<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 1, 1995
----------------
BANKERS FIRST CORPORATION
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(Exact name of registrant as specified in its charter)
Georgia 0-12120 58-1529166
---------------- ----------------- -------------------
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
One Tenth Street, Augusta, Georgia 30901
----------------------------------------------------------------
(Addresses, including zip codes, of principal executive offices)
(706) 849-3200
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(Registrant's telephone numbers, including area code)
<PAGE> 2
ITEM 5. OTHER EVENTS.
On October 31, 1995, Bankers First Corporation ("BFC"), SouthTrust
Corporation ("SouthTrust") and SouthTrust of Georgia, Inc. ("S-T Georgia")
entered into an Agreement and Plan of Merger (the "Agreement"), pursuant to
which BFC will be merged with and into S-T Georgia (the "Merger"). The Board
of Directors of BFC unanimously approved the Agreement and the transactions
contemplated thereby at a meeting held on October 31, 1995.
In accordance with the terms of the Agreement, each share of the $.01
par value common stock of BFC ("BFC Common Stock") outstanding immediately
prior to the effective time of the Merger (the "Effective Time") will be
converted into the right to receive 1.126 shares (the "Exchange Ratio") of the
common stock of SouthTrust ("SouthTrust Common Stock"). Each share of
SouthTrust Common Stock issued in connection with the Merger upon conversion of
BFC Common Stock will also be accompanied by a right to purchase preferred
stock of SouthTrust pursuant to that certain Rights Agreement between
SouthTrust and Mellon Bank, N.A., as rights agent. If the price of SouthTrust
Common Stock declines by a specified amount during a defined measuring period
prior to closing, there are circumstances in which BFC may give notice of
termination of the Agreement unless SouthTrust determines, in its discretion,
to increase the Exchange Ratio to eliminate BFC's right to terminate the
Agreement.
In addition, the Agreement contemplates that each of the stock options
and stock appreciation rights granted by BFC under its stock option and other
stock-based compensation plans will be converted into and become an option or
right to purchase shares of SouthTrust Common Stock or to receive cash in
accordance with the terms of the stock option or other plan under which such
option or right was issued and the agreement by which it is evidenced, except
that (i) the number of shares of SouthTrust Common Stock subject to each BFC
option or right shall be equal to the number of shares of BFC Common Stock
subject to such option or right multiplied by the Exchange Ratio, and (ii) the
exercise price per share of SouthTrust Common Stock purchasable thereunder or
upon which the amount of a cash payment is determined shall be that specified
in the BFC option or right divided by the Exchange Ratio.
The Merger is intended to constitute a tax-free transaction under the
Internal Revenue Code of 1986, as amended, and to be accounted for as a pooling
of interests.
Immediately after executing the Agreement, BFC and SouthTrust entered
into a Stock Option Agreement, pursuant to which BFC granted to SouthTrust an
option to purchase, under certain circumstances and subject to adjustment, up
to 942,854 shares of BFC Common Stock at a price of $29.00 per share (also
subject to adjustment) (the "SouthTrust Option"). The SouthTrust Option,
which, if exercised, would equal 19.9% of the outstanding shares of BFC Common
Stock before giving effect to the exercise of the SouthTrust Option, was
granted by BFC as a condition of and in consideration for SouthTrust's entering
into the Agreement. Under certain circumstances, BFC may be required to
repurchase the SouthTrust Option or the shares acquired pursuant to the
exercise of the SouthTrust Option.
The Agreement and the Merger will be submitted for approval at a
meeting of the shareholders of BFC. Prior to such meeting, SouthTrust will
file a registration statement with the Securities and Exchange Commission
registering under the Securities Act of 1933, as amended, the SouthTrust Common
Stock to be issued in exchange for the outstanding shares of BFC Common Stock
(the "Registration Statement"). Such shares of SouthTrust Common Stock will be
offered to the BFC shareholders pursuant to a prospectus that will also serve
as a proxy statement for the BFC shareholders' meeting.
Consummation of the Merger is subject to various conditions, including:
(i) receipt of approval by the shareholders of BFC of the Agreement and the
Merger, as required under applicable law; (ii) receipt of certain regulatory
approvals from the Board of Governors of the Federal Reserve System and various
other federal and state regulatory authorities; (iii) receipt of an opinion of
counsel as to the tax-free nature of certain aspects of the Merger; (iv)
receipt of letters from SouthTrust's and BFC's respective auditors as to the
availability of pooling-of-interests accounting treatment for the Merger, (v)
effectiveness of the Registration Statement and listing, subject to notice of
issuance, with the Nasdaq National Market of the SouthTrust Common Stock to be
issued in the Merger; and (vi) satisfaction of certain other conditions.
<PAGE> 3
For additional information regarding the Agreement and the Stock
Option Agreement, please refer to the copies of such documents, which are
incorporated herein by reference, included as Exhibits to this Current Report
on Form 8-K.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
C. Exhibits
99.1 Agreement and Plan of Merger, dated as of October 31, 1995,
by and between Bankers First Corporation, SouthTrust
Corporation and SouthTrust of Georgia, Inc. (including
exhibits thereto, other than the Stock Option Agreement,
which is included herein as Exhibit 99.2).
99.2 Stock Option Agreement, dated as of October 31, 1995,
issued by Bankers First Corporation to SouthTrust
Corporation.
99.3 Text of press release, dated October 31, 1995, issued by
Bankers First Corporation.
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BANKERS FIRST CORPORATION
(REGISTRANT)
/s/ H. M. Osteen, Jr.
----------------------
H. M. Osteen, Jr.
Chairman, President and Chief Executive Officer
Date: November 1, 1995
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INDEX TO EXHIBITS
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Sequential
Exhibit Page No.
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99.1 Agreement and Plan of Merger, dated as of October 31, 1995, by and between
Bankers First Corporation, SouthTrust Corporation and SouthTrust of
Georgia, Inc. (including exhibits thereto, other than the Stock Option
Agreement, which is included herein as Exhibit 99.2).
99.2 Stock Option Agreement, dated as of October 31, 1995, issued by Bankers
First Corporation to SouthTrust Corporation.
99.3 Text of press release, dated October 31, 1995, issued by Bankers First
Corporation.
</TABLE>
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Exhibit 99.1
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
BANKERS FIRST CORPORATION,
SOUTHTRUST CORPORATION
AND
SOUTHTRUST OF GEORGIA, INC.
DATED AS OF OCTOBER 31, 1995
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TABLE OF CONTENTS
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Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 1 - TRANSACTIONS AND TERMS OF MERGER . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Time and Place of Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Effective Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.4 Execution of Stock Option Agreement . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2 - TERMS OF MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.1 Charter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.2 Bylaws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.3 Directors and Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 3 - MANNER OF CONVERTING SHARES . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.1 Conversion of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.2 Anti-Dilution Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.3 Shares Held by BFC or Acquiror . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.4 Fractional Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.5 Conversion of Stock Options . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE 4 - EXCHANGE OF SHARES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.1 Exchange Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.2 Rights of Former BFC Shareholders . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE 5 - REPRESENTATIONS AND WARRANTIES OF BFC . . . . . . . . . . . . . . . . . . . . . 6
5.1 Organization, Standing, and Power . . . . . . . . . . . . . . . . . . . . . . . . 6
5.2 Authority; No Breach By Agreement . . . . . . . . . . . . . . . . . . . . . . . . 6
5.3 Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5.4 BFC Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5.5 SEC Filings; Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . 8
5.6 Absence of Certain Changes or Events . . . . . . . . . . . . . . . . . . . . . . . 8
5.7 Tax Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.8 Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.9 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.10 Compliance With Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.11 Labor Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.12 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.13 Material Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.14 Legal Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.15 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.16 Statements True and Correct . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.17 Accounting, Tax and Regulatory Matters . . . . . . . . . . . . . . . . . . . . . . 16
5.18 State Takeover Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.19 Charter Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.20 Status of Loan Portfolio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.21 Adequacy of Allowance and Other Matters . . . . . . . . . . . . . . . . . . . . . 16
5.22 Derivative Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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5.23 Absence of Undisclosed Liabilities . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 6 - REPRESENTATIONS AND WARRANTIES OF ACQUIROR
AND S-T GEORGIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
6.1 Organization, Standing, and Power . . . . . . . . . . . . . . . . . . . . . . . . 17
6.2 Authority; No Breach By Agreement . . . . . . . . . . . . . . . . . . . . . . . . 17
6.3 Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.4 SEC Filings; Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . 18
6.5 Absence of Certain Changes or Events . . . . . . . . . . . . . . . . . . . . . . . 19
6.6 Compliance With Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.7 Legal Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.8 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.9 Statements True and Correct . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.10 Accounting, Tax and Regulatory Matters . . . . . . . . . . . . . . . . . . . . . . 21
6.11 Rights Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE 7 - CONDUCT OF BUSINESS PENDING CONSUMMATION . . . . . . . . . . . . . . . . . . . 21
7.1 Affirmative Covenants of BFC . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
7.2 Negative Covenants of BFC . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
7.3 Covenants of Acquiror and S-T Georgia . . . . . . . . . . . . . . . . . . . . . . 24
7.4 Adverse Changes in Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.5 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE 8 - ADDITIONAL AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
8.1 Registration Statement; Proxy Statement; Shareholder Approval . . . . . . . . . . 25
8.2 Exchange Listing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
8.3 Applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
8.4 Filings with State Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
8.5 Agreement as to Efforts to Consummate . . . . . . . . . . . . . . . . . . . . . . 25
8.6 Investigation and Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . 26
8.7 Press Releases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
8.8 Certain Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
8.9 Accounting and Tax Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
8.10 State Takeover Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
8.11 Charter Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
8.12 Agreements of Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
8.13 Employee Benefits and Contracts . . . . . . . . . . . . . . . . . . . . . . . . . 28
8.14 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
8.15 Certain Modifications; Restructuring Charges . . . . . . . . . . . . . . . . . . . 31
ARTICLE 9 - CONDITIONS PRECEDENT TO
OBLIGATIONS TO CONSUMMATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
9.1 Conditions to Obligations of Each Party . . . . . . . . . . . . . . . . . . . . . 31
9.2 Conditions to Obligations of Acquiror . . . . . . . . . . . . . . . . . . . . . . 33
9.3 Conditions to Obligations of BFC . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE 10 - TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
10.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
10.2 Effect of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
10.3 Non-Survival of Representations and Covenants . . . . . . . . . . . . . . . . . . 39
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ARTICLE 11 - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
11.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
11.2 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
11.3 Brokers and Finders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
11.4 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
11.5 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
11.6 Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
11.7 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
11.8 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
11.9 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
11.10 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
11.11 Captions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
11.12 Interpretations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
11.13 Enforcement of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
11.14 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
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<PAGE> 5
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made
and entered into as of October 31, 1995, by and among BANKERS FIRST CORPORATION
("BFC"), a Georgia corporation having its principal office located in Augusta,
Georgia; SOUTHTRUST CORPORATION ("Acquiror"), a Delaware corporation having its
principal office located in Birmingham, Alabama; and SOUTHTRUST OF GEORGIA,
INC. ("S-T Georgia"), a Georgia corporation having its principal office
located in Atlanta, Georgia.
PREAMBLE
The Boards of Directors of BFC, S-T Georgia and Acquiror are
of the opinion that the transactions described herein are in the best interests
of the parties and their respective shareholders. This Agreement provides for
the acquisition of BFC by Acquiror pursuant to the merger of BFC with and into
S-T Georgia. At the effective time of such merger, the outstanding shares of
the capital stock of BFC shall be converted into the right to receive shares of
the common stock of Acquiror (except as provided herein). As a result,
shareholders of BFC shall become shareholders of Acquiror and S-T Georgia shall
continue to conduct the business and operations of BFC as a wholly-owned
subsidiary of Acquiror. The transactions described in this Agreement are
subject to the approvals of the shareholders of BFC, the Board of Governors of
the Federal Reserve System, the Office of Thrift Supervision, the Georgia
Department of Banking and Finance and the satisfaction of certain other
conditions described in this Agreement. It is the intention of the parties to
this Agreement that the Merger for federal income tax purposes shall qualify as
a "reorganization" within the meaning of Section 368(a) of the Internal Revenue
Code, and for accounting purposes shall qualify for treatment as a pooling of
interests.
Immediately after the execution and delivery of this
Agreement, as a condition and inducement to Acquiror's willingness to enter
into this Agreement, BFC and Acquiror are entering into a stock option
agreement (the "Stock Option Agreement"), in substantially the form of Exhibit
1, pursuant to which BFC is granting to Acquiror an option to purchase shares
of BFC Common Stock.
Certain terms used in this Agreement are defined in Section
11.1 of this Agreement.
NOW, THEREFORE, in consideration of the above and the mutual
warranties, representations, covenants and agreements set forth herein, the
parties agree as follows:
<PAGE> 6
ARTICLE 1
TRANSACTIONS AND TERMS OF MERGER
1.1 Merger. Subject to the terms and conditions of this
Agreement, at the Effective Time, BFC shall be merged with and into S-T Georgia
in accordance with the provisions of Section 14-2-1101 of the GBCC and with the
effect provided in Section 14-2-1106 of the GBCC (the "Merger"). S-T Georgia
shall be the Surviving Corporation resulting from the Merger, shall remain a
wholly-owned subsidiary of Acquiror and shall continue to be governed by the
Laws of the State of Georgia. The Merger shall be consummated pursuant to the
terms of this Agreement, which has been approved and adopted by the respective
Boards of Directors of BFC, S-T Georgia and Acquiror.
1.2 TIME AND PLACE OF CLOSING. The Closing will take
place at 9:00 A.M. on the date that the Effective Time occurs (or the
immediately preceding day if the Effective Time is earlier than 9:00 A.M.), or
at such other time as the Parties, acting through their chief executive
officers or chief financial officers, may mutually agree. The place of Closing
shall be at the offices of Alston & Bird, Atlanta, Georgia, or such other place
as may be mutually agreed upon by the Parties.
1.3 EFFECTIVE TIME. The Merger and other transactions
contemplated by this Agreement shall become effective on the date and at the
time the Certificate of Merger reflecting the Merger shall become effective
with the Secretary of State of the State of Georgia (the "Effective Time").
Subject to the terms and conditions hereof, unless otherwise mutually agreed
upon in writing by the chief executive officers or chief financial officers of
each Party, the Parties shall use their reasonable efforts to cause the
Effective Time to occur on the third business day following the last to occur
of (i) the effective date (including expiration of any applicable waiting
period) of the last required Consent of any Regulatory Authority having
authority over and approving or exempting the Merger, and (ii) the date on
which the shareholders of BFC approve this Agreement to the extent such
approval is required by applicable Law.
1.4 EXECUTION OF STOCK OPTION AGREEMENT. Immediately
after the execution of this Agreement and as a condition thereto, BFC is
executing and delivering to Acquiror the Stock Option Agreement.
ARTICLE 2
TERMS OF MERGER
2.1 CHARTER. The Articles of Incorporation of S-T
Georgia in effect immediately prior to the Effective Time shall be the Articles
of Incorporation of the Surviving Corporation until otherwise amended or
repealed.
2.2 BYLAWS. The Bylaws of S-T Georgia in effect
immediately prior to the Effective Time shall be the Bylaws of the Surviving
Corporation until otherwise amended or repealed.
- 2 -
<PAGE> 7
2.3 DIRECTORS AND OFFICERS. The directors of S-T Georgia
in office immediately prior to the Effective Time, together with such
additional persons as may thereafter be elected, shall serve as the directors
of the Surviving Corporation from and after the Effective Time in accordance
with the Bylaws of the Surviving Corporation. The officers of S-T Georgia in
office immediately prior to the Effective Time, together with such additional
persons as may thereafter be elected, shall serve as the officers of the
Surviving Corporation from and after the Effective Time in accordance with the
Bylaws of the Surviving Corporation.
ARTICLE 3
MANNER OF CONVERTING SHARES
3.1 CONVERSION OF SHARES. Subject to the provisions of
this Article 3, at the Effective Time, by virtue of the Merger and without any
action on the part of Acquiror, S-T Georgia, BFC, or the shareholders of any of
the foregoing, the shares of the constituent corporations shall be converted as
follows:
(a) Each share of Acquiror Capital Stock, including any
associated Acquiror Rights, issued and outstanding immediately prior to
the Effective Time shall remain issued and outstanding from and after
the Effective Time.
(b) Each share of S-T Georgia Common Stock issued and
outstanding immediately prior to the Effective Time shall remain issued
and outstanding from and after the Effective Time.
(c) Each share of BFC Common Stock (excluding shares held
by any BFC Company or any Acquiror Company, in each case other than in a
fiduciary capacity or as a result of debts previously contracted) issued
and outstanding at the Effective Time shall cease to be outstanding and
shall be converted into and exchanged for the right to receive 1.126
shares of Acquiror Common Stock (subject to possible adjustment pursuant
to Section 10.1(h) of this Agreement, the "Exchange Ratio"). Pursuant
to the Acquiror Rights Agreement, each share of Acquiror Common Stock
issued in connection with the Merger upon conversion of BFC Common Stock
shall be accompanied by an Acquiror Right.
3.2 ANTI-DILUTION PROVISIONS. In the event Acquiror
changes the number of shares of Acquiror Common Stock issued and outstanding
prior to the Effective Time as a result of a stock split, stock dividend, or
similar recapitalization with respect to such stock and the record date
therefor (in the case of a stock dividend) or the effective date thereof (in
the case of a stock split or similar recapitalization for which a record date
is not established) shall be prior to the Effective Time, the Exchange Ratio
shall be proportionately adjusted.
3.3 SHARES HELD BY BFC OR ACQUIROR. Each of the shares
of BFC Common Stock held by any BFC Company or by any Acquiror Company, in each
case other than in a fiduciary capacity or as a result of debts previously
contracted, shall be canceled and retired at the Effective Time and no
consideration shall be issued in exchange therefor.
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3.4 FRACTIONAL SHARES. Notwithstanding any other
provision of this Agreement, each holder of shares of BFC Common Stock
exchanged pursuant to the Merger who would otherwise have been entitled to
receive a fraction of a share of Acquiror Common Stock (after taking into
account all certificates delivered by such holder) shall receive, in lieu
thereof, cash (without interest) in an amount equal to such fractional part of
a share of Acquiror Common Stock multiplied by the market value of one share of
Acquiror Common Stock at the Effective Time. The market value of one share of
Acquiror Common Stock at the Effective Time shall be the last sale price of
such common stock on the Nasdaq National Market (as reported by The Wall Street
Journal or, if not reported thereby, any other authoritative source selected by
Acquiror) on the last trading day preceding the Effective Time. No such holder
will be entitled to dividends, voting rights, or any other rights as a
shareholder in respect of any fractional shares.
3.5 CONVERSION OF STOCK OPTIONS. At the Effective
Time, all rights with respect to BFC Common Stock pursuant to stock options or
stock appreciation rights ("BFC Options") granted by BFC under the BFC Stock
Plans, which are outstanding at the Effective Time, whether or not exercisable,
shall be converted into and become rights with respect to Acquiror Common
Stock, and Acquiror shall assume each BFC Option, in accordance with the terms
of the BFC Stock Plan and stock option agreement by which it is evidenced,
except that from and after the Effective Time, (i) Acquiror and its
Compensation Committee shall be substituted for BFC and the Committee of BFC's
Board of Directors (including, if applicable, the entire Board of Directors of
BFC) administering such BFC Stock Plan, (ii) each BFC Option assumed by
Acquiror may be exercised solely for shares of Acquiror Common Stock (or cash
in the case of stock appreciation rights), (iii) the number of shares of
Acquiror Common Stock subject to such BFC Option shall be equal to the number
of shares of BFC Common Stock subject to such BFC Option immediately prior to
the Effective Time multiplied by the Exchange Ratio, and (iv) the per share
exercise price under each such BFC Option shall be adjusted by dividing the per
share exercise price under each such BFC Option by the Exchange Ratio and
rounding up to the nearest cent. Notwithstanding the provisions of clause
(iii) of the preceding sentence, Acquiror shall not be obligated to issue any
fraction of a share of Acquiror Common Stock upon exercise of BFC Options and
any fraction of a share of Acquiror Common Stock that otherwise would be
subject to a converted BFC Option shall represent the right to receive a cash
payment upon exercise of such converted BFC Option equal to the product of such
fraction and the difference between the market value of one share of Acquiror
Common Stock at the time of exercise of such Option and the per share exercise
price of such Option. The market value of one share of Acquiror Common Stock
at the time of exercise of an Option shall be the last sale price of such
common stock on the Nasdaq National Market (as reported by The Wall Street
Journal or, if not reported thereby, any other authoritative source selected by
Acquiror) on the last trading day preceding the date of exercise. In addition,
notwithstanding clauses (iii) and (iv) of the first sentence of this Section
3.5, each BFC Option which is an "incentive stock option" shall be adjusted as
required by Section 424 of the Internal Revenue Code, and the regulations
promulgated thereunder, so as not to constitute a modification, extension or
renewal of the option, within the meaning of Section 424(h) of the Internal
Revenue Code. BFC agrees to take all necessary steps to effectuate the
foregoing provisions of this Section 3.5. As soon as practicable after the
Effective Time, Acquiror shall file a registration statement on Form S-3 or
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Form S-8, as the case may be (or any successor or other appropriate forms),
with respect to the shares of Acquiror Common Stock subject to such options and
shall use its reasonable efforts to maintain the effectiveness of such
registration statements (and maintain the current status of the prospectus or
prospectuses contained therein) for so long as such options remain outstanding.
ARTICLE 4
EXCHANGE OF SHARES
4.1 EXCHANGE PROCEDURES. Promptly after the Effective
Time, Acquiror and BFC shall cause the exchange agent selected by Acquiror (the
"Exchange Agent") to mail to the former shareholders of BFC appropriate
transmittal materials (which shall specify that delivery shall be effected, and
risk of loss and title to the certificates theretofore representing shares of
BFC Common Stock shall pass, only upon proper delivery of such certificates to
the Exchange Agent). After the Effective Time, each holder of shares of BFC
Common Stock (other than shares to be canceled pursuant to Section 3.3 of this
Agreement) issued and outstanding at the Effective Time shall surrender the
certificate or certificates representing such shares to the Exchange Agent and
shall promptly upon surrender thereof receive in exchange therefor the
consideration provided in Section 3.1 of this Agreement, together with all
undelivered dividends or distributions in respect of such shares (without
interest thereon) pursuant to Section 4.2 of this Agreement. To the extent
required by Section 3.4 of this Agreement, each holder of shares of BFC Common
Stock issued and outstanding at the Effective Time also shall receive, upon
surrender of the certificate or certificates representing such shares, cash in
lieu of any fractional share of Acquiror Common Stock to which such holder may
be otherwise entitled (without interest). Acquiror shall not be obligated to
deliver the consideration to which any former holder of BFC Common Stock is
entitled as a result of the Merger until such holder surrenders such holder's
certificate or certificates representing the shares of BFC Common Stock for
exchange as provided in this Section 4.1. The certificate or certificates of
BFC Common Stock so surrendered shall be duly endorsed as the Exchange Agent
may require. Any other provision of this Agreement notwithstanding, neither
Acquiror, the Surviving Corporation nor the Exchange Agent shall be liable to a
holder of BFC Common Stock for any amounts paid or property delivered in good
faith to a public official pursuant to any applicable abandoned property Law.
4.2 RIGHTS OF FORMER BFC SHAREHOLDERS. At the Effective
Time, the stock transfer books of BFC shall be closed as to holders of BFC
Common Stock immediately prior to the Effective Time and no transfer of BFC
Common Stock by any such holder shall thereafter be made or recognized. Until
surrendered for exchange in accordance with the provisions of Section 4.1 of
this Agreement, each certificate theretofore representing shares of BFC Common
Stock (other than shares to be canceled pursuant to Section 3.3 of this
Agreement) shall from and after the Effective Time represent for all purposes
only the right to receive the consideration provided in Sections 3.1 and 3.4 of
this Agreement in exchange therefor, subject, however, to the Surviving
Corporation's obligation to pay any dividends or make any other distributions
with a record date prior to the Effective Time which have been declared or made
by BFC in respect of such shares of BFC Common Stock in accordance with the
terms of this Agreement and which remain unpaid at the Effective Time.
