Exhibit 2
AGREEMENT AND PLAN OF MERGER
TABLE OF CONTENTS
Page
ARTICLE I. THE MERGER
1.1. The Merger 2
1.2. Effective Time 2
1.3. Effects of the Merger 2
1.4. Conversion of FFB Common Stock 3
1.5 Stock Options 5
1.6. CCBG Common Stock 6
1.7. Conversion of Merger Sub Common Stock 6
1.8. Articles of Incorporation 6
1.9. Bylaws 7
1.10. Directors and Officers 7
ARTICLE II. EXCHANGE OF SHARES
2.1. CCBG to Make Cash Available 7
2.2. Exchange of Shares 7
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF FFB
3.1. Corporate Organization 10
3.2. Capitalization 13
3.3. Authority; No Violation 15
3.4. Consents and Approvals 17
3.5. Reports 19
3.6. Financial Statements 20
3.7. Broker's and Advisor's Fees 21
3.8. Absence of Certain Changes or Events 21
3.9. Legal Proceedings 22
3.10. Taxes 23
3.11. Employee Benefit Plans 25
3.12. SEC Reports 28
3.13. Compliance with Applicable Law 29
3.14. Certain Contracts 29
3.15. Agreements with Regulatory Agencies 31
3.16. Undisclosed Liabilities 32
3.17. State Takeover Laws; Charter Provisions 32
3.18. Derivative Transactions 33
3.19. Loan Portfolio 33
3.20. Environmental Matters 34
3.21. Allowance for Loan Losses 37
3.22. Properties 37
3.23. Insurance 38
3.24. Material Interests of Certain Persons 39
3.25. Statements True and Correct 39
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF CCBG
4.1. Corporate Organization 40
4.2. Authority; No Violation 41
4.3. Consents and Approvals 44
4.4. CCBG Information 45
4.5. Financing 46
4.6. Ownership of FFB Common Stock; Affiliates
and Associates 46
4.7. Legal Proceedings 46
4.8. Compliance with Applicable Laws, Agreements, etc. 47
4.9. Absence of Certain Changes or Events 49
4.10. Broker's and Advisor's Fees 49
ARTICLE V. COVENANTS RELATING TO CONDUCT OF BUSINESS
5.1. Covenants of FFB 49
ARTICLE VI. ADDITIONAL AGREEMENTS
6.1. Regulatory Matters 56
6.2. Access to Information 57
6.3. Stockholder Meeting 58
6.4. Legal Conditions to Merger 59
6.5. Advice of Changes 60
6.6. Current Information 61
6.7. Employee Benefit Plans;
Severance and Retention Plans 61
6.8. Indemnification; Insurance 63
6.9. Subsequent Interim and Annual Financial Statements 65
6.10. Additional Agreements 65
6.11. Certain Revaluations, Changes and Adjustments 66
6.12. Execution and Authorization of Bank Merger
Agreement 67
6.13. Resignations 67
6.14. Merger Sub 68
6.15. Advisory Board 68
6.16. Dissenters' Rights Process . . . . . . . . . . . . . . 68
ARTICLE VII. CONDITIONS PRECEDENT
7.1. Conditions to Each Party's Obligation to Effect
the Merger 68
7.2. Conditions to Obligations of CCBG and
Merger Sub. 69
7.3. Conditions to Obligations of FFB 73
ARTICLE VIII. TERMINATION AND AMENDMENT
8.1. Termination 74
8.2. Effect of Termination; Expenses 77
8.3. Amendment 77
8.4. Extension; Waiver 78
ARTICLE IX. GENERAL PROVISIONS
9.1. Closing 78
9.2. Nonsurvival of Representations, Warranties
and Agreements 79
9.3. Expenses 79
9.4. Notices 80
9.5. Interpretation 81
9.6. Counterparts 81
9.7. Entire Agreement 81
9.8. Governing Law 82
9.9. Severability 82
9.10. Publicity 82
9.11. Assignment; No Third Party Beneficiaries 82
9.12. Alternative Structure 83
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of December , 1995, by and
among Capital City Bank Group, Inc., a Florida corporation ("CCBG"); a
Florida corporation to be formed as a direct wholly owned subsidiary of
CCBG ("Merger Sub"); and First Financial Bancorp, Inc., a Florida
corporation ("FFB").
WITNESSETH:
WHEREAS, the Boards of Directors of CCBG and FFB have determined that
it is in the best interests of their respective companies and their
stockholders to consummate the business combination transaction provided
for herein in which Merger Sub will, subject to the terms and conditions
set forth herein, merge (the "Merger") with and into FFB; and
WHEREAS, as soon as practicable after the execution and delivery of
this Agreement, it is contemplated that Capital City Bank, a Florida
chartered bank and a direct wholly owned subsidiary of CCBG ("CCB"), and
First Federal Bank, a federally chartered savings bank and a direct wholly
owned subsidiary of FFB ("FFSB"), will enter into a Subsidiary Agreement
and Plan of Merger (the "Bank Merger Agreement") providing for the merger
(the "Subsidiary Merger") of FFSB with and into CCB, and it is intended
that the Subsidiary Merger be consummated immediately following the Merger
consummation; and
WHEREAS, the parties desire to make certain representations,
warranties and agreements in connection with the Merger and also to
prescribe certain conditions to the Merger;
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements contained herein, and intending
to be legally bound hereby, the parties agree as follows:
ARTICLE I.
THE MERGER
1.1. The Merger. Subject to the terms and conditions of this
Agreement, in accordance with the provisions of Section 607.1101 of the
Florida Business Corporation Act (the "BCA"), at the "Effective Time" (as
defined in Section 1.2 hereof), Merger Sub shall merge with and into FFB.
FFB shall be the surviving corporation (hereinafter sometimes called the
"Surviving Corporation") in the Merger, and shall continue its corporate
existence under the laws of the State of Florida. The name of the
Surviving Corporation shall be the name of FFB immediately prior to the
Merger. Upon consummation of the Merger, the separate corporate existence
of Merger Sub shall terminate.
1.2. Effective Time. The Merger shall become effective as set forth
in the articles of merger (the "Articles of Merger") which shall be filed
with the Department of State of the State of Florida (the "Department of
State") on the Closing Date (as defined in Section 9.1 hereof). The term
"Effective Time" shall be the date and time when the Merger becomes
effective, as set forth in the Articles of Merger.
1.3. Effects of the Merger. At and after the Effective Time, the
Merger shall have the effects set forth in Section 607.1106 of the BCA.
1.4. Conversion of FFB Common Stock.
(a) At the Effective Time, each share of the common stock, no par
value per share, of FFB (the "FFB Common Stock") issued and outstanding
immediately prior to the Effective Time (other than (i) shares of FFB
Common Stock held (x) in FFB's treasury or (y) directly or indirectly by
CCBG or FFB or any of their respective Subsidiaries (as defined below)
(except for Trust Account Shares and DPC Shares, as such terms are defined
in Section 1.4(b) hereof) and (ii) Dissenting Shares (as defined in Section
1.4(c) hereof)) shall, by virtue of this Agreement and without any action
on the part of the holder thereof, be converted into the right to receive
$22.00 in cash, without any interest thereon. All of the shares of FFB
Common Stock converted into the right to receive cash pursuant to this
Article I shall no longer be outstanding and shall automatically be
cancelled and shall cease to exist, and each certificate (each a
"Certificate") previously representing any such shares of FFB Common Stock
shall thereafter only represent the right to receive the cash into which
the shares of FFB Common Stock represented by such Certificate have been
converted pursuant to this Section 1.4(a). Certificates previously
representing shares of FFB Common Stock shall be exchanged for the cash
payable in consideration therefor upon the surrender of such Certificates
in accordance with Section 2.2 hereof, without any interest thereon.
(b) At the Effective Time, all shares of FFB Common Stock that are
owned by FFB as treasury stock and all shares of FFB Common Stock that are
owned directly or indirectly by CCBG or FFB or any of their respective
Subsidiaries (other than shares of FFB Common Stock (i) held directly or
indirectly in trust accounts, managed accounts and the like or otherwise
held in a fiduciary capacity that are beneficially owned by third parties
(any such shares whether held directly or indirectly by CCBG or FFB, as the
case may be, being referred to herein as "Trust Account Shares") and (ii)
shares of FFB Common Stock held by CCBG or FFB or any of their respective
Subsidiaries in respect of a debt previously contracted (any such shares of
FFB Common Stock, whether held directly or indirectly by CCBG or FFB, being
referred to herein as "DPC Shares"), which Trust Account Shares and DPC
Shares shall be converted into the right to receive the cash consideration
referenced in Section 1.4(a)) shall be cancelled and shall cease to exist
and no consideration shall be delivered in exchange therefor. Any shares
of the Common Stock, par value $.01 per share, of CCBG (the "CCBG Common
Stock") that are owned by FFB or any of its Subsidiaries (other than Trust
Account Shares and DPC Shares) shall be cancelled and returned to the
status of authorized but unissued shares of CCBG Common Stock and no
consideration shall be delivered in exchange therefor.
(c) Notwithstanding anything in this Agreement to the contrary,
shares of FFB Common Stock which are outstanding immediately prior to the
Effective Time, the holders of which shall have delivered to FFB a written
demand for appraisal of such shares in the manner provided in Section
607.1320 of the BCA ("Dissenting Shares"), shall not be converted into the
right to receive, or be exchangeable for, the cash consideration issuable
in exchange for such shares pursuant to Section 1.4(a) hereof but, instead,
the holders thereof shall be entitled to payment of the appraisal value of
such Dissenting Shares in accordance with the provisions of Section
607.1320 of the BCA; provided, however, that (i) if any holder of
Dissenting Shares shall subsequently deliver a written withdrawal of his
demand for appraisal of such shares (with the written approval of the
Surviving Corporation, if such approval is required under Section 607.1320
of the BCA), (ii) if any holder fails to establish his entitlement to
appraisal rights as provided in such Section 607.1320 of the BCA, or (iii)
if neither any holder of Dissenting Shares nor the Surviving Corporation
has filed a petition demanding a determination of the value of all
Dissenting Shares within the time provided in Section 607.1320 of the BCA,
such holder or holders (as the case may be) shall forfeit the right to
appraisal of such holders' shares of FFB Common Stock and each of such
shares shall thereupon be convertible into the right to receive, and become
exchangeable for, as of the Effective Time, the cash consideration
otherwise issuable in exchange for such shares of FFB Common Stock pursuant
to Section 1.4(a) hereof, without any interest thereon.
1.5. Stock Options. At the Effective Time, each option (an "FFB
Option") granted by FFB pursuant to its Employee Stock Compensation
Program (the "FFB Option Plan") to purchase shares of FFB Common Stock
which is outstanding and unexercised immediately prior thereto, whether or
not then vested or exercisable, shall be cancelled and all rights
thereunder shall be extinguished. As consideration for such cancellation
and upon written receipt from a holder acknowledging such cancellation,
CCBG shall make payment at the Effective Time to each holder of such FFB
Option of an amount determined by multiplying (x) the number of shares of
FFB Common Stock underlying such FFB Option by (y) the amount equal to the
positive difference, if any, between $22.00 and the exercise price per
share of such FFB Option, whereupon such option shall terminate and be of
no further force and effect.
1.6. CCBG Common Stock. Except for any shares of CCBG Common Stock
owned by FFB or any of its Subsidiaries (other than Trust Account Shares
and DPC Shares), which shall be cancelled and returned to the status of
authorized but unissued shares of CCBG as contemplated by Section 1.4
hereof, the shares of CCBG Common Stock issued and outstanding immediately
prior to the Effective Time shall be unaffected by the Merger and at the
Effective Time, such shares shall remain issued and outstanding.
1.7. Conversion of Merger Sub Common Stock. Each of the shares of the
common stock of Merger Sub issued and outstanding immediately prior to the
Effective Time shall, by virtue of the Merger, automatically and without
any action on the part of CCBG, become and be converted into one share of
FFB Common Stock.
1.8. Articles of Incorporation. At the Effective Time, the Articles
of Incorporation of FFB, as in effect immediately prior to the Effective
Time, shall be the Articles of Incorporation of the Surviving Corporation.
1.9. Bylaws. At the Effective Time, the Bylaws of Merger Sub, as in
effect immediately prior to the Effective Time, shall be the Bylaws of the
Surviving Corporation until thereafter amended in accordance with
applicable law.
1.10. Directors and Officers. The directors and officers of Merger
Sub immediately prior to the Effective Time shall be the directors and
officers of the Surviving Corporation, each to hold office in accordance
with the Articles of Incorporation and Bylaws of the Surviving Corporation
until their respective successors are duly elected or appointed and
qualified.
ARTICLE II.
EXCHANGE OF SHARES
2.1. CCBG to Make Cash Available. At or prior to the Effective Time,
CCBG shall deposit, or shall cause to be deposited, with CCB (the "Exchange
Agent"), for the benefit of the holders of Certificates, for exchange in
accordance with this Article II, the requisite amount of cash (such amount
being hereinafter referred to as the "Exchange Fund") to be paid pursuant
to Section 2.2(a) in exchange for outstanding shares of FFB Common Stock.
2.2. Exchange of Shares.
(a) As soon as practicable after the Effective Time (and in any event
no later than five (5) business days thereafter), the Exchange Agent shall
mail to each holder of record of a Certificate or Certificates, a form
letter of transmittal (which shall specify that delivery shall be effected,
and risk of loss and title to the Certificates shall pass, only upon
delivery of the Certificates to the Exchange Agent) and instructions for
use in effecting the surrender of the Certificates in exchange for the cash
into which the shares of FFB Common Stock represented by such Certificate
or Certificates shall have been converted pursuant to this Agreement. Upon
surrender of a Certificate for exchange and cancellation to the Exchange
Agent, together with such letter of transmittal, duly executed, the holder
of such Certificate shall be entitled to receive in exchange therefor a
check representing the amount of cash which such holder shall have become
entitled to receive in respect of the Certificate surrendered pursuant to
the provisions of this Article II, and the Certificate so surrendered shall
forthwith be cancelled. No interest will be paid or accrued on the cash
payable to holders of Certificates.
