AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
UNION PLANTERS CORPORATION
AND
CAPITAL BANCORP
DATED AS OF AUGUST 12, 1997
TABLE OF CONTENTS
Page
PREAMBLE . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 1 TRANSACTIONS AND TERMS OF MERGER . . . . . 2
1.1 Merger . . . . . . . . . . . . . . . . . . 2
1.2 Time and Place of Closing . . . . . . . . . 2
1.3 Effective Time . . . . . . . . . . . . . . 2
1.4 Execution of Agreements . . . . . . . . . . 3
1.5 Restructure of Transaction . . . . . . . . 3
ARTICLE 2 TERMS OF MERGER . . . . . . . . . . . . . . 4
2.1 Charter . . . . . . . . . . . . . . . . . . 4
2.2 By-Laws . . . . . . . . . . . . . . . . . . 4
2.3 Directors and Officers . . . . . . . . . . 4
ARTICLE 3 MANNER OF CONVERTING SHARES . . . . . . . . 4
3.1 Conversion of Shares . . . . . . . . . . . 4
3.2 Anti-Dilution Provisions . . . . . . . . . 5
3.3 Shares Held by Subject Company or Parent . 5
3.4 Fractional Shares . . . . . . . . . . . . . 5
3.5 Conversion of Stock Options . . . . . . . . 5
ARTICLE 4 EXCHANGE OF SHARES . . . . . . . . . . . . 7
4.1 Exchange Procedures . . . . . . . . . . . . 7
4.2 Rights of Former Subject Company
Shareholders . . . . . . . . . . . . . . . 8
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF SUBJECT
COMPANY . . . . . . . . . . . . . . . . . . 9
5.1 Organization, Standing, and Power . . . . . 9
5.2 Authority; No Breach by Agreement . . . . . 10
5.3 Capital Stock . . . . . . . . . . . . . . . 11
5.4 Subject Company Subsidiaries . . . . . . . 11
5.5 Financial Statements . . . . . . . . . . . 13
5.6 Absence of Undisclosed Liabilities . . . . 13
5.7 Absence of Certain Changes or Events . . . 14
5.8 Tax Matters . . . . . . . . . . . . . . . . 14
5.9 Assets. . . . . . . . . . . . . . . . . . . 15
5.10 Intellectual Property. . . . . . . . . . . 16
5.11 Environmental Matters. . . . . . . . . . . 17
5.12 Compliance With Laws. . . . . . . . . . . . 18
5.13 Labor Relations. . . . . . . . . . . . . . 18
5.14 Employee Benefit Plans. . . . . . . . . . . 19
5.15 Material Contracts. . . . . . . . . . . . . 21
5.16 Legal Proceedings . . . . . . . . . . . . . 22
5.17 Reports. . . . . . . . . . . . . . . . . . 22
5.18 Statements True and Correct. . . . . . . . 23
5.19 Accounting, Tax, and Regulatory Matters. . 24
5.20 State Takeover Laws . . . . . . . . . . . . 24
5.21 Article Provisions . . . . . . . . . . . . 24
ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF PARENT . 24
6.1 Organization, Standing and Power. . . . . 24
6.2 Authority; No Breach by Agreement. . . . . 25
6.3 Capital Stock. . . . . . . . . . . . . . . 26
6.4 Parent Subsidiaries . . . . . . . . . . . . 26
6.5 Financial Statements. . . . . . . . . . . . 27
6.6 Absence of Undisclosed Liabilities. . . . . 27
6.7 Absence of Certain Changes or Events. . . . 28
6.8 Tax Matters. . . . . . . . . . . . . . . . 28
6.9 Environmental Matters. . . . . . . . . . . 28
6.10 Compliance With Laws. . . . . . . . . . . . 29
6.11 Legal Proceedings. . . . . . . . . . . . . 30
6.12 Reports. . . . . . . . . . . . . . . . . . 30
6.13 Statements True and Correct. . . . . . . . 31
6.14 Accounting, Tax, and Regulatory Matters. . 31
ARTICLE 7 CONDUCT OF BUSINESS PENDING CONSUMMATION . 32
7.1 Affirmative Covenants of Subject Company. . 32
7.2 Negative Covenants of Subject Company. . . 32
7.3 Covenants of Parent . . . . . . . . . . . . 35
7.4 Adverse Changes in Condition . . . . . . . 35
7.5 Reports . . . . . . . . . . . . . . . . . . 36
ARTICLE 8 ADDITIONAL AGREEMENTS . . . . . . . . . . . 36
8.1 Registration Statement; Proxy Statement;
Shareholder
Approval . . . . . . . . . . . . . . . . . 36
8.2 Exchange Listing . . . . . . . . . . . . . 37
8.3 Applications . . . . . . . . . . . . . . . 37
8.4 Filings With State Offices . . . . . . . . 37
8.5 Agreement as to Efforts to Consummate . . . 37
8.6 Investigation and Confidentiality . . . . . 38
8.7 Press Releases . . . . . . . . . . . . . . 38
8.8 Certain Actions . . . . . . . . . . . . . . 38
8.9 Accounting and Tax Treatment . . . . . . . 39
8.10 Agreement of Affiliates . . . . . . . . . . 39
8.11 Employee Benefits and Contracts . . . . . . 40
8.12 Indemnification . . . . . . . . . . . . . . 40
8.13 Merger Subsidiary Organization . . . . . . 42
8.14 State Takeover Laws . . . . . . . . . . . . . 43
ARTICLE 9 CONDITIONS PRECEDENT TO OBLIGATIONS
TO CONSUMMATE . . . . . . . . . . . . . . . 43
9.1 Conditions to Obligations of Each Party . . 43
9.2 Conditions to Obligations of Parent . . . . 45
9.3 Conditions to Obligations of Subject
Company . . . . . . . . . . . . . . . . . . 46
ARTICLE 10 TERMINATION . . . . . . . . . . . . . . . . 47
10.1 Termination . . . . . . . . . . . . . . . . 47
10.2 Effect of Termination . . . . . . . . . . . 52
10.3 Non-Survival of Representations and
Covenants . . . . . . . . . . . . . . . . . 52
ARTICLE 11 MISCELLANEOUS . . . . . . . . . . . . . . . 52
11.1 Definitions . . . . . . . . . . . . . . . . 52
11.2 Expenses . . . . . . . . . . . . . . . . . 62
11.3 Brokers and Finders . . . . . . . . . . . . 63
11.4 Entire Agreement . . . . . . . . . . . . . 63
11.5 Amendments . . . . . . . . . . . . . . . . 63
11.6 Waivers . . . . . . . . . . . . . . . . . . 63
11.7 Assignment . . . . . . . . . . . . . . . . 64
11.8 Notices . . . . . . . . . . . . . . . . . . 64
11.9 Governing Law . . . . . . . . . . . . . . . 65
11.10 Counterparts . . . . . . . . . . . . . . . 65
11.11 Captions . . . . . . . . . . . . . . . . . 65
11.12 Interpretations . . . . . . . . . . . . . . 66
11.13 Enforcement of Agreement . . . . . . . . . 66
11.14 Severability . . . . . . . . . . . . . . . 66
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this
"Agreement") is made and entered into as of August 12, 1997,
by and between Capital Bancorp, a Florida corporation having
its principal office located in Miami, Florida ("Subject
Company"), and Union Planters Corporation, a Tennessee
corporation having its principal office located in Memphis,
Tennessee ("Parent").
PREAMBLE
The Boards of Directors of Subject Company and
Parent 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 Subject Company by Parent pursuant to the
merger of a wholly owned subsidiary of Parent to be
organized under the Laws of the State of Florida ("Merger
Subsidiary") with and into Subject Company. At the
effective time of such merger, the outstanding shares of the
common stock of Subject Company shall be converted into the
right to receive shares of the common stock of Parent
(except as provided in Sections 3.3 and 3.4 of this
Agreement). As a result, shareholders of Subject Company
shall become shareholders of Parent and Subject Company
shall continue to conduct its business and operations as a
wholly owned subsidiary of Parent. The transactions
described in this Agreement are subject to the approvals of
the shareholders of Subject Company, the Board of Governors
of the Federal Reserve System, the Department of Banking and
Finance of the State of Florida, and other applicable
federal and state regulatory authorities, and the
satisfaction of certain other conditions described in this
Agreement. It is the intention of the parties to this
Agreement that (i) for federal income tax purposes this
Agreement shall constitute a plan of merger and the Merger
shall qualify as a "reorganization" within the meaning of
Section 368(a) of the Internal Revenue Code and (ii) for
accounting purposes the Merger shall qualify for treatment
as a pooling of interests.
Immediately after the execution and delivery of
this Agreement, as a condition and inducement to Parent's
willingness to enter into this Agreement, (i) Subject
Company and Parent are entering into a stock option
agreement pursuant to which Subject Company is granting to
Parent an option to purchase shares of Subject Company
Common Stock and (ii) each of the directors of Subject
Company are entering into a support agreement with Parent.
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:
ARTICLE 1
TRANSACTIONS AND TERMS OF MERGER
1.1 Merger. Subject to the terms and conditions
of this Agreement, at the Effective Time, Merger Subsidiary
shall be merged with and into Subject Company in accordance
with the provisions of Section 607.1101 of the FBCA and with
the effect provided in Section 607.1106 of the FBCA (the
"Merger"). Subject Company shall be the Surviving
Corporation resulting from the Merger and shall continue to
be governed by the Laws of the State of Florida. 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 Subject Company and Parent
and will be approved and adopted by the Board of Directors
of Merger Subsidiary upon its organization.
1.2 Time and Place of Closing. The Closing will
take place at 9:00 A.M. on the date that the Effective Time
occurs (or the immediately preceding day if the Effective
Time is earlier than 9:00 A.M.), or at such other time as
the Parties, acting through their chief executive officers
or chief financial officers, may mutually agree. The
Closing shall be held at such 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 Articles of Merger
reflecting the Merger shall become effective with the
Secretary of State of the State of Florida (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 such date as may be
designated by Parent within 30 days following the last to
occur of (i) the effective date of the last required Consent
of any Regulatory Authority having authority over and
approving or exempting the Merger (without regard to any
requisite waiting period in respect thereof), (ii) the date
on which the shareholders of Subject Company approve this
Agreement, and (iii) the date on which all other conditions
precedent (other than those conditions which relate to
actions to be taken at the Closing) to each Party's
obligations hereunder shall have been satisfied or waived
(to the extent waivable by such Party).
1.4 Execution of Agreements. Immediately after
the execution of this Agreement by the Parties and as a
condition thereto, (i) Subject Company is executing and
delivering to Parent a stock option agreement (the "Stock
Option Agreement"), in substantially the form of Exhibit 1,
pursuant to which Subject Company is granting to Parent an
option to purchase shares of Subject Company Common Stock
and (ii) each of the directors of Subject Company is
executing and delivering to Parent a support agreement (the
"Support Agreement") in substantially the form of Exhibit 2.
1.5 Restructure of Transaction. Parent shall, in
its reasonable discretion, have the unilateral right to
revise the structure of the Merger contemplated by this
Agreement in order to achieve tax benefits or for any other
reason which Parent may deem advisable; provided, however,
that Parent shall not have the right, without the approval
of the Board of Directors of Subject Company and, if
required by Section 607.1103 of the FBCA, the holders of the
Subject Company Common Stock, to make any revision to the
structure of the Merger which: (i) changes the amount of the
consideration which the holders of shares of Subject Company
Common Stock are entitled to receive (determined in the
manner provided in Section 3.1 of this Agreement); (ii)
changes the intended tax-free effects of the Merger to
Parent, Subject Company or the holders of shares of Subject
Company Common Stock or changes the intended pooling of
interests accounting treatment; (iii) would permit Parent to
pay the consideration other than by delivery of Parent
Common Stock registered with the SEC (in the manner
described in Section 4.1 of this Agreement); (iv) would be
materially adverse to the interests of Subject Company or
adverse to the holders of shares of Subject Company Common
Stock; (v) would materially impede or delay consummation of
the Merger; or (vi) would require a vote of Parent's
shareholders under relevant state Law. Parent may exercise
this right of revision by giving written notice to Subject
Company in the manner provided in Section 11.8 of this
Agreement which notice shall be in the form of an amendment
to this Agreement or in the form of an Amended and Restated
Agreement and Plan of Merger.
ARTICLE 2
TERMS OF MERGER
2.1 Charter. The Articles of Incorporation (the
"Articles") of Subject Company in effect immediately prior
to the Effective Time shall be the Articles of the Surviving
Corporation until otherwise amended or repealed.
2.2 By-Laws. The Amended and Restated By-laws of
Subject Company (the "By-Laws") in effect immediately prior
to the Effective Time shall be the By-laws of the Surviving
Corporation until otherwise amended or repealed.
2.3 Directors and Officers. The directors of
Merger Subsidiary 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 By-laws of the Surviving Corporation.
The officers of Merger Subsidiary 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 the Effective
Time in accordance with the By-laws 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
Parent, Merger Subsidiary, Subject Company, or the
shareholders of any of the foregoing, the shares of the
constituent corporations shall be converted as follows:
(a) Each share of Parent Capital Stock, including
any associated Parent 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 Merger Subsidiary Common Stock
issued and outstanding immediately prior to the Effective
Time shall cease to be outstanding and shall be converted
into and exchanged for one share of Subject Company Common
Stock.