Whenever a dividend or other distribution is declared by Acquiror on the
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Acquiror Common Stock, the record date for which is at or after the Effective
Time, the declaration shall include dividends or other distributions on all
shares issuable pursuant to this Agreement, but beginning 60 days after the
Effective Time no dividend or other distribution payable to the holders of
record of Acquiror Common Stock as of any time subsequent to the Effective Time
shall be delivered to the holder of any certificate representing shares of BFC
Common Stock issued and outstanding at the Effective Time until such holder
surrenders such certificate for exchange as provided in Section 4.1 of this
Agreement. However, upon surrender of such BFC Common Stock certificate, both
the Acquiror Common Stock certificate (together with all such undelivered
dividends or other distributions without interest) and any undelivered
dividends and cash payments to be paid for fractional share interests (without
interest) shall be delivered and paid with respect to each share represented by
such certificate.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF BFC
BFC hereby represents and warrants to Acquiror as follows:
5.1 ORGANIZATION, STANDING, AND POWER. BFC is a
corporation duly organized, validly existing, and in good standing under the
Laws of the State of Georgia, and has the corporate power and authority to
carry on its business as now conducted and to own, lease and operate its
material Assets. BFC is duly qualified or licensed to transact business as a
foreign corporation in good standing in the States of the United States and
foreign jurisdictions where the character of its Assets or the nature or
conduct of its business requires it to be so qualified or licensed, except for
such jurisdictions in which the failure to be so qualified or licensed is not
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on BFC.
5.2 AUTHORITY; NO BREACH BY AGREEMENT.
(a) BFC has the corporate power and authority
necessary to execute, deliver, and perform its obligations under this Agreement
and to consummate the transactions contemplated hereby. The execution,
delivery, and performance of this Agreement and the consummation of the
transactions contemplated herein, including the Merger, have been duly and
validly authorized by all necessary corporate action in respect thereof on the
part of BFC, subject to the approval of this Agreement by the holders of a
majority of the outstanding shares of BFC Common Stock, which is the only
shareholder vote required for approval of this Agreement and consummation of
the Merger by BFC. Subject to such requisite shareholder approval, this
Agreement represents a legal, valid, and binding obligation of BFC, enforceable
against BFC in accordance with its terms (except in all cases as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar Laws affecting the enforcement of
creditors' rights generally and except that the availability of the equitable
remedy of specific performance or injunctive relief is subject to the
discretion of the court before which any proceeding may be brought).
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(b) Neither the execution and delivery of this
Agreement by BFC, nor the consummation by BFC of the transactions contemplated
hereby, nor compliance by BFC with any of the provisions hereof, will (i)
conflict with or result in a breach of any provision of BFC's Articles of
Incorporation or Bylaws, or (ii) except as disclosed in Section 5.2 of the BFC
Disclosure Memorandum, constitute or result in a Default under, or require any
Consent pursuant to, or result in the creation of any Lien on any Asset of any
BFC Company under, any Contract or Permit of any BFC Company, where such
Default or Lien, or any failure to obtain such Consent, is reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on BFC, or,
(iii) subject to receipt of the requisite approvals referred to in Section
9.1(b) of this Agreement, violate any Law or Order applicable to any BFC
Company or any of their respective material Assets.
(c) Other than in connection or compliance with
the provisions of the Securities Laws, applicable state corporate and
securities Laws, and rules of the NASD, and other than Consents required from
Regulatory Authorities, and other than notices to or filings with the Internal
Revenue Service or the Pension Benefit Guaranty Corporation with respect to any
employee benefit plans, or under the HSR Act, and other than Consents, filings,
or notifications which, if not obtained or made, are not reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on BFC, no
notice to, filing with, or Consent of, any public body or authority is
necessary for the consummation by BFC of the Merger and the other transactions
contemplated in this Agreement.
5.3 CAPITAL STOCK.
(a) The authorized capital stock of BFC consists
of (i) 12,500,000 shares of BFC Common Stock, of which [4,737,961] shares are
issued and outstanding as of the date of this Agreement and not more than
[5,222,539] shares will be issued and outstanding at the Effective Time, and
(ii) 7,500,000 shares of serial preferred stock, par value $.01 per share, none
of which are issued and outstanding. All of the issued and outstanding shares
of capital stock of BFC are duly and validly issued and outstanding and are
fully paid and nonassessable under the GBCC. None of the outstanding shares of
capital stock of BFC has been issued in violation of any preemptive rights of
the current or past shareholders of BFC. BFC has reserved 1,105,000 shares of
BFC Common Stock for issuance under the BFC Stock Plans, pursuant to which
options to purchase not more than [484,578] shares of BFC Common Stock are
outstanding.
(b) Except as set forth in Section 5.3(a) of this
Agreement, or as provided in the Stock Option Agreement, there are no shares of
capital stock or other equity securities of BFC outstanding and no outstanding
Rights relating to the capital stock of BFC.
5.4 BFC SUBSIDIARIES. BFC has disclosed in Section 5.4
of the BFC Disclosure Memorandum all of the BFC Subsidiaries as of the date of
this Agreement. Except as disclosed in Section 5.4 of the BFC Disclosure
Memorandum, BFC or one of its Subsidiaries owns all of the issued and
outstanding shares of capital stock of each BFC Subsidiary. No equity
securities of any BFC Subsidiary are or may become required to be issued (other
than to another BFC Company) by reason of any Rights, and there are no
Contracts by which any BFC Subsidiary
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<PAGE> 12
is bound to issue (other than to another BFC Company) additional shares of its
capital stock or Rights or by which any BFC Company is or may be bound to
transfer any shares of the capital stock of any BFC Subsidiary (other than to
another BFC Company). There are no Contracts relating to the rights of any BFC
Company to vote or to dispose of any shares of the capital stock of any BFC
Subsidiary. All of the shares of capital stock of each BFC Subsidiary held by
a BFC Company are fully paid and nonassessable under the applicable corporation
Law of the jurisdiction in which such Subsidiary is incorporated or organized
and are owned by the BFC Company free and clear of any Lien. Each BFC
Subsidiary is either a savings association or a corporation, and is duly
organized, validly existing, and (as to corporations) in good standing under
the Laws of the jurisdiction in which it is incorporated or organized, and has
the corporate power and authority necessary for it to own, lease, and operate
its Assets and to carry on its business as now conducted. Each BFC Subsidiary
is duly qualified or licensed to transact business as a foreign corporation in
good standing in the States of the United States and foreign jurisdictions
where the character of its Assets or the nature or conduct of its business
requires it to be so qualified or licensed, except for such jurisdictions in
which the failure to be so qualified or licensed is not reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on BFC. Each
BFC Subsidiary that is a depository institution is an "insured institution" as
defined in the Federal Deposit Insurance Act and applicable regulations
thereunder, and the deposits in which are insured by the Savings Association
Insurance Fund.
5.5 SEC FILINGS; FINANCIAL STATEMENTS.
(a) BFC has filed and made available to Acquiror
all forms, reports, and documents required to be filed by BFC with the SEC
since December 31, 1992 (collectively, the "BFC SEC Reports"). The BFC SEC
Reports (i) at the time filed, complied in all material respects with the
applicable requirements of the Securities Act and the Exchange Act, as the case
may be, and (ii) did not at the time they were filed (or if amended or
superseded by a filing prior to the date of this Agreement, then on the date of
such filing) contain any untrue statement of a material fact or omit to state a
material fact required to be stated in such BFC SEC Reports or necessary in
order to make the statements in such BFC SEC Reports, in light of the
circumstances under which they were made, not misleading.
(b) Each of the BFC Financial Statements
(including, in each case, any related notes) contained in the BFC SEC Reports,
including any BFC SEC Reports filed after the date of this Agreement until the
Effective Time, complied as to form in all material respects with the
applicable published rules and regulations of the SEC with respect thereto, was
prepared in accordance with GAAP applied on a consistent basis throughout the
periods involved (except as may be indicated in the notes to such financial
statements, or, in the case of unaudited statements, as permitted by Form 10-Q
of the SEC), and fairly presented the consolidated financial position of BFC
and its Subsidiaries as at the respective dates and the consolidated results of
its operations and cash flows for the periods indicated, except that the
unaudited interim financial statements were or are subject to normal and
recurring year-end adjustments which were not or are not expected to be
material in amount.
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5.6 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since December
31, 1994, except as disclosed in the BFC Financial Statements, dated subsequent
to December 31, 1994, which are delivered prior to the date of this Agreement
or as disclosed in Section 5.6 of the BFC Disclosure Memorandum, (i) there have
been no events, changes, or occurrences which have had, or are reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
BFC and (ii) BFC has not taken an action or failed to taken any action, prior
to the date of this Agreement, which action or failure, if taken after the date
of this Agreement, would represent or result in a material breach or violation
of any of the covenants and agreements of BFC contained in this Agreement.
5.7 TAX MATTERS.
(a) All Tax returns required to be filed by or on
behalf of any of the BFC Companies have been timely filed or requests for
extensions have been timely filed, granted, and have not expired for periods
ended on or before December 31, 1994, and on or before the date of the most
recent fiscal year end immediately preceding the Effective Time, except to the
extent that all such failures to file, taken together, are not reasonably
likely to have a Material Adverse Effect on BFC, and all returns filed are
complete and accurate to the Knowledge of BFC. All Taxes shown on filed
returns have been paid. As of the date of this Agreement, there is no audit
examination, deficiency, or refund Litigation with respect to any Taxes that is
reasonably likely to result in a determination that would have, individually or
in the aggregate, a Material Adverse Effect on BFC, except as reserved against
in the BFC Financial Statements delivered prior to the date of this Agreement.
All Taxes and other Liabilities due with respect to completed and settled
examinations or concluded Litigation have been paid.
(b) None of the BFC Companies has executed an
extension or waiver of any statute of limitations on the assessment or
collection of any Tax due (excluding such statutes that relate to years
currently under examination by the Internal Revenue Service or other applicable
taxing authorities) that is currently in effect.
(c) Adequate provision for any Taxes due or to
become due for any of the BFC Companies for the period or periods through and
including the date of the respective BFC Financial Statements has been made and
is reflected on such BFC Financial Statements.
(d) Deferred Taxes of the BFC Companies have been
provided for in accordance with GAAP.
(e) Each of the BFC Companies is in compliance
with, and its records contain all information and documents (including properly
completed IRS Forms W-9) necessary to comply with, all applicable information
reporting and Tax withholding requirements under federal, state and local Tax
Laws, and such records identify with specificity all accounts subject to backup
withholding under Section 3406 of the Internal Revenue Code, except for such
instances of noncompliance and such omissions as are not reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on BFC.
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(f) None of the BFC Companies has made any
payment, is obligated to make any payment or is a party to any contract,
agreement of other arrangement that could obligate it to make any payment that
would be disallowed as a deduction under Section 280G or 162(m) of the Internal
Revenue Code.
(g) There are no Liens with respect to Taxes upon
any of the Assets of the BFC Companies.
(h) There has not been an ownership change, as
defined in Section 382(g) of the Internal Revenue Code of the BFC Companies
that occurred during or after any Taxable Period in which the BFC companies
incurred a net operating loss that carries over to any Taxable Period ending
after December 31, 1994.
(i) No BFC Company has filed any consent under
Section 341(f) of the Internal Revenue Code concerning a collapsible
corporation.
(j) No BFC Company has or has had a permanent
establishment in any foreign country, as defined in any applicable tax treaty
or convention between the United States and such foreign country.
(k) None of the BFC Companies is a party to any
tax allocation or sharing agreement and none of the BFC Companies has been a
member of an affiliated group filing a consolidated federal income tax return
(other than a group the common parent of which was BFC) has any Liability for
taxes of any Person (other than BFC and its Subsidiaries) under Treasury
Regulation Section 1.1502-6 (or any similar provision of state, local or
foreign law) as a transferee or successor or by contract or otherwise.
5.8 ASSETS. Except as disclosed in Section 5.8 of the
BFC Disclosure Memorandum or as disclosed or reserved against in the BFC
Financial Statements delivered prior to the date of this Agreement, the BFC
Companies have good and marketable title, free and clear of all Liens, to all
of their respective material Assets. All tangible properties used in the
businesses of the BFC Companies are in good condition, reasonable wear and tear
excepted, and are usable in the ordinary course of business consistent with
BFC's past practices. All Assets which are material to BFC's business on a
consolidated basis, held under leases or subleases by any of the BFC Companies,
are held under valid Contracts enforceable in accordance with their respective
terms (except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or other Laws affecting the enforcement
of creditors' rights generally and except that the availability of the
equitable remedy of specific performance or injunctive relief is subject to the
discretion of the court before which any proceedings may be brought), and each
such Contract is in full force and effect. The BFC Companies currently
maintain insurance similar in amounts, scope and coverage to that maintained by
other peer banking organizations. None of the BFC Companies has received
notice from any insurance carrier that (i) any such insurance will be canceled
or that coverage thereunder will be reduced or eliminated, or (ii) premium
costs with respect to any such policies of insurance will be substantially
increased. Except as disclosed in Section 5.8 of the BFC Disclosure
Memorandum, there are presently no claims pending under any
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such policies of insurance and no notices have been given by any of the BFC
Companies under such policies. The Assets of the BFC Companies include all
Assets required to operate the business of the BFC Companies as presently
conducted.
5.9 ENVIRONMENTAL MATTERS.
(a) To the Knowledge of BFC, each BFC Company,
its Participation Facilities, and its Loan Properties are, and have been, in
compliance with all Environmental Laws, except for violations which are not
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on BFC.
(b) To the Knowledge of BFC, there is no
Litigation pending or threatened before any court, governmental agency, or
authority or other forum in which any BFC Company or any of its Participation
Facilities has been or, with respect to threatened Litigation, may be named as
a defendant (i) for alleged noncompliance (including by any predecessor) with
any Environmental Law or (ii) relating to the release into the environment of
any Hazardous Material, whether or not occurring at, on, under, or involving a
site owned, leased, or operated by any BFC Company or any of its Participation
Facilities, except for such Litigation pending or threatened that is not
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on BFC.
(c) To the Knowledge of BFC, there is no
Litigation pending or threatened before any court, governmental agency, or
board or other forum in which any of its Loan Properties (or BFC in respect of
such Loan Property) has been or, with respect to threatened Litigation, may be
named as a defendant or potentially responsible party (i) for alleged
noncompliance (including by any predecessor) with any Environmental Law or (ii)
relating to the release into the environment of any Hazardous Material, whether
or not occurring at, on, under, or involving a Loan Property, except for such
Litigation pending or threatened that is not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on BFC.
(d) To the Knowledge of BFC, there is no
reasonable basis for any Litigation of a type described in subsections (b) or
(c), except such as is not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on BFC.
(e) To the Knowledge of BFC, there have been no
releases of Hazardous Material in, on, under, or affecting any such property,
Participation Facility or Loan Property, except such as are not reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
BFC.
5.10 COMPLIANCE WITH LAWS. BFC is duly registered as a
savings and loan holding company under the HOLA. Each BFC Company has in
effect all Permits necessary for it to own, lease, or operate its material
Assets and to carry on its business as now conducted, except for those Permits
the absence of which are not reasonably likely to have, individually or in the
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aggregate, a Material Adverse Effect on BFC, and there has occurred no Default
under any such Permit, other than Defaults which are not reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on BFC.
Except as disclosed in Section 5.10 of the BFC Disclosure Memorandum, none of
the BFC Companies:
(a) is in violation of any Laws, Orders, or Permits
applicable to its business or employees conducting its business, except
for violations which are not reasonably likely to have, individually or
in the aggregate, a Material Adverse Effect on BFC; and
(b) since January 1, 1993, has received any notification
or communication from any agency or department of federal, state, or
local government or any Regulatory Authority or the staff thereof (i)
asserting that any BFC Company is not in compliance with any of the Laws
or Orders which such governmental authority or Regulatory Authority
enforces, where such noncompliance is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on BFC, (ii)
threatening to revoke any Permits, the revocation of which is reasonably
likely to have, individually or in the aggregate, a Material Adverse
Effect on BFC, or (iii) requiring any BFC Company to enter into or
consent to the issuance of a cease and desist order, formal agreement,
directive, commitment, or memorandum of understanding, or to adopt any
Board resolution or similar undertaking, which restricts materially the
conduct of its business, or in any manner relates to its capital
adequacy, its credit or reserve policies, its management, or the payment
of dividends.
5.11 LABOR RELATIONS. No BFC Company is the subject of
any Litigation asserting that it or any other BFC Company has committed an
unfair labor practice (within the meaning of the National Labor Relations Act
or comparable state law) or seeking to compel it or any other BFC Company to
bargain with any labor organization as to wages or conditions of employment,
nor is there any strike or other labor dispute involving any BFC Company,
pending or threatened, or to the Knowledge of BFC, is there any activity
involving any BFC Company's employees seeking to certify a collective
bargaining unit or engaging in any other organization activity.
5.12 EMPLOYEE BENEFIT PLANS.
(a) BFC has disclosed in Section 5.12 of the BFC
Disclosure Memorandum, and has delivered or made available to Acquiror prior to
the execution of this Agreement copies in each case of, all pension,
retirement, profit-sharing, deferred compensation, stock option, employee stock
ownership, severance pay, vacation, bonus, or other incentive plan, all other
written employee programs, arrangements, or agreements, all medical, vision,
dental, or other health plans, all life insurance plans, and all other employee
benefit plans or fringe benefit plans, including "employee benefit plans" as
that term is defined in Section 3(3) of ERISA, currently adopted, maintained
by, sponsored in whole or in part by, or contributed to by any BFC Company or
ERISA Affiliate (as defined below) thereof for the benefit of employees,
retirees, dependents, spouses, directors, independent contractors, or other
beneficiaries and under which employees, retirees, dependents, spouses,
directors, independent contractors, or other beneficiaries are eligible to
participate (collectively, the "BFC Benefit Plans"). Any of the BFC Benefit
Plans which is an "employee pension benefit plan," as that term is defined in
Section 3(2) of ERISA, is referred to herein as a "BFC ERISA Plan." Each BFC
ERISA Plan which is also a
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<PAGE> 17
"defined benefit plan" (as defined in Section 414(j) of the Internal Revenue
Code) is referred to herein as a "BFC Pension Plan." No BFC Pension Plan is or
has been a multiemployer plan within the meaning of Section 3(37) of ERISA.
(b) All BFC Benefit Plans are in compliance with
the applicable terms of ERISA, the Internal Revenue Code, and any other
applicable Laws the breach or violation of which are reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on BFC. Each BFC
ERISA Plan which is intended to be qualified under Section 401(a) of the
Internal Revenue Code has received a favorable determination letter from the
Internal Revenue Service, and BFC is not aware of any circumstances likely to
result in revocation of any such favorable determination letter. To the
Knowledge of BFC, no BFC Company has engaged in a transaction with respect to
any BFC Benefit Plan that, assuming the Taxable Period of such transaction
expired as of the date hereof, would subject any BFC Company to a Tax imposed
by either Section 4975 of the Internal Revenue Code or Section 502(i) of ERISA
in amounts which are reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on BFC.
(c) No BFC Pension Plan has any "unfunded current
liability," as that term is defined in Section 302(d)(8)(A) of ERISA, and the
fair market value of the assets of any such plan exceeds the plan's "benefit
liabilities," as that term is defined in Section 4001(a)(16) of ERISA. Since
the date of the most recent actuarial valuation, except as disclosed in Section
5.12 of the BFC Disclosure Memorandum, there has been (i) no material change in
the financial position of any BFC Pension Plan, (ii) no change in the actuarial
assumptions with respect to any BFC Pension Plan, and (iii) no increase in
benefits under any BFC Pension Plan as a result of plan amendments or changes
in applicable Law which is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on BFC or materially adversely affect the
funding status of any such plan. Neither any BFC Pension Plan nor any
"single-employer plan," within the meaning of Section 4001(a)(15) of ERISA,
currently or formerly maintained by any BFC Company, or the single-employer
plan of any entity which is considered one employer with BFC under Section 4001
of ERISA or Section 414 of the Internal Revenue Code or Section 302 of ERISA
(whether or not waived) (an "ERISA Affiliate") has an "accumulated funding
deficiency" within the meaning of Section 412 of the Internal Revenue Code or
Section 302 of ERISA, which is reasonably likely to have a Material Adverse
Effect on BFC. No BFC Company has provided, or is required to provide,
security to a BFC Pension Plan or to any single-employer plan of an ERISA
Affiliate pursuant to Section 401(a)(29) of the Internal Revenue Code.
(d) Within the six-year period preceding the
Effective Time, no Liability under Subtitle C or D of Title IV of ERISA has
been or is expected to be incurred by any BFC Company with respect to any
ongoing, frozen, or terminated single-employer plan or the single-employer plan
of any ERISA Affiliate, which Liability is reasonably likely to have a Material
Adverse Effect on BFC. No BFC Company has incurred any withdrawal Liability
with respect to a multiemployer plan under Subtitle B of Title IV of ERISA
(regardless of whether based on contributions of an ERISA Affiliate), which
Liability is reasonably likely to have a Material Adverse Effect on BFC. No
notice of a "reportable event," within the meaning of Section 4043 of ERISA for
which the 30-day reporting requirement has not been waived, has
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been required to be filed for any BFC Pension Plan or by any ERISA Affiliate
within the 12-month period ending on the date hereof.
(e) Except as disclosed in Section 5.12 of the
BFC Disclosure Memorandum, no BFC Company has any Liability for retiree health
and life benefits under any of the BFC Benefit Plans and there are no
restrictions on the rights of such BFC Company to amend or terminate any such
Plan without incurring any Liability thereunder, which Liability is reasonably
likely to have a Material Adverse Effect on BFC.
(f) Except as disclosed in Section 5.12 of the
BFC Disclosure Memorandum, neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby will (i) result in
any payment (including severance, unemployment compensation, golden parachute,
or otherwise) becoming due to any director or any employee of any BFC Company
from any BFC Company under any BFC Benefit Plan or otherwise, (ii) increase any
benefits otherwise payable under any BFC Benefit Plan, or (iii) result in any
acceleration of the time of payment or vesting of any such benefit, where such
payment, increase, or acceleration is reasonably likely to have, individually
or in the aggregate, a Material Adverse Effect on BFC.
(g) The actuarial present values of all accrued
deferred compensation entitlements (including entitlements under any executive
compensation, supplemental retirement, or employment agreement) of employees
and former employees of any BFC Company and their respective beneficiaries,
other than entitlements accrued pursuant to funded retirement plans subject to
the provisions of Section 412 of the Internal Revenue Code or Section 302 of
ERISA, have been fully reflected on the BFC Financial Statements to the extent
required by and in accordance with GAAP.
5.13 MATERIAL CONTRACTS. Except as disclosed in Section
5.13 of the BFC Disclosure Memorandum or otherwise reflected in the BFC
Financial Statements, none of the BFC Companies, nor any of their respective
Assets, businesses, or operations, is a party to, or is bound or affected by,
or receives benefits under, (i) any employment, severance, termination,
consulting, or retirement Contract providing for aggregate payments to any
Person in any calendar year in excess of $100,000, (ii) any Contract relating
to the borrowing of money by any BFC Company or the guarantee by any BFC
Company of any such obligation (other than Contracts evidencing deposit
liabilities, purchases of federal funds, fully-secured repurchase agreements,
and Federal Home Loan Bank advances of depository institution Subsidiaries,
trade payables, and Contracts relating to borrowings or guarantees made in the
ordinary course of business), and (iii) any other Contract or amendment thereto
that would be required to be filed as an exhibit to a Form 10-K filed by BFC
with the SEC as of the date of this Agreement that has not been filed as an
exhibit to BFC's Form 10-K filed for the fiscal year ended December 31, 1994,
or in another SEC Document and identified to Acquiror (together with all
Contracts referred to in Sections 5.8 and 5.12(a) of this Agreement, the "BFC
Contracts"). With respect to each BFC Contract and except as disclosed in
Section 5.13 of the BFC Disclosure Memorandum: (i) the Contract is in full
force and effect; (ii) no BFC Company is in Default thereunder, other than
Defaults which are not reasonably likely to have, individually or in the
aggregate, a Material
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Adverse Effect on BFC; (iii) no BFC Company has repudiated or waived any
material provision of any such Contract; and (iv) no other party to any such
Contract is, to the Knowledge of BFC, in Default in any respect, other than
Defaults which are not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on BFC, or has repudiated or waived any
material provision thereunder. All of the indebtedness of any BFC Company for
money borrowed (other than Federal Home Loan Bank advances) is prepayable at
any time by such BFC Company without penalty or premium.