(b) If any payment for shares of FFB Common Stock is to be made in a
name other than that in which the Certificate surrendered in exchange
therefor is registered, it shall be a condition to such payment that the
Certificate so surrendered shall be properly endorsed (or accompanied by an
appropriate instrument of transfer) and otherwise in proper form for
transfer, and that the person requesting such exchange shall pay to the
Exchange Agent in advance any transfer or other taxes required by reason of
the payment to a person other than the registered holder of the Certificate
surrendered, or required for any other reason, or shall establish to the
satisfaction of the Exchange Agent that such tax has been paid or is not
payable.
(c) After the Effective Time, there shall be no transfers on the
stock transfer books of FFB of the shares of FFB Common Stock which were
issued and outstanding immediately prior to the Effective Time. If, after
the Effective Time, Certificates representing such shares are presented for
transfer to the Exchange Agent, they shall be cancelled and exchanged for
the cash consideration as provided in this Article II.
(d) Any portion of the Exchange Fund that remains unclaimed by the
stockholders of FFB for nine (9) months after the Effective Time shall be
paid to CCBG. Any stockholders of FFB who have not theretofore complied
with this Article II shall thereafter look only to CCBG for payment of cash
deliverable in respect of each share of FFB Common Stock such stockholder
holds as determined pursuant to this Agreement, in each case, without any
interest thereon. Notwithstanding the foregoing, none of CCBG, FFB, the
Surviving Corporation, the Exchange Agent or any other person shall be
liable to any former holder of shares of FFB Common Stock for any amount
properly delivered to a public official pursuant to applicable abandoned
property, escheat or similar laws.
(e) In the event any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person
claiming such Certificate to be lost, stolen or destroyed and, the posting
by such person of a bond in an amount at least equivalent to the value of
the Certificate or in such greater amount as CCBG may direct as indemnity
against any claim that may be made against it with respect to such
Certificate, the Exchange Agent will pay to such holder in exchange for
such lost, stolen or destroyed Certificate the cash deliverable in respect
thereof pursuant to this Agreement.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF FFB
FFB hereby represents and warrants to CCBG as follows:
3.1. Corporate Organization.
(a) FFB is a corporation duly organized, validly existing and in good
standing under the laws of the State of Florida, and is duly registered as
a savings and loan holding company under the Home Owners' Loan Act, as
amended. FFB has the corporate power and authority to own or lease all of
its properties and assets and to carry on its business as it is now being
conducted, and is duly licensed or qualified to do business in each
jurisdiction in which the nature of the business conducted by it or the
character or location of the properties and assets owned or leased by it
makes such licensing or qualification necessary, except where the failure
to be so licensed or qualified would not have a Material Adverse Effect (as
defined below) on FFB. The Articles of Incorporation and Bylaws of FFB
which are attached to the FFB Disclosure Schedule (as hereinafter defined),
are true, complete and correct copies of such documents as in effect as of
the date of this Agreement. As used in this Agreement, the term "Material
Adverse Effect" means, with respect to FFB, CCBG or Merger Sub, as the case
may be, a material adverse effect on the consolidated business, properties,
assets, liabilities, results of operations or financial condition of such
party and its Subsidiaries (as defined below) taken as a whole; provided,
however, that "Material Adverse Effect" shall not include any such effect
resulting from or attributable to (i) changes in laws or regulations,
generally accepted accounting principles ("GAAP") or interpretations of
laws, regulations or GAAP that affect the banking or savings and loan
industries generally, unless any such change affects the referenced party
to a materially greater extent than similar institutions generally, (ii)
the cost of a special deposit issuance premium assessed by the Federal
Deposit Insurance Corporation ("FDIC") with respect to the recapitalization
of the Savings Association Insurance Fund ("SAIF"), (iii) expenses
incurred by FFB and its Subsidiaries in connection with the transactions
contemplated by the terms of this Agreement (including without limitation
investment bankers and broker's fees, legal fees, accountant's fees, SEC
filing fees and the costs of printing and mailing the Proxy Statement)
(collectively, "Transaction Costs") not in excess, in the aggregate, of
$500,000, (iv) entries, accruals and adjustments effected pursuant to
Section 6.11 hereof and (v) any other accruals, entries, or expenses
effected or incurred at the written direction of CCBG. As used in this
Agreement, the word "Subsidiary" when used with respect to any party means
any corporation, partnership or other organization, whether incorporated or
unincorporated, which is consolidated with such party for financial
reporting purposes.
(b) FFSB is a federally chartered savings bank duly organized,
validly existing and in good standing under the laws of the United States
of America. The deposit accounts of FFSB are insured by the FDIC through
the SAIF to the fullest extent permitted by law, and all premiums and
assessments required to be paid in connection therewith have been paid when
due by FFSB. Each of FFB's other direct and indirect Subsidiaries is a
corporation duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation or organization. Each of FFB's
direct or indirect Subsidiaries has the corporate power and authority to
own or lease all of its properties and assets and to carry on its business
as it is now being conducted and is duly licensed or qualified to do
business in each jurisdiction in which the nature of the business conducted
by it or the character or the location of the properties and assets owned
or leased by it makes such licensing or qualification necessary, except
where the failure to be so licensed or qualified would not have a Material
Adverse Effect on FFB. The Articles of Incorporation, Charter, Bylaws and
similar governing documents of each Subsidiary of FFB as attached to the
FFB Disclosure Schedule (as hereinafter defined), are true, complete and
correct copies of such documents as in effect as of the date of this
Agreement.
(c) The minute books of FFB and each of its Subsidiaries contain
true, complete and accurate records in all material respects of all
meetings and other corporate actions held or taken since January 1, 1992,
of their respective stockholders and Boards of Directors (including
committees of their respective Boards of Directors).
3.2. Capitalization.
(a) The authorized capital stock of FFB consists of four million
(4,000,000) shares of FFB Common Stock and one million (1,000,000) shares
of preferred stock (the "FFB Preferred Stock"). As of the date of this
Agreement, there are (i) 865,133 shares of FFB Common Stock issued and
outstanding and no (0) shares of FFB Common Stock held in FFB's treasury,
(ii) no (0) shares of FFB Common Stock reserved for issuance upon exercise
of outstanding stock options or otherwise except for 67,922 shares of FFB
Common Stock reserved for issuance pursuant to the FFB Option Plan and
described in Section 3.2(a) of the Disclosure Schedule which is being
delivered to CCBG concurrently herewith (the "FFB Disclosure Schedule") and
(iii) no (0) shares of FFB Preferred Stock issued or outstanding, held in
FFB's treasury or reserved for issuance upon exercise of outstanding stock
options or otherwise. All of the issued and outstanding shares of FFB
Common Stock have been duly authorized and validly issued and are fully
paid, nonassessable and free of preemptive rights, with no personal
liability attaching to the ownership thereof. Except as referred to above
or reflected in Section 3.2(a) of the FFB Disclosure Schedule, FFB does not
have and is not bound by any outstanding subscriptions, options, warrants,
calls, commitments or agreements of any character calling for the purchase
or issuance of any shares of FFB Common Stock or FFB Preferred Stock or any
other equity security of FFB or any securities representing the right to
purchase or otherwise receive any shares of FFB Common Stock or any other
equity security of FFB. The names of the optionees, the date of each
option to purchase FFB Common Stock granted, the number of shares subject
to each such option, the expiration date of each such option, and the price
at which each such option may be exercised under the FFB Option Plan are
set forth in Section 3.2(a) of the FFB Disclosure Schedule.
(b) Section 3.2(b) of the FFB Disclosure Schedule sets forth a true
and correct list of all of the Subsidiaries of FFB as of the date of this
Agreement. FFB owns, directly or indirectly, all of the issued and
outstanding shares of the capital stock of each of such Subsidiaries, free
and clear of all liens, charges, encumbrances and security interests
whatsoever, and all of such shares are duly authorized and validly issued
and are fully paid, nonassessable and free of preemptive rights, with no
personal liability attaching to the ownership thereof. No Subsidiary of
FFB has or is bound by any outstanding subscriptions, options, warrants,
calls, commitments or agreements of any character calling for the purchase
or issuance of any shares of capital stock or any other equity security of
such Subsidiary or any securities representing the right to purchase or
otherwise receive any shares of capital stock or any other equity security
of such Subsidiary. At the Effective Time, there will not be any
outstanding subscriptions, options, warrants, calls, commitments or
agreements of any character by which FFB or any of its Subsidiaries will be
bound calling for the purchase or issuance of any shares of the capital
stock of FFB or any of its Subsidiaries.
3.3. Authority; No Violation.
(a) FFB has full corporate power and authority to execute and deliver
this Agreement and, subject to the receipt of all necessary stockholder and
regulatory approvals, consents or nonobjections, as the case may be, to
consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly approved by the Board of
Directors of FFB. The Board of Directors of FFB has directed that this
Agreement and the transactions contemplated hereby be submitted to FFB's
stockholders for approval at a meeting of such stockholders and, except for
the adoption of this Agreement by the requisite vote of FFB's stockholders,
no other corporate proceedings on the part of FFB are necessary to approve
this Agreement and to consummate the transactions contemplated hereby.
This Agreement has been duly and validly executed and delivered by FFB and
(assuming due authorization, execution and delivery by CCBG and Merger Sub)
constitutes a valid and binding obligation of FFB, enforceable against FFB
in accordance with its terms, except as enforcement may be limited by laws
affecting insured depository institutions and their holding companies,
general principles of equity whether applied in a court of law or a court
of equity and by bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally.
(b) FFSB has full corporate power and authority to execute and
deliver the Bank Merger Agreement and, subject to the receipt of all
regulatory approvals and the approval of FFB as the sole stockholder of
FFSB, to consummate the transactions contemplated thereby. The execution
and delivery of the Bank Merger Agreement and the consummation of the
transactions contemplated thereby will be duly and validly approved by the
Board of Directors of FFSB and by FFB as the sole stockholder of FFSB.
Upon the due and valid approval of the Bank Merger Agreement by FFB as the
sole stockholder of FFSB and by the Board of Directors of FFSB, no other
corporate proceedings on the part of FFSB will be necessary to consummate
the transactions contemplated thereby. The Bank Merger Agreement, upon
execution and delivery by FFSB, will be duly and validly executed and
delivered by FFSB and will (assuming due authorization, execution and
delivery by CCB) constitute a valid and binding obligation of FFSB,
enforceable against FFSB in accordance with its terms, except as
enforcement may be limited by laws affecting insured depository
institutions, general principles of equity whether applied in a court of
law or a court of equity and by bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting creditors' rights and remedies
generally.
(c) Neither the execution and delivery of this Agreement by FFB or
the Bank Merger Agreement by FFSB, nor the consummation by FFB or FFSB of
the transactions contemplated hereby or thereby, respectively, nor
compliance by FFB or FFSB with any of the terms or provisions hereof or
thereof will (i) violate any provision of the Articles of Incorporation or
Bylaws of FFB or the articles of incorporation, charter, bylaws or similar
governing documents of any of its Subsidiaries, or (ii) assuming that the
consents and approvals referred to in Section 3.4 hereof are duly obtained,
(x) violate any statute, code, ordinance, rule, regulation, judgment,
order, writ, decree or injunction applicable to FFB or any of its
Subsidiaries, or any of their respective properties or assets, or (y)
except as set forth in Section 3.3(c) of the FFB Disclosure Schedule,
violate, conflict with, result in a breach of any provision of or the loss
of any benefit under, constitute a default (or an event which, with notice
or lapse of time, or both, would constitute a default) under, result in the
termination of or a right of termination or cancellation under, accelerate
the performance required by, or result in the creation of any lien, pledge,
security interest, charge or other encumbrance upon any of the respective
properties or assets of FFB or any of its Subsidiaries under, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture,
deed of trust, license, lease, agreement or other instrument or obligation
to which FFB or any of its Subsidiaries is a party, or by which they or any
of their respective properties or assets may be bound or affected, except
(in the case of clause (y) above) for such violations, conflicts, breaches
or defaults which, either individually or in the aggregate, would not have
or be reasonably likely to have a Material Adverse Effect on FFB.
3.4. Consents and Approvals. Except for (a) the filing of
applications and notices, as applicable, with the Board of Governors of
the Federal Reserve System (the "Federal Reserve Board") under the Bank
Holding Company Act of 1956, as amended (the "BHCA"), the Oakar Amendment
to the Federal Deposit Insurance Act and the Bank Merger Act, and approval
of such applications and notices, (b) the filing of applications or
notices, as applicable, with the Office of Thrift Supervision (the "OTS")
and approval of such applications or notices, (c) the filing of
applications with the Florida Department of Banking and Finance (the
"Florida Banking Department") and approval of such applications, (d) the
filing with the Securities and Exchange Commission (the "SEC") of a proxy
statement relating to the meeting of FFB's stockholders (the "Stockholders
Meeting") to be held in connection with this Agreement and the transactions
contemplated hereby (the "Proxy Statement"), (e) the approval of this
Agreement by the requisite vote of the stockholders of FFB, (f) the filing
of the Articles of Merger with the Department of State pursuant to Section
607.1105 of the BCA, (g) the filings required by the Bank Merger Agreement
and (h) such filings, authorizations or approvals as may be set forth in
Section 3.3(c) of the FFB Disclosure Schedule, no consents or approvals of
or filings or registrations with any court, administrative agency or
commission or other governmental authority or instrumentality (each a
"Governmental Entity") or with any third party are necessary in connection
with the execution and delivery by FFB of this Agreement and the
consummation by FFB of the Merger and the other transactions contemplated
hereby or the execution and delivery by FFSB of the Bank Merger Agreement
and the consummation by FFSB of the Subsidiary Merger and the transactions
contemplated thereby.