(c) Each share of Subject Company Common Stock
(excluding shares held by Subject Company, any Subject
Company Subsidiary, Parent or any Parent Subsidiary, 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 .8525
shares of Parent Common Stock (as subject to possible
adjustment as set forth in Section 10.1(g) of this
Agreement, the "Exchange Ratio"). Pursuant to the Parent
Rights Agreement, each share of Parent Common Stock issued
in connection with the Merger upon conversion of Subject
Company Common Stock shall be accompanied by a Parent Right.
3.2 Anti-Dilution Provisions. In the event
Parent changes the number of shares of Parent 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 Subject Company or Parent.
Each of the shares of Subject Company Common Stock held by
Subject Company, any Subject Company Subsidiary, Parent or
any Parent Subsidiary, in each case other than in fiduciary
capacity or as a result of debts previously contracted,
shall be canceled and retired at the Effective Time and no
consideration shall be issued in exchange therefor.
3.4 Fractional Shares. Notwithstanding any other
provision of this Agreement, each holder of shares of
Subject Company Common Stock exchanged pursuant to the
Merger who would otherwise have been entitled to receive a
fractional share of Parent 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 share of Parent Common Stock
multiplied by the closing price of such common stock on the
NYSE-Composite Transactions List (as reported by The Wall
Street Journal or, if not reported thereby, any other
authoritative source selected by Parent) 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. (a) At the
Effective Time, each option to purchase or other right with
respect to shares of Subject Company Common Stock pursuant
to stock options, stock appreciation rights or other rights,
including stock awards ("Subject Company Options") granted
by Subject Company under the Subject Company Stock Plans,
which are outstanding at the Effective Time, whether or not
exercisable, shall be converted into and become options with
respect to Parent Common Stock, and Parent shall assume each
Subject Company Option, in accordance with the terms of the
applicable Subject Company Stock Plan and stock option or
other agreement by which it is evidenced, except that from
and after the Effective Time, (i) Parent and its Salary and
Benefits Committee shall be substituted for Subject Company
and the committee of Subject Company's Board of Directors
(including, if applicable, the entire Board of Directors of
Subject Company) administering such Subject Company Stock
Plan, (ii) each Subject Company Option assumed by Parent may
be exercised solely for shares of Parent Common Stock (or
cash in the case of stock appreciation rights), (iii) the
number of shares of Parent Common Stock subject to such
Subject Company Option shall be equal to the number of
shares of Subject Company Common Stock subject to such
Subject Company Option immediately prior to the Effective
Time multiplied by the Exchange Ratio and rounding down to
the nearest whole share, and (iv) the per share exercise
price under each such Subject Company Option shall be
adjusted by dividing the per share exercise price under each
such Subject Company Option by the Exchange Ratio and
rounding up to the nearest cent. Notwithstanding clauses
(iii) and (iv) of the first sentence of this Section 3.5,
each Subject Company Option that 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. Parent and
Subject Company agree to take all necessary steps to
effectuate the foregoing provisions of this Section 3.5.
(b) As soon as practicable after the Effective
Time, Parent shall deliver to the participants in each
Subject Company Stock Plan an appropriate notice setting
forth such participant's rights pursuant thereto and the
grants subject to such Subject Company Stock Plan shall
continue in effect on the same terms and conditions (subject
to the adjustments required by Section 3.5(a) after giving
effect to the Merger), and Parent shall comply with the
terms of each Subject Company Stock Plan to ensure, to the
extent required by, and subject to the provisions of, such
Subject Company Stock Plan, that Subject Company Options
that qualified as incentive stock options prior to the
Effective Time continue to qualify as incentive stock
options after the Effective Time. Within 30 days after the
Effective Time, Parent shall file a registration statement
on Form S-8 with respect to the shares of Parent 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.
(c) Without limiting the foregoing, and provided
that the right contained in this paragraph (c) is not
inconsistent with any of the conditions contained in Article
9 hereof, each holder of a Subject Company Option that is
not an "incentive stock option", whether or not then vested,
shall have the right to elect to convert, at the Effective
Time, all or a portion of his or her Subject Company Options
which are not "incentive stock options" and which have not
expired prior to the Effective Time into the right to
receive such number of shares (rounded to the nearest whole
share) of Parent Common Stock as are equal in value
(determined by valuing each share of Parent Common Stock at
the Average Closing Price (as defined in Section 10.1)) to
the excess of (i) the product of the number of shares of
Subject Company Common Stock subject to such option times
the Exchange Ratio times the Average Closing Price of the
Parent Common Stock over (ii) the product of (A) the
exercise price per share of Subject Company Common Stock
subject to such option and (B) the number of shares of
Subject Company Common Stock subject to such option. The
foregoing right shall be exercised by delivery to Parent of
written notice of election (specifying the number of Subject
Company Options covered by such election) by the holder of
such Subject Company Option not later than two business days
prior to the Effective Time.
(d) All contractual restrictions or limitations
on transfer with respect to Subject Company Common Stock
awarded under the Subject Company Stock Plans or any other
plan, program, or Contract of Subject Company or any of the
Subject Company Subsidiaries, to the extent that such
restrictions or limitations shall not have already lapsed
(whether as a result of the Merger or otherwise), and except
as otherwise expressly provided in such plan, program, or
Contract, shall remain in full force and effect with respect
to shares of Parent Common Stock into which such restricted
stock is converted pursuant to Section 3.1 of this
Agreement.
ARTICLE 4
EXCHANGE OF SHARES
4.1 Exchange Procedures. Promptly after the
Effective Time, Parent and Subject Company shall cause the
exchange agent selected by Parent (the "Exchange Agent") to
mail to the former shareholders of Subject Company
appropriate transmittal materials (which shall specify that
delivery shall be effected, and risk of loss and title to
the certificates theretofore representing shares of Subject
Company Common Stock shall pass, only upon proper delivery
of such certificates to the Exchange Agent). Subject
Company shall have the right to review the transmittal
materials. The Exchange Agent may establish reasonable and
customary rules and procedures in connection with its
duties. After the Effective Time, each holder of shares of
Subject Company 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 Subject Company 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 Parent Common Stock to which such holder
may be otherwise entitled (without interest). Parent shall
not be obligated to deliver the consideration to which any
former holder of Subject Company Common Stock is entitled as
a result of the merger until such holder surrenders such
holder's certificate or certificates representing the shares
of Subject Company Common Stock for exchange as provided in
this Section 4.1. The certificate or certificates of
Subject Company Common Stock so surrendered shall be duly
endorsed as the Exchange Agent may require. Any other
provision of this Agreement notwithstanding, neither Parent
nor the Exchange Agent shall be liable to a holder of
Subject Company 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 Subject Company
Shareholders. At the Effective Time, the stock transfer
books of Subject Company shall be closed as to holders of
Subject Company Common Stock immediately prior to the
Effective Time and no transfer of Subject Company 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 Subject
Company 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 Corporations' 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 Subject Company in respect of such shares of Subject
Company 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
Parent on the Parent 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 of
Parent Common Stock issuable pursuant to this Agreement, but
beginning 30 days after the Effective Time no dividend or
other distribution payable to the holders of record of
Parent Common Stock as of any time subsequent to the
Effective Time shall be delivered to the holder of any
certificate representing shares of Subject Company 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 Subject Company Common Stock certificate,
both a Parent Common Stock certificate (together with all
such undelivered dividends or other distributions without
interest) and any undelivered dividends and cash payments
payable hereunder (without interest) shall be delivered and
paid with respect to each share represented by such
certificate. In the event any Subject Company Common Stock
certificate shall have been lost, stolen or destroyed, upon
the making of an affidavit of that fact by the person
claiming such certificate to be lost, stolen or destroyed
and, if required by Parent, the posting by such person of a
bond in such amount as Parent may reasonably direct as
indemnity against any claim that may be made against it with
respect to such certificate, the Exchange Agent shall issue
in exchange for such lost, stolen or destroyed certificate
the shares of Parent Common Stock and cash in lieu of
fractional shares deliverable in respect thereof pursuant to
this Agreement.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF SUBJECT COMPANY
Subject Company hereby represents and warrants to
Parent as follows:
5.1 Organization, Standing, and Power. Subject
Company is a corporation duly organized, validly existing,
and in good standing under the Laws of the State of Florida,
and has the corporate power and authority to carry on its
business as now conducted and to own, lease, and operate its
Assets. Subject Company 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 Subject Company.
5.2 Authority; No Breach by Agreement. (a)
Subject Company 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 (including valid authorization and adoption of this
Agreement by Subject Company's duly constituted Board of
Directors) in respect thereof on the part of Subject
Company, subject to the approval of this Agreement by the
holders of the outstanding shares of Subject Company Common
Stock, which is the only shareholder vote required for
approval of this Agreement and consummation of the Merger by
Subject Company. Subject to such requisite shareholder
approval and assuming due authorization, execution and
delivery of this Agreement by each of Parent and Merger
Subsidiary, this Agreement (which, for purposes of this
sentence, shall not include the Stock Option Agreement)
represents a legal, valid, and binding obligation of Subject
Company, enforceable against Subject Company in accordance
with its terms (except in all cases as such enforceability
may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, conservatorship, 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 (which, for purposes of clause (iii) of this
sentence, shall not include the Stock Option Agreement) by
Subject Company, nor the consummation by Subject Company of
the transactions contemplated hereby, nor compliance by
Subject Company with any of the provisions hereof, will (i)
conflict with or result in a breach of any provision of the
Articles or the By-laws, or (ii) except as disclosed in
Section 5.2 of the Subject Company Disclosure Memorandum,
constitute or result in a Default under, or require any
Consent (excluding Consents required by Law or Order)
pursuant to, or result in the creation of any Lien on any
material Asset of Subject Company or any Subject Company
Subsidiary under, any Contract or Permit of Subject Company
or any Subject Company Subsidiary, except for such Defaults,
Liens and Consents, which, if not obtained or made, are not
reasonably likely to have, individually or in the aggregate,
a Material Adverse Effect on Subject Company, or (iii)
subject to receipt of the requisite Consents referred to in
Section 9.1(b) of this Agreement, violate any Law or Order
applicable to Subject Company, its Subsidiaries 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 Subject Company, no notice to, filing with, or
Consent of, any public body or authority is necessary for
the consummation by Subject Company of the Merger and the
other transactions contemplated in this Agreement.
5.3 Capital Stock. (a) The authorized capital
stock of Subject Company consists of 20,000,000 shares of
Subject Company Common Stock, of which 7,590,925 shares are
issued and outstanding as of July 31, 1997 (exclusive of
treasury shares) and not more than 8,887,237 shares will be
issued and outstanding at the Effective Time (exclusive of
shares issued or issuable pursuant to the Stock Option
Agreement). All of the issued and outstanding shares of
capital stock of Subject Company are duly and validly issued
and outstanding and are fully paid and nonassessable under
the FBCA. None of the outstanding shares of capital stock
of Subject Company has been issued in violation of any
preemptive rights of the current or past shareholders of
Subject Company. As of the date of this Agreement, Subject
Company has 739,192 shares of Subject Company Common Stock
available for grant under the Subject Company Stock Plans,
and there are options to purchase not more than 1,296,312
shares of Subject Company Common Stock 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 Subject Company outstanding and no outstanding
Rights relating to the capital stock of Subject Company.
5.4 Subject Company Subsidiaries. Subject
Company has disclosed in Section 5.4 of the Subject Company
Disclosure Memorandum all of the Subject Company
Subsidiaries that are corporations (identifying its
jurisdiction of incorporation) and all of the Subject
Company Subsidiaries that are general or limited
partnerships or other non-corporate entities (identifying
the Law under which such entity is organized, and the amount
and nature of the ownership interest therein of Subject
Company Subsidiaries). Except as set forth in Section 5.4
of the Subject Company Disclosure Memorandum, Subject
Company or one of its wholly owned Subsidiaries owns all of
the issued and outstanding shares of capital stock (or other
equity interests) of each of the Subject Company
Subsidiaries. Except as set forth in Section 5.4 of the
Subject Company Disclosure Memorandum and except for the
Stock Option Agreement and options outstanding under the
Subject Company Stock Plans, no capital stock (or other
equity interest) of any Subject Company Subsidiary is or may
become required to be issued (other than to another Subject
Company Subsidiary) by reason of any rights, and there are
no Contracts by which Subject Company or any of the Subject
Company Subsidiaries is bound to issue (other than to
Subject Company or another of the Subject Company
Subsidiaries) additional shares of its capital stock (or
other equity interests) or Rights or by which Subject
Company or any of the Subject Company Subsidiaries is or may
be bound to transfer any shares of the capital stock (or
other equity interests) of any of Subject Company or any of
the Subject Company Subsidiaries (other than to Subject
Company or any of the Subject Company Subsidiaries). Except
as set forth in Section 5.4 of the Subject Company
Disclosure Memorandum, there are no Contracts relating to
the rights of Subject Company or any Subject Company
Subsidiary to vote or to dispose of any shares of the
capital stock (or other equity interests) of Subject Company
or any Subject Company Subsidiary. All of the shares of
capital stock (or other equity interests) of each Subject
Company Subsidiary held by Subject Company or any Subject
Company Subsidiary are fully paid and nonassessable (except
pursuant to applicable state law, in the case of the Bank)
under the applicable corporation or similar Law of the
jurisdiction in which such Subsidiary is incorporated or
organized and are owned by Subject Company or a Subject
Company Subsidiary free and clear of any Liens. Each
Subject Company Subsidiary is either a bank, partnership,
limited liability corporation, or a corporation, and each
such Subsidiary 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 Subject Company 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 Subject
Company. The only Subject Company Subsidiary that is a
depository institution is the Bank. The Bank is an "insured
institution" as defined in the Federal Deposit Insurance Act
and applicable regulations thereunder, and the deposits in
which are insured by the Bank Insurance Fund. The minute
book and other organizational documents (and all amendments
thereto) for Subject Company and each Subject Company
Subsidiary that is a "Significant Subsidiary" (as such term
is defined in Regulation S-X promulgated under the 0000 Xxx)
have been or will be made available to Parent for its
review, and are true and complete as in effect as of the
date of this Agreement.
