership Plan.
1.10 "Central 401(k) Plan" shall mean the Central Bank
401(k) Savings Plan.
1.11 "Central Retiree Benefit Plan" shall mean the Central
Bank Group Medical Plan, which plan provides post-retirement
medical and life insurance benefits to eligible retired employees
of the Central Companies and their dependents.
1.12 "Central Retirement Plan" shall mean Retirement Plan
for Employees of Central Bank.
1.13 "Central Subsidiaries" shall mean the Subsidiaries of
Central, which shall include Central Bank and the Central
Subsidiaries described in Section 5.3 of this Agreement and any
corporation, bank, savings bank, association or other entity that
becomes a Subsidiary of Central in the future.
1.14 "Dissenters' Shares" shall mean shares of Central
Common Stock as to which dissenters' rights have been perfected
and not withdrawn or otherwise forfeited under Section 131 of the
BCL.
1.15 "Effective Time" shall mean the date and time at which
the Merger contemplated by this Agreement becomes effective, as
described in Section 3.2 of this Agreement.
1.16 "ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended.
1.17 "FCC Common Stock" shall mean the Common Stock, par
value $5.00 per share, of FCC.
1.18 "FCC Companies" shall mean, collectively, FCC and all
FCC Subsidiaries.
1.19 "FCC Retirement Plan" shall mean the Retirement Plan
for Employees of First Commerce Corporation.
1.20 "FCC Savings Plan" shall mean the First Commerce
Corporation Tax-Deferred Savings Plan.
1.21 "FCC Stock Incentive Plan" shall mean FCC's Amended and
Restated 1992 Stock Incentive Plan.
1.22 "FCC Stock Option Plans" shall mean the following
employee and/or director stock option and/or stock appreciation
rights plans of FCC: the FCC Stock Incentive Plan; and any
additional employee stock option plans and stock appreciation
rights plans assumed by FCC in connection with any acquisition
transaction involving FCC, in each case as such plans may be
amended.
1.23 "FCC Subsidiaries" shall mean the Subsidiaries of FCC,
which shall include the FCC Subsidiaries described in Section 5.3
of this Agreement and any corporation, bank, savings bank,
association or other entity that becomes or is acquired as a
Subsidiary of FCC in the future.
1.24 "Federal Reserve" shall mean the Board of Governors of
the Federal Reserve System.
1.25 "Financial Statements" shall mean (i) the consolidated
balance sheets (including relates notes and schedules, if any) of
a Party as of December 31, 1994 and 1993, and the related
consolidated statements of income, changes in stockholders'
equity, and cash flows (including related notes and schedules, if
any) for the respective periods then ended, as filed by such
Party in SEC Documents and (ii) the consolidated balance sheets
of such Party (including related notes and schedules, if any) and
related consolidated statements of income, changes in
stockholders' equity, and cash flows (including related notes and
schedules, if any) included in SEC Documents filed by such Party
with respect to periods ended subsequent to December 31, 1994.
1.26 "GAAP" shall mean generally accepted accounting
principles consistently applied.
1.27 "Internal Revenue Code" shall mean the Internal Revenue
Code of 1986, as amended.
1.28 "Joint Proxy Statement" shall mean the proxy statement
used by FCC and Central to solicit the approval of their
respective shareholders of the transactions contemplated by this
Agreement and the Merger Agreement.
1.29 "Market Value" shall mean the average of the closing
sales prices of a share of FCC Common Stock on the NASDAQ Stock
Market for the 15 business days ended on the last business day
before the Effective Time. In the event FCC changes the number
of shares of FCC Common Stock issued and outstanding as a result
of any stock split, stock dividend or other similar change in
FCC's capitalization, or if a distribution of securities is made
in respect of the FCC Common Stock as a result of any dividend
(other than regular quarterly cash dividends), spinoff or other
reorganization in which FCC Common Stock is not changed into or
exchanged for a different kind of securities, and in any such
case the record date is before the Effective Time and the ex-
dividend or ex-distribution date is subsequent to, or during, the
period during which Market Value is determined such that such
event is not reflected in any one or more of the closing sales
prices used to determine Market Value, the appropriate adjustment
shall be made in such closing sales price or prices so as to
reflect such change.
1.30 "Material Adverse Change" has the meaning given to such
term in Section 6.3.
1.31 "Merger Agreement" shall mean the Agreement of Merger,
substantially in the form attached hereto as Exhibit I, providing
for the Merger.
1.32 "Merger Parties" shall mean, collectively, FCC and
Central.
1.33 "Merger" shall mean the merger of Central into FCC.
1.34 "1933 Act" shall mean the Securities Act of 1933, as
amended.
1.35 "1934 Act" shall mean the Securities Exchange Act of
1934, as amended.
1.36 "Party" shall mean either FCC or Central, and "Parties"
shall mean FCC and Central.
1.37 "Previously Disclosed" shall mean, with respect to a
Party, information set forth in a disclosure schedule by such
Party to the other Party delivered to such other Party prior to
or contemporaneously with the execution and delivery of this
Agreement and accepted by such other Party (such acceptance to be
evidenced by such other Party executing an acknowledgment of
acceptance on such disclosure schedule). Following termination
of (but not during) the Notice Period that is referred to in
Section 9.1(h), "Previously Disclosed" shall also mean all
information about a Party that had been publicly disclosed in SEC
Documents filed by that Party prior to the date of this
Agreement. The preceding sentence shall not apply in determining
the right of either Party to terminate this Agreement during the
Notice Period under Section 9.1(h).
1.38 "Purchase Event" shall have the meaning given to such
term in the Stock Option Agreement.
1.39 "Registration Statement" shall mean the Registration
Statement on Form S-4 (or other appropriate form) and all
amendments and supplements thereto filed with the SEC by FCC
under the 1933 Act in connection with the transactions
contemplated by this Agreement.
1.40 "Regulatory Authorities" shall mean, collectively, the
Federal Reserve, the State Regulatory Commissioners and any other
federal or state banking, insurance, securities or other
regulatory authority whose approval is necessary to consummate
the transactions contemplated by this Agreement.
1.41 "SEC" shall mean the United States Securities and
Exchange Commission.
1.42 "SEC Documents" shall mean all reports, proxy
statements, registration statements and other documents filed by
a Party or any of its Subsidiaries pursuant to the Securities
Laws.
1.43 "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 the SEC
promulgated under each of such Acts.
1.44 "Shareholders' Meetings" shall mean the meetings of the
shareholders of FCC and Central to be held pursuant to
Section 7.1 of this Agreement, including any adjournments
thereof.
1.45 "State Regulatory Commissioners" shall mean any state
banking, insurance, securities or other regulatory authority
whose approval is necessary to consummate the transactions
contemplated by this Agreement, the Merger Agreement and the
Stock Option Agreement.
1.46 "Stock Option Agreement" shall mean the Stock Option
Agreement, in the form attached hereto as Exhibit II, to be dated
May 15, 1995, among Central and FCC.
1.47 "Subsidiaries" shall mean all those corporations,
banks, savings banks, associations and other entities of which
the Party in question owns or controls 5% or more of the
outstanding equity securities either directly or through an
unbroken chain of entities as to each of which 5% or more of the
outstanding equity securities is owned directly or indirectly by
such Party; provided, however, there shall not be included any
such entity acquired in good faith through foreclosure, or any
such entity to the extent that the equity securities of such
entity are owned or controlled in a bona fide fiduciary capacity,
through a small business investment corporation or otherwise as
an investment by an entity that invests in unaffiliated companies
in the ordinary course of business.
In Section V of this Agreement, the capitalized terms set
forth below shall have the following respective meanings, in
their singular or plural forms, as applicable:
1.48 "Warrantor" shall mean FCC or Central, as the case may
be.
1.49 "Warrantor Capital Stock" shall mean the FCC Capital
Stock or the Central Common Stock, as the context shall require,
which shall in this and each of the following cases depend on
whether the Warrantor is FCC or Central and will correspond
therewith.
1.50 "Warrantor Common Stock" shall mean the FCC Common
Stock or the Central Common Stock, as the context shall require.
1.51 "Warrantor Companies" shall mean the FCC Companies or
the Central Companies, as the context shall require.
1.52 "Warrantor Financial Statements" shall mean the
Financial Statements of Warrantor.
1.53 "Warrantor Shareholders' Meeting" shall mean the
Shareholders' Meeting of Warrantor.
1.54 "Warrantor Stock Option Plans" shall mean the FCC Stock
Option Plans or the Central Stock Option Plans, as the context
shall require.
1.55 "Warrantor Subsidiaries" shall mean the Subsidiaries of
Warrantor.
Other terms are defined as set forth hereinbelow.
SECTION II.
CERTAIN TRANSACTIONS AND TERMS OF MERGER
2.1 EXECUTION OF STOCK OPTION AGREEMENT. Simultaneously
with the execution of this Agreement and as a condition thereto,
Central has approved the execution and delivery of the Stock
Option Agreement and, on May 15, 1995, Central will execute and
deliver the Stock Option Agreement.
2.2 MERGER. Subject to the terms and conditions of this
Agreement, at the Effective Time, Central will be merged into and
with FCC in accordance with the Merger Agreement and the
provisions of Section 112 of the BCL, and FCC shall be the
corporation surviving such merger.
2.3 CONVERSION OF CENTRAL COMMON STOCK
(a) Except for Dissenters' Shares, at the Effective
Time each outstanding share of Central Common Stock will be
converted into that number of shares of FCC Common Stock as is
equal to (A) 1.670 (the "Conversion Ratio"), minus (B) the
quotient of (i)(a) the amount (if any) by which all expenses of
the Central Companies in connection with the transactions
contemplated by this Agreement exceed $1,750,000 divided by
(b) the Market Value of one share of FCC Common Stock; divided by
(ii) the number of shares of Central Common Stock outstanding at
the Effective Time. In calculating expenses of the Central
Companies for purposes of the preceding clause (B)(i)(a),
expenses which Central incurs directly or indirectly as a result
of the following shall not be included: (1) any action or
failure to act on the part of FCC; (2) any circumstances or
conditions surrounding the ongoing business operations or
regulatory compliance of FCC; or (3) any claims or proceedings,
regulatory or otherwise, with merit or not, brought against FCC
in connection with the transactions contemplated herein or which
significantly delay or impede FCC's performance in such
transactions. Central shall, at the Closing, deliver to FCC an
itemized list of all expenses of the type contemplated by
clause (B)(i)(a), including those to be excluded by reason of the
preceding sentence. The aggregate number of shares of FCC Common
Stock to be issued in the Merger, prior to any adjustment in
accordance with Section 2.3(c) or in accordance with clause
(B)(i)(a) of this Section 2.3(a), shall in no event exceed
6,792,453, plus, in the event of any issuance by Central of
shares of Central Common Stock pursuant to the Stock Option
Agreement ("Central Option Shares") the number of shares of FCC
Common Stock into which such Central Option Shares are converted
by virtue of the Merger.
(b) Shares of Central Common Stock that are held by
Central or any Central Subsidiary (other than shares held by such
a Subsidiary in a fiduciary capacity other than for Central or
any other Subsidiary of Central) shall not be considered to be
outstanding and shall be cancelled (and not converted) by virtue
of the Merger at the Effective Time and without any further
action by either Party. Central Option Shares (as defined in
Section 2.3(a)) that are held by FCC or any FCC Subsidiary (other
than Central Option Shares held by such a Subsidiary in a
fiduciary capacity other than for FCC or any other Subsidiary of
FCC) shall be cancelled (and not converted) by virtue of the
Merger at the Effective Time and without any further action by
either Party.
(c) If, prior to the Effective Time, Central (subject
to any restrictions contained in this Agreement) or FCC, as the
case may be, should split or combine the Central Common Stock or
the FCC Common Stock, or pay a stock dividend in Central Common
Stock or FCC Common Stock, or otherwise change the Central Common
Stock or FCC Common Stock into any other securities, or make any
other dividend or distribution in respect of the Central Common
Stock or the FCC Common Stock (other than normal cash dividends
as the same may be adjusted from time to time in accordance with
or not in violation of this Agreement), then the Conversion Ratio
(and, correspondingly, the maximum aggregate number of shares of
FCC Common Stock that may be issued in the Merger, as provided in
the last sentence of Section 2.3(a)) will be appropriately
adjusted to reflect such split, combination, dividend or other
distribution or change. No such change will be made that would
prevent the transactions contemplated by this Agreement from
being accounted for as a pooling-of-interests.
(d) In lieu of issuing any fractional share of FCC
Common Stock, each holder of Central Common Stock who would
otherwise be entitled thereto, after aggregating into whole
shares all fractional shares of FCC Common Stock to which such
holder is entitled by virtue of the Merger, upon surrender of the
certificate(s) which represented Central Common Stock, will
receive cash equal to such fractional share multiplied by the
Market Value.
(e) After the Effective Time, each holder of Central
Common Stock (other than Dissenters' Shares), upon surrender of
such holder's certificates therefor to FCC together with a
completed letter of transmittal in the form furnished by FCC,
will be entitled to receive the shares of FCC Common Stock into
which such holder's shares have been converted and cash in lieu
of any fractional share as provided above, less any applicable
tax withholding. Until then, each certificate for Central Common
Stock will represent the number of whole shares of FCC Common
Stock into which the shares of Central Common Stock represented
thereby were converted, except that FCC may refuse to pay any
dividend or other distribution payable to holders of any
unsurrendered certificate for Central Common Stock until
surrender or if such dividend or distribution has reverted in
full ownership to FCC under its Articles of Incorporation.
Whether or not a certificate for Central Common Stock is
surrendered, after the Effective Time it will not represent any
interest in any person other than FCC.
SECTION III.
CLOSING AND EFFECTIVE TIME
3.1 TIME AND PLACE OF CLOSING. The Closing will take place
at 10:00 a.m. on a mutually agreeable date as soon as practicable
following the last to occur of (i) the date that is the required
number of days after the date of the order of the Federal Reserve
approving the Merger pursuant to the BHC Act, (ii) the effective
date (including expiration of any applicable waiting period) of
the order of the final federal or state regulatory agency
approving the Merger or the expiration of all required waiting
periods after the filing of all required notices to all federal
or state regulatory agencies required to consummate the Merger,
and (iii) the date on which the shareholders of the Merger
Parties approve this Agreement; or if no date has been agreed to,
on the earliest date specified by either Party to the other upon
10 days notice following the last to occur of the foregoing. If
all conditions in Section VIII hereof are satisfied, or waived by
the Party entitled to grant such waiver, at the Closing (a) the
Parties shall each provide to the other such proof of
satisfaction of the conditions in Section VIII as the Party whose
obligations are conditioned upon such satisfaction may reasonably
request, (b) the certificates, letters and opinions required by
Section VIII shall be delivered, (c) the appropriate officers of
the Parties shall execute, deliver and acknowledge the Merger
Agreement, and (d) the Parties shall take such further action
including (without limitation) filing the Merger Agreement as is
required to consummate the transactions contemplated by this
Agreement. If on any date established for the Closing all
conditions in Section VIII hereof have not been satisfied or
waived by each Party entitled to grant such waiver, then either
Party, on one or more occasions, may declare a delay of the
Closing of such duration, not exceeding 10 business days, as the
declaring party shall select, but no such delay shall extend
beyond the date set forth in subparagraph (c) of Section 9.1, and
no such delay shall interfere with the right of any party to
declare a termination pursuant to Section IX. The place of
Closing shall be the Board Room of FCC, 210 Baronne Street,
3rd floor, New Orleans, Louisiana.
3.2 EFFECTIVE TIME. The Merger shall become effective on
the date of the Closing at the time at which the Merger Agreement
is accepted for filing by the Louisiana Secretary of State (or
such other time as is specified in the Merger Agreement).
SECTION IV.
MANAGEMENT AND
RELATED MATTERS FOLLOWING MERGER
4.1 BOARDS OF DIRECTORS OF FCC AND CENTRAL BANK
(a) At the Effective Time, by virtue of the Merger, the
Board of Directors of FCC shall consist of those persons serving
as Directors of FCC immediately prior to the Effective Time and,
in addition, Robert C. Cudd, III, Hugh G. McDonald, Jr., Saul A.
Mintz and Tom H. Scott. FCC shall take the appropriate steps to
effectuate the foregoing.
(b) The Merger will itself not change the Board of
Directors of Central Bank but the Parties shall take all required
action so that Howard C. Gaines shall become a Director of
Central Bank at the Effective Time.
4.2 MANAGEMENT OF FCC AND CENTRAL BANK
(a) At the Effective Time, by virtue of the Merger, the
officers of FCC shall consist of those persons serving as
officers of FCC immediately prior to the Effective Time and, in
addition, James A. Altick will at the Effective Time become an
Executive Vice-President of FCC with responsibility for FCC's
Northern Louisiana operations.
(b) At the Closing, Central will cause Central Bank to
enter into (i) a 5-year employment contract with James A. Altick,
as President and Chief Executive Officer of Central Bank, in the
form annexed hereto as Exhibit III, and (ii) a 3-year employment
contract with each of Cary S. Davis, Willis T. McGinnis,
Thomas J. Nicholson, and Edmund L. Pennington, in the forms
annexed hereto as Exhibits IV-A through IV-D, respectively.
(c) FCC represents that the Committee that administers
the FCC Stock Incentive Plan has agreed, in connection with the
transactions contemplated by this Agreement, to award within
30 days following the Closing (to the extent by then selected) to
officers of Central Bank to be selected by Central Bank's Board
of Directors conformably with the provisions of such Plan, in
amounts so selected and conforming, stock options and stock
appreciation rights covering in the aggregate up to 200,000
shares of FCC Common Stock under the FCC Stock Incentive Plan,
which number of shares is subject to adjustment in the manner
provided in the Plan with respect to stock splits, stock
dividends and similar events affecting FCC Common Stock.
4.3 CORPORATE STRUCTURE. At the Effective Time Central
Bank will become a wholly owned subsidiary of FCC and will retain
its name and bank charter thereafter for the foreseeable future
to no less an extent as FCC's other principal banking
subsidiaries retain theirs.
4.4 EMPLOYEES AND BENEFITS
(a) After the Effective Time, FCC will perform the
obligations of Central under its Severance Plan that is annexed
hereto as Exhibit V.
(b) At or prior to the Closing, the Central Companies
shall cause all contributions to be made to the Central ESOP on
behalf of participants in the Central ESOP for periods prior to
the Closing, and all participants in the Central ESOP shall at
the Effective Time have a fully vested and nonforfeitable
interest in their respective account balances thereunder. The
parties agree that no contributions shall be made to the Central
ESOP for periods after the Closing and, as soon as possible after
the Effective Time, FCC, as successor to Central under and with
respect to the Central ESOP, shall take all actions that may be
necessary or required to terminate the Central ESOP and make
available to participants distributions from the Central ESOP in
accordance with the terms of the ESOP and applicable law. To the
extent that the Central ESOP does not provide for distributions
to a participant prior to such participant's termination of
employment, FCC shall amend the Central ESOP to permit such
distributions to the extent permitted by law.
(c) At or prior to the Closing, the Central Companies
shall cause all contributions to be made to the Central 401(k)
Plan on behalf of participants in the Central 401(k) Plan for
periods prior to the Closing, and all participants in the Central
401(k) Plan shall at the Effective Time have a fully vested and
nonforfeitable interest in their respective account balances
thereunder. For periods on and after the Closing, employees of
the Central Companies shall be eligible to participate in the FCC
Savings Plan, subject to the terms and conditions of such Plan,
as it may be amended from time to time. No contributions shall
be made to the Central 401(k) Plan for periods after the Closing.
(d) The parties hereby agree that at the election of
FCC at any time after the Effective Time, the Central Retirement
Plan may be terminated and/or future benefit accruals thereunder
may be frozen. Until such time as such Plan is terminated, to
the extent not prohibited by applicable law, the Central
Retirement Plan shall continue to be maintained by Central Bank
or the FCC Companies after the Closing for the benefit of each
person who was employed by the Central Companies as of the
Closing. If (i) the Central Retirement Plan is terminated, or
(ii) future benefit accruals under the Central Retirement Plan
are frozen, then highly compensated employee(s) of Central will
thereupon be permitted to participate in FCC's Benefit
Restoration Plan (a "Top Hat" plan of FCC) if they meet the
eligibility criteria set forth in such Benefit Restoration Plan.
(e) The parties hereby agree that, to the extent not
prohibited by applicable law, Central Bank or the FCC Companies
shall continue to maintain the Central Retiree Benefit Plan for
the benefit of any employee or former employee of the Central
Companies (or their eligible dependents) who, as of the Closing
(i) was receiving benefits thereunder, or (ii) had satisfied the
requirements for benefits thereunder (without regard to any
requirement that the employee terminate employment or commence
receipt of benefits under any other plan).
(f) To the extent applicable, employees of the Central
Companies shall be given credit under each employee benefit plan,
policy, program and arrangement maintained by the FCC Companies
after the Closing for their service with the Central Companies
prior to the Closing for all purposes other than benefit accrual
under a defined benefit plan (as defined in section 3(35) of
ERISA), including, eligibility to participate, vesting,
satisfying any waiting periods, evidence of insurability
requirements, seniority or the application of any pre-existing
condition limitations.
4.5 INDEMNIFICATION AND INSURANCE.
(a) FCC agrees to provide and to cause the Central
Subsidiaries to continue to provide for a period of 10 years from
and after the Effective Time, all rights of indemnification
currently provided by Central and the Central Subsidiaries in
favor of their respective current and former employees, directors
and officers, on terms no less favorable than those provided in
the charter and by-laws of Central and the Central Subsidiaries,
respectively, on the date of this Agreement, or as otherwise in
effect on the date of this Agreement, with respect to matters
occurring prior to the Effective Time, except that (i) the
aggregate liability of FCC and the Central Subsidiaries under
this Section 4.5(a) shall not exceed $30 million less the amount
of any indemnification liability incurred by Central or the
Central Subsidiaries in favor of their respective current and
former employees, directors and officers after the date of this
Agreement but prior to the Effective Time; and (ii) no person
shall be entitled to indemnification unless, with respect to the
matter for which indemnification is sought, such person acted in
good faith and in a manner such person reasonably believed to be
in, or not opposed to, the best interests of Central or the
Central Subsidiary, as the case may be, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
such person's conduct was unlawful.
(b) FCC will indemnify and hold harmless the Central
Companies, and each of their respective directors and officers,
and each controlling person of Central within the meaning of the
1933 Act, against any claims, suits, proceedings, investigations
or other actions ("Claims"), and any related losses, damages,
costs, expenses, liabilities or judgments, whether joint, several
or solidary, insofar as they arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact
made in the Registration Statement or the Joint Proxy Statement,
or an omission or alleged omission therefrom of a material fact
necessary in order to make the statements made therein, in light
of the circumstances under which they were made, not misleading,
and will reimburse each such person promptly as incurred for
legal and other expenses reasonably incurred in connection with
investigating or defending any such Claims; provided, that FCC
will not be liable to the extent that any such Claim arises out
of or is based upon any such untrue statement or omission or
alleged untrue statement or omission made in reliance on and in
conformity with information furnished to FCC by any Central
Company or, with respect to any indemnified person, by that
person.
(c) Any indemnified person wishing to claim
indemnification under Section 4.5, upon learning of any claim,
shall notify FCC thereof as promptly as is practicable, but the
failure so to notify FCC shall not relieve FCC from any
obligation it has under this Section 4.5 except to the extent it
is actually prejudiced by such failure. FCC shall have the right
to assume the defense thereof and shall not be liable for any
expenses subsequently incurred by such indemnified person in
connection with the defense thereof, except that if FCC does not
assume or continue to pursue such defense, or counsel for the
indemnified person advises in writing that there are material
substantive issues that raise conflicts of interest between FCC
and the indemnified person, then the indemnified person may
retain counsel satisfactory to such person (and reasonably
satisfactory to FCC), and FCC shall pay all reasonable fees and
expenses of such counsel promptly as incurred, provided that (i)
FCC shall not be obligated to pay for more than one counsel for
all indemnified persons in any jurisdiction except as may be
required due to conflicts of interest, (ii) the indemnified
persons will cooperate (to the extent reasonably appropriate
under the circumstances) in the defense of any such claim, and
(iii) FCC shall not be liable for any settlement effected without
its prior written consent.
(d) For ten years after the Effective Time, FCC shall
provide, if available, officers' and directors' liability
insurance in respect of acts or omissions of officers and
directors of the Central Companies occurring prior to the
Effective Time, including but not limited to the transactions
contemplated by this Agreement, covering each such Person
currently covered by Central's officers' and directors' liability
insurance policy, or who becomes covered by such policy prior to
the Effective Time, on terms with respect to coverage and amount
not materially less favorable than those of such policy in effect
on the date hereof, provided that in satisfying its obligation
under this Section, FCC shall not be obligated to pay premiums in
excess of $150,000 per year. If the foregoing insurance is not
available for that amount, then FCC shall provide the maximum
coverage that can be obtained for that amount. Determinations as
to the availability and comparability and selection of coverage,
and all other determinations necessary to implement this
Section 4.5(d), shall be made in FCC's sole discretion (but in
good faith), and FCC shall have no liability for any such
determination so made.
(e) In the event FCC or any of its successors or
assigns (i) reorganizes or consolidates with or merges into or
enters into another business combination transaction with any
other person or entity and is not the resulting, continuing or
surviving corporation or entity of such reorganization,
consolidation, merger or transaction or (ii) liquidates,
dissolves or transfers all or substantially all of its properties
and assets to any person or entity, then, and in each such case,
proper provisions will be made so that such surviving corporation
or transferee and its successors and assigns assume the
obligations set forth in this Section 4.5.
SECTION V.
REPRESENTATIONS AND WARRANTIES OF
FCC AND CENTRAL
Each of FCC and Central (each a "Warrantor") hereby
represents and warrants to the other of them the following
information, to the extent such information pertains to itself,
its Subsidiaries, and/or its or their business or affairs:
5.1 ORGANIZATION, STANDING, AND AUTHORITY. Warrantor is a
corporation duly organized, validly existing, and in good
standing under the laws of the State of Louisiana, and is duly
qualified to do business and in good standing in the States of
the United States and foreign jurisdictions where its ownership
or leasing of property or the conduct of its business requires it
to be so qualified and in which the failure to be duly qualified
would, either individually or in the aggregate, have a material
adverse effect on the financial condition, results of operations
or, to Warrantor's best knowledge, business prospects of the
Warrantor Companies taken as a whole on a consolidated basis or
Warrantor's ability to consummate the transactions contemplated
by this Agreement and the Stock Option Agreement on the terms
herein and therein provided (a "Warrantor Material Adverse
Effect"). Warrantor has corporate power and authority to carry
on its business as now conducted, to own, lease and operate its
assets, properties and business, and to execute and deliver, and
to perform its obligations under, this Agreement and the Stock
Option Agreement. Warrantor is duly registered as a bank holding
company under the BHC Act. Warrantor has in effect all federal,
state, local and foreign governmental authorizations necessary
for it to own or lease its properties and assets and to carry on
its business as it is now conducted, the absence of which would,
either individually or in the aggregate, have a Warrantor
Material Adverse Effect.
5.2 CAPITAL STOCK.
(a) The authorized, issued and outstanding capital
stock of Warrantor as of the date of this Agreement, the number
of shares of Warrantor Common Stock reserved for issuance under
the Warrantor Stock Option Plans as of such date and the number
of shares of Warrantor Common Stock that are subject to
outstanding options under such Plans as of such date, are set
forth in the section of Schedule 5.2(a) attached hereto that
pertains to Warrantor. All of the issued and outstanding shares
of Warrantor Capital Stock are duly and validly authorized and
issued and are fully paid and non-assessable. None of the
outstanding shares of Warrantor Capital Stock has been issued in
violation of any preemptive rights of the current or past
shareholders of Warrantor.
(b) Except as Previously Disclosed or set forth in
Section 5.2(a) or Schedule 5.2(a) and except as provided under
the Stock Option Agreement, there are, as of the date of this
Agreement and, with respect to Central, will be at the Effective
Time no shares of capital stock or other equity securities of
Warrantor outstanding and, with respect to Central, no
outstanding options, warrants, scrip, rights to subscribe to,
calls or commitments of any character whatsoever relating to, or
securities or rights convertible into or exchangeable for, shares
of the capital stock of Central or contracts, commitments,
understandings or arrangements by which Central is or may be
bound to issue additional shares of its capital stock or options,
warrants or rights to purchase or acquire any additional shares
of its capital stock.
5.3 WARRANTOR SUBSIDIARIES. Exhibit 22 to Warrantor's
Annual Report on Form 10-K for the fiscal year ended December 31,
1994, as supplemented or updated by information Previously
Disclosed, lists all of the Warrantor Subsidiaries that are
Significant Subsidiaries (as defined in Section 1.1) ("Warrantor
Significant Subsidiaries")as of the date of this Agreement. Each
of the Warrantor Significant Subsidiaries that is a bank is an
"insured depository institution" as defined in the Federal
Deposit Insurance Act and applicable regulations thereunder. No
equity securities of any of the Warrantor Significant
Subsidiaries are or may become required to be issued (other than
to Warrantor) by reason of any options, warrants, scrip, rights
to subscribe to, calls or commitments of any character whatsoever
relating to, or securities or rights convertible into or
exchangeable for, shares of the capital stock of any Warrantor
Significant Subsidiary, and there are no contracts, commitments,
understandings or arrangements by which any Warrantor Significant
Subsidiary is bound to issue (other than to Warrantor) additional
shares of its capital stock or options, warrants or rights to
purchase or acquire any additional shares of its capital stock.
There are no contracts, commitments, understandings or
arrangements by which any of the Warrantor Companies is or may be
bound to sell or otherwise transfer any shares of the capital
stock of any Warrantor Significant Subsidiary, except for a
transfer to any of the Warrantor Companies, and there are no
contracts, commitments, understandings or arrangements relating
to the rights of any Warrantor Company to vote or to dispose of
such shares. Except as provided in 12 U.S.C. Section 55 in the
case of Warrantor Significant Subsidiaries that are national
banks or Louisiana Revised Statutes 6:262 in the case of
Warrantor Significant Subsidiaries that are state banks, all of
the shares of capital stock of each Warrantor Significant
Subsidiary held by Warrantor or a Warrantor Subsidiary are fully
paid and non-assessable and are owned by Warrantor or a Warrantor
Subsidiary free and clear of any claim, lien or encumbrance.
Except as Previously Disclosed, each Warrantor Significant
Subsidiary is either a national banking association, a state
bank, a state savings bank or a corporation, and is duly
organized, validly existing and in good standing under the laws
of the jurisdiction in which it is incorporated or organized, and
is duly qualified to do business and in good standing in the
jurisdictions where its ownership or leasing of property or the
conduct of its business requires it to be so qualified and in
which the failure to be duly qualified could, either individually
or in the aggregate, have a Warrantor Material Adverse Effect.
Each Warrantor Significant Subsidiary has the corporate power and
authority necessary for it to own or lease its properties and
assets and to carry on its business as it is now being conducted,
and has all federal, state, local and foreign governmental
authorizations necessary for it to own or lease its properties
and assets and to carry on its business as it is now being
conducted, the absence of which governmental authorizations
would, either individually or in the aggregate, have a Warrantor
Material Adverse Effect.
5.4 AUTHORITY
(a) The execution and delivery of this Agreement, the
Merger Agreement and the Stock Option Agreement and the
consummation of the transactions contemplated herein or therein,
including the Merger, have been duty and validly authorized by
all necessary corporate action on the part of Warrantor, subject,
with respect to this Agreement and the Merger Agreement, to the
approval of the shareholders of Warrantor to the extent required
by applicable law. This Agreement and the Merger Agreement,
subject to any requisite shareholder approval hereof and thereof,
and the Stock Option Agreement represent valid and legally
binding obligations of Warrantor, enforceable against Warrantor
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 proceeding may be brought.
(b) Neither the execution and delivery of this
Agreement, the Merger Agreement or the Stock Option Agreement by
Warrantor, nor the consummation by Warrantor of the transactions
contemplated herein or therein, nor compliance by any Warrantor
Company with any of the provisions hereof or thereof, will
(i) conflict with or result in a breach of any provision of any
Warrantor Company's certificate or articles of incorporation or
by-laws, or (ii) except as Previously Disclosed, constitute or
result in the breach of any term, condition or provision of, or
constitute a default under, or give rise to any right or
termination, cancellation or acceleration with respect to, or
result in the creation of any lien, charge or encumbrance upon
any property or assets of any of the Warrantor Companies pursuant
to, any note, bond, mortgage, indenture, license, agreement,
lease or other instrument or obligation to which any of them is a
party or by which any of them or any of their properties or
assets may be subject, and that would, either individually or in
the aggregate, have a Warrantor Material Adverse Effect, or
(iii) subject to receipt of the requisite approvals,
authorizations, filings, registrations and notifications referred
to in Section 8.5 of this Agreement, violate any order, writ,
injunction, decree, statute, rule or regulation applicable to any
of the Warrantor Companies or any of their properties or assets.
(c) Other than in connection or compliance with the
provisions of applicable state corporate and securities laws, the
Securities Laws and the rules and regulations thereunder, and
other than consents, authorizations, approvals or exemptions
required from the Federal Reserve and the State Regulatory
Commissioners or by virtue of Warrantor's interests in small
business investment corporations, no notice to, filing with,
authorization of, exemption by or consent or approval of any
public body or authority is necessary for the consummation by
Warrantor of the Merger and the other transactions contemplated
by this Agreement, the Merger Agreement and the Stock Option
Agreement.
(d) The Board of Directors of Warrantor (at a meeting
duly called and held) has by requisite vote (i) determined that
the Merger is in the best interests of Warrantor and its
shareholders, among others, (ii) authorized and approved this
Agreement, the Merger Agreement, the Stock Option Agreement and
the transactions contemplated hereby and thereby, including the
Merger, (iii) directed that the Merger be submitted for
consideration to Warrantor's shareholders at the Warrantor
Shareholders' Meeting, and (iv) approved execution of the Stock
Option Agreement in accordance with Section 134C(1)(b) of the
BCL, with the result that such Section will not apply to the
execution and delivery by Warrantor of the Stock Option Agreement
or the issuance of shares of Central Common Stock pursuant to the
Stock Option Agreement, the consummation of the Merger, or any
other transaction to be carried out pursuant to this Agreement,
the Merger Agreement or the Stock Option Agreement.
5.5 FINANCIAL STATEMENTS; ACCOUNTING. Warrantor has
delivered to the other Party, prior to the execution of this
Agreement, Warrantor Financial Statements in respect of periods
ending on or prior to December 31, 1994, and will promptly
deliver when available copies of Warrantor Financial Statements
in respect of periods ending after December 31, 1994. The
Warrantor Financial Statements (as of the dates thereof and for
the periods covered thereby): (i) are (and, in the case of
Warrantor Financial Statements in respect of periods ending after
December 31, 1994, will be) in accordance with the books and
records of the Warrantor Companies, and have been and will
continue to be maintained in accordance with GAAP and good
business practices in all material respects, and (ii) present
(and, in the case of Warrantor Financial Statements in respect of
periods ending after December 31, 1994, will present) fairly the
consolidated financial position and the consolidated results of
operations, changes in stockholders' equity and cash flows of the
Warrantor Companies as of the dates and for the periods
indicated, in all material respects in accordance with GAAP
applicable to banks or bank holding companies applied on a basis
consistent with prior periods (subject in the case of interim
financial statements to normal recurring year-end adjustments
normal in nature and amount).
5.6 ABSENCE OF UNDISCLOSED LIABILITIES. Except as
Previously Disclosed, none of the Warrantor Companies has any
obligation or liability (contingent or otherwise) that is
material, either individually or in the aggregate, to the
financial condition, results of operations or, to the Warrantor
Companies' best knowledge, business prospects of the Warrantor
Companies on a consolidated basis, or that when combined with all
similar obligations or liabilities would, either individually or
in the aggregate, be material to the financial condition, results
of operations or, to the Warrantor Companies' best knowledge,
business prospects of the Warrantor Companies on a consolidated
basis, except (i) as reflected in the Warrantor Financial
Statements delivered prior to the date of this Agreement, (ii) as
reflected by this Agreement and (iii) for commitments and
obligations made, or liabilities incurred, since December 31,
1994 in the ordinary course of its business consistent with past
practices.
5.7 TAX MATTERS.
(a) All material federal, state, local and foreign tax
returns required to be filed by or on behalf of any of Warrantor
and all other corporations, banks, savings banks, associations
and other entities of which Warrantor owns or controls 50% or
more of the outstanding equity securities have been timely filed
or requests for extensions have been timely filed, granted and
have not expired. All taxes shown on filed returns have been
paid. There is no audit examination, deficiency, refund
litigation or matter in controversy with respect to any taxes
that might result in a determination that would, either
individually or in the aggregate, have a Warrantor Material
Adverse Effect, except as reserved against in the Warrantor
Financial Statements or as Previously Disclosed. All taxes,
interest, additions and penalties which are material in amount
and which are due with respect to completed and settled
examinations or concluded litigation have been paid or adequately
reserved for.
(b) Except as Previously Disclosed, none of the
Warrantor 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 federal, state, local or
foreign taxes due or to become due for any of the Warrantor
Companies for any period or periods through and including
December 31, 1994, has been made and is reflected in the
December 31, 1994, financial statements included in the Warrantor
Financial Statements.
(d) Deferred taxes of the Warrantor Companies have been
provided for in accordance with GAAP.
5.8 LOANS, RESERVES, AND INVESTMENTS.
(a) All loans, discounts and financing leases (in which
a Warrantor Company is lessor) (collectively, "Credits")
reflected in the Warrantor Financial Statements were, as of the
respective dates of such Financial Statements (i) made for
adequate consideration in the ordinary course of business,
(ii) evidenced by instruments that were true and genuine, and
(iii) if secured, secured by valid perfected security interests,
except in each case for such discrepancies that would not,
individually or in the aggregate, have a Warrantor Material
Adverse Effect. Accurate lists of all such Credits of the
Central Companies and of the investment portfolios of the Central
Companies as of the date of the latest Financial Statements of
Central delivered on or prior to the date of this Agreement have
been made available to FCC.
(b) The aggregate allowances for losses on Credits and
other real estate and foreclosed assets owned reflected on the
latest Warrantor Financial Statement delivered on or prior to the
date of this Agreement were, as of the date of such Financial
Statements, adequate in accordance with regulatory guidelines and
GAAP in all material respects, and there are no circumstances
likely to require in accordance with such guidelines or GAAP a
future material increase in any provisions for such losses or a
material decrease in such allowances. Such allowances reflected
on all Warrantor Financial Statements prepared after the
abovementioned Financial Statements will be adequate in
accordance with such guidelines and GAAP in all material
respects.
5.9 PROPERTIES AND INSURANCE. Except as disclosed or
reserved against in the Warrantor Financial Statements, the
Warrantor Companies have good and marketable title, free and
clear of all liens, encumbrances, charges, defaults or equities
of any character, to all of the material properties and assets,
tangible or intangible, reflected in the Warrantor Financial
Statements as being owned by the Warrantor Companies as of the
dates thereof other than those that would not, individually or in
the aggregate, have a Warrantor Material Adverse Effect. To the
knowledge of Warrantor's management, (a) all buildings and all
fixtures, equipment and other property and assets which are
material to its business on a consolidated basis and are held
under leases or subleases by any of the Warrantor Companies are
held under valid leases or subleases 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), other than any such exceptions to
validity or enforceability that would not, individually or in the
aggregate, have a Warrantor Material Adverse Effect; and (b) the
policies of fire, theft, liability, fidelity and other insurance
maintained with respect to the assets or businesses of the
Warrantor Companies provide adequate coverage against loss.
5.10 COMPLIANCE WITH LAWS. Except as Previously Disclosed,
each of the Warrantor Companies:
(a) Is in compliance in all material respects with all
laws, regulations, reporting and licensing requirements and
orders applicable to its business or to the employees conducting
its business, the breach or violation of which would, either
individually or in the aggregate, have a Warrantor Material
Adverse Effect;
(b) Has received no notification or communication from
any agency or department of federal, state or local government
(including the Federal Reserve, State Regulatory Commissioners
and other bank, insurance and securities regulatory authorities)
or the staff thereof (i) threatening to revoke any license,
franchise, permit or governmental authorization which is
material, either individually or in the aggregate, to the
financial condition, results of operations or, to the Warrantor
Companies' best knowledge, business prospects of the Warrantor
Companies on a consolidated basis or the ability of Warrantor to
consummate the transactions contemplated under this Agreement,
the Merger Agreement or the Stock Option Agreement, under the
terms hereof and thereof, or (ii) requiring any of the Warrantor
Companies (or any of their officers, directors or controlling
persons) to enter into a cease and desist order, agreement or
memorandum of understanding (or requiring the board of directors
thereof to adopt any resolution or policy); and
(c) Has complied in all material respects with the
Community Reinvestment Act ("CRA") and the rules and regulations
thereunder, and has a CRA rating of not less than "satisfactory".
5.11 EMPLOYEE BENEFIT PLANS.
(a) (i) Warrantor has delivered or made available to
the other Party, prior to the execution of this Agreement, copies
of each pension, retirement, profit sharing, supplemental or
excess retirement, stock option, stock purchase, savings,
employee stock ownership, restricted stock, phantom stock, stock
ownership, life insurance, disability, vacation pay, severance
pay (including, without limitation change of control or golden
parachute arrangements), incentive, deferred compensation, bonus
or benefit arrangement, health or hospitalization program, fringe
benefit or perquisite arrangement or other similar plan as in
effect on the date of this Agreement, including, without
limitation, any "employee benefit plan", as that term is defined
in Section 3(3) of ERISA, in respect of any of the present or
former directors, officers, employees or independent contractors
of, or dependents, spouses or other beneficiaries of any of such
directors, officers, employees or independent contractors of, any
of the Warrantor Companies (collectively, the "Warrantor Benefit
Plans"), and (ii) Central has delivered or made available to FCC,
prior to the execution of this Agreement, copies of each
employment or consulting agreement as in effect on the date of
this Agreement which provides any benefit or perquisites to or in
respect of any of the present or former directors or officers of,
or dependents, spouses or other beneficiaries of any of such
directors or officers of, any of the Central Companies, which
employment and consulting agreements are, with respect to
Central, included in the term "Warrantor Benefit Plans" as
defined above. Any of the Warrantor 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 "Warrantor
ERISA Plan". No Warrantor Company has participated in or been a
member of, and no Warrantor Benefit Plan is or has been, a
multiemployer plan within the meaning of Section 3(37) of ERISA.
