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EXHIBIT 2.1
FINAL AGREEMENT
AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
FIRST BANKSHARES, INC.
AND
REGIONS FINANCIAL CORPORATION
DATED AS OF DECEMBER 13, 1996
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TABLE OF CONTENTS
PAGE
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Parties................................................................ 1
Preamble............................................................... 1
ARTICLE ONE -- TRANSACTIONS AND TERMS OF MERGER........................ 1
1.1 Merger...................................................... 1
1.2 Time and Place of Closing................................... 1
1.3 Effective Time.............................................. 2
ARTICLE TWO -- TERMS OF MERGER......................................... 2
2.1 Certificate of Incorporation................................ 2
2.2 Bylaws...................................................... 2
2.3 Directors and Officers...................................... 2
ARTICLE THREE -- MANNER OF CONVERTING SHARES........................... 2
3.1 Conversion of Shares........................................ 2
3.2 Anti-Dilution Provisions.................................... 2
3.3 Shares Held by FBI or Regions............................... 2
3.4 Dissenting Stockholders..................................... 2
3.5 Fractional Shares........................................... 3
3.6 Conversion of Stock Options; Restricted Stock............... 3
ARTICLE FOUR -- EXCHANGE OF SHARES..................................... 3
4.1 Exchange Procedures......................................... 3
4.2 Rights of Former FBI Stockholders........................... 4
ARTICLE FIVE -- REPRESENTATIONS AND WARRANTIES OF FBI.................. 4
5.1 Organization, Standing...................................... 5
5.2 Authority; No Breach by Agreement........................... 5
5.3 Capital Stock............................................... 5
5.4 FBI Subsidiaries............................................ 5
5.5 Financial Statements........................................ 6
5.6 Absence of Undisclosed Liabilities.......................... 6
5.7 Absence of Certain Changes or Events........................ 6
5.8 Tax Matters................................................. 6
5.9 Assets...................................................... 7
5.10 Environmental Matters....................................... 7
5.11 Compliance With Laws........................................ 8
5.12 Labor Relations............................................. 9
5.13 Employee Benefit Plans...................................... 9
5.14 Material Contracts.......................................... 10
5.15 Legal Proceedings........................................... 11
5.16 Statements True and Correct................................. 11
5.17 Accounting.................................................. 11
5.18 State Takeover Laws......................................... 11
5.19 Articles of Incorporation Provisions........................ 11
5.20 Support Agreements.......................................... 12
5.21 Derivatives Contracts....................................... 12
ARTICLE SIX -- REPRESENTATIONS AND WARRANTIES OF REGIONS............... 12
6.1 Organization Standing and Power............................. 12
6.2 Authority; No Breach by Agreement........................... 12
6.3 Capital Stock............................................... 12
6.4 SEC Filings; Financial Statements........................... 13
6.5 Absence of Undisclosed Liabilities.......................... 13
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6.6 Absence of Certain Changes or Events........................ 13
6.7 Compliance With Laws........................................ 13
6.8 Legal Proceedings........................................... 14
6.9 Statements True and Correct................................. 14
6.10 Accounting.................................................. 14
ARTICLE SEVEN -- CONDUCT OF BUSINESS PENDING CONSUMMATION.............. 14
7.1 Covenants of Both Parties................................... 14
7.2 Covenants of FBI............................................ 15
7.3 Covenants of Regions........................................ 16
7.4 Adverse Changes in Condition................................ 16
7.5 Reports..................................................... 16
ARTICLE EIGHT -- ADDITIONAL AGREEMENT.................................. 17
8.1 Registration Statement: Proxy Statement; Stockholder
Approval.................................................... 17
8.2 Nasdaq/NMS Listing.......................................... 17
8.3 Applications................................................ 17
8.4 Agreement as to Efforts to Consummate....................... 17
8.5 Investigation and Confidentiality........................... 17
8.6 Press Releases.............................................. 18
8.7 Certain Actions............................................. 18
8.8 Tax Matters................................................. 18
8.9 Agreement of Affiliates..................................... 18
8.10 Employee Benefits and Contracts............................. 19
8.11 Indemnification............................................. 19
8.12 State Takeover Laws......................................... 20
8.13 Articles of Incorporation Provisions........................ 20
ARTICLE NINE -- CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE...... 20
9.1 Conditions to Obligations of Each Party..................... 20
9.2 Conditions to Obligations of Regions........................ 21
9.3 Conditions to Obligations of FBI............................ 22
ARTICLE TEN -- TERMINATION............................................. 22
10.1 Termination................................................. 22
10.2 Effect of Termination....................................... 25
10.3 Non-Survival of Representations and Covenants............... 25
ARTICLE ELEVEN -- MISCELLANEOUS........................................ 25
11.1 Definitions................................................. 25
11.2 Expenses.................................................... 29
11.3 Brokers and Finders......................................... 29
11.4 Entire Agreement............................................ 30
11.5 Amendments.................................................. 30
11.6 Waivers..................................................... 30
11.7 Assignment.................................................. 30
11.8 Notices..................................................... 31
11.9 Governing Law............................................... 31
11.10 Counterparts................................................ 31
11.11 Captions.................................................... 31
11.12 Severability................................................ 31
Signatures............................................................. 32
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LIST OF EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
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1. Form of Support Agreement. (sec. 11.1).