5.5 Financial Statements. (a) Each of the
Subject Company Financial Statements (including, in each
case, any related notes) contained in the Subject Company
SEC Reports, including any Subject Company SEC Reports filed
after the date of this Agreement until the Effective Time,
complied, or will comply, as to form in all material
respects with the applicable published rules and regulations
of the SEC with respect thereto, was prepared, or will be
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 interim statements, as permitted by
Form 10-Q of the SEC), and fairly presented, or will fairly
present, in all material respects the consolidated financial
position of Subject Company and the Subject Company
Subsidiaries as of 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 or effect.
(b) Each of the Holding Financial Statements
(including, in each case, any related notes) complied, or
will comply, as to form in all material respects with the
applicable published rules and regulations of the SEC with
respect thereto, was prepared, or will be 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 interim statements, as permitted by Form 10-Q of
the SEC), and fairly presented, or will fairly present, in
all material respects the consolidated financial position of
Holding and its Subsidiaries as of 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 or effect.
5.6 Absence of Undisclosed Liabilities. Neither
Subject Company nor any of the Subject Company Subsidiaries
has any Liabilities that are reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect
on Subject Company, except Liabilities which are accrued or
reserved against in the consolidated balance sheets of
Subject Company as of March 31, 1997, included in the
Subject Company Financial Statements made available prior to
the date of this Agreement or reflected in the notes
thereto. Neither Subject Company nor any of the Subject
Company Subsidiaries has incurred or paid any Liability
since March 31, 1997, except for such Liabilities incurred
or paid (i) in the ordinary course of business consistent
with past business practice or which are not reasonably
likely to have, individually or in the aggregate, a Material
Adverse Effect on Subject Company or (ii) in connection with
the transactions contemplated by this Agreement.
5.7 Absence of Certain Changes or Events. Since
December 31, 1996, except as disclosed in the Subject
Company SEC Reports made available prior to the date of this
Agreement or in Section 5.7 of the Subject Company
Disclosure Memorandum, 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 Subject Company.
5.8 Tax Matters. Except as set forth in Section
5.8 of the Subject Company Disclosure Memorandum:
(a) All material Tax Returns required to be filed
by or on behalf of Subject Company or any of the Subject
Company Subsidiaries 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, 1996,
and on or before the date of the most recent fiscal year end
immediately preceding the Effective Time, and all such Tax
Returns filed are complete and accurate in all material
respects. All Taxes shown on filed Tax Returns have been
paid. There is no audit examination or refund Litigation
with respect to any material Taxes, except as reserved
against in the Subject Company Financial Statements made
available prior to the date of this Agreement. All material
Taxes and other material Liabilities due with respect to
completed and settled examinations or concluded Litigation
have been paid. There are no material Liens with respect to
Taxes upon any of the Assets of Subject Company or any of
the Subject Company Subsidiaries.
(b) Neither Subject Company nor any of the
Subject Company Subsidiaries 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 material Taxes due
or to become due for Subject Company or the Subject Company
Subsidiaries for the period or periods through and including
the date of the respective Subject Company Financial
Statements has been made and is reflected on such Subject
Company Financial Statements.
(d) Material deferred Taxes of Subject Company
and the Subject Company Subsidiaries have been provided for
in accordance with GAAP.
(e) Subject Company and the Subject Company
Subsidiaries are in material compliance with, and its
records contain all information and documents (including
properly completed IRS Forms W-9) necessary to comply in all
material respects 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.
(f) Neither Subject Company nor any of the
Subject Company Subsidiaries has made any payments, is
obligated to make any payments, or is a party to any
Contract that could obligate it to make any payments that
would be disallowed as a deduction under Section 280G or
162(m) of the Internal Revenue Code.
(g) There has not been an ownership change, as
defined in Internal Revenue Code Section 382(g), of Subject
Company or any of the Subject Company Subsidiaries that
occurred during or after any Taxable Period in which Subject
Company or any of the Subject Company Subsidiaries incurred
a net operating loss that carries over to any Taxable Period
ending after December 31, 1996, except in connection with
the transactions contemplated pursuant to this Agreement.
(h) Neither Subject Company nor any of the
Subject Company Subsidiaries is a party to any tax
allocation or sharing agreement and neither Subject Company
nor any of the Subject Company Subsidiaries 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 Subject Company) or has any material Liability for
taxes of any Person (other than Subject Company and the
Subject Company 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.
5.9 Assets. Except as disclosed or reserved
against in the Subject Company Financial Statements made
available prior to the date of this Agreement, Subject
Company and the Subject Company Subsidiaries have good and
marketable title, free and clear of all Liens, to all of
their respective Assets. All tangible properties used in
the businesses of Subject Company and its Subsidiaries are
in good condition, reasonable wear and tear excepted, and
are usable in the ordinary course of business of Subject
Company and its Subsidiaries. All Assets which are material
to Subject Company's business on a consolidated basis, held
under leases or subleases by the Subject Company or any of
the Subject Company Subsidiaries, 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. Subject Company and the Subject
Company Subsidiaries currently maintain insurance in
amounts, scope, and coverage which, in the reasonable
opinion of management of Subject Company, are adequate for
the operations of Subject Company and the Subject Company
Subsidiaries. Neither Subject Company nor any of the
Subject Company Subsidiaries has received notice from any
insurance carrier that (i) such insurance will be canceled
or that coverage thereunder will be reduced or eliminated,
or (ii) premium costs with respect to such policies of
insurance will be substantially increased. Except as set
forth in Section 5.9 of the Subject Company Disclosure
Memorandum, there are presently no claims pending under any
such policies of insurance and no notices have been given by
Subject Company or any of the Subject Company Subsidiaries
under such policies.
5.10 Intellectual Property. All of the
Intellectual Property rights of Subject Company and the
Subject Company Subsidiaries are in full force and effect
and, if applicable, constitute legal, valid, and binding
obligations of the respective parties thereto, and there
have not been, and, to the Knowledge of Subject Company,
there currently are not, any Defaults thereunder by Subject
Company or a Subject Company Subsidiary. Subject Company or
a Subject Company Subsidiary owns or is the valid licensee
of all such Intellectual Property rights free and clear of
all Liens or claims of infringement. Neither Subject
Company nor any of the Subject Company Subsidiaries nor, to
the Knowledge of Subject Company, their respective
predecessors has infringed the Intellectual Property rights
of others and, to the Knowledge of Subject Company, none of
the Intellectual Property rights as used in the business
conducted by Subject Company or the Subject Company
Subsidiaries infringes upon or otherwise violates the rights
of any Person, nor has any Person asserted a claim of such
infringement. Except as disclosed in Section 5.10 of the
Subject Company Disclosure Memorandum, neither Subject
Company nor the Subject Company Subsidiaries is obligated to
pay any royalties to any Person with respect to any such
Intellectual Property. Subject Company or a Subject Company
Subsidiary owns or has the valid right to use all of the
Intellectual Property rights which it is presently using, or
in connection with performance of any material Contract to
which it is a party. No officer, director, or employee of
Subject Company or the Subject Company Subsidiaries is party
to any Contract which requires such officer, director, or
employee to assign any interest in any Intellectual Property
or keep confidential any trade secrets, proprietary data,
customer information, or other business information or,
except as disclosed in Section 5.10 of the Subject Company
Disclosure Memorandum, which restricts or prohibits such
officer, director, or employee from engaging in activities
competitive with any Person, including Subject Company or
any of the Subject Company Subsidiaries.
5.11 Environmental Matters. Except as set forth
in Section 5.11 of the Subject Company Disclosure
Memorandum:
(a) To the Knowledge of Subject Company, each of
Subject Company and the Subject Company Subsidiaries, its
Participation Facilities, and its Operating 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 Subject Company.
(b) To the Knowledge of Subject Company, there is
no Litigation pending or threatened before any court,
governmental agency, or authority or other forum in which
Subject Company, any of the Subject Company Subsidiaries or
any of their respective Operating Properties or
Participation Facilities (or Subject Company in respect of
such Operating Property or Participation Facility) 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, adjacent to, or
affecting (or potentially affecting) a site owned, leased,
or operated by Subject Company or any of the Subject Company
Subsidiaries or any of their respective Operating Properties
or Participation Facilities, except for such Litigation
pending or threatened that is not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect
on Subject Company, nor, to the knowledge of Subject
Company, is there any reasonable basis for any Litigation of
a type described in this sentence.
(c) During the period of (i) Subject Company's or
any of the Subject Company Subsidiaries' ownership or
operation of any of their respective current properties,
(ii) Subject Company's or any of the Subject Company
Subsidiaries' participation in the management of any
Participation Facility, or (iii) Subject Company's or any of
the Subject Company Subsidiaries' holding of a security
interest in an Operating Property, to the Knowledge of
Subject Company, there have been no releases of Hazardous
Material in, on, under, adjacent to, or affecting (or
potentially affecting) such properties, except such as are
not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Subject Company.
Prior to the period of (i) Subject Company's or any of the
Subject Company Subsidiaries' ownership or operation of any
of their respective current properties, (ii) Subject
Company's or any of the Subject Company Subsidiaries'
participation in the management of any Participation
Facility, or (iii) Subject Company's or any of the Subject
Company Subsidiaries' holding of a security interest in an
Operating Property, to the Knowledge of Subject Company,
there were no releases of Hazardous Material in, on, under,
or affecting any such property, Participation Facility or
Operating Property, except such as are not reasonably likely
to have, individually or in the aggregate, a Material
Adverse Effect on Subject Company.
5.12 Compliance With Laws. Subject Company is
duly registered as a bank holding company under the BHC Act.
Each of Subject Company and the Subject Company Subsidiaries
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 where the failure to hold such Permits
would not be reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on Subject Company.
Except as set forth in Section 5.12 of the Subject Company
Disclosure Memorandum, neither Subject Company nor any of
the Subject Company Subsidiaries:
(a) is in violation of any Laws, Orders, or
Permits applicable to its business or employees conducting
its business, except for such violations which would not be
reasonably likely to have, individually or in the aggregate,
a Material Adverse Effect on Subject Company; or
(b) has received any notification or
communication from any agency or department of federal,
state, or local government or any Regulatory Authority or
the staff thereof (i) asserting that Subject Company or any
of the Subject Company Subsidiaries is not in compliance
with any of the Laws or Orders which such governmental
authority or Regulatory Authority enforces, (ii) threatening
to revoke any Permits, or (iii) requiring Subject Company or
any of the Subject Company Subsidiaries 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.
5.13 Labor Relations. Neither Subject Company nor
any of the Subject Company Subsidiaries is the subject of
any Litigation asserting that Subject Company or any of the
Subject Company Subsidiaries has committed an unfair labor
practice (within the meaning of the National Labor Relations
Act or comparable state law) or seeking to compel Subject
Company or any of the Subject Company Subsidiaries to
bargain with any labor organization as to wages or
conditions of employment, nor is there any strike or other
labor dispute involving Subject Company or any of the
Subject Company Subsidiaries, pending or threatened, or to
the Knowledge of Subject Company, is there any activity
involving Subject Company's or any of the Subject Company
Subsidiaries' employees seeking to certify a collective
bargaining unit or engaging in any other organization
activity.
5.14 Employee Benefit Plans. (a) Subject Company
has disclosed in Section 5.14 of the Subject Company
Disclosure Memorandum, and has delivered or made available
to Parent 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 Subject Company
or the Subject Company Subsidiaries or ERISA Affiliate
thereof for the benefit of employees, retirees, dependents,
spouses, directors, independent contractors, or other
beneficiaries of Subject Company or any Subject Company
Subsidiary and under which employees, retirees, dependents,
spouses, directors, independent contractors, or other
beneficiaries of Subject Company or any Subject Company
Subsidiary are eligible to participate (collectively, the
"Subject Company Benefit Plans"). Any of the Subject
Company 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 "Subject Company ERISA Plan." Each
Subject Company ERISA Plan which is also a "defined benefit
plan" (as defined in Section 414(j) of the Internal Revenue
Code) is referred to herein as a "Subject Company Pension
Plan." No Subject Company Pension Plan is or has been a
multiemployer plan within the meaning of Section 3(37) of
ERISA.
(b) All Subject Company 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 Subject Company. Each Subject Company ERISA Plan that is
intended to be qualified under Section 401(a) of the
Internal Revenue Code has either received a favorable
determination letter from the Internal Revenue Service (and
Subject Company is not aware of any circumstances likely to
result in revocation of any such favorable determination
letter) or timely application has been made therefor. To
the knowledge of Subject Company, neither Subject Company
nor any of the Subject Company Subsidiaries has engaged in a
transaction with respect to any Subject Company Benefit Plan
that, assuming the taxable period of such transaction
expired as of the date hereof, would subject any Subject
Company to a material Tax imposed by either Section 4975 of
the Internal Revenue Code or Section 502(i) of ERISA.