Except as Previously Disclosed the Warrantor Benefit Plans of
Central and its Subsidiaries are terminable on their terms
without penalty or payment except for accrued and vested benefits
thereunder.
(b) All Warrantor Benefit Plans comply in all material
respects with the applicable provisions of ERISA and the Internal
Revenue Code, and any other applicable laws, rules and
regulations the breach or violation of which could result in a
liability, either individually or in the aggregate, material to
the financial condition, results of operations or prospects of
the Warrantor Companies on a consolidated basis. With respect to
the Warrantor Benefit Plans, no event has occurred and, to the
best knowledge of Warrantor's management, there exists no
condition or set of circumstances, in connection with which any
of the Warrantor Companies could be subject to any liability that
is reasonably likely to have, either individually or in the
aggregate, a Warrantor Material Adverse Effect (except liability
for benefit claims, Pension Benefit Guaranty Corporation
premiums, and funding obligations payable in the ordinary
course). No notice of a "reportable event," as that term is
defined in Section 4043 of ERISA, for which the 30-day reporting
requirement has not been waived has been required to be filed for
any Warrantor ERISA Plan which is subject to Title IV of ERISA
within the 12-month period ending on the date of this Agreement.
None of the Warrantor Companies has provided, or is required to
provide, security to any Warrantor ERISA Plan which is subject to
Title IV of ERISA pursuant to Section 401(a)(20) of the Internal
Revenue Code.
(c) Except as Previously Disclosed, no Warrantor ERISA
Plan which is subject to Title IV of ERISA has any "unfunded
current liability," as that term is defined in
Section 302(d)(8)(A) of ERISA, and the present fair market value
of the assets of each 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 as of the date of this Agreement in
accordance with all applicable legal requirements.
5.12 MATERIAL CONTRACTS. Except as Previously Disclosed,
none of the Warrantor Companies, nor any of their respective
assets, businesses or operations, as of the date of this
Agreement, is a party to, or is bound or affected by, or receives
benefits under, any contract or agreement or amendment thereto
that in each case would be required to be filed as an exhibit to
a Form 10-K filed by Warrantor as of the date of this Agreement
that has not been filed as an exhibit to Warrantor's Form 10-K
filed for the fiscal year ended December 31, 1994.
5.13 MATERIAL CONTRACT DEFAULTS. None of the Warrantor
Companies is in default under any contract, agreement,
commitment, arrangement, lease, insurance policy or other
instrument to which it is a party, by which its respective
assets, business or operations may be bound or affected, or under
which it or its respective assets, business or operations
receives benefits, and which default is reasonably likely to
have, either individually or in the aggregate, a Warrantor
Material Adverse Effect, and there has not occurred any event
that, with the lapse of time or the giving of notice or both,
would constitute such a default.
5.14 LEGAL PROCEEDINGS. Except as Previously Disclosed,
there are no actions, suits or proceedings instituted or pending
or, to the best knowledge of Warrantor's management, threatened
against any of the Warrantor Companies, or affecting any
property, asset, interest or right of any of them, that are
reasonably expected to have, either individually or in the
aggregate, a Warrantor Material Adverse Effect.
5.15 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since
December 31, 1994, the Warrantor Companies, taken as a whole on a
consolidated basis, have not suffered any Material Adverse Change
(such term is defined in Section 6.3) or failed in any respect
that is likely to have a Warrantor Material Adverse Effect to
operate their business consistent with their past practices.
5.16 REPORTS. Since January 1, 1990, or, with respect to
each Warrantor Subsidiary, the date of its acquisition by
Warrantor if later than January 1, 1990, each of the Warrantor
Companies has filed all reports and statements, together with any
amendments required to be made with respect thereto, that it was
required to file with (i) the SEC, including, but not limited to,
Forms 10-K, Forms 10-Q, Forms 8-K and proxy statements, (ii) the
Federal Reserve, (iii) the OTS, (iv) the Office of the
Comptroller of the Currency, (v) the Federal Deposit Insurance
Corporation, and (vi) any applicable state banking, insurance,
securities or other regulatory authorities. As of their
respective dates (and without giving effect to any amendments or
modifications filed after the date of this Agreement with respect
to reports and documents filed before the date of this
Agreement), each of such reports and documents, including the
financial statements, exhibits and schedules thereto, complied in
all material respects with all of the statutes, rules and
regulations enforced or promulgated by the authority with which
they were filed and did not contain any untrue statement of a
material fact or omit to state any material fact necessary in
order to make the statements made therein in light of the
circumstances under which they were made not misleading.
5.17 STATEMENTS TRUE AND CORRECT. None of the information
supplied or to be supplied by Warrantor for inclusion in (i) the
Registration Statement to be filed by FCC with the SEC in
connection with the FCC Common Stock to be issued in the Merger,
(ii) the Joint Proxy Statement to be mailed to each Warrantor's
shareholders in connection with the Shareholders' Meetings, and
(iii) any other documents to be filed with the SEC or any other
Regulatory Authority in connection with the transactions
contemplated hereby, will, at the respective times such documents
are filed, and, in the case of the Registration Statement, when
it becomes effective and, with respect to the Joint Proxy
Statement, when first mailed to the shareholders of either Party,
be false or misleading with respect to any material fact, or omit
to state any material fact necessary in order to make the
statements therein not misleading, or, in the case of the Joint
Proxy Statement or any amendment thereof or supplement thereto,
at the time of the Shareholders' Meetings, 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. All
documents that Warrantor is responsible for filing with the SEC
or any other Regulatory Authority in connection with the
transactions contemplated hereby, by the Merger Agreement or by
the Stock Option Agreement will comply in all material respects
with the provisions of applicable law including applicable
provisions of the Securities Laws.
5.18 ENVIRONMENTAL MATTERS.
(a) To the best knowledge of Warrantor's management,
Warrantor and each Warrantor Subsidiary (for purposes of this
Section 5.18, the term "Warrantor Subsidiary" shall include small
business investment corporations and entities that invest in
unaffiliated companies in the ordinary course of business in
which Warrantor owns or controls 5% or more of the outstanding
equity securities either directly or through an unbroken chain of
entities as to each of which 5% or more of the outstanding equity
securities is owned directly or indirectly by Warrantor), the
Participation Facilities, the Loan Properties and the Trust
Properties (each as defined below) are, and have been, in
compliance with all applicable laws, rules, regulations and
standards, and all requirements of the United States
Environmental Protection Agency ("EPA") and of state and local
agencies with jurisdiction over pollution or protection of health
or the environment, except for violations which, individually or
in the aggregate, do not or would not result in a Warrantor
Material Adverse Effect.
(b) To the best knowledge of Warrantor's management,
there is no suit, claim, action or proceeding, pending or
threatened, before any court, governmental agency, board or other
forum pursuant to which Warrantor or any of the Warrantor
Subsidiaries or any Loan Property, Participation Facility or
Trust Property (or in respect of such Loan Property,
Participation Facility or Trust Property) has been or, with
respect to threatened proceedings, may be named as a defendant
(i) for alleged noncompliance (including by any predecessor) with
any environmental law, rule or regulation or (ii) relating to the
release into the environment of any Hazardous Material (as
defined below) or oil, whether or not occurring at or on any site
owned (including as trustee), leased or operated by it or any of
its subsidiaries or any Loan Property, Participation Facility or
Trust Property, except where such noncompliance or release does
not or would not, individually or in the aggregate, result in a
Warrantor Material Adverse Effect.
(c) To the best knowledge of Warrantor's management,
there is no reasonable basis for any suit, claim, action or
proceeding of a type described in Section 5.18, except as would
not, individually or in the aggregate, have a Warrantor Material
Adverse Effect.
(d) During the period of (i) Warrantor's or any of the
Warrantor Subsidiaries' ownership (including as trustee) or
operation of any of their respective current properties,
(ii) Warrantor's or any of the Warrantor Subsidiaries'
participation in the management of any Participation Facility,
(iii) Warrantor's or any of the Warrantor Subsidiaries' holding
of a security interest in a Loan Property, or (iv) Warrantor or
any of the Warrantor Subsidiaries acting as a trustee or
fiduciary with respect to a Trust Property, to the best knowledge
of Warrantor's management, there has been no release of Hazardous
Material or oil in, on, under or affecting such property,
Participation Facility, Loan Property or Trust Property, except
where such release does not or would not result, individually or
in the aggregate, in a Warrantor Material Adverse Effect. Prior
to the period of (w) Warrantor's or any of the Warrantor
Subsidiaries' ownership (including as trustee) or operation of
any of their respective current properties, (x) Warrantor's or
any of the Warrantor Subsidiaries' participation in the
management of any Participation Facility, (y) Warrantor's or any
of the Warrantor Subsidiaries acting as trustee or other
fiduciary with respect to Trust Property, or (z) Warrantor's or
any of the Warrantor Subsidiaries' holding of a security interest
in a Loan Property, to the best knowledge of Warrantor's
management, there was no release of Hazardous Material or oil in,
on, under or affecting any such property, Participation Facility,
Loan Property or Trust Property, except where such release does
not or would not result, individually or in the aggregate, in a
Warrantor Material Adverse Effect.
(e) The following definitions apply for purposes of
this Section 5.18: (i) "Loan Property" means any property in
which Warrantor (or a Warrantor Subsidiary) holds a security
interest and, where required by the context, includes the owner
or operator of such property, but only with respect to such
property; (ii) "Participation Facility" means any property in
which Warrantor (or a Warrantor Subsidiary) participates in the
management of such property and, where required by the context,
includes the owner or operator of such property, but only with
respect of such property; (iii) "Trust Property" means any
property with respect to which Warrantor (or a Warrantor
Subsidiary) acts or has acted as a trustee or other fiduciary,
directly or indirectly, and includes any trust or similar legal
vehicle that owns or controls (or that owned or controlled) such
property and, where required by the context, includes the trustee
or other fiduciary, but only with respect to such property; and
(iv) "Hazardous Material" means any pollutant, contaminant or
hazardous substance within the meaning of the Comprehensive
Environmental Response, Compensation, and Liability Act,
42 U.S.C. Section 9601 et seq., or any similar federal, state or
local law.
5.19 KNOWLEDGE AS TO CONDITIONS. On the date of this
Agreement, Warrantor knows of no reason why the approvals,
authorizations, filings, registrations and notices contemplated
by Section 8.5 should not be obtained without the imposition of
any material and adverse condition or restriction or why the
accountants' letters referred to in Section 8.7 or the Tax
Opinion referred to in Section 7.3 cannot be obtained.
5.20 LABOR MATTERS. Neither Warrantor nor any of the
Warrantor Companies is a party to, or is bound by, any collective
bargaining agreement, contract or other agreement or
understanding with a labor union or labor organization, nor is
Warrantor or any of the Warrantor Companies the subject of any
proceeding asserting that Warrantor or any Warrantor Company has
committed an unfair labor practice or seeking to compel Warrantor
or any Warrantor Company to bargain with any labor union or labor
organization as to wages and conditions of employment, nor is
there any strike or other labor dispute involving Warrantor or
any of the Warrantor Companies pending or threatened.
5.21 FAIRNESS OPINIONS. Warrantor has delivered to the
other Party a copy of the opinion Warrantor has received from
Warrantor's financial advisor, dated within 5 days prior to the
date of this Agreement, to the effect that the terms of the
Merger are fair to Warrantor's shareholders from a financial
point of view.
SECTION VI.
COVENANTS AND AGREEMENTS
Each Party hereby covenants and agrees with the other Party
as follows:
6.1 CONDUCT OF BUSINESS -- NEGATIVE COVENANTS. From the
date of this Agreement until the earlier of the Effective Time or
until the termination of this Agreement, Central will not do, or
agree or commit to do, and will cause each of its Subsidiaries
not to do or agree to commit to do, any of the following without
the prior written consent of the chief executive officer or chief
administrative officer of FCC, which consent shall not be
unreasonably withheld or delayed:
(a) Except as Previously Disclosed or as expressly
contemplated by this Agreement, amend its articles of
incorporation or association or by-laws, or
(b) Impose, or suffer the imposition, on any share of
stock held by it or by one of its Subsidiaries, of any material
lien, charge or encumbrance, or permit any such lien, charge or
encumbrance to exist, or
(c) Except as expressly permitted in this Agreement or
in connection with (1) the use of Common Stock by optionees to
pay an option exercise price or to satisfy tax liabilities under
the various Central Stock Option Plans and (2) the repurchase of
Central Common Stock in accordance with the Stock Option
Agreement, repurchase, redeem, or otherwise acquire or exchange,
directly or indirectly, any shares of its capital stock or any
securities convertible into any shares of its capital stock, or
(d) Except as expressly contemplated by this Agreement
or as Previously Disclosed, acquire direct or indirect control
over any corporation, association, firm or organization, other
than in connection with (i) internal reorganizations or
consolidations involving existing Subsidiaries, (ii) good faith
foreclosures in the ordinary course of business,
(iii) acquisitions of control by a banking Subsidiary in a bona
fide fiduciary capacity, (iv) investments made by small business
investment corporations or by Subsidiaries that invest in
unaffiliated companies in the ordinary course of business, or
(v) the creation of new Subsidiaries organized to conduct or
continue activities otherwise permitted by this Agreement, or
(e) Except as Previously Disclosed, sell or otherwise
dispose of, or permit any of its Subsidiaries to sell or
otherwise dispose of: (i) any shares of capital stock of such
Party or any Subsidiary of such Party (unless any such shares of
stock are sold or otherwise transferred to such Party or any of
its Subsidiaries), (ii) any substantial part of the assets or
earning power of such Party or any Subsidiary of such Party, or
(iii) any asset other than in the ordinary course of business for
reasonable and adequate consideration, or
(f) Except as Previously Disclosed, incur, or permit
any of its Subsidiaries to incur, any additional material debt
obligation or other material obligation for borrowed money (other
than (i) in replacement of existing short-term debt with other
short-term debt, (ii) financing of banking related Subsidiary
activities consistent with past practices, (iii) indebtedness of
any of its Companies to another of its Companies or
(iv) indebtedness of any of its Companies to any of their
respective affiliates), except in the ordinary course of the
business of such Party and its Subsidiaries consistent with past
practices (and such ordinary course of business shall include,
but shall not be limited to, the creation of deposit liabilities,
purchases of federal funds, sales of certificates of deposit and
entry into repurchase agreements), or
(g) Except as contemplated by this Agreement, the
Merger Agreement or any of the agreements, documents or
instruments contemplated hereby or thereby, grant any general
increase in compensation or benefits to its employees or to its
officers, except in accordance with past practice or as required
by law; pay any bonus except in accordance with past practice or
the provisions of any applicable program or plan of the Central
Companies as in effect prior to the date of this Agreement and
which has been Previously Disclosed; enter into any severance
agreements with any of its directors or officers or the directors
or officers of any Subsidiary except as Previously Disclosed;
grant any increase in fees or other increases in compensation or
other benefits to any of its present or former directors; or
effect any change in retirement benefits for any class of its
employees or officers (unless such change is required by
applicable law or, in the opinion of counsel, is necessary or
advisable to maintain the tax qualification of any plan under
which the retirement benefits are provided) that would materially
increase the retirement benefit liabilities of the Central
Companies on a consolidated basis, or
(h) Except as contemplated by this Agreement, the
Merger Agreement or any of the agreements, documents or
instruments contemplated hereby or thereby, or except as
Previously Disclosed, amend any existing employment contract
between such Party or any Subsidiary thereof and any person
having a salary thereunder in excess of $50,000 per year (unless
such amendment is required by law) to increase the compensation
or benefits payable thereunder or extend the term thereof or
enter into any new employment contract with any person having a
salary thereunder in excess of $50,000 that such Party or its
applicable Subsidiary 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) Except as contemplated by this Agreement, the
Merger Agreement or any of the agreements, documents or
instruments contemplated hereby or thereby, adopt any new
employee benefit plan of Central or any Central Subsidiary or
make any material change in or to any existing employee benefit
plan of such Party or any Subsidiary thereof other than (i) as
Previously Disclosed or (ii) 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.
6.2 CONDUCT OF BUSINESS -- AFFIRMATIVE COVENANTS. Unless
the prior written consent of the other Party shall have been
obtained, except as otherwise contemplated or permitted hereby or
Previously Disclosed, each Party shall and shall cause its
Subsidiaries: to operate its business only in the ordinary course
of business of such Party and its Subsidiaries consistent with
past practices, to preserve intact its business organizations and
assets and maintain its rights and franchises, and to take no
action which would (i) adversely affect the ability of any of
them to obtain any necessary approvals of Regulatory Authorities
required for the transactions contemplated hereby without
imposition of a condition or restriction of the type referred to
in the second sentence of Section 8.5 of this Agreement,
(ii) adversely affect the ability of such Party to perform its
obligations under this Agreement, the Merger Agreement and Stock
Option Agreement, or (iii) cause or permit a breach of any of its
covenants or cause or permit any representation or warranty of it
to become untrue in any material respect, as if each such
representation and warranty were continuously made from the date
hereof.
6.3 ADVERSE CHANGES IN CONDITION. Each Party shall give
written notice promptly to the other Party concerning (i) any
material adverse change in the condition (financial or
otherwise), results of operations or business prospects of such
Party and its Subsidiaries, taken as a whole on a consolidated
basis ("Material Adverse Change"), or (ii) the occurrence or
impending occurrence of any event or circumstance known to such
Party which would cause or constitute a material breach of any of
the representations, warranties or covenants of such Party
contained herein or that would reasonably be expected to
materially and adversely affect the timely consummation of the
transactions contemplated hereby or under the Merger Agreement or
Stock Option Agreement. Each Party shall use its best efforts to
prevent or to promptly remedy the same.
6.4 INVESTIGATION AND CONFIDENTIALITY. Prior to the
Effective Time, each Party will keep the other Party promptly
advised of all material developments relevant to its business and
to the consummation of the Merger and may make or cause to be
made such investigation, if any, of the business, properties,
operations and financial and legal condition of the other Party
and its Subsidiaries as such Party reasonably deems necessary or
advisable to familiarize itself and its advisors with such
business, properties, operations and condition, provided that
such investigation shall be reasonably related to the
transactions contemplated hereby and shall not interfere
unnecessarily with normal operations. Each Party agrees to
furnish the other Party and the other Party's respective advisors
with such financial and operating data and other information with
respect to its business, properties and employees as the other
Party shall from time to time reasonably request. No
investigation by one Party shall affect the representations and
warranties of the other Party and, subject to Section 9.3 of
this Agreement, each such representation and warranty shall
survive any such investigation. Each Party shall maintain the
confidentiality of all confidential information furnished to it
by the other Party in accordance with the terms of the
confidentiality agreement dated May 15, 1995, between the Parties
(the "Confidentiality Agreement").
6.5 REPORTS. Each Party shall file all reports required to
be filed by it with the SEC and the Federal Reserve 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. Each Party shall cause each of its Subsidiaries
that is a depository institution to file all reports required to
be filed with the Federal Deposit Insurance Corporation, the
Office of the Comptroller of the Currency, the Federal Reserve,
the OTS and any applicable State Regulatory Commissioner.
6.6 DIVIDENDS.
(a) From the date of this Agreement to the earlier of
the Effective Time or the termination of this Agreement, Central
will not declare or pay any dividend or other distribution to its
shareholders except regular quarterly cash dividends on the
shares of Central Common Stock, at a rate not in excess of the
regular quarterly cash dividend most recently declared by Central
prior to the date of this Agreement.
(b) From the date of this Agreement to the earlier of
the Effective Time or the termination of this Agreement, no Party
shall, without the prior written consent of the other Party, make
any changes in its dividend record or payment dates, except as
required to comply with paragraph (c) below.
(c) The Parties shall coordinate with one another as to
the declaration and payment of cash dividends on the shares of
FCC Common Stock and Central Common Stock to be declared in 1995
and 1996 so as to ensure that FCC and Central have declared, with
the record dates prior to the Effective Time, the same number of
quarterly dividends from January 1, 1995 through the Effective
Time.
6.7 CAPITAL STOCK. Except for or as otherwise permitted in
or contemplated by this Agreement, the Merger Agreement or the
Stock Option Agreement, or as Previously Disclosed, without the
prior written consent of FCC, from the date of this Agreement to
the earlier of the Effective Time or the termination of this
Agreement, Central shall not, and shall not enter into any
agreement to, issue, sell, or otherwise permit to become
outstanding any additional shares of Central Common Stock or any
other capital stock of Central, 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.
6.8 AGREEMENT OF AFFILIATES. Central shall deliver to FCC,
no later than 30 days after the date of this Agreement, a letter
identifying each person whom it reasonably believes is an
"affiliate" of Central for purposes of Rule 145 under the
1933 Act. Thereafter and until the date on which the Merger is
approved by the Federal Reserve, Central shall identify to FCC
each additional person whom Central reasonably believes to have
thereafter become an "affiliate". Central shall use its best
efforts to cause each person who is identified as an "affiliate"
of such Party pursuant to the two immediately preceding sentences
to deliver to FCC, not later than the date on which the Merger is
approved by the Federal Reserve, a written agreement,
substantially in the form of Exhibit VI.
6.9 CERTAIN ACTIONS. Neither Central nor any of its
Subsidiaries shall (except as may, in the written opinion of its
counsel promptly delivered to the other Party, be required by
fiduciary duty) solicit, initiate, participate in discussions of,
or encourage or take any other action to facilitate (including by
way of the disclosing or furnishing of any information that it is
not legally obligated to disclose or furnish) any inquiry or the
making of any proposal relating to an Acquisition Transaction or
a potential Acquisition Transaction involving such Party or any
of its Subsidiaries (and, if any information is furnished, it
will be furnished only under a confidentiality agreement
containing substantially the same provisions as the
Confidentiality Agreement referred to in Section 6.4). Central
shall immediately instruct and otherwise use its best efforts to
cause its directors, officers, employees, agents, advisors
(including, without limitation, any investment banker, attorney
or accountant retained by it or any of its Subsidiaries),
consultants and other representatives to comply with the
provisions of this Section 6.9. Central will immediately cease
and cause to be terminated any existing activities, discussions
or negotiations with any parties conducted heretofore with
respect to any such activities. Except as may, in the written
opinion of its counsel promptly delivered to the other Party, be
required by fiduciary duty, Central shall not negotiate with
respect to any such proposal, nor shall it reach any agreement or
understanding (formal or informal, written or otherwise) with
respect to any such proposal. Central shall promptly notify FCC
orally and in writing in the event it receives any such inquiry
or proposal. This Section 6.9 shall not prohibit accurate
disclosure by a Party in any SEC Document (including the Joint
Proxy Statement and the Registration Statement) or other
disclosure to the extent required by the Securities Laws or other
applicable law if in the opinion of the Board of Directors of
such Party (as of the date of such SEC Document or other
disclosure) disclosure is required under applicable law as to
transactions contemplated hereby.
6.10 AGREEMENT AS TO EFFORTS TO CONSUMMATE. Subject to the
terms and conditions of this Agreement and its fiduciary duties
under applicable law, each of the Parties agrees to use its best
efforts to take, or cause to be taken, all actions, and to do, or
cause to be done, all things, necessary, proper or advisable
under applicable laws and regulations to consummate and make
effective, as soon as practicable after the date of this
Agreement, the transactions contemplated by this Agreement,
including, without limitation, using its best efforts to lift or
rescind any injunction or restraining order or other order
adversely affecting the ability of the Parties to consummate the
transactions contemplated hereby. Each of the Parties shall use,
and shall cause each of its Subsidiaries to use, its best efforts
to obtain consents of all third parties and governmental bodies
necessary or desirable for the consummation of the transactions
contemplated by this Agreement. This section shall not require
either Party to waive any condition to such Party's obligation to
consummate the Merger.
6.11 OPERATING FUNCTIONS. The Central Companies will
cooperate with FCC in connection with planning for the efficient
and orderly combination of the parties and the operation of
Central Bank after the Merger, and in the consolidation of
appropriate operating functions to be effective on the Effective
Date, provided that this covenant shall not require any action
that, in the opinion of Central's Board, would adversely affect
the operations of any Central Company if the Merger were not
consummated.
6.12 ISSUANCE OF FCC STOCK. FCC shall, prior to the
Closing, take such action as is required to permit the issuance
of the FCC Common Stock issuable to the shareholders of Central
pursuant to the Merger, and to permit such stock to be approved
for listing and quotation on the NASDAQ Stock Market.
6.13 INSIDER COMMITMENTS. Central has delivered to FCC on
the date of this Agreement Insider's Commitments in the form of
Exhibit VII from the directors and executive officers of Central
and from each person who owns as much as 5% of the outstanding
shares of Central Common Stock.
6.14 MATERIAL ADVERSE EFFECT AND CHANGE. In determining
whether there has occurred with respect to FCC a Material Adverse
Change or whether any circumstance has had a Warrantor Material
Adverse Effect with respect to FCC, unrealized securities losses
shall be ignored, and realized securities losses shall be ignored
except to the extent such realized securities losses (A) cause
FCC to have (i) a Tier I capital ratio (as defined in Appendix A
to 12 C.F.R. 225) of less than 6%, or (ii) a leverage-based
capital ratio (as defined in Appendix B to 12 C.F.R. 225) of less
than 5%; or (B) result in an enforcement action against FCC by a
federal Regulatory Authority.
6.15 P&A AGREEMENT. FCC and Central agree to use their best
efforts to cause their respective subsidiaries, Rapides Bank &
Trust Company in Alexandria ("RBT") and Central Bank, (i) to
enter into a purchase and assumption agreement pursuant to which
specified assets and liabilities of Central Bank that are
associated with the trade area of RBT will be transferred to RBT
at the Effective Time or as soon as practicable thereafter
(provided that such transfer shall be conditioned upon and shall
not occur sooner than the occurrence of the Merger), and (ii) to
apply expeditiously for and diligently pursue regulatory approval
of such agreement. The consummation of the Merger is not
conditioned upon the consummation of such agreement
SECTION VII.
ADDITIONAL AGREEMENTS
7.1 REGISTRATION STATEMENT; SHAREHOLDER APPROVAL. The
Parties shall cooperate in the preparation of the Registration
Statement. FCC shall, as soon as practicable, file the
Registration Statement with the SEC, and the Parties shall use
their best efforts to cause the Registration Statement to become
effective under the 1933 Act. FCC will take, and Central will
cooperate with it in connection with, any action required to be
taken under the applicable state Blue Sky or securities laws in
connection with the issuance of shares of FCC Common Stock upon
consummation of the Merger. Each party shall furnish all
information concerning it and the holders of its capital stock as
the other Party may reasonably request in connection with such
action. FCC and Central shall each call a Shareholders' Meeting
to be held as soon as reasonably practicable after the date of
this Agreement for the purpose of voting upon the Merger. In
connection with the Shareholders' Meetings, (i) FCC and Central
shall prepare and file a Joint Proxy Statement with the SEC and
mail it to their shareholders, (ii) each Party shall furnish to
the other Party all information concerning it that the other
Party may reasonably request in connection with such Joint Proxy
Statement, (iii) the Board of Directors of FCC and Central shall
recommend to their respective shareholders the approval of this
Agreement and the Merger Agreement, provided, however, that such
recommendation may be withdrawn, modified or amended by the Board
of Directors of a Party after the receipt by such Party of an
offer to effect an Acquisition Transaction with such Party to the
extent the Board of Directors of such Party reasonably determines
that, in the exercise of its fiduciary obligations, it is
required to do so; provided, further, that such determination
must be based on a written opinion of counsel promptly delivered
to the other Party, and (iv) FCC and Central shall otherwise use
their best efforts to obtain such shareholders' approval, subject
to their respective fiduciary duties under applicable law. This
Section 7.1 shall not prohibit accurate disclosure by a Party in
any SEC Document (including the Joint Proxy Statement and the
Registration Statement) and other disclosure to the extent
required by the Securities Laws or other applicable law if in the
opinion of the Board of Directors of such party (as of the date
of such SEC Document or other disclosure) disclosure is required
as to transactions contemplated hereby or as to any proposal for
an Acquisition Transaction. The Parties shall use all reasonable
efforts to hold the Shareholders' Meetings on the same date or
otherwise as close together as may be practicable.
7.2 FILINGS WITH THE STATE OFFICES. Promptly following, or
contemporaneous with, the Closing, the Parties will cause the
Merger Agreement to be filed with the Secretary of State of
Louisiana, and will cause to be made all such other filing as are
required by the BCL.
7.3 TAX OPINION. The Parties agree to use their reasonable
efforts to obtain a written opinion of Arthur Andersen LLP,
addressed to the Parties and reasonably satisfactory to their
respective counsel, dated the date of the Closing, subject to the
customary representations and assumptions, and substantially to
the effect that (a) the Merger will constitute a tax-free
reorganization within the meaning of Section 368(a)(1)(A) of the
Internal Revenue Code and FCC and Central will each be a party to
the reorganization, (b) the exchange in the Merger of Central
Common Stock for FCC Common Stock will not give rise to income,
gain or loss to FCC and Central, or shareholders of Central with
respect to such exchange (except to the extent of any cash paid
in lieu of fractional shares), (c) the adjusted tax basis of the
FCC Common Stock received by shareholders of Central who exchange
all of their Central Common Stock in the Merger will be the same
as the adjusted tax basis of the shares of Central Common Stock
surrendered in exchange therefor (reduced by any amount allocable
to a fractional share for which cash is received) and (d) the
holding period of the shares of FCC Common Stock received in the
Merger will include the period during which the shares of Central
Common Stock surrendered in exchange therefor were held, provided
such shares of Central Common Stock were held as capital assets
at the Effective Time.
7.4 ACCOUNTING TREATMENT. No Party will take, cause or to
the best of its ability permit to be taken any action that would
adversely affect the qualification of the Merger for pooling of
interests accounting treatment; provided that nothing herein
shall preclude any Party from exercising its rights under the
Stock Option Agreement.
7.5 PRESS RELEASES. Prior to the Effective Time, the
Parties shall give when practicable prior notice to 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, however, that nothing
in this Section 7.5 shall be deemed to prohibit a Party from
making any disclosure which its counsel deems necessary in order
to satisfy such Party's disclosure obligations imposed by law.
7.6 APPLICATIONS. The parties shall prepare and file
applications with the Federal Reserve, the State Regulatory
Commissioners and any other appropriate governmental authorities
seeking the approvals necessary to consummate the transactions
contemplated by this Agreement. The Parties shall provide copies
of all such filings to each other within five business days after
such filings are made and shall promptly inform each other of all
substantive regulatory contacts concerning the transactions
contemplated by this Agreement.
SECTION VIII.
CONDITIONS PRECEDENT TO
OBLIGATIONS TO CONSUMMATE
The obligation of each Party to consummate the Merger is
subject to the satisfaction of each of the following conditions,
unless waived by such Party pursuant to Section 10.5 of this
Agreement:
8.1 REPRESENTATIONS AND WARRANTIES. The representations
and warranties of the other Party set forth or referred to in
this Agreement shall be true and correct in all material respects
as of the date of this Agreement and as of the time of the
Closing with the same effect as though all such representations
and warranties had been made on and as of the time of the
Closing, except (i) for any such representations and warranties
made as of a specified date, which shall be true and correct in
all material respects as of such date, (ii) as expressly
contemplated or permitted by this Agreement, or (iii) to the
extent that the facts constituting any untruth or incorrectness
in such representations and warranties as of the time of the
Closing do not reflect a Material Adverse Change from that
represented and warranted by such other Party, provided, however,
that the exception in this clause (iii) shall not apply to
(A) the requirement that representations and warranties be true
and correct in all material respects as of the date of this
Agreement, or (B) the representations and warranties in
Sections 5.1, 5.2 and 5.4, which representations and warranties
must be true and correct as of the time of the Closing.
8.2 PERFORMANCE OF AGREEMENTS AND COVENANTS. Each and all
of the agreements and covenants of the other Party to be
performed and complied with pursuant to this Agreement and the
other agreements contemplated hereby prior to the time of the
Closing shall have been duly performed and complied with by it in
all material respects.
8.3 CERTIFICATES. Each of the Parties shall have delivered
to the other Party a certificate, dated as of the time of the
Closing 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 8.1 and
Section 8.2 of this Agreement with respect to it have been
satisfied, all in such reasonable detail as the other Party shall
request.
8.4 SHAREHOLDER APPROVALS. The shareholders of each Party
shall have approved this Agreement, the Merger Agreement, the
Merger and the consummation of the transactions contemplated
hereby and thereby, as and to the extent required by law and by
the provisions of any governing instruments, and each Party shall
have furnished to the other certified copies of resolutions duly
adopted by such Party's shareholders evidencing the same. In
addition, the holders of the requisite percentage of shares of
FCC Common Stock and Central Common Stock sufficient, either
alone or in combination with other factors, to preclude
accounting for the Merger as a pooling of interests shall not
have perfected dissenters' rights under applicable law with
respect to the adoption of this Agreement and the Merger
Agreement.
8.5 CONSENTS AND APPROVALS. All material approvals and
authorizations of, filings and registrations with, and
notifications to, all Regulatory Authorities required for
consummation of the Merger and for the prevention of any
termination of any material right, privilege, license or
agreement of any Party or any of its Subsidiaries shall have been
obtained or made and shall be in full force and effect and all
waiting periods required by law shall have expired. Any approval
obtained from any Regulatory Authority which is necessary to
consummate the transactions contemplated hereby shall not be
conditioned or restricted in a manner which in the reasonable
judgment of the Board of Directors of either of the Parties so
materially and adversely affects the economic or business
assumptions of the transactions contemplated by this Agreement so
as to render inadvisable the consummation of the Merger. To the
extent that any lease, license, loan or financing agreement or
other contract or agreement to which any Party or any of its
Subsidiaries, as the case may be, is a party requires the consent
of or waiver from the other party thereto as a result of the
transactions contemplated by this Agreement, such consent or
waiver shall have been obtained, unless the failure to obtain
such consent or waiver would not, following the Merger, have a
material adverse effect on the consolidated financial condition,
results of operations or, to the best of such Party's knowledge,
business prospects of such Party and its Subsidiaries on a
consolidated basis from that reflected on the December 31, 1994
financial statements included in the Financial Statements.
8.6 LEGAL PROCEEDINGS. No Party shall be subject to any
order, decree or injunction of a court or agency of competent
jurisdiction which enjoins or prohibits consummation of any of
the transactions contemplated by this Agreement.
8.7 ACCOUNTANTS' LETTERS. Each Party shall have received
"comfort" letters from the other Party's independent public
accountants dated, respectively, within three days prior to the
mailing of the Joint Proxy Statement and the Closing Date, in
form and substance as are usual and customary for comfort letters
of this type.
8.8 TAX MATTERS. Each Party shall have received the tax
opinion addressed to it referred to in Section 7.3 of this
Agreement.
8.9 REGISTRATION STATEMENT. The Registration Statement
shall be effective under the 1933 Act and no stop orders
suspending the effectiveness of the Registration Statement shall
be in effect and no proceedings for such purpose shall be pending
before or threatened by the SEC.
8.10 SIMULTANEOUS TRANSACTIONS. The Closing shall have
occurred and the other Party shall have executed all documents
and taken all such other action as is necessary to effectuate the
Merger other than filing the Merger Agreement as referred to in
Section 7.2, and each Party shall have irrevocably authorized its
agents to make such filing in its behalf.
8.11 LEGAL OPINIONS. Each Party shall have received an
opinion, substantially in the form of Exhibit VIII-A or VIII-B
annexed hereto, as applicable, from counsel for the other Party.
8.12 POOLING OF INTERESTS. Neither the independent public
accountants of either Party, nor the SEC, shall have taken the
position that the Merger does not qualify for pooling-of-
interests accounting treatment under GAAP.
8.13 EMPLOYMENT CONTRACTS. The employment contracts
referred to in Section 4.2(b) shall have been entered into
(provided that any failure by any of the employees so to do shall
be a condition solely as to FCC).
SECTION IX.
TERMINATION
9.1 TERMINATION. Notwithstanding any other provision of
this Agreement or the Merger Agreement and notwithstanding the
approval of this Agreement and the Merger Agreement by the
shareholders of the Parties, as applicable, this Agreement and
the Merger Agreement may be terminated and the Merger abandoned
at any time prior to the Closing:
(a) By mutual consent of the Boards of Directors of FCC
and Central; or
(b) By the Board of Directors of a Party in the event
of a material breach by the other Party of any representation,
warranty, covenant or agreement of such other Party contained
herein which would result in the failure to satisfy the closing
condition set forth in Section 8.1 or 8.2 of this Agreement,
which breach cannot be or has not been cured within 30 days after
the giving of a written notice to the breaching Party of such
material breach; or
(c) By the Board of Directors of either Party in the
event that the Merger shall not have been consummated by June 30,
1996; or
(d) By the Board of Directors of either Party in the
event (i) any approval of any governmental or other Regulatory
Authority required for consummation of the Merger and the other
transactions contemplated hereby shall have been denied by final
non-appealable action of such authority or if any such action
taken by such authority is not appealed within the time limit for
appeal or (ii) if the shareholders of FCC or Central fail to have
approved this Agreement, the Merger Agreement and the Merger, as
applicable, and the consummation of the transactions contemplated
hereby and thereby, as applicable, at the Shareholders' Meetings
to the extent required by law and by the provisions of any
governing instruments; or
(e) By the Board of Directors of a Party in the event
that any of the conditions precedent to the obligations of such
Party to consummate the Merger cannot be satisfied or fulfilled
on or before June 30, 1996 (other than by reason of a breach by
the Party seeking to terminate); or
(f) By the Board of Directors of a Party in the event
of the acquisition, by any person or group of persons, of
beneficial ownership of 25% or more of the outstanding shares of
Common Stock of the other Party (the terms "person", "group" and
"beneficial ownership" having the meanings assigned thereto in
Section 13(d) of the 1934 Act and the regulations promulgated
thereunder); or
(g) By the Board of Directors of FCC if the Board of
Directors of Central shall or shall have resolved to withdraw,
modify or change its recommendation to Central's shareholders of
this Agreement, the Merger Agreement or the Merger, or recommend
any Acquisition Transaction other than the Merger; or
(h) By the Board of Directors of a Party (the "Terminating
Party"), if such Party has determined in its discretion (but in
good faith) (i) that, based on its due diligence investigation of
the other Party (the "Other Party"), including (without
limitation) its review of the matters that have been Previously
Disclosed by the Other Party, (A) the representations and
warranties of such Other Party in this Agreement were not true
and correct in all material respects on the date of this
Agreement, and/or (B) there is a material possibility that a
Material Adverse Change may in the future occur with respect to
such Other Party or that the Terminating Party will not achieve
from the transactions contemplated by this Agreement the
expectations that lead it to enter into this Agreement, and
(ii) that, had the Terminating Party known, prior to the date of
this Agreement, of such untruth, incorrectness and/or material
possibility, it would not have entered into this Agreement;
provided, that termination pursuant to this Section 9.1(h) may be
declared only by notice of termination given by the Terminating
Party to the Other Party during the period ("Notice Period") of
30 days following the date on which the Other Party first offers,
by letter delivered in accordance with Section 10.7 of this
Agreement, to make access to the Other Party available to the
Terminating Party for the latter's due diligence purposes. Any
notice of termination shall certify to the determinations set
forth in clauses (i) and (ii) above. A notice of termination
given in accordance with Section 9.1(h) shall become effective on
the 10th day after it is given unless prior to that time the
Other Party requests the Terminating Party to provide the details
supporting the determination referred to in clause (i), in which
event (A) the Terminating Party will supply such details by the
15th day after such request, (B) the Terminating Party will,
during the succeeding 10-day period, discuss its findings with
the Other Party on request by the Other Party, and (C) the notice
of termination shall become effective at the end of such 10-day
period unless by then withdrawn by the Terminating Party by a
written notice of withdrawal; or
(i) By the Board of Directors of Central if there has
occurred any conversion of FCC Common Stock into or exchange of
FCC Common Stock for the securities of any other issuer, provided
that the right of termination in accordance with this
Section 9.1(i) shall itself terminate on the 30th day following
the date on which FCC provides written notice to Central of any
such conversation or exchange; or
(j) By the Board of Directors of a Party if an action
or failure to act by the other Party results in a Material
Adverse Change, as defined in Section 6.3 of this Agreement, with
respect to such other Party which is not remedied or cured within
30 days after notice of intention to terminate is given by the
Party invoking this Section 9.1(j), which notice shall specify
the action or failure to act that is the basis of such intention;
provided that the right to terminate with respect to the action
or failure to act that is specified in such notice of intention
shall itself terminate unless notice of termination is given by
such Party within 15 days following the end of such remedial or
curative period; or
(k) By the Board of Directors of Central if Central
Option Shares shall have been issued pursuant to any exercise of
the Stock Option Agreement and, at the time scheduled for
Closing, all or any portion of such Central Option Shares would
not be cancelled in accordance with Section 2.3(b) by virtue of
the Merger.