5.14 LEGAL PROCEEDINGS. Except as disclosed in Section
5.14 of the BFC Disclosure Memorandum, there is no Litigation instituted or
pending, or, to the Knowledge of BFC, threatened (or unasserted but considered
probable of assertion and which if asserted would have at least a reasonable
probability of an unfavorable outcome) against any BFC Company, or against any
director, employee or employee benefit plan of any BFC Company or against any
Asset, interest, or right of any of them, that is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on BFC, nor are
there any Orders of any Regulatory Authorities, other governmental authorities,
or arbitrators outstanding against any BFC Company, that are reasonably likely
to have, individually or in the aggregate, a Material Adverse Effect on BFC.
Section 5.14 of the BFC Disclosure Memorandum contains a summary of all
Litigation as of the date of this Agreement to which any BFC Company is a party
and which names a BFC Company as a defendant and where, in the case of
Litigation brought by Persons other than Regulatory Authorities or other
government authorities, the estimated exposure is $250,000 or more.
5.15 REPORTS. Since January 1, 1992, or the date of
organization if later, each BFC Company has timely filed all reports and
statements, together with any amendments required to be made with respect
thereto, that it was required to file with (i) the SEC, including, but not
limited to, Forms 10-K, Forms 10-Q, Forms 8-K, and proxy statements, (ii) other
Regulatory Authorities, and (iii) any applicable state securities or banking
authorities (except, in the case of state securities authorities, failures to
file which are not reasonably likely to have, individually or in the aggregate,
a Material Adverse Effect on BFC). As of their respective dates, each of such
reports and documents, including the financial statements, exhibits, and
schedules thereto, complied in all material respects with all applicable Laws.
As of its respective date, each such report and document did not, in all
material respects, contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which they were
made, not misleading.
5.16 STATEMENTS TRUE AND CORRECT. None of the information
supplied or to be supplied by any BFC Company or any Affiliate thereof for
inclusion in the Registration Statement to be filed by Acquiror with the SEC
will, when the Registration Statement becomes effective, be false or misleading
with respect to any material fact, or omit to state any material fact necessary
to make the statements therein not misleading. None of the information
supplied or to be supplied by any BFC Company or any Affiliate thereof for
inclusion in the Proxy Statement to be mailed to BFC's shareholders in
connection with the Shareholders' Meeting, and any other documents to be filed
by a BFC Company or any Affiliate thereof with the SEC or any other Regulatory
Authority
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in connection with the transactions contemplated hereby, will, at the
respective time such documents are filed, and with respect to the Proxy
Statement, when first mailed to the shareholders of BFC, be false or misleading
with respect to any material fact, or omit to state any material fact necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading, or, in the case of the Proxy Statement or any
amendment thereof or supplement thereto, at the time of the Shareholders'
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
Shareholders' Meeting. All documents that any BFC Company or any Affiliate
thereof is responsible for filing with any Regulatory Authority in connection
with the transactions contemplated hereby will comply as to form in all
material respects with the provisions of applicable Law.
5.17 ACCOUNTING, TAX AND REGULATORY MATTERS. No BFC
Company or any Affiliate thereof has taken any action or has any Knowledge of
any fact or circumstance that is reasonably likely to (i) prevent the
transactions contemplated hereby, including the Merger, from qualifying for
pooling-of-interests accounting treatment or as a reorganization within the
meaning of Section 368(a) of the Internal Revenue Code, or (ii) materially
impede or delay receipt of any Consents of Regulatory Authorities referred to
in Section 9.1(b) of this Agreement or result in the imposition of a condition
or restriction of the type referred to in the last sentence of such Section.
5.18 STATE TAKEOVER LAWS. Each BFC Company has taken all
necessary action to exempt the transactions contemplated by this Agreement from
any applicable "moratorium," "control share," "fair price," "business
combination," or other anti-takeover laws and regulations of the State of
Georgia (collectively, "Takeover Laws"), including Sections 14-2-1111 and
14-2-1132 of the GBCC.
5.19 CHARTER PROVISIONS. Each BFC Company has taken all
action so that the entering into of this Agreement and the consummation of the
Merger and the other transactions contemplated by this Agreement do not and
will not result in the grant of any rights to any Person under the Articles of
Incorporation, Bylaws or other governing instruments of any BFC Company or
restrict or impair the ability of Acquiror or any of its Subsidiaries to vote,
or otherwise to exercise the rights of a shareholder with respect to, shares of
any BFC Company that may be directly or indirectly acquired or controlled by
it.
5.20 STATUS OF LOAN PORTFOLIO. All loans shown on the
Financial Statements as of June 30, 1995, or which may be entered into after
such date, were, and will be, made for good, valuable and adequate
consideration in the ordinary course of business of BFC and in accordance in
all material respects with sound banking practices and are not and will not be
subject, to the Knowledge of BFC, to any defense, set-offs or counter-claims,
including such as may be afforded by usury or truth-in-lending laws, except as
may be afforded by bankruptcy, insolvency or similar laws or by general
principles of equity, other than exceptions, omissions, defenses, set-offs or
counter-claims which are not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on BFC, and the notes and other evidences
of indebtedness with respect to the loans and all forms of pledges, mortgages
and other collateral documents and security agreements relating to the loans
are, and will be, in all material respects enforceable, valid, true and
genuine, except
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such as are not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on BFC.
5.21 ADEQUACY OF ALLOWANCE AND OTHER MATTERS. The
allowances for possible loan losses as shown on the BFC Financial Statements as
of and for the period ended June 30, 1995 were, and the allowance for possible
loan losses to be shown on the BFC Financial Statements as of any date
subsequent to the execution of this Agreement, will be, adequate to provide for
possible losses, net of recoveries as relating to loans previously charged-off,
in respect of loans outstanding (including accrued interest receivable) of BFC
and its Subsidiaries and other extensions of credit (including letters of
credit, or commitments to make loans or extend credit) and each such allowance
has been established in accordance with generally accepted accounting
principles.
5.22 DERIVATIVE CONTRACTS. No BFC Company is a party to
or has agreed to enter into an exchange-traded or over-the-counter swap,
forward, future, option, cap, floor or collar financial contract, or any other
interest rate or foreign currency protection contract not included on the BFC
Financial Statements which is a financial derivative contract (including
various combinations thereof).
5.23 ABSENCE OF UNDISCLOSED LIABILITIES. No BFC Company
has any Liabilities that are reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on BFC, except Liabilities which are
accrued or reserved against in the BFC Financial Statement as of and for the
period ended June 30, 1995, or reflected in the notes thereto and except for
Liabilities incurred since such date in the ordinary course of business of BFC.
Since June 30, 1995, none of the BFC Companies has incurred or paid any
Liability which would have a Material Adverse Effect on BFC.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF ACQUIROR AND S-T GEORGIA
Acquiror and S-T Georgia hereby represent and warrant to BFC
as follows:
6.1 ORGANIZATION, STANDING, AND POWER. Acquiror and S-T
Georgia are corporations duly organized, validly existing, and in good standing
under the Laws of the States of Delaware and Georgia, respectively, and each
has the corporate power and authority to carry on its business as now conducted
and to own, lease and operate its material Assets. Acquiror and S-T Georgia
are each duly qualified or licensed to transact business as a foreign
corporation in good standing in the States of the United States and foreign
jurisdictions where the character of its Assets or the nature or conduct of its
business requires it to be so qualified or licensed, except for such
jurisdictions in which the failure to be so qualified or licensed is not
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on Acquiror.
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6.2 AUTHORITY; NO BREACH BY AGREEMENT.
(a) Each of Acquiror and S-T Georgia has the
corporate power and authority necessary to execute, deliver and perform its
obligations under this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated herein, including the
Merger, have been duly and validly authorized by all necessary corporate action
in respect thereof on the part of Acquiror and S-T Georgia. This Agreement
represents a legal, valid, and binding obligation of Acquiror and S-T Georgia,
enforceable against Acquiror and S-T Georgia in accordance with its terms
(except in all cases as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, or similar Laws affecting
the enforcement of creditors' rights generally and except that the availability
of the equitable remedy of specific performance or injunctive relief is subject
to the discretion of the court before which any proceeding may be brought).
(b) Neither the execution and delivery of this
Agreement by Acquiror or S-T Georgia, nor the consummation by Acquiror or S-T
Georgia of the transactions contemplated hereby, nor compliance by Acquiror or
S-T Georgia with any of the provisions hereof, will (i) conflict with or result
in a breach of any provision of Acquiror's Certificate of Incorporation or
Bylaws or S-T Georgia's Articles of Incorporation or Bylaws, or (ii) constitute
or result in a Default under, or require any Consent pursuant to, or result in
the creation of any Lien on any Asset of any Acquiror Company under, any
Contract or Permit of any Acquiror Company, where such Default or Lien, or any
failure to obtain such Consent, is reasonably likely to have, individually or
in the aggregate, a Material Adverse Effect on Acquiror, or, (iii) subject to
receipt of the requisite approvals referred to in Section 9.1(b) of this
Agreement, violate any Law or Order applicable to any Acquiror Company or any
of their respective material Assets.
(c) Other than in connection or compliance with
the provisions of the Securities Laws, applicable state corporate and
securities Laws, and rules of the NASD, and other than Consents required from
Regulatory Authorities, and other than notices to or filings with the Internal
Revenue Service or the Pension Benefit Guaranty Corporation with respect to any
employee benefit plans, or under the HSR Act, and other than Consents, filings,
or notifications which, if not obtained or made, are not reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on Acquiror,
no notice to, filing with, or Consent of, any public body or authority is
necessary for the consummation by Acquiror of the Merger and the other
transactions contemplated in this Agreement.
6.3 CAPITAL STOCK. The authorized capital stock of
Acquiror consists of (i) 200,000,000 shares of Acquiror Common Stock, of which
87,763,319 shares were issued and outstanding as of October 17, 1995, exclusive
of Acquiror Rights issued under the Acquiror Rights Agreement, and (ii)
5,000,000 shares of Acquiror Preferred Stock, none of which are issued and
outstanding. All of the issued and outstanding shares of Acquiror Capital
Stock are, and all of the shares of Acquiror Common Stock to be issued in
exchange for shares of BFC Common Stock upon consummation of the Merger, when
issued in accordance with the terms of this Agreement, will be, duly and
validly issued and outstanding and fully paid and nonassessable
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under the DGCL. None of the outstanding shares of Acquiror Capital Stock has
been, and none of the shares of Acquiror Common Stock to be issued in exchange
for shares of BFC Common Stock upon consummation of the Merger will be, issued
in violation of any preemptive rights of the current or past shareholders of
Acquiror.
6.4 SEC FILINGS; FINANCIAL STATEMENTS.
(a) Acquiror has filed and made available to BFC
all forms, reports, and documents required to be filed by Acquiror with the SEC
since December 31, 1992, other than registration statements on Forms S-4 and
S-8 (collectively, the "Acquiror SEC Reports"). The Acquiror SEC Reports (i)
at the time filed, complied in all material respects with the applicable
requirements of the Securities Act and the Exchange Act, as the case may be,
and (ii) did not at the time they were filed (or if amended or superseded by a
filing prior to the date of this Agreement, then on the date of such filing)
contain any untrue statement of a material fact or omit to state a material
fact required to be stated in such Acquiror SEC Reports or necessary in order
to make the statements in such Acquiror SEC Reports, in light of the
circumstances under which they were made, not misleading.
(b) Each of the Acquiror Financial Statements
(including, in each case, any related notes) contained in the Acquiror SEC
Reports, including any Acquiror SEC Reports filed after the date of this
Agreement until the Effective Time, complied as to form in all material
respects with the applicable published rules and regulations of the SEC with
respect thereto, was prepared in accordance with GAAP applied on a consistent
basis throughout the periods involved (except as may be indicated in the notes
to such financial statements or, in the case of unaudited statements, as
permitted by Form 10-Q of the SEC), and fairly presented the consolidated
financial position of Acquiror and its Subsidiaries as at the respective dates
and the consolidated results of its operations and cash flows for the periods
indicated, except that the unaudited interim financial statements were or are
subject to normal and recurring year-end adjustments which were not or are not
expected to be material in amount.
6.5 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since December
31, 1994, except as disclosed in the Acquiror Financial Statements, dated
subsequent December 31, 1994, and delivered prior to the date of this Agreement
or as disclosed in Section 6.5 of the Acquiror Disclosure Memorandum, (i) there
have been no events, changes or occurrences which have had, or are reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
Acquiror and (ii) neither Acquiror nor S-T Georgia has not taken any action or
failed to take any action, prior to the date of this Agreement, which action or
failure, if taken after the date of this Agreement, would represent or result
in a material breach or violation of any of the covenants and agreements of
Acquiror or S-T Georgia contained in this Agreement.
6.6 COMPLIANCE WITH LAWS. Each of Acquiror and S-T
Georgia is duly registered as a bank holding company under the BHC Act. Each
Acquiror Company has in effect all Permits necessary for it to own, lease or
operate its material Assets and to carry on its business as now conducted,
except for those Permits the absence of which are not reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on Acquiror,
and there has
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occurred no Default under any such Permit, other than Defaults which are not
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on Acquiror. Except as disclosed in Section 6.6 of the Acquiror
Disclosure Memorandum, no Acquiror Company:
(a) is in violation of any Laws, Orders or Permits
applicable to its business or employees conducting its business, except
for violations which are not reasonably likely to have, individually or
in the aggregate, a Material Adverse Effect on Acquiror; and
(b) since January 1, 1993, has received any notification
or communication from any agency or department of federal, state, or
local government or any Regulatory Authority or the staff thereof (i)
asserting that any Acquiror Company is not in compliance with any of the
Laws or Orders which such governmental authority or Regulatory Authority
enforces, where such noncompliance is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Acquiror,
(ii) threatening to revoke any Permits, the revocation of which is
reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on Acquiror, or (iii) requiring any Acquiror Company to
enter into or consent to the issuance of a cease and desist order,
formal agreement, directive, commitment or memorandum of understanding,
or to adopt any Board resolution or similar undertaking, which restricts
materially the conduct of its business, or in any manner relates to its
capital adequacy, its credit or reserve policies, its management, or the
payment of dividends.
6.7 LEGAL PROCEEDINGS. There is no Litigation instituted
or pending, or, to the Knowledge of Acquiror, threatened (or unasserted but
considered probable of assertion and which if asserted would have at least a
reasonable probability of an unfavorable outcome) against any Acquiror Company,
or against any Asset, interest, or right of any of them, that is reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
Acquiror, nor are there any Orders of any Regulatory Authorities, other
governmental authorities, or arbitrators outstanding against any Acquiror
Company, that are reasonably likely to have, individually or in the aggregate,
a Material Adverse Effect on Acquiror.
6.8 REPORTS. Since January 1, 1992, or the date of
organization if later, each Acquiror Company has filed all reports and
statements, together with any amendments required to be made with respect
thereto, that it was required to file with (i) the SEC, including, but not
limited to, Forms 10-K, Forms 10-Q, Forms 8-K, and proxy statements, (ii) other
Regulatory Authorities, and (iii) any applicable state securities or banking
authorities (except, in the case of state securities authorities, failures to
file which are not reasonably likely to have, individually or in the aggregate,
a Material Adverse Effect on Acquiror). As of their respective dates, each of
such reports and documents, including the financial statements, exhibits, and
schedules thereto, complied in all material respects with all applicable Laws.
As of its respective date, each such report and document did not, in all
material respects, contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which they were
made, not misleading.
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6.9 STATEMENTS TRUE AND CORRECT. None of the information
supplied or to be supplied by any Acquiror Company or any Affiliate thereof for
inclusion in the Registration Statement to be filed by Acquiror with the SEC,
will, when the Registration Statement becomes effective, be false or misleading
with respect to any material fact, or omit to state any material fact necessary
to make the statements therein not misleading. None of the information
supplied or to be supplied by any Acquiror Company or any Affiliate thereof for
inclusion in the Proxy Statement to be mailed to BFC's shareholders in
connection with the Shareholders' Meeting, and any other documents to be filed
by any Acquiror Company or any Affiliate thereof with the SEC or any other
Regulatory Authority in connection with the transactions contemplated hereby,
will, at the respective time such documents are filed, and with respect to the
Proxy Statement, when first mailed to the shareholders of BFC, be false or
misleading with respect to any material fact, or omit to state any material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, or, in the case of the Proxy
Statement or any amendment thereof or supplement thereto, at the time of the
Shareholders' 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
Shareholders' Meeting. All documents that any Acquiror Company or any
Affiliate thereof is responsible for filing with any Regulatory Authority in
connection with the transactions contemplated hereby will comply as to form in
all material respects with the provisions of applicable Law.
6.10 ACCOUNTING, TAX AND REGULATORY MATTERS. No Acquiror
Company or any Affiliate thereof has taken any action or has any Knowledge of
any fact or circumstance that is reasonably likely to (i) prevent the
transactions contemplated hereby, including the Merger, from qualifying for
pooling-of-interests accounting treatment or as a reorganization within the
meaning of Section 368(a) of the Internal Revenue Code, or (ii) materially
impede or delay receipt of any Consents of Regulatory Authorities referred to
in Section 9.1(b) of this Agreement or result in the imposition of a condition
or restriction of the type referred to in the last sentence of such Section.
6.11 RIGHTS AGREEMENT. Execution of this Agreement and
consummation of the Merger and the other transactions contemplated by this
Agreement will not result in the grant of any rights to any Person under the
Acquiror Rights Agreement (other than as contemplated by Section 3.1 of this
Agreement) or enable or require the Acquiror Rights to be exercised,
distributed or triggered. No "Stock Acquisition Date" or "Triggering Event"
(as such terms are defined in the Acquiror Rights Agreement) has occurred.
ARTICLE 7
CONDUCT OF BUSINESS PENDING CONSUMMATION
7.1 AFFIRMATIVE COVENANTS OF BFC. Unless the prior
written consent of the other Party shall have been obtained, and except as
otherwise expressly contemplated herein, BFC shall and shall cause each of its
Subsidiaries to (a) operate its business only in the usual, regular, and
ordinary course, (b) preserve intact its business organization and Assets and
maintain its
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rights and franchises, and (c) take no action which would (i) adversely affect
the ability of any Party to obtain any Consents required for the transactions
contemplated hereby without imposition of a condition or restriction of the
type referred to in the last sentence of Section 9.1(b) of this Agreement, or
(ii) adversely affect the ability of any Party to perform its covenants and
agreements under this Agreement.
7.2 NEGATIVE COVENANTS OF BFC. From the date of this
Agreement until the earlier of the Effective Time or the termination of this
Agreement, BFC covenants and agrees that it will not do or agree or commit to
do, or permit any of its Subsidiaries to do or agree or commit to do, any of
the following without the prior written consent of the chief executive officer,
president or chief financial officer of Acquiror, which consent shall not be
unreasonably withheld:
(a) amend the Articles of Incorporation, Bylaws or other
governing instruments of any BFC Company, or
(b) incur any additional debt obligation or other
obligation for borrowed money (other than indebtedness of a BFC Company
to another BFC Company) in excess of an aggregate of $250,000 (for the
BFC Companies on a consolidated basis) except in the ordinary course of
the business of BFC Subsidiaries consistent with past practices (which
shall include, for BFC Subsidiaries that are depository institutions,
creation of deposit liabilities, purchases of federal funds, advances
from the Federal Reserve Bank or Federal Home Loan Bank, and entry into
repurchase agreements fully secured by U.S. government or agency
securities), or impose, or suffer the imposition, on any Asset of any
BFC Company of any Lien or permit any such Lien to exist (other than in
connection with deposits, repurchase agreements, bankers acceptances,
"treasury tax and loan" accounts established in the ordinary course of
business, the satisfaction of legal requirements in the exercise of
trust powers, and Liens in effect as of the date hereof that are
disclosed in the BFC Disclosure Memorandum); or
(c) repurchase, redeem, or otherwise acquire or exchange
(other than exchanges in the ordinary course under employee benefit
plans), directly or indirectly, any shares, or any securities
convertible into any shares, of the capital stock of any BFC Company, or
declare or pay any dividend or make any other distribution in respect of
BFC's capital stock, provided that BFC may (to the extent legally and
contractually permitted to do so), but shall not be obligated to,
declare and pay regular quarterly cash dividends on the shares of BFC
Common Stock at a rate not in excess of $.15 per share with usual and
regular record and payment dates in accordance with past practice
disclosed in Section 7.2(c) of the BFC Disclosure Memorandum and such
dates may not be changed without the prior written consent of Acquiror;
provided, that, notwithstanding the provisions of Section 1.3, the
Parties shall cooperate in selecting the Effective Time to ensure that,
with respect to the quarterly period in which the Effective Time occurs,
the holders of BFC Common Stock do not become entitled to receive both a
dividend in respect of their BFC Common Stock and a dividend in respect
of Acquiror Common Stock or fail to be entitled to receive any dividend;
or
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(d) except for this Agreement, or pursuant to the
exercise of stock options outstanding as of the date hereof and pursuant
to the terms thereof in existence on the date hereof, or pursuant to the
Stock Option Agreement, issue, sell, pledge, encumber, authorize the
issuance of, enter into any Contract to issue, sell, pledge, encumber,
or authorize the issuance of, or otherwise permit to become outstanding,
any additional shares of BFC Common Stock or any other capital stock of
any BFC Company, or any stock appreciation rights, or any option,
warrant, conversion, or other right to acquire any such stock, or any
security convertible into any such stock; or
(e) adjust, split, combine or reclassify any capital
stock of any BFC Company or issue or authorize the issuance of any other
securities in respect of or in substitution for shares of BFC Common
Stock, or, except as disclosed in Section 7.2(e) of the BFC Disclosure
Memorandum, sell, lease, mortgage or otherwise dispose of or otherwise
encumber any shares of capital stock of any BFC Subsidiary (unless any
such shares of stock are sold or otherwise transferred to another BFC
Company) or any Asset having a book value in excess of $250,000 other
than in the ordinary course of business for reasonable and adequate
consideration; or
(f) except for purchases of U.S. Treasury securities or
U.S. Government agency securities, which in either case have maturities
of three years or less, purchase any securities or make any material
investment, either by purchase of stock of securities, contributions to
capital, Asset transfers, or purchase of any Assets, in any Person other
than a wholly owned BFC Subsidiary, or otherwise acquire direct or
indirect control over any Person, other than in connection with (i)
foreclosures in the ordinary course of business, (ii) acquisitions of
control by a depository institution Subsidiary in its fiduciary
capacity, or (iii) the creation of new wholly owned Subsidiaries
organized to conduct or continue activities otherwise permitted by this
Agreement; or
(g) grant any increase in compensation or benefits to the
employees or officers of any BFC Company, except in accordance with past
practice disclosed in Section 7.2(g) of the BFC Disclosure Memorandum or
as required by Law; pay any severance or termination pay or any bonus
other than pursuant to written policies or written Contracts in effect
on the date of this Agreement and disclosed in Section 7.2(g) of the BFC
Disclosure Memorandum; and enter into or amend any severance agreements
with officers of any BFC Company; grant any material increase in fees or
other increases in compensation or other benefits to directors of any
BFC Company except in accordance with past practice disclosed in Section
7.2(g) of the BFC Disclosure Memorandum; or voluntarily accelerate the
vesting of any stock options or other stock-based compensation or
employee benefits; or
(h) enter into or amend any employment Contract between
any BFC Company and any Person (unless such amendment is required by
Law) that the BFC Company does not have the unconditional right to
terminate without Liability (other than Liability for services already
rendered), at any time on or after the Effective Time; or
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(i) except as disclosed in Section 7.2(i) of the BFC
Disclosure Memorandum, adopt any new employee benefit plan of any BFC
Company or make any material change in or to any existing employee
benefit plans of any BFC Company other than any such change that is
required by Law or that, in the opinion of counsel, is necessary or
advisable to maintain the tax qualified status of any such plan; or
(j) make any significant change in any Tax or accounting
methods or systems of internal accounting controls, except as may be
appropriate to conform to changes in Tax Laws or regulatory accounting
requirements or GAAP; or
(k) commence any Litigation other than in accordance with
past practice, settle any Litigation involving any Liability of any BFC
Company for material money damages or restrictions upon the operations
of any BFC Company; or
(l) except in the ordinary course of business, modify,
amend or terminate any material Contract (including any loan Contract
with an unpaid balance exceeding $250,000) or waive, release, compromise
or assign any material rights or claims.