3.5. Reports. FFB and each of its Subsidiaries have timely filed all
material reports, registrations and statements, together with any
amendments required to be made with respect thereto, that they were
required to file since January 1, 1992, with (i) the OTS, (ii) the FDIC,
(iii) the SEC, (iv) any state regulatory authority (each a "State
Regulator") and (v) any other self-regulatory organization ("SRO")
(collectively with the Federal Reserve Board, the "Regulatory Agencies"),
and all other material reports and statements required to be filed by them
since January 1, 1992, including, without limitation, any report or
statement required to be filed pursuant to the laws, rules or regulations
of the United States, the OTS, the FDIC, the SEC, any State Regulator or
any SRO, and have paid all fees and assessments due and payable in
connection therewith. Except for normal examinations conducted by a
Regulatory Agency in the regular course of the business of FFB and its
Subsidiaries, and except as set forth in Section 3.5 of the FFB Disclosure
Schedule, no Regulatory Agency has initiated any proceeding or, to the best
knowledge of FFB, investigation into the business or operations of FFB or
any of its Subsidiaries since January 1, 1992. Except as set forth in
Section 3.5 of the FFB Disclosure Schedule, there is no unresolved
material violation, criticism or exception by any Regulatory Agency with
respect to any report or statement relating to any examinations of FFB or
any of its Subsidiaries.
3.6. Financial Statements. FFB has previously delivered to CCBG
copies of (a) the consolidated balance sheets of FFB and its Subsidiaries
as of September 30 for the fiscal years 1995 and 1994 and the related
consolidated statements of operations, stockholders' equity and cash flow
for the fiscal years 1995, 1994 and 1993, in the case of fiscal year 1993
accompanied by the audit report of Deloitte & Touche, and in the case of
fiscal years 1994 and 1995 accompanied by the audit report of Hacker,
Johnson, Cohen & Grieb, independent public accountants with respect to FFB.
The financial statements referred to in this Section 3.6 (including the
related notes, where applicable) fairly present in all material respects,
and the financial statements referred to in Section 6.9 hereof will fairly
present in all material respects (subject, in the case of any unaudited
statements, to recurring audit adjustments normal in nature and amount),
the results of the consolidated operations and consolidated financial
position of FFB and its Subsidiaries for the respective fiscal periods or
as of the respective dates therein set forth; each of such statements
(including the related notes, where applicable) comply, and the financial
statements referred to in Section 6.9 hereof will comply, in all material
respects with applicable accounting requirements and with the published
rules and regulations of the SEC with respect thereto; and each of such
statements (including the related notes, where applicable) has been, and
the financial statements referred to in Section 6.9 hereof will be,
prepared in accordance with GAAP consistently applied during the periods
involved, except as indicated in the notes thereto or, in the case of
unaudited statements, as permitted by Form 10-Q under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). The books and
records of FFB and its Subsidiaries have been, and are being, maintained in
all material respects in accordance with GAAP and any other applicable
legal and accounting requirements and reflect only actual transactions. At
the Effective Time, all accounts of FFSB will balance and be reconciled,
with all reconciling items over $5,000 aged in excess of ninety (90) days
being properly accounted for.
3.7. Broker's and Advisor's Fees. Neither FFB nor any Subsidiary of
FFB nor any of their respective officers or directors has employed any
broker or finder or incurred any liability for any broker's fees,
commissions or finder's fees in connection with any of the transactions
contemplated by this Agreement or the Bank Merger Agreement, except that
FFB has engaged, and will pay a fee or commission to, Sandler O'Neill &
Partners, L.P. ("Sandler O'Neill") in accordance with the terms of a letter
agreement between Sandler O'Neill and FFB, a true, complete and correct
copy of which is attached to the FFB Disclosure Schedule.
3.8. Absence of Certain Changes or Events.
(a) Except as may be set forth in Section 3.8(a) of the FFB
Disclosure Schedule, since September 30, 1995, no event has occurred which
has caused, or is reasonably likely to cause, individually or in the
aggregate, a Material Adverse Effect on FFB.
(b) Except as set forth in Section 3.8(b) of the FFB Disclosure
Schedule or as fairly reflected on the audited consolidated financial
statements of FFB, including the notes related thereto, as of September 30,
1995, since September 30, 1995, FFB and its Subsidiaries have carried on
their respective businesses in the ordinary course consistent with their
past practices.
(c) Except as set forth in Section 3.8(c) of the FFB Disclosure
Schedule, since September 30, 1995, neither FFB nor any of its Subsidiaries
has (i) increased the wages, salaries, compensation, pension, or other
fringe benefits or perquisites payable to any executive officer, employee,
or director from the amount thereof in effect as of September 30, 1995
(which amounts have been previously disclosed to CCBG), granted any
severance or termination pay, entered into any contract to make or grant
any severance or termination pay, or paid any bonus other than year-end
bonuses for fiscal 1995 as listed in Section 3.8 of the FFB Disclosure
Schedule or (ii) suffered any strike, work stoppage, slow-down, or other
labor disturbance.
3.9. Legal Proceedings.
(a) Except as set forth in Section 3.9 (a) of the FFB Disclosure
Schedule, neither FFB nor any of its Subsidiaries is a party to any, and
there are no pending or, to the best of FFB's knowledge, threatened, legal,
administrative, arbitral or other proceedings, claims, actions or
governmental or regulatory investigations of any nature against FFB or any
of its Subsidiaries or challenging the validity or propriety of the
transactions contemplated by this Agreement or the Bank Merger Agreement as
to which there is a reasonable possibility of an adverse determination and
which, if adversely determined, would, individually or in the aggregate,
have or be reasonably likely to have a Material Adverse Effect on FFB.
(b) Except as set forth in Section 3.9 of the FFB Disclosure
Schedule, there is no injunction, order, judgment, decree, or regulatory
restriction imposed upon FFB, any of its Subsidiaries or the assets of FFB
or any of its Subsidiaries which has had, or could reasonably be expected
to have, a Material Adverse Effect on FFB.
3.10. Taxes.
(a) Except as set forth in Section 3.10(a) of the FFB Disclosure
Schedule, each of FFB and its Subsidiaries has (i) duly and timely filed or
will duly and timely file (including applicable extensions granted without
penalty) all Tax Returns (as hereinafter defined) required to be filed at
or prior to the Effective Time, and such Tax Returns which have heretofore
been filed are, and those to be hereinafter filed will be, true, correct
and complete and (ii) paid in full or have made adequate provision for on
the financial statements of FFB (in accordance with GAAP) all Taxes (as
hereinafter defined) and will pay in full or make adequate provision for
all Taxes other than Taxes being contested by FFB in good faith for which
adequate provision for on the financial statements of FFB (in accordance
with GAAP) have been made. There are no material liens for Taxes upon the
assets of either FFB or its Subsidiaries except for statutory liens for
current Taxes not yet due. Except as set forth in Section 3.10(a) of the
FFB Disclosure Schedule, neither FFB nor any of its Subsidiaries has
requested any extension of time within which to file any Tax Returns in
respect of any fiscal year which have not since been filed and no request
for waivers of the time to assess any Taxes are pending or outstanding.
The federal and state income Tax Returns of FFB and its Subsidiaries have
been audited by the Internal Revenue Service or appropriate state tax
authorities with respect to those periods and jurisdictions set forth on
Section 3.10(a) of the FFB Disclosure Schedule. Except as set forth in
Section 3.10(a) of the FFB Disclosure Schedule, neither FFB nor any of its
Subsidiaries (i) is a party to any agreement providing for the allocation
or sharing of Taxes (other than the allocation of federal income taxes as
provided by Regulation 1.1552-1(a)(1) under the Internal Revenue Code of
1986, as amended (the "Code")); (ii) is required to include in income any
adjustment pursuant to Section 481(a) of the Code by reason of the
voluntary change in accounting method (nor has any taxing authority
proposed in writing any such adjustment or change of accounting method); or
(iii) has filed a consent pursuant to Section 341(f) of the Code. Neither
FFB nor any of its Subsidiaries (i) is a United States Real Property
Holding Corporation as defined under Section 897(c)(2) of the Code, or (ii)
owns, directly or indirectly, interests in real property ("Real Property
Interests"), wherever situated, which by reason of the Merger would be
subject to any material real property gains or material real property
transfer taxes. For purposes of this Section 3.10(a), Real Property
Interests include, without limitation, titles in fee, leasehold interests,
beneficial interests, encumbrances, development rights or any other
interests with the right to use or occupy real property or the right to
receive rents, profits or other income derived therefrom or any options or
contracts to purchase real property.
(b) For the purposes of this Agreement, "Taxes" shall mean all taxes,
charges, fees, levies, penalties or other assessments imposed by any United
States federal, state, local or foreign taxing authority, including, but
not limited to income, excise, property, sales, transfer, franchise,
payroll, withholding, social security or other taxes, including any
interest, penalties or additions attributable thereto.
(c) For purposes of this Agreement, "Tax Return" shall mean any
return, report, information return or other document (including any related
or supporting information) with respect to Taxes.
3.11. Employee Benefit Plans.
(a) Section 3.11(a) of the FFB Disclosure Schedule sets forth a true
and complete list of each employee benefit plan, arrangement or agreement
that is maintained or contributed to or required to be contributed to as of
the date of this Agreement (the "Plans") by FFB, any of its Subsidiaries or
by any trade or business, whether or not incorporated (an "ERISA
Affiliate"), all of which together with FFB would be deemed a "single
employer" within the meaning of Section 4001 of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), for the benefit of any
employee or former employee of FFB, any Subsidiary or any ERISA Affiliate.
(b) FFB has heretofore delivered to CCBG true and complete copies of
each of the Plans and all related documents, all of which are attached to
the FFB Disclosure Schedule, including but not limited to (i) the actuarial
report for such Plan (if applicable) for each of the last three years, and
(ii) the most recent determination letter from the Internal Revenue Service
(if applicable) for such Plan.
(c) Except as set forth in Section 3.11(c) of the FFB Disclosure
Schedule, (i) each of the Plans has been operated and administered in all
material respects in accordance with its terms and applicable law,
including but not limited to ERISA and the Code, (ii) each of the Plans
intended to be "qualified" within the meaning of Section 401(a) of the Code
either (1) has received a favorable determination letter from the IRS, or
(2) is or will be the subject of an application for a favorable
determination letter, and FFB is not aware of any circumstances likely to
result in the revocation or denial of any such favorable determination
letter, (iii) with respect to each Plan which is subject to Title IV of
ERISA, the present value of accrued benefits under such Plan, based upon
the actuarial rates and assumptions used for funding purposes in the most
recent actuarial report prepared by Watson Wyatt with respect to such Plan,
did not, as of its latest valuation date, and will not, as of the Effective
Time, using actuarial rates and assumptions established by Watson Wyatt as
of January 1, 1996, exceed the then current value of the assets of such
Plan allocable to such accrued benefits, (iv) no Plan provides benefits,
including without limitation death or medical benefits (whether or not
insured), with respect to current or former employees of FFB, its
Subsidiaries or any ERISA Affiliate beyond their retirement or other
termination of service, other than (w) coverage mandated by applicable law,
(x) death benefits or retirement benefits under any "employee pension
plan," as that term is defined in Section 3(2) of ERISA, (y) deferred
compensation benefits accrued as liabilities on the books of FFB, its
Subsidiaries or the ERISA Affiliates or (z) benefits the full cost of which
is borne by the current or former employee (or his beneficiary), (v) no
liability under Title IV of ERISA has been incurred by FFB, its
Subsidiaries or any ERISA Affiliate that has not been satisfied in full,
and no condition exists that presents a material risk to FFB, its
Subsidiaries or an ERISA Affiliate of incurring a material liability
thereunder, (vi) no Plan is a "multiemployer pension plan," as such term is
defined in Section 3(37) of ERISA, (vii) all contributions or other amounts
payable by FFB, its Subsidiaries or any ERISA Affiliates as of the
Effective Time with respect to each Plan in respect of current or prior
plan years have been paid or accrued in accordance with GAAP and Section
412 of the Code, (viii) neither FFB, its Subsidiaries nor any ERISA
Affiliate has engaged in a transaction in connection with which FFB, its
Subsidiaries or any ERISA Affiliate could be subject to either a civil
penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax
imposed pursuant to Section 4975 or 4976 of the Code and (ix) there are no
pending, or, to the best knowledge of FFB, threatened or anticipated claims
(other than routine claims for benefits) by, on behalf of or against any of
the Plans or any trusts related thereto and (x) the consummation of the
transactions contemplated by this Agreement will not (y) entitle any
current or former employee or officer of FFB or any ERISA Affiliate to
severance pay, termination pay or any other payment, except as expressly
provided in this Agreement or (z) accelerate the time of payment or vesting
or increase the amount of compensation due any such employee or officer.
3.12. SEC Reports. FFB has previously made available to CCBG an
accurate and complete copy of each (a) final registration statement,
prospectus, report, schedule and definitive proxy statement filed since
January 1, 1992, by FFB with the SEC pursuant to the Securities Act of
1933, as amended (the "Securities Act") or the Exchange Act (the "FFB
Reports") and (b) communication mailed by FFB to its stockholders since
January 1, 1992, and no such registration statement, prospectus, report,
schedule, proxy statement or communication contained any untrue statement
of a material fact or omitted to state any material fact required to be
stated therein or necessary in order to make the statements therein, in
light of the circumstances in which they were made, not misleading, except
that information as of a later date shall be deemed to modify information
as of an earlier date. FFB has timely filed all FFB Reports and other
documents required to be filed by it under the Securities Act and the
Exchange Act, and, as of their respective dates, all FFB Reports complied
as to form in all material respects with the published rules and
regulations of the SEC with respect thereto.
3.13. Compliance with Applicable Law. FFB and each of its
Subsidiaries hold, and have at all times held, all material licenses,
franchises, permits and authorizations necessary for the lawful conduct of
their respective businesses under and pursuant to all, and have complied
with and are not in default in any respect under any, applicable law,
statute, order, rule, regulation, policy and/or guideline of any Regulatory
Agency relating to FFB or any of its Subsidiaries, except where the failure
to hold such license, franchise, permit or authorization or such
noncompliance or default would not, individually or in the aggregate, have
or be reasonably likely to have a Material Adverse Effect on FFB, and
neither FFB nor any of its Subsidiaries knows of, or has received notice
of, any material violations of any of the above.