(c) Except as disclosed in Section 5.14 of the
Subject Company Disclosure Memorandum, no Subject Company
Pension Plan has any "underfunded current liability" as that
term is defined in Section 302(d)(8)(A) of ERISA and the
fair market value of the assets of any such plan exceeds the
plan's "benefit liabilities," as that term is defined in
Section 4001(a)(16) of ERISA, when determined under
actuarial factors that would apply if the plan terminated in
accordance with all applicable legal requirements. Since
the date of the most recent actuarial valuation, there has
been (i) no material change in the financial position of any
Subject Company Pension Plan, (ii) no change in the
actuarial assumptions with respect to any Subject Company
Pension Plan, and (iii) no increase in benefits under any
Subject Company 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 Subject Company or materially adversely affect the
funding status of any such plan. Neither any Subject
Company Pension Plan nor any "single-employer plan," within
the meaning of Section 4001(a)(15) of ERISA, currently or
formerly maintained by Subject Company or any of the Subject
Company Subsidiaries, or the single-employer plan of any
entity which is considered one employer with Subject Company
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. Neither
Subject Company nor any of the Subject Company Subsidiaries
has provided, or, to Subject Company's knowledge, is
required to provide, security to a Subject Company 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 material Liability under Subtitle C or D
of Title IV of ERISA has been incurred by Subject Company or
any of the Subject Company Subsidiaries with respect to any
current, frozen, or terminated single-employer plan or the
single-employer plan of any ERISA Affiliate. Neither
Subject Company nor any of the Subject Company Subsidiaries
has incurred any material withdrawal Liability with respect
to a multiemployer plan under Subtitle E of Title IV of
ERISA (regardless of whether based on contributions of an
ERISA Affiliate). No notice of a "reportable event,"
within the meaning of Section 4043 of ERISA for which the
30-day reporting requirement has not been waived, has been
required to be filed for any Subject Company Pension Plan or
by any ERISA Affiliate within the 12-month period ending on
the date hereof.
(e) Except as disclosed in Section 5.14 of the
Subject Company Disclosure Memorandum, neither Subject
Company nor any of the Subject Company Subsidiaries has any
material Liability for retiree health and life benefits
under any of the Subject Company Benefit Plans.
(f) Except as disclosed in Section 5.14 of the
Subject Company 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 or
golden parachute) becoming due to any director or any
employee of Subject Company or any of the Subject Company
Subsidiaries from Subject Company or any of the Subject
Company Subsidiaries under any Subject Company Benefit Plan,
(ii) materially increase any benefits otherwise payable
under any Subject Company Benefit Plan, or (iii) result in
any acceleration of the time of payment or vesting of any
such benefit.
(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 Subject Company Subsidiary 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 Subject Company Financial
Statements to the extent required by and in accordance with
GAAP.
5.15 Material Contracts. Except as disclosed in
the Subject Company SEC Reports, in the SEC Documents filed
by Holding or as disclosed in Section 5.15 of the Subject
Company Disclosure Memorandum, neither Subject Company, the
Subject Company Subsidiaries, 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 Subject
Company or any of the Subject Company Subsidiaries or the
guarantee by Subject Company or any of the Subject Company
Subsidiaries of any such obligation (other than Contracts
evidencing deposit liabilities, purchases of federal funds,
fully-secured repurchase agreements, trade payables, and
Contracts relating to borrowings or guarantees made in the
ordinary course of business), (iii) any Contracts which
prohibit or restrict Subject Company or any of the Subject
Company Subsidiaries from engaging in any business
activities in any geographic area, line of business, or
otherwise in competition with any other Person, (iv) any
Contracts between or among Subject Company and the Subject
Company Subsidiaries, (v) any 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 disclosed in the Subject
Company Financial Statements delivered prior to the date of
this Agreement) which is a financial derivative Contract
(including various combinations thereof), and (vi) any other
Contract or amendment thereto that would be required to be
filed as an exhibit to a Subject Company SEC Report filed by
Subject Company with the SEC prior to the date of this
Agreement that has not been filed as an exhibit to a Subject
Company SEC Report (together with all Contracts referred to
in Sections 5.9 and 5.14(a) of this Agreement, the "Subject
Company Contracts"). With respect to each Subject Company
Contract: (i) the Contract is in full force and effect; (ii)
neither Subject Company nor any Subject Company Subsidiary
is in Default thereunder; (iii) neither Subject Company nor
its Subsidiaries 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 Subject Company,
in Default in any respect or has repudiated or waived any
material provision thereunder.
5.16 Legal Proceedings. There is no Litigation
instituted or pending, or, to the Knowledge of Subject
Company, threatened (or unasserted but considered probable
of assertion and which if asserted would have at least a
reasonable probability of an unfavorable outcome) against
Subject Company or any of the Subject Company Subsidiaries,
or against any Asset, employee benefit plan, interest, or
right of any of them, that is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect
on Subject Company, nor are there any Orders of any
Regulatory Authorities, other governmental authorities, or
arbitrators outstanding against Subject Company or any of
the Subject Company Subsidiaries. Section 5.16 of the
Subject Company Disclosure Memorandum includes a summary
report of all material Litigation as of the date of this
Agreement to which Subject Company or any Subject Company
Subsidiary is a party and which names Subject Company or a
Subject Company Subsidiary as a defendant or cross-
defendant.
5.17 Reports. Except as disclosed in Section 5.17
of the Subject Company Disclosure Memorandum, since January
1, 1994, or the applicable date of organization if later,
Subject Company and each Subject Company Subsidiary 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 (the "Subject Company SEC Reports"), (ii) other
Regulatory Authorities, and (iii) any applicable state
securities or banking authorities, except failures to file
which are not reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on Subject Company.
As of its respective date (or, if amended or superseded by a
filing prior to the date of this Agreement, then on the date
of such filing), 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 (or, if amended
or superseded by a filing prior to the date of this
Agreement, then on the date of such filing), each Subject
Company SEC Report did not 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. Except for Holding or as disclosed in
Section 5.17 of the Subject Company Disclosure Schedule,
none of the Subject Company Subsidiaries is required to file
any SEC Documents.
5.18 Statements True and Correct. None of the
information supplied or to be supplied by Subject Company
for inclusion in the Registration Statement to be filed by
Parent 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
Subject Company for inclusion in the Proxy Statement to be
mailed to Subject Company's shareholders in connection with
the Shareholders' Meeting, and any other documents to be
filed by Subject Company 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 Subject
Company, 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 Subject Company or the Subject Company
Subsidiaries are 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.
5.19 Accounting, Tax, and Regulatory Matters.
Neither Subject Company nor any of the Subject Company
Subsidiaries has taken any action or has any Knowledge of
any fact or circumstance relating to Subject Company 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.
5.20 State Takeover Laws. Except as disclosed in
Section 5.20 of the Subject Company Disclosure Memorandum,
Subject Company has taken all necessary action to exempt the
transactions contemplated by this Agreement from any
applicable "moratorium," "fair price," "business
combination," "control share," or other anti-takeover laws
(collectively, "Takeover Laws"), including Sections 607.0901
and 607.0902 of the FBCA.
5.21 Article Provisions. Except as disclosed in
Section 5.21 of the Subject Company Disclosure Memorandum,
Subject 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, By-laws or other governing
instruments of Subject Company or any Subject Company
Subsidiary or restrict or impair the ability of Parent or
any of the Parent Subsidiaries to vote, or otherwise to
exercise the rights of a shareholder with respect to, shares
of Subject Company or any Subject Company Subsidiary.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent hereby represents and warrants to Subject
Company as follows:
6.1 Organization, Standing and Power. Parent is
a corporation duly organized, validly existing, and in good
standing under the Laws of the State of Tennessee, and has
the corporate power and authority to carry on its business
as now conducted and to own, lease and operate its material
Assets. Parent 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 Parent.
6.2 Authority; No Breach by Agreement. (a)
Parent 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
(including valid authorization and adoption of this
Agreement by Parent's duly constituted Board of Directors)
in respect thereof on the part of Parent. Assuming due
authorization, execution and delivery of this Agreement by
Subject Company, this Agreement (which, for purposes of this
sentence, shall not include the Stock Option Agreement)
represents a legal, valid, and binding obligation of Parent,
enforceable against Parent 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 (which, for purposes of clause (iii) of this
sentence, shall not include the Stock Option Agreement) by
Parent, nor the compliance by Parent with any of the
provisions hereof, will (i) conflict with or result in a
breach of any provision of Parent's Restated Charter of
Incorporation or By-laws, or (ii) constitute or result in a
Default under, or require any Consent (excluding Consents
required by Law or Order) pursuant to, or result in the
creation of any Lien on any material Asset of Parent or any
Parent Subsidiary under, any Contract or Permit of Parent or
any Parent Subsidiary, except for such Defaults, Liens and
Consents, which, if not obtained or made, are not reasonably
likely to have, individually or in the aggregate, a Material
Adverse Effect on Parent, 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 Parent or
any Parent Subsidiary 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 NYSE, 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 Parent, no notice to, filing with, or Consent of,
any public body or authority is necessary for the
consummation by Parent of the Merger and the other
transactions contemplated in this Agreement.
6.3 Capital Stock. The authorized capital stock
of Parent consists of (i) 100,000,000 shares of Parent
Common Stock, of which 66,790,144 shares are issued and
outstanding as of June 30, 1997, and (ii) 10,000,000 shares
of Parent Preferred Stock, of which 2,533,236 shares of
Parent Series E Preferred Stock are issued and outstanding.
All of the issued and outstanding shares of Parent Capital
Stock are, and all of the shares of Parent Common Stock to
be issued in exchange for shares of Subject Company Common
Stock upon consummation of the Merger, when issued in
exchange for shares of Subject Company Common Stock upon
consummation of the Merger, when issued in accordance with
the terms of this Agreement, will be, duly and validly
issued and outstanding and fully paid and nonassessable
under the TBCA. None of the outstanding shares of Parent
Capital Stock has been, and none of the shares of Parent
Common Stock to be issued in exchange for shares of Subject
Company Common Stock upon consummation of the Merger will
be, issued in violation of any preemptive rights of the
current or past shareholders of Parent. Parent has reserved
for issuance a sufficient number of shares of Parent Common
Stock for the purpose of issuing shares of Parent Common
Stock in accordance with the provisions of Sections 3.1 and
3.5 of this Agreement.
6.4 Parent Subsidiaries. Except as set forth in
Section 6.4 of the Parent Disclosure Memorandum, Parent or
one of its wholly owned Subsidiaries owns all of the issued
and outstanding shares of capital stock (or other equity
interests) of each of the Parent Subsidiaries. No capital
stock (or other equity interest) of any Parent Subsidiary is
or may become required to be issued (other than to another
Parent Subsidiary) by reason of any rights, and there are no
Contracts by which the Parent or any of the Parent
Subsidiaries are bound to issue (other than to Parent or any
of the Parent Subsidiaries) additional shares of its capital
stock (or other equity interests) or Rights or by which
Parent or any of the Parent Subsidiaries are or may be bound
to transfer any shares of the capital stock (or other equity
interests) of any of Parent or any of the Parent
Subsidiaries (other than to Parent or any of the Parent
Subsidiaries). There are no Contracts relating to the
rights of Parent or any Parent Subsidiary to vote or to
dispose of any shares of the capital stock (or other equity
interests) of Parent or any of the Parent Subsidiaries. All
of the shares of capital stock (or other equity interests)
of each Parent Subsidiary held by Parent or any Parent
Subsidiary are fully paid and nonassessable (except pursuant
to 12 U.S.C. Section 55 in the case of national banks and
comparable, applicable state Law, if any, in the case of
state depository institutions) under the applicable
corporation or similar Law of the jurisdiction in which such
Subsidiary is incorporated or organized and are owned by
Parent or a Parent Subsidiary free and clear of any Liens.
Each Parent Subsidiary is either a bank, a savings
association, partnership, limited liability corporation, or
a corporation, and each such Subsidiary 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
Parent 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 Parent. The minute book and other organizational
documents (and all amendments thereto) for each of Parent
and each Parent Subsidiary that is a Significant Subsidiary
have been made available to Subject Company for its review,
and are true and complete as in effect as of the date of
this Agreement.
6.5 Financial Statements. Each of the Parent
Financial Statements (including, in each case, any related
notes) contained in the Parent SEC Reports, including any
Parent SEC Reports filed after the date of this Agreement
until the Effective Time, complied, or will comply, as to
form in all material respects with the applicable published
rules and regulations of the SEC with respect thereto, was
prepared, or will be 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 interim
statements, as permitted by Form 10-Q of the SEC), and
fairly presented, or will fairly present, in all material
respects the consolidated financial position of Parent and
the Parent 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 or effect.