9.2 EFFECT OF TERMINATION. In the event of the termination
and abandonment of this Agreement and the Merger Agreement
pursuant to Section 9.1 of this Agreement, this Agreement and the
Merger Agreement shall become void and have no effect and the
Parties will be relieved of all obligations and liabilities under
this Agreement and the Merger Agreement, except that (i) the
provisions of the last sentence of Section 6.4, Section 7.5, and
Section X of this Agreement shall survive any such termination
and abandonment, (ii) the Stock Option Agreement shall be
governed by its own terms as to termination, (iii) a termination
pursuant to Section 9.1(b) or 9.1(e) or 9.1(g) of this Agreement
shall not relieve a breaching Party from liability for any breach
giving rise to such termination and (iv) the Parties shall remain
obligated under, and liable for any breach of, any of the
provisions of this Agreement that survive its termination.
9.3 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS.
The respective representations, warranties, obligations,
covenants and agreements of the Parties shall not survive the
Effective Time except for (i) this Section 9.3, Section 2.3 and
Section IV of this Agreement and (ii) the Merger Agreement,
provided that no such representations, warranties or covenants
shall be deemed to be terminated or extinguished so as to deprive
any Party (or any director, officer or controlling person
thereof) of any defense in law or equity which otherwise would be
available against the claims of any person, including, without
limitation, any shareholder or former shareholder of any Party,
the aforesaid representations, warranties and covenants being
material inducements to consummation by the Parties of the
transactions contemplated hereby.
SECTION X.
MISCELLANEOUS
10.1 EXPENSES.
(a) Except as provided in Section 2.3(a) and
Section 10.1(b) of this Agreement, each of the Parties 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 or other
consultants, investment bankers, accountants and counsel.
(b) Notwithstanding the foregoing, a Party (the
"Expense Paying Party") shall pay all of the costs and expenses
incurred by the other Party (the "Reimbursed Party") (without
duplication pursuant to this Agreement or any other agreement or
instrument) in connection with this Agreement and the
transactions contemplated hereunder, including fees and expenses
of such Reimbursed Party's financial or other consultants,
investment bankers, accountants and counsel, if:
(i) (a) this Agreement is terminated pursuant to
Section 9.1(b) by reason of a material breach by the Expense
Paying Party, (b) the Reimbursed Party was the Party who
terminated it, and (c) the Expense Paying Party is at the time of
the termination not also entitled to terminate this Agreement
pursuant to Section 9.1(b) by reason of a material breach of the
Reimbursed Party; or
(ii) a Purchase Event occurs with respect to the
Stock Option Agreement if Central is the Expense Paying Party and
the Merger has not been, or thereafter is not, consummated for
any reason other than a termination pursuant to Section 9.1(b)
because of a material breach by the Reimbursed Party.
Nothing contained in this Section 10.1(b) shall constitute
or shall be deemed to constitute liquidated damages for the
breach by a Party of the terms of this Agreement or otherwise
limit the rights of the nonbreaching Party.
(c) Final settlement with respect to payment of fees
and expenses by the Parties pursuant to Section 10.1 of this
Agreement shall be made within 30 days of the termination of this
Agreement and the Merger Agreement. If more than one Party is
responsible as an Expense Paying Party, then the costs and
expenses which the Expense Paying Parties are obligated to pay
shall be equally shared between them, regardless of whether their
relative degree of fault is or is not equal.
10.2 BROKERS AND FINDERS. Except as Previously Disclosed,
each of the Parties represents and warrants that neither it nor
any of its officers, directors, employees, affiliates or
Subsidiaries 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 its
representing or being retained by or allegedly representing or
being retained by any Party, such Party agrees to indemnify and
hold the other Party harmless of and from such claim.
10.3 ENTIRE AGREEMENT. Except as otherwise expressly
provided herein, this Agreement, the Merger Agreement, the Stock
Option Agreement and the Confidentiality Agreement contain the
entire agreement among the Parties with respect to the
transactions contemplated hereunder and thereunder, and such
agreements supersede all prior arrangements or understanding with
respect thereto, written or oral. The terms and conditions of
this Agreement shall inure to the benefit of and be binding upon
the Parties and their respective successors. Nothing in this
Agreement, expressed or implied, is intended to confer upon any
party, other than the Parties or their respective successors, any
rights, remedies, obligations or liabilities under or by reason
of this Agreement except for the rights of shareholders of
Central to receive the merger consideration following the
Effective Time and except as otherwise may be provided in
Section IV.
10.4 AMENDMENTS. To the extent permitted by law, this
Agreement or the Merger Agreement may be amended by a subsequent
writing signed by each of the Parties upon the approval of the
Boards of Directors of such Parties; provided, however, that the
provisions of this Agreement and the Merger Agreement relating to
the manner or basis in which shares of Central Common Stock will
be exchanged for FCC Common Stock shall not be amended after the
Shareholders' Meetings without the requisite approval of the
holders of the issued and outstanding shares of FCC Common Stock
and Central Common Stock entitled to vote thereon. The Parties
may, without approval of their respective Boards of Directors,
make such technical changes to this Agreement or the Merger
Agreement, not inconsistent with the purposes hereof and thereof,
as may be required to effect or facilitate any governmental
approval or acceptance of the Merger or of this Agreement or the
Merger Agreement or to effect or facilitate any filing or
recording required for the consummation of any of the
transactions contemplated hereby or thereby.
10.5 WAIVERS. Prior to or at the Effective Time, each
Party, acting through its Board of Directors or chief executive
officer or other authorized officer, shall, as to such Party's
rights hereunder, have the right (i) to waive any default in the
performance of any term of this Agreement by the other Party,
(ii) to waive or extend the time for the compliance or
fulfillment by the other Party of any and all of its obligations
under this Agreement, and (iii) to waive any or all of the
conditions precedent to the obligations of such Party under this
Agreement.
10.6 NO ASSIGNMENT. Neither of the Parties may assign any
of its rights or obligations under this Agreement or the Merger
Agreement to any other persons, and any such purported assignment
shall be deemed null and void.
10.7 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 or by
registered or certified mail, postage pre-paid, 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:
If to FCC:
First Commerce Corporation
210 Baronne Street
New Orleans, LA 70112
Attention: Ian Arnof
With a copy to:
Correro, Fishman & Casteix, L.L.P.
201 St. Charles Avenue, 47th Floor
New Orleans, LA 70170-4700
Attention: Louis Y. Fishman
If to Central:
Central Corporation
300 DeSiard Street
Monroe, LA 71201-4928
Attention: James A. Altick
With a copy to:
Mayer, Brown & Platt
2000 Pennsylvania Avenue, N.W.
Washington, D.C. 20006-1882
Attention: Brian W. Smith
10.8 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Louisiana
without regard to the conflict of laws principles thereof.
10.9 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall constitute one and the
same instrument.
10.10CAPTIONS. The captions contained in this Agreement are
for reference purposes only and are not part of this Agreement.
IN WITNESS WHEREOF, each of the Parties has caused this
Agreement to be executed on its behalf and attested by officers
thereunto duly authorized all as of the day and year first above
written.
FIRST COMMERCE CORPORATION
ATTEST:
By: ____________________________________
_____________________________
Secretary
CENTRAL CORPORATION
ATTEST:
By: ____________________________________
_____________________________
Secretary
<PAGE>
Appendix D
STOCK OPTION AGREEMENT
This Stock Option Agreement ("Option Agreement") is dated as
of May 15, 1995, between Central Corporation ("Central"), a
Louisiana corporation registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended ("Bank Holding
Company Act"), and First Commerce Corporation ("FCC"), a
Louisiana corporation registered as a bank holding company under
the Bank Holding Company Act.
W I T N E S S E T H
WHEREAS, the Boards of Directors of Central and FCC have
approved an Agreement and Plan of Merger ("Merger Agreement")
dated as of the date hereof providing for certain transactions
pursuant to which Central would be merged with and into FCC;
WHEREAS, as a condition to FCC's entry into the Merger
Agreement and to induce such entry, Central has agreed to grant
to FCC the option set forth herein to purchase authorized but
unissued shares of Central Common Stock;
NOW, THEREFORE, in consideration of the premises herein
contained, the parties agree as follows:
1. Definitions.
Capitalized terms defined in the Merger Agreement and used
herein shall have the same meanings as in the Merger Agreement.
2. Grant of Option.
Subject to the terms and conditions set forth herein,
Central hereby grants to FCC an option ("Option") to purchase up
to 809,279 shares of Central Common Stock, at a price of $30 per
share payable in cash as provided in Section 4 hereof; provided,
however, that in the event Central issues or agrees to issue any
shares of Central Common Stock (other than as permitted under the
Merger Agreement) at a price less than $30 per share (as adjusted
pursuant to Section 6 hereof), the exercise price shall be equal
to such lesser price; in no event, however, shall the number of
shares for which the Option is exercisable exceed 19.9% of
Central's issued and outstanding Common Stock.
3. Exercise of Option.
(a) Unless FCC shall have breached in any material
respect any covenant or agreement contained in the Merger
Agreement and such breach shall not have been cured after notice
from Central, FCC may exercise the Option, in whole or part, at
any time or from time to time within six months (which period of
time shall be extended pursuant to Section 10(a)) following the
occurrence of a Purchase Event (as defined below); provided that
to the extent the Option shall not have been exercised, it shall
terminate and be of no further force and effect (i) on the
Effective Date of the Merger under the Merger Agreement, or
(ii) upon termination of the Merger Agreement in accordance with
the provisions thereof if such termination occurs prior to the
first Purchase Event to occur, or (iii) upon the earlier of
(A) March 31, 1997, or (B) the date that is one year following
the termination of the Merger Agreement, if such termination
occurs after the first Purchase Event to occur. Notwithstanding
the foregoing, this Option Agreement shall terminate, and all
unexercised rights hereunder will simultaneously terminate,
whether or not a Purchase Event has occurred, upon any
termination of the Merger Agreement (i) under Section 9.1(a)
thereof, (ii) by Central under Section 9.1(b) thereof, or
(iii) by either Party under Section 9.1(h) thereof.
(b) As used herein, a "Purchase Event" shall mean any
of the following events or transactions occurring after the date
hereof:
(i) any person (other than FCC or any FCC Subsidiary) shall
have commenced a bona fide tender or exchange offer to
purchase shares of Central Common Stock such that upon
consummation of such offer such person would own or
control 20% or more of the outstanding shares of
Central Common Stock;
(ii) Central or any Central Subsidiary, without having
received FCC's prior written consent, shall have
entered into an agreement with any person (other than
FCC or any FCC Subsidiary), or any person (other than
FCC or any FCC Subsidiary), other than in connection
with a transaction to which FCC has given its prior
written consent, shall have filed an application or
notice with the Federal Reserve Board or any other
federal or state regulatory agency for clearance or
approval, to (x) merge or consolidate, or enter into
any similar transaction, with Central or any Central
Subsidiary other than with respect to any requirement
of divestiture in connection with the Merger Agreement
under the federal banking or antitrust laws,
(y) purchase, lease or otherwise acquire any
substantial portion of the assets of Central or any
Central Subsidiary other than in the ordinary course of
business of Central or such Central Subsidiary, or
(z) purchase or otherwise acquire (including by way of
merger, consolidation, share exchange or any similar
transaction) securities representing 20% or more of the
voting power of Central or any Central Subsidiary;
(iii)any person (other than FCC, any FCC Subsidiary or the
Central Subsidiaries in a fiduciary capacity) shall
have acquired beneficial ownership or the right to
acquire beneficial ownership of 10% or more of the
outstanding shares of Central Common Stock or the
common stock of any Central Subsidiary (the term
"beneficial ownership" for purposes of this Option
Agreement having the meaning assigned thereto in
Section 13(d) of the 1934 Act and the regulations
promulgated thereunder); provided, however, that in
calculating the number of shares owned by any person,
no shares which were beneficially owned prior to the
effective date of this Agreement shall be included;
(iv) any person (other than FCC or any FCC Subsidiary) shall
have made a bona fide proposal to Central by public
announcement or written communication that is or
becomes the subject of public disclosure to (x) acquire
Central or any Central Subsidiary by merger,
consolidation, share exchange, purchase of all or
substantially all of its assets or any other similar
transaction, or (y) make an offer described in
clause (i) or (ii) above;
(v) any person shall have solicited proxies in a proxy
solicitation subject to Regulation 14A under the
Exchange Act in opposition to approval of the Merger
Agreement by Central's shareholders; or
(vi) any transaction of the type referred to in clause (ii)
above shall have been consummated.
If more than one of the transactions giving rise to a Purchase
Event under this Section 3(b) is undertaken or effected, then all
such transactions shall give rise to successive Purchase Events,
but the successive nature of such Purchase Events shall not
increase the number of shares of Central Common Stock as to which
the Option may be exercised. As used in this Option Agreement,
"person" shall have the meanings specified in Sections 3(a)(9)
and 13(d)(3) of the 1934 Act.
(c) In the event FCC wishes to exercise the Option, it
shall send to Central a written notice (the date of which being
herein referred to as "Notice Date") specifying (i) the total
number of shares it will purchase pursuant to such exercise, and
(ii) a place and date not earlier than three business days nor
later than 60 business days from the Notice Date for the closing
of such purchase ("Closing Date"); provided that if prior
notification to or approval of the Federal Reserve Board or any
other Regulatory Authority is required in connection with such
purchase, FCC shall promptly file the required notice or
application for approval and shall expeditiously process the same
and the period of time that otherwise would run pursuant to this
sentence shall run instead from the date on which any required
notification period has expired or been terminated or such
approval has been obtained and any requisite waiting period shall
have passed.
4. Payment and Delivery of Certificates.
(a) At the closing referred to in Section 3 hereof, FCC
shall pay to Central the aggregate purchase price for the shares
of Central Common Stock purchased pursuant to the exercise of the
Option in immediately available funds by a wire transfer to a
bank account designated by Central or by federal funds check if
no account has been designated.
(b) At such closing, simultaneously with the delivery
of cash as provided in subsection (a), Central shall deliver to
FCC a certificate or certificates representing the number of
shares of Central Common Stock purchased by FCC and FCC shall
deliver to Central a letter agreeing that FCC will not offer to
sell or otherwise dispose of such shares in violation of
applicable law or the provisions of this Option Agreement.
(c) Certificates for Central Common Stock delivered at
a closing hereunder may be endorsed with a restrictive legend
which shall read substantially as follows:
"The transfer of the shares represented by this
certificate is subject to certain provisions of an
agreement between the registered holder hereof and
Central Corporation and to resale restrictions
arising under the Securities Act of 1933, as amended,
a copy of which agreement is on file at the principal
office of Central Corporation. A copy of such
agreement will be provided to the holder hereof
without charge upon receipt by Central Corporation of
a written request."
It is understood and agreed that the above legend shall be
removed by delivery of substitute certificate(s) without such
legend if FCC shall have delivered to Central a copy of a
letter from the staff of the SEC, or an opinion of counsel, in
form and substance reasonably satisfactory to Central, to the
effect that such legend is not required for purposes of the
1933 Act.
5. Representations.
Central hereby represents, warrants and covenants to FCC
as follows:
(a) Central shall at all times maintain sufficient
authorized but unissued shares of Central Common Stock so that
the Option may be exercised without authorization of
additional shares of Central Common Stock.
(b) The shares to be issued upon due exercise, in
whole or in part, of the Option, when paid for as provided
herein, will be duly authorized, validly issued, fully paid
and nonassessable and will be delivered free and clear of all
claims, liens, encumbrances and security interests and not
subject to any preemptive rights.
(c) Central will not, by amendment of its Articles
of Incorporation or through reorganization, consolidation,
merger, dissolution or sale of assets, or by any other
voluntary act, avoid or seek to avoid the observance or
performance of any of the covenants, stipulations or
conditions to be observed or performed hereunder by it; and
will promptly take all action as may from time to time be
required (including cooperating fully with FCC in preparing
applications or notices and providing information with respect
to regulatory approval) in order to permit FCC to exercise the
Option and Central duly and effectively to issue shares of
Central Common Stock pursuant hereto.
6. Adjustment Upon Changes in Capitalization.
If Central should split or combine the Central Common
Stock, or pay a stock dividend or other stock distribution in
Central Common Stock, or otherwise change the Central Common
Stock into any other securities, or make any other dividend or
distribution in respect of the Central Common Stock (other
than normal cash dividends), then the number of shares of
Central Common Stock subject to the Option shall be adjusted
so that, after such issuance, it equals 19.9% of the number of
shares of Central Common Stock then issued and outstanding
without giving effect to any shares subject or issued pursuant
to the Option. Nothing contained in this Section 6 shall be
deemed to authorize Central to breach any provisions of the
Merger Agreement. Whenever the number of shares of Central
Common Stock purchasable upon exercise hereof is adjusted as
provided in this Section 6, the option exercise price shall be
adjusted by multiplying the option exercise price by a
fraction, the numerator of which shall be equal to the number
of shares of Central Common Stock purchasable prior to the
adjustment and the denominator of which shall be equal to the
number of shares of Central Common Stock purchasable after the
adjustment.
7. Registration Rights.
Central shall, if requested by FCC, as expeditiously as
possible file a registration statement on a form of general
use under the 1933 Act if necessary in order to permit the
sale or other disposition of this Option and/or the shares of
Central Common Stock acquired upon exercise of the Option in
accordance with the intended method of sale or other
disposition requested by FCC. FCC shall provide all
information reasonably requested by Central for inclusion in
any registration statement to be filed hereunder. Central
will use its reasonable best efforts to cause such
registration statement first to become effective and then to
remain effective for such period not in excess of 270 days
from the day such registration statement first becomes
effective as may be reasonably necessary to effect such sales
or other dispositions. The first registration effected under
this Section 7 shall be at Central's expense except for
underwriting commissions and the fees and disbursements of
FCC's counsel attributable to the registration. A second
registration may be requested hereunder at FCC's expense. In
no event shall Central be required to effect more than two
registrations hereunder. If requested by Central, in
connection with any such registration, FCC will become a party
to any underwriting agreement relating to the sale of such
shares, but only to the extent of obligating itself in respect
of representations, warranties, indemnities and other
agreements customarily included by a selling shareholder in
such underwriting agreements.
8. Certain Puts.
(a) Upon the occurrence of a Purchase Event that
occurs prior to termination of the Option, (i) at the request
of FCC, delivered while the Option (in whole or part) is
exercisable, Central shall repurchase the Option from FCC at a
price equal to (x) the amount by which (a) the market/offer
price (as defined below) exceeds (b) the option exercise
price, multiplied by (y) the number of shares for which the
Option may then be exercised; and (ii) at the request from
time to time of the owner of shares purchased pursuant to the
Option, delivered while the Option (in whole or part) is
exercisable (or, if it has been fully exercised, would have
been exercisable had such exercise not been made), Central
shall repurchase such number of the shares issued pursuant to
the Option from the owner as the owner shall designate at a
price equal to (x) the market/offer price multiplied by the
number of such shares so designated. The term "market/offer
price" shall mean the highest of (i) the price per share of
Central Common Stock at which a tender offer or exchange offer
therefor has been made after the date hereof, (ii) the price
per share of Central Common Stock to be paid by any third
party pursuant to any merger, consolidation, share exchange or
other agreement with Central entered into after the date
hereof, (iii) the highest closing price for shares of Central
Common Stock within the 30-day period immediately preceding
the date FCC gives notice of the required repurchase of this
Option or the owner gives notice of the required repurchase of
shares, as the case may be, or (iv) in the event of a sale of
all or substantially all of Central's assets, the sum of the
price paid in such sale for such assets and the current market
value of the remaining assets of Central as determined by a
nationally recognized investment banking firm selected by the
parties (or by an arbitrator if they cannot agree) divided by
the number of shares of Central Common Stock outstanding at
the time of such sale. In determining the market/offer price,
the value of consideration other than cash shall be determined
by a nationally recognized investment banking firm selected by
the parties (or by an arbitrator if they cannot agree), and
such determination shall be conclusive and binding on all
parties.
(b) FCC or the owner, as the case may be, may
exercise its right to require Central to repurchase the Option
and any shares pursuant to this Section 8 by surrendering for
such purpose to Central, at its principal office, this Option
Agreement or certificates for the shares, as applicable,
accompanied by a written notice or notices stating that FCC or
the owner, as the case may be, elects to require Central to
repurchase the Option and/or the shares in accordance with the
provisions of this Section 8. As promptly as practicable, and
in any event within five business days after the surrender of
the Option and/or certificates representing shares and the
receipt of such notice or notices relating thereto, Central
shall deliver or cause to be delivered to FCC or the owner the
applicable repurchase price therefor or the portion thereof
that Central is not then prohibited from so delivering under
applicable law and regulation or as a consequence of
administrative policy.
(c) Central hereby undertakes to use its best
efforts to obtain all required regulatory and legal consents
and to file any required notices in order to accomplish any
repurchase contemplated by this Section 8. Nonetheless, to
the extent that Central is prohibited under applicable law or
regulation, or as a consequence of administrative policy, from
repurchasing the Option and/or the shares in full, Central
shall immediately so notify FCC and the owner and thereafter
deliver or cause to be delivered, from time to time, the
portion of the repurchase price that it is no longer
prohibited from delivering. If Central at any time after
delivery of a notice of repurchase pursuant to Section 8 is
prohibited under applicable law or regulation, or as a
consequence of administrative policy, from delivering the
repurchase price in full (and Central hereby undertakes to use
its best efforts to obtain all required regulatory and legal
approvals and to file any required notices as promptly as
practicable in order to accomplish such repurchase), FCC
and/or the owner may revoke its notice of repurchase either in
whole or to the extent of the prohibition.
9. Severability.
If any term, provision, covenant or restriction contained
in this Option Agreement is held by a court or a federal or
state regulatory agency of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms,
provisions and covenants and restrictions contained in this
Option 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 will not permit the holder to acquire the full number
of shares of Central Common Stock provided in Section 2 hereof
(as adjusted pursuant to Section 6 hereof), it is the express
intention of Central to allow the holder to acquire or to
require Central to repurchase such lesser number of shares as
may be permissible, without any amendment or modification
hereof.
10. Miscellaneous.
(a) Extension. The period for exercise by FCC and
its assignees of any rights under this Option Agreement shall
be extended (i) to the extent necessary to obtain all
regulatory approvals for the exercise of such rights, and for
the expiration of all statutory waiting periods; and (ii) to
the extent necessary to avoid liability under Section 16(b) of
the 1934 Act by reason of such exercise.
(b) Consents. Each of FCC and Central will use its
best efforts to make all filings with, and to obtain consents
of, all third parties and Regulatory Authorities necessary to
the consummation of the transactions contemplated by this
Option Agreement, including without limitation applying to the
Federal Reserve Board under the Bank Holding Company Act for
approval to acquire the shares issuable hereunder.
(c) Expenses. Except as otherwise expressly
provided herein or in the Merger Agreement 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.
(d) Entire Agreement. Except as otherwise expressly
provided herein or in the Merger Agreement, this Option
Agreement contains the entire agreement between the parties
with respect to the transactions contemplated hereunder and
supersedes all prior agreements or understandings with respect
thereto, written or oral. The terms and conditions of this
Option Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective successors and
assigns. Nothing in this Option Agreement, expressed or
implied, is intended to confer upon any party, other than the
parties hereof, and their respective successors and assigns,
any rights, remedies, obligations or liabilities under or by
reason of this Option Agreement, except as expressly provided
herein.
(e) Assignment. Neither of the parties hereto may
assign any of its rights or obligations under this Option
Agreement or the Option created hereunder to any other person,
without the express written consent of the other party, except
that in the event a Purchase Event shall have occurred and be
continuing FCC may assign in whole or in part its rights and
obligations hereunder; provided, however, that until the date
30 days following the date on which the Federal Reserve Board
approves an application by FCC under the Bank Holding Company
Act to acquire the shares of Central Common Stock subject to
the Option, FCC may not assign its rights under the Option
except in (i) a widely dispersed public distribution, (ii) a
private placement in which no one party acquires the rights to
purchase in excess of 2% of the Central Common Stock, (iii) an
assignment to a single party (e.g., a broker or investment
banker) for the purpose of conducting a widely dispersed
public distribution on FCC's behalf, or (iv) any other manner
approved by the Federal Reserve Board.
(f) Notices. All notices or other communications
which are required or permitted hereunder shall be in writing
and sufficient if delivered personally or sent by overnight
express or by registered or certified mail, postage prepaid,
addressed as follows:
If to FCC:
First Commerce Corporation
210 Baronne Street
New Orleans, LA 70112
Attention: Ian Arnof
With a copy to:
Correro, Fishman & Casteix, L.L.P.
201 St. Charles Avenue, 47th Floor
New Orleans, LA 70170-4700
Attention: Louis Y. Fishman
If to Central:
Central Corporation
300 DeSiard Street
Monroe, LA 71201-4928
Attention: James A. Altick
With a copy to:
Mayer, Brown & Platt
2000 Pennsylvania Avenue, N.W.
Washington, D.C. 20006-1882
Attention: Brian W. Smith
A party may change its address for notice purposes by written
notice to the other party hereto.
(g) Counterparts. This Option Agreement may be
executed in any number of counterparts, and each such
counterpart shall be deemed to be an original instrument, but
all such counterparts together shall constitute but one
agreement.
(h) Specific Performance. The parties agree that
damages would be an inadequate remedy for a breach of the
provisions of this Option Agreement by either party hereto and
that this Option Agreement may be enforced by either party
hereto through injunctive or other equitable relief.
(i) Governing Law. This Option Agreement shall be
governed by and construed in accordance with the laws of the
Louisiana applicable to agreements made and entirely to be
performed within such state, and such federal laws as may be
applicable.
IN WITNESS WHEREOF, each of the parties hereto has
executed this Option Agreement as of the day and year first
written above.
CENTRAL CORPORATION
By__________________________________
Name:
Title:
FIRST COMMERCE CORPORATION
By__________________________________
Name:
Title:
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers
Section 83 of the Louisiana Business Corporation Law
("LBCL") permits a corporation to indemnify its directors and
officers against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably
incurred by him in connection with any action, suit or proceeding
to which he is or was a party or is threatened to be made a party
(including any action by or in the right of the corporation) if
such action arises out of the fact that he is or was a director,
officer, employee or agent of the corporation and he acted in
good faith and in a manner he reasonably believed to be in, or
not opposed to, the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful. The indemnification
provisions of Section 83 are not exclusive, but no corporation
may indemnify any person for willful or intentional misconduct.
A corporation has the power to obtain and maintain insurance, or
to create a form of self-insurance on behalf of any person who is
or was acting for the corporation, regardless of whether the
corporation has the legal authority to indemnify the insured
person against such liability.
Section 11 of FCC's by-laws (the "Indemnification By-Law")
provides for mandatory indemnification for current and former
directors and officers to the full extent permitted by Louisiana
law. As permitted by FCC's Articles of Incorporation, FCC has
entered into contracts with its directors and officers providing
for indemnification to the fullest extent permitted by law
("Indemnification Contracts"). The rights of the directors and
officers under the Indemnification Contracts substantially mirror
those granted under the Indemnification By-law.
FCC maintains an insurance policy covering the liability of
its directors and officers for actions taken in their official
capacity.
The Indemnification Contracts provide that, to the extent
insurance is reasonably available, FCC will maintain comparable
insurance coverage for each contracting party as long as he or
she serves as an officer or director and thereafter for so long
as he or she is subject to possible personal liability for
actions taken in such capacities. The Indemnification Contracts
also provide that if FCC does not maintain comparable insurance,
it will hold harmless and indemnify a contracting party to the
full extent of the coverage that would otherwise have been
provided for his benefit.
Item 21. Exhibits and Financial Statement Schedules
(a) Exhibits
The following Exhibits are filed as part of this
Registration Statement:
Exhibit No. Description
_____________ ________________
2 Agreement and Plan of Merger, including exhibits.
4.1 Indenture between Registrant and Republic Bank Dallas,
N.A. (now NationsBank, Texas, N.A.), Trustee, including
the form of 12-3/4% Convertible Debenture due 2000,
Series A, included as Exhibit 4.1 to Registrant's Annual
Report on Form 10-K for the year ended December 31, 1985
and incorporated herein by reference.
4.2 Indenture between Registrant and Republic Bank Dallas, N.A.
(now NationsBank, Texas, N.A.), Trustee, including the form
of 12-3/4% Convertible Debenture due 2000, Series B, included
as Exhibit 4.2 to Registrant's Annual Report on Form 10-K for
the year ended December 31, 1985 and incorporated herein by
reference.
5 Opinion of Correro, Fishman & Casteix, L.L.P.
8 Form of opinion of Arthur Andersen LLP as to
certain tax matters.
15 Letter of Arthur Andersen LLP regarding unaudited interim
financial information.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Deloitte & Touche LLP.
23.3 Consent of Ernst & Young LLP
23.4 Consent of The Robinson-Humphrey Company, Inc..
23.5 Consent of Keefe, Bruyette & Woods, Inc.
23.6 Consent of Robert C. Cudd, III.
<PAGE>
Exhibit No. Description
_____________ _______________
23.7 Consent of Hugh G. McDonald, Jr.
23.8 Consent of Saul A. Mintz.
23.9 Consent of Tom H. Scott.
23.10 Consent of Correro, Fishman & Casteix, L.L.P., included in
Exhibit 5.
24 Powers of Attorney of directors and certain executive
officers of Registrant contained on page S-1 of the
registration statement.
99 Forms of Proxy of Registrant and of Central Corporation.
(b) Financial Statement Schedules.
None
Item 22. Undertakings
The undersigned Registrant hereby undertakes as follows:
(1) To respond to requests for information that is
incorporated by reference into the Prospectus pursuant to Items
4, 10(b), 11 or 13 of Form S-4 within one business day of receipt
of such request, and to send the incorporated documents by first
class mail or other equally prompt means. This includes
information contained in documents filed subsequent to the
effective date of the Registration Statement through the date of
responding to the request.
(2) To supply by means of a post-effective amendment
all information concerning a transaction, and the company being
acquired involved therein, that was not the subject of and
included in the Registration Statement when it became effective.
(3) That, for the purpose of determining any liability
under the Securities Act of 1933 each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") that is
incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement related to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(4) That prior to any public reoffering of the
securities registered hereunder through use of a prospectus which
is a part of this Registration Statement, by any person or party
who is deemed to be an underwriter within the meaning of Rule
145(c), the Registrant undertakes that such reoffering prospectus
will contain the information called for by the applicable
registration form with respect to reofferings by persons who may
be deemed underwriters, in addition to the information called for
by the other Items of the applicable form.
(5) That every prospectus (i) that is filed pursuant to
paragraph (4) immediately preceding, or (ii) that purports to
meet the requirements of Section 10(a)(3) of the Securities Act
of 1933 and is used in connection with an offering of securities
subject to Rule 415, will be filed as a part of an amendment to
the Registration Statement and will not be used until such
amendment is effective, and that, for purposes of determining any
liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(6) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant pursuant to
the provisions described in response to Item 20 of this
Registration Statement, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the
Registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized in the City of New Orleans, State of Louisiana on the
28th day of July, 1995.
FIRST COMMERCE CORPORATION
By: /s/ Thomas L. Callicutt, Jr.
_____________________________
Thomas L. Callicutt, Jr.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated. Each
person whose signature appears below hereby constitutes and
appoints Thomas C. Jaeger and Thomas L. Callicutt, Jr., or
either of them, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him and
in his name, place and stead, in any and all capacities, to sign
any or all amendments to such Registration Statement, including
post-effective amendments to this Registration Statement, and to
file the same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full
power and authority to do and perform each and every act and
thing requisite and necessary to be done as fully to all intents
and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact or agent, or his
substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Signature Title Date
/s/ Ian Arnof President and Chief July 28, 1995
________________________ Executive Officer and Director
Ian Arnof
/s/ Hermann Moyse, Jr. Chairman of the Board July 28, 1995
________________________
Hermann Moyse, Jr.
/s/ Thomas L. Callicutt, Jr. Senior Vice President July 28, 1995
_____________________________ and Controller (Principal
Thomas L. Callicutt, Jr. Accounting Officer)
/s/ Thomas C. Jaeger Chief Financial Officer July 28, 1995
_____________________________
Thomas C. Jaeger
/s/ James J. Bailey III Director July 28, 1995
_____________________________
James J. Bailey III
/s/ John W. Barton Director July 28, 1995
_____________________________
John W. Barton
/s/ Sydney J. Bestoff III Director July 28, 1995
_____________________________
Sydney J. Bestoff III
Director , 1995
______________________________
Robert H. Bolton
/s/ Frances B. Davis Director July 28, 1995
______________________________
Frances B. Davis
/s/ Laurance Eustis, Jr. Director July 28, 1995
______________________________
Laurance Eustis, Jr.
/s/ William P. Fuller Director July 28, 1995
______________________________
William P. Fuller
/s/ Arthur Hollins III Director July 28, 1995
______________________________
Arthur Hollins III
/s/ F. Ben James, Jr. Director July 28, 1995
______________________________
F. Ben James, Jr.
/s/ Erik F. Johnsen Director July 28, 1995
______________________________
Erik F. Johnsen
/s/ Joseph Merrick Jones, Jr. Director July 28, 1995
______________________________
Joseph Merrick Jones, Jr.
/s/ Edwin Lupberger Director July 28, 1995
______________________________
Edwin Lupberger
/s/ O. Miles Pollard, Jr. Director July 28, 1995
______________________________
O. Miles Pollard, Jr.
/s/ G. Frank Purvis, Jr. Director July 28, 1995
______________________________
G. Frank Purvis, Jr.
Director , 1995
______________________________
Edward M. Simmons
/s/ H. Leighton Steward Director July 28, 1995
_______________________________
H. Leighton Steward
/s/ Joseph B. Storey Director July 28, 1995
_______________________________
Joseph B. Storey
/s/ Robert A. Weigle Director July 28, 1995
_______________________________
Robert A. Weigle
<PAGE>
EXHIBIT INDEX
Sequentially
Numbered
Exhibits Pages
________ ____________
2 Agreement and Plan of Merger, including
exhibits.
4.1 Indenture between First Commerce Corporation and
Republic Bank Dallas, N.A. (now NationsBank
Texas, N.A.), Trustee, including the form of 12-
3/4% Convertible Debenture due 2000, Series A
included as Exhibit 4.1 to First Commerce
Corporation's Annual Report on Form 10-K for the
year ended December 31, 1985 and incorporated
herein by reference.
4.2 Indenture between First Commerce Corporation and
Republic Bank Dallas, N.A. (now NationsBank
Texas, N.A.), Trustee, including the form of 12-
3/4% Convertible Debenture due 2000, Series B
included as Exhibit 4.2 to First Commerce
Corporation's Annual Report on Form 10-K for the
year ended December 31, 1985 and incorporated
herein by reference.
5 Opinion of Correro, Fishman & Casteix, L.L.P.
8 Form of opinion of Arthur Andersen LLP as to
certain tax matters.
15 Letter of Arthur Andersen LLP regarding
unaudited interim financial information.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Deloitte & Touche LLP.
23.3 Consent of Ernst & Young LLP
23.4 Consent of The Robinson-Humphrey Company, Inc.
23.5 Consent of Keefe, Bruyette & Woods, Inc.
23.6 Consent of Robert C. Cudd, III.
23.7 Consent of Hugh G. McDonald, Jr.
23.8 Consent of Saul A. Mintz.
23.9 Consent of Tom H. Scott.
23.10 Consent of Correro, Fishman & Casteix, L.L.P. included
in Exhibit 5.
24 Powers of Attorney of directors of First Commerce Corporation
contained on page S-1 of the registration statement.
99 Form of Proxy of Registrant and of Central Corporation.
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Agreement") is made
as of this 15th day of May, 1995, by and among CENTRAL
CORPORATION, a Louisiana corporation ("Central"); and FIRST
COMMERCE CORPORATION, a Louisiana corporation ("FCC").
R E C I T A L S
1. Each of Central and FCC is a registered bank holding
company under the BHC Act (such term and other capitalized terms
used in this Agreement are used as defined in Section I).
2. The Board of Directors of each of Central and FCC
believes that the transactions described in this Agreement are in
the best interests of such Party and its shareholders.
3. By virtue of the reorganization that is effectuated by
this Agreement, (a) Central will be merged into FCC, and (b) as a
result of the foregoing Merger, except as provided in this
Agreement, the then outstanding shares of Central Common Stock
will be converted into shares of FCC Common Stock.
4. The Merger is subject to prior approval of, among
others, the shareholders of each of Central and FCC, and the
Federal Reserve, and the prior satisfaction of certain other
conditions set forth in this Agreement.
5. Central has simultaneously executed and delivered its
Stock Option Agreement to FCC, by which Central grants to FCC an
option to purchase shares of Central Common Stock under certain
circumstances described therein.
6. The Parties intend that the reorganization contemplated
by this Agreement be accounted for as a pooling-of-interests and
that it qualify for federal income tax purposes as a tax-free
reorganization under Section 368(a)(1)(A) of the Internal Revenue
Code.
A G R E E M E N T
In consideration of the foregoing and of the mutual
warranties, representations, covenants and agreements set forth
herein, and for other good and valuable consideration the receipt
and sufficiency of which are acknowledged, the parties to this
Agreement agree as follows:
SECTION I.
DEFINITIONS
Except as may otherwise be provided in this Agreement, the
capitalized terms set forth below shall have the following
respective meanings, in their singular or plural forms as
applicable:
1.1 "Acquisition Transaction" shall mean, with respect to
each Party, any of the following: (i) a merger or consolidation
or share exchange, or any similar transaction (other than the
Merger), (ii) a purchase, lease or other acquisition of all or
substantially all the assets of such Party or any significant
subsidiary (as defined in Rule 1.02 of Regulation S-X of the SEC)
(a "Significant Subsidiary") of such Party, (iii) a purchase or
other acquisition of beneficial ownership by any person or
"group" (as such term is defined in Section 13(d)(3) of the 1934
Act) (including by way of merger, consolidation, share exchange
or otherwise) of securities representing 10% or more of the
voting power of such Party or any Significant Subsidiary of such
Party, but excluding the acquisition of beneficial ownership by
any employee benefit plan maintained or sponsored by such Party,
(iv) a tender or exchange offer to acquire securities
representing 10% or more of the voting power of such Party, (v) a
public proxy or consent solicitation made to shareholders of such
Party seeking proxies in opposition to any proposal that has been
recommended by the Board of Directors of such Party, (vi) the
filing of an application or notice with the Federal Reserve, or
other federal or state bank regulatory authority (which
application has been accepted for processing) seeking approval to
engage in one or more of the transactions referenced in clauses
(i) through (iv) above, or (vii) the making of a bona fide
proposal to such Party or its shareholders by public announcement
or written communication that is or becomes the subject of public
disclosure to engage in one or more of the transactions or events
referenced in clauses (i) through (v) above.
1.2 "Agreement" shall mean this Agreement and Plan of
Merger.
1.3 "BCL" shall mean the Louisiana Business Corporation
Law, as amended.
1.4 "BHC Act" shall mean the federal Bank Holding Company
Act of 1956, as amended.
1.5 "Closing" shall mean the closing of the transactions
contemplated hereunder which will take place as described in
Section 3.1 of this Agreement.
1.6 "Central Bank" shall mean Central Bank, a Subsidiary of
Central.
1.7 "Central Common Stock" shall mean the Common Stock, par
value $1.00 per share, of Central.
1.8 "Central Companies" shall mean, collectively, Central
and all Central Subsidiaries.
1.9 "Central ESOP" shall mean the Central Corporation
Employee Stock Ownership Plan.
1.10 "Central 401(k) Plan" shall mean the Central Bank
401(k) Savings Plan.
1.11 "Central Retiree Benefit Plan" shall mean the Central
Bank Group Medical Plan, which plan provides post-retirement
medical and life insurance benefits to eligible retired employees
of the Central Companies and their dependents.
1.12 "Central Retirement Plan" shall mean Retirement Plan
for Employees of Central Bank.
1.13 "Central Subsidiaries" shall mean the Subsidiaries of
Central, which shall include Central Bank and the Central
Subsidiaries described in Section 5.3 of this Agreement and any
corporation, bank, savings bank, association or other entity that
becomes a Subsidiary of Central in the future.
1.14 "Dissenters' Shares" shall mean shares of Central
Common Stock as to which dissenters' rights have been perfected
and not withdrawn or otherwise forfeited under Section 131 of the
BCL.
1.15 "Effective Time" shall mean the date and time at which
the Merger contemplated by this Agreement becomes effective, as
described in Section 3.2 of this Agreement.
1.16 "ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended.
1.17 "FCC Common Stock" shall mean the Common Stock, par
value $5.00 per share, of FCC.
1.18 "FCC Companies" shall mean, collectively, FCC and all
FCC Subsidiaries.
1.19 "FCC Retirement Plan" shall mean the Retirement Plan
for Employees of First Commerce Corporation.
1.20 "FCC Savings Plan" shall mean the First Commerce
Corporation Tax-Deferred Savings Plan.
1.21 "FCC Stock Incentive Plan" shall mean FCC's Amended and
Restated 1992 Stock Incentive Plan.
1.22 "FCC Stock Option Plans" shall mean the following
employee and/or director stock option and/or stock appreciation
rights plans of FCC: the FCC Stock Incentive Plan; and any
additional employee stock option plans and stock appreciation
rights plans assumed by FCC in connection with any acquisition
transaction involving FCC, in each case as such plans may be
amended.
1.23 "FCC Subsidiaries" shall mean the Subsidiaries of FCC,
which shall include the FCC Subsidiaries described in Section 5.3
of this Agreement and any corporation, bank, savings bank,
association or other entity that becomes or is acquired as a
Subsidiary of FCC in the future.
1.24 "Federal Reserve" shall mean the Board of Governors of
the Federal Reserve System.