3.14. Certain Contracts.
(a) Except as set forth in Section 3.14(a) of the FFB Disclosure
Schedule, neither FFB nor any of its Subsidiaries is a party to or bound by
any contract, arrangement, commitment or understanding (whether written or
oral) (i) with respect to the employment of any directors, officers,
employees or consultants, (ii) which, upon the consummation of the
transactions contemplated by this Agreement or the Bank Merger Agreement
will (either alone or upon the occurrence of any additional acts or events)
result in any payment (whether of severance pay or otherwise) becoming due
from CCBG, FFB, the Surviving Corporation or any of their respective
Subsidiaries to any officer or employee thereof, (iii) which is a material
contract (as defined in Item 601(b)(10) of Regulation SK of the SEC) to be
performed after the date of this Agreement that has not been filed or
incorporated by reference in FFB Reports, (iv) which is a consulting or
other agreement (including data processing, software programming and
licensing contracts) not terminable on 60 days or less notice involving the
payment of more than $25,000 per annum, (v) which materially restricts the
conduct of any line of business by FFB or any of its Subsidiaries, (vi)
with or to a labor union (including any collective bargaining agreement) or
(vii) (including any stock option plan, stock appreciation rights plan,
restricted stock plan or stock purchase plan) any of the benefits of which
will be increased, or the vesting of the benefits of which will be
accelerated, by the occurrence of any of the transactions contemplated by
this Agreement or the Bank Merger Agreement, or the value of any of the
benefits of which will be calculated on the basis of any of the
transactions contemplated by this Agreement or the Bank Merger Agreement.
Each contract, arrangement, commitment or understanding of the type
described in this Section 3.14(a), whether or not set forth in Section
3.14(a) of the FFB Disclosure Schedule, is referred to herein as an "FFB
Contract". FFB has previously delivered to CCBG true and correct copies of
each FFB Contract which is referred to in a list attached to the FFB
Disclosure Schedule.
(b) Except as set forth in Section 3.14(b) of the FFB Disclosure
Schedule, (i) each FFB Contract is valid and binding and in full force and
effect, (ii) FFB and each of its Subsidiaries have in all material respects
performed all obligations required to be performed by it to date under each
FFB Contract, except where such noncompliance, individually or in the
aggregate, would not have or be reasonably likely to have a Material
Adverse Effect on FFB, (iii) no event or condition exists which constitutes
or, after notice or lapse of time or both, would constitute, a material
default on the part of FFB or any of its Subsidiaries under any such FFB
Contract, except where such default, individually or in the aggregate,
would not have or be reasonably likely to have a Material Adverse Effect on
FFB and (iv) no other party to such FFB Contract is, to the best knowledge
of FFB, in default in any respect thereunder.
3.15. Agreements with Regulatory Agencies. Except as set forth in
Section 3.15 of the FFB Disclosure Schedule, neither FFB nor any of its
Subsidiaries nor any of the directors or officers of FFB or its
Subsidiaries is subject to any cease-and-desist or other order issued by,
or is a party to any written agreement, consent agreement or memorandum of
understanding with, or is a party to any commitment letter or similar
undertaking to, or is subject to any order or directive by, or is a
recipient of any extraordinary supervisory letter from, or has adopted any
board resolutions which are currently in effect (other than those adopted
in the ordinary course of business) at the request of (each, whether or not
set forth on Section 3.15 of the FFB Disclosure Schedule, a "Regulatory
Agreement"), any Regulatory Agency or Governmental Entity that restricts
the conduct of its business or that in any manner relates to its capital
adequacy, its credit policies, its management or its business, nor has FFB
or any of its Subsidiaries been advised by any Regulatory Agency or other
Governmental Entity that it is considering issuing or requesting any
Regulatory Agreement.
3.16. Undisclosed Liabilities. Except (a) as set forth in Section
3.16 of the FFB Disclosure Schedule, (b) for those liabilities that are
fully reflected or reserved against on the consolidated balance sheet of
FFB as of September 30, 1995, and (c) for liabilities incurred in the
ordinary course of business consistent with past practice since September
30, 1995, that, either alone or when combined with all similar liabilities,
have not had, and could not reasonably be expected to have, a Material
Adverse Effect on FFB, neither FFB nor any of its Subsidiaries has incurred
any liability of any nature whatsoever (whether absolute, accrued,
contingent or otherwise and whether due or to become due). FFSB has no
brokered deposit liabilities.
3.17. State Takeover Laws; Charter Provisions. The provisions of
Section 607.0901 of the BCA and Article IX of FFB's Articles of
Incorporation will not, assuming the accuracy of the representations
contained in Section 4.6 hereof, apply to this Agreement, the Bank Merger
Agreement or any of the transactions contemplated hereby or thereby.
3.18. Derivative Transactions. Except as set forth in Section 3.18
of the FFB Disclosure Schedule, since September 30, 1995, neither FFB nor
any of its Subsidiaries has engaged in transactions in or involving
forwards, futures, options on futures, swaps or other similar derivative
instruments.
3.19. Loan Portfolio. Except as set forth in Section 3.19 of the FFB
Disclosure Schedule, as of October 31, 1995, neither FFB nor any of its
Subsidiaries is a party to any written or oral (i) loan agreement, note or
borrowing arrangement (including, without limitation, leases, credit
enhancements, commitments, guarantees and interest-bearing assets)
(collectively, "Loans"), other than Loans the unpaid principal balance of
which does not exceed an aggregate of $50,000 to any one obligor, under the
terms of which the obligor is, as of October 31, 1995, over ninety (90)
days delinquent in payment of principal or interest or in default of any
other material provision, or (ii) Loan with any director, executive officer
or ten percent stockholder of FFB or any of its Subsidiaries, or to the
knowledge of FFB, any person, corporation or enterprise controlling,
controlled by or under common control with any of the foregoing. Section
3.19 of the FFB Disclosure Schedule also sets forth (i) all of the Loans in
original principal amount in excess of $50,000 of FFB or any of its
Subsidiaries that as of the date of this Agreement are classified by any
bank examiner or internal auditor as "Other Loans Especially Mentioned",
"Special Mention", "Substandard", "Doubtful", "Loss", "Classified",
"Criticized", "Credit Risk Assets", "Concerned Loans", "Watch List" or
words of similar import, together with the principal amount of and accrued
and unpaid interest on each such Loan and the identity of the borrower
thereunder, and (ii) by category of Loan (i.e., commercial, consumer,
etc.), all of the other Loans of FFB and its Subsidiaries that as of the
date of this Agreement are classified as such, together with the aggregate
principal amount of and accrued and unpaid interest on such Loans by
category. FFB shall promptly inform CCBG of any Loan that becomes
classified in the manner described in the previous sentence, or any Loan
the classification of which is adversely changed, at any time after the
date of this Agreement.
3.20. Environmental Matters. Except as set forth in Section 3.20 of
the FFB Disclosure Schedule:
(a) To the best knowledge of FFB, each of FFB, its Subsidiaries,
the Participation Facilities and the Loan Properties (each as hereinafter
defined) are, and have been, in compliance with all applicable laws, rules,
regulations, standards and requirements of all federal, state or local laws
and regulations relating to pollution or protection of human health or the
environment (including without limitation, laws and regulations relating to
emissions, discharges, releases or threatened releases of Hazardous
Material (as hereinafter defined) or petroleum or petroleum products, or
otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous Material
or petroleum or petroleum products), except for violations which, either
individually or in the aggregate, have not had and are not reasonably
expected to have a Material Adverse Effect on FFB;
(b) There is not any pending or, to the best of FFB's knowledge,
threatened suit, claim, action, proceeding, investigation or notice (and to
the best knowledge of FFB there are no past or present actions, activities,
circumstances, conditions, events or incidents that could form the basis of
any such suit, claim, action, proceeding, investigation or notice), before
any Governmental Entity or other forum in which FFB, any of its Subsidi
aries, any Participation Facility or any Loan Property (or person or entity
whose liability for any such suit, claim, action, proceeding, investigation
or notice FFB, any of its Subsidiaries, Participation Facility or Loan
Property has or may have retained or assumed either contractually or by
operation of law), has been or, with respect to threatened suits, claims,
actions, proceedings, investigations or notices 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 or threatened release into the environment of any Hazardous
Material (as hereinafter defined) or petroleum or petroleum products
whether or not occurring at or on a site owned, leased or operated by FFB
or any of its Subsidiaries, any Participation Facility or any Loan
Property, except where such noncompliance or release has not had, and
cannot be reasonably expected to have, either individually or in the
aggregate, a Material Adverse Effect on FFB;
(c) To the best knowledge of FFB, during the period of (i) FFB's or
any of its Subsidiaries' ownership or operation of any of their respective
current or previously owned properties, (ii) FFB's or any of its
Subsidiaries' participation in the management of any Participation
Facility, or (iii) FFB's or any of its Subsidiaries' holding of a security
interest in a Loan Property, there has been no release or threatened
release of Hazardous Material or petroleum or petroleum products in, on,
under or affecting any such property, Participation Facility or Loan
Property, except where such release or threatened release has not had and
cannot reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect on FFB. To the best knowledge of FFB,
prior to the period of (i) FFB's or any of its Subsidiaries' ownership or
operation of any of their respective current properties, (ii) FFB's or any
of its Subsidiaries' participation in the management of any Participation
Facility, or (iii) FFB's or any of its Subsidiaries' holding of a security
interest in a Loan Property, there was no release or threatened release of
Hazardous Material or petroleum or petroleum products in, on, under or
affecting any such property, Participation Facility or Loan Property,
except where such release has not had and cannot be reasonably expected to
have, either individually or in the aggregate, a Material Adverse Effect on
FFB; and
(d) The following definitions apply for purposes of this Section
3.20: (i) "Loan Property" means any property in which FFB or any of its
Subsidiaries holds a security interest, and, where required by the context,
said term means the owner or operator of such property; (ii) "Participation
Facility" means any facility in which FFB or any of its Subsidiaries
participates in the management and, where required by the context, said
term means the owner or operator of such property; and (iii) "Hazardous
Material" means any pollutant, contaminant, waste or hazardous or toxic
substance.
3.21. Allowance for Loan Losses. To the best of FFB's knowledge,
the allowance for loan losses (the "Allowance") shown on the consolidated
statement of condition of FFB and its Subsidiaries as of September 30,
1995, and the Allowance shown on the consolidated statement of condition of
FFB and its Subsidiaries, as of dates subsequent to the execution of this
Agreement will be, in each case as of the dates thereof, adequate to
provide for losses relating to or inherent in the loan and lease portfolios
(including accrued interest receivable) of FFB and its Subsidiaries; other
extensions of credit (including letters of credit and commitments to make
loans or extend credit) by FFB and its Subsidiaries; real estate owned by
FFB and its Subsidiaries; and the off balance sheet exposures of FFB and
its Subsidiaries.
3.22. Properties. The FFB Disclosure Schedule sets forth a list of
all real property owned by FFB and its Subsidiaries and except as set forth
in Section 3.22 of the FFB Disclosure Schedule, and except for Liens
arising in the ordinary course of business after the date hereof, FFB and
its Subsidiaries have good and marketable title, free and clear of all
Liens that are material to the financial condition of FFB and its
Subsidiaries on a consolidated basis, to all their material properties and
assets either tangible or intangible, real, personal or mixed, reflected in
the financial statements of FFB as being owned by FFB and its Subsidiaries
as of the date thereof. All buildings, and all fixtures, equipment and
other property and assets which are material to its business on a
consolidated basis, held under leases or subleases by either of FFB or its
Subsidiaries are held under valid instruments enforceable in accordance
with their respective terms. Substantially all of FFB's and its Subsid
iaries' equipment in regular use has been well maintained and is in good
serviceable condition, reasonable wear and tear excepted. "Lien" shall
mean any mortgage, lien, security, interest, pledge, hypothecation,
encumbrance, restriction, reservation, encroachment, infringement,
easement, conditional sale agreement, title retention or other security
arrangement, default of title, adverse right or interest, charge or claim
of any nature whatsoever of, on or with respect to, any property or
property interest, other than (i) Liens for current property taxes not yet
due and payable, (ii) for FFSB, pledges to secure deposits and other Liens
incurred in the ordinary course of the banking business, and (iii) Liens
that would not have a Material Adverse Effect on FFB.
3.23. Insurance. FFB and its Subsidiaries are presently insured,
and since January 1, 1992 have been insured, for reasonable amounts against
such risks as companies engaged in a similar business would, in accordance
with good business practice, customarily be insured. The policies of fire,
theft, liability (including, without limitation, directors' and officers'
liability insurance) and other insurance maintained with respect to other
assets or businesses of FFB and its Subsidiaries provide adequate coverage
against all pending or threatened claims, and the fidelity bonds in effect
as to which any of FFB or its Subsidiaries is a named insured are
sufficient for their purpose, except where the failure to have such
coverage would not have a Material Adverse Effect on FFB.
3.24. Material Interests of Certain Persons. Except as set forth in
Section 3.24 of the FFB Disclosure Schedule, no officer or director of
FFB, or any "associate" (as such term is defined in Rule 14a-1 under the
Exchange Act) of any such officer or director, has any material interest in
any FFB Contract or property (real or personal), tangible or intangible,
used in or pertaining to the business of FFB or its Subsidiaries.
3.25. Statements True and Correct. No written statement,
certificate, instrument or other writing furnished or to be furnished by
FFB to CCBG pursuant to this Agreement or any other document, agreement or
instrument referred to herein, when considered as a whole, contains or will
contain any untrue statement of material fact or will omit to state a
material fact necessary to make the statements made therein, in light of
the circumstances under which they were made, not misleading. None of the
information supplied or to be supplied by FFB for inclusion in the Proxy
Statement or any other documents to be filed with the SEC or any other
Regulatory Agency in connection with the transactions contemplated hereby,
will, at the respective times such documents are filed, and, with respect
to the Proxy Statement, when first mailed to the stockholders of FFB, 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 mislead
ing, or in the case of the Proxy Statement or any amendment thereof or
supplement thereto, at the time of the Stockholders Meeting, be false or
misleading with respect to any material fact, or omit to state any material
fact necessary to correct any statement in any earlier communication with
respect to the solicitation of any proxy for the Stockholders Meeting. All
documents that FFB is responsible for filing with any Regulatory Agency in
connection with the transactions contemplated hereby will comply as to form
in all material respects with the provisions of applicable laws, rules and
regulations.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF CCBG
CCBG hereby represents and warrants to FFB as follows:
4.1. Corporate Organization.
(a) CCBG is a corporation duly organized, validly existing and in
good standing under the laws of the State of Florida. CCBG has the
corporate power and authority to own or lease all of its properties and
assets and to carry on its business as it is now being conducted, and is
duly licensed or qualified to do business in each jurisdiction in which the
nature of the business conducted by it or the character or location of the
properties and assets owned or leased by it makes such licensing or
qualification necessary, except where the failure to be so licensed or
qualified would not have a material adverse effect on CCBG's ability to
consummate the transactions contemplated hereby. CCBG is duly registered
as a bank holding company under the BHCA.