6.6 Absence of Undisclosed Liabilities. Neither
Parent nor any of the Parent Subsidiaries has any
Liabilities that are reasonably likely to have, individually
or in the aggregate, a Material Adverse Effect on Parent,
except Liabilities which are accrued or reserved against in
the consolidated balance sheets of Parent as of March 31,
1997, included in the Parent Financial Statements made
available prior to the date of this Agreement or reflected
in the notes thereto. Neither Parent nor any of the Parent
Subsidiaries has incurred or paid any Liability since March
31, 1997, except for such Liabilities incurred or paid (i)
in the ordinary course of business consistent with past
business practice or which are not reasonably likely to
have, individually or in the aggregate, a Material Adverse
Effect on Parent or (ii) in connection with the transaction
contemplated by this Agreement.
6.7 Absence of Certain Changes or Events. Since
December 31, 1996, except as disclosed in the Parent SEC
Reports made available prior to the date of this Agreement
or in Section 6.7 of the Parent Disclosure Memorandum, 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 Parent.
6.8 Tax Matters. (a) All material Tax Returns
required to be filed by or on behalf of Parent or any of the
Parent Subsidiaries 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, 1996,
and on or before the date of the most recent fiscal year end
immediately preceding the Effective Time, and all such Tax
Returns filed are complete and accurate in all material
respects. All Taxes shown on filed Tax Returns have been
paid. There is no audit examination, or refund Litigation
with respect to any material Taxes, except as reserved
against the Parent Financial Statements delivered prior to
the date of this Agreement. All material Taxes and other
material Liabilities due with respect to completed and
settled examinations or concluded Litigation have been paid.
There are no material Liens with respect to Taxes upon any
of the Assets of Parent or any of the Parent Subsidiaries.
(b) Adequate provision for any material Taxes due
or to become due for Parent or any of the Parent
Subsidiaries for the period or periods through and including
the date of the respective Parent Financial Statements has
been made and is reflected on such Parent Financial
Statements.
(c) Material deferred Taxes of Parent and the
Parent Subsidiaries have been provided for in accordance
with GAAP.
6.9 Environmental Matters. (a) To the Knowledge
of Parent, each of Parent and the Parent Subsidiaries, its
Participation Facilities, and its Operating 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 Parent.
(b) To the Knowledge of Parent, there is no
Litigation pending or threatened before any court,
governmental agency, or authority or other forum in which
Parent or any of the Parent Subsidiaries or any of their
respective Operating Properties or Participation Facilities
(or Parent in respect of such Operating Property or
Participation Facility) 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, adjacent to, or affecting (or
potentially affecting) a site owned, leased, or operated by
Parent or any of the Parent Subsidiaries or any of their
respective Operating Properties or Participation Facilities,
except for such Litigation pending or threatened that is not
reasonably likely to have, individually or in the aggregate,
a Material Adverse Effect on Parent, nor, to the knowledge
of Parent, is there any reasonable basis for any Litigation
of a type described in this sentence.
(c) During the period of (i) Parent's or any of
the Parent Subsidiaries' ownership or operation of any of
their respective current properties, (ii) any Parent's or
any of the Parent Subsidiaries' participation in the
management of any Participation Facility, or (iii) Parent's
or any of the Parent Subsidiaries' holding of a security
interest in an Operating Property, to the Knowledge of
Parent, there have been no releases of Hazardous Material
in, on, under, adjacent to, or affecting (or potentially
affecting) such properties, except such as are not
reasonably likely to have, individually or in the aggregate,
a Material Adverse Effect on Parent. Prior to the period of
(i) Parent's or any of Parent Subsidiaries' ownership or
operation of any of their respective current properties,
(ii) Parent's or any of Parent Subsidiaries' participation
in the management of any Participation Facility, or (iii)
Parent or any of Parent Subsidiaries' holding of a security
interest in an Operating Property, to the Knowledge of
Parent, there were no releases of Hazardous Material in, on,
under, or affecting any such property, Participation
Facility or Operating Property, except such as are not
reasonably likely to have, individually or in the aggregate,
a Material Adverse Effect on Parent.
6.10 Compliance With Laws. Parent is duly
registered as a bank holding company under the BHC Act.
Each of Parent and the Parent Subsidiaries 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 where the failure to hold such permits
would not be reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on Parent. Neither
Parent nor any of the Parent Subsidiaries:
(a) is in violation of any Laws, Orders, or
Permits applicable to its business or employees conducting
its business, except for such violations which would not be
reasonably likely to have, individually or in the aggregate,
a Material Adverse Effect on Parent; or
(b) has received any notification or
communication from any agency or department of federal,
state, or local government or any Regulatory Authority or
the staff thereof (i) asserting that Parent or any Parent
Subsidiary is not in compliance with any of the Laws or
Orders which such governmental authority or Regulatory
Authority enforces, (ii) threatening to revoke any Permits,
or (iii) requiring Parent or any Parent Subsidiary 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.
6.11 Legal Proceedings. There is no Litigation
instituted or pending, or, to the Knowledge of Parent,
threatened (or unasserted but considered probable of
assertion and which if asserted would have at least a
reasonable probability of an unfavorable outcome) against
Parent or any Parent Subsidiary, 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 Parent, nor are there any Orders of any
Regulatory Authorities, other governmental authorities, or
arbitrators outstanding against Parent or any Parent
Subsidiary.
6.12 Reports. Since January 1, 1994, or the
applicable date of organization if later, Parent and each
Parent Subsidiary 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 (the "Parent SEC Reports"),
(ii) other Regulatory Authorities, and (iii) any applicable
state securities or banking authorities, except failures to
file which are not reasonably likely to have, individually
or in the aggregate, a Material Adverse Effect on Parent.
As of its respective date (or, if amended or superseded by a
filing prior to the date of this Agreement, then on the date
of such filing), 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 Parent SEC
Report did not 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. Except for Parent Subsidiaries that are
registered as a broker, dealer, or investment advisor, no
Parent Subsidiary is required to file any SEC Documents.
6.13 Statements True and Correct. None of the
information supplied or to be supplied by Parent for
inclusion in the Registration Statement to be filed by
Parent 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 Parent
for inclusion in the Proxy Statement to be mailed to Subject
Company's shareholders in connection with the Shareholders'
Meeting, and any other documents to be filed by Parent or
any Parent Subsidiary 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 Subject Company, 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 Parent or
any Parent Subsidiary is responsible for filing with any
Regulatory Authority in connection with the transactions
contemplated hereby will comply as to form in all material
respects with the provisions of applicable Law.
6.14 Accounting, Tax, and Regulatory Matters.
Neither Parent nor any Parent Subsidiary has taken any
action or has any Knowledge of any fact or circumstance
relating to Parent 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.
ARTICLE 7
CONDUCT OF BUSINESS PENDING CONSUMMATION
7.1 Affirmative Covenants of Subject Company.
Unless the prior written consent of Parent shall have been
obtained, and except as otherwise expressly contemplated
herein, Subject Company shall and shall cause each of the
Subject Company Subsidiaries to (i) operate its business
only in the usual, regular, and ordinary course, (ii) use
reasonable efforts to preserve intact its business
organization and Assets and maintain its rights and
franchises, and (iii) take no action which would (a)
materially adversely affect the ability of any Party to
obtain any Consents required for the transactions
contemplated hereby or 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 (b) materially adversely affect the ability of any
Party to perform its covenants and agreements under this
Agreement.
7.2 Negative Covenants of Subject Company.
Except as specifically permitted by this Agreement, from the
date of this Agreement until the earlier of the Effective
Time or the termination of this Agreement, Subject Company
covenants and agrees that it will not do or agree or commit
to do, or permit any of the Subject Company 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 Parent, which
consent shall not be unreasonably withheld:
(a) amend the Articles, By-laws, or other
governing instruments of Subject Company or any Subject
Company Subsidiary; or
(b) incur any additional debt obligation for
borrowed money (other than indebtedness of Subject Company
or the Subject Company Subsidiaries to each other) in excess
of an aggregate of $500,000 (for Subject Company and the
Subject Company Subsidiaries on a consolidated basis) except
in the ordinary course of the business of the Subject
Company Subsidiaries consistent with past practices (which
shall include, for the Subject Company 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 material Asset of Subject Company or any of the Subject
Company Subsidiaries 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 Subject Company 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 Subject Company or any of the Subject
Company Subsidiaries, or declare or pay any dividend or make
any other distribution in respect of Subject Company's
capital stock, provided that Subject Company 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 Subject Company Common Stock
at a rate not in excess of $.08 per share with usual and
regular record and payment dates in accordance with past
practice, 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
Subject Company Common Stock do not become entitled to
receive both a dividend in respect of their Subject Company
Common Stock and a dividend in respect of Parent Common
Stock or fail to be entitled to receive any dividend; or
(d) except (I) for this Agreement, (II) 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 under the Subject Company Stock Plans or (III)
pursuant to the exercise of stock options granted by
Holding, or (IV) 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 its common stock or
any other capital stock, 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 Subject Company or any of the Subject
Company Subsidiaries or issue or authorize the issuance of
any other securities in respect of or in substitution for
shares of Subject Company Common Stock, or sell, lease,
mortgage or otherwise dispose of or otherwise encumber any
shares of capital stock of any Subject Company Subsidiary
(unless any such shares of stock are sold or otherwise
transferred to another Subject Company Subsidiary) 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 investment securities
acquired in the ordinary course of business consistent with
past practice, purchase any securities or make any material
investment, either by purchase of stock or securities,
contributions to capital, Asset transfers, or purchase of
any Assets, in any Person other than a wholly owned
Subsidiary of Subject Company, 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 Subject Company or
the Subject Company Subsidiaries, except in the ordinary
course of business consistent with past practice and
disclosed in Section 7.2(g) of the Subject Company
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 Subject Company Disclosure Memorandum; enter
into or amend any severance agreements with officers of
Subject Company or the Subject Company Subsidiaries; grant
any material increase in fees or other increases in
compensation or other benefits to directors of Subject
Company or the Subject Company Subsidiaries; or voluntarily
accelerate the vesting of any stock options or other stock-
based compensation or employee benefits (other than the
acceleration of vesting which occurs under a benefit plan
upon a change of control of Subject Company); or
(h) enter into or amend any employment Contract
between Subject Company or the Subject Company Subsidiaries
and any Person (unless such amendment is required by Law)
that Subject Company does not have the unconditional right
to terminate without Liability (other than Liability for
services already rendered), at any time on or after the
Effective Time; or
(i) adopt any new employee benefit plan of
Subject Company or the Subject Company Subsidiaries or
terminate or withdraw from, or make any material change in
or to, any existing employee benefit plans of Subject
Company or the Subject Company Subsidiaries 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 make any distributions
from such employee benefit plans, except as required by Law,
the terms of such plans or consistent with past practices;
or
(j) make any material 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 Subject Company or the Subject
Company Subsidiaries for material money damages or
restrictions upon the operations of Subject Company or the
Subject Company Subsidiaries; or
(l) except in the ordinary course consistent with
past practice, enter into, modify, amend, or terminate any
material Contract (excluding any loan Contract) or waive,
release, compromise, or assign any material rights or
claims.
7.3 Covenants of Parent. From the date of this
Agreement until the earlier of the Effective Time or the
termination of this Agreement, Parent covenants and agrees
that it shall (i) continue to conduct its business and the
business of the Parent Subsidiaries in a manner designed in
its reasonable judgment to enhance the long-term value of
the Parent Common Stock and the business prospects of Parent
and the Parent Subsidiaries, and (ii) take no action which
would (a) materially adversely affect the ability of any
Party to obtain any Consents required for the transactions
contemplated hereby or 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, (b) materially adversely affect the ability of any
Party to perform its covenants and agreements under this
Agreement, or (c) result in Parent entering into an
agreement with respect to an Acquisition Proposal with a
third party which could be reasonably expected to result in
the Merger not being consummated; provided, that the
foregoing shall not prevent Parent or any Parent Subsidiary
from acquiring any other Assets or businesses or from
discontinuing or disposing of any of its Assets or business
if such action is, in the reasonable judgment of Parent,
desirable in the conduct of the business of Parent and the
Parent Subsidiaries and would not, in the reasonable
judgment of Parent, likely delay the Effective Time to a
date subsequent to the date set forth in Section 10.1(e) of
this Agreement.
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, to the extent permitted by Law,
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 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. Each of Parent and Subject Company
shall prepare and file the Registration Statement, of which
the Proxy Statement shall form a part, with the SEC, and
shall use its reasonable efforts to cause the Registration
Statement to become effective under the 1933 Act and Parent
shall 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 Parent Common Stock upon
consummation of the Merger. Each of Parent and Subject
Company shall furnish all information concerning it and the
holders of its capital stock as the other Party may
reasonably request in connection with such action. Subject
Company shall call a Shareholders' Meeting, to be held as
soon as 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) the Board of Directors of Subject
Company shall recommend (subject to compliance with its
fiduciary duties as advised by counsel) to its shareholders
the approval of the Merger, and (ii) the Board of Directors
(subject to compliance with its fiduciary duties as advised
by counsel) and officers of Subject Company shall use their
reasonable efforts to obtain shareholder approval.
8.2 Exchange Listing. Parent shall use its
reasonable efforts to list, prior to the Effective Time, on
the NYSE, subject to official notice of issuance, the shares
of Parent Common Stock to be issued to the holders of
Subject Company Common Stock or Subject Company Options
pursuant to the Merger, and Parent shall give all notices
and make all filings with the NYSE required in connection
with the transactions contemplated herein.