1.25 "Financial Statements" shall mean (i) the consolidated
balance sheets (including relates notes and schedules, if any) of
a Party as of December 31, 1994 and 1993, and the related
consolidated statements of income, changes in stockholders'
equity, and cash flows (including related notes and schedules, if
any) for the respective periods then ended, as filed by such
Party in SEC Documents and (ii) the consolidated balance sheets
of such Party (including related notes and schedules, if any) and
related consolidated statements of income, changes in
stockholders' equity, and cash flows (including related notes and
schedules, if any) included in SEC Documents filed by such Party
with respect to periods ended subsequent to December 31, 1994.
1.26 "GAAP" shall mean generally accepted accounting
principles consistently applied.
1.27 "Internal Revenue Code" shall mean the Internal Revenue
Code of 1986, as amended.
1.28 "Joint Proxy Statement" shall mean the proxy statement
used by FCC and Central to solicit the approval of their
respective shareholders of the transactions contemplated by this
Agreement and the Merger Agreement.
1.29 "Market Value" shall mean the average of the closing
sales prices of a share of FCC Common Stock on the NASDAQ Stock
Market for the 15 business days ended on the last business day
before the Effective Time. In the event FCC changes the number
of shares of FCC Common Stock issued and outstanding as a result
of any stock split, stock dividend or other similar change in
FCC's capitalization, or if a distribution of securities is made
in respect of the FCC Common Stock as a result of any dividend
(other than regular quarterly cash dividends), spinoff or other
reorganization in which FCC Common Stock is not changed into or
exchanged for a different kind of securities, and in any such
case the record date is before the Effective Time and the ex-
dividend or ex-distribution date is subsequent to, or during, the
period during which Market Value is determined such that such
event is not reflected in any one or more of the closing sales
prices used to determine Market Value, the appropriate adjustment
shall be made in such closing sales price or prices so as to
reflect such change.
1.30 "Material Adverse Change" has the meaning given to such
term in Section 6.3.
1.31 "Merger Agreement" shall mean the Agreement of Merger,
substantially in the form attached hereto as Exhibit I, providing
for the Merger.
1.32 "Merger Parties" shall mean, collectively, FCC and
Central.
1.33 "Merger" shall mean the merger of Central into FCC.
1.34 "1933 Act" shall mean the Securities Act of 1933, as
amended.
1.35 "1934 Act" shall mean the Securities Exchange Act of
1934, as amended.
1.36 "Party" shall mean either FCC or Central, and "Parties"
shall mean FCC and Central.
1.37 "Previously Disclosed" shall mean, with respect to a
Party, information set forth in a disclosure schedule by such
Party to the other Party delivered to such other Party prior to
or contemporaneously with the execution and delivery of this
Agreement and accepted by such other Party (such acceptance to be
evidenced by such other Party executing an acknowledgment of
acceptance on such disclosure schedule). Following termination
of (but not during) the Notice Period that is referred to in
Section 9.1(h), "Previously Disclosed" shall also mean all
information about a Party that had been publicly disclosed in SEC
Documents filed by that Party prior to the date of this
Agreement. The preceding sentence shall not apply in determining
the right of either Party to terminate this Agreement during the
Notice Period under Section 9.1(h).
1.38 "Purchase Event" shall have the meaning given to such
term in the Stock Option Agreement.
1.39 "Registration Statement" shall mean the Registration
Statement on Form S-4 (or other appropriate form) and all
amendments and supplements thereto filed with the SEC by FCC
under the 1933 Act in connection with the transactions
contemplated by this Agreement.
1.40 "Regulatory Authorities" shall mean, collectively, the
Federal Reserve, the State Regulatory Commissioners and any other
federal or state banking, insurance, securities or other
regulatory authority whose approval is necessary to consummate
the transactions contemplated by this Agreement.
1.41 "SEC" shall mean the United States Securities and
Exchange Commission.
1.42 "SEC Documents" shall mean all reports, proxy
statements, registration statements and other documents filed by
a Party or any of its Subsidiaries pursuant to the Securities
Laws.
1.43 "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 the SEC
promulgated under each of such Acts.
1.44 "Shareholders' Meetings" shall mean the meetings of the
shareholders of FCC and Central to be held pursuant to
Section 7.1 of this Agreement, including any adjournments
thereof.
1.45 "State Regulatory Commissioners" shall mean any state
banking, insurance, securities or other regulatory authority
whose approval is necessary to consummate the transactions
contemplated by this Agreement, the Merger Agreement and the
Stock Option Agreement.
1.46 "Stock Option Agreement" shall mean the Stock Option
Agreement, in the form attached hereto as Exhibit II, to be dated
May 15, 1995, among Central and FCC.
1.47 "Subsidiaries" shall mean all those corporations,
banks, savings banks, associations and other entities of which
the Party in question owns or controls 5% or more of the
outstanding equity securities either directly or through an
unbroken chain of entities as to each of which 5% or more of the
outstanding equity securities is owned directly or indirectly by
such Party; provided, however, there shall not be included any
such entity acquired in good faith through foreclosure, or any
such entity to the extent that the equity securities of such
entity are owned or controlled in a bona fide fiduciary capacity,
through a small business investment corporation or otherwise as
an investment by an entity that invests in unaffiliated companies
in the ordinary course of business.
In Section V of this Agreement, the capitalized terms set
forth below shall have the following respective meanings, in
their singular or plural forms, as applicable:
1.48 "Warrantor" shall mean FCC or Central, as the case may
be.
1.49 "Warrantor Capital Stock" shall mean the FCC Capital
Stock or the Central Common Stock, as the context shall require,
which shall in this and each of the following cases depend on
whether the Warrantor is FCC or Central and will correspond
therewith.
1.50 "Warrantor Common Stock" shall mean the FCC Common
Stock or the Central Common Stock, as the context shall require.
1.51 "Warrantor Companies" shall mean the FCC Companies or
the Central Companies, as the context shall require.
1.52 "Warrantor Financial Statements" shall mean the
Financial Statements of Warrantor.
1.53 "Warrantor Shareholders' Meeting" shall mean the
Shareholders' Meeting of Warrantor.
1.54 "Warrantor Stock Option Plans" shall mean the FCC Stock
Option Plans or the Central Stock Option Plans, as the context
shall require.
1.55 "Warrantor Subsidiaries" shall mean the Subsidiaries of
Warrantor.
Other terms are defined as set forth hereinbelow.
SECTION II.
CERTAIN TRANSACTIONS AND TERMS OF MERGER
2.1 EXECUTION OF STOCK OPTION AGREEMENT. Simultaneously
with the execution of this Agreement and as a condition thereto,
Central has approved the execution and delivery of the Stock
Option Agreement and, on May 15, 1995, Central will execute and
deliver the Stock Option Agreement.
2.2 MERGER. Subject to the terms and conditions of this
Agreement, at the Effective Time, Central will be merged into and
with FCC in accordance with the Merger Agreement and the
provisions of Section 112 of the BCL, and FCC shall be the
corporation surviving such merger.
2.3 CONVERSION OF CENTRAL COMMON STOCK
(a) Except for Dissenters' Shares, at the Effective
Time each outstanding share of Central Common Stock will be
converted into that number of shares of FCC Common Stock as is
equal to (A) 1.670 (the "Conversion Ratio"), minus (B) the
quotient of (i)(a) the amount (if any) by which all expenses of
the Central Companies in connection with the transactions
contemplated by this Agreement exceed $1,750,000 divided by
(b) the Market Value of one share of FCC Common Stock; divided by
(ii) the number of shares of Central Common Stock outstanding at
the Effective Time. In calculating expenses of the Central
Companies for purposes of the preceding clause (B)(i)(a),
expenses which Central incurs directly or indirectly as a result
of the following shall not be included: (1) any action or
failure to act on the part of FCC; (2) any circumstances or
conditions surrounding the ongoing business operations or
regulatory compliance of FCC; or (3) any claims or proceedings,
regulatory or otherwise, with merit or not, brought against FCC
in connection with the transactions contemplated herein or which
significantly delay or impede FCC's performance in such
transactions. Central shall, at the Closing, deliver to FCC an
itemized list of all expenses of the type contemplated by
clause (B)(i)(a), including those to be excluded by reason of the
preceding sentence. The aggregate number of shares of FCC Common
Stock to be issued in the Merger, prior to any adjustment in
accordance with Section 2.3(c) or in accordance with clause
(B)(i)(a) of this Section 2.3(a), shall in no event exceed
6,792,453, plus, in the event of any issuance by Central of
shares of Central Common Stock pursuant to the Stock Option
Agreement ("Central Option Shares") the number of shares of FCC
Common Stock into which such Central Option Shares are converted
by virtue of the Merger.
(b) Shares of Central Common Stock that are held by
Central or any Central Subsidiary (other than shares held by such
a Subsidiary in a fiduciary capacity other than for Central or
any other Subsidiary of Central) shall not be considered to be
outstanding and shall be cancelled (and not converted) by virtue
of the Merger at the Effective Time and without any further
action by either Party. Central Option Shares (as defined in
Section 2.3(a)) that are held by FCC or any FCC Subsidiary (other
than Central Option Shares held by such a Subsidiary in a
fiduciary capacity other than for FCC or any other Subsidiary of
FCC) shall be cancelled (and not converted) by virtue of the
Merger at the Effective Time and without any further action by
either Party.
(c) If, prior to the Effective Time, Central (subject
to any restrictions contained in this Agreement) or FCC, as the
case may be, should split or combine the Central Common Stock or
the FCC Common Stock, or pay a stock dividend in Central Common
Stock or FCC Common Stock, or otherwise change the Central Common
Stock or FCC Common Stock into any other securities, or make any
other dividend or distribution in respect of the Central Common
Stock or the FCC Common Stock (other than normal cash dividends
as the same may be adjusted from time to time in accordance with
or not in violation of this Agreement), then the Conversion Ratio
(and, correspondingly, the maximum aggregate number of shares of
FCC Common Stock that may be issued in the Merger, as provided in
the last sentence of Section 2.3(a)) will be appropriately
adjusted to reflect such split, combination, dividend or other
distribution or change. No such change will be made that would
prevent the transactions contemplated by this Agreement from
being accounted for as a pooling-of-interests.
(d) In lieu of issuing any fractional share of FCC
Common Stock, each holder of Central Common Stock who would
otherwise be entitled thereto, after aggregating into whole
shares all fractional shares of FCC Common Stock to which such
holder is entitled by virtue of the Merger, upon surrender of the
certificate(s) which represented Central Common Stock, will
receive cash equal to such fractional share multiplied by the
Market Value.
(e) After the Effective Time, each holder of Central
Common Stock (other than Dissenters' Shares), upon surrender of
such holder's certificates therefor to FCC together with a
completed letter of transmittal in the form furnished by FCC,
will be entitled to receive the shares of FCC Common Stock into
which such holder's shares have been converted and cash in lieu
of any fractional share as provided above, less any applicable
tax withholding. Until then, each certificate for Central Common
Stock will represent the number of whole shares of FCC Common
Stock into which the shares of Central Common Stock represented
thereby were converted, except that FCC may refuse to pay any
dividend or other distribution payable to holders of any
unsurrendered certificate for Central Common Stock until
surrender or if such dividend or distribution has reverted in
full ownership to FCC under its Articles of Incorporation.
Whether or not a certificate for Central Common Stock is
surrendered, after the Effective Time it will not represent any
interest in any person other than FCC.
SECTION III.
CLOSING AND EFFECTIVE TIME
3.1 TIME AND PLACE OF CLOSING. The Closing will take place
at 10:00 a.m. on a mutually agreeable date as soon as practicable
following the last to occur of (i) the date that is the required
number of days after the date of the order of the Federal Reserve
approving the Merger pursuant to the BHC Act, (ii) the effective
date (including expiration of any applicable waiting period) of
the order of the final federal or state regulatory agency
approving the Merger or the expiration of all required waiting
periods after the filing of all required notices to all federal
or state regulatory agencies required to consummate the Merger,
and (iii) the date on which the shareholders of the Merger
Parties approve this Agreement; or if no date has been agreed to,
on the earliest date specified by either Party to the other upon
10 days notice following the last to occur of the foregoing. If
all conditions in Section VIII hereof are satisfied, or waived by
the Party entitled to grant such waiver, at the Closing (a) the
Parties shall each provide to the other such proof of
satisfaction of the conditions in Section VIII as the Party whose
obligations are conditioned upon such satisfaction may reasonably
request, (b) the certificates, letters and opinions required by
Section VIII shall be delivered, (c) the appropriate officers of
the Parties shall execute, deliver and acknowledge the Merger
Agreement, and (d) the Parties shall take such further action
including (without limitation) filing the Merger Agreement as is
required to consummate the transactions contemplated by this
Agreement. If on any date established for the Closing all
conditions in Section VIII hereof have not been satisfied or
waived by each Party entitled to grant such waiver, then either
Party, on one or more occasions, may declare a delay of the
Closing of such duration, not exceeding 10 business days, as the
declaring party shall select, but no such delay shall extend
beyond the date set forth in subparagraph (c) of Section 9.1, and
no such delay shall interfere with the right of any party to
declare a termination pursuant to Section IX. The place of
Closing shall be the Board Room of FCC, 210 Baronne Street,
3rd floor, New Orleans, Louisiana.
3.2 EFFECTIVE TIME. The Merger shall become effective on
the date of the Closing at the time at which the Merger Agreement
is accepted for filing by the Louisiana Secretary of State (or
such other time as is specified in the Merger Agreement).
SECTION IV.
MANAGEMENT AND
RELATED MATTERS FOLLOWING MERGER
4.1 BOARDS OF DIRECTORS OF FCC AND CENTRAL BANK
(a) At the Effective Time, by virtue of the Merger, the
Board of Directors of FCC shall consist of those persons serving
as Directors of FCC immediately prior to the Effective Time and,
in addition, Robert C. Cudd, III, Hugh G. McDonald, Jr., Saul A.
Mintz and Tom H. Scott. FCC shall take the appropriate steps to
effectuate the foregoing.
(b) The Merger will itself not change the Board of
Directors of Central Bank but the Parties shall take all required
action so that Howard C. Gaines shall become a Director of
Central Bank at the Effective Time.
4.2 MANAGEMENT OF FCC AND CENTRAL BANK
(a) At the Effective Time, by virtue of the Merger, the
officers of FCC shall consist of those persons serving as
officers of FCC immediately prior to the Effective Time and, in
addition, James A. Altick will at the Effective Time become an
Executive Vice-President of FCC with responsibility for FCC's
Northern Louisiana operations.
(b) At the Closing, Central will cause Central Bank to
enter into (i) a 5-year employment contract with James A. Altick,
as President and Chief Executive Officer of Central Bank, in the
form annexed hereto as Exhibit III, and (ii) a 3-year employment
contract with each of Cary S. Davis, Willis T. McGinnis,
Thomas J. Nicholson, and Edmund L. Pennington, in the forms
annexed hereto as Exhibits IV-A through IV-D, respectively.
(c) FCC represents that the Committee that administers
the FCC Stock Incentive Plan has agreed, in connection with the
transactions contemplated by this Agreement, to award within
30 days following the Closing (to the extent by then selected) to
officers of Central Bank to be selected by Central Bank's Board
of Directors conformably with the provisions of such Plan, in
amounts so selected and conforming, stock options and stock
appreciation rights covering in the aggregate up to 200,000
shares of FCC Common Stock under the FCC Stock Incentive Plan,
which number of shares is subject to adjustment in the manner
provided in the Plan with respect to stock splits, stock
dividends and similar events affecting FCC Common Stock.
4.3 CORPORATE STRUCTURE. At the Effective Time Central
Bank will become a wholly owned subsidiary of FCC and will retain
its name and bank charter thereafter for the foreseeable future
to no less an extent as FCC's other principal banking
subsidiaries retain theirs.
4.4 EMPLOYEES AND BENEFITS
(a) After the Effective Time, FCC will perform the
obligations of Central under its Severance Plan that is annexed
hereto as Exhibit V.
(b) At or prior to the Closing, the Central Companies
shall cause all contributions to be made to the Central ESOP on
behalf of participants in the Central ESOP for periods prior to
the Closing, and all participants in the Central ESOP shall at
the Effective Time have a fully vested and nonforfeitable
interest in their respective account balances thereunder. The
parties agree that no contributions shall be made to the Central
ESOP for periods after the Closing and, as soon as possible after
the Effective Time, FCC, as successor to Central under and with
respect to the Central ESOP, shall take all actions that may be
necessary or required to terminate the Central ESOP and make
available to participants distributions from the Central ESOP in
accordance with the terms of the ESOP and applicable law. To the
extent that the Central ESOP does not provide for distributions
to a participant prior to such participant's termination of
employment, FCC shall amend the Central ESOP to permit such
distributions to the extent permitted by law.
(c) At or prior to the Closing, the Central Companies
shall cause all contributions to be made to the Central 401(k)
Plan on behalf of participants in the Central 401(k) Plan for
periods prior to the Closing, and all participants in the Central
401(k) Plan shall at the Effective Time have a fully vested and
nonforfeitable interest in their respective account balances
thereunder. For periods on and after the Closing, employees of
the Central Companies shall be eligible to participate in the FCC
Savings Plan, subject to the terms and conditions of such Plan,
as it may be amended from time to time. No contributions shall
be made to the Central 401(k) Plan for periods after the Closing.
(d) The parties hereby agree that at the election of
FCC at any time after the Effective Time, the Central Retirement
Plan may be terminated and/or future benefit accruals thereunder
may be frozen. Until such time as such Plan is terminated, to
the extent not prohibited by applicable law, the Central
Retirement Plan shall continue to be maintained by Central Bank
or the FCC Companies after the Closing for the benefit of each
person who was employed by the Central Companies as of the
Closing. If (i) the Central Retirement Plan is terminated, or
(ii) future benefit accruals under the Central Retirement Plan
are frozen, then highly compensated employee(s) of Central will
thereupon be permitted to participate in FCC's Benefit
Restoration Plan (a "Top Hat" plan of FCC) if they meet the
eligibility criteria set forth in such Benefit Restoration Plan.
(e) The parties hereby agree that, to the extent not
prohibited by applicable law, Central Bank or the FCC Companies
shall continue to maintain the Central Retiree Benefit Plan for
the benefit of any employee or former employee of the Central
Companies (or their eligible dependents) who, as of the Closing
(i) was receiving benefits thereunder, or (ii) had satisfied the
requirements for benefits thereunder (without regard to any
requirement that the employee terminate employment or commence
receipt of benefits under any other plan).
(f) To the extent applicable, employees of the Central
Companies shall be given credit under each employee benefit plan,
policy, program and arrangement maintained by the FCC Companies
after the Closing for their service with the Central Companies
prior to the Closing for all purposes other than benefit accrual
under a defined benefit plan (as defined in section 3(35) of
ERISA), including, eligibility to participate, vesting,
satisfying any waiting periods, evidence of insurability
requirements, seniority or the application of any pre-existing
condition limitations.
4.5 INDEMNIFICATION AND INSURANCE.
(a) FCC agrees to provide and to cause the Central
Subsidiaries to continue to provide for a period of 10 years from
and after the Effective Time, all rights of indemnification
currently provided by Central and the Central Subsidiaries in
favor of their respective current and former employees, directors
and officers, on terms no less favorable than those provided in
the charter and by-laws of Central and the Central Subsidiaries,
respectively, on the date of this Agreement, or as otherwise in
effect on the date of this Agreement, with respect to matters
occurring prior to the Effective Time, except that (i) the
aggregate liability of FCC and the Central Subsidiaries under
this Section 4.5(a) shall not exceed $30 million less the amount
of any indemnification liability incurred by Central or the
Central Subsidiaries in favor of their respective current and
former employees, directors and officers after the date of this
Agreement but prior to the Effective Time; and (ii) no person
shall be entitled to indemnification unless, with respect to the
matter for which indemnification is sought, such person acted in
good faith and in a manner such person reasonably believed to be
in, or not opposed to, the best interests of Central or the
Central Subsidiary, as the case may be, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
such person's conduct was unlawful.
(b) FCC will indemnify and hold harmless the Central
Companies, and each of their respective directors and officers,
and each controlling person of Central within the meaning of the
1933 Act, against any claims, suits, proceedings, investigations
or other actions ("Claims"), and any related losses, damages,
costs, expenses, liabilities or judgments, whether joint, several
or solidary, insofar as they arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact
made in the Registration Statement or the Joint Proxy Statement,
or an omission or alleged omission therefrom of a material fact
necessary in order to make the statements made therein, in light
of the circumstances under which they were made, not misleading,
and will reimburse each such person promptly as incurred for
legal and other expenses reasonably incurred in connection with
investigating or defending any such Claims; provided, that FCC
will not be liable to the extent that any such Claim arises out
of or is based upon any such untrue statement or omission or
alleged untrue statement or omission made in reliance on and in
conformity with information furnished to FCC by any Central
Company or, with respect to any indemnified person, by that
person.
(c) Any indemnified person wishing to claim
indemnification under Section 4.5, upon learning of any claim,
shall notify FCC thereof as promptly as is practicable, but the
failure so to notify FCC shall not relieve FCC from any
obligation it has under this Section 4.5 except to the extent it
is actually prejudiced by such failure. FCC shall have the right
to assume the defense thereof and shall not be liable for any
expenses subsequently incurred by such indemnified person in
connection with the defense thereof, except that if FCC does not
assume or continue to pursue such defense, or counsel for the
indemnified person advises in writing that there are material
substantive issues that raise conflicts of interest between FCC
and the indemnified person, then the indemnified person may
retain counsel satisfactory to such person (and reasonably
satisfactory to FCC), and FCC shall pay all reasonable fees and
expenses of such counsel promptly as incurred, provided that (i)
FCC shall not be obligated to pay for more than one counsel for
all indemnified persons in any jurisdiction except as may be
required due to conflicts of interest, (ii) the indemnified
persons will cooperate (to the extent reasonably appropriate
under the circumstances) in the defense of any such claim, and
(iii) FCC shall not be liable for any settlement effected without
its prior written consent.
(d) For ten years after the Effective Time, FCC shall
provide, if available, officers' and directors' liability
insurance in respect of acts or omissions of officers and
directors of the Central Companies occurring prior to the
Effective Time, including but not limited to the transactions
contemplated by this Agreement, covering each such Person
currently covered by Central's officers' and directors' liability
insurance policy, or who becomes covered by such policy prior to
the Effective Time, on terms with respect to coverage and amount
not materially less favorable than those of such policy in effect
on the date hereof, provided that in satisfying its obligation
under this Section, FCC shall not be obligated to pay premiums in
excess of $150,000 per year. If the foregoing insurance is not
available for that amount, then FCC shall provide the maximum
coverage that can be obtained for that amount. Determinations as
to the availability and comparability and selection of coverage,
and all other determinations necessary to implement this
Section 4.5(d), shall be made in FCC's sole discretion (but in
good faith), and FCC shall have no liability for any such
determination so made.
(e) In the event FCC or any of its successors or
assigns (i) reorganizes or consolidates with or merges into or
enters into another business combination transaction with any
other person or entity and is not the resulting, continuing or
surviving corporation or entity of such reorganization,
consolidation, merger or transaction or (ii) liquidates,
dissolves or transfers all or substantially all of its properties
and assets to any person or entity, then, and in each such case,
proper provisions will be made so that such surviving corporation
or transferee and its successors and assigns assume the
obligations set forth in this Section 4.5.
SECTION V.
REPRESENTATIONS AND WARRANTIES OF
FCC AND CENTRAL
Each of FCC and Central (each a "Warrantor") hereby
represents and warrants to the other of them the following
information, to the extent such information pertains to itself,
its Subsidiaries, and/or its or their business or affairs:
5.1 ORGANIZATION, STANDING, AND AUTHORITY. Warrantor is a
corporation duly organized, validly existing, and in good
standing under the laws of the State of Louisiana, and is duly
qualified to do business and in good standing in the States of
the United States and foreign jurisdictions where its ownership
or leasing of property or the conduct of its business requires it
to be so qualified and in which the failure to be duly qualified
would, either individually or in the aggregate, have a material
adverse effect on the financial condition, results of operations
or, to Warrantor's best knowledge, business prospects of the
Warrantor Companies taken as a whole on a consolidated basis or
Warrantor's ability to consummate the transactions contemplated
by this Agreement and the Stock Option Agreement on the terms
herein and therein provided (a "Warrantor Material Adverse
Effect"). Warrantor has corporate power and authority to carry
on its business as now conducted, to own, lease and operate its
assets, properties and business, and to execute and deliver, and
to perform its obligations under, this Agreement and the Stock
Option Agreement. Warrantor is duly registered as a bank holding
company under the BHC Act. Warrantor has in effect all federal,
state, local and foreign governmental authorizations necessary
for it to own or lease its properties and assets and to carry on
its business as it is now conducted, the absence of which would,
either individually or in the aggregate, have a Warrantor
Material Adverse Effect.
5.2 CAPITAL STOCK.
(a) The authorized, issued and outstanding capital
stock of Warrantor as of the date of this Agreement, the number
of shares of Warrantor Common Stock reserved for issuance under
the Warrantor Stock Option Plans as of such date and the number
of shares of Warrantor Common Stock that are subject to
outstanding options under such Plans as of such date, are set
forth in the section of Schedule 5.2(a) attached hereto that
pertains to Warrantor. All of the issued and outstanding shares
of Warrantor Capital Stock are duly and validly authorized and
issued and are fully paid and non-assessable. None of the
outstanding shares of Warrantor Capital Stock has been issued in
violation of any preemptive rights of the current or past
shareholders of Warrantor.
(b) Except as Previously Disclosed or set forth in
Section 5.2(a) or Schedule 5.2(a) and except as provided under
the Stock Option Agreement, there are, as of the date of this
Agreement and, with respect to Central, will be at the Effective
Time no shares of capital stock or other equity securities of
Warrantor outstanding and, with respect to Central, no
outstanding options, warrants, scrip, rights to subscribe to,
calls or commitments of any character whatsoever relating to, or
securities or rights convertible into or exchangeable for, shares
of the capital stock of Central or contracts, commitments,
understandings or arrangements by which Central is or may be
bound to issue additional shares of its capital stock or options,
warrants or rights to purchase or acquire any additional shares
of its capital stock.
5.3 WARRANTOR SUBSIDIARIES. Exhibit 22 to Warrantor's
Annual Report on Form 10-K for the fiscal year ended December 31,
1994, as supplemented or updated by information Previously
Disclosed, lists all of the Warrantor Subsidiaries that are
Significant Subsidiaries (as defined in Section 1.1) ("Warrantor
Significant Subsidiaries")as of the date of this Agreement. Each
of the Warrantor Significant Subsidiaries that is a bank is an
"insured depository institution" as defined in the Federal
Deposit Insurance Act and applicable regulations thereunder. No
equity securities of any of the Warrantor Significant
Subsidiaries are or may become required to be issued (other than
to Warrantor) by reason of any options, warrants, scrip, rights
to subscribe to, calls or commitments of any character whatsoever
relating to, or securities or rights convertible into or
exchangeable for, shares of the capital stock of any Warrantor
Significant Subsidiary, and there are no contracts, commitments,
understandings or arrangements by which any Warrantor Significant
Subsidiary is bound to issue (other than to Warrantor) additional
shares of its capital stock or options, warrants or rights to
purchase or acquire any additional shares of its capital stock.
There are no contracts, commitments, understandings or
arrangements by which any of the Warrantor Companies is or may be
bound to sell or otherwise transfer any shares of the capital
stock of any Warrantor Significant Subsidiary, except for a
transfer to any of the Warrantor Companies, and there are no
contracts, commitments, understandings or arrangements relating
to the rights of any Warrantor Company to vote or to dispose of
such shares. Except as provided in 12 U.S.C. Section 55 in the
case of Warrantor Significant Subsidiaries that are national
banks or Louisiana Revised Statutes 6:262 in the case of
Warrantor Significant Subsidiaries that are state banks, all of
the shares of capital stock of each Warrantor Significant
Subsidiary held by Warrantor or a Warrantor Subsidiary are fully
paid and non-assessable and are owned by Warrantor or a Warrantor
Subsidiary free and clear of any claim, lien or encumbrance.
Except as Previously Disclosed, each Warrantor Significant
Subsidiary is either a national banking association, a state
bank, a state savings bank or a corporation, and is duly
organized, validly existing and in good standing under the laws
of the jurisdiction in which it is incorporated or organized, and
is duly qualified to do business and in good standing in the
jurisdictions where its ownership or leasing of property or the
conduct of its business requires it to be so qualified and in
which the failure to be duly qualified could, either individually
or in the aggregate, have a Warrantor Material Adverse Effect.
Each Warrantor Significant Subsidiary has the corporate power and
authority necessary for it to own or lease its properties and
assets and to carry on its business as it is now being conducted,
and has all federal, state, local and foreign governmental
authorizations necessary for it to own or lease its properties
and assets and to carry on its business as it is now being
conducted, the absence of which governmental authorizations
would, either individually or in the aggregate, have a Warrantor
Material Adverse Effect.
5.4 AUTHORITY
(a) The execution and delivery of this Agreement, the
Merger Agreement and the Stock Option Agreement and the
consummation of the transactions contemplated herein or therein,
including the Merger, have been duty and validly authorized by
all necessary corporate action on the part of Warrantor, subject,
with respect to this Agreement and the Merger Agreement, to the
approval of the shareholders of Warrantor to the extent required
by applicable law. This Agreement and the Merger Agreement,
subject to any requisite shareholder approval hereof and thereof,
and the Stock Option Agreement represent valid and legally
binding obligations of Warrantor, enforceable against Warrantor
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 proceeding may be brought.
(b) Neither the execution and delivery of this
Agreement, the Merger Agreement or the Stock Option Agreement by
Warrantor, nor the consummation by Warrantor of the transactions
contemplated herein or therein, nor compliance by any Warrantor
Company with any of the provisions hereof or thereof, will
(i) conflict with or result in a breach of any provision of any
Warrantor Company's certificate or articles of incorporation or
by-laws, or (ii) except as Previously Disclosed, constitute or
result in the breach of any term, condition or provision of, or
constitute a default under, or give rise to any right or
termination, cancellation or acceleration with respect to, or
result in the creation of any lien, charge or encumbrance upon
any property or assets of any of the Warrantor Companies pursuant
to, any note, bond, mortgage, indenture, license, agreement,
lease or other instrument or obligation to which any of them is a
party or by which any of them or any of their properties or
assets may be subject, and that would, either individually or in
the aggregate, have a Warrantor Material Adverse Effect, or
(iii) subject to receipt of the requisite approvals,
authorizations, filings, registrations and notifications referred
to in Section 8.5 of this Agreement, violate any order, writ,
injunction, decree, statute, rule or regulation applicable to any
of the Warrantor Companies or any of their properties or assets.
(c) Other than in connection or compliance with the
provisions of applicable state corporate and securities laws, the
Securities Laws and the rules and regulations thereunder, and
other than consents, authorizations, approvals or exemptions
required from the Federal Reserve and the State Regulatory
Commissioners or by virtue of Warrantor's interests in small
business investment corporations, no notice to, filing with,
authorization of, exemption by or consent or approval of any
public body or authority is necessary for the consummation by
Warrantor of the Merger and the other transactions contemplated
by this Agreement, the Merger Agreement and the Stock Option
Agreement.
(d) The Board of Directors of Warrantor (at a meeting
duly called and held) has by requisite vote (i) determined that
the Merger is in the best interests of Warrantor and its
shareholders, among others, (ii) authorized and approved this
Agreement, the Merger Agreement, the Stock Option Agreement and
the transactions contemplated hereby and thereby, including the
Merger, (iii) directed that the Merger be submitted for
consideration to Warrantor's shareholders at the Warrantor
Shareholders' Meeting, and (iv) approved execution of the Stock
Option Agreement in accordance with Section 134C(1)(b) of the
BCL, with the result that such Section will not apply to the
execution and delivery by Warrantor of the Stock Option Agreement
or the issuance of shares of Central Common Stock pursuant to the
Stock Option Agreement, the consummation of the Merger, or any
other transaction to be carried out pursuant to this Agreement,
the Merger Agreement or the Stock Option Agreement.
5.5 FINANCIAL STATEMENTS; ACCOUNTING. Warrantor has
delivered to the other Party, prior to the execution of this
Agreement, Warrantor Financial Statements in respect of periods
ending on or prior to December 31, 1994, and will promptly
deliver when available copies of Warrantor Financial Statements
in respect of periods ending after December 31, 1994. The
Warrantor Financial Statements (as of the dates thereof and for
the periods covered thereby): (i) are (and, in the case of
Warrantor Financial Statements in respect of periods ending after
December 31, 1994, will be) in accordance with the books and
records of the Warrantor Companies, and have been and will
continue to be maintained in accordance with GAAP and good
business practices in all material respects, and (ii) present
(and, in the case of Warrantor Financial Statements in respect of
periods ending after December 31, 1994, will present) fairly the
consolidated financial position and the consolidated results of
operations, changes in stockholders' equity and cash flows of the
Warrantor Companies as of the dates and for the periods
indicated, in all material respects in accordance with GAAP
applicable to banks or bank holding companies applied on a basis
consistent with prior periods (subject in the case of interim
financial statements to normal recurring year-end adjustments
normal in nature and amount).
5.6 ABSENCE OF UNDISCLOSED LIABILITIES. Except as
Previously Disclosed, none of the Warrantor Companies has any
obligation or liability (contingent or otherwise) that is
material, either individually or in the aggregate, to the
financial condition, results of operations or, to the Warrantor
Companies' best knowledge, business prospects of the Warrantor
Companies on a consolidated basis, or that when combined with all
similar obligations or liabilities would, either individually or
in the aggregate, be material to the financial condition, results
of operations or, to the Warrantor Companies' best knowledge,
business prospects of the Warrantor Companies on a consolidated
basis, except (i) as reflected in the Warrantor Financial
Statements delivered prior to the date of this Agreement, (ii) as
reflected by this Agreement and (iii) for commitments and
obligations made, or liabilities incurred, since December 31,
1994 in the ordinary course of its business consistent with past
practices.
5.7 TAX MATTERS.
(a) All material federal, state, local and foreign tax
returns required to be filed by or on behalf of any of Warrantor
and all other corporations, banks, savings banks, associations
and other entities of which Warrantor owns or controls 50% or
more of the outstanding equity securities have been timely filed
or requests for extensions have been timely filed, granted and
have not expired. All taxes shown on filed returns have been
paid. There is no audit examination, deficiency, refund
litigation or matter in controversy with respect to any taxes
that might result in a determination that would, either
individually or in the aggregate, have a Warrantor Material
Adverse Effect, except as reserved against in the Warrantor
Financial Statements or as Previously Disclosed. All taxes,
interest, additions and penalties which are material in amount
and which are due with respect to completed and settled
examinations or concluded litigation have been paid or adequately
reserved for.
(b) Except as Previously Disclosed, none of the
Warrantor 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 federal, state, local or
foreign taxes due or to become due for any of the Warrantor
Companies for any period or periods through and including
December 31, 1994, has been made and is reflected in the
December 31, 1994, financial statements included in the Warrantor
Financial Statements.
(d) Deferred taxes of the Warrantor Companies have been
provided for in accordance with GAAP.
5.8 LOANS, RESERVES, AND INVESTMENTS.
(a) All loans, discounts and financing leases (in which
a Warrantor Company is lessor) (collectively, "Credits")
reflected in the Warrantor Financial Statements were, as of the
respective dates of such Financial Statements (i) made for
adequate consideration in the ordinary course of business,
(ii) evidenced by instruments that were true and genuine, and
(iii) if secured, secured by valid perfected security interests,
except in each case for such discrepancies that would not,
individually or in the aggregate, have a Warrantor Material
Adverse Effect. Accurate lists of all such Credits of the
Central Companies and of the investment portfolios of the Central
Companies as of the date of the latest Financial Statements of
Central delivered on or prior to the date of this Agreement have
been made available to FCC.
(b) The aggregate allowances for losses on Credits and
other real estate and foreclosed assets owned reflected on the
latest Warrantor Financial Statement delivered on or prior to the
date of this Agreement were, as of the date of such Financial
Statements, adequate in accordance with regulatory guidelines and
GAAP in all material respects, and there are no circumstances
likely to require in accordance with such guidelines or GAAP a
future material increase in any provisions for such losses or a
material decrease in such allowances. Such allowances reflected
on all Warrantor Financial Statements prepared after the
abovementioned Financial Statements will be adequate in
accordance with such guidelines and GAAP in all material
respects.
5.9 PROPERTIES AND INSURANCE. Except as disclosed or
reserved against in the Warrantor Financial Statements, the
Warrantor Companies have good and marketable title, free and
clear of all liens, encumbrances, charges, defaults or equities
of any character, to all of the material properties and assets,
tangible or intangible, reflected in the Warrantor Financial
Statements as being owned by the Warrantor Companies as of the
dates thereof other than those that would not, individually or in
the aggregate, have a Warrantor Material Adverse Effect. To the
knowledge of Warrantor's management, (a) all buildings and all
fixtures, equipment and other property and assets which are
material to its business on a consolidated basis and are held
under leases or subleases by any of the Warrantor Companies are
held under valid leases or subleases 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), other than any such exceptions to
validity or enforceability that would not, individually or in the
aggregate, have a Warrantor Material Adverse Effect; and (b) the
policies of fire, theft, liability, fidelity and other insurance
maintained with respect to the assets or businesses of the
Warrantor Companies provide adequate coverage against loss.
5.10 COMPLIANCE WITH LAWS. Except as Previously Disclosed,
each of the Warrantor Companies:
(a) Is in compliance in all material respects with all
laws, regulations, reporting and licensing requirements and
orders applicable to its business or to the employees conducting
its business, the breach or violation of which would, either
individually or in the aggregate, have a Warrantor Material
Adverse Effect;
(b) Has received no notification or communication from
any agency or department of federal, state or local government
(including the Federal Reserve, State Regulatory Commissioners
and other bank, insurance and securities regulatory authorities)
or the staff thereof (i) threatening to revoke any license,
franchise, permit or governmental authorization which is
material, either individually or in the aggregate, to the
financial condition, results of operations or, to the Warrantor
Companies' best knowledge, business prospects of the Warrantor
Companies on a consolidated basis or the ability of Warrantor to
consummate the transactions contemplated under this Agreement,
the Merger Agreement or the Stock Option Agreement, under the
terms hereof and thereof, or (ii) requiring any of the Warrantor
Companies (or any of their officers, directors or controlling
persons) to enter into a cease and desist order, agreement or
memorandum of understanding (or requiring the board of directors
thereof to adopt any resolution or policy); and
(c) Has complied in all material respects with the
Community Reinvestment Act ("CRA") and the rules and regulations
thereunder, and has a CRA rating of not less than "satisfactory".
5.11 EMPLOYEE BENEFIT PLANS.
(a) (i) Warrantor has delivered or made available to
the other Party, prior to the execution of this Agreement, copies
of each pension, retirement, profit sharing, supplemental or
excess retirement, stock option, stock purchase, savings,
employee stock ownership, restricted stock, phantom stock, stock
ownership, life insurance, disability, vacation pay, severance
pay (including, without limitation change of control or golden
parachute arrangements), incentive, deferred compensation, bonus
or benefit arrangement, health or hospitalization program, fringe
benefit or perquisite arrangement or other similar plan as in
effect on the date of this Agreement, including, without
limitation, any "employee benefit plan", as that term is defined
in Section 3(3) of ERISA, in respect of any of the present or
former directors, officers, employees or independent contractors
of, or dependents, spouses or other beneficiaries of any of such
directors, officers, employees or independent contractors of, any
of the Warrantor Companies (collectively, the "Warrantor Benefit
Plans"), and (ii) Central has delivered or made available to FCC,
prior to the execution of this Agreement, copies of each
employment or consulting agreement as in effect on the date of
this Agreement which provides any benefit or perquisites to or in
respect of any of the present or former directors or officers of,
or dependents, spouses or other beneficiaries of any of such
directors or officers of, any of the Central Companies, which
employment and consulting agreements are, with respect to
Central, included in the term "Warrantor Benefit Plans" as
defined above. Any of the Warrantor 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 "Warrantor
ERISA Plan". No Warrantor Company has participated in or been a
member of, and no Warrantor Benefit Plan is or has been, a
multiemployer plan within the meaning of Section 3(37) of ERISA.
Except as Previously Disclosed the Warrantor Benefit Plans of
Central and its Subsidiaries are terminable on their terms
without penalty or payment except for accrued and vested benefits
thereunder.
(b) All Warrantor Benefit Plans comply in all material
respects with the applicable provisions of ERISA and the Internal
Revenue Code, and any other applicable laws, rules and
regulations the breach or violation of which could result in a
liability, either individually or in the aggregate, material to
the financial condition, results of operations or prospects of
the Warrantor Companies on a consolidated basis. With respect to
the Warrantor Benefit Plans, no event has occurred and, to the
best knowledge of Warrantor's management, there exists no
condition or set of circumstances, in connection with which any
of the Warrantor Companies could be subject to any liability that
is reasonably likely to have, either individually or in the
aggregate, a Warrantor Material Adverse Effect (except liability
for benefit claims, Pension Benefit Guaranty Corporation
premiums, and funding obligations payable in the ordinary
course). No notice of a "reportable event," as that term is
defined in Section 4043 of ERISA, for which the 30-day reporting
requirement has not been waived has been required to be filed for
any Warrantor ERISA Plan which is subject to Title IV of ERISA
within the 12-month period ending on the date of this Agreement.
None of the Warrantor Companies has provided, or is required to
provide, security to any Warrantor ERISA Plan which is subject to
Title IV of ERISA pursuant to Section 401(a)(20) of the Internal
Revenue Code.
(c) Except as Previously Disclosed, no Warrantor ERISA
Plan which is subject to Title IV of ERISA has any "unfunded
current liability," as that term is defined in
Section 302(d)(8)(A) of ERISA, and the present fair market value
of the assets of each 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 as of the date of this Agreement in
accordance with all applicable legal requirements.