(b) Upon its formation, Merger Sub will be a corporation duly
organized, validly existing and in good standing under the laws of the
State of Florida.
(c) CCB is a bank duly organized, validly existing and in good
standing under the laws of the State of Florida.
4.2. Authority; No Violation.
(a) CCBG has full corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly and validly approved
by the Board of Directors of CCBG, and no other corporate proceedings on
the part of CCBG are necessary to consummate the transactions contemplated
hereby. This Agreement has been duly and validly executed and delivered by
CCBG and (assuming due authorization, execution and delivery by FFB)
constitutes a valid and binding obligation of CCBG, enforceable against
CCBG in accordance with its terms, except as enforcement may be limited by
general principles of equity whether applied in a court of law or a court
of equity and by bankruptcy, insolvency and similar laws affecting
creditors' rights and remedies generally.
(b) Upon its formation, Merger Sub will have full corporate power
and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby will
be duly and validly approved by the Board of Directors of Merger Sub and by
CCBG as the sole stockholder of Merger Sub, and, upon the obtaining of such
approvals, no other corporate proceedings on the part of Merger Sub will be
necessary to consummate the transactions contemplated hereby. This Agree
ment, upon execution and delivery by Merger Sub, will be duly and validly
executed and delivered by Merger Sub and will (assuming due authorization,
execution and delivery by FFB) constitute a valid and binding obligation of
Merger Sub, enforceable against Merger Sub in accordance with its terms,
except as enforcement may be limited by general principles of equity
whether applied in a court of law or a court of equity and by bankruptcy,
insolvency and similar laws affecting creditors' rights and remedies
generally.
(c) CCB has full corporate power and authority to execute and
deliver the Bank Merger Agreement and to consummate the transactions
contemplated thereby. The execution and delivery of the Bank Merger
Agreement and the consummation of the transactions contemplated thereby
will be duly and validly approved by the Board of Directors of CCB. Upon
the due and valid approval of the Bank Merger Agreement by CCBG as the sole
stockholder of CCB, and by the Board of Directors of CCB, no other
corporate proceedings on the part of CCB will be necessary to consummate
the transactions contemplated thereby. The Bank Merger Agreement, upon
execution and delivery by CCB, will be duly and validly executed and
delivered by CCB and will (assuming due authorization, execution and
delivery by CCB) constitute a valid and binding obligation of CCB,
enforceable against CCB in accordance with its terms, except as enforcement
may be limited by general principles of equity whether applied in a court
of law or a court of equity and by bankruptcy, insolvency and similar laws
affecting creditors' rights and remedies generally.
(d) Neither the execution and delivery of this Agreement by CCBG or
Merger Sub or the Bank Merger Agreement by CCB, nor the consummation by
CCBG, Merger Sub or CCB, as the case may be, of the transactions
contemplated hereby or thereby, nor compliance by CCBG, Merger Sub or CCB,
as the case may be, with any of the terms or provisions hereof or thereof,
will (i) violate any provision of the Articles of Incorporation or Bylaws
of CCBG, or the articles of incorporation or bylaws or similar governing
documents of any of its Subsidiaries or (ii) assuming that the consents and
approvals referred to in Section 4.3 are duly obtained, (x) violate any
statute, code, ordinance, rule, regulation, judgment, order, writ, decree
or injunction applicable to CCBG or any of its Subsidiaries or any of their
respective properties or assets, or (y) violate, conflict with, result in a
breach of any provision of or the loss of any benefit under, constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, result in the termination of or a right of
termination or cancellation under; accelerate the performance required by,
or result in the creation of any Lien upon any of the respective properties
or assets of CCBG or any of its Subsidiaries under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, deed of
trust, license, lease, agreement or other instrument or obligation to which
CCBG or any of its Subsidiaries is a party, or by which they or any of
their respective properties or assets may be bound or affected, except (in
the case of clause (y) above) for such violations, conflicts, breaches or
defaults which either individually or in the aggregate will not have or be
reasonably likely to have a material adverse effect on CCBG's ability to
consummate the transactions contemplated hereby or CCB's ability to
consummate the transactions contemplated by the Bank Merger Agreement.
4.3. Consents and Approvals. Except for (a) the filing of
applications and notices, as applicable, with the Federal Reserve Board
under the BHCA, the Oakar Amendment to the Federal Deposit Insurance Act
and the Bank Merger Act, and approval of such applications and notices, (b)
the filing of applications or notices, as applicable, with the OTS and
approval of such applications or notices, (c) the filing of applications
with the Florida Banking Department and approval of such applications, (d)
the filing with the SEC of the Proxy Statement, (e) the filing of the
Articles of Merger with the Department of State pursuant to Section
607.1105 of the BCA, (f) the filings required by the Bank Merger Agreement
and (g) the filings required as a result of the formation of Merger Sub, no
consents or approvals of or filings or registrations with any Governmental
Entity or with any third party are necessary in connection with the
execution and delivery by CCBG and Merger Sub of this Agreement and the
consummation by CCBG and Merger Sub of the transactions contemplated hereby
and the execution and delivery by CCB of the Bank Merger Agreement and the
consummation by CCB of the transactions contemplated thereby, except for
such consents, approvals, filings or registration, the failure of which to
obtain or make would not have a material adverse effect on CCBG's or Merger
Sub's ability to consummate the transactions contemplated hereby or CCB's
ability to consummate the transactions contemplated thereby. As of the
date hereof, CCBG knows of no reason why the consents and approvals
referred to in this Section 4.3 should not be obtained on a timely basis
without the imposition of any condition of the type referred to in Section
7.2(g).
4.4. CCBG Information. The information relating to CCBG and its
Subsidiaries to be contained in the Proxy Statement, or in any other
document filed with any other Regulatory Agency in connection herewith,
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances in which they are made, not misleading. All documents that
CCBG and/or Merger Sub are responsible for filing with any Regulatory
Agency in connection with the transactions contemplated hereby will comply
as to form in all material respects with the provisions of applicable laws,
rules and regulations. Reports filed by CCBG with the SEC are true and
accurate in all material respects.
4.5. Financing. At the Effective Time, CCBG will have funds
sufficient to enable it to carry out its obligations under this Agreement.
4.6. Ownership of FFB Common Stock; Affiliates and Associates.
(a) Neither CCBG nor any of its affiliates or associates (as such
terms are defined under the Exchange Act), (i) beneficially owns, directly
or indirectly, or (ii) is a party to any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or disposing
of, in each case, any shares of capital stock of FFB (other than Trust
Account Shares and DPC Shares); and
(b) Neither CCBG nor any of its Subsidiaries is an "affiliate" (as
such term is defined in Section 607.0901 of the BCA), an "interested
shareholder" (as such term is defined in Section 607.0901 of the BCA) or
an "associate" (as such term is defined in Section 607.0901 of the BCA) of
FFB.
4.7. Legal Proceedings. As of the date of this Agreement, there are
no judicial, administrative, arbitral or other actions, suits, proceedings
or investigations pending or, to CCBG's knowledge, threatened, against CCBG
or any of its Subsidiaries which, if adversely determined, would materially
adversely affect the ability of CCBG or Merger Sub to consummate the
transactions contemplated hereby or CCB's ability to consummate the
transactions contemplated by the Bank Merger Agreement. As of the date of
this Agreement, to the best of CCBG's knowledge, there is no reasonable
basis for any other proceeding, claim, action or governmental investigation
against CCBG or any Subsidiary, except such proceedings, claims, actions or
governmental investigations which would not have a material adverse effect
on the ability of CCBG or Merger Sub to consummate the transactions
contemplated hereby or CCB's ability to consummate the transactions
contemplated by the Bank Merger Agreement.
4.8. Compliance with Applicable Laws, Agreements, etc.
(a) CCBG and each Subsidiary have all permits, licenses,
certificates of authority, orders and approvals of, and have made all
filings, applications and registrations with, federal, state, local and
foreign governmental or regulatory bodies that are required in order to
permit them to carry on their respective businesses as they are presently
being conducted and the absence of which could have a material adverse
effect on the ability of CCBG or Merger Sub to consummate the transactions
contemplated hereby or CCB's ability to consummate the transactions
contemplated by the Bank Merger Agreement; all such permits, licenses,
certificates of authority, orders and approvals are in full force and
effect, and to the knowledge of CCBG as of the date of this Agreement, no
suspension or cancellation of any of the same is threatened.
(b) Neither CCBG nor any Subsidiary is in violation of its
respective organization certificate or bylaws, or of any applicable
federal, state or local law or ordinance or any order, rule or regulation
of any federal, state, local or other governmental agency or body
(including, without limitation, all banking, securities, municipal
securities, safety, health, environmental, zoning, anti-discrimination,
antitrust, and wage and hour laws, ordinances, orders, rules and
regulations), or in default with respect to any order, writ, injunction or
decree of any court, or in default under any order, license, regulation or
demand of any governmental agency, any of which violations or defaults
could reasonably be expected to have a material adverse effect on the
ability of CCBG to consummate the transactions contemplated hereby; and
CCBG has not received notice of any violation of, and does not know of any
violation of, any of the above. Neither CCBG nor any Subsidiary is subject
to any regulatory or supervisory cease and desist order, agreement, written
directive, memorandum of understanding or written commitment that could
have a material adverse effect on the ability of CCBG or Merger Sub to
consummate the transactions contemplated hereby or on CCB's ability to
consummate the transactions contemplated by the Bank Merger Agreement; and
CCBG has not received notice of any violation of, and does not know of any
violation of, any of the above. Neither CCBG nor any Subsidiary is subject
to any regulatory or supervisory cease and desist order, agreement, written
directive, memorandum of understanding or written commitment that could
have a material adverse effect on the ability of CCBG or Merger Sub to
consummate the transactions contemplated hereby or on CCB's ability to
consummate the transactions contemplated by the Bank Merger Agreement and
neither of them has received any written communication requesting that
either of them enter into any of the foregoing.
4.9. Absence of Certain Changes of Events. Since September 30,
1995, no events involving CCBG or any of its Subsidiaries have occurred
which, individually or in the aggregate, materially impair the ability of
(i) CCBG or Merger Sub to perform its obligations under this Agreement or
to consummate any of the transactions contemplated hereby or (ii) CCB to
perform its obligations under the Bank Merger Agreement or to consummate
any of the transactions contemplated thereby.
4.10 Broker's and Advisor's Fees. Neither CCBG nor any Subsidiary of
CCBG nor any of their respective officers or directors has employed any
broker or finder or incurred any liability for any broker's fees,
commissions or finder's fees in connection with any of the transactions
contemplated by this Agreement or the Bank Merger Agreement except that
CCBG has engaged, and will pay a fee or commission to, M.A. Schapiro & Co.,
Inc.
ARTICLE V.