8.3 Applications. Parent shall prepare and file,
and Subject Company 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; provided, however, that no
party shall be required to seek any Consents for the
exercise of any rights or performance of any obligations
under the Stock Option Agreement except as set forth in such
agreement. At least five business days prior to each
filing, Parent shall provide Subject Company and its counsel
with copies of such applications. The Parties shall deliver
to each other copies of all filings, correspondence and
orders to and from all Regulatory Authorities in connection
with the transactions contemplated hereby as soon as
practicable upon their becoming available.
8.4 Filings With State Offices. Upon the terms
and subject to the conditions of this Agreement, Parent and
Subject Company shall execute and file the Articles of
Merger with the Secretary of State of the State of Florida
in connection with the Closing.
8.5 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, however, that no party shall be
required to seek any Consents or take any other actions for
the exercise of any rights or performance of any obligations
under the Stock Option Agreement except as set forth in such
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; provided,
however, that no party shall be required to seek any
Consents or take any other actions for the exercise of any
rights or performance of any obligations under the Stock
Option Agreement except as set forth in such 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. Neither Party shall
be required to provide access to or to disclose information
where such access or disclosure would violate or prejudice
the rights of such Party's customers, jeopardize any
attorney-client privilege or contravene any Law, rule,
regulation, order, judgment, decree, fiduciary duty or
binding agreement entered into prior to the date of this
Agreement. The Parties will make appropriate substitute
disclosure arrangements under circumstances in which the
restrictions of the preceding sentence apply. No
investigation by a Party shall affect the representations
and warranties of the other Party.
(b) Each Party will hold all information gathered
pursuant to this Agreement in confidence to the extent
required by, and in accordance with, the provisions of the
Confidentiality Agreement, dated April 23, 1997, between
Parent and Subject Company.
8.7 Press Releases. Prior to the Effective Time,
Subject Company and Parent shall consult with each other as
to the form and substance of any press release or other
public disclosure materially related to this Agreement or
any other transaction contemplated hereby; provided, that
nothing in this Section 8.7 shall be deemed to prohibit any
Party from making any disclosure which its counsel deems
necessary or advisable in order to satisfy such Party's
disclosure obligations imposed by Law.
8.8 Certain Actions. Except with respect to this
Agreement and the transactions contemplated hereby, after
the date of this Agreement, neither Subject Company, the
Subject Company Subsidiaries nor any Representatives thereof
retained by Subject Company or the Subject Company
Subsidiaries shall directly or indirectly solicit any
Acquisition Proposal by any Person. Except to the extent
necessary to comply with the fiduciary duties of Subject
Company's Board of Directors as advised by counsel, Subject
Company, the Subject Company Subsidiaries, or
Representatives thereof shall not 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 Subject Company
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. Subject Company shall
promptly notify Parent orally and in writing in the event
that it receives any Acquisition Proposal or inquiry related
thereto. Subject Company shall (i) immediately cease and
cause to be terminated any existing activities, discussions,
or negotiations with any Persons conducted heretofore with
respect to any of the foregoing, and (ii) direct and use its
reasonable efforts to cause all of its Representatives not
to engage in any of the foregoing.
8.9 Accounting and Tax Treatment. Each of the
Parties undertakes and agrees to use its reasonable efforts
to cause the Merger, and to take no action which would cause
the Merger not, to qualify for 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 Agreement of Affiliates. Subject Company has
disclosed in Section 8.10 of the Subject Company Disclosure
Memorandum each Person whom it reasonably believes is an
"affiliate" of Subject Company as of the date of this
Agreement for purposes of Rule 145 under the 1933 Act.
Subject Company shall use its reasonable efforts to cause
each such Person to deliver to Parent not later than 40 days
prior to the Effective Time, a written agreement,
substantially in the form of Exhibit 3, providing that such
Person will not sell, pledge, transfer, or otherwise dispose
of the shares of Subject Company 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 Parent Common Stock to be received
by such Person upon consummation of the Merger except in
compliance with applicable provisions of the 1933 Act and
the rules and regulations thereunder and until such time as
financial results covering at least 30 days of combined
operations of Parent and Subject Company 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 Parent Common Stock issued to such affiliates of
Subject Company in exchange for shares of Subject Company
Common Stock shall not be transferable until such time as
financial results covering at least 30 days of combined
operations of Parent and Subject Company 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 8.10 (and Parent shall
be entitled to place restrictive legends upon certificates
for shares of Parent Common Stock issued to affiliates of
Subject Company pursuant to this Agreement to enforce the
provisions of this Section 8.10). Parent shall not be
required to maintain the effectiveness of the Registration
Statement under the 1933 Act for the purposes of resale of
Parent Common Stock by such affiliates.
8.11 Employee Benefits and Contracts. (a)
Following the Effective Time, Parent shall provide to
officers and employees of the Subject Company and any
Subject Company Subsidiary, employee benefits under employee
benefit and welfare plans of Parent or the Parent
Subsidiaries on terms and conditions which when taken as a
whole are substantially similar to those currently provided
by Parent or a Parent Subsidiary to their similarly situated
officers and employees. For purposes of participation,
vesting, and (except in the case of retirement plans)
benefit accrual under such employee benefit plans, the
service of the employees of the Subject Company and any
Subject Company Subsidiary prior to the Effective Time shall
be treated as service with Parent or a Parent Subsidiary
participating in such employee benefit plans.
(b) Except as set forth in the Supplemental
Letter, Parent shall, and shall cause the Parent
Subsidiaries to, honor in accordance with their terms the
Subject Company Benefit Plans, each as amended to the date
hereof, and other contracts, arrangements, commitments or
understandings disclosed in Section 8.11 of the Subject
Company Disclosure Memorandum. Parent and Subject Company
hereby acknowledge that consummation of the Merger will
constitute a "Change in Control" for purposes of all
employee benefit plans, contracts, arrangements and
commitments that contain change in control provisions and,
except as set forth in the Supplemental Letter, agree to
abide by the provisions of any employee benefit plan,
contract, arrangement or commitment which relates to a
Change in Control.
8.12 Indemnification. (a) After the Effective
Time, Parent shall indemnify, defend and hold harmless the
present and former directors, officers, employees, and
agents of the Subject Company and any Subject Company
Subsidiary (each, an "Indemnified Party") (including any
person who becomes a director, officer, employee, or agent
prior to the Effective Time) against all Liabilities
(including reasonable attorneys' fees, and expenses,
judgments, fines and amounts paid in settlement) arising out
of actions or omissions occurring at or prior to the
Effective Time (including the transactions contemplated by
this Agreement and the Stock Option Agreement and the
proceedings entitled Xxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxx,
M.D., and Xxxxxxx Xxxx, as individual shareholders and on
behalf of all other shareholders of Subject Company v. Xxxx
Xxxxx, Xxxx Xxxxx, Xxxxxx X. Xxxxx and Xxxxxx X. Xxxxx, the
Bank and Subject Company and Xxxxxxx X. Xxxxxx, M.D., Xxxxxx
Xxxxxxxx v. Xxxx Xxxxx, Xxxx Xxxxx, Xxxxxx Xxxxx, Xxxx
Xxxxxxxxxxx and Subject Company) to the full extent
permitted under any of Florida Law, Subject Company's
Articles and By-laws as in effect on the date hereof and any
indemnity agreements entered into prior to the date of this
Agreement by Subject Company or any Subject Company
Subsidiary and any director, officer, employee or agent of
Subject Company or any Subject Company Subsidiary, 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 Parent is required to
effectuate any indemnification, Parent 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 Parent and the Indemnified
Party.
(b) Parent shall use its reasonable efforts
(and Subject Company shall cooperate prior to the Effective
Time in these efforts) to maintain in effect for a period of
three years after the Effective Time Subject Company's
existing directors' and officers' liability insurance policy
(provided that Parent 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 Subject Company 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 the Surviving
Corporation shall not be obligated to make aggregate annual
premium payments for such three-year period in respect of
such policy (or coverage replacing such policy) which
exceed, for the portion related to Subject Company's
directors and officers, 150% of the annual premium payments
on Subject Company'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, Parent shall use its
reasonable efforts to maintain the most advantageous
policies of directors' and officers' liability insurance
obtainable for a premium equal to the Maximum Amount.
(c) Any Indemnified Party wishing to claim
indemnification under paragraph (a) of this Section 8.12,
upon learning of any such Liability or Litigation, shall
promptly notify Parent thereof, provided that the failure so
to notify shall not affect the obligations of Parent under
this Section 8.12 unless and to the extent such failure
materially increases Parent's Liability under this Section
8.12. In the event of any such Litigation (whether arising
before or after the Effective Time), (i) Parent or the
Surviving Corporation shall have the right to assume the
defense thereof and Parent shall not be liable to such
Indemnified Parties for any legal expenses of other counsel
or any other expenses subsequently incurred by such
Indemnified Parties in connection with the defense thereof,
except that if Parent or the Surviving Corporation elects
not to assume such defense or counsel for the Indemnified
Parties advises that there are substantive issues which
raise conflicts of interest between Parent or the Surviving
Corporation and the Indemnified Parties or between the
Indemnified Parties, the Indemnified Parties may retain
counsel satisfactory to them, and Parent or the Surviving
Corporation shall pay all reasonable fees and expenses of
such counsel for the Indemnified Parties promptly as
statements therefor are received; provided, that Parent
shall be obligated pursuant to this paragraph (c) to pay for
only two firms of counsel for all Indemnified Parties in any
jurisdiction, (ii) the Indemnified Parties will cooperate in
the defense of any such Litigation, and (iii) neither
Parent nor the Surviving Corporation shall be liable for
any settlement effected without its prior written consent or
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 either Parent or the Surviving
Corporation or any of their respective 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 Parent or the Surviving
Corporation, as the case may be, shall assume the
obligations set forth in this Section 8.12
(e) Parent shall pay all reasonable costs,
including attorneys' fees, that may be incurred by any
Indemnified Party in enforcing the indemnity and other
obligations provided for in this Section 8.12.
(f) The provisions of this Section 8.12 are
intended to be for the benefit of, and shall be enforceable
by, each Indemnified Party and his or her heirs and
representatives.
8.13 Merger Subsidiary Organization. Parent shall
organize Merger Subsidiary under the Laws of the State of
Florida. Prior to the Effective Time, the outstanding
capital stock of Merger Subsidiary shall consist of 1,000
shares of Parent Merger Subsidiary Common Stock, all of
which shares shall be owned by Parent. Prior to the
Effective Time, Merger Subsidiary shall not (i) conduct any
business operations whatsoever or (ii) enter into any
Contract or agreement of any kind, acquire any assets or
incur any Liability, except as may be specifically
contemplated by this Agreement or as the Parties may
otherwise agree. Parent, as the sole stockholder of Merger
Subsidiary, shall vote prior to the Effective Time the
shares of Merger Subsidiary Common Stock in favor of this
Agreement.
8.14 State Takeover Laws. Subject Company shall
use, and shall cause Holdings to use, its reasonable efforts
to take all necessary steps to exempt the transactions
contemplated by this Agreement from the Takeover Laws.
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
Subject Company shall have approved this Agreement and the
consummation of the transactions contemplated hereby and
thereby, including the Merger, as and to the extent required
by Law, or by the provisions of any governing instruments
(without regard to any shares which are voted pursuant to
irrevocable proxies, the validity of which has been
contested by the underlying owner, unless the underlying
owner has given written instructions with respect to the
voting of such shares in connection with this Agreement).
(b) Regulatory Approvals. All Consents of,
filings and registrations with, and notifications to, all
Regulatory Authorities required for consummation of the
Merger shall have been obtained or made and shall be in full
force and effect and all waiting periods required by Law
shall have expired. No Consent obtained from any Regulatory
Authority which is necessary to consummate the transactions
contemplated hereby shall be conditioned or restricted in a
manner (other than matters relating to the raising of
additional capital or the disposition of Assets or deposit
Liabilities and associated branches) which in the reasonable
judgment of the Board of Directors of Parent would so
materially adversely impact the financial or economic
benefits of the transactions contemplated by this Agreement
that, had such condition or requirement been known, Parent
would not, in its reasonable judgment, have entered into
this Agreement.
(c) Consents and Approvals. Each Party shall
have obtained any and all Consents required for consummation
of the Merger (other than those referred to in Section
9.1(b) of this Agreement) or for the preventing of any
Default under any Contract or Permit of such Party which, if
not obtained or made, is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect
on such Party.
(d) Legal Proceedings. No court or governmental
or regulatory authority of competent jurisdiction shall have
enacted, issued, promulgated, enforced, or entered by 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.
(e) Registration Statement. The Registration
Statement shall be effective under the 1933 Act, no stop
orders suspending the effectiveness of the Registration
Statement shall have been issued, no action, suit,
proceeding, or investigation by the SEC to suspend the
effectiveness thereof shall have been initiated and be
continuing, and all necessary approvals under state
securities Laws or the 1933 Act or 1934 Act relating to the
issuance or trading of the shares of Parent Common Stock
issuable pursuant to the Merger shall have been received.
(f) Exchange Listing. The shares of Parent
Common Stock issuable pursuant to the Merger shall have been
approved for listing on the NYSE, subject to official notice
of issuance.