5.12 MATERIAL CONTRACTS. Except as Previously Disclosed,
none of the Warrantor Companies, nor any of their respective
assets, businesses or operations, as of the date of this
Agreement, is a party to, or is bound or affected by, or receives
benefits under, any contract or agreement or amendment thereto
that in each case would be required to be filed as an exhibit to
a Form 10-K filed by Warrantor as of the date of this Agreement
that has not been filed as an exhibit to Warrantor's Form 10-K
filed for the fiscal year ended December 31, 1994.
5.13 MATERIAL CONTRACT DEFAULTS. None of the Warrantor
Companies is in default under any contract, agreement,
commitment, arrangement, lease, insurance policy or other
instrument to which it is a party, by which its respective
assets, business or operations may be bound or affected, or under
which it or its respective assets, business or operations
receives benefits, and which default is reasonably likely to
have, either individually or in the aggregate, a Warrantor
Material Adverse Effect, and there has not occurred any event
that, with the lapse of time or the giving of notice or both,
would constitute such a default.
5.14 LEGAL PROCEEDINGS. Except as Previously Disclosed,
there are no actions, suits or proceedings instituted or pending
or, to the best knowledge of Warrantor's management, threatened
against any of the Warrantor Companies, or affecting any
property, asset, interest or right of any of them, that are
reasonably expected to have, either individually or in the
aggregate, a Warrantor Material Adverse Effect.
5.15 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since
December 31, 1994, the Warrantor Companies, taken as a whole on a
consolidated basis, have not suffered any Material Adverse Change
(such term is defined in Section 6.3) or failed in any respect
that is likely to have a Warrantor Material Adverse Effect to
operate their business consistent with their past practices.
5.16 REPORTS. Since January 1, 1990, or, with respect to
each Warrantor Subsidiary, the date of its acquisition by
Warrantor if later than January 1, 1990, each of the Warrantor
Companies has filed all reports and statements, together with any
amendments required to be made with respect thereto, that it was
required to file with (i) the SEC, including, but not limited to,
Forms 10-K, Forms 10-Q, Forms 8-K and proxy statements, (ii) the
Federal Reserve, (iii) the OTS, (iv) the Office of the
Comptroller of the Currency, (v) the Federal Deposit Insurance
Corporation, and (vi) any applicable state banking, insurance,
securities or other regulatory authorities. As of their
respective dates (and without giving effect to any amendments or
modifications filed after the date of this Agreement with respect
to reports and documents filed before the date of this
Agreement), each of such reports and documents, including the
financial statements, exhibits and schedules thereto, complied in
all material respects with all of the statutes, rules and
regulations enforced or promulgated by the authority with which
they were filed and did not contain any untrue statement of a
material fact or omit to state any material fact necessary in
order to make the statements made therein in light of the
circumstances under which they were made not misleading.
5.17 STATEMENTS TRUE AND CORRECT. None of the information
supplied or to be supplied by Warrantor for inclusion in (i) the
Registration Statement to be filed by FCC with the SEC in
connection with the FCC Common Stock to be issued in the Merger,
(ii) the Joint Proxy Statement to be mailed to each Warrantor's
shareholders in connection with the Shareholders' Meetings, and
(iii) any other documents to be filed with the SEC or any other
Regulatory Authority in connection with the transactions
contemplated hereby, will, at the respective times such documents
are filed, and, in the case of the Registration Statement, when
it becomes effective and, with respect to the Joint Proxy
Statement, when first mailed to the shareholders of either Party,
be false or misleading with respect to any material fact, or omit
to state any material fact necessary in order to make the
statements therein not misleading, or, in the case of the Joint
Proxy Statement or any amendment thereof or supplement thereto,
at the time of the Shareholders' Meetings, 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. All
documents that Warrantor is responsible for filing with the SEC
or any other Regulatory Authority in connection with the
transactions contemplated hereby, by the Merger Agreement or by
the Stock Option Agreement will comply in all material respects
with the provisions of applicable law including applicable
provisions of the Securities Laws.
5.18 ENVIRONMENTAL MATTERS.
(a) To the best knowledge of Warrantor's management,
Warrantor and each Warrantor Subsidiary (for purposes of this
Section 5.18, the term "Warrantor Subsidiary" shall include small
business investment corporations and entities that invest in
unaffiliated companies in the ordinary course of business in
which Warrantor owns or controls 5% or more of the outstanding
equity securities either directly or through an unbroken chain of
entities as to each of which 5% or more of the outstanding equity
securities is owned directly or indirectly by Warrantor), the
Participation Facilities, the Loan Properties and the Trust
Properties (each as defined below) are, and have been, in
compliance with all applicable laws, rules, regulations and
standards, and all requirements of the United States
Environmental Protection Agency ("EPA") and of state and local
agencies with jurisdiction over pollution or protection of health
or the environment, except for violations which, individually or
in the aggregate, do not or would not result in a Warrantor
Material Adverse Effect.
(b) To the best knowledge of Warrantor's management,
there is no suit, claim, action or proceeding, pending or
threatened, before any court, governmental agency, board or other
forum pursuant to which Warrantor or any of the Warrantor
Subsidiaries or any Loan Property, Participation Facility or
Trust Property (or in respect of such Loan Property,
Participation Facility or Trust Property) has been or, with
respect to threatened proceedings, may be named as a defendant
(i) for alleged noncompliance (including by any predecessor) with
any environmental law, rule or regulation or (ii) relating to the
release into the environment of any Hazardous Material (as
defined below) or oil, whether or not occurring at or on any site
owned (including as trustee), leased or operated by it or any of
its subsidiaries or any Loan Property, Participation Facility or
Trust Property, except where such noncompliance or release does
not or would not, individually or in the aggregate, result in a
Warrantor Material Adverse Effect.
(c) To the best knowledge of Warrantor's management,
there is no reasonable basis for any suit, claim, action or
proceeding of a type described in Section 5.18, except as would
not, individually or in the aggregate, have a Warrantor Material
Adverse Effect.
(d) During the period of (i) Warrantor's or any of the
Warrantor Subsidiaries' ownership (including as trustee) or
operation of any of their respective current properties,
(ii) Warrantor's or any of the Warrantor Subsidiaries'
participation in the management of any Participation Facility,
(iii) Warrantor's or any of the Warrantor Subsidiaries' holding
of a security interest in a Loan Property, or (iv) Warrantor or
any of the Warrantor Subsidiaries acting as a trustee or
fiduciary with respect to a Trust Property, to the best knowledge
of Warrantor's management, there has been no release of Hazardous
Material or oil in, on, under or affecting such property,
Participation Facility, Loan Property or Trust Property, except
where such release does not or would not result, individually or
in the aggregate, in a Warrantor Material Adverse Effect. Prior
to the period of (w) Warrantor's or any of the Warrantor
Subsidiaries' ownership (including as trustee) or operation of
any of their respective current properties, (x) Warrantor's or
any of the Warrantor Subsidiaries' participation in the
management of any Participation Facility, (y) Warrantor's or any
of the Warrantor Subsidiaries acting as trustee or other
fiduciary with respect to Trust Property, or (z) Warrantor's or
any of the Warrantor Subsidiaries' holding of a security interest
in a Loan Property, to the best knowledge of Warrantor's
management, there was no release of Hazardous Material or oil in,
on, under or affecting any such property, Participation Facility,
Loan Property or Trust Property, except where such release does
not or would not result, individually or in the aggregate, in a
Warrantor Material Adverse Effect.
(e) The following definitions apply for purposes of
this Section 5.18: (i) "Loan Property" means any property in
which Warrantor (or a Warrantor Subsidiary) holds a security
interest and, where required by the context, includes the owner
or operator of such property, but only with respect to such
property; (ii) "Participation Facility" means any property in
which Warrantor (or a Warrantor Subsidiary) participates in the
management of such property and, where required by the context,
includes the owner or operator of such property, but only with
respect of such property; (iii) "Trust Property" means any
property with respect to which Warrantor (or a Warrantor
Subsidiary) acts or has acted as a trustee or other fiduciary,
directly or indirectly, and includes any trust or similar legal
vehicle that owns or controls (or that owned or controlled) such
property and, where required by the context, includes the trustee
or other fiduciary, but only with respect to such property; and
(iv) "Hazardous Material" means any pollutant, contaminant or
hazardous substance within the meaning of the Comprehensive
Environmental Response, Compensation, and Liability Act,
42 U.S.C. Section 9601 et seq., or any similar federal, state or
local law.
5.19 KNOWLEDGE AS TO CONDITIONS. On the date of this
Agreement, Warrantor knows of no reason why the approvals,
authorizations, filings, registrations and notices contemplated
by Section 8.5 should not be obtained without the imposition of
any material and adverse condition or restriction or why the
accountants' letters referred to in Section 8.7 or the Tax
Opinion referred to in Section 7.3 cannot be obtained.
5.20 LABOR MATTERS. Neither Warrantor nor any of the
Warrantor Companies is a party to, or is bound by, any collective
bargaining agreement, contract or other agreement or
understanding with a labor union or labor organization, nor is
Warrantor or any of the Warrantor Companies the subject of any
proceeding asserting that Warrantor or any Warrantor Company has
committed an unfair labor practice or seeking to compel Warrantor
or any Warrantor Company to bargain with any labor union or labor
organization as to wages and conditions of employment, nor is
there any strike or other labor dispute involving Warrantor or
any of the Warrantor Companies pending or threatened.
5.21 FAIRNESS OPINIONS. Warrantor has delivered to the
other Party a copy of the opinion Warrantor has received from
Warrantor's financial advisor, dated within 5 days prior to the
date of this Agreement, to the effect that the terms of the
Merger are fair to Warrantor's shareholders from a financial
point of view.
SECTION VI.
COVENANTS AND AGREEMENTS
Each Party hereby covenants and agrees with the other Party
as follows:
6.1 CONDUCT OF BUSINESS -- NEGATIVE COVENANTS. From the
date of this Agreement until the earlier of the Effective Time or
until the termination of this Agreement, Central will not do, or
agree or commit to do, and will cause each of its Subsidiaries
not to do or agree to commit to do, any of the following without
the prior written consent of the chief executive officer or chief
administrative officer of FCC, which consent shall not be
unreasonably withheld or delayed:
(a) Except as Previously Disclosed or as expressly
contemplated by this Agreement, amend its articles of
incorporation or association or by-laws, or
(b) Impose, or suffer the imposition, on any share of
stock held by it or by one of its Subsidiaries, of any material
lien, charge or encumbrance, or permit any such lien, charge or
encumbrance to exist, or
(c) Except as expressly permitted in this Agreement or
in connection with (1) the use of Common Stock by optionees to
pay an option exercise price or to satisfy tax liabilities under
the various Central Stock Option Plans and (2) the repurchase of
Central Common Stock in accordance with the Stock Option
Agreement, repurchase, redeem, or otherwise acquire or exchange,
directly or indirectly, any shares of its capital stock or any
securities convertible into any shares of its capital stock, or
(d) Except as expressly contemplated by this Agreement
or as Previously Disclosed, acquire direct or indirect control
over any corporation, association, firm or organization, other
than in connection with (i) internal reorganizations or
consolidations involving existing Subsidiaries, (ii) good faith
foreclosures in the ordinary course of business,
(iii) acquisitions of control by a banking Subsidiary in a bona
fide fiduciary capacity, (iv) investments made by small business
investment corporations or by Subsidiaries that invest in
unaffiliated companies in the ordinary course of business, or
(v) the creation of new Subsidiaries organized to conduct or
continue activities otherwise permitted by this Agreement, or
(e) Except as Previously Disclosed, sell or otherwise
dispose of, or permit any of its Subsidiaries to sell or
otherwise dispose of: (i) any shares of capital stock of such
Party or any Subsidiary of such Party (unless any such shares of
stock are sold or otherwise transferred to such Party or any of
its Subsidiaries), (ii) any substantial part of the assets or
earning power of such Party or any Subsidiary of such Party, or
(iii) any asset other than in the ordinary course of business for
reasonable and adequate consideration, or
(f) Except as Previously Disclosed, incur, or permit
any of its Subsidiaries to incur, any additional material debt
obligation or other material obligation for borrowed money (other
than (i) in replacement of existing short-term debt with other
short-term debt, (ii) financing of banking related Subsidiary
activities consistent with past practices, (iii) indebtedness of
any of its Companies to another of its Companies or
(iv) indebtedness of any of its Companies to any of their
respective affiliates), except in the ordinary course of the
business of such Party and its Subsidiaries consistent with past
practices (and such ordinary course of business shall include,
but shall not be limited to, the creation of deposit liabilities,
purchases of federal funds, sales of certificates of deposit and
entry into repurchase agreements), or
(g) Except as contemplated by this Agreement, the
Merger Agreement or any of the agreements, documents or
instruments contemplated hereby or thereby, grant any general
increase in compensation or benefits to its employees or to its
officers, except in accordance with past practice or as required
by law; pay any bonus except in accordance with past practice or
the provisions of any applicable program or plan of the Central
Companies as in effect prior to the date of this Agreement and
which has been Previously Disclosed; enter into any severance
agreements with any of its directors or officers or the directors
or officers of any Subsidiary except as Previously Disclosed;
grant any increase in fees or other increases in compensation or
other benefits to any of its present or former directors; or
effect any change in retirement benefits for any class of its
employees or officers (unless such change is required by
applicable law or, in the opinion of counsel, is necessary or
advisable to maintain the tax qualification of any plan under
which the retirement benefits are provided) that would materially
increase the retirement benefit liabilities of the Central
Companies on a consolidated basis, or
(h) Except as contemplated by this Agreement, the
Merger Agreement or any of the agreements, documents or
instruments contemplated hereby or thereby, or except as
Previously Disclosed, amend any existing employment contract
between such Party or any Subsidiary thereof and any person
having a salary thereunder in excess of $50,000 per year (unless
such amendment is required by law) to increase the compensation
or benefits payable thereunder or extend the term thereof or
enter into any new employment contract with any person having a
salary thereunder in excess of $50,000 that such Party or its
applicable Subsidiary 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) Except as contemplated by this Agreement, the
Merger Agreement or any of the agreements, documents or
instruments contemplated hereby or thereby, adopt any new
employee benefit plan of Central or any Central Subsidiary or
make any material change in or to any existing employee benefit
plan of such Party or any Subsidiary thereof other than (i) as
Previously Disclosed or (ii) 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.
6.2 CONDUCT OF BUSINESS -- AFFIRMATIVE COVENANTS. Unless
the prior written consent of the other Party shall have been
obtained, except as otherwise contemplated or permitted hereby or
Previously Disclosed, each Party shall and shall cause its
Subsidiaries: to operate its business only in the ordinary course
of business of such Party and its Subsidiaries consistent with
past practices, to preserve intact its business organizations and
assets and maintain its rights and franchises, and to take no
action which would (i) adversely affect the ability of any of
them to obtain any necessary approvals of Regulatory Authorities
required for the transactions contemplated hereby without
imposition of a condition or restriction of the type referred to
in the second sentence of Section 8.5 of this Agreement,
(ii) adversely affect the ability of such Party to perform its
obligations under this Agreement, the Merger Agreement and Stock
Option Agreement, or (iii) cause or permit a breach of any of its
covenants or cause or permit any representation or warranty of it
to become untrue in any material respect, as if each such
representation and warranty were continuously made from the date
hereof.
6.3 ADVERSE CHANGES IN CONDITION. Each Party shall give
written notice promptly to the other Party concerning (i) any
material adverse change in the condition (financial or
otherwise), results of operations or business prospects of such
Party and its Subsidiaries, taken as a whole on a consolidated
basis ("Material Adverse Change"), or (ii) the occurrence or
impending occurrence of any event or circumstance known to such
Party which would cause or constitute a material breach of any of
the representations, warranties or covenants of such Party
contained herein or that would reasonably be expected to
materially and adversely affect the timely consummation of the
transactions contemplated hereby or under the Merger Agreement or
Stock Option Agreement. Each Party shall use its best efforts to
prevent or to promptly remedy the same.
6.4 INVESTIGATION AND CONFIDENTIALITY. Prior to the
Effective Time, each Party will keep the other Party promptly
advised of all material developments relevant to its business and
to the consummation of the Merger and may make or cause to be
made such investigation, if any, of the business, properties,
operations and financial and legal condition of the other Party
and its Subsidiaries as such Party reasonably deems necessary or
advisable to familiarize itself and its advisors with such
business, properties, operations and condition, provided that
such investigation shall be reasonably related to the
transactions contemplated hereby and shall not interfere
unnecessarily with normal operations. Each Party agrees to
furnish the other Party and the other Party's respective advisors
with such financial and operating data and other information with
respect to its business, properties and employees as the other
Party shall from time to time reasonably request. No
investigation by one Party shall affect the representations and
warranties of the other Party and, subject to Section 9.3 of
this Agreement, each such representation and warranty shall
survive any such investigation. Each Party shall maintain the
confidentiality of all confidential information furnished to it
by the other Party in accordance with the terms of the
confidentiality agreement dated May 15, 1995, between the Parties
(the "Confidentiality Agreement").
6.5 REPORTS. Each Party shall file all reports required to
be filed by it with the SEC and the Federal Reserve 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. Each Party shall cause each of its Subsidiaries
that is a depository institution to file all reports required to
be filed with the Federal Deposit Insurance Corporation, the
Office of the Comptroller of the Currency, the Federal Reserve,
the OTS and any applicable State Regulatory Commissioner.
6.6 DIVIDENDS.
(a) From the date of this Agreement to the earlier of
the Effective Time or the termination of this Agreement, Central
will not declare or pay any dividend or other distribution to its
shareholders except regular quarterly cash dividends on the
shares of Central Common Stock, at a rate not in excess of the
regular quarterly cash dividend most recently declared by Central
prior to the date of this Agreement.
(b) From the date of this Agreement to the earlier of
the Effective Time or the termination of this Agreement, no Party
shall, without the prior written consent of the other Party, make
any changes in its dividend record or payment dates, except as
required to comply with paragraph (c) below.
(c) The Parties shall coordinate with one another as to
the declaration and payment of cash dividends on the shares of
FCC Common Stock and Central Common Stock to be declared in 1995
and 1996 so as to ensure that FCC and Central have declared, with
the record dates prior to the Effective Time, the same number of
quarterly dividends from January 1, 1995 through the Effective
Time.
6.7 CAPITAL STOCK. Except for or as otherwise permitted in
or contemplated by this Agreement, the Merger Agreement or the
Stock Option Agreement, or as Previously Disclosed, without the
prior written consent of FCC, from the date of this Agreement to
the earlier of the Effective Time or the termination of this
Agreement, Central shall not, and shall not enter into any
agreement to, issue, sell, or otherwise permit to become
outstanding any additional shares of Central Common Stock or any
other capital stock of Central, 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.
6.8 AGREEMENT OF AFFILIATES. Central shall deliver to FCC,
no later than 30 days after the date of this Agreement, a letter
identifying each person whom it reasonably believes is an
"affiliate" of Central for purposes of Rule 145 under the
1933 Act. Thereafter and until the date on which the Merger is
approved by the Federal Reserve, Central shall identify to FCC
each additional person whom Central reasonably believes to have
thereafter become an "affiliate". Central shall use its best
efforts to cause each person who is identified as an "affiliate"
of such Party pursuant to the two immediately preceding sentences
to deliver to FCC, not later than the date on which the Merger is
approved by the Federal Reserve, a written agreement,
substantially in the form of Exhibit VI.
6.9 CERTAIN ACTIONS. Neither Central nor any of its
Subsidiaries shall (except as may, in the written opinion of its
counsel promptly delivered to the other Party, be required by
fiduciary duty) solicit, initiate, participate in discussions of,
or encourage or take any other action to facilitate (including by
way of the disclosing or furnishing of any information that it is
not legally obligated to disclose or furnish) any inquiry or the
making of any proposal relating to an Acquisition Transaction or
a potential Acquisition Transaction involving such Party or any
of its Subsidiaries (and, if any information is furnished, it
will be furnished only under a confidentiality agreement
containing substantially the same provisions as the
Confidentiality Agreement referred to in Section 6.4). Central
shall immediately instruct and otherwise use its best efforts to
cause its directors, officers, employees, agents, advisors
(including, without limitation, any investment banker, attorney
or accountant retained by it or any of its Subsidiaries),
consultants and other representatives to comply with the
provisions of this Section 6.9. Central will immediately cease
and cause to be terminated any existing activities, discussions
or negotiations with any parties conducted heretofore with
respect to any such activities. Except as may, in the written
opinion of its counsel promptly delivered to the other Party, be
required by fiduciary duty, Central shall not negotiate with
respect to any such proposal, nor shall it reach any agreement or
understanding (formal or informal, written or otherwise) with
respect to any such proposal. Central shall promptly notify FCC
orally and in writing in the event it receives any such inquiry
or proposal. This Section 6.9 shall not prohibit accurate
disclosure by a Party in any SEC Document (including the Joint
Proxy Statement and the Registration Statement) or other
disclosure to the extent required by the Securities Laws or other
applicable law if in the opinion of the Board of Directors of
such Party (as of the date of such SEC Document or other
disclosure) disclosure is required under applicable law as to
transactions contemplated hereby.
6.10 AGREEMENT AS TO EFFORTS TO CONSUMMATE. Subject to the
terms and conditions of this Agreement and its fiduciary duties
under applicable law, each of the Parties agrees to use its best
efforts to take, or cause to be taken, all actions, and to do, or
cause to be done, all things, necessary, proper or advisable
under applicable laws and regulations to consummate and make
effective, as soon as practicable after the date of this
Agreement, the transactions contemplated by this Agreement,
including, without limitation, using its best efforts to lift or
rescind any injunction or restraining order or other order
adversely affecting the ability of the Parties to consummate the
transactions contemplated hereby. Each of the Parties shall use,
and shall cause each of its Subsidiaries to use, its best efforts
to obtain consents of all third parties and governmental bodies
necessary or desirable for the consummation of the transactions
contemplated by this Agreement. This section shall not require
either Party to waive any condition to such Party's obligation to
consummate the Merger.
6.11 OPERATING FUNCTIONS. The Central Companies will
cooperate with FCC in connection with planning for the efficient
and orderly combination of the parties and the operation of
Central Bank after the Merger, and in the consolidation of
appropriate operating functions to be effective on the Effective
Date, provided that this covenant shall not require any action
that, in the opinion of Central's Board, would adversely affect
the operations of any Central Company if the Merger were not
consummated.
6.12 ISSUANCE OF FCC STOCK. FCC shall, prior to the
Closing, take such action as is required to permit the issuance
of the FCC Common Stock issuable to the shareholders of Central
pursuant to the Merger, and to permit such stock to be approved
for listing and quotation on the NASDAQ Stock Market.
6.13 INSIDER COMMITMENTS. Central has delivered to FCC on
the date of this Agreement Insider's Commitments in the form of
Exhibit VII from the directors and executive officers of Central
and from each person who owns as much as 5% of the outstanding
shares of Central Common Stock.
6.14 MATERIAL ADVERSE EFFECT AND CHANGE. In determining
whether there has occurred with respect to FCC a Material Adverse
Change or whether any circumstance has had a Warrantor Material
Adverse Effect with respect to FCC, unrealized securities losses
shall be ignored, and realized securities losses shall be ignored
except to the extent such realized securities losses (A) cause
FCC to have (i) a Tier I capital ratio (as defined in Appendix A
to 12 C.F.R. 225) of less than 6%, or (ii) a leverage-based
capital ratio (as defined in Appendix B to 12 C.F.R. 225) of less
than 5%; or (B) result in an enforcement action against FCC by a
federal Regulatory Authority.
6.15 P&A AGREEMENT. FCC and Central agree to use their best
efforts to cause their respective subsidiaries, Rapides Bank &
Trust Company in Alexandria ("RBT") and Central Bank, (i) to
enter into a purchase and assumption agreement pursuant to which
specified assets and liabilities of Central Bank that are
associated with the trade area of RBT will be transferred to RBT
at the Effective Time or as soon as practicable thereafter
(provided that such transfer shall be conditioned upon and shall
not occur sooner than the occurrence of the Merger), and (ii) to
apply expeditiously for and diligently pursue regulatory approval
of such agreement. The consummation of the Merger is not
conditioned upon the consummation of such agreement
SECTION VII.
ADDITIONAL AGREEMENTS
7.1 REGISTRATION STATEMENT; SHAREHOLDER APPROVAL. The
Parties shall cooperate in the preparation of the Registration
Statement. FCC shall, as soon as practicable, file the
Registration Statement with the SEC, and the Parties shall use
their best efforts to cause the Registration Statement to become
effective under the 1933 Act. FCC will take, and Central will
cooperate with it in connection with, any action required to be
taken under the applicable state Blue Sky or securities laws in
connection with the issuance of shares of FCC Common Stock upon
consummation of the Merger. Each party shall furnish all
information concerning it and the holders of its capital stock as
the other Party may reasonably request in connection with such
action. FCC and Central shall each call a Shareholders' Meeting
to be held as soon as reasonably practicable after the date of
this Agreement for the purpose of voting upon the Merger. In
connection with the Shareholders' Meetings, (i) FCC and Central
shall prepare and file a Joint Proxy Statement with the SEC and
mail it to their shareholders, (ii) each Party shall furnish to
the other Party all information concerning it that the other
Party may reasonably request in connection with such Joint Proxy
Statement, (iii) the Board of Directors of FCC and Central shall
recommend to their respective shareholders the approval of this
Agreement and the Merger Agreement, provided, however, that such
recommendation may be withdrawn, modified or amended by the Board
of Directors of a Party after the receipt by such Party of an
offer to effect an Acquisition Transaction with such Party to the
extent the Board of Directors of such Party reasonably determines
that, in the exercise of its fiduciary obligations, it is
required to do so; provided, further, that such determination
must be based on a written opinion of counsel promptly delivered
to the other Party, and (iv) FCC and Central shall otherwise use
their best efforts to obtain such shareholders' approval, subject
to their respective fiduciary duties under applicable law. This
Section 7.1 shall not prohibit accurate disclosure by a Party in
any SEC Document (including the Joint Proxy Statement and the
Registration Statement) and other disclosure to the extent
required by the Securities Laws or other applicable law if in the
opinion of the Board of Directors of such party (as of the date
of such SEC Document or other disclosure) disclosure is required
as to transactions contemplated hereby or as to any proposal for
an Acquisition Transaction. The Parties shall use all reasonable
efforts to hold the Shareholders' Meetings on the same date or
otherwise as close together as may be practicable.
7.2 FILINGS WITH THE STATE OFFICES. Promptly following, or
contemporaneous with, the Closing, the Parties will cause the
Merger Agreement to be filed with the Secretary of State of
Louisiana, and will cause to be made all such other filing as are
required by the BCL.
7.3 TAX OPINION. The Parties agree to use their reasonable
efforts to obtain a written opinion of Arthur Andersen LLP,
addressed to the Parties and reasonably satisfactory to their
respective counsel, dated the date of the Closing, subject to the
customary representations and assumptions, and substantially to
the effect that (a) the Merger will constitute a tax-free
reorganization within the meaning of Section 368(a)(1)(A) of the
Internal Revenue Code and FCC and Central will each be a party to
the reorganization, (b) the exchange in the Merger of Central
Common Stock for FCC Common Stock will not give rise to income,
gain or loss to FCC and Central, or shareholders of Central with
respect to such exchange (except to the extent of any cash paid
in lieu of fractional shares), (c) the adjusted tax basis of the
FCC Common Stock received by shareholders of Central who exchange
all of their Central Common Stock in the Merger will be the same
as the adjusted tax basis of the shares of Central Common Stock
surrendered in exchange therefor (reduced by any amount allocable
to a fractional share for which cash is received) and (d) the
holding period of the shares of FCC Common Stock received in the
Merger will include the period during which the shares of Central
Common Stock surrendered in exchange therefor were held, provided
such shares of Central Common Stock were held as capital assets
at the Effective Time.
7.4 ACCOUNTING TREATMENT. No Party will take, cause or to
the best of its ability permit to be taken any action that would
adversely affect the qualification of the Merger for pooling of
interests accounting treatment; provided that nothing herein
shall preclude any Party from exercising its rights under the
Stock Option Agreement.
7.5 PRESS RELEASES. Prior to the Effective Time, the
Parties shall give when practicable prior notice to 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, however, that nothing
in this Section 7.5 shall be deemed to prohibit a Party from
making any disclosure which its counsel deems necessary in order
to satisfy such Party's disclosure obligations imposed by law.
7.6 APPLICATIONS. The parties shall prepare and file
applications with the Federal Reserve, the State Regulatory
Commissioners and any other appropriate governmental authorities
seeking the approvals necessary to consummate the transactions
contemplated by this Agreement. The Parties shall provide copies
of all such filings to each other within five business days after
such filings are made and shall promptly inform each other of all
substantive regulatory contacts concerning the transactions
contemplated by this Agreement.
SECTION VIII.
CONDITIONS PRECEDENT TO
OBLIGATIONS TO CONSUMMATE
The obligation of each Party to consummate the Merger is
subject to the satisfaction of each of the following conditions,
unless waived by such Party pursuant to Section 10.5 of this
Agreement:
8.1 REPRESENTATIONS AND WARRANTIES. The representations
and warranties of the other Party set forth or referred to in
this Agreement shall be true and correct in all material respects
as of the date of this Agreement and as of the time of the
Closing with the same effect as though all such representations
and warranties had been made on and as of the time of the
Closing, except (i) for any such representations and warranties
made as of a specified date, which shall be true and correct in
all material respects as of such date, (ii) as expressly
contemplated or permitted by this Agreement, or (iii) to the
extent that the facts constituting any untruth or incorrectness
in such representations and warranties as of the time of the
Closing do not reflect a Material Adverse Change from that
represented and warranted by such other Party, provided, however,
that the exception in this clause (iii) shall not apply to
(A) the requirement that representations and warranties be true
and correct in all material respects as of the date of this
Agreement, or (B) the representations and warranties in
Sections 5.1, 5.2 and 5.4, which representations and warranties
must be true and correct as of the time of the Closing.
8.2 PERFORMANCE OF AGREEMENTS AND COVENANTS. Each and all
of the agreements and covenants of the other Party to be
performed and complied with pursuant to this Agreement and the
other agreements contemplated hereby prior to the time of the
Closing shall have been duly performed and complied with by it in
all material respects.
8.3 CERTIFICATES. Each of the Parties shall have delivered
to the other Party a certificate, dated as of the time of the
Closing 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 8.1 and
Section 8.2 of this Agreement with respect to it have been
satisfied, all in such reasonable detail as the other Party shall
request.
8.4 SHAREHOLDER APPROVALS. The shareholders of each Party
shall have approved this Agreement, the Merger Agreement, the
Merger and the consummation of the transactions contemplated
hereby and thereby, as and to the extent required by law and by
the provisions of any governing instruments, and each Party shall
have furnished to the other certified copies of resolutions duly
adopted by such Party's shareholders evidencing the same. In
addition, the holders of the requisite percentage of shares of
FCC Common Stock and Central Common Stock sufficient, either
alone or in combination with other factors, to preclude
accounting for the Merger as a pooling of interests shall not
have perfected dissenters' rights under applicable law with
respect to the adoption of this Agreement and the Merger
Agreement.
8.5 CONSENTS AND APPROVALS. All material approvals and
authorizations of, filings and registrations with, and
notifications to, all Regulatory Authorities required for
consummation of the Merger and for the prevention of any
termination of any material right, privilege, license or
agreement of any Party or any of its Subsidiaries shall have been
obtained or made and shall be in full force and effect and all
waiting periods required by law shall have expired. Any approval
obtained from any Regulatory Authority which is necessary to
consummate the transactions contemplated hereby shall not be
conditioned or restricted in a manner which in the reasonable
judgment of the Board of Directors of either of the Parties so
materially and adversely affects the economic or business
assumptions of the transactions contemplated by this Agreement so
as to render inadvisable the consummation of the Merger. To the
extent that any lease, license, loan or financing agreement or
other contract or agreement to which any Party or any of its
Subsidiaries, as the case may be, is a party requires the consent
of or waiver from the other party thereto as a result of the
transactions contemplated by this Agreement, such consent or
waiver shall have been obtained, unless the failure to obtain
such consent or waiver would not, following the Merger, have a
material adverse effect on the consolidated financial condition,
results of operations or, to the best of such Party's knowledge,
business prospects of such Party and its Subsidiaries on a
consolidated basis from that reflected on the December 31, 1994
financial statements included in the Financial Statements.
8.6 LEGAL PROCEEDINGS. No Party shall be subject to any
order, decree or injunction of a court or agency of competent
jurisdiction which enjoins or prohibits consummation of any of
the transactions contemplated by this Agreement.
8.7 ACCOUNTANTS' LETTERS. Each Party shall have received
"comfort" letters from the other Party's independent public
accountants dated, respectively, within three days prior to the
mailing of the Joint Proxy Statement and the Closing Date, in
form and substance as are usual and customary for comfort letters
of this type.
8.8 TAX MATTERS. Each Party shall have received the tax
opinion addressed to it referred to in Section 7.3 of this
Agreement.
8.9 REGISTRATION STATEMENT. The Registration Statement
shall be effective under the 1933 Act and no stop orders
suspending the effectiveness of the Registration Statement shall
be in effect and no proceedings for such purpose shall be pending
before or threatened by the SEC.
8.10 SIMULTANEOUS TRANSACTIONS. The Closing shall have
occurred and the other Party shall have executed all documents
and taken all such other action as is necessary to effectuate the
Merger other than filing the Merger Agreement as referred to in
Section 7.2, and each Party shall have irrevocably authorized its
agents to make such filing in its behalf.
8.11 LEGAL OPINIONS. Each Party shall have received an
opinion, substantially in the form of Exhibit VIII-A or VIII-B
annexed hereto, as applicable, from counsel for the other Party.
8.12 POOLING OF INTERESTS. Neither the independent public
accountants of either Party, nor the SEC, shall have taken the
position that the Merger does not qualify for pooling-of-
interests accounting treatment under GAAP.
8.13 EMPLOYMENT CONTRACTS. The employment contracts
referred to in Section 4.2(b) shall have been entered into
(provided that any failure by any of the employees so to do shall
be a condition solely as to FCC).
SECTION IX.
TERMINATION
9.1 TERMINATION. Notwithstanding any other provision of
this Agreement or the Merger Agreement and notwithstanding the
approval of this Agreement and the Merger Agreement by the
shareholders of the Parties, as applicable, this Agreement and
the Merger Agreement may be terminated and the Merger abandoned
at any time prior to the Closing:
(a) By mutual consent of the Boards of Directors of FCC
and Central; or
(b) By the Board of Directors of a Party in the event
of a material breach by the other Party of any representation,
warranty, covenant or agreement of such other Party contained
herein which would result in the failure to satisfy the closing
condition set forth in Section 8.1 or 8.2 of this Agreement,
which breach cannot be or has not been cured within 30 days after
the giving of a written notice to the breaching Party of such
material breach; or
(c) By the Board of Directors of either Party in the
event that the Merger shall not have been consummated by June 30,
1996; or
(d) By the Board of Directors of either Party in the
event (i) any approval of any governmental or other Regulatory
Authority required for consummation of the Merger and the other
transactions contemplated hereby shall have been denied by final
non-appealable action of such authority or if any such action
taken by such authority is not appealed within the time limit for
appeal or (ii) if the shareholders of FCC or Central fail to have
approved this Agreement, the Merger Agreement and the Merger, as
applicable, and the consummation of the transactions contemplated
hereby and thereby, as applicable, at the Shareholders' Meetings
to the extent required by law and by the provisions of any
governing instruments; or
(e) By the Board of Directors of a Party in the event
that any of the conditions precedent to the obligations of such
Party to consummate the Merger cannot be satisfied or fulfilled
on or before June 30, 1996 (other than by reason of a breach by
the Party seeking to terminate); or
(f) By the Board of Directors of a Party in the event
of the acquisition, by any person or group of persons, of
beneficial ownership of 25% or more of the outstanding shares of
Common Stock of the other Party (the terms "person", "group" and
"beneficial ownership" having the meanings assigned thereto in
Section 13(d) of the 1934 Act and the regulations promulgated
thereunder); or
(g) By the Board of Directors of FCC if the Board of
Directors of Central shall or shall have resolved to withdraw,
modify or change its recommendation to Central's shareholders of
this Agreement, the Merger Agreement or the Merger, or recommend
any Acquisition Transaction other than the Merger; or
(h) By the Board of Directors of a Party (the "Terminating
Party"), if such Party has determined in its discretion (but in
good faith) (i) that, based on its due diligence investigation of
the other Party (the "Other Party"), including (without
limitation) its review of the matters that have been Previously
Disclosed by the Other Party, (A) the representations and
warranties of such Other Party in this Agreement were not true
and correct in all material respects on the date of this
Agreement, and/or (B) there is a material possibility that a
Material Adverse Change may in the future occur with respect to
such Other Party or that the Terminating Party will not achieve
from the transactions contemplated by this Agreement the
expectations that lead it to enter into this Agreement, and
(ii) that, had the Terminating Party known, prior to the date of
this Agreement, of such untruth, incorrectness and/or material
possibility, it would not have entered into this Agreement;
provided, that termination pursuant to this Section 9.1(h) may be
declared only by notice of termination given by the Terminating
Party to the Other Party during the period ("Notice Period") of
30 days following the date on which the Other Party first offers,
by letter delivered in accordance with Section 10.7 of this
Agreement, to make access to the Other Party available to the
Terminating Party for the latter's due diligence purposes. Any
notice of termination shall certify to the determinations set
forth in clauses (i) and (ii) above. A notice of termination
given in accordance with Section 9.1(h) shall become effective on
the 10th day after it is given unless prior to that time the
Other Party requests the Terminating Party to provide the details
supporting the determination referred to in clause (i), in which
event (A) the Terminating Party will supply such details by the
15th day after such request, (B) the Terminating Party will,
during the succeeding 10-day period, discuss its findings with
the Other Party on request by the Other Party, and (C) the notice
of termination shall become effective at the end of such 10-day
period unless by then withdrawn by the Terminating Party by a
written notice of withdrawal; or
(i) By the Board of Directors of Central if there has
occurred any conversion of FCC Common Stock into or exchange of
FCC Common Stock for the securities of any other issuer, provided
that the right of termination in accordance with this
Section 9.1(i) shall itself terminate on the 30th day following
the date on which FCC provides written notice to Central of any
such conversation or exchange; or
(j) By the Board of Directors of a Party if an action
or failure to act by the other Party results in a Material
Adverse Change, as defined in Section 6.3 of this Agreement, with
respect to such other Party which is not remedied or cured within
30 days after notice of intention to terminate is given by the
Party invoking this Section 9.1(j), which notice shall specify
the action or failure to act that is the basis of such intention;
provided that the right to terminate with respect to the action
or failure to act that is specified in such notice of intention
shall itself terminate unless notice of termination is given by
such Party within 15 days following the end of such remedial or
curative period; or
(k) By the Board of Directors of Central if Central
Option Shares shall have been issued pursuant to any exercise of
the Stock Option Agreement and, at the time scheduled for
Closing, all or any portion of such Central Option Shares would
not be cancelled in accordance with Section 2.3(b) by virtue of
the Merger.
9.2 EFFECT OF TERMINATION. In the event of the termination
and abandonment of this Agreement and the Merger Agreement
pursuant to Section 9.1 of this Agreement, this Agreement and the
Merger Agreement shall become void and have no effect and the
Parties will be relieved of all obligations and liabilities under
this Agreement and the Merger Agreement, except that (i) the
provisions of the last sentence of Section 6.4, Section 7.5, and
Section X of this Agreement shall survive any such termination
and abandonment, (ii) the Stock Option Agreement shall be
governed by its own terms as to termination, (iii) a termination
pursuant to Section 9.1(b) or 9.1(e) or 9.1(g) of this Agreement
shall not relieve a breaching Party from liability for any breach
giving rise to such termination and (iv) the Parties shall remain
obligated under, and liable for any breach of, any of the
provisions of this Agreement that survive its termination.
9.3 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS.
The respective representations, warranties, obligations,
covenants and agreements of the Parties shall not survive the
Effective Time except for (i) this Section 9.3, Section 2.3 and
Section IV of this Agreement and (ii) the Merger Agreement,
provided that no such representations, warranties or covenants
shall be deemed to be terminated or extinguished so as to deprive
any Party (or any director, officer or controlling person
thereof) of any defense in law or equity which otherwise would be
available against the claims of any person, including, without
limitation, any shareholder or former shareholder of any Party,
the aforesaid representations, warranties and covenants being
material inducements to consummation by the Parties of the
transactions contemplated hereby.
SECTION X.
MISCELLANEOUS
10.1 EXPENSES.
(a) Except as provided in Section 2.3(a) and
Section 10.1(b) of this Agreement, each of the Parties 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 or other
consultants, investment bankers, accountants and counsel.
(b) Notwithstanding the foregoing, a Party (the
"Expense Paying Party") shall pay all of the costs and expenses
incurred by the other Party (the "Reimbursed Party") (without
duplication pursuant to this Agreement or any other agreement or
instrument) in connection with this Agreement and the
transactions contemplated hereunder, including fees and expenses
of such Reimbursed Party's financial or other consultants,
investment bankers, accountants and counsel, if:
(i) (a) this Agreement is terminated pursuant to
Section 9.1(b) by reason of a material breach by the Expense
Paying Party, (b) the Reimbursed Party was the Party who
terminated it, and (c) the Expense Paying Party is at the time of
the termination not also entitled to terminate this Agreement
pursuant to Section 9.1(b) by reason of a material breach of the
Reimbursed Party; or
(ii) a Purchase Event occurs with respect to the
Stock Option Agreement if Central is the Expense Paying Party and
the Merger has not been, or thereafter is not, consummated for
any reason other than a termination pursuant to Section 9.1(b)
because of a material breach by the Reimbursed Party.
Nothing contained in this Section 10.1(b) shall constitute
or shall be deemed to constitute liquidated damages for the
breach by a Party of the terms of this Agreement or otherwise
limit the rights of the nonbreaching Party.