COVENANTS RELATING TO CONDUCT OF BUSINESS
5.1. Covenants of FFB. During the period from the date of this
Agreement and continuing until the Effective Time, except as expressly
contemplated or permitted by this Agreement or the Bank Merger Agreement or
with the prior written consent of CCBG, FFB shall, and shall cause its
Subsidiaries to, carry on their respective businesses in the ordinary
course consistent with past practice and consistent with prudent banking
practice. FFB will use its reasonable best efforts to (x) preserve its
business organization and that of its Subsidiaries intact, (y) keep
available to itself and CCBG the present services of the employees of FFB
and its Subsidiaries and (z) preserve for itself and CCBG the goodwill of
the customers of FFB and its Subsidiaries and others with whom business
relationships exist. Without limiting the generality of the foregoing and
except as set forth on Section 5.1 of the FFB Disclosure Schedule or as
otherwise contemplated by this Agreement or consented to in writing by
CCBG, FFB shall not, and shall not permit any of its Subsidiaries to:
(a) solely in the case of FFB, declare or pay any dividends on, or
make other distributions in respect of, any of its capital stock; provided,
however, that dividends declared prior to the date hereof and dividends
declared subsequent to the date hereof in each case not exceeding FFB's
regular quarterly cash dividend in an amount not to exceed $.15 per share
in any quarter may be paid;
(b) (i) split, combine or reclassify any shares of its capital stock
or issue or authorize or propose the issuance of any other securities in
respect of, in lieu of or in substitution for shares of its capital stock
except upon the exercise or fulfillment of rights or options issued or
existing pursuant to employee benefit plans, programs or arrangements, all
to the extent outstanding and in existence on the date of this Agreement
and in accordance with their present terms, or (ii) repurchase, redeem or
otherwise acquire (except for the acquisition of Trust Account Shares and
DPC Shares) any shares of the capital stock of FFB or any Subsidiary of
FFB, or any securities convertible into or exercisable for any shares of
the capital stock of FFB or any Subsidiary of FFB;
(c) issue, deliver or sell, or authorize or propose the issuance,
delivery or sale of, any shares of its capital stock or any securities
convertible into or exercisable for, or any rights, warrants or options to
acquire, any such shares, or enter into any agreement with respect to any
of the foregoing, other than (i) the issuance of FFB Common Stock pursuant
to stock options or similar rights to acquire FFB Common Stock granted
pursuant to the FFB Option Plan and outstanding prior to the date of this
Agreement, in each case in accordance with their present terms;
(d) amend its Articles of Incorporation, Bylaws or other similar
governing documents;
(e) authorize or permit any of its officers, directors, employees or
agents to directly or indirectly solicit, initiate or encourage any
inquiries relating to, or the making of any proposal which constitutes, a
"takeover proposal" (as defined below), or, except to the extent legally
required for the discharge of the fiduciary duties of the Board of
Directors of FFB, recommend or endorse any takeover proposal, or
participate in any discussions or negotiations, or provide third parties
with any nonpublic information, relating to any such inquiry or proposal or
otherwise facilitate any effort or attempt to make or implement a takeover
proposal; provided, however, that FFB may communicate information about any
such takeover proposal to its stockholders if, in the judgment of FFB's
Board of Directors, based upon the advice of outside counsel, such
communication is required under applicable law. FFB will immediately cease
and cause to be terminated any existing activities, discussions or
negotiations previously conducted with any parties other than CCBG with
respect to any of the foregoing. FFB will take all actions necessary or
advisable to inform the appropriate individuals or entities referred to in
the first sentence hereof of the obligations undertaken in this Section
5.1(e). FFB will notify CCBG immediately if any such inquiries or takeover
proposals are received by, any such information is requested from, or any
such negotiations or discussions are sought to be initiated or continued
with, FFB, and FFB will immediately inform CCBG in writing of all of the
relevant details with respect to the foregoing. As used in this Agreement,
"takeover proposal" shall mean any tender or exchange offer, proposal for a
merger, consolidation or other business combination involving FFB or any
Subsidiary of FFB or any proposal or offer to acquire in any manner a
substantial equity interest in, or a substantial portion of the assets of,
FFB or any Subsidiary of FFB other than the transactions contemplated or
permitted by this Agreement and the Bank Merger Agreement;
(f) make any capital expenditures other than expenses which (i) are
made in the ordinary course of business or are necessary to maintain
existing assets in good repair and (ii) in any event are in an amount of no
more than $25,000 individually and $100,000 in the aggregate;
(g) enter into any new line of business;
(h) acquire or agree to acquire, by merging or consolidating with, or
by purchasing a substantial equity interest in or a substantial portion of
the assets of, or by any other manner, any business or any corporation,
partnership, association or other business organization or division thereof
or otherwise acquire any assets, which would be material, individually or
in the aggregate, to FFB, other than in connection with foreclosures,
settlements in lieu of foreclosure or troubled loan or debt restructurings
in the ordinary course of business consistent with prudent banking
practices;
(i) take any action that is intended or may reasonably be expected to
result in any of its representations and warranties set forth in this
Agreement being or becoming untrue in any material respect, or in any of
the conditions to the Merger set forth in Article VII not being satisfied,
or in a violation of any provision of this Agreement or the Bank Merger
Agreement, except, in every case, as may be required by applicable law;
(j) change its methods of accounting in effect as of September 30,
1995, except as required by changes in GAAP or regulatory accounting
principles as concurred to by FFB's independent auditors;
(k) (i) except as set forth in Section 5.1(k) of the FFB Disclosure
Schedule, as required by applicable law or to maintain qualification
pursuant to the Code, adopt, amend, renew or terminate any Plan or any
agreement, arrangement, plan or policy between FFB or any Subsidiary of FFB
and one or more of its current or former directors, officers or employees,
(ii) except for normal increases in the ordinary course of business
consistent with past practice or except as required by applicable law,
increase in any manner the compensation or fringe benefits of any director,
officer or employee or pay any benefit not required by any plan or agree
ment as in effect as of the date hereof (including, without limitation, the
granting of stock options, stock appreciation rights, restricted stock,
restricted stock units or performance units or shares) or (iii) increase
the number of employees employed as of the date of this Agreement, provided
that FFSB may employ an employee if necessary to operate its business in
the ordinary course consistent with past practice if the employment of such
employee is terminable by FFSB at will without liability, other than as
required by law;
(l) sell, lease, encumber, assign or otherwise dispose of, or agree
to sell, lease, encumber, assign or otherwise dispose of, any of its
assets, properties or other rights or agreements having a value in excess
of $100,000, other than investment securities held for sale and loans in
the ordinary course of business;
(m) other than in the ordinary course of business consistent with
past practice, incur any indebtedness for borrowed money, assume,
guarantee, endorse or otherwise as an accommodation become responsible for
the obligations of any other individual, corporation or other entity;
(n) file any application to relocate or terminate the operations of
any banking office of it or any of its Subsidiaries;
(o) commit any act or omission which constitutes a material breach or
default by FFB or any of its Subsidiaries under any Regulatory Agreement or
under any material contract or material license to which FFB or any of its
Subsidiaries is a party or by which any of them or their respective
properties is bound;
(p) make any equity investment or commitment to make such an
investment in real estate or in any real estate development project, other
than in connection with foreclosures, settlements in lieu of foreclosure or
troubled loan or debt restructurings in the ordinary course of business
consistent with past practice;
(q) create, renew, amend or terminate or give notice of a proposed
renewal, amendment or termination of, any material contract, agreement or
lease for goods, services or office space to which FFB or any of its
Subsidiaries is a party or by which FFB or any of its Subsidiaries or their
respective properties is bound;
(r) take any action which would cause the termination or cancellation
by the FDIC of insurance in respect of FFB's deposits; (s) purchase
any new investment securities without prior approval of CCBG (which
approval shall not be unreasonably withheld); or
(t) agree to do any of the foregoing.
ARTICLE VI.
ADDITIONAL AGREEMENTS
6.1. Regulatory Matters.
(a) FFB shall promptly prepare and file with the SEC the Proxy
Statement and upon clearance thereby shall thereafter mail the Proxy
Statement to its stockholders.
(b) The parties hereto shall cooperate with each other and use their
best efforts to promptly prepare and file all necessary documentation, to
effect all applications, notices, petitions and filings, and to obtain as
promptly as practicable all permits, consents, approvals and authorizations
of all third parties and Regulatory Agencies which are necessary or
advisable to consummate the transactions contemplated by this Agreement
(including without limitation the Merger and the Subsidiary Merger). FFB
and CCBG shall have the right to review in advance, and to the extent
practicable each will consult the other on, in each case subject to
applicable laws relating to the exchange of information, all the
information relating to FFB or CCBG, as the case may be, and any of their
respective Subsidiaries, which appear in any filing made with, or written
materials submitted to, any third party or any Regulatory Agency in
connection with the transactions contemplated by this Agreement, including,
without limitation, the Proxy Statement; provided, however, that nothing
contained herein shall be deemed to provide either party with a right to
review any information provided to any Regulatory Agency on a confidential
basis in connection with the transactions contemplated hereby. In
exercising the foregoing right, each of the parties hereto shall act
reasonably and as promptly as practicable. The parties hereto agree that
they will consult with each other with respect to the obtaining of all
permits, consents, approvals and authorizations of all third parties and
Regulatory Agencies necessary or advisable to consummate the transactions
contemplated by this Agreement and each party will keep the other apprised
of the status of matters relating to completion of the transactions
contemplated herein.
(c) CCBG and FFB shall, upon request, furnish each other with all
information concerning themselves, their Subsidiaries, directors, officers
and stockholders and such other matters as may be reasonably necessary or
advisable in connection with the Proxy Statement or any other statement,
filing, notice or application made by or on behalf of CCBG, FFB or any of
their respective Subsidiaries to any Governmental Entity in connection with
the Merger and the other transactions contemplated by this Agreement.
(d) CCBG and FFB shall promptly furnish each other with copies of
written communications received by CCBG or FFB, as the case may be, or any
of their respective Subsidiaries, Affiliates or Associates (as such terms
are defined in Rule 12b-2 under the Exchange Act as in effect on the date
of this Agreement) from, or delivered by any of the foregoing to, any
Regulatory Agency in respect of the transactions contemplated hereby.
6.2. Access to Information. Upon reasonable notice and subject to
applicable laws relating to the exchange of information, FFB shall, and
shall cause each of its Subsidiaries to, afford to the officers, employees,
accountants, counsel and other representatives of CCBG, access, during
normal business hours during the period prior to the Effective Time, to all
its properties, books, contracts, commitments, records, officers,
employees, accountants, counsel and other representatives and, during such
period, FFB shall, and shall cause its Subsidiaries to, make available to
CCBG (i) a copy of each report, schedule, registration statement and other
document filed or received by it during such period pursuant to the
requirements of Federal securities laws or Federal or state banking laws
(other than reports or documents which FFB is not permitted to disclose
under applicable law) and (ii) all other information under this Section 6.2
concerning its business, properties and personnel as CCBG may reasonably
request. Neither FFB nor any of its Subsidiaries shall be required to
provide access to or to disclose information where such access or
disclosure would violate or prejudice the rights of FFB's customers,
jeopardize any attorney-client privilege or contravene any law, rule,
regulation, order, judgment, decree, fiduciary duty or binding agreement
entered into prior to the date of this Agreement. The parties hereto will
make appropriate substitute disclosure arrangements under circumstances in
which the restrictions of the preceding sentence apply. CCBG will hold all
such information in confidence to the extent required by, and in accordance
with, the provisions of the confidentiality agreement, dated September 8,
1995, between CCBG and FFB (the "Confidentiality Agreement").
6.3. Stockholders Meeting. FFB shall take all steps necessary to duly
call, give notice of, convene and hold the Stockholders Meeting as soon as
is reasonably practicable after the date hereof for the purpose of voting
upon the approval of this Agreement and the consummation of the
transactions contemplated hereby. FFB will, through its Board of
Directors, except to the extent legally required (as determined based upon
the advice of outside counsel) for the discharge of the fiduciary duties of
such board, recommend to its respective stockholders approval of this
Agreement and the transactions contemplated hereby and such other matters
as may be submitted to its stockholders in connection with this Agreement.
6.4. Legal Conditions to Merger. Each of CCBG and FFB shall, and
shall cause its Subsidiaries to, use their reasonable best efforts (a) to
take, or cause to be taken, all actions necessary, proper or advisable to
comply promptly with all legal requirements which may be imposed on such
party or its Subsidiaries with respect to the Merger or the Subsidiary
Merger, including executing the Articles of Merger and similar
documentation with respect to the Subsidiary Merger and filing such
documentation with the appropriate Regulatory Agency or Governmental
Entity, and, subject to the conditions set forth in Article VII hereof, to
consummate the transactions contemplated by this Agreement and the
Subsidiary Merger Agreement and (b) to obtain (and to cooperate with the
other party to obtain) any consent, authorization, order or approval of, or
any exemption by, any Regulatory Agency, Governmental Entity and any other
third party which is required to be obtained by FFB or CCBG or any of their
respective Subsidiaries in connection with the Merger or the Subsidiary
Merger and the other transactions contemplated by this Agreement, and to
comply with the terms and conditions of such consent, authorization, order
or approval; provided, however, that neither CCBG nor FFB shall be
obligated to take any action pursuant to the foregoing if the taking of
such action or such compliance or the obtaining of such consent,
authorization, order or approval constitutes, or is likely, in the
reasonable opinion of CCBG, to result in the imposition of, or the
compliance with, a Burdensome Condition (as defined in Section 7.2(g)
below).
6.5. Advice of Changes. FFB shall promptly advise CCBG of any change
or event having a Material Adverse Effect on FFB or which FFB believes
would or would be reasonably likely to cause or constitute a material
breach of any of its representations, warranties or covenants contained
herein. From time to time prior to the Effective Time (and on the date
prior to the Closing Date), FFB will promptly supplement or amend the FFB
Disclosure Schedule delivered to CCBG in connection with the execution of
this Agreement to reflect any matter which, if existing, occurring or known
at the date of this Agreement, would have been required to be set forth or
described in such Disclosure Schedule or which is necessary to correct any
information in such Disclosure Schedule which has been rendered inaccurate
thereby. No supplement or amendment to the FFB Disclosure Schedule shall
have any effect for the purpose of determining satisfaction of the
conditions set forth in Section 7.2(a) hereof or the compliance by FFB with
the covenants and agreements made by it herein.
6.6. Current Information. During the period from the date of this
Agreement to the Effective Time, FFB will make available one or more of its
designated representatives to confer on a regular and frequent basis (not
less than monthly) with representatives of CCBG and to report the general
status of the ongoing operations of FFB and its Subsidiaries. As soon as
reasonably available, each month FFB will deliver to CCBG its monthly Board
report which will include financial information and major activities of
FFB. FFB will promptly notify CCBG of any material change in the normal
course of business or in the operation of the properties of FFB or any of
its Subsidiaries and of any governmental complaints, investigations or
hearings (or communications indicating that the same may be contemplated),
or the institution or the threat of significant litigation involving FFB or
any of its Subsidiaries, and will keep CCBG fully informed of such events.
6.7. Employee Benefit Plans; Severance and Retention Plans.
(a) CCBG agrees to use its best efforts to provide to all eligible
employees of FFSB who remain employees of CCB following the Subsidiary
Merger ("Continuing Employees") employee welfare and pension benefits
substantially equivalent (in the aggregate) to those uniformly provided to
employees of CCB from time to time; provided, however, that CCB shall not
be required to give credit to any such Continuing Employees in respect of
past service with FFSB prior to the Subsidiary Merger for any purposes
under any employee benefit plan or arrangement of CCB, except for purposes
of eligibility and participation (but not for purposes of vesting or
benefit accrual) in CCB's pension and flexible benefits plans and for
purposes of determining vacation benefits under CCB's vacation plan. CCBG
shall use its best efforts to ensure that any Continuing Employees and
their eligible dependents who have coverage under FFSB's existing medical
plan will not be subject to any preexisting condition requirement under
CCB's medical insurance plan, except to the extent that such Continuing
Employees and eligible dependents are currently subject to any such
preexisting condition.
(b) CCBG shall honor, or shall cause the Surviving Corporation to
honor, the Employment Agreements ("Employment Agreements") among FFB, FFSB
and each of Earlene U. Wheeler, G. Matthew Brown and Leonard R. Herndon
(such persons referred to herein as "Covered Employees"), in accordance
with their terms, provided that nothing herein shall preclude the
termination of any Covered Employee at or after the Effective Time. The
provisions of this Section 6.7(b) are intended to be for the benefit of,
and shall be enforceable by, the Covered Employees and his or her heirs and
representatives.