(g) Tax Matters. Parent shall have received a
written opinion of counsel from Xxxxxx & Bird LLP, and
Subject Company shall have received a written opinion of
counsel from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, in
form and substance reasonably satisfactory to Parent and
Subject Company, respectively, dated as of the Effective
Time, in each case substantially to the effect that (i) the
Merger will constitute a reorganization within the meaning
of Section 368(a) of the Internal Revenue Code, (ii) no gain
or loss will be recognized by the shareholders of Subject
Company who exchange all of their Subject Company Common
Stock solely for Parent Common Stock pursuant to the Merger
(except with respect to cash received in lieu of a
fractional share interest in Parent Common Stock), (iii) the
tax basis of the Parent Common Stock received by
shareholders of Subject Company who exchange Subject Company
Common Stock solely for Parent Common Stock in the Merger
will be the same as the tax basis of the Subject Company
Common Stock surrendered in exchange therefor, (iv) the
holding period of the Parent Common Stock received by
shareholders of Subject Company in the Merger will include
the period during which the shares of Subject Company Common
Stock surrendered in exchange therefor were held, provided
such Subject Company Common Stock was held as a capital
asset by the holder of such Subject Company Common Stock at
the Effective Time, and (v) neither Subject Company nor
Parent will recognize gain or loss as a consequence of the
Merger. In rendering such Tax Opinion, such counsel shall
require and be entitled to rely upon representations and
covenants of officers of Parent, Subject Company,
shareholders of Subject Company and others reasonably
satisfactory in form and substance to such counsel.
9.2 Conditions to Obligations of Parent. The
obligations of Parent 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 Parent 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 Subject Company 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 specific date shall speak
only as of such date). The representations and warranties
of Subject Company set forth in Sections 5.1, 5.2, 5.3,
5.19, 5.20, and 5.21 of this Agreement shall be true and
correct in all material respects. There shall not exist
inaccuracies in the representations and warranties of
Subject Company set forth in this Agreement (including the
representations and warranties set forth in Sections 5.1,
5.2, 5.3, 5.19, 5.20, and 5.21) such that the aggregate
effect of such inaccuracies has, or is reasonably likely to
have, a Material Adverse Effect on Subject Company, provided
that, for purposes of this sentence only, those
representations and warranties which are qualified by
references to "material" or "Material Adverse Effect" or
"Knowledge" shall be deemed not to include such
qualifications.
(b) Performance of Agreements and Covenants.
Each and all of the agreements and covenants of Subject
Company 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. Subject Company shall have
delivered to Parent (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
Sections 9.2(a) and 9.2(b) of this Agreement have been
satisfied, and (ii) certified copies of resolutions duly
adopted by Subject Company'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 Parent shall request.
(d) Parent Pooling Letter. Parent shall have
received a copy of a letter, dated as of the date of filing
of the Registration Statement with the SEC and as of the
Effective Time, addressed to it and in a form reasonably
acceptable to it, from Price Waterhouse LLP to the effect
that the Merger will qualify for pooling of interests
accounting treatment.
9.3 Conditions to Obligations of Subject Company.
The obligations of Subject Company 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 Subject Company
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 Parent 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 Parent set forth in Sections 6.1, 6.2, 6.3 and
6.14 of this Agreement shall be true and correct in all
material respects. There shall not exist inaccuracies in
the representations and warranties of Parent set forth in
this Agreement (including the representations and warranties
set forth in Sections 6.1, 6.2, 6.3 and 6.14) such that the
aggregate effect of such inaccuracies has, or is reasonably
likely to have, a Material Adverse Effect on Parent;
provided that, for purposes of this sentence only, those
representations and warranties which are qualified by
references to "material" or "Material Adverse Effect" or
"Knowledge" shall be deemed not to include such
qualifications.
(b) Performance of Agreements and Covenants.
Each and all of the agreements and covenants of Parent 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. Parent shall have delivered to
Subject Company (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 Sections 9.3(a)
and 9.3(b) of this Agreement have been satisfied, and (ii)
certified copies of resolutions duly adopted by Parent's or
Merger Subsidiary's Boards 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 Subject Company shall
request.
(d) Subject Company Pooling Letter. Subject
Company shall have received a copy of the letters
contemplated by Section 9.2(d).
ARTICLE 10
TERMINATION
10.1 Termination. Notwithstanding any other
provision of this Agreement, and notwithstanding the
approval of this Agreement by the shareholders of Subject
Company, 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 Parent and the Board of Directors of Subject Company; 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 Subject Company and
Section 9.3(a) in the case of Parent 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 Subject
Company and Section 9.3(a) of this Agreement in the case of
Parent; or
(c) 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 Subject Company and
Section 9.3(a) in the case of Parent or in material breach
of any covenant or other agreement contained in this
Agreement) 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 Subject
Company fail to vote their approval of this Agreement and
the transactions contemplated hereby as required by the FBCA
and this Agreement 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
April 30, 1998, if the failure to consummate the
transactions contemplated hereby on or before such date is
not caused by any willful breach of this Agreement by the
Party electing to terminate pursuant to this Section
10.1(e); or
(f) By Parent, upon written notice to Subject
Company at any time prior to the close of business on
September 12, 1997, if, as a result of Parent's due
diligence investigation of the Assets, the Liabilities, the
business, and the operating performance of Subject Company
and the Subject Company Subsidiaries, Parent's Board of
Directors reasonably determines in good faith that (i) the
financial condition, core operating performance or business
of Subject Company and the Subject Company Subsidiaries
taken as a whole as of the date of this Agreement is
materially and adversely different from Parent's reasonable
expectations with respect thereto based on the Subject
Company's Annual Report on Form 10-K for the year ended
December 31, 1996, the Subject Company's Quarterly Report on
Form 10-Q for the quarter ended March 31, 1997 and the June
30, 1997 financial information of the Subject Company and
the Subject Company Subsidiaries set forth in Section 5.7 of
the Subject Company Disclosure Memorandum; or (ii) facts or
circumstances exist that lead it reasonably to conclude that
it is unlikely that the Subject Company's budget as
reflected in Section 10.1(f) of the Subject Company
Disclosure Memorandum are realizable in all material
respects (without giving effect to any loan loss provisions
that Parent may choose to make or request Subject Company to
make to the extent set forth in set forth in Section 10.1(f)
of the Parent Disclosure Memorandum and without regard to
any of the transactions contemplated hereby); or (iii)
Subject Company's allowance for loan losses and doubtful
accounts established by Subject Company for contingencies as
reflected on the balance sheet included in the Subject
Company's earnings release for the quarter ended June 30,
1997 included in Section 5.7 of the Subject Company
Disclosure Memorandum (assuming for this purpose that such
allowance is increased to the extent set forth in Section
10.1(f) of the Parent Disclosure Memorandum) is materially
insufficient to absorb the losses inherent in Subject
Company's Assets; provided, that in connection with any
termination pursuant to this clause (f), Parent's notice
shall specify in reasonable detail the basis for its
determination; or
(g) By the Board of Directors of Subject Company
upon written notice to Parent at any time during the ten-day
period commencing two days after the Determination Date, if
both of the following conditions are satisfied:
(1) the Average Closing Price shall be less
than the product of (i) 0.80 and (ii) the Starting
Price; and
(2) (i) the quotient obtained by dividing
the Average Closing Price by the Starting Price (such
number being referred to herein as the "Parent 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 (2)(ii) (such
number being referred to herein as the "Index Ratio");
subject, however, to the following three sentences. If
Subject Company refuses to consummate the Merger
pursuant to this Section 10.1(g), it shall give prompt
written notice thereof to Parent; provided, that such
notice of election to terminate may be withdrawn at any
time within the aforementioned ten-day period. During
the five-day period commencing with its receipt of such
notice, Parent shall have the option to elect to
increase the Exchange Ratio to equal the lesser of
(i) the quotient obtained by dividing (1) the product of
0.80, the Starting Price, 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 Parent Ratio. If Parent makes an
election contemplated by the preceding sentence, within
such five-day period, it shall give prompt written
notice to Subject Company of such election and the
revised Exchange Ratio, whereupon no termination shall
have occurred pursuant to this Section 10.1(g) 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(g).
For purposes of this Section 10.1(g), the
following terms shall have the meanings indicated:
"Average Closing Price" shall mean the
average of the daily last sales prices of Parent
Common Stock as reported on the NYSE (as reported by
The Wall Street Journal or, if not reported thereby,
another authoritative source as chosen by Parent)
for the 20 consecutive full trading days in which
such shares are traded on the NYSE ending at the
close of trading on the Determination Date.
"Determination Date" shall mean the later of
the date (i) of the Shareholders' Meeting and (ii)
on which the Consent of the Board of Governors of
the Federal Reserve System shall be received
(without regard to any requisite waiting period
thereof).
"Index Group" shall mean the 15 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 as of the Starting Date. In the
event that any such company or companies are removed
from the Index Group as a result of any of the
events described in the preceding sentence, 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 15 bank holding
companies and the weights attributed to them are as
follows:
BANK HOLDING COMPANIES WEIGHTING
---------------------- ---------
AmSouth Bancorporation 5.75%
BB&T Corporation 7.55
Crestar Financial Corporation 7.75
First American Corporation 4.12
First of America Bank Corporation 6.18
First Security Corporation 8.12
First Tennessee National 4.49
Corporation
Firstar Corporation 10.12
Huntington Bancshares, Inc. 11.16
Xxxxxxxx & Xxxxxx Corporation 6.22
Mercantile Bancorporation, Inc. 5.19
National Commerce Bancorp 3.44
Old Kent Financial Corporation 3.34
Regions Financial Corporation 9.58
SouthTrust Corporation 6.99
------
Total 100.00%
"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 the fourth full
trading day after the announcement by press release
of the Merger.
"Starting Price" shall mean the closing price
per share of Parent Common Stock as reported on the
NYSE (as reported by The Wall Street Journal or, if
not reported thereby, another authoritative source
as chosen by Parent) on the Starting Date.
If Parent or any company belonging to the Index
Group declares or effects a stock dividend,
reclassification, recapitalization, split-up,
combination, exchange of shares, or similar transaction
between the date of this Agreement and the Determination
Date, the prices for the common stock of such company or
Parent shall be appropriately adjusted for the purposes
of applying this Section 10.1(g).
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, Section 8.6(b), Section 11.2 and Section
11.3 of this Agreement shall survive any such termination
and abandonment, and (ii) a termination pursuant to the
terms of this Agreement shall not relieve the breaching
Party from Liability for an uncured willful breach of a
representation, warranty, covenant, or agreement. The Stock
Option Agreement and the Confidentiality Agreement shall be
governed by their respective terms as to its 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 for those covenants
and agreements which by their terms apply in whole or in
part after the Effective Time.
ARTICLE 11
MISCELLANEOUS
11.1 Definitions. (a) Except as otherwise
provided herein, the capitalized terms set forth below shall
have the following meanings:
"Acquisition Proposal" with respect to a Party
shall mean any tender offer or exchange offer or any
proposal for a merger, acquisition of all of the stock
or assets of, or other business combination involving
such Party or any of its Subsidiaries or the
acquisition of a substantial equity interest in, or a
substantial portion of the assets of, such Party or any
of its Subsidiaries.
"Affiliate" of a Person shall mean any other
Person, directly or indirectly through one or more
intermediaries, controlling, controlled by, or under
common control with such Person.
"Agreement" shall mean this Agreement, including
the Stock Option Agreement and the Exhibits delivered
pursuant hereto and incorporated herein by reference.
"Articles of Merger" shall mean the Articles of
Merger to be executed by Subject Company and filed with
the Secretary of State of the State of Florida relating
to the Merger as contemplated by Section 1.1 of this
Agreement.
"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.
"Bank" shall mean Capital Bank.
"BHC Act" shall mean the federal Bank Holding
Company Act of 1956, as amended.
"Closing Date" shall mean the date on which the
Closing occurs.
"Consent" shall mean any consent, approval,
authorization, clearance, exemption, waiver, or similar
affirmation by any Person pursuant to any Contract,
Law, Order or Permit.
"Contract" shall mean any written or oral
agreement, arrangement, authorization, commitment,
contract, indenture, instrument, lease, obligation,
plan, practice, restriction, understanding, or
undertaking of any kind or character, or other document
to which any Person is a party or that is binding on
any Person or its capital stock, Assets or business.
"Default" shall mean (i) any breach or violation
of or default under any Contract, Order, or Permit,
(ii) any occurrence of any event that with the passage
of time or the giving of notice or both would
constitute a breach or violation of or default under
any Contract, Order, or Permit, or (iii) any occurrence
of any event that with or without the passage of time
or the giving of notice would give rise to a right to
terminate or revoke, change the current terms of, or
renegotiate, or to accelerate, increase or impose any
Liability under, any Contract, Order or Permit.
"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 mean any trade or
business, whether or not incorporated, that together
with Subject Company would be deemed a "single
employer" within the meaning of section 4001(b) of
ERISA.
"Exhibits" 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.
"FBCA" shall mean the Florida Business Corporation
Act.
"GAAP" shall mean generally accepted accounting
principles, consistently applied during the periods
involved.
"Hazardous Material" shall mean (i) any hazardous
substance, hazardous material, hazardous waste,
regulated substance, or toxic substance (as those terms
are defined by any applicable Environmental Laws) and
(ii) any chemicals, pollutants, contaminants,
petroleum, petroleum products, or oil (and specifically
shall include asbestos requiring abatement, removal, or
encapsulation pursuant to the requirements of
governmental authorities and any polychlorinated
biphenyls).
"Holding" shall mean Capital Factors Holding, Inc.