(c) Final settlement with respect to payment of fees
and expenses by the Parties pursuant to Section 10.1 of this
Agreement shall be made within 30 days of the termination of this
Agreement and the Merger Agreement. If more than one Party is
responsible as an Expense Paying Party, then the costs and
expenses which the Expense Paying Parties are obligated to pay
shall be equally shared between them, regardless of whether their
relative degree of fault is or is not equal.
10.2 BROKERS AND FINDERS. Except as Previously Disclosed,
each of the Parties represents and warrants that neither it nor
any of its officers, directors, employees, affiliates or
Subsidiaries 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 its
representing or being retained by or allegedly representing or
being retained by any Party, such Party agrees to indemnify and
hold the other Party harmless of and from such claim.
10.3 ENTIRE AGREEMENT. Except as otherwise expressly
provided herein, this Agreement, the Merger Agreement, the Stock
Option Agreement and the Confidentiality Agreement contain the
entire agreement among the Parties with respect to the
transactions contemplated hereunder and thereunder, and such
agreements supersede all prior arrangements or understanding with
respect thereto, written or oral. The terms and conditions of
this Agreement shall inure to the benefit of and be binding upon
the Parties and their respective successors. Nothing in this
Agreement, expressed or implied, is intended to confer upon any
party, other than the Parties or their respective successors, any
rights, remedies, obligations or liabilities under or by reason
of this Agreement except for the rights of shareholders of
Central to receive the merger consideration following the
Effective Time and except as otherwise may be provided in
Section IV.
10.4 AMENDMENTS. To the extent permitted by law, this
Agreement or the Merger Agreement may be amended by a subsequent
writing signed by each of the Parties upon the approval of the
Boards of Directors of such Parties; provided, however, that the
provisions of this Agreement and the Merger Agreement relating to
the manner or basis in which shares of Central Common Stock will
be exchanged for FCC Common Stock shall not be amended after the
Shareholders' Meetings without the requisite approval of the
holders of the issued and outstanding shares of FCC Common Stock
and Central Common Stock entitled to vote thereon. The Parties
may, without approval of their respective Boards of Directors,
make such technical changes to this Agreement or the Merger
Agreement, not inconsistent with the purposes hereof and thereof,
as may be required to effect or facilitate any governmental
approval or acceptance of the Merger or of this Agreement or the
Merger Agreement or to effect or facilitate any filing or
recording required for the consummation of any of the
transactions contemplated hereby or thereby.
10.5 WAIVERS. Prior to or at the Effective Time, each
Party, acting through its Board of Directors or chief executive
officer or other authorized officer, shall, as to such Party's
rights hereunder, have the right (i) to waive any default in the
performance of any term of this Agreement by the other Party,
(ii) to waive or extend the time for the compliance or
fulfillment by the other Party of any and all of its obligations
under this Agreement, and (iii) to waive any or all of the
conditions precedent to the obligations of such Party under this
Agreement.
10.6 NO ASSIGNMENT. Neither of the Parties may assign any
of its rights or obligations under this Agreement or the Merger
Agreement to any other persons, and any such purported assignment
shall be deemed null and void.
10.7 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 or by
registered or certified mail, postage pre-paid, 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:
If to FCC:
First Commerce Corporation
210 Baronne Street
New Orleans, LA 70112
Attention: Ian Arnof
With a copy to:
Correro, Fishman & Casteix, L.L.P.
201 St. Charles Avenue, 47th Floor
New Orleans, LA 70170-4700
Attention: Louis Y. Fishman
If to Central:
Central Corporation
300 DeSiard Street
Monroe, LA 71201-4928
Attention: James A. Altick
With a copy to:
Mayer, Brown & Platt
2000 Pennsylvania Avenue, N.W.
Washington, D.C. 20006-1882
Attention: Brian W. Smith
10.8 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Louisiana
without regard to the conflict of laws principles thereof.
10.9 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall constitute one and the
same instrument.
10.10CAPTIONS. The captions contained in this Agreement are
for reference purposes only and are not part of this Agreement.
IN WITNESS WHEREOF, each of the Parties has caused this
Agreement to be executed on its behalf and attested by officers
thereunto duly authorized all as of the day and year first above
written.
FIRST COMMERCE CORPORATION
ATTEST:
By: ____________________________________
_____________________________
Secretary
CENTRAL CORPORATION
ATTEST: By: ____________________________________
_____________________________
Secretary
<PAGE>
Exhibit I
JOINT AGREEMENT OF MERGER
OF
CENTRAL CORPORATION
WITH AND INTO
FIRST COMMERCE CORPORATION
This Joint Agreement of Merger (this "Joint Agreement") is
dated as of the 15th day of May, 1995, between Central
Corporation, a Louisiana corporation ("Central"), and First
Commerce Corporation, a Louisiana corporation ("FCC"); and is
entered into pursuant to the provisions of Sections 111 et seq.
of the Louisiana Business Corporation Law ("LBCL").
WHEREAS, as required by law, at least a majority of the
members of the respective Boards of Directors of Central and FCC
(collectively, the "Merging Corporations") deem it advisable that
Central be merged with and into FCC (the "Merger"), as provided
in this Joint Agreement and in the Agreement and Plan of Merger
dated as of May 15, 1995 (the "Plan"), among Central and FCC,
which sets forth, among other things, certain representations,
warranties, covenants and conditions relating to the Merger; and
WHEREAS, as required by law, at least a majority of the
members of the respective Boards of Directors of the Merging
Corporations wish to enter into this Joint Agreement and submit
it to the shareholders of Central and FCC for approval in the
manner required by law and, subject to such approval and to such
other approvals as may be required, to effect the Merger, all in
accordance with the provisions of this Joint Agreement.
NOW THEREFORE, in consideration of the mutual benefits to be
derived from this Joint Agreement and the Merger, the parties
hereto agree as follows:
1. THE MERGER
In accordance with the applicable provisions of the LBCL,
Central shall be merged with and into FCC; the separate existence
of Central shall cease; and FCC shall be the corporation
surviving the merger.
2. EFFECTIVENESS OF THE MERGER
2.1 Effective Time of the Merger. The Merger shall become
effective at the time (the "Effective Time") at which this Joint
Agreement, having been executed and acknowledged in the manner
required by law, is filed in the office of the Secretary of State
of Louisiana.
2.2 Effect of the Merger. At the Effective Time, (i) the
separate existence of Central shall cease and Central shall be
merged with and into FCC; (ii) FCC shall continue to possess all
of the rights, privileges and franchises possessed by it and
shall, at the Effective Time, become vested with and possess all
rights, privileges and franchises possessed by Central; (iii) FCC
shall be responsible for all of the liabilities and obligations
of Central in the same manner as if FCC had itself incurred such
liabilities or obligations, and the Merger shall not affect or
impair the rights of the creditors or of any persons dealing with
the Merging Corporations; (iv) the Merger will not of itself
cause a change, alteration or amendment to the Articles of
Incorporation or the By-Laws of FCC; (v) the Board of Directors
of FCC shall consist of those persons serving as Directors of FCC
immediately prior to the Effective Time and, in addition,
Robert C. Cudd, III, Hugh G. McDonald, Jr., Saul A. Mintz and
Tom H. Scott; (vi) the officers of FCC shall consist of those
persons serving as officers of FCC immediately prior to the
Effective Time and, in addition, James A. Altick will at the
Effective Time become an Executive Vice President of FCC; and
(vii) the Merger shall, from and after the Effective Time, have
all the effects provided by applicable Louisiana law.
2.3 Additional Actions. If, at any time after the
Effective Time, FCC shall consider or be advised that any further
assignments or assurances in law or any other acts are necessary
or desirable (a) to vest, perfect or confirm, of record or
otherwise, in FCC, title to or the possession of any property or
right of Central acquired or to be acquired by reason of, or as a
result of, the Merger, or (b) otherwise to carry out the purposes
of this Joint Agreement, Central and its proper officers and
directors shall be deemed to have granted to FCC an irrevocable
power of attorney to execute and deliver all such proper deeds,
assignments and assurances in law and to do all acts necessary or
proper to vest, perfect or confirm title to and possession of
such property or rights in FCC and otherwise to carry out the
purposes of this Joint Agreement; and the proper officers and
directors of FCC are fully authorized in the name of Central to
take any and all such action.
3. METHOD OF CARRYING MERGER INTO EFFECT
This Joint Agreement shall be submitted to the shareholders
of Central and FCC for their approval. If such approval is
given, then the fact of such approval shall be certified hereon
by the Secretaries of Central and FCC. This Joint Agreement, so
approved and certified, shall, as soon as is practicable, be
signed and acknowledged by the President or Vice President of
each of the Merging Corporations. As soon as may be practicable
thereafter, this Joint Agreement, so certified, signed and
acknowledged, shall be delivered to the Secretary of State of
Louisiana for filing in the manner required by law and shall be
effective at the Effective Time; and thereafter, as soon as
practicable, a copy of the Certificate of Merger issued by the
Secretary of State of Louisiana, and certified by him to be a
true copy, shall be filed for record in the Office of the
Recorder of Mortgages of the parishes in which the Merging
Corporations have their respective registered offices and in the
Office of the Recorder of Conveyances of each parish in which
Central has immovable property.
4. CONVERSION OF SHARES
4.1 Certain Definitions. As used in Section 4, the
following terms have the following respective meanings:
(a) "Central Common Stock" shall mean the Common Stock,
par value $1.00 per share, of Central.
(b) "Central Companies" shall mean, collectively,
Central and all Central Subsidiaries.
(c) "Central Option Shares" means shares of Central
Common Stock issuable pursuant to the Stock Option Agreement
dated as of May 15, 1995, between Central and FCC.
(d) "Central Subsidiaries" shall mean the subsidiaries
of Central.
(e) "Dissenters' Shares" shall mean shares of Central
Common Stock as to which dissenters' rights have been perfected
and not withdrawn or otherwise forfeited under Section 131 of the
BCL.
(f) "FCC Common Stock" shall mean the Common Stock, par
value $5.00 per share, of FCC.
(g) "Market Value" shall mean the average of the
closing sales prices of a share of FCC Common Stock on the NASDAQ
Stock Market for the 15 business days ended on the last business
day before the Effective Time. In the event FCC changes the
number of shares of FCC Common Stock issued and outstanding as a
result of any stock split, stock dividend or other similar change
in FCC's capitalization, or if a distribution of securities is
made in respect of the FCC Common Stock as a result of any
dividend (other than regular quarterly cash dividends), spinoff
or other reorganization in which FCC Common Stock is not changed
into or exchanged for a different kind of securities, and in any
such case the record date is before the Effective Time and the
ex-dividend or ex-distribution date is subsequent to, or during,
the period during which Market Value is determined such that such
event is not reflected in any one or more of the closing sales
prices used to determine Market Value, the appropriate adjustment
shall be made in such closing sales price or prices so as to
reflect such change.
4.2 Conversion of Central Common Stock. Except for
Dissenters' Shares, at the Effective Time each outstanding share
of Central Common Stock will be converted into that number of
shares of FCC Common Stock as is equal to (A) 1.670 (the
"Conversion Ratio"), minus (B) the quotient of (i)(a) the amount
(if any) by which all expenses of the Central Companies in
connection with the transactions contemplated by this Agreement
exceed $1,750,000 divided by (b) the Market Value of one share of
FCC Common Stock; divided by (ii) the number of shares of
Central Common Stock outstanding at the Effective Time. In
calculating expenses of the Central Companies for purposes of the
preceding clause (B)(i)(a), expenses which Central incurs
directly or indirectly as a result of the following shall not be
included: (1) any action or failure to act on the part of FCC;
(2) any circumstances or conditions surrounding the ongoing
business operations or regulatory compliance of FCC; or (3) any
claims or proceedings, regulatory or otherwise, with merit or
not, brought against FCC in connection with the transactions
contemplated herein or which significantly delay or impede FCC's
performance in such transactions. The aggregate number of shares
of FCC Common Stock to be issued in the Merger, prior to any
adjustment in accordance with Section 4.4 or in accordance with
clause (B)(i)(a) of this Section 4.2, shall in no event exceed
6,792,453, plus, in the event of any issuance by Central of
Central Option Shares, the number of shares of FCC Common Stock
into which such Central Option Shares are converted by virtue of
the Merger.
4.3 Nonconversion of Certain Shares of Central Common
Stock. Shares of Central Common Stock that are held by Central
or any Central Subsidiary (other than shares held by such a
Subsidiary in a fiduciary capacity other than for Central or any
other Subsidiary of Central) shall not be considered to be
outstanding and shall be cancelled (and not converted) by virtue
of the Merger at the Effective Time and without any further
action by either party. Central Option Shares that are held by
FCC or any subsidiary of FCC (other than Central Option Shares
held by such a subsidiary in a fiduciary capacity other than for
FCC or any other subsidiary of FCC) shall be cancelled (and not
converted) by virtue of the Merger at the Effective Time and
without any further action by either party.
4.4 Adjustments. If, prior to the Effective Time, Central
(subject to any restrictions contained in the Plan) or FCC, as
the case may be, should split or combine the Central Common
Stock or the FCC Common Stock, or pay a stock dividend in Central
Common Stock or FCC Common Stock, or otherwise change the Central
Common Stock or FCC Common Stock into any other securities, or
make any other dividend or distribution in respect of the Central
Common Stock or the FCC Common Stock (other than normal cash
dividends as the same may be adjusted from time to time in
accordance with or not in violation of the Plan), then the
Conversion Ratio (and, correspondingly, the maximum aggregate
number of shares of FCC Common Stock that may be issued in the
Merger, as provided in the last sentence of Section 4.2) will be
appropriately adjusted to reflect such split, combination,
dividend or other distribution or change.
4.5 Fractional Shares. In lieu of issuing any fractional
share of FCC Common Stock, each holder of Central Common Stock
who would otherwise be entitled thereto, after aggregating into
whole shares all fractional shares of FCC Common Stock to which
such holder is entitled by virtue of the Merger, upon surrender
of the certificate(s) which represented Central Common Stock,
will receive cash equal to such fractional share multiplied by
the Market Value.
4.6 Exchange of Certificates. After the Effective Time,
each holder of Central Common Stock (other than Dissenters'
Shares), upon surrender of such holder's certificates therefor to
FCC together with a completed letter of transmittal in the form
furnished by FCC, will be entitled to receive the shares of FCC
Common Stock into which such holder's shares have been converted
and cash in lieu of any fractional share as provided above, less
any applicable tax withholding. Until then, each certificate for
Central Common Stock will represent the number of whole shares of
FCC Common Stock into which the shares of Central Common Stock
represented thereby were converted, except that FCC may refuse to
pay any dividend or other distribution payable to holders of any
unsurrendered certificate for Central Common Stock until
surrender or if such dividend or distribution has reverted in
full ownership to FCC under its Articles of Incorporation.
Whether or not a certificate for Central Common Stock is
surrendered, after the Effective Time it will not represent any
interest in any person other than FCC.
4.7 Shares of FCC Common Stock. The shares of capital
stock of FCC outstanding immediately prior to the Effective Time
shall not be converted by virtue of the Merger.
5. MISCELLANEOUS
5.1 Termination. Prior to the Effective Time, this Joint
Agreement may be terminated, and the Merger abandoned, as set
forth in the Plan.
5.2 Headings. The descriptive headings of the sections of
this Joint Agreement are inserted for convenience only and do not
constitute a part hereof for any other purpose.
5.3 Modifications, Amendments and Waivers. At any time
prior to the Effective Time (notwithstanding any shareholder
approval that may have already been given), the parties hereto
may, to the extent permitted by and as provided in the Plan,
modify, amend or supplement any term or provision of this Joint
Agreement.
5.4 Governing Law. This Joint Agreement shall be governed
by the laws of the State of Louisiana (regardless of the laws
that might be applicable under principles of conflicts of law) as
to all matters, including, but not limited to, matters of
validity, construction, effect and performance.
<PAGE>
IN WITNESS WHEREOF, this Joint Agreement has been executed
by a majority of the respective Directors of each of the Merging
Corporations, as of the day and year first above written.
FOR THE BOARD OF DIRECTORS OF
CENTRAL CORPORATION:
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
<PAGE>
FOR THE BOARD OF DIRECTORS OF
FIRST COMMERCE CORPORATION:
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
<PAGE>
CERTIFICATE OF SECRETARY OF
CENTRAL CORPORATION
I hereby certify that I am the duly elected Secretary of
Central Corporation, a Louisiana corporation, presently serving
in such capacity and that the foregoing Agreement was, in the
manner required by law, duly approved, without alteration or
amendment, by the required vote of the shareholders of Central
Corporation.
Certificate dated , 1995.
___________________________________
____________________, Secretary
CERTIFICATE OF SECRETARY OF
FIRST COMMERCE CORPORATION
I hereby certify that I am the duly elected Secretary of
First Commerce Corporation, a Louisiana corporation, presently
serving in such capacity and that the foregoing Agreement was, in
the manner required by law, duly approved, without alteration or
amendment, by the required vote of the shareholders of First
Commerce Corporation.
Certificate dated , 1995.
___________________________________
___________________, Secretary
<PAGE>
EXECUTION BY CORPORATIONS
Considering the approval of this Agreement by the
shareholders of Central Corporation and First Commerce
Corporation, as certified above, this Agreement is executed by
such corporations, acting through their respective Presidents,
this _____ day of __________, 1995.
CENTRAL CORPORATION
By: ___________________________________
President
Attest:
___________________________________
Secretary
FIRST COMMERCE CORPORATION
By: ___________________________________
Ian Arnof, President and Chief
Executive Officer
Attest:
___________________________________
Secretary
<PAGE>
ACKNOWLEDGMENT AS TO
CENTRAL CORPORATION
STATE OF LOUISIANA
PARISH OF ____________________
BEFORE ME, the undersigned authority, personally came and
appeared ____________________ who, being duly sworn, declared and
acknowledged before me that he is the President of Central
Corporation and that in such capacity he was duly authorized to
and did execute the foregoing Agreement on behalf of such
corporation, for the purposes therein expressed and as his and
such corporation's free act and deed.
___________________________________
Appearer
Sworn to and subscribed before me
this _____ day of __________, 1995.
___________________________________
Notary Public
<PAGE>
ACKNOWLEDGMENT AS TO
FIRST COMMERCE CORPORATION
STATE OF LOUISIANA
PARISH OF ORLEANS
BEFORE ME, the undersigned authority, personally came and
appeared Ian Arnof who, being duly sworn, declared and
acknowledged before me that he is the President and Chief
Executive Officer of First Commerce Corporation and that in such
capacity he was duly authorized to and did execute the foregoing
Agreement on behalf of such corporation, for the purposes therein
expressed and as his and such corporation's free act and deed.
___________________________________
Appearer
Sworn to and subscribed before me
this _____ day of __________, 1995.
___________________________________
Notary Public
<PAGE>
EXHIBIT II
STOCK OPTION AGREEMENT
This Stock Option Agreement ("Option Agreement") is dated as
of May 15, 1995, between Central Corporation ("Central"), a
Louisiana corporation registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended ("Bank Holding
Company Act"), and First Commerce Corporation ("FCC"), a
Louisiana corporation registered as a bank holding company under
the Bank Holding Company Act.
W I T N E S S E T H
WHEREAS, the Boards of Directors of Central and FCC have
approved an Agreement and Plan of Merger ("Merger Agreement")
dated as of the date hereof providing for certain transactions
pursuant to which Central would be merged with and into FCC;
WHEREAS, as a condition to FCC's entry into the Merger
Agreement and to induce such entry, Central has agreed to grant
to FCC the option set forth herein to purchase authorized but
unissued shares of Central Common Stock;
NOW, THEREFORE, in consideration of the premises herein
contained, the parties agree as follows:
1. Definitions.
Capitalized terms defined in the Merger Agreement and used
herein shall have the same meanings as in the Merger Agreement.
2. Grant of Option.
Subject to the terms and conditions set forth herein,
Central hereby grants to FCC an option ("Option") to purchase up
to 809,279 shares of Central Common Stock, at a price of $30 per
share payable in cash as provided in Section 4 hereof; provided,
however, that in the event Central issues or agrees to issue any
shares of Central Common Stock (other than as permitted under the
Merger Agreement) at a price less than $30 per share (as adjusted
pursuant to Section 6 hereof), the exercise price shall be equal
to such lesser price; in no event, however, shall the number of
shares for which the Option is exercisable exceed 19.9% of
Central's issued and outstanding Common Stock.
3. Exercise of Option.
(a) Unless FCC shall have breached in any material
respect any covenant or agreement contained in the Merger
Agreement and such breach shall not have been cured after notice
from Central, FCC may exercise the Option, in whole or part, at
any time or from time to time within six months (which period of
time shall be extended pursuant to Section 10(a)) following the
occurrence of a Purchase Event (as defined below); provided that
to the extent the Option shall not have been exercised, it shall
terminate and be of no further force and effect (i) on the
Effective Date of the Merger under the Merger Agreement, or
(ii) upon termination of the Merger Agreement in accordance with
the provisions thereof if such termination occurs prior to the
first Purchase Event to occur, or (iii) upon the earlier of
(A) March 31, 1997, or (B) the date that is one year following
the termination of the Merger Agreement, if such termination
occurs after the first Purchase Event to occur. Notwithstanding
the foregoing, this Option Agreement shall terminate, and all
unexercised rights hereunder will simultaneously terminate,
whether or not a Purchase Event has occurred, upon any
termination of the Merger Agreement (i) under Section 9.1(a)
thereof, (ii) by Central under Section 9.1(b) thereof, or
(iii) by either Party under Section 9.1(h) thereof.
(b) As used herein, a "Purchase Event" shall mean any
of the following events or transactions occurring after the date
hereof:
(i) any person (other than FCC or any FCC Subsidiary) shall
have commenced a bona fide tender or exchange offer to
purchase shares of Central Common Stock such that upon
consummation of such offer such person would own or
control 20% or more of the outstanding shares of
Central Common Stock;
(ii) Central or any Central Subsidiary, without having
received FCC's prior written consent, shall have
entered into an agreement with any person (other than
FCC or any FCC Subsidiary), or any person (other than
FCC or any FCC Subsidiary), other than in connection
with a transaction to which FCC has given its prior
written consent, shall have filed an application or
notice with the Federal Reserve Board or any other
federal or state regulatory agency for clearance or
approval, to (x) merge or consolidate, or enter into
any similar transaction, with Central or any Central
Subsidiary other than with respect to any requirement
of divestiture in connection with the Merger Agreement
under the federal banking or antitrust laws,
(y) purchase, lease or otherwise acquire any
substantial portion of the assets of Central or any
Central Subsidiary other than in the ordinary course of
business of Central or such Central Subsidiary, or
(z) purchase or otherwise acquire (including by way of
merger, consolidation, share exchange or any similar
transaction) securities representing 20% or more of the
voting power of Central or any Central Subsidiary;
(iii)any person (other than FCC, any FCC Subsidiary or the
Central Subsidiaries in a fiduciary capacity) shall
have acquired beneficial ownership or the right to
acquire beneficial ownership of 10% or more of the
outstanding shares of Central Common Stock or the
common stock of any Central Subsidiary (the term
"beneficial ownership" for purposes of this Option
Agreement having the meaning assigned thereto in
Section 13(d) of the 1934 Act and the regulations
promulgated thereunder); provided, however, that in
calculating the number of shares owned by any person,
no shares which were beneficially owned prior to the
effective date of this Agreement shall be included;
(iv) any person (other than FCC or any FCC Subsidiary) shall
have made a bona fide proposal to Central by public
announcement or written communication that is or
becomes the subject of public disclosure to (x) acquire
Central or any Central Subsidiary by merger,
consolidation, share exchange, purchase of all or
substantially all of its assets or any other similar
transaction, or (y) make an offer described in
clause (i) or (ii) above;
(v) any person shall have solicited proxies in a proxy
solicitation subject to Regulation 14A under the
Exchange Act in opposition to approval of the Merger
Agreement by Central's shareholders; or
(vi) any transaction of the type referred to in clause (ii)
above shall have been consummated.
If more than one of the transactions giving rise to a Purchase
Event under this Section 3(b) is undertaken or effected, then all
such transactions shall give rise to successive Purchase Events,
but the successive nature of such Purchase Events shall not
increase the number of shares of Central Common Stock as to which
the Option may be exercised. As used in this Option Agreement,
"person" shall have the meanings specified in Sections 3(a)(9)
and 13(d)(3) of the 1934 Act.
(c) In the event FCC wishes to exercise the Option, it
shall send to Central a written notice (the date of which being
herein referred to as "Notice Date") specifying (i) the total
number of shares it will purchase pursuant to such exercise, and
(ii) a place and date not earlier than three business days nor
later than 60 business days from the Notice Date for the closing
of such purchase ("Closing Date"); provided that if prior
notification to or approval of the Federal Reserve Board or any
other Regulatory Authority is required in connection with such
purchase, FCC shall promptly file the required notice or
application for approval and shall expeditiously process the same
and the period of time that otherwise would run pursuant to this
sentence shall run instead from the date on which any required
notification period has expired or been terminated or such
approval has been obtained and any requisite waiting period shall
have passed.
4. Payment and Delivery of Certificates.
(a) At the closing referred to in Section 3 hereof, FCC
shall pay to Central the aggregate purchase price for the shares
of Central Common Stock purchased pursuant to the exercise of the
Option in immediately available funds by a wire transfer to a
bank account designated by Central or by federal funds check if
no account has been designated.
(b) At such closing, simultaneously with the delivery
of cash as provided in subsection (a), Central shall deliver to
FCC a certificate or certificates representing the number of
shares of Central Common Stock purchased by FCC and FCC shall
deliver to Central a letter agreeing that FCC will not offer to
sell or otherwise dispose of such shares in violation of
applicable law or the provisions of this Option Agreement.
(c) Certificates for Central Common Stock delivered at
a closing hereunder may be endorsed with a restrictive legend
which shall read substantially as follows:
"The transfer of the shares represented by this
certificate is subject to certain provisions of an
agreement between the registered holder hereof and
Central Corporation and to resale restrictions
arising under the Securities Act of 1933, as amended,
a copy of which agreement is on file at the principal
office of Central Corporation. A copy of such
agreement will be provided to the holder hereof
without charge upon receipt by Central Corporation of
a written request."
It is understood and agreed that the above legend shall be
removed by delivery of substitute certificate(s) without such
legend if FCC shall have delivered to Central a copy of a
letter from the staff of the SEC, or an opinion of counsel, in
form and substance reasonably satisfactory to Central, to the
effect that such legend is not required for purposes of the
1933 Act.
5. Representations.
Central hereby represents, warrants and covenants to FCC
as follows:
(a) Central shall at all times maintain sufficient
authorized but unissued shares of Central Common Stock so that
the Option may be exercised without authorization of
additional shares of Central Common Stock.
(b) The shares to be issued upon due exercise, in
whole or in part, of the Option, when paid for as provided
herein, will be duly authorized, validly issued, fully paid
and nonassessable and will be delivered free and clear of all
claims, liens, encumbrances and security interests and not
subject to any preemptive rights.
(c) Central will not, by amendment of its Articles
of Incorporation or through reorganization, consolidation,
merger, dissolution or sale of assets, or by any other
voluntary act, avoid or seek to avoid the observance or
performance of any of the covenants, stipulations or
conditions to be observed or performed hereunder by it; and
will promptly take all action as may from time to time be
required (including cooperating fully with FCC in preparing
applications or notices and providing information with respect
to regulatory approval) in order to permit FCC to exercise the
Option and Central duly and effectively to issue shares of
Central Common Stock pursuant hereto.
6. Adjustment Upon Changes in Capitalization.
If Central should split or combine the Central Common
Stock, or pay a stock dividend or other stock distribution in
Central Common Stock, or otherwise change the Central Common
Stock into any other securities, or make any other dividend or
distribution in respect of the Central Common Stock (other
than normal cash dividends), then the number of shares of
Central Common Stock subject to the Option shall be adjusted
so that, after such issuance, it equals 19.9% of the number of
shares of Central Common Stock then issued and outstanding
without giving effect to any shares subject or issued pursuant
to the Option. Nothing contained in this Section 6 shall be
deemed to authorize Central to breach any provisions of the
Merger Agreement. Whenever the number of shares of Central
Common Stock purchasable upon exercise hereof is adjusted as
provided in this Section 6, the option exercise price shall be
adjusted by multiplying the option exercise price by a
fraction, the numerator of which shall be equal to the number
of shares of Central Common Stock purchasable prior to the
adjustment and the denominator of which shall be equal to the
number of shares of Central Common Stock purchasable after the
adjustment.
7. Registration Rights.
Central shall, if requested by FCC, as expeditiously as
possible file a registration statement on a form of general
use under the 1933 Act if necessary in order to permit the
sale or other disposition of this Option and/or the shares of
Central Common Stock acquired upon exercise of the Option in
accordance with the intended method of sale or other
disposition requested by FCC. FCC shall provide all
information reasonably requested by Central for inclusion in
any registration statement to be filed hereunder. Central
will use its reasonable best efforts to cause such
registration statement first to become effective and then to
remain effective for such period not in excess of 270 days
from the day such registration statement first becomes
effective as may be reasonably necessary to effect such sales
or other dispositions. The first registration effected under
this Section 7 shall be at Central's expense except for
underwriting commissions and the fees and disbursements of
FCC's counsel attributable to the registration. A second
registration may be requested hereunder at FCC's expense. In
no event shall Central be required to effect more than two
registrations hereunder. If requested by Central, in
connection with any such registration, FCC will become a party
to any underwriting agreement relating to the sale of such
shares, but only to the extent of obligating itself in respect
of representations, warranties, indemnities and other
agreements customarily included by a selling shareholder in
such underwriting agreements.
8. Certain Puts.
(a) Upon the occurrence of a Purchase Event that
occurs prior to termination of the Option, (i) at the request
of FCC, delivered while the Option (in whole or part) is
exercisable, Central shall repurchase the Option from FCC at a
price equal to (x) the amount by which (a) the market/offer
price (as defined below) exceeds (b) the option exercise
price, multiplied by (y) the number of shares for which the
Option may then be exercised; and (ii) at the request from
time to time of the owner of shares purchased pursuant to the
Option, delivered while the Option (in whole or part) is
exercisable (or, if it has been fully exercised, would have
been exercisable had such exercise not been made), Central
shall repurchase such number of the shares issued pursuant to
the Option from the owner as the owner shall designate at a
price equal to (x) the market/offer price multiplied by the
number of such shares so designated. The term "market/offer
price" shall mean the highest of (i) the price per share of
Central Common Stock at which a tender offer or exchange offer
therefor has been made after the date hereof, (ii) the price
per share of Central Common Stock to be paid by any third
party pursuant to any merger, consolidation, share exchange or
other agreement with Central entered into after the date
hereof, (iii) the highest closing price for shares of Central
Common Stock within the 30-day period immediately preceding
the date FCC gives notice of the required repurchase of this
Option or the owner gives notice of the required repurchase of
shares, as the case may be, or (iv) in the event of a sale of
all or substantially all of Central's assets, the sum of the
price paid in such sale for such assets and the current market
value of the remaining assets of Central as determined by a
nationally recognized investment banking firm selected by the
parties (or by an arbitrator if they cannot agree) divided by
the number of shares of Central Common Stock outstanding at
the time of such sale. In determining the market/offer price,
the value of consideration other than cash shall be determined
by a nationally recognized investment banking firm selected by
the parties (or by an arbitrator if they cannot agree), and
such determination shall be conclusive and binding on all
parties.
(b) FCC or the owner, as the case may be, may
exercise its right to require Central to repurchase the Option
and any shares pursuant to this Section 8 by surrendering for
such purpose to Central, at its principal office, this Option
Agreement or certificates for the shares, as applicable,
accompanied by a written notice or notices stating that FCC or
the owner, as the case may be, elects to require Central to
repurchase the Option and/or the shares in accordance with the
provisions of this Section 8. As promptly as practicable, and
in any event within five business days after the surrender of
the Option and/or certificates representing shares and the
receipt of such notice or notices relating thereto, Central
shall deliver or cause to be delivered to FCC or the owner the
applicable repurchase price therefor or the portion thereof
that Central is not then prohibited from so delivering under
applicable law and regulation or as a consequence of
administrative policy.
(c) Central hereby undertakes to use its best
efforts to obtain all required regulatory and legal consents
and to file any required notices in order to accomplish any
repurchase contemplated by this Section 8. Nonetheless, to
the extent that Central is prohibited under applicable law or
regulation, or as a consequence of administrative policy, from
repurchasing the Option and/or the shares in full, Central
shall immediately so notify FCC and the owner and thereafter
deliver or cause to be delivered, from time to time, the
portion of the repurchase price that it is no longer
prohibited from delivering. If Central at any time after
delivery of a notice of repurchase pursuant to Section 8 is
prohibited under applicable law or regulation, or as a
consequence of administrative policy, from delivering the
repurchase price in full (and Central hereby undertakes to use
its best efforts to obtain all required regulatory and legal
approvals and to file any required notices as promptly as
practicable in order to accomplish such repurchase), FCC
and/or the owner may revoke its notice of repurchase either in
whole or to the extent of the prohibition.
9. Severability.
If any term, provision, covenant or restriction contained
in this Option Agreement is held by a court or a federal or
state regulatory agency of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms,
provisions and covenants and restrictions contained in this
Option 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 will not permit the holder to acquire the full number
of shares of Central Common Stock provided in Section 2 hereof
(as adjusted pursuant to Section 6 hereof), it is the express
intention of Central to allow the holder to acquire or to
require Central to repurchase such lesser number of shares as
may be permissible, without any amendment or modification
hereof.
10. Miscellaneous.
(a) Extension. The period for exercise by FCC and
its assignees of any rights under this Option Agreement shall
be extended (i) to the extent necessary to obtain all
regulatory approvals for the exercise of such rights, and for
the expiration of all statutory waiting periods; and (ii) to
the extent necessary to avoid liability under Section 16(b) of
the 1934 Act by reason of such exercise.
(b) Consents. Each of FCC and Central will use its
best efforts to make all filings with, and to obtain consents
of, all third parties and Regulatory Authorities necessary to
the consummation of the transactions contemplated by this
Option Agreement, including without limitation applying to the
Federal Reserve Board under the Bank Holding Company Act for
approval to acquire the shares issuable hereunder.
(c) Expenses. Except as otherwise expressly
provided herein or in the Merger Agreement 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.
(d) Entire Agreement. Except as otherwise expressly
provided herein or in the Merger Agreement, this Option
Agreement contains the entire agreement between the parties
with respect to the transactions contemplated hereunder and
supersedes all prior agreements or understandings with respect
thereto, written or oral. The terms and conditions of this
Option Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective successors and
assigns. Nothing in this Option Agreement, expressed or
implied, is intended to confer upon any party, other than the
parties hereof, and their respective successors and assigns,
any rights, remedies, obligations or liabilities under or by
reason of this Option Agreement, except as expressly provided
herein.
(e) Assignment. Neither of the parties hereto may
assign any of its rights or obligations under this Option
Agreement or the Option created hereunder to any other person,
without the express written consent of the other party, except
that in the event a Purchase Event shall have occurred and be
continuing FCC may assign in whole or in part its rights and
obligations hereunder; provided, however, that until the date
30 days following the date on which the Federal Reserve Board
approves an application by FCC under the Bank Holding Company
Act to acquire the shares of Central Common Stock subject to
the Option, FCC may not assign its rights under the Option
except in (i) a widely dispersed public distribution, (ii) a
private placement in which no one party acquires the rights to
purchase in excess of 2% of the Central Common Stock, (iii) an
assignment to a single party (e.g., a broker or investment
banker) for the purpose of conducting a widely dispersed
public distribution on FCC's behalf, or (iv) any other manner
approved by the Federal Reserve Board.
(f) Notices. All notices or other communications
which are required or permitted hereunder shall be in writing
and sufficient if delivered personally or sent by overnight
express or by registered or certified mail, postage prepaid,
addressed as follows:
If to FCC:
First Commerce Corporation
210 Baronne Street
New Orleans, LA 70112
Attention: Ian Arnof
With a copy to:
Correro, Fishman & Casteix, L.L.P.
201 St. Charles Avenue, 47th Floor
New Orleans, LA 70170-4700
Attention: Louis Y. Fishman
If to Central:
Central Corporation
300 DeSiard Street
Monroe, LA 71201-4928
Attention: James A. Altick
With a copy to:
Mayer, Brown & Platt
2000 Pennsylvania Avenue, N.W.
Washington, D.C. 20006-1882
Attention: Brian W. Smith
A party may change its address for notice purposes by written
notice to the other party hereto.
(g) Counterparts. This Option Agreement may be
executed in any number of counterparts, and each such
counterpart shall be deemed to be an original instrument, but
all such counterparts together shall constitute but one
agreement.
(h) Specific Performance. The parties agree that
damages would be an inadequate remedy for a breach of the
provisions of this Option Agreement by either party hereto and
that this Option Agreement may be enforced by either party
hereto through injunctive or other equitable relief.
(i) Governing Law. This Option Agreement shall be
governed by and construed in accordance with the laws of the
Louisiana applicable to agreements made and entirely to be
performed within such state, and such federal laws as may be
applicable.
IN WITNESS WHEREOF, each of the parties hereto has
executed this Option Agreement as of the day and year first
written above.
CENTRAL CORPORATION
By__________________________________
Name:
Title:
FIRST COMMERCE CORPORATION
By__________________________________
Name:
Title:
<PAGE>
Exhibit III
Employment Agreement
This Agreement is made as of __________, 1995 by and between
First Commerce Corporation (FCOM), Central Bank (Central), and
James A. Altick (JAA) pursuant to the merger agreement between
FCOM and Central Corporation ("the Merger"). In consideration of
the covenants and agreements contained herein, FCOM, Central and
JAA agree to the following:
1.Employment Period. FCOM and Central will employ JAA for five
years following the date this Agreement is signed (also referred
to herein as the term or duration of the Agreement), subject to
the terms and agreements contained herein. JAA will remain in
the employ of Central and FCOM and provide services in accordance
with this Agreement.
2.Performance of Duties. JAA's employment will be subject to the
following terms and conditions:
a.JAA will devote his full time, energies, and talents to serving
as President and Chief Executive Officer (CEO) of Central, and
Executive Vice President of FCOM. JAA will also serve on the
Board of Directors of Central during the term of this agreement.
b.JAA will not, without his consent, be assigned tasks that are
inconsistent with those assigned to his "peer group" consisting
of those senior executive officers who report directly to FCOM's
CEO or, if one is designated in the future, FCOM's Chief
Operating Officer (COO).
c.JAA will report to the Board of Directors of Central and FCOM's
CEO or COO.
d.JAA may devote a reasonable amount of time to professional,
charitable, educational, and religious organizations; speaking
engagements; membership on boards of directors of other
organizations (subject to prior approval of FCOM); and in other
similar activities that do not inhibit his job performance or
conflict with the business of FCOM or its affiliates.
e.JAA's job will be based in Monroe, Louisiana.
3.Compensation. Subject to the terms of this Agreement, JAA will
receive the following compensation:
a.JAA will receive an annual base salary which is equal to the
base salary he receives as of the effective date of the Merger,
plus an amount equal to the amount of any loss of fringe benefits
(including director's fees) JAA enjoyed prior to the Merger,
payable in accordance with FCOM's customary payroll practices.
The Board of Directors of Central, with the approval of FCOM's
CEO or COO, will review this base salary annually to determine if
an increase is appropriate.
b.JAA will receive a lump sum cash payment of $50,000 within 45
days of the consummation of the merger between FCOM and Central.
c.JAA is entitled to receive bonuses in such amounts, if any, as
determined from time to time under FCOM's bonus plan.
d.JAA will receive an annual entertainment allowance covering
certain social club dues consistent with his peer group.
e.JAA is entitled to participate in all pension, benefit, and
vacation plans made available to his peer group or FCOM's
employees generally.
4.Rights upon Termination. JAA's right to payments and benefits
for periods after the date on which his employment with FCOM
terminates is determined as follows:
a.Base Salary and Employee Benefits.
(1)Termination for Cause. If JAA's employment is terminated for
cause during the period of this Agreement, JAA will have no right
to payments or benefits following his termination date. "Cause"
is defined as follows: (a) JAA's engaging in gross misconduct,
which is materially and demonstrably injurious to Central or
FCOM; or (b) an official determination of illegal or immoral
activity by JAA. In order to terminate JAA for cause, FCOM or
Central must provide him with notice of such termination and
allow him to correct any breach within 10 days from the date
notice is given.
(2)Other Reasons for Separation. If JAA's employment terminates,
including for reasons of voluntary termination, during the period
of this Agreement other than for cause as described above, or for
death or disability, he will continue to receive his annual base
salary and certain employee benefits (medical, dental, life, and
other insurance plans for which his peer group is eligible) for
the duration of the Agreement provided that he does not engage in
the business of banking which is directly competitive with FCOM
or its affiliates in the State of Louisiana, for a two-year
period following the date of his termination, or the remaining
period of the Agreement, whichever is shorter. For these
purposes, an entity which is engaged in the business of banking
is an entity which engages in one or more of the following:
taking deposits, making loans, paying checks, and providing
trust, brokerage and investment services.
(3)Involuntary Termination. If JAA terminates his employment
with Central or FCOM due to (a) a diminution of his authority,
duties, responsibilities or status; (b) a reduction in his annual
rate of salary; (c) the elimination or material reduction of his
rights to indemnification; or (d) a material breach of this
employment agreement by Central or FCOM, JAA will receive the
benefits provided under subsection (2) hereof if he does not
compete with FCOM or its affiliates as described in subsection
(2).
b.Bonus Payments.
(1)No bonus payment shall be due if JAA terminates voluntarily.
(2)No bonus payment shall be due if JAA's employment is
terminated for cause as defined in 4a(1).