2. Form of agreement of affiliates of FBI. (sec. 8.9).
3. Form of Claims Letter. (sec. 9.2).
4. Form of Opinion Letter of FBI's Counsel. (sec. 9.2).
5. Form of Opinion Letter of Regions' Counsel. (sec. 9.3).
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and entered
into as of December 13, 1996, by and between FIRST BANKSHARES, INC. ("FBI"), a
corporation organized and existing under the laws of the State of Georgia, with
its principal office located in East Point, Georgia, and REGIONS FINANCIAL
CORPORATION ("Regions"), a corporation organized and existing under the laws of
the State of Delaware, with its principal office located in Birmingham, Alabama.
PREAMBLE
The Boards of Directors of FBI and Regions are of the opinion that the
transactions described herein are in the best interests of the parties and their
respective stockholders. This Agreement provides for the acquisition of FBI by
Regions pursuant to the merger of FBI into and with Regions. At the effective
time of such merger, the outstanding shares of the capital stock of FBI shall be
converted into shares of the common stock of Regions (except as provided
herein). As a result, stockholders of FBI shall become stockholders of Regions
and each of the subsidiaries of FBI shall continue to conduct its business and
operations as a wholly owned subsidiary of Regions. The transactions described
in this Agreement are subject to the approvals of the stockholders of FBI, the
Board of Governors of the Federal Reserve System, and the appropriate 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 the merger (i) for federal income tax purposes shall qualify as a
"reorganization" within the meaning of Section 368(a) of the Internal Revenue
Code and (ii) for accounting purposes shall be accounted for as a "pooling of
interests."
As a condition and inducement to Regions' willingness to consummate the
transactions contemplated by this Agreement, prior to the execution of this
Agreement, each of FBI's directors will execute and deliver to Regions an
agreement (a "Support Agreement"), in substantially the form of Exhibit 1 to
this Agreement.
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, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
ARTICLE ONE
TRANSACTIONS AND TERMS OF MERGER
1.1 Merger. Subject to the terms and conditions of this Agreement, at the
Effective Time, FBI shall be merged into and with Regions in accordance with the
provisions of Sections 14-2-1103 and 14-2-1107 of the GBCC and with the effect
provided in Section 14-2-1106 of the GBCC and of Section 258 of the DGCL and
with the effect provided in Section 259 of the DGCL (the "Merger"). Regions
shall be the Surviving Corporation of the Merger and shall continue to be
governed by the Laws of the State of Delaware. The Merger shall be consummated
pursuant to the terms of this Agreement, which has been approved and adopted by
the Boards of Directors of FBI and Regions.
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 duly authorized officers, may mutually agree. The place of
Closing shall be at the offices of Regions, or such other place as may be
mutually agreed upon by the Parties.