7.3 COVENANTS OF ACQUIROR AND S-T GEORGIA. From the date
of this Agreement until the earlier of the Effective Time or the termination of
this Agreement, each of Acquiror and S-T Georgia covenants and agrees that it
shall (x) continue to conduct its business and the business of its Subsidiaries
in a manner designed in its reasonable judgment, to enhance the long-term value
of the Acquiror Common Stock and the business prospects of the Acquiror
Companies and (y) take no action which would (i) materially adversely affect
the ability of any Party to obtain any Consents required for the transactions
contemplated hereby without imposition of a condition or restriction of the
type referred to in the last sentence of Section 9.1(b) of this Agreement, or
(ii) materially adversely affect the ability of any Party to perform its
covenants and agreements under this Agreement; provided, that the foregoing
shall not prevent any Acquiror Company from discontinuing or disposing of any
of its Assets or business if such action is, in the judgment of Acquiror,
desirable in the conduct of the business of Acquiror and its Subsidiaries.
7.4 ADVERSE CHANGES IN CONDITION. Each Party agrees to
give written notice promptly to the other Party upon becoming aware of the
occurrence or impending occurrence of any event or circumstance relating to it
or any of its Subsidiaries which (i) is reasonably likely to have, individually
or in the aggregate, a Material Adverse Effect on it or (ii) would cause or
constitute a material breach of any of its representations, warranties, or
covenants contained herein, and to use its reasonable efforts to prevent or
promptly to remedy the same.
7.5 REPORTS. Each Party and its Subsidiaries shall file
all reports required to be filed by it with Regulatory Authorities between the
date of this Agreement and the Effective Time and shall deliver to the other
Party copies of all such reports promptly after the same are filed. If
financial statements are contained in any such reports filed with the SEC, such
financial statements will fairly present the consolidated financial position of
the entity filing such statements as of the dates indicated and the
consolidated results of operations, changes in shareholders' equity, and
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cash flows for the periods then ended in accordance with GAAP (subject in the
case of interim financial statements to normal recurring year-end adjustments
that are not material). As of their respective dates, such reports filed with
the SEC will comply in all material respects with the Securities Laws and will
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Any financial statements contained in any other reports to another
Regulatory Authority shall be prepared in accordance with Laws applicable to
such reports.
ARTICLE 8
ADDITIONAL AGREEMENTS
8.1 REGISTRATION STATEMENT; PROXY STATEMENT; SHAREHOLDER
APPROVAL. As soon as practicable after execution of this Agreement, Acquiror
shall file the Registration Statement with the SEC, and shall use its
reasonable efforts to cause the Registration Statement to become effective
under the 1933 Act and take any action required to be taken under the
applicable state Blue Sky or securities Laws in connection with the issuance of
the shares of Acquiror Common Stock upon consummation of the Merger. BFC shall
furnish all information concerning it and the holders of its capital stock as
Acquiror may reasonably request in connection with such action. BFC shall call
a Shareholders' Meeting, to be held as soon as reasonably practicable after the
Registration Statement is declared effective by the SEC, for the purpose of
voting upon approval of this Agreement and such other related matters as it
deems appropriate. In connection with the Shareholders' Meeting, (i) BFC shall
prepare and file with the SEC a Proxy Statement and mail such Proxy Statement
to BFC's shareholders, (ii) the Parties shall furnish to each other all
information concerning them that they may reasonably request in connection with
such Proxy Statement, (iii) the Board of Directors of BFC shall recommend
(subject to compliance with their fiduciary duties as advised by counsel) to
its shareholders the approval of this Agreement, and (iv) the Board of
Directors and officers of BFC shall (subject to compliance with their fiduciary
duties as advised by counsel) use their reasonable efforts to obtain such
shareholders' approval.
8.2 EXCHANGE LISTING. Acquiror shall use its reasonable
efforts to list, prior to the Effective Time, on the Nasdaq National Market the
shares of Acquiror Common Stock to be issued to the holders of BFC Common Stock
pursuant to the Merger.
8.3 APPLICATIONS. Acquiror shall promptly prepare and
file, and BFC shall cooperate in the preparation and, where appropriate, filing
of, applications with all Regulatory Authorities having jurisdiction over the
transactions contemplated by this Agreement seeking the requisite Consents
necessary to consummate the transactions contemplated by this Agreement.
8.4 FILINGS WITH STATE OFFICES. Upon the terms and
subject to the conditions of this Agreement, S-T Georgia shall execute and
file the Certificate of Merger with the Secretary of State of the State of
Georgia] in connection with the Closing.
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8.5 AGREEMENT AS TO EFFORTS TO CONSUMMATE. Subject to
the terms and conditions of this Agreement, each Party agrees to use, and to
cause its Subsidiaries to use, its reasonable efforts to take, or cause to be
taken, all actions, and to do, or cause to be done, all things necessary,
proper, or advisable under applicable Laws to consummate and make effective, as
soon as practicable after the date of this Agreement, the transactions
contemplated by this Agreement, including using its reasonable efforts to lift
or rescind any Order adversely affecting its ability to consummate the
transactions contemplated herein and to cause to be satisfied the conditions
referred to in Article 9 of this Agreement; provided, that nothing herein shall
preclude either Party from exercising its rights under this Agreement. Each
Party shall use, and shall cause each of its Subsidiaries to use, its
reasonable efforts to obtain all Consents necessary or desirable for the
consummation of the transactions contemplated by this Agreement.
8.6 INVESTIGATION AND CONFIDENTIALITY.
(a) Prior to the Effective Time, each Party shall
keep the other Party advised of all material developments relevant to its
business and to consummation of the Merger and shall permit the other Party to
make or cause to be made such investigation of the business and properties of
it and its Subsidiaries and of their respective financial and legal conditions
as the other Party reasonably requests, provided that such investigation shall
be reasonably related to the transactions contemplated hereby and shall not
interfere unnecessarily with normal operations. No investigation by a Party
shall affect the representations and warranties of the other Party.
(b) In addition to the Parties' respective
obligations under the Confidentiality Agreement, each Party shall, and shall
cause its advisers and agents to, maintain the confidentiality of all
confidential information furnished to it by the other Party concerning its and
its Subsidiaries' businesses, operations, and financial positions and shall not
use such information for any purpose except in furtherance of the transactions
contemplated by this Agreement. If this Agreement is terminated prior to the
Effective Time, each Party shall promptly return or certify the destruction of
all documents and copies thereof, and all work papers containing confidential
information received from the other Party.
(c) Each Party agrees to give the other Party
notice as soon as practicable after any determination by it of any fact or
occurrence relating to the other Party which it has discovered through the
course of its investigation and which represents, or is reasonably likely to
represent, either a material breach of any representation, warranty, covenant
or agreement of the other Party or which has had or is reasonably likely to
have a Material Adverse Effect on the other Party.
8.7 PRESS RELEASES. Prior to the Effective Time, BFC and
Acquiror shall consult with each other as to the form and substance of any
press release or other public disclosure materially related to this Agreement
or any other transaction contemplated hereby; provided, that nothing in this
Section 8.7 shall be deemed to prohibit any Party from making any disclosure
which its counsel deems necessary or advisable in order to satisfy such Party's
disclosure obligations imposed by Law.
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8.8 CERTAIN ACTIONS. Except with respect to this
Agreement and the transactions contemplated hereby, no BFC Company nor any
Affiliate thereof nor any Representative retained by any BFC Company shall
directly or indirectly solicit any Acquisition Proposal by any Person. Except
to the extent necessary to comply with the fiduciary duties of BFC's Board of
Directors as advised by counsel, no BFC Company or any Affiliate or
Representative thereof shall furnish any non-public information that it is not
legally obligated to furnish, negotiate with respect to, or enter into any
Contract with respect to, any Acquisition Proposal, but BFC may communicate
information about such an Acquisition Proposal to its shareholders if and to
the extent that it is required to do so in order to comply with its legal
obligations as advised by counsel. Any action taken by BFC upon advice of its
counsel, in accordance with the preceding sentence, including the termination
of this Agreement, shall not be deemed to be, or to result in, a breach of any
of the representations, warranties, covenants, agreements or restrictions of
BFC contained in this Agreement. BFC shall promptly notify Acquiror orally and
in writing in the event that it receives any inquiry or proposal relating to
any such transaction.
8.9 ACCOUNTING AND TAX TREATMENT. Each of the Parties
undertakes and agrees to use its reasonable efforts to cause the Merger, and to
take no action which would cause the Merger not, to qualify for
pooling-of-interests accounting treatment and treatment as a "reorganization"
within the meaning of Section 368(a) of the Internal Revenue Code for federal
income tax purposes.
8.10 STATE TAKEOVER LAWS. Each BFC Company shall take all
necessary steps to exempt the transactions contemplated by this Agreement from,
or if necessary challenge the validity or applicability of, any applicable
state Takeover Law, including Parts 2 and 3 of Article 11 of Chapter 2 of Title
14 of the GBCC.
8.11 CHARTER PROVISIONS. Each BFC Company shall take all
necessary action to ensure that the entering into of this Agreement and the
consummation of the Merger and the other transactions contemplated hereby do
not and will not result in the grant of any rights to any Person under the
Articles of Incorporation, Bylaws or other governing instruments of any BFC
Company or restrict or impair the ability of Acquiror or any of its
Subsidiaries to vote, or otherwise to exercise the rights of a shareholder with
respect to, shares of any BFC Company that may be directly or indirectly
acquired or controlled by it.
8.12 AGREEMENT OF AFFILIATES. BFC has disclosed in
Section 8.12 of the BFC Disclosure Memorandum all Persons whom it reasonably
believes is an "affiliate" of BFC for purposes of Rule 145 under the 1933 Act.
BFC shall use its reasonable efforts to cause each such Person to deliver to
Acquiror not later than 30 days prior to the Effective Time, a written
agreement, substantially in the form of Exhibit 2, providing that such Person
will not sell, pledge, transfer, or otherwise dispose of the shares of BFC
Common Stock held by such Person except as contemplated by such agreement or by
this Agreement and will not sell, pledge, transfer, or otherwise dispose of the
shares of Acquiror Common Stock to be received by such Person upon consummation
of the Merger except in compliance with applicable provisions of the 1933 Act
and
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the rules and regulations thereunder and until such time as financial results
covering at least 30 days of combined operations of Acquiror and BFC have been
published within the meaning of Section 201.01 of the SEC's Codification of
Financial Reporting Policies. If the Merger will qualify for
pooling-of-interests accounting treatment, shares of Acquiror Common Stock
issued to such affiliates of BFC in exchange for shares of BFC Common Stock
shall not be transferable until such time as financial results covering at
least 30 days of combined operations of Acquiror and BFC have been published
within the meaning of Section 201.01 of the SEC's Codification of Financial
Reporting Policies, regardless of whether each such affiliate has provided the
written agreement referred to in this Section 8.12 (and Acquiror shall be
entitled to place restrictive legends upon certificates for shares of Acquiror
Common Stock issued to affiliates of BFC pursuant to this Agreement to enforce
the provisions of this Section 8.12). Acquiror shall not be required to
maintain the effectiveness of the Registration Statement under the 1933 Act for
the purposes of resale of Acquiror Common Stock by such affiliates.
8.13 EMPLOYEE BENEFITS AND CONTRACTS.
(a) Following the Effective Time, except as
otherwise provided in this Section 8.15, Acquiror shall provide generally to
officers and employees of the BFC Companies employee benefits under employee
benefit plans (other than stock option or other plans involving the potential
issuance of Acquiror Common Stock), on terms and conditions which when taken as
a whole are substantially similar to those currently provided by the Acquiror
Companies to their similarly situated officers and employees; provided, that,
for a period of 12 months after the Effective Time, Acquiror shall provide
generally to officers and employees of BFC Companies severance benefits in
accordance with the policies of either (i) BFC as disclosed in Section 8.13 of
the BFC Disclosure Memorandum, or (ii) Acquiror, whichever of (i) or (ii) will
provide the greater benefit to the officer or employee. Acquiror also shall
cause the Surviving Corporation and its Subsidiaries to honor in accordance
with their terms all employment, severance, consulting and other compensation
Contracts disclosed in Section 8.13 of the BFC Disclosure Memorandum to
Acquiror between any BFC Company and any current or former director, officer,
or employee thereof, and all provisions for vested benefits or other vested
amounts earned or accrued through the Effective Time under the BFC Benefit
Plans. The parties acknowledge that nothing in this Agreement shall be
construed as constituting an employment agreement between Acquiror or any of
its Affiliates and any officer or employee of any BFC Company or an obligation
on the part of Acquiror or any of its Affiliates to employ any such officers or
employees.
(b) The parties agree that appropriate steps
shall be taken to terminate all employee benefit plans of BFC other than the
Retirement Plan and Trust of Bankers First Corporation (the "BFC Retirement
Plan") and the Bankers First Corporation Employee Stock Ownership Plan (the
"ESOP"), as of the Effective Time or as promptly as practicable thereafter.
Following the termination of all such plans (other than the BFC Retirement Plan
and ESOP), and subject to Section 8.13(c) hereof, Acquiror agrees that the
officers and employees of any BFC Company who the Surviving Corporation or its
Subsidiaries employs shall be eligible to participate in Acquiror's employee
benefit plans, including welfare and fringe benefit plans on the same basis as
and subject to the same conditions as are applicable to any newly-hired
employee of Acquiror; provided, that:
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(i) with respect to Acquiror's group medical
insurance plan, Acquiror shall credit each such employee for eligible
expenses incurred by such employee and his or her dependents (if
applicable) under BFC's group medical insurance plan during the current
calendar year for purposes of satisfying the deductible provisions under
Acquiror's plan for such current year, and Acquiror shall waive all
waiting periods under said plans for pre-existing conditions; and
(ii) credit for each such employee's past service
with BFC Companies prior to the Effective Time ("Past Service Credit")
shall be given by Acquiror to employees for purposes of:
(1) determining vacation and sick leave
benefits and accruals, in accordance with the established
policies of Acquiror;
(2) establishing eligibility for
participation in and vesting under Acquiror's employee benefit
plans (including welfare and fringe benefit plans), and for
purposes of determining the scheduling of vacations and other
determinations which are based on length of service; provided,
however, notwithstanding anything contained in this Agreement to
the contrary, Past Service Credit shall not be given to any such
employee for purposes of establishing eligibility for
participation in the 1990 Discounted Stock Plan of Acquiror.
(c) The parties further agree that the BFC
Retirement Plan will either be (i) merged into the SouthTrust Corporation
Revised Retirement Income Plan (the "ST Retirement Plan") or (ii) terminated as
of such date prior to, on or after the Effective Time, all as Acquiror shall
determine and specify. Prior to any such merger or termination, the BFC
Retirment Plan shall be amended so that the actuarial value of the benefits
payable, determined on a termination basis, equals the fair market value of the
assets of the BFC Retirement Plan immediately prior to such merger or
termination. The determination as to whether the BFC Retirement Plan shall
terminated or merged into the ST Retirement Plan shall be made by Acquiror.
From and after (i) January 1 following the termination of the BFC Retirement
Plan or (ii) the merger of the BFC Retirement Plan into the ST Retirement Plan,
for purposes of determining eligibility to participate in, and vesting in
accrued benefits under both the ST Retirement Plan and the SouthTrust
Corporation Employee's Profit Sharing Plan (the "ST PS Plan"), employment by
BFC Companies shall be credited as if it were employment by Acquiror, except to
the extent otherwise required by applicable Law, but such service shall not be
credited for purposes of determining benefit accrual under the ST Retirement
Plan.
(d) The ESOP as amended to the extent, if any,
necessary to obtain such a determination letter from the Internal Revenue
Service, shall be terminated as of such date prior to, on, or after the
Effective Time, as Acquiror and BFC shall mutually determine and specify.
Distributions shall be made from the ESOP in accordance with the terms and
provisions of the ESOP prior to receipt from the Internal Revenue Service of a
favorable determination letter with respect to the effect of such termination
upon the qualified status of the ESOP; subject,
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however, to the trustee's right to retain such amounts as it reasonably deems
appropriate as a reserve for any Taxes which may be imposed against the ESOP.
8.14 INDEMNIFICATION.
(a) Acquiror shall, and shall cause the Surviving
Corporation to, indemnify, defend and hold harmless the present and former
directors, officers, employees and agents of the BFC Companies (each, an
"Indemnified Party") against all Liabilities arising out of actions or
omissions occurring at or prior to the Effective Time (including the
transactions contemplated by this Agreement) to the full extent permitted under
Georgia Law and by BFC's Articles of Incorporation and Bylaws as in effect on
the date hereof, including provisions relating to advances of expenses incurred
in the defense of any Litigation. Without limiting the foregoing, in any case
in which approval by the Surviving Corporation is required to effectuate any
indemnification, Acquiror shall direct, at the election of the Indemnified
Party, that the determination of any such approval shall be made by independent
counsel mutually agreed upon between Acquiror and the Indemnified Party.
(b) Acquiror shall, or shall cause the Surviving
Corporation to, use its reasonable efforts (and BFC shall cooperate prior to
the Effective Time in these efforts) to maintain in effect for a period of six
years after the Effective Time BFC's existing directors' and officers'
liability insurance policy (provided that Acquiror may substitute therefor (i)
policies of at least the same coverage and amounts containing terms and
conditions which are substantially no less advantageous or (ii) with the
consent of BFC given prior to the Effective Time, any other policy) with
respect to claims arising from facts or events which occurred prior to the
Effective Time and covering persons who are currently covered by such
insurance; provided that neither Acquiror nor the Surviving Corporation shall
be obligated to make premium payments for such six-year period in respect of
such policy (or coverage replacement of such policy) which exceed, for the
portion related to BFC's directors and officers, 200% of the annual premium
payments on BFC's current policy in effect as of the date of this Agreement
(the "Maximum Amount"). If the amount of the premiums necessary to maintain or
procure such insurance coverage exceeds the Maximum Amount, Acquiror shall use
its reasonable best efforts to maintain the most advantageous policies of
directors' and officers' liability insurance obtainable for a premium equal to
the Maximum Amount.
(c) The Surviving Corporation shall not be liable
for any settlement effected without its prior written consent. The Surviving
Corporation shall not have any obligation hereunder to any Indemnified Party
when and if a court of competent jurisdiction shall determine, and such
determination shall have become final, that the indemnification of such
Indemnified Party in the manner contemplated hereby is prohibited by applicable
Law.
(d) If Acquiror or the Surviving Corporation or
any of their successors or assigns shall consolidate with or merge into any
other Person and shall not be the continuing or surviving Person of such
consolidation or merger or shall transfer all or substantially all of its
assets to any Person, then and in each case, proper provision shall be made so
that the successors and assigns of Acquiror or Surviving Corporation, as the
case may be, shall assume the obligations set forth in this Section 8.14.
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(e) The provisions of this Section 8.14 are
intended to be for the benefit of, and enforceable by, each Indemnified Party,
his or her heirs and representatives.
8.15 CERTAIN MODIFICATIONS; RESTRUCTURING CHARGES.
Following the execution of this Agreement, Acquiror and BFC will consult with
respect to (i) their loan, accrual, reserve, litigation and real estate
evaluation policies and practices (including loan classifications and levels of
reserves) and (ii) the character, amount and timing of any restructuring
charges to be taken by each of Acquiror and BFC in connection with such matters
or otherwise in connection with the transactions contemplated this Agreement,
including (a) any charge in respect to the write off or write down of any
Asset, (b) any reserve or other charge relating to the fees and expenses of
advisors and other third parties in connection with the transactions
contemplated by this Agreement, (c) any reserve or other charge relating to
severance, termination, and retirement payments in connection with the
transactions contemplated by this Agreement, (d) recapture of the bad-debt
reserve of the BFC Companies arising from the conversion of Bankers First
Savings Bank, FSB into a national banking association or state bank, and (e) in
respect of any SAIF recapitalization special assessment (to the extent
permitted by applicable Law), and any other appropriate accounting adjustment.
Acquiror and BFC hereby acknowledge and agree that the decision to effect any
such change to the loan, accrual, reserve, litigation and real estate
evaluation policies or practices of BFC (including loan classifications and
levels of reserve) or to make any restructuring charge, including the timing
and amount thereof, shall be subject to the mutual agreement of Acquiror and
BFC; provided, that no action shall be taken pursuant to this Section 8.15
unless such action is consistent with generally accepted accounting principles.
Notwithstanding anything to the contrary set forth above, the warranties,
representations, covenants and agreements of BFC contained in this Agreement
shall not be deemed to be untrue, or breached or otherwise affected in any
respect, as a consequence of any action taken pursuant to this Section 8.15.
ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE
9.1 CONDITIONS TO OBLIGATIONS OF EACH PARTY. The
respective obligations of each Party to perform this Agreement and consummate
the Merger and the other transactions contemplated hereby are subject to the
satisfaction of the following conditions, unless waived by both Parties
pursuant to Section 11.6 of this Agreement:
(a) SHAREHOLDER APPROVAL. The shareholders of BFC shall
have approved this Agreement, and the consummation of the transactions
contemplated hereby, including the Merger, as and to the extent required
by Law, by the provisions of any governing instruments, or by the rules
of the NASD.
(b) REGULATORY APPROVALS. All Consents of, filings and
registrations with, and notifications to, all Regulatory Authorities
required for consummation of the Merger shall have been obtained or made
and shall be in full force and effect and all waiting periods required
by Law shall have expired. No Consent obtained from any Regulatory
Authority
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which is necessary to consummate the transactions contemplated hereby
shall be conditioned or restricted in a manner (including requirements
relating to the raising of additional capital, but not including any
requirements that Assets or deposits be divested in order to cure any
asserted anti-trust concern, the parties agreeing that the risk of such
divestiture requirements is assumed by Acquiror) which in the reasonable
judgment of the Board of Directors of either Party would so materially
adversely impact the economic or business benefits of the transactions
contemplated by this Agreement that, had such condition or requirement
been known, such Party would not, in its reasonable judgment, have
entered into this Agreement.
(c) LEGAL PROCEEDINGS. No court or governmental or
regulatory authority of competent jurisdiction shall have enacted,
issued, promulgated, enforced or entered any Law or Order (whether
temporary, preliminary or permanent) or taken any other action which
prohibits, restricts or makes illegal consummation of the transactions
contemplated by this Agreement.
(d) REGISTRATION STATEMENT. The Registration Statement
shall be effective under the 1933 Act, no stop orders suspending the
effectiveness of the Registration Statement shall have been issued, no
action, suit, proceeding or investigation by the SEC to suspend the
effectiveness thereof shall have been initiated and be continuing, and
all necessary approvals under state securities Laws or the 1933 Act or
1934 Act relating to the issuance or trading of the shares of Acquiror
Common Stock issuable pursuant to the Merger shall have been received.
(e) EXCHANGE LISTING. The shares of Acquiror Common
Stock issuable pursuant to the Merger shall have been approved for
listing on the Nasdaq National Market.