(c) CCBG agrees to honor the terms of any severance and retention
plans of FFB as described in the FFB Disclosure Schedule. The provisions
of this Section 6.7(c) are intended to be for the benefit of, and shall be
enforceable by, each participant in such severance and retention plan.
(d) Upon the merger of FFB's defined benefit pension plan and 401(k)
defined contribution plan (the "FFB Retirement Plans") into CCBG's
retirement plans, the aggregate accrued benefit immediately following the
merger of such plans of each participant in the CCBG retirement plans who
was an employee of FFB or its subsidiaries shall be no less than the
aggregate accrued benefit of each such participant in the FFB Retirement
Plans immediately prior to the merger of such plans. The provisions of
this Section 6.7(d) are intended to be for the benefit of, and shall be
enforceable by, each participant in the FFB Retirement Plans.
6.8. Indemnification, Insurance.
(a) Following the Effective Time, CCBG shall indemnify, defend and
hold harmless each person who is or was prior to Effective Time a director,
officer, employee or agent of FFB or its Subsidiaries (each, an
"Indemnified Party") against all losses, expenses, claims, damages or
liabilities arising out of actions or omissions occurring on or prior to
the Effective Time (including, without limitation, the transactions
contemplated by this Agreement) to the full extent provided under Florida
law and the Articles of Incorporation and Bylaws of FFB as in effect on the
date hereof, including provisions relating to advances of expenses incurred
in the defense of any action or suit, to the extent any such provisions
are, at the time indemnification pursuant to this Section 6.8(a) is sought,
permitted under Florida law. Any Indemnified Party wishing to claim
indemnification under this Section 6.8, upon learning of any such claim,
action, suit, proceeding or investigation, shall notify CCBG thereof,
provided that the failure to so notify shall not affect the obligations of
CCBG under this Section 6.8 except to the extent such failure to notify
materially prejudices CCBG. CCBG's obligations under this Section 6.8(a)
shall continue in full force and effect for a period of four (4) years from
the Effective Time; provided, however, that all rights to indemnification
in respect of any claim (a "Claim") asserted or made within such period
shall continue until the final disposition of such Claim.
(b) In connection with its indemnification obligations hereunder,
CCBG shall have the right to assume the defense of any Claim and upon such
assumption CCBG shall not be liable to any Indemnified Party for any legal
expenses of other counsel or any other expenses subsequently incurred by
any Indemnified Party in connection with the defense thereof, except that
if CCBG elects not to assume such defense or counsel for the Indemnified
Parties reasonably advises the Indemnified Parties that there are issues
which raise conflicts of interests between CCBG and the Indemnified
Parties, the Indemnified Parties may retain counsel reasonably satisfactory
to them after consultation with CCBG, and CCBG shall pay the reasonable
fees and expenses of such counsel for the Indemnified Parties. CCBG shall
be obligated pursuant to this paragraph to pay for only one firm of counsel
for all Indemnified Parties. CCBG shall not be liable for any settlement
effected without its prior written consent (which consent shall not be
unreasonably withheld).
(c) CCBG shall maintain FFB's existing directors and officers
liability insurance policy (or a policy providing coverage on substantially
the same terms and conditions) for acts or omissions occurring prior to the
Effective Time by persons who are currently covered by such insurance
policy maintained by FFB for a period of two years following the Effective
Time, provided, however, that CCBG shall not be obligated to pay premiums
to maintain such insurance, on a per annum basis, in excess of 125% of the
amount of annual premiums paid as of the date of renewal of such insurance
coverage. If the annual premiums of such insurance would exceed such
amount, CCBG shall use its best efforts to provide such level of insurance
having the coverage described above as can be obtained for an annual
premium equal to such maximum amount.
(d) The provisions of this Section 6.8 are intended to be for the
benefit of, and shall be enforceable by, each Indemnified Party and his or
her heirs and representatives.
6.9. Subsequent Interim and Annual Financial Statements. As soon as
reasonably available, but in no event more than forty-five (45) days after
the end of each fiscal quarter ending after the date of this Agreement, FFB
will deliver to CCBG its Quarterly Report on Form 10-Q as filed with the
SEC under the Exchange Act. As soon as reasonably available, but in no
event later than December 31, 1995, FFB will deliver to CCBG its Annual
Report on Form 10-K as filed with the SEC under the Exchange Act for the
fiscal year ended September 30, 1995.
6.10. Additional Agreements. In case at any time after the Effective
Time any further action is necessary or desirable to carry out the purposes
of this Agreement or the Bank Merger Agreement, or to vest the Surviving
Corporation or CCB with full title to all properties, assets, rights,
approvals, immunities and franchises of any of the parties to the Merger or
the Subsidiary Merger, the proper officers and directors of each party to
this Agreement and their respective Subsidiaries shall take all such
necessary action as may be reasonably requested by, and at the sole expense
of, CCBG.
6.11. Certain Revaluations, Changes and Adjustments. On the business
day prior to the Effective Time, FFB shall, consistent with GAAP, make such
additional accounting entries, accruals and adjustments as may be requested
by CCBG to conform FFB's accounting practices and methods to those of CCBG
(as such practices and methods are to be applied to FFB from and after the
Closing Date) and CCBG's plan with respect to the conduct of FFB's business
following the Merger and otherwise to reflect Merger-related expenses and
costs incurred by FFB; provided, however, that FFB shall not be obligated
to take any such action pursuant to this Section 6.11 unless and until (i)
CCBG specifies its request in a writing delivered to FFB, and acknowledges
that all conditions to the obligations of CCBG and Merger Sub to consummate
the Merger set forth in Sections 7.1 and 7.2 (other than the expiration of
any required statutory waiting periods) have been waived (if available) or
satisfied and (ii) FFB acknowledges that all conditions to the obligation
of FFB to consummate the Merger set forth in Sections 7.1 and 7.3 hereof
(other than the expiration of any required statutory waiting periods) have
been waived (if available) or satisfied. FFB shall not be required to take
any action pursuant to this Section 6.11 that is not consistent with GAAP
or any requirement applicable to FFB or FFSB by any bank regulatory agency.
The representations, warranties and covenants of FFB contained in this
Agreement shall not be deemed to be untrue or breached in any respect for
any purpose as a consequence of any action undertaken on account of this
Section 6.11 and the actions taken pursuant to this Section 6.11 shall not
constitute grounds for termination of the Agreement by CCBG.
6.12. Execution and Authorization of Bank Merger Agreement. As soon
as reasonably practicable after the date of this Agreement, (a) CCBG shall
(i) cause the Board of Directors of CCB to approve the Bank Merger
Agreement, (ii) cause CCB to execute and deliver the Bank Merger Agreement,
and (iii) approve the Bank Merger Agreement as the sole stockholder of CCB,
and (b) FFB shall (i) cause the Board of Directors of FFSB to approve the
Bank Merger Agreement, (ii) cause FFSB to execute and deliver the Bank
Merger Agreement, and (iii) approve the Bank Merger Agreement as the sole
stockholder of FFSB. The Bank Merger Agreement shall contain terms that
are normal and customary in light of the transactions contemplated hereby
and such additional terms as are necessary to carry out the purposes of
this Agreement.
6.13. Resignations. FFB shall use its reasonable best efforts to
cause its directors to deliver to CCBG at or prior to the Effective Time
duly signed resignations which shall be effective as of the Effective Time.
6.14. Merger Sub. CCBG shall cause Merger Sub to be duly organized as
a wholly owned subsidiary of CCBG and to execute and deliver this Agreement
and take all necessary action to complete the transactions contemplated
hereby, subject to the terms and conditions hereof.
6.15. Advisory Board. CCBG shall designate the Board of Directors and
the advisory board of directors of FFB as an advisory board of directors of
the CCB for at least one year after the Effective Time.
6.16 Dissenters' Rights Process. FFB will give to CCBG prompt notice
of any written objections or exercises of dissenters' rights received by
FFB from any stockholder with respect to the Merger. CCBG will have the
right to participate in all appraisal negotiations and proceedings. FFB
will not make any payment with respect to, or settle or offer to settle any
exercise of, dissenters' rights without CCBG's prior written consent (which
shall not be unreasonably withheld).
ARTICLE VII.
CONDITIONS PRECEDENT
7.1. Conditions to Each Party's Obligation to Effect the Merger. The
respective obligation of each party to effect the Merger shall be subject
to the satisfaction at or prior to the Effective Time of the following
conditions:
(a) Stockholder Approval. This Agreement shall have been approved
and adopted by the affirmative vote of the holders of at least a majority
of the outstanding shares of FFB Common Stock.
(b) Other Approvals. All regulatory approvals required to consummate
the transactions contemplated by this Agreement and the Bank Merger
Agreement (including without limitation, the Merger and the Subsidiary
Merger) shall have been obtained and shall remain in full force and effect
and all statutory waiting periods in respect thereof shall have expired
(all such approvals and the expiration of all such waiting periods being
referred to herein as the "Requisite Regulatory Approvals").
(c) No Injunctions or Restraints; Illegality. No order, injunction
or decree issued by any court or agency of competent jurisdiction or other
legal restraint or prohibition (an "Injunction") preventing the
consummation of the Merger, the Subsidiary Merger or any of the other
transactions contemplated by this Agreement shall be in effect. No
statute, rule, regulation, order, injunction or decree shall have been
enacted, entered, promulgated or enforced by any Governmental Entity which
prohibits, restricts or makes illegal consummation of the Merger or the
Subsidiary Merger.
7.2. Conditions to Obligations of CCBG and Merger Sub. The
obligations of CCBG and Merger Sub to effect the Merger are also subject to
the satisfaction or waiver by CCBG at or prior to the Effective Time of the
following conditions:
(a) Representations and Warranties. (i) The representations and
warranties of FFB set forth in this Agreement shall be true and correct as
of the date of this Agreement and (except to the extent such
representations and warranties speak as of an earlier date) as of the
Closing Date (as hereafter defined) as though made on and as of the Closing
Date, provided, however, that notwithstanding anything herein to the
contrary, this Section 7.2(a) shall be deemed to have been satisfied even
if such representations or warranties are not true and correct unless the
failure of any of the representations and warranties (without regard to the
knowledge or materiality qualifications specified in Article III other than
in the definition of Material Adverse Effect in Section 3.1(a)) to be so
true and correct would have, individually or in the aggregate, a Material
Adverse Effect on FFB or materially impair the ability of FFB or FFSB to
consummate the transactions contemplated hereby. CCBG shall have received
a certificate signed on behalf of FFB by the Chief Executive Officer of FFB
to the foregoing effect.
(b) Performance of Obligations of FFB. FFB shall have performed in
all material respects all obligations required to be performed by it under
this Agreement at or prior to the Closing Date, and CCBG shall have
received a certificate signed on behalf of FFB by the Chief Executive
Officer of FFB to such effect.
(c) Consents Under Agreements. The consent, approval or waiver of
each person (other than the Requisite Regulatory Approvals referred to in
Section 7.1(b)) whose consent or approval shall be required in order to
permit the succession by the Surviving Corporation or CCB pursuant to the
Merger or the Subsidiary Merger, as the case may be, to any obligation,
right or interest of FFB or any Subsidiary of FFB under any loan or credit
agreement, note, mortgage, indenture, lease, license or other agreement or
instrument shall have been obtained, except where the failure to obtain
such consent, approval or waiver would not so materially adversely affect
the economic or business benefits of the transactions contemplated by this
Agreement to CCBG as to render inadvisable, in the reasonable judgment of
CCBG, the consummation of the Merger.
(d) No Pending Governmental Actions. No proceeding initiated by any
Governmental Entity seeking an Injunction shall be pending.
(e) Legal Opinion. CCBG shall have received the opinion of counsel
to FFB, dated the Closing Date, as to the matters set forth on Exhibit
7.2(e). As to any matter in such opinion which involves matters of fact or
matters relating to laws other than Federal securities or banking law, such
counsel may rely upon the certificates of officers and directors of FFB and
of public officials and opinions of local counsel, reasonably acceptable to
CCBG, provided a copy of such reliance opinion shall be attached as an
exhibit to the opinion of such counsel.
(f) Accountant's Letter. FFB shall have caused to be delivered to
CCBG letters from Hacker, Johnson, Cohen & Grieb, independent public
accountants with respect to FFB, dated the date on which the Proxy
Statement shall have been first sent to stockholders of FFB, and dated the
date of the Closing, and addressed to CCBG, with respect to FFB's
consolidated financial position and results of operations, which letters
shall be based upon agreed upon procedures to be specified by CCBG, which
procedures shall be consistent with applicable professional standards for
letters delivered by independent accountants in connection with comparable
transactions.
(g) No Burdensome Condition. None of the Requisite Regulatory
Approvals shall impose any term, condition or restriction upon CCBG, FFB,
the Surviving Corporation or any of their respective Subsidiaries that
CCBG, in good faith, reasonably determines would so materially adversely
affect the economic or business benefits of the transactions contemplated
by this Agreement to CCBG as to render inadvisable in the reasonable good
faith judgment of CCBG the consummation of the Merger (a "Burdensome
Condition").
(h) Financial Condition. As of the Effective Time, FFB shall have
(a) consolidated stockholders' equity of not less than $14,900,000,
exclusive of (i) Transaction Costs not in excess of $500,000, (ii) any
accruals, reserves or expenses required by Section 6.11 of this Agreement
and (iii) the cost of any special deposit insurance premium assessed by the
FDIC with respect to the recapitalization of the SAIF, and (b) an Allowance
of not less than the greater of $1,427,000 or .8% of gross loans including
loans held for sale.
(i) Voting Agreements. CCBG shall have received on the date of this
Agreement a written agreement from each executive officer or director of
FFB or FFSB to vote his or her shares of FFB Common Stock in favor of the
Merger in the form attached hereto as Exhibit 7.2(j).
(j) Dissenting Shares. The number of shares of FFB Common Stock the
holders of which shall have perfected their dissenter's rights under
Section 607.1320 of the BCA shall not exceed 10% of the number of shares of
FFB Common Stock issued and outstanding immediately prior to the Effective
Time.