(3)If JAA's employment terminates involuntarily for reasons other
than cause as defined in 4a(1) during the period of this
Agreement, he will be entitled to a pro rata bonus payment for
the year in which his employment terminates, which is the product
of the full bonus he would have received if employed for the
entire fiscal year multiplied by a fraction of actual days
employed divided by 365 days. Payment will be made in lump sum
when bonus payments are made to JAA's peer group.
5.Confidentiality. JAA will not disclose non-public information
concerning FCOM or its affiliates which was acquired in the
course of his employment without the prior written consent of
FCOM's CEO or COO, except where required by the lawful order of
the court, applicable regulatory authorities, or in the
performance of his duties under this Agreement.
6.Withholding. All payments under this Agreement are subject to
such deductions as required by law or regulation. All tax
liability resulting from these payments and benefits are the
responsibility of JAA.
7.Indemnification. JAA shall be indemnified for and defended
against any claims incurred by him or by FCOM or its affiliates
to the same extent as his peer group, provided that JAA's conduct
meets the applicable standard of conduct provided in Louisiana
law.
8.Successors. This Agreement shall be binding upon any successor
of FCOM or Central (by purchase of assets, merger, corporate
reorganization, or otherwise).
9.Applicable Law. The provisions of this Agreement shall be
construed in accordance with the laws of the State of Louisiana.
10.Arbitration. In the event there is a dispute arising under
this Agreement, the parties will submit their dispute to
arbitration in New Orleans for final resolution in accordance
with the rules and procedures of the American Arbitration
Association. If JAA prevails, FCOM and Central shall pay all
costs incurred by him as a result of the arbitration.
11.Entire Agreement. This document constitutes the entire
agreement between the parties concerning the subject matter
hereof.
In witness whereof, JAA has hereunto set his hand, and FCOM and
Central have each on its behalf caused these presents to be
executed on the day and year first written above.
By: ___________________________________
Ian Arnof
Chief Executive Officer
First Commerce Corporation
By: ___________________________________
James A. Altick
By: ___________________________________
Central Bank
<PAGE>
Exhibit IV-A
Employment Agreement
This Agreement is made as of __________, 1995 by and between
First Commerce Corporation (FCOM), Central Bank (Central) and
Cary S. Davis (Executive) pursuant to the merger agreement
between FCOM and Central Corporation ("the Merger"). In
consideration of the covenants and agreements contained herein,
FCOM, Central, and Executive agree to the following:
1.Employment Period. FCOM or Central will employ Executive for
three years following the date this Agreement is signed (also
referred to herein as the term or duration of the Agreement),
subject to the terms and agreements contained herein. Executive
will remain in the employ of FCOM or Central and provide services
in accordance with this Agreement.
2.Performance of Duties. Executive's employment will be subject
to the following terms and conditions:
a.Executive will devote his full time, energies, and talents to
serving FCOM or Central.
b.Executive will perform his duties faithfully and efficiently
subject to the directions of the manager to whom he reports, his
"supervisor."
c.Executive can be offered a position outside of Monroe,
Louisiana and/or different job responsibilities. If he declines
and terminates employment, Executive has the right to base salary
and benefits as described in 4a(2).
d.Executive may devote a reasonable amount of time to
professional, charitable, educational, and religious
organizations; speaking engagements; membership on boards of
directors of other organizations (subject to prior approval of
FCOM); and in other similar activities that do not inhibit his
job performance or conflict with the business of FCOM or its
affiliates.
3.Compensation. Subject to the terms of this Agreement,
Executive will receive the following compensation:
a.Executive will receive an annual base salary which is equal to
the base salary he receives as of the effective date of the
Merger, plus an amount equal to the amount of any loss of fringe
benefits Executive enjoyed prior to the Merger payable in
accordance with FCOM's customary payroll practices. Executive's
supervisor will review this base salary annually to determine if
an increase is appropriate.
b.Executive will receive a lump sum cash payment of $35,000
within 45 days of the consummation of the merger between FCOM and
Central.
c.Executive is entitled to receive bonuses in such amounts, if
any, as determined from time to time under FCOM's bonus plan.
d.Executive is eligible to receive an annual entertainment
allowance covering certain social club dues consistent with FCOM
policy.
e.Executive is entitled to participate in all pension, benefit,
and vacation plans made available to FCOM's employees.
4.Rights upon Termination. Executive's right to payments and
benefits for periods after the date on which his employment with
FCOM terminates is determined as follows:
a.Base Salary and Employee Benefits.
(1)Termination for Cause. If Executive's employment is
terminated for cause during the period of this Agreement,
Executive will have no right to payments or benefits following
his termination date. "Cause" is defined as follows: (a)
Executive's engaging in gross misconduct which is materially and
demonstrably injurious to Central or FCOM; or (b) an official
determination of illegal or immoral activity by the Executive.
In order to terminate Executive for cause, Central or FCOM must
provide him with notice of such termination and allow him to
correct any breach within 10 days from the date notice is given.
(2)Other Reasons for Separation. If Executive's employment
terminates, including for reasons of voluntary termination,
during the period of this Agreement other than for cause as
described above, or for death or disability, he will continue to
receive his annual base salary and certain employee benefits
(medical, dental, life, and other insurance plans for which other
FCOM employees are eligible) for the duration of the Agreement
provided that he does not engage in the business of banking which
is directly competitive with FCOM or its affiliates in the State
of Louisiana, for a two-year period following the date of his
termination, or the remaining period of the Agreement, whichever
is shorter. For these purposes, an entity which is engaged in
the business of banking is an entity which engages in one or more
of the following: taking deposits, making loans, paying checks,
and providing trust, brokerage and investment services.
(3)Involuntary Termination. If Executive terminates his
employment with FCOM or Central due to (a) a reduction in his
annual rate of salary; (b) the elimination or material reduction
of his rights to indemnification; or (c) a material breach of
this employment agreement by Central or FCOM, Executive will
receive the benefits provided under subsection (2) hereof if he
does not compete with FCOM or its affiliates as described in
subsection (2).
b.Bonus Payments.
(1)No bonus payment shall be due if Executive terminates
voluntarily.
(2)No bonus payment shall be due if Executive's employment is
terminated for cause as defined in 4a(1).
(3)If Executive's employment terminates involuntarily for reasons
other than cause as defined in 4a(1) during the period of this
Agreement, he will be entitled to a pro rata bonus payment for
the year in which his employment terminates, which is the product
of the full bonus he would have received if employed for the
entire fiscal year multiplied by a fraction of actual days
employed divided by 365 days. Payment will be made in lump sum
when bonus payments are made for other FCOM employees.
5.Confidentiality. Executive will not disclose non-public
information concerning FCOM or its affiliates which was acquired
in the course of his employment without the prior written consent
of FCOM's Chief Executive Officer (CEO) or, if one is appointed,
the Chief Operating Officer (COO), except where required by the
lawful order of the court, applicable regulatory authorities, or
in the performance of his duties under this Agreement.
6.Withholding. All payments under this Agreement are subject to
such deductions as required by law or regulation. All tax
liability resulting from these payments and benefits are the
responsibility of Executive.
7.Indemnification. Executive shall be indemnified for and
defended against any claims incurred by him or by FCOM or its
affiliates to the same extent as other FCOM employees in similar
positions, provided that Executive's conduct meets the applicable
standard of conduct provided in Louisiana law.
8.Successors. This Agreement shall be binding upon any successor
of FCOM or Central (by purchase of assets, merger, corporate
reorganization, or otherwise).
9.Applicable Law. The provisions of this Agreement shall be
construed in accordance with the laws of the State of Louisiana.
10.Arbitration. In the event there is a dispute arising under
this Agreement, the parties will submit their dispute to
arbitration in New Orleans for final resolution in accordance
with the rules and procedures of the American Arbitration
Association. If Executive prevails, FCOM or Central shall pay
all costs incurred by him as a result of the arbitration.
11.Entire Agreement. This document constitutes the entire
agreement between the parties concerning the subject matter
hereof.
In witness whereof, Executive has hereunto set his hand, and FCOM
and Central have each on its behalf caused these presents to be
executed on the day and year first written above.
By: ___________________________________
Ian Arnof
Chief Executive Officer
First Commerce Corporation
By: ___________________________________
Central Bank
By: ___________________________________
Cary S. Davis
<PAGE>
Exhibit IV-B
Employment Agreement
This Agreement is made as of __________, 1995 by and between
First Commerce Corporation (FCOM), Central Bank (Central) and
Willis T. McGhinnis (Executive) pursuant to the merger agreement
between FCOM and Central Corporation ("the Merger"). In
consideration of the covenants and agreements contained herein,
FCOM, Central, and Executive agree to the following:
1.Employment Period. FCOM or Central will employ Executive for
three years following the date this Agreement is signed (also
referred to herein as the term or duration of the Agreement),
subject to the terms and agreements contained herein. Executive
will remain in the employ of FCOM or Central and provide services
in accordance with this Agreement.
2.Performance of Duties. Executive's employment will be subject
to the following terms and conditions:
a.Executive will devote his full time, energies, and talents to
serving FCOM or Central.
b.Executive will perform his duties faithfully and efficiently
subject to the directions of the manager to whom he reports, his
"supervisor."
c.Executive can be offered a position outside of Monroe,
Louisiana and/or different job responsibilities. If he declines
and terminates employment, Executive has the right to base salary
and benefits as described in 4a(2).
d.Executive may devote a reasonable amount of time to
professional, charitable, educational, and religious
organizations; speaking engagements; membership on boards of
directors of other organizations (subject to prior approval of
FCOM); and in other similar activities that do not inhibit his
job performance or conflict with the business of FCOM or its
affiliates.
3.Compensation. Subject to the terms of this Agreement,
Executive will receive the following compensation:
a.Executive will receive an annual base salary which is equal to
the base salary he receives as of the effective date of the
Merger, plus an amount equal to the amount of any loss of fringe
benefits Executive enjoyed prior to the Merger payable in
accordance with FCOM's customary payroll practices. Executive's
supervisor will review this base salary annually to determine if
an increase is appropriate.
b.Executive will receive a lump sum cash payment of $35,000
within 45 days of the consummation of the merger between FCOM and
Central.
c.Executive is entitled to receive bonuses in such amounts, if
any, as determined from time to time under FCOM's bonus plan.
d.Executive is eligible to receive an annual entertainment
allowance covering certain social club dues consistent with FCOM
policy.
e.Executive is entitled to participate in all pension, benefit,
and vacation plans made available to FCOM's employees.
4.Rights upon Termination. Executive's right to payments and
benefits for periods after the date on which his employment with
FCOM terminates is determined as follows:
a.Base Salary and Employee Benefits.
(1)Termination for Cause. If Executive's employment is
terminated for cause during the period of this Agreement,
Executive will have no right to payments or benefits following
his termination date. "Cause" is defined as follows: (a)
Executive's engaging in gross misconduct which is materially and
demonstrably injurious to Central or FCOM; or (b) an official
determination of illegal or immoral activity by the Executive.
In order to terminate Executive for cause, Central or FCOM must
provide him with notice of such termination and allow him to
correct any breach within 10 days from the date notice is given.
(2)Other Reasons for Separation. If Executive's employment
terminates, including for reasons of voluntary termination,
during the period of this Agreement other than for cause as
described above, or for death or disability, he will continue to
receive his annual base salary and certain employee benefits
(medical, dental, life, and other insurance plans for which other
FCOM employees are eligible) for the duration of the Agreement
provided that he does not engage in the business of banking which
is directly competitive with FCOM or its affiliates in the State
of Louisiana, for a two-year period following the date of his
termination, or the remaining period of the Agreement, whichever
is shorter. For these purposes, an entity which is engaged in
the business of banking is an entity which engages in one or more
of the following: taking deposits, making loans, paying checks,
and providing trust, brokerage and investment services.
(3)Involuntary Termination. If Executive terminates his
employment with FCOM or Central due to (a) a reduction in his
annual rate of salary; (b) the elimination or material reduction
of his rights to indemnification; or (c) a material breach of
this employment agreement by Central or FCOM, Executive will
receive the benefits provided under subsection (2) hereof if he
does not compete with FCOM or its affiliates as described in
subsection (2).
b.Bonus Payments.
(1)No bonus payment shall be due if Executive terminates
voluntarily.
(2)No bonus payment shall be due if Executive's employment is
terminated for cause as defined in 4a(1).
(3)If Executive's employment terminates involuntarily for reasons
other than cause as defined in 4a(1) during the period of this
Agreement, he will be entitled to a pro rata bonus payment for
the year in which his employment terminates, which is the product
of the full bonus he would have received if employed for the
entire fiscal year multiplied by a fraction of actual days
employed divided by 365 days. Payment will be made in lump sum
when bonus payments are made for other FCOM employees.
5.Confidentiality. Executive will not disclose non-public
information concerning FCOM or its affiliates which was acquired
in the course of his employment without the prior written consent
of FCOM's Chief Executive Officer (CEO) or, if one is appointed,
the Chief Operating Officer (COO), except where required by the
lawful order of the court, applicable regulatory authorities, or
in the performance of his duties under this Agreement.
6.Withholding. All payments under this Agreement are subject to
such deductions as required by law or regulation. All tax
liability resulting from these payments and benefits are the
responsibility of Executive.
7.Indemnification. Executive shall be indemnified for and
defended against any claims incurred by him or by FCOM or its
affiliates to the same extent as other FCOM employees in similar
positions, provided that Executive's conduct meets the applicable
standard of conduct provided in Louisiana law.
8.Successors. This Agreement shall be binding upon any successor
of FCOM or Central (by purchase of assets, merger, corporate
reorganization, or otherwise).
9.Applicable Law. The provisions of this Agreement shall be
construed in accordance with the laws of the State of Louisiana.
10.Arbitration. In the event there is a dispute arising under
this Agreement, the parties will submit their dispute to
arbitration in New Orleans for final resolution in accordance
with the rules and procedures of the American Arbitration
Association. If Executive prevails, FCOM or Central shall pay
all costs incurred by him as a result of the arbitration.
11.Entire Agreement. This document constitutes the entire
agreement between the parties concerning the subject matter
hereof.
In witness whereof, Executive has hereunto set his hand, and FCOM
and Central have each on its behalf caused these presents to be
executed on the day and year first written above.
By: ___________________________________
Ian Arnof
Chief Executive Officer
First Commerce Corporation
By: ___________________________________
Central Bank
By: ___________________________________
Willis T. McGhinnis
<PAGE>
Exhibit IV-C
Employment Agreement
This Agreement is made as of __________, 1995 by and between
First Commerce Corporation (FCOM), Central Bank (Central) and
Thomas J. Nicholson (Executive) pursuant to the merger agreement
between FCOM and Central Corporation ("the Merger"). In
consideration of the covenants and agreements contained herein,
FCOM, Central, and Executive agree to the following:
1.Employment Period. FCOM or Central will employ Executive for
three years following the date this Agreement is signed (also
referred to herein as the term or duration of the Agreement),
subject to the terms and agreements contained herein. Executive
will remain in the employ of FCOM or Central and provide services
in accordance with this Agreement.
2.Performance of Duties. Executive's employment will be subject
to the following terms and conditions:
a.Executive will devote his full time, energies, and talents to
serving FCOM or Central.
b.Executive will perform his duties faithfully and efficiently
subject to the directions of the manager to whom he reports, his
"supervisor."
c.Executive can be offered a position outside of Monroe,
Louisiana and/or different job responsibilities. If he declines
and terminates employment, Executive has the right to base salary
and benefits as described in 4a(2).
d.Executive may devote a reasonable amount of time to
professional, charitable, educational, and religious
organizations; speaking engagements; membership on boards of
directors of other organizations (subject to prior approval of
FCOM); and in other similar activities that do not inhibit his
job performance or conflict with the business of FCOM or its
affiliates.
3.Compensation. Subject to the terms of this Agreement,
Executive will receive the following compensation:
a.Executive will receive an annual base salary which is equal to
the base salary he receives as of the effective date of the
Merger, plus an amount equal to the amount of any loss of fringe
benefits Executive enjoyed prior to the Merger payable in
accordance with FCOM's customary payroll practices. Executive's
supervisor will review this base salary annually to determine if
an increase is appropriate.
b.Executive will receive a lump sum cash payment of $35,000
within 45 days of the consummation of the merger between FCOM and
Central.
c.Executive is entitled to receive bonuses in such amounts, if
any, as determined from time to time under FCOM's bonus plan.
d.Executive is eligible to receive an annual entertainment
allowance covering certain social club dues consistent with FCOM
policy.
e.Executive is entitled to participate in all pension, benefit,
and vacation plans made available to FCOM's employees.
4.Rights upon Termination. Executive's right to payments and
benefits for periods after the date on which his employment with
FCOM terminates is determined as follows:
a.Base Salary and Employee Benefits.
(1)Termination for Cause. If Executive's employment is
terminated for cause during the period of this Agreement,
Executive will have no right to payments or benefits following
his termination date. "Cause" is defined as follows: (a)
Executive's engaging in gross misconduct which is materially and
demonstrably injurious to Central or FCOM; or (b) an official
determination of illegal or immoral activity by the Executive.
In order to terminate Executive for cause, Central or FCOM must
provide him with notice of such termination and allow him to
correct any breach within 10 days from the date notice is given.
(2)Other Reasons for Separation. If Executive's employment
terminates, including for reasons of voluntary termination,
during the period of this Agreement other than for cause as
described above, or for death or disability, he will continue to
receive his annual base salary and certain employee benefits
(medical, dental, life, and other insurance plans for which other
FCOM employees are eligible) for the duration of the Agreement
provided that he does not engage in the business of banking which
is directly competitive with FCOM or its affiliates in the State
of Louisiana, for a two-year period following the date of his
termination, or the remaining period of the Agreement, whichever
is shorter. For these purposes, an entity which is engaged in
the business of banking is an entity which engages in one or more
of the following: taking deposits, making loans, paying checks,
and providing trust, brokerage and investment services.
(3)Involuntary Termination. If Executive terminates his
employment with FCOM or Central due to (a) a reduction in his
annual rate of salary; (b) the elimination or material reduction
of his rights to indemnification; or (c) a material breach of
this employment agreement by Central or FCOM, Executive will
receive the benefits provided under subsection (2) hereof if he
does not compete with FCOM or its affiliates as described in
subsection (2).
b.Bonus Payments.
(1)No bonus payment shall be due if Executive terminates
voluntarily.
(2)No bonus payment shall be due if Executive's employment is
terminated for cause as defined in 4a(1).
(3)If Executive's employment terminates involuntarily for reasons
other than cause as defined in 4a(1) during the period of this
Agreement, he will be entitled to a pro rata bonus payment for
the year in which his employment terminates, which is the product
of the full bonus he would have received if employed for the
entire fiscal year multiplied by a fraction of actual days
employed divided by 365 days. Payment will be made in lump sum
when bonus payments are made for other FCOM employees.
5.Confidentiality. Executive will not disclose non-public
information concerning FCOM or its affiliates which was acquired
in the course of his employment without the prior written consent
of FCOM's Chief Executive Officer (CEO) or, if one is appointed,
the Chief Operating Officer (COO), except where required by the
lawful order of the court, applicable regulatory authorities, or
in the performance of his duties under this Agreement.
6.Withholding. All payments under this Agreement are subject to
such deductions as required by law or regulation. All tax
liability resulting from these payments and benefits are the
responsibility of Executive.
7.Indemnification. Executive shall be indemnified for and
defended against any claims incurred by him or by FCOM or its
affiliates to the same extent as other FCOM employees in similar
positions, provided that Executive's conduct meets the applicable
standard of conduct provided in Louisiana law.
8.Successors. This Agreement shall be binding upon any successor
of FCOM or Central (by purchase of assets, merger, corporate
reorganization, or otherwise).
9.Applicable Law. The provisions of this Agreement shall be
construed in accordance with the laws of the State of Louisiana.
10.Arbitration. In the event there is a dispute arising under
this Agreement, the parties will submit their dispute to
arbitration in New Orleans for final resolution in accordance
with the rules and procedures of the American Arbitration
Association. If Executive prevails, FCOM or Central shall pay
all costs incurred by him as a result of the arbitration.
11.Entire Agreement. This document constitutes the entire
agreement between the parties concerning the subject matter
hereof.
In witness whereof, Executive has hereunto set his hand, and FCOM
and Central have each on its behalf caused these presents to be
executed on the day and year first written above.
By: ___________________________________
Ian Arnof
Chief Executive Officer
First Commerce Corporation
By: ___________________________________
Central Bank
By: ___________________________________
Thomas J. Nicholson
<PAGE>
Exhibit IV-D
Employment Agreement
This Agreement is made as of __________, 1995 by and between
First Commerce Corporation (FCOM), Central Bank (Central) and
Edmond L. Pennington (Executive) pursuant to the merger agreement
between FCOM and Central Corporation ("the Merger"). In
consideration of the covenants and agreements contained herein,
FCOM, Central, and Executive agree to the following:
1.Employment Period. FCOM or Central will employ Executive for
three years following the date this Agreement is signed (also
referred to herein as the term or duration of the Agreement),
subject to the terms and agreements contained herein. Executive
will remain in the employ of FCOM or Central and provide services
in accordance with this Agreement.
2.Performance of Duties. Executive's employment will be subject
to the following terms and conditions:
a.Executive will devote his full time, energies, and talents to
serving FCOM or Central.
b.Executive will perform his duties faithfully and efficiently
subject to the directions of the manager to whom he reports, his
"supervisor."
c.Executive can be offered a position outside of Monroe,
Louisiana and/or different job responsibilities. If he declines
and terminates employment, Executive has the right to base salary
and benefits as described in 4a(2).
d.Executive may devote a reasonable amount of time to
professional, charitable, educational, and religious
organizations; speaking engagements; membership on boards of
directors of other organizations (subject to prior approval of
FCOM); and in other similar activities that do not inhibit his
job performance or conflict with the business of FCOM or its
affiliates.
3.Compensation. Subject to the terms of this Agreement,
Executive will receive the following compensation:
a.Executive will receive an annual base salary which is equal to
the base salary he receives as of the effective date of the
Merger, plus an amount equal to the amount of any loss of fringe
benefits Executive enjoyed prior to the Merger payable in
accordance with FCOM's customary payroll practices. Executive's
supervisor will review this base salary annually to determine if
an increase is appropriate.
b.Executive will receive a lump sum cash payment of $35,000
within 45 days of the consummation of the merger between FCOM and
Central.
c.Executive is entitled to receive bonuses in such amounts, if
any, as determined from time to time under FCOM's bonus plan.
d.Executive is eligible to receive an annual entertainment
allowance covering certain social club dues consistent with FCOM
policy.
e.Executive is entitled to participate in all pension, benefit,
and vacation plans made available to FCOM's employees.
4.Rights upon Termination. Executive's right to payments and
benefits for periods after the date on which his employment with
FCOM terminates is determined as follows:
a.Base Salary and Employee Benefits.
(1)Termination for Cause. If Executive's employment is
terminated for cause during the period of this Agreement,
Executive will have no right to payments or benefits following
his termination date. "Cause" is defined as follows: (a)
Executive's engaging in gross misconduct which is materially and
demonstrably injurious to Central or FCOM; or (b) an official
determination of illegal or immoral activity by the Executive.
In order to terminate Executive for cause, Central or FCOM must
provide him with notice of such termination and allow him to
correct any breach within 10 days from the date notice is given.
(2)Other Reasons for Separation. If Executive's employment
terminates, including for reasons of voluntary termination,
during the period of this Agreement other than for cause as
described above, or for death or disability, he will continue to
receive his annual base salary and certain employee benefits
(medical, dental, life, and other insurance plans for which other
FCOM employees are eligible) for the duration of the Agreement
provided that he does not engage in the business of banking which
is directly competitive with FCOM or its affiliates in the State
of Louisiana, for a two-year period following the date of his
termination, or the remaining period of the Agreement, whichever
is shorter. For these purposes, an entity which is engaged in
the business of banking is an entity which engages in one or more
of the following: taking deposits, making loans, paying checks,
and providing trust, brokerage and investment services.
(3)Involuntary Termination. If Executive terminates his
employment with FCOM or Central due to (a) a reduction in his
annual rate of salary; (b) the elimination or material reduction
of his rights to indemnification; or (c) a material breach of
this employment agreement by Central or FCOM, Executive will
receive the benefits provided under subsection (2) hereof if he
does not compete with FCOM or its affiliates as described in
subsection (2).
b.Bonus Payments.
(1)No bonus payment shall be due if Executive terminates
voluntarily.
(2)No bonus payment shall be due if Executive's employment is
terminated for cause as defined in 4a(1).
(3)If Executive's employment terminates involuntarily for reasons
other than cause as defined in 4a(1) during the period of this
Agreement, he will be entitled to a pro rata bonus payment for
the year in which his employment terminates, which is the product
of the full bonus he would have received if employed for the
entire fiscal year multiplied by a fraction of actual days
employed divided by 365 days. Payment will be made in lump sum
when bonus payments are made for other FCOM employees.
5.Confidentiality. Executive will not disclose non-public
information concerning FCOM or its affiliates which was acquired
in the course of his employment without the prior written consent
of FCOM's Chief Executive Officer (CEO) or, if one is appointed,
the Chief Operating Officer (COO), except where required by the
lawful order of the court, applicable regulatory authorities, or
in the performance of his duties under this Agreement.
6.Withholding. All payments under this Agreement are subject to
such deductions as required by law or regulation. All tax
liability resulting from these payments and benefits are the
responsibility of Executive.
7.Indemnification. Executive shall be indemnified for and
defended against any claims incurred by him or by FCOM or its
affiliates to the same extent as other FCOM employees in similar
positions, provided that Executive's conduct meets the applicable
standard of conduct provided in Louisiana law.
8.Successors. This Agreement shall be binding upon any successor
of FCOM or Central (by purchase of assets, merger, corporate
reorganization, or otherwise).
9.Applicable Law. The provisions of this Agreement shall be
construed in accordance with the laws of the State of Louisiana.
10.Arbitration. In the event there is a dispute arising under
this Agreement, the parties will submit their dispute to
arbitration in New Orleans for final resolution in accordance
with the rules and procedures of the American Arbitration
Association. If Executive prevails, FCOM or Central shall pay
all costs incurred by him as a result of the arbitration.
11.Entire Agreement. This document constitutes the entire
agreement between the parties concerning the subject matter
hereof.
In witness whereof, Executive has hereunto set his hand, and FCOM
and Central have each on its behalf caused these presents to be
executed on the day and year first written above.
By: ___________________________________
Ian Arnof
Chief Executive Officer
First Commerce Corporation
By: ___________________________________
Central Bank
By: ___________________________________
Edmond L. Pennington
<PAGE>
Exhibit V
[SEVERANCE PLAN OF CENTRAL]
<PAGE>
Exhibit VI
AFFILIATE AGREEMENT
First Commerce Corporation
210 Baronne St.
New Orleans, LA 70112
Ladies and Gentlemen:
I am a shareholder of Central Corporation ("Central") and
will become a shareholder of First Commerce Corporation ("FCC")
pursuant to an Agreement and Plan of Merger dated as of May 15,
1995 (the "Agreement") between FCC and Central pursuant to which
Central will merge into FCC (the "Merger").
1. Affiliate Status; Accounting and Tax Treatment. I
understand that I may be an "affiliate" of Central within the
meaning of Rule 145(c) of the Securities and Exchange Commission
("SEC"), that FCC intends to account for the Merger as a pooling
of interests; and that FCC intends to treat the Merger as a tax-
free reorganization under Section 368 of the Internal Revenue
Code (the "Code").
2. Covenants and Warranties. I represent, warrant, and
agree that:
(a) The shares of FCC received by me in connection with
the Merger ("FCC Shares") will be taken for my own account and
not for others.
(b) Without the prior written consent of FCC, I will
not, except by operation of law, by will or under the laws of
descent and distribution, sell, transfer, or otherwise dispose of
my interests in, or reduce my risk relative to, any of the shares
of my Common Stock of Central ("Central Stock") or any FCC Shares
into which my shares of Central Stock are converted upon
consummation of the Merger until FCC notifies me that the
requirements of SEC Accounting Series Release Nos. 130 and 135
have been met. I understand that such releases relate to
publication of financial results of post-Merger combined
operations of FCC and Central, and FCC agrees that it will
publish such results as soon as may be practicable and consistent
with its past practices after the end of the first fiscal quarter
of FCC containing the required period of post-Merger combined
operations and that it will notify me promptly following such
publication.
(c) I understand that any distribution by me of the FCC
Shares has not been registered under the Securities Act of 1933
("1933 Act") and that, except as may otherwise be expressly
provided hereinbelow, FCC is not obligated to register any
disposition of my FCC Shares. I agree that the FCC Shares
distributed to me will not be sold or otherwise transferred, nor
may I reduce my risks relative thereto in any way, unless (1)
covered by an effective registration statement under the 1933
Act, (2) in accordance with Rule 145(d), or (3) in accordance
with a legal opinion satisfactory to counsel for FCC that such
sale or transfer is otherwise exempt from registration.
(d) I am aware that FCC intends to treat the Merger in
a manner consistent with Section 368 of the Code. I acknowledge
that applicable tax regulations require "continuity of interest"
in order for the Merger to qualify under Section 368. This
requirement is satisfied if, taking into account those
shareholders of Central who receive cash, there is no plan or
intention on the part of the shareholders of Central to sell or
otherwise dispose of the FCC Shares to be received in the Merger
in an aggregate amount that would reduce their ownership to a
number of FCC Shares having an aggregate value, at the time of
the Merger, of less than 50% of the total fair market value of
the Central Stock (other than shares held by Central or any
subsidiary of Central except in a fiduciary capacity for third
persons) outstanding immediately prior to the Merger. I have no
plan or intention to dispose of a number of FCC Shares to be
received by me in the Merger which would, taking into account any
plan or intention on the part of other former shareholders of
Central or Bank to dispose of FCC Shares received in the Merger,
cause the foregoing requirement not to be satisfied.
3. Legend. I understand that FCC will give stop transfer
instructions to its transfer agent for any transfer or attempted
transfer of FCC Shares in violation of this Affiliate Agreement,
and that the following legend will be placed on my certificates:
The shares represented hereby were issued in a merger accounted
for as a "pooling of interests" and may not be sold, nor may the
holder reduce his risks relative thereto in any way, until First
Commerce Corporation ("FCC") has published financial results
covering at least 30 days of combined operations after the
merger's effective date. In addition, the shares may not be
sold, transferred, or otherwise disposed of unless (1) covered by
an effective registration statement under the Securities Act of
1933, (2) in accordance with Rule 145(d) under such Act, or (3)
in accordance with a legal opinion satisfactory to counsel for
FCC that such disposition is exempt from registration.
Such legend will also be placed on any certificate representing
FCC securities issued after original issuance of the FCC Shares
as a result of any stock dividend, split, or other
recapitalization, as long as the FCC Shares themselves contain
such legend. Upon my request, FCC will cause the certificates to
be reissued free of the first sentence of the legend as soon as
practicable after it becomes inapplicable. In addition, if Rule
145 is amended to eliminate restrictions applicable to the FCC
Shares or at the expiration of the restrictive period in
Rule 145(d) or if such restrictions should otherwise cease to be
applicable, FCC, upon my request, will cause the certificates to
be reissued free of the second sentence of the legend upon
receipt by FCC of an opinion of counsel satisfactory to it that
such legend may be removed.
4. Understanding of Requirements. I have carefully read
the Agreement and this Affiliate Agreement and discussed their
requirements and impact with my or Central's counsel.
5. Transfer Under Rule 145(d). If I desire to sell,
transfer or otherwise dispose of any FCC Shares during the
restrictive period set forth in Rule 145(d), I will provide the
necessary representation letter to FCC's transfer agent together
with such additional information as the transfer agent may
reasonably request. FCC will request its transfer agent to send
a copy of such representation letter and other information to
FCC's counsel. If FCC's counsel concludes that such proposed
disposition complies with Rule 145(d) or another available
exemption, FCC shall request such counsel, at FCC's expense, to
provide such opinions as may be necessary to FCC's transfer agent
so that I may complete the proposed disposition. If such counsel
is unable to so conclude, such counsel will immediately notify me
of the reasons and of any action that would enable such counsel
to conclude that such proposed disposition complies with Rule
145(d) or another available exemption.
6. Other Persons. I recognize and agree that the
foregoing provisions also apply to (i) my spouse, (ii) any
relative of me or of my spouse who shares my home, (iii) any
trust or estate in which I, my spouse, and any such relative
collectively own at least a 10% beneficial interest or of which
any of the foregoing serves as trustee, executor, or in any
similar capacity, and (iv) any corporation or other organization
in which I, my spouse and any such relative collectively own at
least 10% of any class of equity securities or of the equity
interest.
7. Limited Registration Rights. I understand that I will
have the limited registration rights described on Schedule I to
this Affiliate Agreement.
8. Miscellaneous. Any notice required to be sent to any
party hereunder shall be sent by registered or certified mail,
return receipt requested, using the addresses set forth herein or
such other address as shall be furnished in writing by the
parties. This Affiliate Agreement shall be governed by the laws
of the State of Louisiana.
This Affiliate Agreement is executed as of the ______ day of
_________________, 1995.
Very truly yours,
___________________________________
Signature
___________________________________
Print Name
___________________________________
___________________________________
___________________________________
Address
AGREED TO AND ACCEPTED
as of__________________, 1995
FIRST COMMERCE CORPORATION
By: ___________________________
Schedule I to Exhibit VI
REGISTRATION RIGHTS
If, and only if, the FCC Shares (defined in the Affiliate
Agreement to which this document is annexed as Schedule I)
received by the affiliate identified in such Affiliate Agreement
(the "Affiliate") are subject to the holding period of
Rule 144(d) and by reason thereof do not qualify for sale under
Rule 145(d), or the SEC takes the position that they are so
subject and therefore do not so qualify, then the Affiliate shall
have, but only for so long as such FCC Shares are so subject to
such holding period and by reason thereof do not qualify for sale
under Rule 145(d), or the SEC takes that position, the following
registration rights.
FCC shall, if requested by the Affiliate, as expeditiously
as practicable file a registration statement on a form of general
use under the Securities Act of 1933 ("Securities Act") or a
post-effective amendment to the registration statement relating
to the merger if necessary in order to permit the sale or other
disposition of the shares of Common Stock acquired pursuant to
the Merger in accordance with the intended method of sale or
other disposition requested by the Affiliate. The Affiliate
shall provide all information reasonably requested by FCC for
inclusion in any registration statement or post-effective
amendment to be filed hereunder. FCC will use its reasonable
best efforts to cause such registration statement or post-
effective amendment to become and remain effective, as provided
below, and to provide the Affiliate with copies of prospectuses
thereunder and any necessary supplements thereto meeting the
requirements of the Securities Act. In the event that any such
registration statement or post-effective amendment is requested,
FCC will enter into an indemnification agreement with the
Affiliate in customary form with respect to the information
included therein, and will enter into such other customary
agreements (including underwriting agreements in customary form)
and take all such other actions as the Affiliate or any
underwriters reasonably request in order to expedite or
facilitate the disposition of such FCC Shares, and take any
actions necessary to register or qualify such FCC Shares under
such other securities or Blue Sky laws as the Affiliate shall
reasonably request. All action required hereunder shall be at
FCC's expense, except that the Affiliate will be responsible for
all brokerage commissions or underwriting discounts and
commissions and all fees and expenses of its own counsel and of
the underwriters and their counsel (to the extent normally
reimbursable to them) incurred in connection therewith. Upon
receiving any request from the Affiliate hereunder, FCC agrees to
send a copy of the registration statement to the Affiliate by
promptly mailing the same, postage prepaid, to the address of
record of the Affiliate.
FCC shall not be obligated to file a registration statement
hereunder if:
(a)a registration statement (other than one effected solely
to implement an employee benefit plan) covering any securities of
FCC has become effective within the preceding ninety days;
(b)at the time of the request or at any time before the
registration statement becomes effective, Form S-3 or its then
equivalent may not be used by FCC, or financial statements or
data of FCC or of any other entity would be required to be
included in such registration statement which are not included in
FCC's latest annual report on Form 10-K or quarterly report on
Form 10-Q; or
(c)FCC shall furnish to the Affiliate a certificate signed
by its President stating that in the good faith judgment of the
Board of Directors of FCC (or Executive Committee thereof) it
would be seriously detrimental to FCC or its shareholders for a
registration statement to be filed in the near future, in which
case the term of FCC's obligation hereunder shall be extended for
six months.
FCC shall use its best efforts to continue any registration
statement filed pursuant hereto in effect for at least ninety
days or, if earlier, until the date on which counsel for FCC
shall determine, and shall provide Affiliate and FCC with an
opinion to the effect, that Affiliate's FCC Shares can be sold,
transferred, and otherwise disposed of without regard to the
holding period of Rule 144(d), provided, however, that:
(a)a registration statement filed in connection with a firm
commitment underwritten public offering of the shares covered by
the request shall be kept effective until the earlier of ninety
days following the effective date or the completion of such
offering;
(b)FCC shall not be required to keep the registration
statement in effect after the occurrence of an event which would
require the inclusion therein of financial statements of FCC or
any other person which are not included in the latest annual
report on Form 10-K or quarterly report on Form 10-Q of FCC; and
(c)the Affiliate will not effect sales of any of the
Affiliate's FCC Shares included in such registration statement
after receipt of telegraphic or written notice from FCC to
suspend sales to permit FCC to correct or update a registration
statement or prospectus, but the obligation to maintain the
registration statement in effect shall be extended by a period of
days equal to the period such suspension is in effect.
The registration rights provided for herein may be exercised
by you but twice during the term of this Agreement. Such rights
shall be deemed to have been exercised by you if either (i) any
of your shares have been included at your request in any
registration statement filed by FCC which has been declared
effective or (ii) the shares of any other affiliate who has
executed an Affiliates Agreement substantially the same as the
one to which this Schedule I is attached have been included in
such a registration statement and you received notice of such
registration statement and were given an opportunity to include
your FCC Shares therein. This Agreement shall terminate two
years after the Merger.
FIRST COMMERCE CORPORATION
By: _______________________________
<PAGE>
Exhibit VII
INSIDER'S COMMITMENT
This Insider's Commitment ("Agreement") is entered into as
of May 15, 1995 between the undersigned and First Commerce
Corporation ("FCC").
FCC and Central Corporation ("Central") propose to enter
into an Agreement and Plan of Merger (the "Plan"), which provides
for the merger of Central into FCC (the "Merger"). I am an
executive officer of Central and/or a member of Central's Board
of Directors and/or own such number of shares of common stock of
Central (the "Central Shares") that I will receive 5% or more of
the total number of shares of common stock of FCC to be issued in
the Mergers. In order to induce FCC to enter into the Plan, I am
entering into this Agreement with FCC.
1. Without FCC's prior consent, I will not transfer any
Central Shares except transfers (i) by operation of law, by will,
or pursuant to the laws of descent and distribution, (ii) in
which the transferee agrees in writing to be bound by paragraphs
1 and 2 of this Agreement as fully as I, or (iii) to FCC pursuant
to the Plan. Without limiting the generality of the foregoing, I
will not grant any option or right to acquire the Central Shares
or any interest therein or approve or ratify any agreement
pursuant to which the Central Shares would be transferred as a
result of a consolidation, merger, share exchange, or
acquisition. Without FCC's prior written consent, which will not
be unreasonably withheld, I will not deliver any proxy that
pertains to any Central Shares except a proxy that requires the
Central Shares to be voted in accordance with this Agreement.
2. I will vote (or cause to be voted) all of the Central
Shares over which I have voting authority (other than in a
fiduciary capacity) (i) for the Plan, (ii) against any share
exchange, merger (other than the Merger), consolidation, sale of
substantial assets, recapitalization or liquidation of or by
Central and (iii) against any amendment of Central's Articles of
Incorporation or Bylaws or other proposal involving Central or
any of its subsidiaries, which would in any manner impede or
prevent the Merger. The voting agreement contained in this
Section 2 is entered into solely in my capacity as a beneficial
owner (other than in a fiduciary capacity) of Central Shares and
not in my capacity as a director or officer of Central or in any
other fiduciary capacity. Such voting agreement may be
terminated by me if my compliance with it would breach my
fiduciary duties as a director and/or officer of Central. No
such termination shall affect any of my other agreements in this
Agreement.
3. I acknowledge that the effect of the Merger will be,
among other things, the transfer of the goodwill of Central to
FCC. I agree that, for a period of two years after the effective
time of the Merger, I will refrain from carrying on or engaging
in, as a consultant to, or management official of, a business
similar to the business conducted prior to the Merger by Central
and/or its subsidiary, Central Bank (and conducted thereafter by
Central Bank as a subsidiary of FCC) or from soliciting customers
of the business of Central Bank, in each such case within the
Parishes of Ouachita, Lincoln, Rapides and Natchitoches, so long
as Central Bank carries on a like business therein. The
foregoing restriction shall not apply to advisory relationships
with a financial institution which I had as of, and may have
after, the date hereof solely as legal counsel, accountant,
investment advisor or broker/dealer. As used herein, "financial
institution" includes any bank, savings and loan association or
similar institution that accepts deposit and makes loans, or a
holding company for such a bank, savings bank or similar
institution, or any person or entity that after the date hereof
applies to an appropriate regulatory authority to organize such a
bank, savings and loan association or similar institution, or as
a holding company thereof, and (ii) "management official" means
an employment position of an officer or with the responsibilities
of an officer or giving me authority to participate in policy-
making functions of the financial institution. If this paragraph
exceeds in duration or scope that permitted by applicable law, it
shall be reduced to the maximum that is permitted. This
paragraph is severable from, and shall be deemed to be a separate
agreement from, the remainder of this Agreement, so that no
invalidity of this paragraph shall in any manner affect such
other provisions.