(f) POOLING LETTERS. Each of the Parties shall have
received a letter, dated as of the Effective Time, in form and substance
reasonably acceptable to such Party, from Arthur Andersen & Co. LLP to
the effect that the Merger will qualify for pooling-of-interests
accounting treatment. Each of the Parties also shall have received a
letter, dated as of the Effective Time, in form and substance reasonably
acceptable to such Party, from KPMG Peat Marwick LLP to the effect that
such firm is not aware of any matters relating to BFC and its
Subsidiaries which would preclude the Merger from qualifying for
pooling-of-interests accounting treatment.
(g) TAX MATTERS. Each Party shall have received a
written opinion of counsel from Alston & Bird in form reasonably
satisfactory to such Parties (the "Tax Opinion"), to the effect that (i)
the Merger will constitute a reorganization within the meaning of
Section 368(a) of the Internal Revenue Code, (ii) the exchange in the
Merger of BFC Common Stock for Acquiror Common Stock will not give rise
to gain or loss to the shareholders of BFC with respect to such exchange
(except to the extent of any cash received), and (iii) none of BFC or
Acquiror will recognize gain or loss as a consequence of the Merger
(except for the inclusion in income of the amount of the bad-debt
reserve maintained by BFC and any other amounts resulting from any
required change in accounting methods and any income and deferred gain
recognized pursuant to Treasury regulations issued under
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<PAGE> 37
Section 1502 of the Internal Revenue Code). In rendering such Tax
Opinion, such counsel shall be entitled to rely upon representations of
officers of BFC and Acquiror reasonably satisfactory in form and
substance to such counsel.
9.2 CONDITIONS TO OBLIGATIONS OF ACQUIROR. The
obligations of Acquiror to perform this Agreement and consummate the Merger and
the other transactions contemplated hereby are subject to the satisfaction of
the following conditions, unless waived by Acquiror pursuant to Section 11.6(a)
of this Agreement:
(a) REPRESENTATIONS AND WARRANTIES. For purposes of this
Section 9.2(a), the accuracy of the representations and warranties of
BFC set forth in this Agreement shall be assessed as of the date of this
Agreement and as of the Effective Time with the same effect as though
all such representations and warranties had been made on and as of the
Effective Time (provided that representations and warranties which are
confined to a specified date shall speak only as of such date). The
representations and warranties of BFC set forth in Section 5.3 of this
Agreement shall be true and correct (except for inaccuracies which are
de minimus in amount). The representations and warranties of BFC set
forth in Sections 5.17, 5.18 and 5.19 of this Agreement shall be true
and correct in all material respects. There shall not exist
inaccuracies in the representations and warranties of BFC set forth in
this Agreement (including the representations and warranties set forth
in Sections 5.3, 5.17, 5.18 and 5.19) such that the aggregate effect of
such inaccuracies has, or is reasonably likely to have, a Material
Adverse Effect on BFC; provided that, for purposes of this sentence
only, those representations and warranties which are qualified by
references to "material" or "Material Adverse Effect" shall be deemed
not to include such qualifications.
(b) PERFORMANCE OF AGREEMENTS AND COVENANTS. Each and
all of the agreements and covenants of BFC to be performed and complied
with pursuant to this Agreement and the other agreements contemplated
hereby prior to the Effective Time shall have been duly performed and
complied with in all material respects.
(c) CERTIFICATES. BFC shall have delivered to Acquiror
(i) a certificate, dated as of the Effective Time and signed on its
behalf by its chief executive officer and its chief financial officer,
to the effect that the conditions of its obligations set forth in
Section 9.2(a) and 9.2(b) of this Agreement have been satisfied, and
(ii) certified copies of resolutions duly adopted by BFC's Board of
Directors and shareholders evidencing the taking of all corporate action
necessary to authorize the execution, delivery and performance of this
Agreement, and the consummation of the transactions contemplated hereby,
all in such reasonable detail as Acquiror and its counsel shall request.
(d) OPINION OF COUNSEL. Acquiror shall have received an
opinion of Alston & Bird, counsel to BFC, dated as of the Closing, in
form reasonably satisfactory to Acquiror, as to the matters set forth in
Exhibit 3.
(e) ACCOUNTANT'S LETTERS. Acquiror shall have received
from KPMG Peat Marwick LLP letters dated not more than five days prior
to (i) the date of the Proxy
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<PAGE> 38
Statement and (ii) the Effective Time, with respect to certain financial
information regarding BFC, in form and substance reasonably satisfactory
to Acquiror, which letters shall be based upon customary specified
procedures undertaken by such firm in accordance with Statement of
Auditing Standard No. 72.
(f) AFFILIATES AGREEMENTS. Acquiror shall have received
from each affiliate of BFC the affiliates letter referred to in Section
8.12 of this Agreement, to the extent necessary to assure in the
reasonable judgment of Acquiror that the transactions contemplated
hereby will qualify for pooling-of-interests accounting treatment.
9.3 CONDITIONS TO OBLIGATIONS OF BFC. The obligations of
BFC to perform this Agreement and consummate the Merger and the other
transactions contemplated hereby are subject to the satisfaction of the
following conditions, unless waived by BFC pursuant to Section 11.6(b) of this
Agreement:
(a) REPRESENTATIONS AND WARRANTIES. For purposes of this
Section 9.3(a), the accuracy of the representations and warranties of
Acquiror set forth in this Agreement shall be assessed as of the date of
this Agreement and as of the Effective Time with the same effect as
though all such representations and warranties had been made on and as
of the Effective Time (provided that representations and warranties
which are confined to a specified date shall speak only as of such
date). The representations and warranties of Acquiror set forth in
Section 6.3 of this Agreement shall be true and correct (except for
inaccuracies which are de minimus in amount). The representations and
warranties of Acquiror set forth in Sections 6.10 and 6.11 of this
Agreement shall be true and correct in all material respects. There
shall not exist inaccuracies in the representations and warranties of
Acquiror set forth in this Agreement (including the representations and
warranties set forth in Sections 6.3, 6.10 and 6.11) such that the
aggregate effect of such inaccuracies has, or is reasonably likely to
have, a Material Adverse Effect on Acquiror; provided that, for purposes
of this sentence only, those representations and warranties which are
qualified by references to "material" or "Material Adverse Effect" shall
be deemed not to include such qualifications.
(b) PERFORMANCE OF AGREEMENTS AND COVENANTS. Each and
all of the agreements and covenants of Acquiror to be performed and
complied with pursuant to this Agreement and the other agreements
contemplated hereby prior to the Effective Time shall have been duly
performed and complied with in all material respects.
(c) CERTIFICATES. Acquiror shall have delivered to BFC
(i) a certificate, dated as of the Effective Time and signed on its
behalf by its chief executive officer and its chief financial officer,
to the effect that the conditions of its obligations set forth in
Section 9.3(a) and 9.3(b) of this Agreement have been satisfied, and
(ii) certified copies of resolutions duly adopted by Acquiror's Board of
Directors and S-T Georgia's Board of Directors evidencing the taking of
all corporate action necessary to authorize the execution, delivery and
performance of this Agreement, and the consummation of the transactions
contemplated hereby, all in such reasonable detail as BFC and its
counsel shall request.
- 34 -
<PAGE> 39
(d) OPINION OF COUNSEL. BFC shall have received an
opinion of Bradley, Arant, Rose & White, counsel to Acquiror, dated as
of the Effective Time, in form reasonably acceptable to BFC, as to the
matters set forth in Exhibit 4.
(e) FAIRNESS OPINION. BFC shall have received from The
Robinson-Humphrey Company, Inc. a letter, dated not more than five
business days prior to the date of the Proxy Statement, to the effect
that, in the opinion of such firm, the consideration to be received by
BFC shareholders in connection with the Merger is fair, from a financial
point of view, to such shareholders.
ARTICLE 10
TERMINATION
10.1 Termination. Notwithstanding any other provision of
this Agreement, and notwithstanding the approval of this Agreement by the
shareholders of BFC, this Agreement may be terminated and the Merger abandoned
at any time prior to the Effective Time:
(a) By mutual consent of the Board of Directors of
Acquiror and the Board of Directors of BFC; or
(b) By the Board of Directors of either Party (provided
that the terminating Party is not then in breach of any representation
or warranty contained in this Agreement under the applicable standard
set forth in Section 9.2(a) of this Agreement in the case of BFC and
Section 9.3(a) in the case of Acquiror or in material breach of any
covenant or other agreement contained in this Agreement) in the event of
an inaccuracy of any representation or warranty of the other Party
contained in this Agreement which cannot be or has not been cured within
30 days after the giving of written notice to the breaching Party of
such inaccuracy and which inaccuracy would provide the terminating Party
the ability to refuse to consummate the Merger under the applicable
standard set forth in Section 9.2(a) of this Agreement in the case of
BFC and Section 9.3(a) of this Agreement in the case of Acquiror; or
(c) By the Board of Directors of either Party in the
event of a material breach by the other Party of any covenant or
agreement contained in this Agreement which cannot be or has not been
cured within 30 days after the giving of written notice to the breaching
Party of such breach; or
(d) By the Board of Directors of either Party in the
event (i) any Consent of any Regulatory Authority required for
consummation of the Merger and the other transactions contemplated
hereby shall have been denied by final nonappealable action of such
authority or if any action taken by such authority is not appealed
within the time limit for appeal, or (ii) the shareholders of BFC fail
to vote their approval of this Agreement and
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<PAGE> 40
the transactions contemplated hereby as required by the GBCC at the
Shareholders' Meeting where the transactions were presented to such
shareholders for approval and voted upon; or
(e) By the Board of Directors of either Party in the
event that the Merger shall not have been consummated by September 30,
1996, if the failure to consummate the transactions contemplated hereby
on or before such date is not caused by any breach of this Agreement by
the Party electing to terminate pursuant to this Section 10.1(e); or
(f) By the Board of Directors of either Party (provided
that the terminating Party is not then in breach of any representation
or warranty contained in this Agreement under the applicable standard
set forth in Section 9.2(a) of this Agreement in the case of BFC and
Section 9.3(a) in the case of Acquiror or in material breach of any
covenant or other agreement contained in this Agreement) in the event
that any of the conditions precedent to the obligations of such Party to
consummate the Merger cannot be satisfied or fulfilled by the date
specified in Section 10.1(e) of this Agreement; or
(g) By the Board of Directors of BFC, in connection with
entering into a definitive agreement with a Person in accordance with
Section 8.8, provided it has complied with all of the provisions
thereof, including the advice of counsel and notice provisions thereof;
or
(h) By the Board of Directors of BFC, if it determines by
a vote of a majority of the members of its entire Board, at any time
during the ten-day period commencing two days after the Determination
Date, if either:
(x) both of the following conditions are satisfied:
(1) the Average Closing Price of
shares of Acquiror Common Stock shall be less than $21.675; and
(2) (i) the quotient obtained by
dividing the Average Closing Price on the Determination Date by
$25.50 (such number being referred to herein as the "Acquiror
Ratio") shall be less than (ii) the quotient obtained by dividing
the Index Price on the Determination Date by the Index Price on
the Starting Date and subtracting 0.15 from the quotient in this
clause (x)(2)(ii) (such number being referred to herein as the
"Index Ratio"); or
(y) the Average Closing Price on the
Determination Date of shares of Acquiror Common Stock shall be less than
$19.125;
subject, however, to the following four sentences. If BFC refuses to
consummate the Merger pursuant to this Section 10.1(h), it shall give
prompt written notice thereof to Acquiror, which notice shall specify
which of clauses (x) or (y) is applicable (or if both would be
applicable, which clause is being invoked); provided, that such notice
of election to terminate may be withdrawn at any time within the
aforementioned ten-day period.
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<PAGE> 41
During the five-day period commencing with its receipt of such notice,
Acquiror shall have the option, in the case of a failure to satisfy the
condition in clause (x), to elect to increase the Exchange Ratio to
equal the lesser of (i) the quotient obtained by dividing (1) the
product of $21.675 and the Exchange Ratio (as then in effect) by (2) the
Average Closing Price, and (ii) the quotient obtained by dividing (1)
the product of the Index Ratio and the Exchange Ratio (as then in
effect) by (2) the Acquiror Ratio. During such five-day period,
Acquiror shall have the option, in the case of a failure to satisfy the
condition in clause (y), to elect to increase the Exchange Ratio to
equal the quotient obtained by dividing (i) the product of $19.125 and
the Exchange Ratio (as then in effect) by (ii) the Average Closing
Price. If Acquiror makes an election contemplated by either of the two
preceding sentences, within such five-day period, it shall give prompt
written notice to BFC of such election and the revised Exchange Ratio,
whereupon no termination shall have occurred pursuant to this Section
10.1(h) and this Agreement shall remain in effect in accordance with its
terms (except as the Exchange Ratio shall have been so modified), and
any references in this Agreement to "Exchange Ratio" shall thereafter be
deemed to refer to the Exchange Ratio as adjusted pursuant to this
Section 10.1(h).
For purposes of this Section 10.1(h), the following terms
shall have the meanings indicated:
"Average Closing Price" shall mean the
average of the daily last sales prices of Acquiror Common Stock
as reported on the Nasdaq National Market (as reported by The
Wall Street Journal or, if not reported thereby, another
authoritative source as chosen by Acquiror) for the ten
consecutive full trading days in which such shares are traded on
the Nasdaq National Market ending at the close of trading on the
Determination Date.
"Determination Date" shall mean the date on
which the Consent of the Board of Governors of the Federal
Reserve System shall be received.
"Index Group" shall mean the 20 bank holding
companies listed below, the common stocks of all of which shall
be publicly traded and as to which there shall not have been,
since the Starting Date and before the Determination Date, any
public announcement of a proposal for such company to be acquired
or for such company to acquire another company or companies in
transactions with a value exceeding 25% of the acquiror's market
capitalization. In the event that any such company or companies
are removed from the Index Group, the weights (which shall be
determined based upon the number of outstanding shares of common
stock) shall be redistributed proportionately for purposes of
determining the Index Price. The 20 bank holding companies and
the weights attributed to them are as follows:
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<PAGE> 42
Bank Holding Companies
<TABLE>
<CAPTION>
Weighting
- ---------
<S> <C>
AmSouth Bancorporation 4.95%
Barnett Banks, Inc. 8.18
Central Fidelity Banks, Inc. 3.39
Compass Bancshares, Inc. 3.23
Crestar Financial Corporation 3.20
Deposit Guaranty Corporation 1.60
First American Corporation 2.16
First Commerce Corporation 2.46
First Tennessee National Corporation 2.86
First Virginia Banks, Inc. 2.88
Hibernia Corporation 10.12
Mercantile Bankshares Corporation 4.73
National Commerce Bancorporation 2.10
Regions Financial Corporation 3.85
Signet Banking Corporation 8.73
Southern National Corporation 4.99
SunTrust Banks, Inc. 9.69
Trustmark Corporation 2.96
Union Planters Corporation 3.47
Wachovia Corporation 14.46
Total 100.00%
</TABLE>
"Index Price" on a given date shall mean the
weighted average (weighted in accordance with the factors listed
above) of the closing prices of the companies composing the Index
Group.
"Starting Date" shall mean October 30, 1995.
If any company belonging to the Index Group or Acquiror
declares or effects a stock dividend, reclassification,
recapitalization, split-up, combination, exchange of shares, or similar
transaction between the Starting Date and the Determination Date, the
prices for the common stock of such company or Acquiror shall be
appropriately adjusted for the purposes of applying this Section
10.1(h).
10.2 EFFECT OF TERMINATION. In the event of the
termination and abandonment of this Agreement pursuant to Section 10.1 of this
Agreement, this Agreement shall become void and have no effect, except that (i)
the provisions of this Section 10.2 and Article 11 and Section 8.6(b) of this
Agreement shall survive any such termination and abandonment, and (ii) a
termination pursuant to Sections 10.1(b), 10.1(c) or 10.1(f) of this Agreement
shall not relieve the
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<PAGE> 43
breaching Party from Liability for an uncured willful breach of a
representation, warranty, covenant, or agreement giving rise to such
termination. The Stock Option Agreement shall be governed by its own terms as
to termination.
10.3 NON-SURVIVAL OF REPRESENTATIONS AND COVENANTS. The
respective representations, warranties, obligations, covenants, and agreements
of the Parties shall not survive the Effective Time except this Section 10.3
and Articles 2, 3, 4 and 11 and Sections 8.12 and 8.14 of this Agreement.
ARTICLE 11
MISCELLANEOUS
11.1 DEFINITIONS.
(a) Except as otherwise provided herein, the
capitalized terms set forth below shall have the following meanings:
"ACQUISITION PROPOSAL" with respect to a Party shall mean any
tender offer or exchange offer or any proposal for a merger, acquisition
of all of the stock or assets of, or other business combination
involving such Party or any of its Subsidiaries or the acquisition of a
substantial equity interest in, or a substantial portion of the assets
of, such Party or any of its Subsidiaries.
"ACQUIROR CAPITAL STOCK" shall mean, collectively, the
Acquiror Common Stock, the Acquiror Preferred Stock and any other class
or series of capital stock of Acquiror.
"ACQUIROR COMMON STOCK" shall mean the $2.50 par value common
stock of Acquiror.
"ACQUIROR COMPANIES" shall mean, collectively, Acquiror and
all Acquiror Subsidiaries.
"ACQUIROR DISCLOSURE MEMORANDUM" shall mean the written
information entitled "SouthTrust Corporation Disclosure Memorandum"
delivered prior to the date of this Agreement to BFC describing in
reasonable detail the matters contained therein and, with respect to
each disclosure made therein, specifically referencing each Section of
this Agreement under which such disclosure is being made. Information
disclosed with respect to one Section shall not be deemed to be
disclosed for purposes of any other Section not specifically referenced
with respect thereto.
"ACQUIROR FINANCIAL STATEMENTS" shall mean (i) the
consolidated statements of condition (including related notes and
schedules, if any) of Acquiror as of June 30, 1995, and as of December
31, 1994 and 1993, and the related statements of income, changes in
shareholders' equity, and cash flows (including related notes and
schedules, if any) for the
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<PAGE> 44
six months ended June 30, 1995, and for each of the three years ended
December 31, 1994, 1993 and 1992, as filed by Acquiror in SEC Documents,
and (ii) the consolidated statements of condition of Acquiror (including
related notes and schedules, if any) and related statements of income,
changes in shareholders' equity, and cash flows (including related notes
and schedules, if any) included in SEC Documents filed with respect to
periods ended subsequent to June 30, 1995.
"ACQUIROR PREFERRED STOCK" shall mean the $1.00 par value
preferred stock of Acquiror.
"ACQUIROR RIGHTS" shall mean the preferred stock purchase
rights issued pursuant to the Acquiror Rights Agreement.
"ACQUIROR RIGHTS AGREEMENT" shall mean that certain Rights
Agreement, dated February 22,, 1989, between Acquiror and Mellon Bank,
N.A., as Rights Agent.
"ACQUIROR SUBSIDIARIES" shall mean the Subsidiaries of
Acquiror, which shall include any corporation, bank, savings
association, or other organization acquired as a Subsidiary of Acquiror
in the future and owned by Acquiror at the Effective Time.
"AFFILIATE" of a Person shall mean: (i) any other Person
directly, or indirectly through one or more intermediaries, controlling,
controlled by or under common control with such Person; (ii) any
officer, director, partner, employer, or direct or indirect beneficial
owner of any 10% or greater equity or voting interest of such Person; or
(iii) any other Person for which a Person described in clause (ii) acts
in any such capacity.
"AGREEMENT" shall mean this Agreement and Plan of Merger,
including the Exhibits (other than the Stock Option Agreement) delivered
pursuant hereto and incorporated herein by reference.
"ASSETS" of a Person shall mean all of the assets, properties,
businesses and rights of such Person of every kind, nature, character
and description, whether real, personal or mixed, tangible or
intangible, accrued or contingent, or otherwise relating to or utilized
in such Person's business, directly or indirectly, in whole or in part,
whether or not carried on the books and records of such Person, and
whether or not owned in the name of such Person or any Affiliate of such
Person and wherever located.
"BFC COMMON STOCK" shall mean the $.01 par value common stock
of BFC.
"BFC COMPANIES" shall mean, collectively, BFC and all BFC
Subsidiaries.
"BFC DISCLOSURE MEMORANDUM" shall mean the written information
entitled "Bankers First Corporation Disclosure Memorandum" delivered
prior to the date of this Agreement to Acquiror describing in reasonable
detail the matters contained therein and, with respect to each
disclosure made therein, specifically referencing each Section of this
- 40 -
<PAGE> 45
Agreement under which such disclosure is being made. Information
disclosed with respect to one Section shall not be deemed to be
disclosed for purposes of any other Section not specifically referenced
with respect thereto.
"BFC FINANCIAL STATEMENTS" shall mean (i) the consolidated
balance sheets (including related notes and schedules, if any) of BFC as
of June 30, 1995, and as of December 31, 1994 and 1993, and the related
statements of income, changes in shareholders' equity, and cash flows
(including related notes and schedules, if any) for the six months ended
June 30, 1995, and for each of the three fiscal years ended December 31,
1994, 1993 and 1992, as filed by BFC in SEC Documents, and (ii) the
consolidated balance sheets of BFC (including related notes and
schedules, if any) and related statements of income, changes in
shareholders' equity, and cash flows (including related notes and
schedules, if any) included in SEC Documents filed with respect to
periods ended subsequent to June 30, 1995.
"BFC STOCK PLANS" shall mean the existing stock option and
other stock-based compensation plans of BFC designated as follows: 1984
Incentive Stock Option Plan, 1986 Incentive Stock Option Plan, 1987
Incentive Stock Option Plan, 1989 Incentive Stock Option Plan, 1991
Incentive Stock Option Plan, Nonqualified Stock Option Plan, Director's
Discounted Option Plan and Employee Stock Ownership Plan and Trust.
"BFC SUBSIDIARIES" shall mean the Subsidiaries of BFC, which
shall include the BFC Subsidiaries described in Section 5.4 of this
Agreement and any corporation, bank, savings association, or other
organization acquired as a Subsidiary of BFC in the future and owned by
BFC at the Effective Time.
"BHC ACT" shall mean the federal Bank Holding Company Act of
1956, as amended.
"CERTIFICATE OF MERGER" shall mean the Certificate of Merger
to be executed by S-T Georgia and filed with the Secretary of State of
the State of Georgia relating to the Merger as contemplated by Section
1.1 of this Agreement.
"CLOSING DATE" shall mean the date on which the Closing occurs.
"CONFIDENTIALITY AGREEMENT" shall mean that certain
Confidentiality Agreement, dated May 31, 1995, between BFC and Acquiror.
"CONSENT" shall mean any consent, approval, authorization,
clearance, exemption, waiver, or similar affirmation by any Person
pursuant to any Contract, Law, Order, or Permit.
"CONTRACT" shall mean any written or oral agreement,
arrangement, authorization, commitment, contract, indenture, instrument,
lease, obligation, plan, practice, restriction,
- 41 -
<PAGE> 46
understanding or undertaking of any kind or character, or other document
to which any Person is a party or that is binding on any Person or its
capital stock, Assets or business.
"DEFAULT" shall mean (i) any breach or violation of or default
under any Contract, Order or Permit, (ii) any occurrence of any event
that with the passage of time or the giving of notice or both would
constitute a breach or violation of or default under any Contract, Order
or Permit, or (iii) any occurrence of any event that with or without the
passage of time or the giving of notice would give rise to a right to
terminate or revoke, change the current terms of, or renegotiate, or to
accelerate, increase, or impose any Liability under, any Contract, Order
or Permit.
"DGCL" shall mean the Delaware General Corporation Law.
"ENVIRONMENTAL LAWS" shall mean all Laws relating to pollution
or protection of human health or the environment (including ambient air,
surface water, ground water, land surface or subsurface strata) and
which are administered, interpreted or enforced by the United States
Environmental Protection Agency and state and local agencies with
jurisdiction over, and including common law in respect of, pollution or
protection of the environment, including the Comprehensive Environmental
Response Compensation and Liability Act, as amended, 42 U.S.C. 9601 et
seq. ("CERCLA"), the Resource Conservation and Recovery Act, as amended,
42 U.S.C. 6901 et seq. ("RCRA"), and other Laws relating to emissions,
discharges, releases or threatened releases of any Hazardous Material,
or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of any Hazardous
Material.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
"ERISA AFFILIATE" shall have the meaning provided in Section
5.12 of this Agreement.