"Holding Financial Statements" shall mean (i) the
consolidated balance sheets (including related notes and
schedules, if any) of Holding as of March 31, 1997, and
as of December 31, 1996 and 1995, and the related
statements of earnings, changes in shareholders' equity,
and cash flows (including related notes and schedules,
if any) for the three months ended March 31, 1997 and
for each of the three years ended December 31, 1996,
1995 and 1994, as filed by Holding in SEC Documents,
and (ii) the consolidated balance sheets of Holding
(including related notes and schedules, if any) and
related statements of earnings, 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 March 31, 1997.
"HSR Act" shall mean Section 7A of the Xxxxxxx
Act, as added by Title II of the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended, and the
rules and regulations promulgated thereunder.
"Intellectual Property" shall mean copyrights,
patents, trademarks, service marks, service names,
trade names, applications therefor, technology rights
and licenses, computer software (including any source
or object codes therefor or documentation relating
thereto), trade secrets, franchises, know-how,
inventions, and other intellectual property rights.
"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 those facts that are
known by the Chairman, President, Chief Financial
Officer, Chief Accounting Officer, Chief Credit
Officer, or General Counsel 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 Taxes upon the assets or properties of a Party
or its Subsidiaries which are not yet due and payable,
and (ii) for depository institution Subsidiaries of a
Party, pledges to secure deposits and other Liens
incurred in the ordinary course of the banking
business.
"Litigation" shall mean any action, arbitration,
cause of action, claim, complaint, criminal
prosecution, demand letter, governmental or other
examination or investigation, hearing, inquiry,
administrative or other proceeding, or notice (written
or oral) by any Person alleging potential Liability or
requesting information relating to or affecting a
Party, its business, its Assets (including Contracts
related to it), or the transactions contemplated by
this Agreement, but shall not include regular, periodic
examinations of depository institutions and their
Affiliates by Regulatory Authorities.
"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 in
accordance with applicable Law, provided that "Material
Adverse Effect" and "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 GAAP or regulatory
accounting principles generally applicable to banks and
their holding companies, (c) actions and omissions of a
Party (or any of its Subsidiaries) taken with the prior
written consent of the other Party, (d) changes in
economic conditions or interest rates generally
affecting financial institutions, or (e) the direct
effects of compliance with this Agreement (including
the expense associated with the vesting of benefits
under the various employee benefit plans of Subject
Company as a result of the Merger constituting a change
of control) on the operating performance of the
Parties, including expenses incurred by the Parties in
consummating the transactions contemplated by the
Agreement.
"Merger Subsidiary" shall mean the wholly owned
subsidiary of Parent to be organized to effect the
Merger under the Laws of the State of Florida.
"Merger Subsidiary Common Stock" shall mean the
$1.00 par value common stock of Merger Subsidiary.
"NASD" shall mean the National Association of
Securities Dealers, Inc.
"NYSE" shall mean the New York Stock Exchange,
Inc.
"1933 Act" shall mean the Securities Act of 1933,
as amended.
"1934 Act" shall mean the Securities Exchange Act
of 1934, as amended.
"Operating Property" shall mean any property owned
by the Party in question or by any of its Subsidiaries
or in which such Party or Subsidiary holds a security
interest, and, where required by the context, includes
the owner or operator of such property, but only with
respect to such property.
"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.
"Parent Capital Stock" shall mean, collectively,
the Parent Common Stock, the Parent Preferred Stock and
any other class or series of capital stock of Parent.
"Parent Common Stock" shall mean the $5.00 par
value common stock of Parent.
"Parent Disclosure Memorandum" shall mean the
written information entitled "Parent Memorandum"
delivered prior to the date of this Agreement to
Subject Company 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.
"Parent Financial Statements" shall mean (i) the
consolidated balance sheets (including related notes
and schedules, if any) of Parent as of March 31, 1997,
and as of December 31, 1996 and 1995, and the related
statements of earnings, changes in shareholders'
equity, and cash flows (including related notes and
schedules, if any) for the three months ended March 31,
1997 and for each of the three years ended December 31,
1996, 1995 and 1994, as filed by Parent in SEC
Documents, and (ii) the consolidated balance sheets of
Parent (including related notes and schedules, if any)
and related statements of earnings, 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 March
31, 1997.
"Parent Preferred Stock" shall mean the no par
value preferred stock of Parent and shall include the
(i) Series A Preferred Stock and (ii) Series E 8%
Cumulative, Convertible Preferred Stock, of Parent
("Parent Series E Preferred Stock").
"Parent Rights" shall mean the preferred stock
purchase rights issued pursuant to the Parent Rights
Agreement.
"Parent Rights Agreement" shall mean that certain
Rights Agreement, dated January 19, 1989, between
Parent and UPNB, as Rights Agent.
"Parent Subsidiaries" shall mean the Subsidiaries
of Parent and any corporation, bank, or other
organization acquired as a Subsidiary of Parent in the
future and owned by Parent at the Effective Time.
"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 Subject Company or
Parent, and "Parties" shall mean both Subject Company
and Parent.
"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 Subject Company to solicit the approval of its
shareholders of the transactions contemplated by this
Agreement, which shall include the prospectus of Parent
relating to the issuance of the Parent Common Stock to
holders of Subject Company 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 Parent under the 1933 Act with respect to
the shares of Parent Common Stock to be issued to the
shareholders of Subject Company in connection with the
transactions contemplated by this Agreement.
"Regulatory Authorities" shall mean, collectively,
the Federal Trade Commission, the United States
Department of Justice, the Board of the Governors of
the Federal Reserve System, the Office of the
Comptroller of the Currency, the Federal Deposit
Insurance Corporation, the Department of Banking and
Finance of the State of Florida, all state regulatory
agencies having jurisdiction over the Parties and their
respective Subsidiaries, the NYSE, 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, warrants, or other binding obligations of
any character whatsoever by which a Person is or may be
bound to issue additional shares of its capital stock
or other Rights, or securities or rights convertible
into or exchangeable for, shares of the capital stock
of a Person.
"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 Law.
"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 Subject Company to be held pursuant
to Section 8.1 of this Agreement, including any
adjournment or adjournments thereof.
"Stock Option Agreement" shall mean the Stock
Option Agreement of even date herewith issued to Parent
by Subject Company, substantially in the form of
Exhibit 1.
"Subject Company Common Stock" shall mean the
$1.00 par value common stock of Subject Company.
"Subject Company Disclosure Memorandum" shall mean
the written information entitled "Subject Company
Disclosure Memorandum" delivered prior to the date of
this Agreement to Parent 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.
"Subject Company Financial Statements" shall mean
(i) the consolidated statements of financial position
(including related notes and schedules, if any) of
Subject Company as of March 31, 1997, and as of
December 31, 1996 and 1995, and the related statements
of operations, shareholders' equity, and cash flows
(including related notes and schedules, if any) for the
three months ended March 31, 1997, and for each of the
three fiscal years ended December 31, 1996, 1995 and
1994, as filed by Subject Company in SEC Documents, and
(ii) the consolidated statements of financial position
of Subject Company (including related notes and
schedules, if any) and related statements of
operations, shareholders' equity, and cash flows
(including related notes and schedules, if any)
included in SEC Documents filed with respect to periods
ended subsequent to March 31, 1997.
"Subject Company Stock Plans" shall mean the
existing stock option and other stock-based
compensation plans of Subject Company.
"Subject Company Subsidiaries" shall mean the
Subsidiaries of Subject Company, which shall include
Subject Company Subsidiaries described in Section 5.4
of this Agreement and any corporation, bank, or other
organization acquired as a Subsidiary of Subject
Company in the future and owned by Subject Company at
the Effective Time.
"Subsidiaries" shall mean all those corporations,
banks, associations, or other entities of which the
entity in question owns or controls 10% or more of the
outstanding equity securities either directly or
through an unbroken chain of entities as to each of
which 10% 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 equity the
equity securities of which are owned or controlled in a
fiduciary capacity.
"Supplemental Letter" shall mean the supplemental
letter of even date herewith relating to certain
understandings and agreements in addition to those
included in this Agreement in substantially the form of
Exhibit 4.
"Surviving Corporation" shall mean Subject Company
as the surviving corporation resulting from the Merger.
"Tax" or "Taxes" shall mean all taxes, charges,
fees, levies or other assessments, including, without
limitation, all net income, gross income, gross
receipts, sales, use, ad valorem, transfer, franchise,
profits, license, withholding, payroll, employment,
excise, estimated, severance, stamp, occupation,
property or other taxes, customs duties, fees,
assessments or charges of any kind whatsoever, together
with any interest and any penalties, additions to tax
or additional amounts imposed by any taxing authority
(domestic or foreign).
"TBCA" shall mean the Tennessee Business
Corporation Act.
(b) The terms set forth below shall have the
meanings ascribed thereto in the referenced sections:
Average Closing Price . . . . . . . Section 10.1(g)
Closing . . . . . . . . . . . . . . Section 1.2
Determination Date . . . . . . . . Section 10.1(g)
Effective Time . . . . . . . . . . Section 1.3
ERISA Affiliate . . . . . . . . . . Section 5.14(c)
Exchange Agent . . . . . . . . . . Section 4.1
Exchange Ratio . . . . . . . . . . Section 3.1(c)
Indemnified Party . . . . . . . . . Section 8.12(a)
Index Group . . . . . . . . . . . . Section 10.1(g)
Index Price . . . . . . . . . . . . Section 10.1(g)
Index Ratio . . . . . . . . . . . . Section 10.1(g)
Merger . . . . . . . . . . . . . . Section 1.1
Parent Ratio . . . . . . . . . . . Section 10.1(g)
Parent SEC Reports . . . . . . . . Section 6.12
Starting Date . . . . . . . . . . . Section 10.1(g)
Starting Price . . . . . . . . . . Section 10.1(g)
Subject Company Benefit Plans . . . Section 5.14(a)
Subject Company Contracts . . . . . Section 5.15
Subject Company ERISA Plan . . . . Section 5.14(a)
Subject Company Options . . . . . . Section 3.5(a)
Subject Company Pension Plan . . . Section 5.14(a)
Subject Company SEC Reports . . . . Section 5.17
Takeover Laws . . . . . . . . . . . Section 5.20
Tax Opinion . . . . . . . . . . . . Section 9.1(g)
(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 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 based on
the relative Asset sizes of the Parties at December 31,
1996.
(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 Sandler
X'Xxxxx & Partners, L.P. as to Subject Company and except
for Salomon Brothers Inc. as to Parent, 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 or
its representing or being retained by or allegedly
representing or being retained by Subject Company or Parent
other than those disclosed in the previous sentence, each of
Subject Company and Parent, as the case may be, agrees to
indemnify and hold the other Party harmless of and from any
Liability incurred by such party in respect of any such
claim.
11.4 Entire Agreement. Except as otherwise
expressly provided herein, this Agreement (including the
other documents and instruments referred to herein) and the
Confidentiality Agreement constitute 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.
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 Section 8.12 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
Subject Company Common Stock, except as contemplated herein,
there shall be made no amendment that has any of the effects
set forth in Section 607.1103 of the FBCA without the
further approval of such shareholders.
11.6 Waivers. (a) Prior to or at the Effective
Time, Parent, 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 Subject Company, to waive or
extend the time for the compliance or fulfillment by Subject
Company of any and all of its obligations under this
Agreement, and to waive any or all of the conditions
precedent to the obligations of Parent 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 Parent.
(b) Prior to or at the Effective Time, Subject
Company, 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 Parent, to waive or extend the
time for the compliance or fulfillment by Parent of any and
all of its obligations under this Agreement, and to waive
any or all of the conditions precedent to its obligations of
Subject Company 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 Subject
Company.
(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 of a waiver of any other
condition or of the breach of any other term of this
Agreement.
11.7 Assignment. 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 person 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:
Subject Company: Capital Bancorp
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx
Attention: Xxxxxx X. Xxxxx
Telecopy Number: (000) 000-0000
Copy to Subject
Counsel: Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxxx, Esq.
Telecopy Number: (000) 000-0000
Parent: Union Planters Corporation
0000 Xxxxxxxx Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy Number: (000) 000-0000
Copy to Counsel: Union Planters Corporation
0000 Xxxxxxxx Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: X. Xxxxx House, Jr., Esq.
Telecopy Number: (000) 000-0000
and
Xxxxxx & Bird LLP
000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx X. Xxxxxx III, Esq.
Telecopy Number: (000) 000-0000
11.9 Governing Law. This Agreement shall be
governed by and construed in accordance with the Laws of the
State of Tennessee, 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 broad as to be enforceable, the
provision shall be interpreted to be only so broad as is
enforceable.
IN WITNESS WHEREOF, each of the Parties has caused
this Agreement to be executed on its behalf and its
corporate seal to be hereunto affixed and attested by
officers thereunto as of the day and year first above
written.
ATTEST: CAPITAL BANCORP
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxx Xxxxxx X. Xxxxx
Secretary Chairman of the Board,
President and Chief
Executive Officer
[CORPORATE SEAL]
ATTEST: UNION PLANTERS CORPORATION
By: /s/ X. Xxxxx House, Jr. By: /s/ Xxxxxxx X. Xxxxx
X. Xxxxx House, Jr. Xxxxxxx X. Xxxxx
Secretary President and Chief
Operating Officer
[CORPORATE SEAL]