4. I agree that my sole right to indemnification and
insurance, following the Merger, from FCC (as successor to
Central) or Central Bank, in connection with any claims, suits,
proceedings, investigations or other actions, and any related
losses, damages, costs, expenses, liabilities or judgments, to
which I am or may become a party or may be subjected by reason of
the fact that, at any time prior to the Effective Time of the
Merger, I am or have been a director or officer or employee of
Central or Central Bank or any other entity at their request,
shall be the rights provided in section 4.5 of the Plan and I
relinquish, effective at the Effective Time, all other such
rights, howsoever arising.
5. I acknowledge and agree that FCC could not be made
whole by monetary damages if I breach this Agreement. It is
accordingly agreed and understood that FCC in addition to any
other remedy which it may have at law or in equity, shall be
entitled to an injunction or injunctions to prevent breaches of
this Agreement and specifically to enforce it.
6. This Agreement will terminate upon any termination of
the Plan or upon any material amendment of the Conversion Ratio
under the Plan.
IN WITNESS WHEREOF, this Agreement has been duly executed
and delivered as of the day and year first above written.
NAME:_____________________________
(Please print or type)
FIRST COMMERCE CORPORATION
By:__________________________________
<PAGE>
Exhibit VIII-A
The opinion letter referred to in Section 8.11 of the
Agreement from counsel for Central shall state that:
(i) Central and Central Bank are duly organized,
validly existing and in good standing under the laws of
Louisiana, have all requisite corporate power and authority to
own and lease the property described as being owned and leased by
them in the Joint Proxy Statement and to carry on the business
described as being carried on by them in the Joint Proxy
Statement;
(ii) the execution, delivery and performance of this
Agreement and the Merger Agreement have been duly authorized by
the Board of Directors and shareholders of Central and all
corporate acts and other corporate proceedings required by the
laws of Louisiana or of the United States on the part of Central
for the due and valid authorization, execution, delivery and
performance of this Agreement and the Merger Agreement, and the
consummation of the Merger, have been validly taken. Upon the
filing of the fully executed, certified and acknowledged Merger
Agreement with the Secretary of State of Louisiana, the Merger
will be effective as of the Effective Time;
(iii) this Agreement and the Merger Agreement are the
legal, valid and binding obligations of Central and are
enforceable against Central in accordance with their respective
terms, except as such enforcement may be limited by bankruptcy,
reorganization, insolvency and other similar laws and court
decisions relating to or affecting the enforcement of creditors'
rights generally, and except as to the availability of specific
performance, injunction or other equitable remedies or remedies
that under Louisiana law are similar to equitable remedies in
jurisdictions recognizing a distinction between law and equity;
(iv) neither the execution, delivery or performance
of this Agreement or the Merger Agreement by Central, nor the
consummation of the transactions contemplated hereby or thereby,
will violate, conflict with or result in a breach of any
provision of the articles of incorporation (or association) or
by-laws of Central or Central Bank;
(v) the authorized capital stock of Central and
Central Bank are as set forth in Schedule 5.2(a) to this
Agreement and Section 5.3 of this Agreement, respectively, and
all shares described therein as issued and outstanding have been
duly authorized and validly issued, and are fully paid and non-
assessable. To such counsel's knowledge, except as contemplated
in this Agreement there are no outstanding options, warrants,
contracts or commitments entitling any person to purchase or
otherwise acquire from Central or Central Bank any shares of its
capital stock; nor to such counsel's knowledge has Central or
Central Bank any outstanding obligation with respect to its
unissued capital stock or treasury stock, nor any outstanding
obligation to repurchase, redeem or otherwise acquire any of its
outstanding shares of capital stock.
In addition, such counsel shall state that they have
examined various documents and records and participated in
conferences with representatives of FCC and representatives of
Central, at which time the contents of the Registration
Statement, the Joint Proxy Statement and related matters were
discussed, and that they have also examined the opinions and the
documents delivered at the closing. Such counsel shall further
state that they are not passing upon and assume no responsibility
for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Joint Proxy
Statement, but that, subject to the foregoing, no facts have come
to their attention which lead them to believe that the
Registration Statement (including the documents incorporated by
reference therein pursuant to Item 11 of Form S-4) at the time
such Registration Statement became effective contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or the Joint Proxy Statement as of its
date and the date of its distribution to stockholders (including
the documents incorporated by reference therein pursuant to
Item 11 of Form S-4) contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statement therein, in light of
the circumstances under which they were made, not misleading,
except that such counsel need not express any belief with respect
to the financial statements and schedules and other financial
data included or incorporated by reference in the Registration
Statement or Joint Proxy Statement.
In connection with such opinion such counsel may rely as to
factual matters on certificates of officers of Central and
Central Bank, and such counsel's knowledge shall mean its actual
knowledge as such counsel.
[The opinions in clauses (i) through (v) shall be given by
Louisiana counsel for Central. The statement in the second
preceding paragraph shall be made by Central's special merger
counsel.]
<PAGE>
Exhibit VIII-B
The opinion letter referred to in Section 8.11 of the
Agreement from counsel for FCC shall state that:
(i) FCC is duly organized, validly existing and in
good standing under the laws of Louisiana, has all requisite
corporate power and authority to own and lease the property
described as being owned and leased by it in the Joint Proxy
Statement and to carry on the business described as being carried
on by it in the Joint Proxy Statement;
(ii) the execution, delivery and performance of this
Agreement and the Merger Agreement have been duly authorized by
the Board of Directors and shareholders of FCC and all corporate
acts and other corporate proceedings required by the laws of
Louisiana or of the United States on the part of FCC for the due
and valid authorization, execution, delivery and performance of
this Agreement and the Merger Agreement, and the consummation of
the Merger, have been validly taken. Upon the filing of the
fully executed, certified and acknowledged Merger Agreement with
the Secretary of State of Louisiana, the Merger will be effective
as of the Effective Time;
(iii) this Agreement and the Merger Agreement are the
legal, valid and binding obligations of FCC and are enforceable
against FCC in accordance with their respective terms, except as
such enforcement may be limited by bankruptcy, reorganization,
insolvency and other similar laws and court decisions relating to
or affecting the enforcement of creditors' rights generally, and
except as to the availability of specific performance, injunction
or other equitable remedies or remedies that under Louisiana law
are similar to equitable remedies in jurisdictions recognizing a
distinction between law and equity;
(iv) neither the execution, delivery or performance
of this Agreement or the Merger Agreement by FCC, nor the
consummation of the transactions contemplated hereby or thereby,
will violate, conflict with or result in a breach of any
provision of the articles of incorporation or by-laws of FCC;
(v) the authorized capital stock of FCC is as set
forth in Schedule 5.2(a) to this Agreement, and all shares of FCC
Common Stock to be issued to holders of Central Common Stock will
be, when issued as described in this Agreement and the
Registration Statement, duly authorized and validly issued, fully
paid and non-assessable; and
(vi) the Registration Statement has become effective,
and, to such counsel's knowledge, no stop order suspending its
effectiveness has been issued nor have any proceedings for that
purpose been instituted.
In addition, such counsel shall state that they have
examined various documents and records and participated in
conferences with representatives of FCC and representatives of
Central, at which time the contents of the Registration
Statement, the Joint Proxy Statement and related matters were
discussed, and that they have also examined the opinions and the
documents delivered at the closing. Such counsel shall further
state that they are not passing upon and assume no responsibility
for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Joint Proxy
Statement, but that, subject to the foregoing, no facts have come
to their attention which lead them to believe that the
Registration Statement (including the documents incorporated by
reference therein pursuant to Item 11 of Form S-4) at the time
such Registration Statement became effective contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or the Joint Proxy Statement as of its
date and the date of its distribution to stockholders (including
the documents incorporated by reference therein pursuant to
Item 11 of Form S-4) contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statement therein, in light of
the circumstances under which they were made, not misleading,
except that such counsel need not express any belief with respect
to the financial statements and schedules and other financial
data included or incorporated by reference in the Registration
Statement or Joint Proxy Statement.
In connection with such opinion such counsel may rely as to
factual matters on certificates of officers of FCC, and such
counsel's knowledge shall mean its actual knowledge as such
counsel.
[CORRERO, FISHMAN & CASTEIX, L.L.P. LETTERHEAD]
July 28, 1995
First Commerce Corporation
210 Baronne Street
New Orleans, LA 70112
Gentlemen:
We have acted as counsel for First Commerce Corporation, a
Louisiana corporation (the "Company"), in connection with the
Company's Registration Statement on Form S-4 (the "Registration
Statement") covering up to 6,792,453 shares of common stock (the
"Common Stock") of the Company (the "Shares"), which the Company
proposes to issue to shareholders of Central Corporation in
accordance with the Agreement and Plan of Merger (the "Plan")
described in the Registration Statement.
For the purposes of the opinions expressed below, we have
examined the Registration Statement, the Plan, the Articles of
Incorporation, as amended, and By-laws, as amended, of the
Company, resolutions adopted by the Board of Directors and
Executive Committee of the Company and such other documents and
sources of law as we considered necessary to render the opinions
hereinafter expressed.
On the basis of the foregoing, we are of the opinion that
the proposed issuance of the Shares has been duly authorized by
all necessary corporate action, and such Shares, if and when
issued in accordance with the terms of the Plan, will be validly
issued, fully paid and non-assessable.
We hereby consent (i) to be named in the Registration
Statement under the heading "Legal Matters" as counsel for the
Company and (ii) to the filing of this opinion as an Exhibit to
the Registration Statement. In so doing we do not admit that we
are "experts" within the meaning of the Securities Act of 1933.
Yours sincerely,
/s/ Anthony J. Correro, III
Anthony J. Correro, III
BY HAND DRAFT
Mr. Leon K. Poche, Jr.
First Commerce Corporation
210 Baronne Street
New Orleans, Louisiana 70112
Mr. James A. Altick
Central Corporation
300 DeSiard Street
Monroe, Louisiana 71201-4928
Dear Messrs. Poche and Altick:
This opinion is being furnished to you in connection with the
proposed acquisition of Central Corporation ("Central") and its
wholly owned banking subsidiary, Central Bank of Monroe ("Bank"),
by First Commerce Corporation ("FCC"), which is expected to be
completed on ___________, 1995 ("the Effective Date"). You have
requested our opinion concerning the following:
Whether the merger of Central into FCC will qualify as a
reorganization under Section 368(a)(1)(A) of the Internal Revenue
Code of 1986, as amended ("the Code").
That the exchange of Central common stock to the extent
exchanged for FCC common stock will not give rise to gain or loss
for federal income tax purposes to the holders of Central common
stock with respect to such exchange.
You have asked for our opinion on the federal income tax
consequences to FCC, Central, and the stockholders of Central.
We have not considered any nonincome tax, state, local or foreign
income tax consequences, and, therefore, do not express any
opinion regarding the treatment that would be given the merger by
the applicable authorities on any nonincome tax or any state,
local or foreign tax issues. We also express no opinion on
nontax issues, such as corporate law or securities law matters,
including, but not limited to, all securities law disclosure
requirements.
In rendering our opinion, we have relied upon the accuracy and
completeness of the facts and information as contained in the
Agreement and Plan of Merger dated ___________, 1995 ("the
Agreement"), including all exhibits attached thereto, and the
representations included below. To the extent there are any
changes to the Agreement or representations, our opinion may be
affected accordingly.
The discussion and conclusions set forth below are based upon
the Code, the Treasury Regulations, and existing administrative
and judicial interpretations thereof as of the Effective Date,
all of which are subject to change. All section references are
to the Internal Revenue Code of 1986, as amended, unless
otherwise stated. If there is a change in the Code, the Treasury
Regulations or public rulings thereunder, the current Internal
Revenue Service rulings or releases, or in the prevailing
judicial interpretation of the foregoing, the opinion expressed
herein would necessarily have to be re-evaluated in light of any
such changes. We have no responsibility to update this opinion
for events, transactions, changes in the above-listed law and
authority or circumstances occurring after the Effective Date.
This opinion is solely for the benefit of FCC and Central and is
not intended to be relied upon by anyone other than FCC and
Central. Although you do hereby have our express consent to
inform Bank and FCC and Central common stockholders of our
opinion by including copies of this letter as an exhibit to the
Agreement and as an exhibit in the Registration Statement on Form
S-4 for the proposed transactions, we assume no responsibility
for tax consequences to them. Instead, each of these parties
must consult and rely upon the advice of his/her counsel,
accountant or other advisor. Except to the extent expressly
permitted hereby, and without the prior written consent of this
firm, this letter may not be quoted in whole or in part or
otherwise referred to in any documents or delivered to any other
person or entity.
Proposed Transactions
Our understanding of the proposed transaction, as described in
the Agreement, is as follows:
A.Central will be merged with and into FCC on the Effective Date
in accordance with the Merger Agreement and the provisions of
Section 131 of the Louisiana Business Corporation Law, as
amended.
B.The common stockholders of Central will receive shares of FCC
common stock proportionate in value, based on the terms contained
in Section 2.3 of the Agreement. The number of shares of FCC
common stock to be received by the common stockholders of Central
will represent an ownership interest in FCC common stock of less
than 50% of the total outstanding stock of FCC. In lieu of
issuing fractional shares of FCC common stock as a result of the
merger, common stockholders of Central will be entitled to
receive a cash payment equal to such fractional share multiplied
by the designated value of a share of FCC common stock.
C.Bank will become a wholly owned subsidiary of FCC and will
retain its name and bank charter thereafter for the foreseeable
future to no less an extent as FCC's other principal banking
subsidiaries retain theirs.
Unless stockholders of Central common stock holding at least
eighty (80) percent of the voting rights of Central approve the
plan of reorganization, objecting stockholders of Central may
dissent from the merger involving Central and FCC, and instead
receive cash in exchange for their shares of Central common
stock, based on the fair market value of such stock determined
under Section 131 of the Louisiana Business Corporation Law (La.
R.S. Section 12:131).
As a condition of FCC's entry into the Agreement with Central
and to induce such entry, Central entered into a Stock Option
Agreement dated _____________ with FCC that provides that FCC has
the option to purchase up to 809,279 shares of Central common
stock at $30 per share. The Option is exercisable only upon the
occurrence of one or more events (a "Purchase Event") pertaining
to the acquisition of a 10% or greater interest in Central by any
party other than FCC or its subsidiaries, subsequent to the date
of execution of the Agreement. The Stock Option Agreement
provides that in no event shall the number of shares for which
the Option is exercisable exceed 19.9% of Central's issued and
outstanding common stock. The Stock Option Agreement was
executed simultaneously with the Agreement, and the Option is
exercisable at any time or from time to time within six months
following the occurrence of a Purchase Event. The Stock Option
Agreement is to terminate and be of no further force and effect
on the Effective Date, or upon termination of the Agreement if
such termination occurs prior to the first Purchase Event to
occur.
Additional Representations
In addition to the representations included in the Agreement,
the following representations have been made to us by
representatives of FCC and Central:
a)FCC and the stockholders of Central will pay their respective
expenses, if any, incurred in connection with the successful
consummation of the transaction.
b)There is no intercorporate indebtedness existing between
Central and FCC, that was issued, acquired, or will be settled at
a discount.
c)The fair market value of the assets of Central transferred to
FCC will equal or exceed the sum of the liabilities assumed by
FCC plus the amount of liabilities, if any, to which the
transferred assets are subject.
d)None of the compensation received by any stockholder-employees
of Central or Bank will be separate consideration for, or
allocable to, any of their shares of Central common stock; none
of the shares of FCC common stock received by any stockholder-
employees will be separate consideration for, or allocable to,
any employment agreement; and the compensation paid to any
stockholder-employees will be for services actually rendered and
will be commensurate with amounts paid to third parties
bargaining at arm's length for similar services.
e)Central will be merged with and into FCC under the Articles of
Incorporation of FCC, pursuant to Louisiana Business Corporation
Law.
f)The Central common stockholders will have unrestricted rights
of ownership of FCC common stock received in the transaction, and
their ability to retain the FCC common stock received in the
transaction will not be limited in any way.
i)The ratio for the exchange of shares of Central common stock
for FCC common stock in the transaction was negotiated through
arm's length bargaining. Accordingly, the fair market value of
the FCC common stock to be received by Central common
stockholders in the transaction will be approximately equal to
the fair market value of the Central common stock surrendered by
such stockholders in exchange therefor.
The following representations have been made to us by
representatives of FCC:
a)FCC has no plan or intention to re-acquire any of its stock
issued in the transaction.
b)FCC has no plan or intention to sell or otherwise dispose of
the stock of Bank or any of the assets of Central or Bank
acquired in the transactions, except for dispositions made in the
ordinary course of business or transfers described in Section
368(a)(2)(C) of the Code.
c)Following the transactions, FCC will continue the historic
businesses of Central and Bank, respectively, or use a
significant portion of these historic business assets in the
operation of a trade or business.
d)The payment of cash in lieu of fractional shares of FCC common
stock is solely for the purpose of avoiding the expense and
inconvenience to FCC of issuing fractional shares and does not
represent separately bargained-for consideration. The total cash
consideration that will be paid in the transaction to the Central
stockholders instead of issuing fractional shares of FCC common
stock will not exceed (1) one percent of the total consideration
that will be issued in the transaction to the Central
stockholders in exchange for their shares of Central common
stock. The fractional share interests of each Central
stockholder will be aggregated, and no Central stockholder will
receive cash for such fractional share interests in an amount
equal to or greater than the value of one full share of FCC
common stock.
e)The assumption by FCC of the liabilities of Central pursuant to
the transaction is for bona fide business purposes and the
principal purpose of such assumptions is not the avoidance of
federal income tax on the transfer of assets of Central to
pursuant to the transaction.
f)FCC is not an investment company as defined in Sections
368(a)(2)(F)(iii) and 368(a)(2)(F)(iv).
g)The proposed transaction is being undertaken for reasons
germane to the continuance of the business of FCC.
h)FCC did not remit any separate consideration to Central in
exchange for the Stock Option Agreement entered into with
Central.
The following representations have been made to us by
representatives of Central:
a)There is no plan or intention by the Central common
stockholders who own one (1) percent or more of the stock, and to
the best of the knowledge of the management of Central, there is
no plan or intention on the part of the remaining common
stockholders to sell, exchange, or otherwise dispose of a number
of shares of FCC common stock received in the transaction that
would reduce the stockholders' ownership of FCC common stock to a
number of shares having a value, as of the Effective Date, of
less than fifty (50) percent of the value of all the formerly
outstanding common stock of Central as of the same date. For
purposes of this representation, shares of Central common stock
exchanged for cash in lieu of fractional shares of FCC stock
will be treated as outstanding Central common stock on the
Effective Date. Moreover, shares of Central common stock and
shares of FCC common stock held by Central stockholders and
otherwise sold, redeemed, or disposed of prior to the transaction
in contemplation thereof, or subsequent to the transaction, will
be considered in making this representation.
b)The liabilities of Central assumed by FCC, and the liabilities
to which the transferred assets are subject were incurred by
Central in the ordinary course of business.
c)Central is not an investment company as defined in Sections
368(a)(2)(F)(iii) and 368(a)(2)(F)(iv).
d)The proposed transaction is being undertaken for reasons
germane to the continuance of the business of Central.
e)Central did not receive any separate consideration from FCC in
exchange for the Stock Option Agreement entered into with FCC.
Analysis of Applicable Federal Tax Provisions
Section 354(a)(1) addresses the effects of corporate
reorganizations on shareholders, providing in general that no
gain or loss shall be recognized if stock or securities in a
corporation a party to a reorganization are, in pursuance of the
plan of reorganization, exchanged solely for stock or securities
in such corporation or in another corporation, a party to the
reorganization.
For purposes of Code Section 354, the terms "reorganization" and
"party to a reorganization" mean only a reorganization or a party
to a reorganization as defined in Sections 368(a) and 368(b).
Section 368(a)(1)(A) states that the term reorganization includes
a statutory merger or consolidation. Reg. Section 1.368-2(b)(1)
states that in order for a transaction to qualify as a
reorganization under Section 368(a)(1)(A), the transaction must
be a merger or consolidation effected pursuant to the corporation
laws of the United States or State or Territory or the District
of Columbia. Under Section 368(b), the term party to a
reorganization includes both corporations in the case of a
reorganization resulting from the acquisition by one corporation
of stock or properties of another.
The regulations under Section 368 require as a part of a
reorganization a continuity of the business enterprise under the
modified corporate form, a bona fide business purpose for the
reorganization, and a continuity of interest therein on the part
of those persons who, directly or indirectly, were owners of the
enterprise prior to the reorganization. Reg. Section 1.368-
1(d)(2) states that the continuity of business enterprise
requirement is met if the acquiring corporation either continues
the acquired corporation's historic business or uses a
significant portion of the acquired corporation's business assets
in the operation of a trade or business. Based on the
representations set forth above, the continuity of business
enterprise requirement is met with respect to the assets and
business operations of Central.
Reg. Section 1.368-2(g) indicates that in addition to coming
within the scope of the specific language of Sec. 368(a), a
reorganization must also be "undertaken for reasons germane to
the
continuance of the business of a corporation a party to the
reorganization." If the transaction or series of transactions
has no business or corporate purpose, then the plan is not a
reorganization pursuant to Section 368(a). [Reg. Section 1.368-
1(c).] Based on the representations set forth above, the
transaction meets the business purpose requirement.
The continuity of interest requirement does not require that all
shareholders of the acquired corporation have a proprietary
interest in the surviving corporation after the acquisition; it
is not even necessary for a substantial percentage of such
shareholders to have such an interest. Rather, the IRS announced
in Rev. Proc. 77-37 that it would rule that the continuity of
interest requirement is met so long as one or more of the
acquired corporation's shareholders retain a sufficient
proprietary interest in the continuing corporation. The IRS
indicated in Rev. Proc. 77-37 that a sufficient proprietary
interest is an interest with a value that is at least 50% of the
total equity value of the acquired corporation.
In addition to meeting the continuity of interest requirement
immediately after the reorganization, the former shareholders of
the acquired corporation must retain their interest in the
acquiring corporation for some time after the reorganization.
The courts have ruled that the tax-free nature of the
reorganization may be retroactively invalidated if the continuity
of interest is not maintained either because, at the time of the
reorganization, the shareholders intended to dispose of the
proprietary interest soon after the reorganization (Christian
Est. v. Comr., T.C. Memo 1989-413) or because a shareholder
disposes of stock immediately following the reorganization in
accordance with a pre-existing commitment to sell (American Wire
Fabrics Corp. v. Comr., 16 TC 607). The courts have generally
looked to the intent of the shareholders at the time of the
reorganization to dispose of their interests in determining
whether the continuity of interest requirement is subsequently
violated.
The Internal Revenue Service has ruled that the continuity of
interest requirement was met in situations similar to the
proposed transactions (PLR 8839036, PLR 8903054, PLR 9319017 and
PLR 9325026). It should be noted, however, that a private letter
ruling (PLR) is directed only to the taxpayer who requested it.
Section 6110(j)(3) provides that it may not be used or cited as
precedent. On the other hand, a PLR does represent an indication
of how the IRS may view the tax consequences of a taxpayer with
similar facts and circumstances. In these rulings, a corporation
and its wholly-owned subsidiary were simultaneously merged into
the acquiring parent and its wholly-owned subsidiary,
respectively, as part of the same overall transaction.
Based on the above representations made by representatives of
Central, the continuity of interest requirement is met with
respect to the transaction.
Section 356(a)(1) provides that if Section 354 would apply to an
exchange but for the fact that the property received in the
exchange consists not only of property permitted to be received
under Section 354 without the recognition of gain but also of
other property or money then the gain, if any, to the recipient
shall be recognized but not in excess of the sum of money and the
fair market value of the property received.
Section 356(c) states that no loss from the exchange may be
recognized by the shareholder.
In other official pronouncements, the Internal Revenue Service
has treated the distribution of cash distributed as part of a
reorganization and in a transaction subject to Section 356
considerations by applying the redemption principles under
Section 302. Section 302 provides, in part, that a redemption
will be treated as a distribution in part or full payment in
exchange for stock if it can meet the tests of that section.
In Rev. Rul. 66-365, the IRS announced that in a transaction
qualifying as a reorganization under Section 368(a)(1)(A) of the
Code where a cash payment is made by the acquiring corporation in
lieu of fractional shares and is not separately bargained for,
such cash payment will be treated under Section 302 of the Code
as in redemption of fractional share interests. Therefore, each
shareholder's redemption will be treated as a distribution in
full payment in exchange for his or her fractional share interest
under Section 302(a) of the Code and accorded capital gain or
loss treatment provided the redemption is not essentially
equivalent to a dividend and that the fractional shares redeemed
constitute a capital asset in the hands of the holder as
discussed below. In Rev. Proc. 77-41, the IRS stated that "a
ruling will usually be issued under Section 302(a) of the Code
that cash to be distributed to shareholders in lieu of fractional
share interests arising in corporate reorganizations...will be
treated as having been received in part or in full payment in
exchange for the stock redeemed if the cash distribution is
undertaken solely for the purpose of saving the corporation the
expense and inconvenience of issuing and transferring fractional
shares, and is not separately bargained-for consideration."
Under Section 302, where there is a complete redemption of all
of a shareholder's stock in a corporation (after consideration of
the constructive ownership rules of Section 302(c)), the
redemption payment is treated as made entirely in exchange for
the shareholder's stock in the corporation (Section 302(b)(3)).
Under Section 358(a)(1), in the case of an exchange to which
Section 354 or Section 356 applies, the basis of property which
is permitted to be received under such section without the
recognition of gain or loss shall be the same as that of the
property exchanged, decreased by the amount of any money received
by the recipient and the amount of loss recognized by the
recipient as a result of the exchange and increased by the amount
which was treated as a dividend and the amount of other gain
recognized by the recipient as a result of the transaction.
It should be noted that where cash is received in lieu of
fractional shares, the substance of the transaction is that of a
hypothetical receipt of the fractional shares and then a
redemption of such shares. Therefore, the basis that is to be
allocated to the stock of the acquiring corporation received must
be allocated to the shares retained and the fractional shares
hypothetically received. The gain or loss attributable to the
receipt of cash in lieu of fractional shares is measured by
comparing the cash received with the basis allocated to the
fractional shares that are hypothetically received, and such gain
or loss is recognized as discussed earlier pursuant to Rev. Rul.
66-365.
Code Section 361(a) states that, as a general rule, no gain or
loss is to be recognized by a corporation if such corporation is
a party to a reorganization and exchanges property, in pursuance
of the plan of reorganization, solely for stock or securities in
another corporation a party to the reorganization.
Section 361(b) states that if Section 361(a) would apply to an
exchange but for the fact that the property received in exchange
consists not only of stock or securities afforded nonrecognition
treatment under Section 361(a), but also of other property or
money, then provided the corporation receiving such other
property or money distributes it in pursuance to the plan of
reorganization, no gain to the corporation shall be recognized
from the exchange. Section 361(a) states that as a general rule
no gain or loss shall be recognized to a corporation a party to a
reorganization on the distribution to its shareholders of any
stock in another corporation which is a party to the
reorganization if such stock was received by the distributing
corporation in the exchange.
Section 1032(a) states that no gain or loss shall be recognized
to a corporation on the receipt of money or other property in
exchange for such corporation's stock, including treasury stock.
Code Section 362(b) states that the basis of property received
by the acquiring corporation in a reorganization is the same as
it would be in the hands of the transferor of the assets,
increased by any gain recognized by the transferor. The
transferor for purposes of the preceding sentence in the instant
case is Central.
Section 1221 defines a capital asset as property held by the
taxpayer which is not inventory or other property held by the
taxpayer primarily for sale to customers in the ordinary course
of a trade or business, property used in the taxpayer's trade or
business subject to the allowance for depreciation under Section
167, a copyright, literary, musical or artistic composition, a
letter or memorandum, or similar property created by the personal
efforts of the taxpayer, accounts or notes receivable acquired in
the ordinary course of a trade or business for services rendered
or from the sale of inventory or other property held by the
taxpayer primarily for sale to customers in the ordinary course
of business, or a publication of the United States Government
which is received from the United States Government or any agency
thereof other than by purchase at the price at which it is
offered for sale to the public.
Section 1223(1) states that in determining the period for which
a taxpayer has held property received in an exchange, there shall
be included the period for which he or she held the property
exchanged if the property has, for the purpose of determining
gain or loss from a sale or exchange, the same basis as the
property exchanged and the property exchanged was a capital asset
as defined in Section 1221 as of the date of the exchange.
Section 1223(2) states that for determining the period for which
the taxpayer has held property however acquired there shall be
included the period for which such property was held by another
person if the property has the same basis in whole or in part in
his hands as it would have had in the hands of such other person.
Subchapter P of Chapter 1 of the Code provides limitations on
the recognition of capital gains and losses including, but not
limited to, the allowance of capital losses to the extent of
capital gains with respect to corporate taxpayers and the
allowance of up to $3,000 of net capital losses with respect to
taxpayers other than corporate taxpayers.
Opinion
Based upon all of the foregoing, including representations of
the management of FCC and the management and Board of Directors
of Central, it is our opinion that:
a)The merger of Central with and into FCC, as described above,
will constitute a reorganization under Section 368 of the Code
(Section 368(a)(1)(A)).
b)Central and FCC will each be "a party to a reorganization"
(Section 368(b)).
c)No gain or loss will be recognized by the common stockholders
of Central on the receipt of FCC common stock in exchange for
surrendered Central common stock pursuant to the plan of
reorganization (Section 354(a)(1)).
d)The tax basis of the FCC common stock received by Central
common stockholders will be the same as the basis of the Central
common stock surrendered in exchange therefor, decreased by the
amount of basis allocated to the fractional shares that are
hypothetically received by the stockholder and redeemed for cash,
and increased by any gain recognized on the exchange (not
including any gain recognized for the receipt of cash in lieu of
fractional shares) (Section 358(a)(1)).
e)The Central period of the FCC common stock received by the
Central common stockholders will include the period during which
the Central common stock surrendered in exchange therefor was
held, provided that the Central common stock is held as a capital
asset in the hands of the Central stockholders on the Effective
Date (Section 1223(1)).
f)The payment of cash in lieu of fractional share interests of
FCC common stock will be treated as if each fractional share was
distributed as part of the exchange and then redeemed by FCC.
Pursuant to Section 302(a) of the Code, these cash payments will
be treated as having been received as distributions in full
payment in exchange for the FCC common stock. Any gain or loss
recognized upon such exchange (as determined under Section 1001
and subject to the limitations of Section 267) will be capital
gain or loss provided the fractional share would constitute a
capital asset in the hands of the exchanging stockholder (Rev.
Rul. 66-365 and Rev. Proc. 77-41).
g)Each shareholder of Central who elects to dissent from the
merger transaction involving Central and FCC under the provisions
of Louisiana R.S. 12:131, and receives cash in exchange for their
shares of Central common stock, will be treated as receiving such
payment in complete redemption of their shares of Central,
provided such shareholder does not actually or constructively own
any Central common stock after the exchange under the provisions
and limitations of Section 302.
h)No gain or loss will be recognized by Central on the transfer
of all of its assets to FCC solely in exchange for FCC common
stock and cash in lieu of fractional shares which is subsequently
distributed to Central common stockholders pursuant to the plan
of reorganization (Section 361).
i)No gain or loss will be recognized by FCC on the receipt by FCC
of substantially all of the assets of Central in exchange for FCC
stock (Section 1032(a)).
j)The tax basis of Central's assets in the hands of FCC will be
the same as the basis of those assets in the hands of Central
immediately prior to the merger (Section 362(b)). The tax basis
of Central's assets in the hands of FCC will not be increased by
any cash paid to dissenters or cash paid in lieu of fractional
shares.
k)The holding period of the assets of Central in the hands of FCC
will include the period during which such assets were held by
Central (Section 1223(2)).
We express no opinion on the impact, if any, of any other
sections of the Code, including but not limited to Section 382,
other than that as stated immediately above, and neither this
opinion nor any prior statements are intended to imply or to be
an opinion on any other matters.
In analyzing the authorities relevant to the potential tax
issues outlined in the opinions we have applied the standards of
"substantial authority" and "more likely than not proper," as
used in Section 6662 under current law. Based upon our analysis,
we have concluded that there is substantial authority for the
indicated tax treatment of the transaction, and we also believe
the indicated tax treatment of the transaction is more likely
than not proper.
The opinions expressed herein are based solely upon our
interpretation of the Code and income tax regulations as further
interpreted by court decisions, rulings, and procedures issued by
the Internal Revenue Service, as of the effective date of this
letter. Our opinions may be subject to change in the event of
changes in any of the foregoing authorities, some of which could
be retroactive. The opinions expressed herein are not binding on
the Internal Revenue Service, and there can be no assurance that
the Internal Revenue Service will not take a position contrary to
any of the opinions expressed herein, or if the Internal Revenue
Service took such a position, whether it would be sustained by
the courts.
The opinions expressed herein reflect our assessment of the
probable outcome of litigation and other adversarial proceedings
based solely on an analysis of the existing tax authorities
relating to the issues. It is important, however, to note that
litigation and other adversarial proceedings are frequently
decided on the basis of such matters as negotiation and
pragmatism. Furthermore, in recent years, the court of law has
exhibited a willingness to interpret prior authorities, as well
as to develop new theories, in order to reach a conclusion which
will maximize tax revenues. We have not considered the effect of
such negotiation, pragmatism, and judicial willingness upon the
outcome of such potential litigation or other adversarial
proceedings. Further, Bank, FCC, and Central common stockholders
are urged to discuss the consequences of the proposed
transactions with their own tax advisors.
Very truly yours,
ARTHUR ANDERSEN LLP
By
Charles A. Giraud III
Exhibit 15
July 28, 1995
First Commerce Corporation:
We are aware that First Commerce Corporation has incorporated by
reference in its Registration Statement its form 10-Q for the
quarter ended March 31, 1995, which includes our report dated
April 13, 1995, covering the unaudited interim financial
information contained therein. Pursuant to Regulation C of the
Securities Act of 1993, those reports are not considered a part
of the registration statement prepared or certified by our firm
or reports prepared or certified by our firm within the meaning
of Sections 7 and 11 of the Act.
Very truly yours,
/s/ Arthur Andersen LLP
Arthur Andersen LLP
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
_________________________________________
As independent public accountants, we hereby consent to the use
our reports (and to all references to our Firm) included in or
made a part of this Registration Statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSON LLP
New Orleans, Louisiana
July 28, 1995
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorportion by reference in this Registration
Statement of First Commerce Corporation on Form S-4 of our
report dated January 24, 1995 relating to the financial
statements of Central Corporation and subsidiary incorporated
by reference in the Annual Report on Form 10-K of Central
Corporation for the year ended December 31, 1994 and to the
reference to us under the heading "Experts" in the Prospectus,
which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Baton Rouge, Louisiana
July 26, 1995
Exhibit 23.3
CONSENT OF INDEPENDENT AUDITORS
_______________________________
We consent to the reference to our Firm under the caption "Experts"
in the Registration Statement (Form S-4) and related prospectus of
First Commerce Corporation, for the registration of 6,792,453
shares of its common stock, and Joint Proxy Statement of First
Commerce Corporation and Central Corporation and to the incorporation
by reference therein of our report dated January 20, 1993 with
respect to the consolidated financial statements of Central
Corporation for the year ended December 31, 1992 incorporated by
reference in its Annual Report (Form 10-K) for the year ended
December 31, 1994 filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
New Orleans, Louisiana
July 24, 1995
Exhibit 23.4
CONSENT OF THE ROBINSON-HUMPHREY COMPANY INC.
_____________________________________________
We hereby consent to the use in this Registration Statement of our
opinion dated May 15, 1995, addressed to the Board of Directors of
Central Corporation in Monroe, Louisiana, and to the references to
our firm included in this Registration Statement.
THE ROBINSON-HUMPHREY COMPANY, INC.
Atlanta Georgia
July 26, 1995
Exhibit 23.5
Consent of KEEFE, BRUYETTE & WOODS, INC.
The opinion letter of our Firm regarding the proposed merger of First
Commerce Corporation (the "Company") and Central Corporation is solely for
the information and assistance of the Board of Directors of the Company in
connection with its consideration of the transaction contemplated therein,
does not constittue a recommendation to any holder of shares as how to be
used, circulated, quoted or otherwise referred to for any other purpose,
nor is to be filed with, included in or referred to in whole or in part
in any registration statement, proxy statement or any other document,
execpt in accordance with our prior written consent.
In that regard, we hereby consent to the reference to the opinion of
our Firm under the caption "The Plan - Opinions of Investment Bankers,
Opinion to FCC" and to the inclusion of the foregoingopinion dated May 15,
1995 in the Registration Statement on Form S-4 of the Company. In giving
such consent, we do not thereby admit that we come within the category of
persons whose consent is required under Section 7 of the Securities Act of
1933 or the rules and regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
KEEFE, BRUYETTE & WOODS, INC.
July 27, 1995
Exhibit 23.6
The undersigned hereby consents to being named in the Registration
Statement on Form S-4, initially filed by First Commerce Corporation on
July 28, 1995, as becoming a director of First Commerce Corporation
following consummation of the merger transaction between First Commerce
Corporation and Central Corporation
Signed: /s/ Robert C. Cudd, III
______________________________
Robert C. Cudd, III
Exhibit 23.7
The undersigned hereby consents to being named in the Registration
Statement on Form S-4, initially filed by First Commerce Corporation on
July 28, 1995, as becoming a director of First Commerce Corporation
following consummation of the merger transaction between First Commerce
Corporation and Central Corporation
Signed: /s/ Hugh G. McDonald, Jr.
______________________________
Hugh G. McDonald, Jr.
Exhibit 23.8
The undersigned hereby consents to being named in the Registration
Statement on Form S-4, initially filed by First Commerce Corporation on
July 28, 1995, as becoming a director of First Commerce Corporation
following consummation of the merger transaction between First Commerce
Corporation and Central Corporation
Signed: /s/ Saul A. Mintz
______________________________
Saul A. Mintz
Exhibit 23.9
The undersigned hereby consents to being named in the Registration
Statement on Form S-4, initially filed by First Commerce Corporation on
July 28, 1995, as becoming a director of First Commerce Corporation
following consummation of the merger transaction between First Commerce
Corporation and Central Corporation
Signed: /s/ Tom H. Scott
______________________________
Tom H. Scott
PROXY
CENTRAL CORPORATION
_____________, 1995
SPECIAL MEETING OF SHAREHOLDERS
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS.
The undersigned hereby constitutes and appoints James A. Altick
and Thomas J. Nicholson, or either of them, the proxies of the
undersigned, with full power of substitution, to represent the
undersigned and to vote all of the shares of common stock of
Central Corporation (the "Company") that the undersigned is
entitled to vote at the special meeting of the shareholders of
the Company to be held on ________________, 1995 and at any and
all adjournments thereof.
1.A proposal to approve an Agreement and Plan of Merger (the
"Plan") pursuant to which, among other things, the Company will
merge into First Commerce Corporation ("FCC") and, on the
effective date of the merger, each outstanding share of common
stock of the Company will be converted into 1.67 of shares of FCC
common stock, subject to possible adjustment as determined in
accordance with the terms of the Plan.
FOR ____ AGAINST ____ ABSTAIN ____
2.In their discretion, to vote upon such other business as may
properly come before the meeting or any adjournment thereof.
THIS PROXY WILL BE VOTED AS SPECIFIED. IF NO SPECIFIC DIRECTIONS
ARE GIVEN, THIS PROXY WILL BE VOTED FOR THE PROPOSAL SET FORTH
HEREIN.
Please sign exactly as name appears on the certificate or
certificates representing shares to be voted by this proxy. When
signing as executor, administrator, attorney, trustee or
guardian, please give full title as such. If a corporation,
please sign in full corporate name by president or other
authorized persons. If a partnership, please sign in partnership
name by authorized persons.
Dated: ________________, 1995
Signature of Shareholder
Signature (if jointly owned)
Insert Mailing Label
PLEASE MARK, SIGN, DATE AND RETURN THIS PROXY CARD
TO THE COMPANY PROMPTLY USING THE ENCLOSED ENVELOPE.
<PAGE>
PROXY
FIRST COMMERCE CORPORATION
_____________, 1995
SPECIAL MEETING OF SHAREHOLDERS
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS.
The undersigned hereby constitutes and appoints Clifton J. Saik
and Thomas C. Jaeger, or any of them, the proxies of the
undersigned, with full power of substitution, to represent the
undersigned and to vote all of the shares of common stock of
First Commerce Corporation (the "Company") that the undersigned
is entitled to vote at the special meeting of the shareholders of
the Company to be held on ________________, 1995 and at any and
all adjournments thereof.
1.A proposal to approve an Agreement and Plan of Merger (the
"Plan") pursuant to which, among other things, Central
Corporation will merge into the Company and, on the effective
date of the merger, each outstanding share of common stock of
Central Corporation will be converted into 1.67 shares of common
stock of the Company, subject to possible adjustment as
determined in accordance with the terms of the Plan.
FOR ____ AGAINST ____ ABSTAIN ____
2.In their discretion, to vote upon such other business as may
properly come before the meeting or any adjournment thereof.
THIS PROXY WILL BE VOTED AS SPECIFIED. IF NO SPECIFIC DIRECTIONS
ARE GIVEN, THIS PROXY WILL BE VOTED FOR THE PROPOSAL SET FORTH
HEREIN.
Please sign exactly as name appears on the certificate or
certificates representing shares to be voted by this proxy. When
signing as executor, administrator, attorney, trustee or
guardian, please give full title as such. If a corporation,
please sign in full corporate name by president or other
authorized persons. If a partnership, please sign in partnership
name by authorized persons.
Dated: ________________, 1995
Signature of Shareholder
Signature (if jointly owned)
Insert Mailing Label
PLEASE MARK, SIGN, DATE AND RETURN THIS PROXY CARD
TO THE COMPANY PROMPTLY USING THE ENCLOSED ENVELOPE.