"EXHIBITS" 1 through 4, inclusive, shall mean the Exhibits so
marked, copies of which are attached to this Agreement. Such Exhibits
are hereby incorporated by reference herein and made a part hereof, and
may be referred to in this Agreement and any other related instrument or
document without being attached hereto.
"GAAP" shall mean generally accepted accounting principles,
consistently applied during the periods involved.
"GBCC" shall mean the Georgia Business Corporation Code.
"HAZARDOUS MATERIAL" shall mean (i) any hazardous substance,
hazardous material, hazardous waste, regulated substance or toxic
substance (as those terms are defined by any applicable Environmental
Laws) and (ii) any chemicals, pollutants, contaminants, petroleum,
petroleum products, or oil (and specifically shall include asbestos
- 42 -
<PAGE> 47
requiring abatement, removal or encapsulation pursuant to the
requirements of governmental authorities and any polychlorinated
biphenyls).
"HOLA" shall mean the Home Owners' Loan Act of 1933, as
amended.
"HSR ACT" shall mean Section 7A of the Clayton Act, as added
by Title II of the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended, and the rules and regulations promulgated thereunder.
"INTERNAL REVENUE CODE" shall mean the Internal Revenue Code
of 1986, as amended, and the rules and regulations promulgated
thereunder.
"KNOWLEDGE" as used with respect to a Person (including
references to such Person being aware of a particular matter) shall mean
the personal knowledge after due inquiry of the Chairman, President,
Chief Financial Officer, Chief Accounting Officer, Chief Credit Officer,
General Counsel, any Assistant or Deputy General Counsel, or any Senior
or Executive Vice President of such Person.
"LAW" shall mean any code, law, ordinance, regulation,
reporting or licensing requirement, rule, or statute applicable to a
Person or its Assets, Liabilities or business, including those
promulgated, interpreted or enforced by any Regulatory Authority.
"LIABILITY" shall mean any direct or indirect, primary or
secondary, liability, indebtedness, obligation, penalty, cost or expense
(including costs of investigation, collection and defense), claim,
deficiency, guaranty or endorsement of or by any Person (other than
endorsements of notes, bills, checks, and drafts presented for
collection or deposit in the ordinary course of business) of any type,
whether accrued, absolute or contingent, liquidated or unliquidated,
matured or unmatured, or otherwise.
"LIEN" shall mean any conditional sale agreement, default of
title, easement, encroachment, encumbrance, hypothecation, infringement,
lien, mortgage, pledge, reservation, restriction, security interest,
title retention or other security arrangement, or any adverse right or
interest, charge, or claim of any nature whatsoever of, on, or with
respect to any property or property interest, other than (i) Liens for
current property Taxes not yet due and payable, (ii) for depository
institution Subsidiaries of a Party, pledges to secure deposits and
other Liens incurred in the ordinary course of the banking business, and
(iii) Liens which are not reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on a Party.
"LITIGATION" shall mean any action, arbitration, cause of
action, claim, complaint, criminal prosecution, demand letter,
governmental or other examination or investigation, hearing, inquiry,
administrative or other proceeding, or notice (written or oral) by any
Person alleging potential Liability or requesting information relating
to or affecting a Party, its business, its Assets (including Contracts
related to it), or the transactions contemplated
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<PAGE> 48
by this Agreement, but shall not include regular, periodic examinations
of depository institutions and their Affiliates by Regulatory
Authorities.
"LOAN PROPERTY" shall mean any property owned, leased or
operated by the Party in question or by any of its Subsidiaries or in
which such Party or Subsidiary holds a security or other interest
(including an interest in a fiduciary capacity), and, where required by
the context, includes the owner or operator of such property, but only
with respect to such property.
"MATERIAL" for purposes of this Agreement shall be determined
in light of the facts and circumstances of the matter in question;
provided that any specific monetary amount stated in this Agreement
shall determine materiality in that instance.
"MATERIAL ADVERSE EFFECT" on a Party shall mean an event,
change or occurrence which, individually or together with any other
event, change or occurrence, has a material adverse impact on (i) the
financial position, business, or results of operations of such Party and
its Subsidiaries, taken as a whole, or (ii) the ability of such Party to
perform its obligations under this Agreement or to consummate the Merger
or the other transactions contemplated by this Agreement, provided that
"material adverse impact" shall not be deemed to include the impact of
(a) changes in banking and similar Laws of general applicability or
interpretations thereof by courts or governmental authorities, (b)
changes in generally accepted accounting principles or regulatory
accounting principles generally applicable to banks, savings
associations or their holding companies, (c) actions and omissions of a
Party (or any of its Subsidiaries) taken with the prior informed written
consent of the other Party in contemplation of the transaction
contemplated hereby, including those changes and charges contemplated by
Section 8.15 hereof (whether or not such changes are made or such
charges are taken), and (d) the direct effects of compliance with this
Agreement on the operating performance of the Parties, including
expenses incurred by the Parties in consummating the transactions
contemplated by the Agreement.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"NASDAQ NATIONAL MARKET" shall mean the National Market System
of the National Association of Securities Dealers Automated Quotations
System.
"1933 ACT" shall mean the Securities Act of 1933, as amended.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as
amended.
"ORDER" shall mean any administrative decision or award,
decree, injunction, judgment, order, quasi-judicial decision or award,
ruling, or writ of any federal, state, local or foreign or other court,
arbitrator, mediator, tribunal, administrative agency or Regulatory
Authority.
- 44 -
<PAGE> 49
"PARTICIPATION FACILITY" shall mean any facility or property
in which the Party in question or any of its Subsidiaries participates
in the management and, where required by the context, said term means
the owner or operator of such facility or property, but only with
respect to such facility or property.
"PARTY" shall mean either BFC or Acquiror, and "PARTIES" shall
mean both BFC and Acquiror.
"PERMIT" shall mean any federal, state, local, and foreign
governmental approval, authorization, certificate, easement, filing,
franchise, license, notice, permit, or right to which any Person is a
party or that is or may be binding upon or inure to the benefit of any
Person or its securities, Assets or business.
"PERSON" shall mean a natural person or any legal, commercial
or governmental entity, such as, but not limited to, a corporation,
general partnership, joint venture, limited partnership, limited
liability company, trust, business association, group acting in concert,
or any person acting in a representative capacity.
"PROXY STATEMENT" shall mean the proxy statement used by BFC
to solicit the approval of BFC's shareholders of the transactions
contemplated by this Agreement, which shall include the prospectus of
Acquiror relating to the issuance of the Acquiror Common Stock to
holders of BFC Common Stock.
"REGISTRATION STATEMENT" shall mean the Registration Statement
on Form S-4, or other appropriate form, including any pre-effective or
post-effective amendments or supplements thereto, filed with the SEC by
Acquiror under the 1933 Act with respect to the shares of Acquiror
Common Stock to be issued to the shareholders of BFC in connection with
the transactions contemplated by this Agreement.
"REGULATORY AUTHORITIES" shall mean, collectively, the Federal
Trade Commission, the United States Department of Justice, the Board of
the Governors of the Federal Reserve System, the Office of Thrift
Supervision (including its predecessor, the Federal Home Loan Bank
Board), the Office of the Comptroller of the Currency, the Federal
Deposit Insurance Corporation, all state regulatory agencies having
jurisdiction over the Parties and their respective Subsidiaries, the
NASD and the SEC.
"REPRESENTATIVE" shall mean any investment banker, financial
advisor, attorney, accountant, consultant, or other representative of a
Person.
"RIGHTS" shall mean all arrangements, calls, commitments,
Contracts, options, rights to subscribe to, scrip, understandings,
warrants, or other binding obligations of any character whatsoever
relating to, or securities or rights convertible into or exchangeable
for, shares of the capital stock of a Person or by which a Person is or
may be bound to issue additional shares of its capital stock or other
Rights.
- 45 -
<PAGE> 50
"SEC DOCUMENTS" shall mean all forms, proxy statements,
registration statements, reports, schedules, and other documents filed,
or required to be filed, by a Party or any of its Subsidiaries with any
Regulatory Authority pursuant to the Securities Laws.
"SECURITIES LAWS" shall mean the 1933 Act, the 1934 Act, the
Investment Company Act of 1940, as amended, the Investment Advisors Act
of 1940, as amended, the Trust Indenture Act of 1939, as amended, and
the rules and regulations of any Regulatory Authority promulgated
thereunder.
"SHAREHOLDERS' MEETING" shall mean the meeting of the
shareholders of BFC to be held pursuant to Section 8.1 of this
Agreement, including any adjournment or adjournments thereof.
"S-T GEORGIA COMMON STOCK" shall mean the $1.00 par value
common stock of S-T Georgia.
"SUBSIDIARIES" shall mean all those corporations, banks,
associations, or other entities of which the entity in question owns or
controls 50% or more of the outstanding equity securities either
directly or through an unbroken chain of entities as to each of which
50% or more of the outstanding equity securities is owned directly or
indirectly by its parent; provided, there shall not be included any such
entity acquired through foreclosure or any such entity the equity
securities of which are owned or controlled in a fiduciary capacity.
"SURVIVING CORPORATION" shall mean S-T Georgia as the
surviving corporation resulting from the Merger.
"TAX" or "TAXES" shall mean any federal, state, county, local,
or foreign income, profits, franchise, gross receipts, payroll, sales,
employment, use, property, withholding, excise, occupancy, and other
taxes, assessments, charges, fares, or impositions, including interest,
penalties, and additions imposed thereon or with respect thereto.
"TAXABLE PERIOD" shall mean any period prescribed by any
governmental authority, including the United States or any state, local,
foreign government or subdivision or agency thereof for which a Tax
Return is required to be filed or Tax is required to be paid.
"TAX RETURN" shall mean any report, return, information
return, or other information required to be supplied to a taxing
authority in connection with Taxes, including any return of an
affiliated or combined or unitary group that includes a Party or its
Subsidiaries.
(b) The terms set forth below shall have the
meanings ascribed thereto in the referenced sections:
Acquiror Ratio Section 10.1(h)
- 46 -
<PAGE> 51
<TABLE>
<S> <C>
Acquiror SEC Reports Section 6.4(a)
Average Closing Price Section 10.1(h)
BFC Benefit Plans Section 5.12(a)
BFC Contracts Section 5.13
BFC ERISA Plan Section 5.12(a)
BFC Options Section 3.5
BFC Pension Plan Section 5.12(a)
BFC Retirement Plan Section 8.13(b)
BFC SEC Reports Section 5.5(a)
Closing Section 1.2
Determination Date Section 10.1(h)
Effective Time Section 1.3
ERISA Affiliate Section 5.12(c)
ESOP Section 8.13(b)
Exchange Agent Section 4.1
Exchange Ratio Section 3.1(c)
Indemnified Party Section 8.14(a)
Index Group Section 10.1(h)
Index Price Section 10.1(h)
Index Ratio Section 10.1(h)
Maximum Amount Section 8.14(b)
Merger Section 1.1
Past Service Credit Section 8.13(b)(ii)
ST PS Plan Section 8.13(b)
ST Retirement Plan Section 8.13(c)
Starting Date Section 10.1(h)
Stock Option Agreement Preamble
Takeover Laws Section 5.18
Tax Opinion Section 9.1(g)
</TABLE>
(c) Any singular term in this Agreement shall be
deemed to include the plural, and any plural term the singular. Whenever the
words "include," "includes" or "including" are used in this Agreement, they
shall be deemed followed by the words "without limitation."
11.2 EXPENSES.
(a) Except as otherwise provided in this Section
11.2, each of the Parties shall bear and pay all direct costs and expenses
incurred by it or on its behalf in connection with the transactions
contemplated hereunder, including filing, registration and application fees,
printing fees, and fees and expenses of its own financial or other consultants,
investment bankers, accountants, and counsel, except that each of the Parties
shall bear and pay one-half of the filing fees payable in connection with the
Registration Statement and the Proxy Statement and printing costs incurred in
connection with the printing of the Registration Statement and the Proxy
Statement.
- 47 -
<PAGE> 52
(b) Nothing contained in this Section 11.2 shall
constitute or shall be deemed to constitute liquidated damages for the willful
breach by a Party of the terms of this Agreement or otherwise limit the rights
of the nonbreaching Party.
11.3 BROKERS AND FINDERS. Except for The
Robinson-Humphrey Company, Inc. as to BFC, each of the Parties represents and
warrants that neither it nor any of its officers, directors, employees, or
Affiliates has employed any broker or finder or incurred any Liability for any
financial advisory fees, investment bankers' fees, brokerage fees, commissions,
or finders' fees in connection with this Agreement or the transactions
contemplated hereby. In the event of a claim by any broker or finder based
upon his, her or its representing or being retained by or allegedly
representing or being retained by BFC or Acquiror, each of BFC and Acquiror, as
the case may be, agrees to indemnify and hold the other Party harmless of and
from any Liability in respect of any such claim.
11.4 ENTIRE AGREEMENT. Except as otherwise expressly
provided herein, this Agreement (including the documents and instruments
referred to herein) constitutes the entire agreement between the Parties with
respect to the transactions contemplated hereunder and supersedes all prior
arrangements or understandings with respect thereto, written or oral (except
for the Confidentiality Agreement). Nothing in this Agreement expressed or
implied, is intended to confer upon any Person, other than the Parties or their
respective successors, any rights, remedies, obligations, or liabilities under
or by reason of this Agreement, other than as provided in Sections 8.13 and
8.14 of this Agreement.
11.5 AMENDMENTS. To the extent permitted by Law, this
Agreement may be amended by a subsequent writing signed by each of the Parties
upon the approval of the Boards of Directors of each of the Parties, whether
before or after shareholder approval of this Agreement has been obtained;
provided, that after any such approval by the holders of BFC Common Stock,
there shall be made no amendment that reduces or modifies in any material
respect the consideration to be received by the holders of BFC Common Stock
without the further approval of such shareholders.
11.6 WAIVERS.
(a) Prior to or at the Effective Time, Acquiror,
acting through its Board of Directors, chief executive officer or other
authorized officer, shall have the right to waive any Default in the
performance of any term of this Agreement by BFC, to waive or extend the time
for the compliance or fulfillment by BFC of any and all of its obligations
under this Agreement, and to waive any or all of the conditions precedent to
the obligations of Acquiror under this Agreement, except any condition which,
if not satisfied, would result in the violation of any Law. No such waiver
shall be effective unless in writing signed by a duly authorized officer of
Acquiror.
(b) Prior to or at the Effective Time, BFC,
acting through its Board of Directors, chief executive officer or other
authorized officer, shall have the right to waive any Default in the
performance of any term of this Agreement by Acquiror, to waive or extend the
- 48 -
<PAGE> 53
time for the compliance or fulfillment by Acquiror of any and all of its
obligations under this Agreement, and to waive any or all of the conditions
precedent to the obligations of BFC under this Agreement, except any condition
which, if not satisfied, would result in the violation of any Law. No such
waiver shall be effective unless in writing signed by a duly authorized officer
of BFC.
(c) The failure of any Party at any time or times
to require performance of any provision hereof shall in no manner affect the
right of such Party at a later time to enforce the same or any other provision
of this Agreement. No waiver of any condition or of the breach of any term
contained in this Agreement in one or more instances shall be deemed to be or
construed as a further or continuing waiver of such condition or breach or a
waiver of any other condition or of the breach of any other term of this
Agreement.
11.7 ASSIGNMENT. Except as expressly contemplated hereby,
neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any Party hereto (whether by operation of Law or
otherwise) without the prior written consent of the other Party. Subject to
the preceding sentence, this Agreement will be binding upon, inure to the
benefit of and be enforceable by the Parties and their respective successors
and assigns.
11.8 NOTICES. All notices or other communications which
are required or permitted hereunder shall be in writing and sufficient if
delivered by hand, by facsimile transmission, by registered or certified mail,
postage pre-paid, or by courier or overnight carrier, to the persons at the
addresses set forth below (or at such other address as may be provided
hereunder), and shall be deemed to have been delivered as of the date so
delivered:
BFC: Bankers First Corporation
One Tenth Street
Augusta, Georgia 30901
Telecopy Number: (706) 849-3349
Attention: H.M. Osteen, Jr.
Copy to Counsel: Alston & Bird
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
Telecopy Number: (404) 881-7777
Attention: F. Dean Copeland
Acquiror: SouthTrust Corporation
420 North 20th Street
Birmingham, Alabama 35203
- 49 -
<PAGE> 54
Telecopy Number: (205) 254-5022
Attention: Frederick W. Murray, Jr.
Copy to Counsel: Bradley, Arant, Rose & White
2001 Park Place
Suite 1400
Birmingham, Alabama 35203
Telecopy Number: (205) 252-0264
Attention: C. Larimore Whitaker
11.9 GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the Laws of the State of Georgia, without
regard to any applicable conflicts of Laws.
11.10 COUNTERPARTS. This Agreement may be executed in two
or more counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument.
11.11 CAPTIONS. The captions contained in this Agreement
are for reference purposes only and are not part of this Agreement.
11.12 INTERPRETATIONS. Neither this Agreement nor any
uncertainty or ambiguity herein shall be construed or resolved against any
party, whether under any rule of construction or otherwise. No party to this
Agreement shall be considered the draftsman. The parties acknowledge and agree
that this Agreement has been reviewed, negotiated and accepted by all parties
and their attorneys and shall be construed and interpreted according to the
ordinary meaning of the words used so as fairly to accomplish the purposes and
intentions of all parties hereto.
11.13 ENFORCEMENT OF AGREEMENT. The Parties hereto agree
that irreparable damage would occur in the event that any of the provisions of
this Agreement was not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the Parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions hereof in any court of the
United States or any state having jurisdiction, this being in addition to any
other remedy to which they are entitled at law or in equity.
11.14 SEVERABILITY. Any term or provision of this
Agreement which is invalid or unenforceable in any jurisdiction shall, as to
that jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so
- 50 -
<PAGE> 55
broad as to be unenforceable, the provision shall be interpreted to be only so
broad as is enforceable.
[Signatures on following page]
- 51 -
<PAGE> 56
IN WITNESS WHEREOF, each of the Parties has caused this
Agreement to be executed on its behalf and its corporate seal to be hereunto
affixed and attested by officers thereunto as of the day and year first above
written.
ATTEST: BANKERS FIRST CORPORATION
/s/ J. Randal Hall By: /s/ H. M. Osteen, Jr.
- -------------------- -----------------------
Secretary President and Chief Executive Officer
[CORPORATE SEAL]
ATTEST: SOUTHTRUST CORPORATION
/s/ Alton E. Yother By: /s/ F. W. Murray, Jr.
- --------------------- -----------------------
Assistant Secretary Executive Vice President
[CORPORATE SEAL]
ATTEST: SOUTHTRUST OF GEORGIA, INC.
/s/ Alton E. Yother By: /s/ F. W. Murray, Jr.
- --------------------- -----------------------
Assistant Secretary Chairman
[CORPORATE SEAL]
- 52 -
<PAGE> 57
LIST OF EXHIBITS
EXHIBIT NUMBER DESCRIPTION
- -------------- -----------
1. Form of Stock Option Agreement. (Section 1.4)
2. Form of agreement of affiliates of BFC. (Section
Section 8.12, 9.2(f)).
3. Matters as to which Alston & Bird will opine.
(Section 9.2(d)).
4. Matters as to which Bradley, Arant, Rose & White will
opine. (Section 9.3(d)).
<PAGE> 58
EXHIBIT 1
STOCK OPTION AGREEMENT
(Exhibit 1 is included as Exhibit 99.2 of this Current Report)
<PAGE> 59
EXHIBIT 2
FORM OF AFFILIATE AGREEMENT
SouthTrust Corporation
420 North 20th Street
Birmingham, Alabama 35203
Ladies and Gentlemen:
The undersigned is a shareholder of Bankers First Corporation ("BFC"),
a corporation organized and existing under the laws of the State of Georgia and
located in Augusta, Georgia, and will become a shareholder of the SouthTrust
Corporation ("SouthTrust") pursuant to the transactions described in the
Agreement and Plan of Merger, dated as of October 31, 1995 (the "Agreement"),
by and among SouthTrust, SouthTrust of Georgia, Inc. ("S-T Georgia") and BFC.
Under the terms of the Agreement, BFC will be merged into and with S-T Georgia
(the "Merger"), and the shares of the $.01 par value common stock of BFC ("BFC
Common Stock") will be converted into and exchanged for shares of the $2.50 par
value common stock of SouthTrust ("SouthTrust Common Stock"). This Affiliate
Agreement represents an agreement between the undersigned and SouthTrust
regarding certain rights and obligations of the undersigned in connection with
the shares of SouthTrust to be received by the undersigned as a result of the
Merger.
In consideration of the Merger and the mutual covenants contained
herein, the undersigned and SouthTrust hereby agree as follows:
1. Affiliate Status. The undersigned understands and agrees that
as to BFC he is an "affiliate" under Rule 145(c) as defined in Rule 405 of the
Rules and Regulations of the Securities and Exchange Commission ("SEC") under
the Securities Act of 1933, as amended ("1933 Act"), and the undersigned
anticipates that he will be such an "affiliate" at the time of the Merger.
2. Initial Restriction on Disposition. The undersigned agrees
that he will not sell, transfer, or otherwise dispose of his interests in, or
reduce his risk relative to, any of the shares of SouthTrust Common Stock into
which his shares of BFC Common Stock are converted upon consummation of the
Merger until such time as SouthTrust notifies the undersigned that the
requirements of SEC Accounting Series Release Nos. 130 and 135 ("ASR 130 and
135") have been met. The undersigned understands that ASR 130 and 135 relate
to publication of financial results of post-Merger combined operations of
SouthTrust and BFC. SouthTrust agrees that it will publish such results within
45 days after the end of the first fiscal quarter of SouthTrust containing the
required period of post-Merger combined operations and that it will notify the
undersigned promptly following such publication.
<PAGE> 60
3. Covenants and Warranties of Undersigned. The undersigned
represents, warrants and agrees that:
(a) During the 30 days immediately preceding the Effective Time of
the Merger, the undersigned has not sold, transferred, or otherwise
disposed of his interests in, or reduced his risk relative to, any of
the shares of SouthTrust Common Stock or BFC Common Stock beneficially
owned by the undersigned as of the date of the Shareholders' Meeting of
BFC held to approve the Merger.
(b) The SouthTrust Common Stock received by the undersigned as a
result of the Merger will be taken for his own account and not for
others, directly or indirectly, in whole or in part.
(c) SouthTrust has informed the undersigned that any distribution
by the undersigned of SouthTrust Common Stock has not been registered
under the 1933 Act and that shares of SouthTrust Common Stock received
pursuant to the Merger can only be sold by the undersigned (1) following
registration under the 1933 Act, or (2) in conformity with the volume
and other requirements of Rule 145(d) promulgated by the SEC as the same
now exist or may hereafter be amended, or (3) to the extent some other
exemption from registration under the 1933 Act might be available. The
undersigned understands that SouthTrust is under no obligation to file a
registration statement with the SEC covering the disposition of the
undersigned's shares of SouthTrust Common Stock or to take any other
action necessary to make compliance with an exemption from such
registration available.
4. Restrictions on Transfer. The undersigned understands and
agrees that stop transfer instructions with respect to the shares of SouthTrust
Common Stock received by the undersigned pursuant to the Merger will be given
to SouthTrust's Transfer Agent and that there will be placed on the
certificates for such shares, or shares issued in substitution thereof, a
legend stating in substance:
"The shares represented by this certificate were issued pursuant to a
business combination which is accounted for as a "pooling of interests"
and may not be sold, nor may the owner thereof reduce his risks relative
thereto in any way, until such time as SouthTrust Corporation
("SouthTrust") has published the financial results covering at least 30
days of combined operations after the effective date of the merger
through which the business combination was effected. In addition, the
shares represented by this certificate may not be sold, transferred or
otherwise disposed of except or unless (1) covered by an effective
registration statement under the Securities Act of 1933, as amended, (2)
in accordance with (i) Rule 145(d) (in the case of shares issued to an
individual who is not an affiliate of SouthTrust) or (ii) Rule 144 (in
the case of shares issued to an individual who is an affiliate of
SouthTrust) of the Rules and Regulations of such Act, or (3) in
accordance with a legal opinion satisfactory to counsel for SouthTrust
that such sale or transfer is otherwise exempt from the registration
requirements of such Act."