7.3. Conditions to Obligations of FFB. The obligation of FFB to
effect the Merger is also subject to the satisfaction or waiver by FFB at
or prior to the Effective Time of the following conditions:
(a) Representations and Warranties. The representations and
warranties of CCBG set forth in this Agreement shall be true and correct as
of the date of this Agreement and (except to the extent such
representations and warranties speak as of an earlier date) as of the
Closing Date as though made on and as of the Closing Date; provided,
however, that for purposes of determining the satisfaction of this
condition, such representations and warranties shall be deemed to be true
and correct unless the failure or failures of such representations and
warranties to be so true and correct, individually or in the aggregate,
will materially impair the ability of CCBG, Merger Sub or CCB to consummate
the transactions contemplated hereby. FFB shall have received a
certificate signed on behalf of CCBG by the Chief Executive Officer and the
Chief Financial Officer (or other executive officers reasonably acceptable
to FFB) of CCBG to the foregoing effect.
(b) Performance of Obligations of CCBG. CCBG shall have performed in
all material respects all obligations required to be performed by it under
this Agreement at or prior to the Closing Date, and FFB shall have received
a certificate signed on behalf of CCBG by the Chief Executive Officer and
the Chief Financial Officer (or other executive officers reasonably
acceptable to FFB) of CCBG to such effect.
(c) No Pending Governmental Actions. No proceeding initiated by any
Governmental Entity seeking an Injunction shall be pending.
(d) Legal Opinion. FFB shall have received the opinion of Gunster,
Yoakley, Valdes-Fauli & Stewart, P.A., dated the Closing Date, as to the
matters set forth on Exhibit 7.3(d). As to any matter in such opinion
which involves matters of fact or matters relating to laws other than
Federal securities law or Florida law, such counsel may rely upon the
certificates of officers and directors of CCBG and of public officials.
ARTICLE VIII.
TERMINATION AND AMENDMENT
8.1. Termination. This Agreement may be terminated at any time prior
to the Effective Time, whether before or after approval of the matters
presented in connection with the Merger by the stockholders of FFB:
(a) by mutual consent of FFB and CCBG in a written instrument;
(b) by either CCBG or FFB upon written notice to the other party if
any Requisite Regulatory Approval is denied or is approved in a manner
which does not satisfy the requirements of Section 7.2(g), and the time
period for appeals and requests for reconsideration has expired;
(c) by either CCBG or FFB if the Merger shall not have been
consummated on or before November 30, 1996, unless the failure of the
Effective Time to occur by such date shall be due to the failure of the
party seeking to terminate this Agreement to perform or observe the
covenants and agreements of such party set forth herein;
(d) by either CCBG or FFB (provided that FFB shall not be entitled to
terminate this Agreement pursuant to this paragraph (d) if it shall be in
material breach of any of its obligations under Section 6.3) if the
approval of the stockholders of FFB required for the consummation of the
Merger shall not have been obtained by reason of the failure to obtain the
required vote at a duly held meeting of such stockholders or at any
adjournment or postponement thereof;
(e) by either CCBG or FFB (provided that the terminating party is not
then in material breach of any representation, warranty, covenant or other
agreement contained herein) if there shall have been a material breach of
any of the representations or warranties set forth in this Agreement on the
part of the other party, which breach is not cured within 30 (thirty) days
following written notice to the party committing such breach, or which
breach, by its nature, cannot be cured prior to the Closing, unless such
breach is waived by the non-breaching party; provided, however, that
neither party shall have the right to terminate this Agreement pursuant to
this Section 8.1(e) unless the breach of representation or warranty,
together with all other such breaches, would entitle the party receiving
such representation not to consummate the transactions contemplated hereby
under Section 7.2(a) (in the case of a breach of representation or warranty
by FFB) or Section 7.3(a) (in the case of a breach of representation or
warranty by CCBG);
(f) by either CCBG or FFB (provided that the terminating party is not
then in material breach of any representation, warranty, covenant or other
agreement contained herein) if there shall have been a material breach of
any of the covenants or agreements set forth in this Agreement on the part
of the other party, which breach shall not have been cured within 30
(thirty) days following receipt by the breaching party of written notice of
such breach from the other party hereto; or
(g) by the Board of Directors of CCBG, at any time prior to the
seventh business day after execution of this Agreement in the event that
(i) the review by CCBG during such period of time in the areas of
environmental issues, auditor's work papers, tax returns and tax reporting
positions, employee benefit plan funding and compliance and employee
qualifications and availability causes the Board of Directors of CCBG to
determine, in its good faith judgment, that a fact or circumstance exists
or is reasonably likely to exist or result which materially and adversely
impacts the economic benefits to CCBG anticipated to be realized by CCBG
with respect to such areas so as to render inadvisable the consummation of
the Merger, or (ii) CCBG determines during such time period in its
reasonable good faith judgment that the allowance for credit losses
established by FFSB as of September 30, 1995 is inadequate by more than 25%
of the September 30, 1995 allowance established by FFSB based upon loan
grading and reserve methodologies utilized by CCB, or FFSB's credit
administration practices vary materially from accepted industry standards
such that they are either inadequate to reasonably achieve their intended
function or to permit a reasonably accurate assessment of the level of risk
inherent in FFSB's credit portfolio.
8.2. Effect of Termination; Expenses. In the event of termination of
this Agreement by either CCBG or FFB as provided in Section 8.1 this
Agreement shall forthwith become void and have no effect except (i) the
last sentence of Section 6.2 and Sections 9.2 and 9.3 shall survive any
termination of this Agreement, and (ii) that notwithstanding anything to
the contrary contained in this Agreement, no party shall be relieved or
released from any liabilities or damages arising out of its willful breach
of any provision of this Agreement.
8.3. Amendment. Subject to compliance with applicable law, this
Agreement may be amended by the parties hereto, by action taken or
authorized by their respective Board of Directors, at any time before or
after approval of the matters presented in connection with the Merger by
the stockholders of FFB; provided, however, that after any approval of the
transactions contemplated by this Agreement by FFB's stockholders, there
may not be, without further approval of such stockholders, any amendment of
this Agreement which reduces the amount or changes the form of the
consideration to be delivered to FFB's stockholders or the holders of FFB
Options hereunder. This Agreement may not be amended except by an instru
ment in writing signed on behalf of each of the parties hereto.
8.4. Execution; Waiver. At any time prior to the Effective Time, the
parties hereto, by action taken or authorized by their respective Board of
Directors, may, to the extent legally allowed, (a) extend the time for the
performance of any of the obligations or other acts of the other parties
hereto, (b) waive any inaccuracies in the representations and warranties
contained herein or in any document delivered pursuant hereto and (c) waive
compliance with any of the agreements or conditions contained herein. Any
agreement on the part of a party hereto to any such extension or waiver
shall be valid only if set forth in a written instrument signed on behalf
of such party, but such extension or waiver or failure to insist on strict
compliance with an obligation, covenant, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any subsequent or
other failure.
ARTICLE IX.
GENERAL PROVISIONS
9.1. Closing. Subject to the terms and conditions of this Agreement,
the closing of the Merger (the "Closing") will take place at 10:00 a.m. on
a date to be specified by the parties, which shall be the first day which
is (a) the first business day of a month and (b) at least two (2) business
days after the satisfaction or waiver (subject to applicable law) of the
latest to occur of the conditions set forth in Article VII hereof, other
than any such conditions relating to the delivery of opinions or officers'
certificates (the "Closing Date"), at the offices of CCBG unless another
time, date or place is agreed to in writing by the parties hereto.
9.2. Nonsurvival of Representations, Warranties and Agreements. None
of the representations, warranties, covenants and agreements in this
Agreement or in any instrument delivered pursuant to this Agreement shall
survive the Effective Time, except for those covenants and agreements
contained herein and therein which by their terms apply in whole or in part
after the Effective Time.
9.3. Expenses. All costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such expense provided, however, that in the event that,
following the public announcement of a takeover proposal (as defined in
Section 5.1(e) hereof), (x) FFB's stockholders fail to approve the Merger
at a duly held meeting of such stockholders or at any adjournment or
postponement thereof or (y) FFB fails to duly hold a meeting of its
stockholders for the purpose of voting on the Merger, then FFB will
promptly reimburse CCBG and its Subsidiaries out-of-pocket costs and
expenses (documented with reasonable specificity) incurred by CCBG or any
of its Subsidiaries in connection with entering into this Agreement and
carrying out any and all acts contemplated hereunder up to a maximum amount
of $200,000 and shall also promptly pay to CCBG a termination fee of
$1,000,000. The foregoing $1,000,000 termination fee will not be payable
in the event CCBG terminates this Agreement pursuant to Section 8.1(g).
9.4. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally, telecopied
(with confirmation), mailed by registered or certified mail (return receipt
requested) or delivered by an express courier (with confirmation) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(a) if to CCBG, to:
Capital City Bank Group, Inc.
217 North Monroe Street
Tallahassee, FL 32301
Fax: (904) 878-9121
Attn: William G. Smith, Jr., President
with a copy to:
Macfarlane, Ausley, Ferguson
& McMullen
227 South Calhoun Street
P.O. Box 391 (32302)
Tallahassee, FL 32301
Fax: (904) 222-7560
Attn: DuBose Ausley, Esq.
Timothy B. Elliott, Esq.
and with a copy to:
Gunster, Yoakley, Valdes-Fauli & Stewart, P.A.
Phillips Point, Suite 500 East
777 South Flagler Drive
P.O. Box 4587 (33402-4587)
West Palm Beach, FL 33401-6194
Fax: (407) 655-5677
Attn: Jeffrey A. Stoops, Esq.
(b) if to FFB, to:
First Financial Bancorp, Inc.
115 West Green Street
Perry, Florida 32347
Fax: (904) 386-6493
Attn: Earlene U. Wheeler, President
First Financial Bancorp, Inc.
115 West Green Street
Perry, Florida 32347
G. Matthew Brown
First Federal Bank Building
1301 Metropolitan Blvd.
Tallahassee, Florida 32308
9.5. Interpretation. When a reference is made in this Agreement to
Sections, Exhibits or Schedules, such reference shall be to a Section of or
Exhibit or Schedule to this Agreement unless otherwise indicated.
9.6. Counterparts. This Agreement may be executed in counterparts,
all of which shall be considered one and the same agreement and shall
become effective when counterparts have been signed by each of the parties
and delivered to the other parties, it being understood that all parties
need not sign the same counterpart.
9.7. Entire Agreement. This Agreement (including the documents and
the instruments referred to herein) constitutes the entire agreement and
supersedes all prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof, other than the
Confidentiality Agreement.
9.8. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Florida, without regard to any
applicable conflicts of law.
9.9. Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining
terms and provisions of this Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Agreement in any
other jurisdiction. If any provision of this Agreement is so broad as to
be unenforceable, the provision shall be interpreted to be only so broad as
is enforceable.
9.10. Publicity. Prior to the public dissemination of any press
release or other public disclosure of information about this Agreement, the
Merger or any other transaction contemplated hereby, the parties to this
Agreement shall mutually agree as to the form and substance of such release
or disclosure; provided, however, that nothing in this Section 9.10 shall
be deemed to prohibit any party from making disclosure which its counsel
deems necessary or advisable in order to satisfy such party's obligations
under applicable law.
9.11. Assignment; No Third Party Beneficiaries. Neither this
Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by any of the parties hereto (whether by operation of law or
otherwise) without the prior written consent of the other parties. Subject
to the preceding sentence, this Agreement will be binding upon, inure to
the benefit of and be enforceable by the parties and their respective
successors and assigns. Except as otherwise expressly provided herein,
this Agreement (including the documents and instruments referred to herein)
is not intended to confer upon any person other than the parties hereto any
rights or remedies hereunder.
9.12. Alternative Structure. Notwithstanding anything to the contrary
contained in this Agreement, prior to the Effective Time, CCBG shall be
entitled to revise the structure of the Merger and related transactions
provided that each of the transactions comprising such revised structure
shall (i) not change the amount or form of consideration to be received by
the stockholders of FFB and the holders of FFB Options, (ii) be capable of
consummation in as timely a manner as the structure contemplated herein and
(iii) not otherwise be prejudicial to the interests of the stockholders of
FFB. This Agreement and any related documents shall be appropriately
amended in order to reflect any such revised structure.
IN WITNESS WHEREOF, CCBG, Merger Sub and FFB have caused this
Agreement to be executed by their respective officers thereunto duly
authorized as of the date first above written.
CAPITAL CITY BANK GROUP, INC.
By ______________________________
Name: William G. Smith, Jr.
Title: President
Attest:
______________________________
Name:
FIRST FINANCIAL BANCORP, INC.
By ______________________________
Name: Earlene U. Wheeler
Title: President and Chief
Executive Officer
Attest:
______________________________
Name:
MERGER SUB [TO BE COMPLETED]
By ______________________________
Name:
Title:
Attest:
______________________________
Name:
H:\DATA\slw\CCBG\Dec6.AGT
Exhibit 22
(Letterhead: James D. A. Holley, Inc.)
Exhibit 23a
Report of Independent Accountants
Shareholders and Board of Directors
Capital City Bank Group, Inc.
Tallahassee, Florida
We have audited the accompanying consolidated statements of condition of
Capital City Bank Group, Inc., and subsidiaries as of December 31, 1993 and
1992, and the related statements of income, shareholders' equity, and cash flows
for each of the years in the three-year period ended December 31, 1993. These
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based
on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining on a test basis evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable basis for our
opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the consolidated financial position of Capital City Bank
Group, Inc., as of December 31, 1993 and 1992, and the results of its operations
and its cash flows for each of the years in the three-year period ended
December 31, 1993, in conformity with generally accepted accounting principles.
As discussed in Note 1 to the Financial Statements, Capital City Bank
Group, Inc., changed its method of accounting for income taxes in 1993.
/s/ JAMES D. A. HOLLEY & CO.
(Letterhead: Arthur Andersen LLP)
Exhibit 23b
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation of our reports included in this Form 10-K, into the Company's
previously filed Registration Statement File No. 33-60113 and 33-51649.
ARTHUR ANDERSEN LLP
Atlanta, GA
March 27, 1996