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<PAGE> 61
Such legend will also be placed on any certificate representing SouthTrust
securities issued subsequent to the original issuance of the SouthTrust Common
Stock pursuant to the Merger as a result of any transfer of such shares or any
stock dividend, stock split, or other recapitalization as long as the
SouthTrust Common Stock issued to the undersigned pursuant to the Merger has
not been transferred in such manner to justify the removal of the legend
therefrom. Upon the request of the undersigned, SouthTrust shall cause the
certificates representing the shares of SouthTrust Common Stock issued to the
undersigned in connection with the Merger to be reissued free of any legend
relating to restrictions on transfer by virtue of ASR 130 and 135 as soon as
practicable after the requirements of ASR 130 and 135 have been met. In
addition, if the provisions of Rules 144 and 145 are amended to eliminate
restrictions applicable to the SouthTrust Common Stock received by the
undersigned pursuant to the Merger, or at the expiration of the restrictive
period set forth in Rule 145(d), SouthTrust, upon the request of the
undersigned, will cause the certificates representing the shares of SouthTrust
Common Stock issued to the undersigned in connection with the Merger to be
reissued free of any legend relating to the restrictions set forth in Rules 144
and 145(d) upon receipt by SouthTrust of an opinion of its counsel to the
effect that such legend may be removed.
5. Understanding of Restrictions on Dispositions. The
undersigned has carefully read the Agreement and this Affiliate Agreement and
discussed their requirements and impact upon his ability to sell, transfer, or
otherwise dispose of the shares of SouthTrust Common Stock received by the
undersigned, to the extent he believes necessary, with his counsel or counsel
for BFC.
6. Filing of Reports by SouthTrust. SouthTrust agrees, for a
period of three years after the effective date of the Merger, to file on a
timely basis all reports required to be filed by it pursuant to Section 13 of
the Securities Exchange Act of 1934, as amended, so that the public information
provisions of Rule 145(d) promulgated by the SEC as the same are presently in
effect will be available to the undersigned in the event the undersigned
desires to transfer any shares of SouthTrust Common Stock issued to the
undersigned pursuant to the Merger.
7. Transfer Under Rule 145(d). If the undersigned desires to
sell or otherwise transfer the shares of SouthTrust Common Stock received by
him in connection with the Merger at any time during the restrictive period set
forth in Rule 145(d), the undersigned will provide the necessary representation
letter to the transfer agent for SouthTrust Common Stock together with such
additional information as the transfer agent may reasonably request. If
SouthTrust's counsel concludes that such proposed sale or transfer complies
with the requirements of Rule 145(d), SouthTrust shall cause such counsel to
provide such opinions as may be necessary to SouthTrust's Transfer Agent so
that the undersigned may complete the proposed sale or transfer.
8. Acknowledgments. The undersigned recognizes and agrees that
the foregoing provisions also apply to all shares of the capital stock of BFC
and SouthTrust that are deemed to be beneficially owned by the undersigned
pursuant to applicable federal securities laws, which the undersigned agrees
may include, without limitation, shares owned or held in the name of (i) the
undersigned's spouse, (ii) any relative of the undersigned or of the
undersigned's spouse who has the same home as the undersigned, (iii) any trust
or estate in which the undersigned, the undersigned's spouse, and any such
relative collectively own at least a 10% beneficial interest or
- 3 -
<PAGE> 62
of which any of the foregoing serves as trustee, executor, or in any similar
capacity, and (iv) any corporation or other organization in which the
undersigned, the undersigned's spouse and any such relative collectively own at
least 10% of any class of equity securities or of the equity interest. The
undersigned further recognizes that, in the event that the undersigned is a
director or officer of SouthTrust or becomes a director or officer of
SouthTrust upon consummation of the Merger, among other things, any sale of
SouthTrust Common Stock by the undersigned within a period of less than six
months following the effective time of the Mergers may subject the undersigned
to liability pursuant to Section 16(b) of the Securities Exchange Act of 1934,
as amended.
9. Miscellaneous. This Affiliate Agreement is the complete
agreement between SouthTrust and the undersigned concerning the subject matter
hereof. Any notice required to be sent to any party hereunder shall be sent by
registered or certified mail, return receipt requested, using the addresses set
forth herein or such other address as shall be furnished in writing by the
parties. This Affiliate Agreement shall be governed by the laws of the State
of Georgia.
This Affiliate Agreement is executed as of the ___ day of ___________,
1995.
Very truly yours,
---------------------------
Signature
---------------------------
Print Name
---------------------------
---------------------------
---------------------------
Address
[add below the signatures of all
registered owners of shares deemed
beneficially owned by the affiliate]
---------------------------
Name:
---------------------------
Name:
---------------------------
Name:
- 4 -
<PAGE> 63
AGREED TO AND ACCEPTED as of
, 1996
- ---------------
SOUTHTRUST CORPORATION
By:
------------------------------
- 5 -
<PAGE> 64
EXHIBIT 3
MATTERS AS TO WHICH
ALSTON & BIRD WILL OPINE
1. BFC is a corporation duly organized, validly existing
and in good standing under the Laws of the State of Georgia with full corporate
power and authority to conduct its business as described in the proxy statement
used to solicit the approval by the shareholders of BFC of the transactions
contemplated by the Agreement ("Proxy Statement"), and to own and use its
Assets.
2. The execution and delivery by BFC of the Agreement
and compliance with its terms do not and will not violate or contravene any
provision of the Articles of Incorporation or Bylaws of BFC or, to our
knowledge, result in any breach of, or default or acceleration under, any
material Contract or Order to which BFC or any of its Subsidiaries is a party
or by which BFC or any of its Subsidiaries is bound.
3. The Agreement has been duly and validly authorized,
executed and delivered by BFC, and assuming valid authorization, execution and
delivery by Acquiror and S-T Georgia, constitutes a valid and binding agreement
of BFC enforceable in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization, or similar laws affecting
creditors' rights generally, provided, however, that we express no opinion as
to the availability of the equitable remedy of specific performance.
<PAGE> 65
EXHIBIT 4
MATTERS AS TO WHICH
BRADLEY, ARANT, ROSE & WHITE WILL OPINE
1. Acquiror and S-T-Georgia are corporations duly
organized, validly existing and in good standing under the Laws of the States
of Delaware and Georgia, respectively, with full corporate power and authority
to conduct their business as described in the proxy statement used to solicit
the approval by the shareholders of BFC of the transactions contemplated by the
Agreement ("Proxy Statement"), and to own and use their respective Assets.
2. The execution and delivery of the Agreement and
compliance with its terms do not and will not violate or contravene any
provision of the Certificate of Incorporation, Articles of Incorporation or
Bylaws of Acquiror or S-T Georgia or, to our knowledge, any order, arbitration
award, judgment, or decree to which Acquiror or S-T Georgia is a party or by
which Acquiror or S-T Georgia is bound.
3. The Agreement has been duly and validly executed and
delivered by Acquiror and S-T Georgia, and assuming valid authorization,
execution and delivery by BFC, constitutes a valid and binding agreement of
Acquiror and S-T Georgia, enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization, or
similar laws affecting creditors' rights generally, provided, however, that we
express no opinion as to the availability of the equitable remedy of specific
performance.
4. The shares of Acquiror Common Stock to be issued to
the shareholders of BFC upon consummation of the Merger have been registered
under the 1933 Act, are duly authorized, and, when issued in accordance with
the Agreement, will be validly issued, fully paid and non-assessable and will
not not have been issued in violation of any statutory preemptive rights of
shareholders.
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Exhibit 99.2
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of October 31, 1995 (the
"Agreement"), by and between Bankers First Corporation, a Georgia corporation
("Issuer"), and SouthTrust Corporation, a Delaware corporation ("Grantee").
WHEREAS, Grantee and Issuer have entered into that certain Agreement
and Plan of Merger, dated as of October 31, 1995 (the "Merger Agreement"),
providing for, among other things, the merger of Issuer with and into
SouthTrust of Georgia, Inc., a wholly owned subsidiary of Grantee, with
SouthTrust of Georgia, Inc. as the surviving entity; and
WHEREAS, as a condition and inducement to Grantee's execution of the
Merger Agreement, Grantee has required that Issuer agree, and Issuer has
agreed, to grant Grantee the Option (as defined below);
NOW, THEREFORE, in consideration of the respective representations,
warranties, covenants, and agreements set forth herein and in the Merger
Agreement, and intending to be legally bound hereby, Issuer and Grantee agree
as follows:
1. DEFINED TERMS. Capitalized terms which are used but not
defined herein shall have the meanings ascribed to such terms in the Merger
Agreement.
2. GRANT OF OPTION. Subject to the terms and conditions set
forth herein, Issuer hereby grants to Grantee an irrevocable option (the
"Option") to purchase a number of shares of common stock, par value $.01 per
share ("Issuer Common Stock"), of Issuer up to 942,854 shares (as adjusted as
set forth herein, the "Option Shares," which shall include the Option Shares
before and after any transfer of such Option Shares, but in no event shall the
number of Option Shares for which this Option is exercisable exceed 19.9% of
the issued and outstanding shares of Issuer Common Stock) at a purchase price
per Option Share (the "Purchase Price") equal to $29.00 (subject to adjustment
as set forth herein).
3. EXERCISE OF OPTION.
(a) Provided that (i) Grantee or Holder (as hereinafter
defined), as applicable, shall not be in material breach of its agreements or
covenants contained in this Agreement or the Merger Agreement, and (ii) no
preliminary or permanent injunction or other order against the delivery of
shares covered by the Option issued by any court of competent jurisdiction in
the United States shall be in effect, Holder may exercise the Option, in whole
or in part, at any time and from time to time following the occurrence of a
Purchase Event; provided that the Option shall terminate and be of no further
force and effect upon the earliest to occur of (A) the Effective Time, (B)
termination of the Merger Agreement in accordance with the terms thereof prior
to the occurrence of a Purchase Event or a Preliminary Purchase Event (other
than a termination of the Merger Agreement by Grantee pursuant to Section
10.1(b) or 10.1(c) thereof (but, in each case, only if the breach giving rise
to such termination was willful) (each a "Default Termination")),
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(C) 12 months after a Default Termination, and (D) 12 months after termination
of the Merger Agreement (other than a Default Termination) following the
occurrence of a Purchase Event or a Preliminary Purchase Event; provided,
further, that any purchase of shares upon exercise of the Option shall be
subject to compliance with applicable law, including, without limitation, the
Bank Holding Company Act of 1956, as amended (the "BHC Act") and the Home
Owners' Loan Act of 1933, as amended (the "HOLA"). The term "Holder" shall
mean the holder or holders of the Option from time to time, and which initially
is Grantee. The rights set forth in Section 8 shall terminate when the right
to exercise the Option terminates (other than as a result of a complete
exercise of the Option) as set forth herein.
(b) As used herein, a "Purchase Event" means any of the
following events subsequent to the date of this Agreement:
(i) without Grantee's prior written consent, Issuer shall
have authorized, recommended, publicly proposed, or publicly announced
an intention to authorize, recommend, or propose, or entered into an
agreement with any person (other than Grantee or any Subsidiary of
Grantee) to effect an Acquisition Transaction (as defined below). As
used herein, the term Acquisition Transaction shall mean (A) a merger,
consolidation, or similar transaction involving Issuer or any of its
Subsidiaries (other than transactions solely between Issuer's
Subsidiaries), (B) except as permitted pursuant to Section 7.2 of the
Merger Agreement, the disposition, by sale, lease, exchange, or
otherwise, of Assets of Issuer or any of its Subsidiaries representing
in either case 25% or more of the consolidated Assets of Issuer and its
Subsidiaries, or (C) the issuance, sale, or other disposition of
(including by way of merger, consolidation, share exchange, or any
similar transaction) securities representing 25% or more of the voting
power of Issuer or any of its Subsidiaries (each of (A), (B) or (C), an
"Acquisition Transaction"); or
(ii) any person (other than Grantee or any Subsidiary of
Grantee) shall have acquired beneficial ownership (as such term is
defined in Rule 13d-3 promulgated under the Exchange Act) of or the
right to acquire beneficial ownership of, or any "group" (as such term
is defined under the Exchange Act), other than a group of which Grantee
or any Subsidiary of Grantee is a member, shall have been formed which
beneficially owns or has the right to acquire beneficial ownership of,
25% or more of the then-outstanding shares of Issuer Common Stock.
(c) As used herein, a "Preliminary Purchase Event" means
any of the following events:
(i) any person (other than Grantee or any Subsidiary of
Grantee) shall have commenced (as such term is defined in Rule 14d-2
under the Exchange Act), or shall have filed a registration statement
under the Securities Act with respect to, a tender offer or exchange
offer to purchase any shares of Issuer Common Stock such that, upon
consummation of such offer, such person would own or control 25% or more
of the then-outstanding shares of Issuer Common Stock (such an offer
being referred to herein as a "Tender Offer" or an "Exchange Offer,"
respectively); or
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(ii) the holders of Issuer Common Stock shall not have
approved the Merger Agreement at the meeting of such shareholders held
for the purpose of voting on the Merger Agreement, such meeting shall
not have been held or shall have been canceled prior to termination of
the Merger Agreement, or Issuer's Board of Directors shall have
withdrawn or modified in a manner adverse to Grantee the recommendation
of Issuer's Board of Directors with respect to the Merger Agreement, in
each case after it shall have been publicly announced that any person
(other than Grantee or any Subsidiary of Grantee) shall have (A) made,
or disclosed an intention to make, a proposal to engage in an
Acquisition Transaction, (B) commenced a Tender Offer or filed a
registration statement under the Securities Act with respect to an
Exchange Offer, or (C) filed an application (or given a notice), whether
in draft or final form, under the BHC Act, the Bank Merger Act, the
HOLA, or the Change in Bank Control Act of 1978, for approval to engage
in an Acquisition Transaction; or
(iii) any person (other than Grantee or any Subsidiary of
Grantee) shall have made, or disclosed an intention to make, a proposal
to engage in an Acquisition Transaction; or
(iv) any person (other than Grantee or any Subsidiary of
Grantee) shall have filed an application (or given a notice), whether in
draft or final form, under the BHC Act, the Bank Merger Act, the HOLA,
or the Change in Bank Control Act of 1978, for approval to engage in an
Acquisition Transaction.
As used in this Agreement, "person" shall have the meaning specified in
Sections 3(a)(9) and 13(d)(3) of the Exchange Act.
(d) In the event Holder wishes to exercise the Option, it
shall send to Issuer a written notice (the date of which being herein referred
to as the "Notice Date") specifying (i) the total number of Option Shares it
intends to purchase pursuant to such exercise and (ii) a place and date not
earlier than three business days nor later than 15 business days from the
Notice Date for the closing (the "Closing") of such purchase (the "Closing
Date"). If prior notification to or approval of the Board of Governors of the
Federal Reserve System (the "Federal Reserve Board"), the Office of the Thrift
Supervision (the "OTS") or any other regulatory authority is required in
connection with such purchase, Issuer shall cooperate with Holder in the filing
of the required notice or application for approval and the obtaining of such
approval and the Closing shall occur immediately following such regulatory
approvals (and any mandatory waiting periods). Any exercise of the Option
shall be deemed to occur on the Notice Date relating thereto.
(e) Notwithstanding any other provision of this Agreement
to the contrary, in no event shall Holder purchase under the terms of this
Agreement that number of Option Shares which have a "Spread Value" in excess of
$5,650,000. For purposes of this Agreement, "Spread Value" shall mean the
difference between (i) the product of (1) the sum of the total number of Option
Shares (x) Holder intends to purchase at the Closing Date pursuant to the
exercise of the Option and (y) previously purchased pursuant to the prior
exercise of the Option, and (2) the
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higher of (I) the closing bid price of Issuer Common Stock as quoted on the
Nasdaq National Market on the last trading day immediately preceding the
Closing Date and (II) the consideration per share of Issuer Common Stock to be
offered or paid to or received by holders of Issuer Common Stock in connection
with an Acquisition Transaction (provided, that if the consideration to be
offered, paid, or received shall be other than in cash, the value of such
consideration shall be determined in good faith by an independent nationally
recognized investment banking firm selected by Holder and reasonably acceptable
to Issuer, which determination shall be conclusive for all purposes of this
Agreement), and (ii) the product of (1) the total number of Option Shares (x)
Holder intends to purchase at the Closing Date pursuant to the exercise of the
Option and (y) previously purchased pursuant to the prior exercise of the
Option and (2) the applicable Purchase Price of such Option Shares. In the
event the Spread Value exceeds $5,650,000, the number of Option Shares which
Grantee is entitled to purchase at the Closing Date shall be reduced to that
number of shares necessary such that the Spread Value equals or is less than
$5,650,000.
4. PAYMENT AND DELIVERY OF CERTIFICATES.
(a) On each Closing Date, Holder shall (i) pay to Issuer,
in immediately available funds by wire transfer to a bank account designated by
Issuer, an amount equal to the Purchase Price multiplied by the number of
Option Shares to be purchased on such Closing Date, and (ii) present and
surrender this Agreement to the Issuer at the address of the Issuer specified
in Section 12(f) hereof.
(b) At each Closing, simultaneously with the delivery of
immediately available funds and surrender of this Agreement as provided in
Section 4(a), (i) Issuer shall deliver to Holder (A) a certificate or
certificates representing the Option Shares to be purchased at such Closing,
which Option Shares shall be free and clear of all liens, claims, charges, and
encumbrances of any kind whatsoever and subject to no pre-emptive rights, and
(B) if the Option is exercised in part only, an executed new agreement with the
same terms as this Agreement evidencing the right to purchase the balance of
the shares of Issuer Common Stock purchasable hereunder, and (ii) Holder shall
deliver to Issuer a letter agreeing that Holder shall not offer to sell or
otherwise dispose of such Option Shares in violation of applicable federal and
state law or of the provisions of this Agreement.
(c) In addition to any other legend that is required by
applicable law, certificates for the Option Shares delivered at each Closing
shall be endorsed with a restrictive legend which shall read substantially as
follows:
THE TRANSFER OF THE STOCK REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO
RESTRICTIONS ARISING UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
PURSUANT TO THE TERMS OF A STOCK OPTION AGREEMENT DATED AS OF OCTOBER
31, 1995. A COPY OF SUCH AGREEMENT WILL BE PROVIDED TO THE HOLDER
HEREOF WITHOUT CHARGE UPON RECEIPT BY THE ISSUER OF A WRITTEN REQUEST
THEREFOR.
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It is understood and agreed that the above legend shall be removed by delivery
of substitute certificate(s) without such legend if Holder shall have delivered
to Issuer a copy of a letter from the staff of the SEC, or an opinion of
counsel in form and substance reasonably satisfactory to Issuer and its
counsel, to the effect that such legend is not required for purposes of the
Securities Act.
5. REPRESENTATIONS AND WARRANTIES OF ISSUER. Issuer hereby
represents and warrants to Grantee as follows:
(a) Issuer has all requisite corporate power and authority to
enter into this Agreement and, subject to any approvals referred to
herein, to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Issuer. This Agreement has
been duly executed and delivered by Issuer.
(b) Issuer has taken all necessary corporate and other action to
authorize and reserve and to permit it to issue, and, at all times from
the date hereof until the obligation to deliver Issuer Common Stock upon
the exercise of the Option terminates, will have reserved for issuance,
upon exercise of the Option, the number of shares of Issuer Common Stock
necessary for Grantee to exercise the Option, and Issuer will take all
necessary corporate action to authorize and reserve for issuance all
additional shares of Issuer Common Stock or other securities which may
be issued pursuant to Section 7 upon exercise of the Option. The shares
of Issuer Common Stock to be issued upon due exercise of the Option,
including all additional shares of Issuer Common Stock or other
securities which may be issuable pursuant to Section 7, upon issuance
pursuant hereto, shall be duly and validly issued, fully paid, and
nonassessable, and shall be delivered free and clear of all liens,
claims, charges, and encumbrances of any kind or nature whatsoever,
including any preemptive rights of any stockholder of Issuer.
6. REPRESENTATIONS AND WARRANTS OF GRANTEE. Grantee hereby
represents and warrants to Issuer that:
(a) Grantee has all requisite corporate power and authority to
enter into this Agreement and, subject to any approvals or consents
referred to herein, to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Grantee. This Agreement has
been duly executed and delivered by Grantee.
(b) This Option is not being, and any Option Shares or other
securities acquired by Grantee upon exercise of the Option will not be,
acquired with a view to the public distribution thereof and will not be
transferred or otherwise disposed of except in a transaction registered
or exempt from registration under the Securities Laws.
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7. ADJUSTMENT UPON CHANGES IN CAPITALIZATION, ETC.
(a) In the event of any change in Issuer Common Stock by
reason of a stock dividend, stock split, split-up, recapitalization,
combination, exchange of shares, or similar transaction, the type and number of
shares or securities subject to the Option, and the Purchase Price therefor,
shall be adjusted appropriately, and proper provision shall be made in the
agreements governing such transaction so that Holder shall receive, upon
exercise of the Option, the number and class of shares or other securities or
property that Holder would have received in respect of Issuer Common Stock if
the Option had been exercised immediately prior to such event, or the record
date therefor, as applicable. If any additional shares of Issuer Common Stock
are issued after the date of this Agreement (other than pursuant to an event
described in the first sentence of this Section 7(a)), the number of shares of
Issuer Common Stock subject to the Option shall be adjusted so that, after such
issuance, it, together with any shares of Issuer Common Stock previously issued
pursuant hereto, equals 19.9% of the number of shares of Issuer Common Stock
then issued and outstanding, without giving effect to any shares subject to or
issued pursuant to the Option.
(b) In the event that Issuer shall enter in an agreement:
(i) to consolidate with or merge into any person, other than Grantee or one of
its subsidiaries, and shall not be the continuing or surviving corporation of
such consolidation or merger; (ii) to permit any person, other than Grantee or
one of its subsidiaries, to merge into Issuer and Issuer shall be the
continuing or surviving corporation, but, in connection with such merger, the
then-outstanding shares of Issuer Common Stock shall be changed into or
exchanged for stock or other securities of Issuer or any other person or cash
or any other property or the outstanding shares of Issuer Common Stock
immediately prior to such merger shall after such merger represent less than
50% of the outstanding shares and share equivalents of the merged company; or
(iii) to sell or otherwise transfer all or substantially all of its assets to
any person, other than Grantee or one of its subsidiaries, then, and in each
such case, the agreement governing such transaction shall make proper
provisions so that upon the consummation of any such transaction and upon the
terms and conditions set forth herein, Holder shall receive for each Option
Share with respect to which the Option has not been exercised an amount of
consideration in the form of and equal to the per share amount of consideration
that would be received by the holder of one share of Issuer Common Stock less
the Purchase Price (and, in the event of an election or similar arrangement
with respect to the type of consideration to be received by the holders of
Issuer Common Stock, subject to the foregoing, proper provision shall be made
so that the holder of the Option would have the same election or similar rights
as would the holder of the number of shares of Issuer Common Stock for which
the Option is then exercisable); provided, that if the sum of (i) the aggregate
value of the Net Consideration to be received by Holder pursuant to this
Section 7(b) and (ii) the consideration to be received for Option Shares with
respect to which the Option shall have previously been exercised, less the
aggregate Purchase Price paid therefor (collectively, the "Total
Consideration") shall exceed $5,650,000, then the Net Consideration shall be
reduced to the extent necessary such that the Total Consideration equals or is
less than $5,650,000. If the consideration to be offered, paid, or received
pursuant to this Section 7(b) shall be other than in cash, the value of such
consideration shall be determined in good faith by an independent
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nationally recognized investment banking firm selected by Holder and reasonably
acceptable to Issuer, which determination shall be conclusive for all purposes
of this Agreement.
8. REPURCHASE AT THE OPTION OF HOLDER.
(a) Subject to the last sentence of Section 3(a), at the
request of Holder at any time commencing upon the first occurrence of a
Repurchase Event (as defined in Section 8(d)) that occurs prior to the
termination of this Option pursuant to Section 3(a) hereof, Issuer shall
repurchase from Holder the Option and all shares of Issuer Common Stock
purchased by Holder pursuant hereto with respect to which Holder then has
beneficial ownership. The date on which Holder exercises its rights under this
Section 8 is referred to as the "Request Date." Such repurchase shall be at an
aggregate price (the "Section 8 Repurchase Consideration") equal to the sum of:
(i) the aggregate Purchase Price paid by Holder for any
shares of Issuer Common Stock acquired pursuant to the Option with
respect to which Holder then has beneficial ownership;
(ii) the excess, if any, of (x) the Applicable Price (as
defined below) for each share of Issuer Common Stock over (y) the
Purchase Price (subject to adjustment pursuant to Section 7), multiplied
by the number of shares of Issuer Common Stock with respect to which the
Option has not been exercised; and
(iii) the excess, if any, of the Applicable Price over the
Purchase Price (subject to adjustment pursuant to Section 7) paid (or,
in the case of Option Shares with respect to which the Option has been
exercised but the Closing Date has not occurred, payable) by Holder for
each share of Issuer Common Stock with respect to which the Option has
been exercised and with respect to which Holder then has beneficial
ownership, multiplied by the number of such shares;
provided, that the amounts to be paid pursuant to clauses (ii) and (iii) above
shall not exceed $5,650,000.
(b) If Holder exercises its rights under this Section 8,
Issuer shall, within ten business days after the Request Date (the "Repurchase
Closing"), pay the Section 8 Repurchase Consideration to Holder in immediately
available funds, and contemporaneously with such payment Holder shall surrender
to Issuer the Option and the certificates evidencing the shares of Issuer
Common Stock purchased thereunder with respect to which Holder then has
beneficial ownership, and Holder shall warrant that it has sole record and
beneficial ownership of such shares and that the same are then free and clear
of all liens, claims, charges, and encumbrances of any kind whatsoever.
Notwithstanding the foregoing, to the extent that prior notification to or
approval of the Federal Reserve Board, the OTS or other regulatory authority is
required in connection with the payment of all or any portion of the Section 8
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Repurchase Consideration, Holder shall have the ongoing option to revoke its
request for repurchase pursuant to Section 8, in whole or in part, or to
require that Issuer deliver from time to time that portion of the Section 8
Repurchase Consideration that it is not then so prohibited from paying and
promptly file the required notice or application for approval and expeditiously
process the same (and each party shall cooperate with the other in the filing
of any such notice or application and the obtaining of any such approval). If
the Federal Reserve Board, the OTS or any other regulatory authority
disapproves of any part of Issuer's proposed repurchase pursuant to this
Section 8, Issuer shall promptly give notice of such fact to Holder. If the
Federal Reserve Board, the OTS or other agency prohibits the repurchase in part
but not in whole, then Holder shall have the right (i) to revoke the repurchase
request or (ii) to the extent permitted by the Federal Reserve Board, the OTS
or other agency, determine whether the repurchase should apply to the Option
and/or Option Shares and to what extent to each, and Holder shall thereupon
have the right to exercise the Option as to the number of Option Shares for
which the Option was exercisable at the Request Date less the sum of the number
of shares covered by the Option in respect of which payment has been made
pursuant to Section 8(a)(ii) and the number of shares covered by the portion of
the Option (if any) that has been repurchased. Holder shall notify Issuer of
its determination under the preceding sentence within five business days of
receipt of notice of disapproval of the repurchase.
Notwithstanding anything herein to the contrary, all
of Holder's rights under this Section 8 shall terminate on the date of
termination of this Option pursuant to Section 3(a).
(c) For purposes of this Agreement, the "Applicable
Price" means the highest of (i) the highest price per share of Issuer Common
Stock paid for any such share by the person or groups described in Section
8(d)(i), (ii) the price per share of Issuer Common Stock received by holders of
Issuer Common Stock in connection with any merger or other business combination
transaction described in Section 7(b)(i), 7(b)(ii), or 7(b)(iii), or (iii) the
highest closing sales price per share of Issuer Common Stock quoted on the
Nasdaq National Market (or if Issuer Common Stock is not quoted on the Nasdaq
National Market, the highest bid price per share as quoted on the principal
trading market or securities exchange on which such shares are traded as
reported by a recognized source chosen by Holder) during the 60 business days
preceding the Request Date; provided, however, that in the event of a sale of
less than all of Issuer's Assets, the Applicable Price shall be the sum of the
price paid in such sale for such Assets and the current market value of the
remaining Assets of Issuer as determined by an independent nationally
recognized investment banking firm selected by Holder and reasonably acceptable
to Issuer (which determination shall be conclusive for all purposes of this
Agreement), divided by the number of shares of the Issuer Common Stock
outstanding at the time of such sale. If the consideration to be offered,
paid, or received pursuant to either of the foregoing clauses (i) or (ii) shall
be other than in cash, the value of such consideration shall be determined in
good faith by an independent nationally recognized investment banking firm
selected by Holder and reasonably acceptable to Issuer, which determination
shall be conclusive for all purposes of this Agreement.
(d) As used herein, "Repurchase Event" shall occur if (i)
any person (other than Grantee or any Subsidiary of Grantee) shall have
acquired beneficial ownership (as such term is defined in Rule 13d-3
promulgated under the Exchange Act), or the right to acquire beneficial
ownership, or any "group" (as such term is defined under the Exchange Act)
shall have been
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formed which beneficially owns or has the right to acquire beneficial ownership
of 50% or more of the then-outstanding shares of Issuer Common Stock, or (ii)
any of the transactions described in Section 7(b)(i), 7(b)(ii), or 7(b)(iii)
shall be consummated.
9. REGISTRATION RIGHTS.
(a) Following the termination of the Merger Agreement,
Issuer shall, subject to the conditions of subparagraph (c) below, if requested
by any Holder, including Grantee and any permitted transferee ("Selling
Shareholder"), as expeditiously as possible prepare and file a registration
statement under the Securities Laws if such registration is necessary in order
to permit the sale or other disposition of any or all shares of Issuer Common
Stock or other securities that have been acquired by or are issuable to Holder
upon exercise of the Option in accordance with the intended method of sale or
other disposition stated by Holder in such request, including, without
limitation, a "shelf" registration statement under Rule 415 under the
Securities Act or any successor provision, and Issuer shall use its best
efforts to qualify such shares or other securities for sale under any
applicable state securities laws.
(b) If Issuer at any time after the exercise of the
Option proposes to register any shares of Issuer Common Stock under the
Securities Laws in connection with an underwritten public offering of such
Issuer Common Stock, Issuer will promptly give written notice to Holder of its
intention to do so and, upon the written request of Holder given within 30 days
after receipt of any such notice (which request shall specify the number of
shares of Issuer Common Stock intended to be included in such underwritten
public offering by Selling Shareholder), Issuer will cause all such shares for
which Holder shall have requested participation in such registration, to be so
registered and included in such underwritten public offering; provided, that
Issuer may elect to not cause any such shares to be so registered (i) if the
underwriters in good faith object for valid business reasons, or (ii) in the
case of a registration solely to implement a dividend reinvestment or similar
plan, an employee benefit plan or a registration filed on Form S-4 or any
successor form; provided, further, that such election pursuant to clause (i)
may only be made two times. If some but not all the shares of Issuer Common
Stock, with respect to which Issuer shall have received requests for
registration pursuant to this subparagraph (b), shall be excluded from such
registration, Issuer shall make appropriate allocation of shares to be
registered among the Selling Shareholders and any other person (other than
Issuer) who or which is permitted to register their shares of Issuer Common
Stock in connection with such registration pro rata in the proportion that the
number of shares requested to be registered by each Selling Shareholder bears
to the total number of shares requested to be registered by all Selling
Shareholders (including such other persons) then desiring to have Issuer Common
Stock registered for sale.
(c) Issuer shall use all reasonable efforts to cause each
registration statement referred to in subparagraph (a) above to become
effective and to obtain all consents or waivers of other parties which are
required therefor and to keep such registration statement effective, provided,
that Issuer may delay any registration of Option Shares required pursuant to
subparagraph (a) above for a period not exceeding 90 days provided Issuer shall
in good faith determine that any such registration would adversely affect an
offering or contemplated offering
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of other securities by Issuer, and Issuer shall not be required to register
Option Shares under the Securities Laws pursuant to subparagraph (a) above:
(i) prior to the earliest of (a) termination of the
Merger Agreement pursuant to Section 10.1 thereof, (b) failure to obtain
the requisite stockholder approval pursuant to Section 9.1(a) of the
Merger Agreement, and (c) a Purchase Event or a Preliminary Purchase
Event;
(ii) on more than two occasions;
(iii) more than once during any calendar year;
(iv) within 90 days after the effective date of a
registration referred to in subparagraph (b) above pursuant to which the
Selling Shareholder or Selling Shareholders concerned were afforded the
opportunity to register such shares under the Securities Laws and such
shares were registered as requested; and
(v) unless a request therefor is made to Issuer by
Selling Shareholders holding at least 25% or more of the aggregate
number of Option Shares (including shares of Issuer Common Stock
issuable upon exercise of the Option) then outstanding.
Issuer shall use all reasonable efforts to make any
filings, and take all steps, under all applicable state securities laws to the
extent necessary to permit the sale or other disposition of the Option Shares
so registered in accordance with the intended method of distribution for such
shares, provided, that Issuer shall not be required to consent to general
jurisdiction or qualify to do business in any state where it is not otherwise
required to so consent to such jurisdiction or to so qualify to do business.
(d) Except where applicable state law prohibits such
payments, Issuer will pay all expenses (including without limitation
registration fees, qualification fees, blue sky fees and expenses (including
the fees and expenses of counsel), accounting expenses, legal expenses,
printing expenses, expenses of underwriters, excluding discounts and
commissions but including liability insurance if Issuer so desires or the
underwriters so require, and the reasonable fees and expenses of any necessary
special experts) in connection with each registration pursuant to subparagraph
(a) or (b) above (including the related offerings and sales by holders of
Option Shares) and all other qualifications, notifications or exemptions
pursuant to subparagraph (a) or (b) above. Underwriting discounts and
commissions relating to Option Shares, fees and fees and disbursements of
counsel to the Selling Shareholders, and any other expenses incurred by such
Selling Shareholders in connection with any such registration shall be borne by
such Selling Shareholders.
(e) In connection with any registration under
subparagraph (a) or (b) above Issuer hereby indemnifies the Selling
Shareholders, and each underwriter thereof, including each person, if any, who
controls such holder or underwriter within the meaning of Section 15 of the
Securities Act, against all expenses, losses, claims, damages, and liabilities
caused by any untrue
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statement of a material fact contained in any registration statement or
prospectus or notification or offering circular (including any amendments or
supplements thereto) or any preliminary prospectus, or caused by any omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such expenses,
losses, claims, damages, or liabilities of such indemnified party are caused by
any untrue statement or alleged untrue statement that was included by Issuer in
any such registration statement or prospectus or notification or offering
circular (including any amendments or supplements thereto) in reliance upon and
in conformity with, information furnished in writing to Issuer by such
indemnified party expressly for use therein, and Issuer and each officer,
director, and controlling person of Issuer shall be indemnified by such Selling
Shareholder, or by such underwriter, as the case may be, for all such expenses,
losses, claims, damages, and liabilities caused by any untrue, or alleged
untrue, statement, that was included by Issuer in any such registration
statement or prospectus or notification or offering circular (including any
amendments or supplements thereto) in reliance upon, and in conformity with,
information furnished in writing to Issuer by such holder or such underwriter,
as the case may be, expressly for such use.
Promptly upon receipt by a party indemnified under
this subparagraph (e) of notice of the commencement of any action against such
indemnified party in respect of which indemnity or reimbursement may be sought
against any indemnifying party under this subparagraph (e), such indemnified
party shall notify the indemnifying party in writing of the commencement of
such action, but the failure so to notify the indemnifying party shall not
relieve it of any liability which it may otherwise have to any indemnified
party under this subparagraph (e). In case notice of commencement of any such
action shall be given to the indemnifying party as above provided, the
indemnifying party shall be entitled to participate in and, to the extent it
may wish, jointly with any other indemnifying party similarly notified, to
assume the defense of such action at its own expense, with counsel chosen by it
and satisfactory to such indemnified party. The indemnified party shall have
the right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel (other than
reasonable costs of investigation) shall be paid by the indemnified party
unless (i) the indemnifying party either agrees to pay the same, (ii) the
indemnifying party falls to assume the defense of such action with counsel'
satisfactory to the indemnified party, or (iii) the indemnified party has been
advised by counsel that one or more legal defenses may be available to the
indemnifying party that may be contrary to the interest of the indemnified
party, in which case the indemnifying party shall be entitled to assume the
defense of such action notwithstanding its obligation to bear fees and expenses
of such counsel. No indemnifying party shall be liable for any settlement
entered into without its consent, which consent may not be unreasonably
withheld.
If the indemnification provided for in this
subparagraph (e) is unavailable to a party otherwise entitled to be indemnified
in respect of any expenses, losses, claims, damages, or liabilities referred to
herein, then the indemnifying party, in lieu of indemnifying such party
otherwise entitled to be indemnified, shall contribute to the amount paid or
payable by such party to be indemnified as a result of such expenses, losses,
claims, damages, or liabilities in such proportion as is appropriate to reflect
the relative benefits received by Issuer, the selling shareholders, and the
underwriters from the offering of the securities and also the relative fault of
Issuer, the selling shareholders, and the underwriters in connection with the
statements or
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<PAGE> 12
omissions which resulted in such expenses, losses, claims, damages, or
liabilities, as well as any other relevant equitable considerations. The
amount paid or payable by a party as a result of the expenses, losses, claims,
damages, and liabilities referred to above shall be deemed to include any legal
or other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim; provided, that in no case shall
any Selling Shareholder be responsible, in the aggregate, for any amount in
excess of the net offering proceeds attributable to its Option Shares included
in the offering. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. Any obligation by any holder to indemnify shall be several
and not joint with other holders.
In connection with any registration pursuant to
subparagraph (a) or (b) above, Issuer and each Selling Shareholder (other than
Grantee) shall enter into an agreement containing the indemnification
provisions of this subparagraph (e).
(f) Issuer shall comply with all reporting requirements
and will do all such other things as may be necessary to permit the expeditious
sale at any time of any Option Shares by Holder in accordance with and to the
extent permitted by any rule or regulation promulgated by the SEC from time to
time, including, without limitation, Rules 144 and 144A. Issuer shall at its
expense provide Holder with any information necessary in connection with the
completion and filing of any reports or forms required to be filed by them
under the Securities Laws, or required pursuant to any state securities laws or
the rules of any stock exchange.
(g) Issuer will pay all stamp taxes in connection with
the issuance and the sale of the Option Shares and in connection with the
exercise of the Option, and will save Holder harmless, without limitation as to
time, against any and all liabilities, with respect to all such taxes.
10. QUOTATION; LISTING. If Issuer Common Stock or any other
securities to be acquired upon exercise of the Option are then authorized for
quotation or trading or listing on the Nasdaq National Market or any national
securities exchange or any other automated quotations system maintained by a
self-regulatory organization, Issuer, upon the request of Holder, will promptly
file an application, if required, to authorize for quotation or trading or
listing the shares of Issuer Common Stock or other securities to be acquired
upon exercise of the Option on the Nasdaq National Market or any national
securities exchange or any other automated quotations system maintained by a
self-regulatory organization and will use its best efforts to obtain approval,
if required, of such quotation or listing as soon as practicable.
11. DIVISION OF OPTION. This Agreement (and the Option granted
hereby) are exchangeable, without expense, at the option of Holder, upon
presentation and surrender of this Agreement at the principal office of Issuer
for other Agreements providing for Options of different denominations entitling
the holder thereof to purchase in the aggregate the same number of shares of
Issuer Common Stock purchasable hereunder. The terms "Agreement" and "Option"
as used herein include any other Agreements and related Options for which this
Agreement (and the Option granted hereby) may be exchanged. Upon receipt by
Issuer of evidence reasonably satisfactory to it of the loss, theft,
destruction, or mutilation of this Agreement, and (in the case of
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<PAGE> 13
loss, theft, or destruction) of reasonably satisfactory indemnification, and
upon surrender and cancellation of this Agreement, if mutilated, Issuer will
execute and deliver a new Agreement of like tenor and date. Any such new
Agreement executed and delivered shall constitute an additional contractual
obligation on the part of Issuer, whether or not the Agreement so lost, stolen,
destroyed, or mutilated shall at any time be enforceable by anyone.
12. MISCELLANEOUS.
(a) EXPENSES. Except as otherwise provided in Section
10, each of the parties hereto shall bear and pay all costs and expenses
incurred by it or on its behalf in connection with the transactions
contemplated hereunder, including fees and expenses of its own financial
consultants, investment bankers, accountants, and counsel.
(b) WAIVER AND AMENDMENT. Any provision of this
Agreement may be waived at any time by the party that is entitled to the
benefits of such provision. This Agreement may not be modified, amended,
altered, or supplemented except upon the execution and delivery of a written
agreement executed by the parties hereto.
(c) ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARY;
SEVERABILITY. This Agreement, together with the Merger Agreement and the other
documents and instruments referred to herein and therein, between Grantee and
Issuer (a) constitutes the entire agreement and supersedes all prior agreements
and understandings, both written and oral, between the parties with respect to
the subject matter hereof and (b) is not intended to confer upon any person
other than the parties hereto (other than the indemnified parties under Section
9(e) and any transferees of the Option Shares or any permitted transferee of
this Agreement pursuant to Section 12(h)) any rights or remedies hereunder. If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction or a federal or state regulatory agency to be
invalid, void, or unenforceable, the remainder of the terms, provisions,
covenants, and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired, or invalidated. If for any
reason such court or regulatory agency determines that the Option does not
permit Holder to acquire, or does not require Issuer to repurchase, the full
number of shares of Issuer Common Stock as provided in Sections 3 and 8 (as
adjusted pursuant to Section 7), it is the express intention of Issuer to allow
Holder to acquire or to require Issuer to repurchase such lesser number of
shares as may be permissible without any amendment or modification hereof.
(d) GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the laws of the State of Georgia without regard to
any applicable conflicts of law rules.
(e) DESCRIPTIVE HEADINGS. The descriptive headings
contained herein are for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
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<PAGE> 14
(f) NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered
personally, telecopied (with confirmation), or mailed by registered or
certified mail (return receipt requested) to the parties at the addresses set
forth in the Merger Agreement (or at such other address for a party as shall be
specified by like notice):
(g) COUNTERPARTS. This Agreement and any amendments
hereto may be executed in two counterparts, each of which shall be considered
one and the same agreement and shall become effective when both counterparts
have been signed, it being understood that both parties need not sign the same
counterpart.
(h) ASSIGNMENT. Neither this Agreement nor any of the
rights, interests, or obligations hereunder or under the Option shall be
assigned by any of the parties hereto (whether by operation of law or
otherwise) without the prior written consent of the other party, except that
Grantee may assign this Agreement to a wholly owned Subsidiary of Grantee and
Grantee may assign its rights hereunder in whole or in part after the
occurrence of a Purchase Event. Subject to the preceding sentence, this
Agreement shall be binding upon, inure to the benefit of, and be enforceable by
the parties and their respective successors and assigns.
(i) FURTHER ASSURANCES. In the event of any exercise of
the Option by Holder, Issuer and Holder shall execute and deliver all other
documents and instruments and take all other action that may be reasonably
necessary in order to consummate the transactions provided for by such
exercise.
(j) SPECIFIC PERFORMANCE. The parties hereto agree that
this Agreement may be enforced by either party through specific performance,
injunctive relief, and other equitable relief. Both parties further agree to
waive any requirement for the securing or posting of any bond in connection
with the obtaining of any such equitable relief and that this provision is
without prejudice to any other rights that the parties hereto may have for any
failure to perform this Agreement.
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<PAGE> 15
IN WITNESS WHEREOF, Issuer and Grantee have caused this Stock Option
Agreement to be signed by their respective officers thereunto duly authorized,
all as of the day and year first written above.
ATTEST: BANKERS FIRST CORPORATION
/s/ J. Randal Hall By: /s/ H. M. Osteen, Jr.
- ------------------ -------------------------------------
Secretary President and Chief Executive Officer
[CORPORATE SEAL]
ATTEST: SOUTHTRUST CORPORATION
/s/ Alton E. Yother By: /s/ F. W. Murray, Jr.
- ------------------- -------------------------------------
Assistant Secretary Executive Vice President
[CORPORATE SEAL]
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<PAGE> 1
Exhibit 99.3
FOR MORE INFORMATION CALL:
Glenn W. Peters, Corporate Vice President and Chief Financial Officer
Bankers First Corporation
Augusta, Riverfront Center
One 10th Street, Suite 700
October 31, 1995 Augusta, GA 30907
FOR IMMEDIATE RELEASE (706) 849-3235
BANKERS FIRST ANNOUNCES MERGER WITH SOUTHTRUST
Bankers First Corporation and SouthTrust Corporation today announced
the signing of a definitive merger agreement. Bankers First will be acquired
by SouthTrust Corporation and will be merged with SouthTrust of Georgia, Inc.
Under the terms of the definitive agreement, all outstanding shares
and options of Bankers First common stock will be acquired by SouthTrust
Corporation in exchange for SouthTrust common stock and options. The exchange
ratio is 1.126 shares of SouthTrust common stock for each share of Bankers
First common stock, subject to possible adjustment in certain circumstances.
The transaction would be valued at approximately $149 million, or $28.50 per
Bankers First Corporation share based on the closing price of SouthTrust
Corporation common stock on October 31, 1995. The value of the transaction is
approximately 157% of Bankers First tangible equity or 150% of equity as of
September 30, 1995, assuming all outstanding options are exercised.
"We are pleased to be affiliated with SouthTrust. Through this
affiliation we believe our shareholders will realize enhanced value through the
growth opportunities afforded by a $20 billion banking organization. The
SouthTrust affiliation will also continue to provide the outstanding level of
banking services to our customers," commented H. M. Osteen, Jr., Chairman and
Chief Executive Officer of Bankers First Corporation.
Thomas H. Coley, Chairman and Chief Executive Officer of SouthTrust
Bank of Georgia commented, "Bankers First has a strong history in Georgia
providing first rate customer service within a community banking atmosphere.
This style fits the SouthTrust culture well and we look forward to working with
Bankers First's employees to help us carry on that tradition."
The definitive agreement is subject to certain conditions including
approval of Bankers First shareholders and regulatory approval. The
transaction is intended to be accounted for as a pooling of interests and to be
a tax free exchange for stockholders of Bankers First. In connection with the
transaction Bankers First granted to SouthTrust Corporation an option for 19.9%
of its common stock.
SouthTrust Bank of Georgia is a subsidiary of SouthTrust Corporation,
a $20 billion bank holding company headquartered in Birmingham, Alabama.
SouthTrust Corporation operates banks with more than 400 branches in Alabama,
Georgia, Florida, Mississippi, Tennessee and the
<PAGE> 2
Carolinas. SouthTrust Bank currently has more than $4 billion in assets in
Georgia and operates 95 branches in 13 Georgia counties. SouthTrust
Corporation's common stock is traded on the Nasdaq Stock Market using the
symbol SOTR.
Bankers First Corporation is a financial services company principally
serving the Augusta and northwest Georgia (Rossville/Chattanooga, TN) markets
with 25 banking offices and 27 automated teller machines. The Company's common
stock is traded on the Nasdaq Stock Market using the symbol BNKF. The
abbreviation found in most newspaper listings is "Bankers First."