1.3 Effective Time. The Merger and other transactions contemplated by this
Agreement shall become effective on the date and at the time the Georgia
Certificate of Merger reflecting the Merger shall become effective with the
Secretary of State of the State of Georgia and the Delaware Certificate of
Merger reflecting the Merger shall become effective with the Secretary of State
of the State of Delaware (the "Effective Time"). Subject to the terms and
conditions hereof, unless otherwise mutually agreed upon in writing by the duly
authorized officers of each Party, the Parties shall use their reasonable
efforts to cause the Effective Time
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to occur on the last day of the month in which occurs the last to occur of (i)
the effective date (including expiration of any applicable waiting period) of
the last required Consent of any Regulatory Authority having authority over and
approving or exempting the Merger, and (ii) the date on which the stockholders
of FBI approve this Agreement to the extent such approval is required by
applicable Law.
ARTICLE TWO
TERMS OF MERGER
2.1 Certificate of Incorporation. The Certificate of Incorporation of
Regions in effect immediately prior to the Effective Time shall be the
Certificate of Incorporation of the Surviving Corporation after the Effective
Time until otherwise amended or repealed.
2.2 Bylaws. The Bylaws of Regions in effect immediately prior to the
Effective Time shall be the Bylaws of the Surviving Corporation after the
Effective Time until otherwise amended or repealed.
2.3 Directors and Officers. The directors of Regions in office immediately
prior to the Effective Time, together with such additional persons as may
thereafter be elected, shall serve as the directors of the Surviving Corporation
from and after the Effective Time in accordance with the Bylaws of the Surviving
Corporation. The officers of Regions in office immediately prior to the
Effective Time, together with such additional persons as may thereafter be
elected, shall serve as the officers of the Surviving Corporation from and after
the Effective Time in accordance with the Bylaws of the Surviving Corporation.
ARTICLE THREE
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 the holders thereof, the shares of the constituent corporations shall be
converted as follows:
(a) Each share of Regions Common Stock issued and outstanding
immediately prior to the Effective Time shall remain issued and outstanding
from and after the Effective Time.
(b) Each share of FBI Common Stock (excluding shares held by FBI or
any of its Subsidiaries or by Regions or any of its Subsidiaries, 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 be converted
into .32 of a share of Regions Common Stock, subject to adjustment as
provided in Section 10.1 (h) of this Agreement (the "Exchange Ratio").
3.2 Anti-Dilution Provisions. In the event FBI changes the number of
shares of FBI 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, the Exchange Ratio shall be proportionately adjusted. In
the event Regions changes the number of shares of Regions Common Stock issued
and outstanding prior to the Effective Time as a result of a stock split, stock
dividend, or similar recapitalization with respect to such stock and the record
date therefor (in the case of a stock dividend) or the effective date thereof
(in the case of a stock split or similar recapitalization for which a record
date is not established) shall be prior to the Effective Time, the Exchange
Ratio shall be proportionately adjusted.
3.3 Shares Held by FBI or Regions. Each of the shares of FBI Common Stock
held by any FBI Company or by any Regions Company, in each case other than in a
fiduciary capacity or as a result of debts previously contracted, shall be
canceled and retired at the Effective Time and no consideration shall be issued
in exchange therefor.
3.4 Dissenting Stockholders. Any holder of shares of FBI Common Stock who
perfects such holder's dissenters' rights of appraisal in accordance with and as
contemplated by Sections 14-2-1301 et seq. of the GBCC shall be entitled to
receive the value of such shares in cash as determined pursuant to such
provision of
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Law; provided, however, that no such payment shall be made to any dissenting
stockholder unless and until such dissenting stockholder has complied with the
applicable provisions of the GBCC and surrendered to FBI the certificate or
certificates representing the shares for which payment is being made. In the
event that after the Effective Time a dissenting stockholder of FBI fails to
perfect, or effectively withdraws or loses, such holder's right to appraisal and
of payment for such holder's shares, Regions shall issue and deliver the
consideration to which such holder of shares of FBI Common Stock is entitled
under this Article Three (without interest) upon surrender by such holder of the
certificate or certificates representing shares of FBI Common Stock held by such
holder. FBI will establish an escrow account with an amount sufficient to
satisfy the maximum aggregate payment that may be required to be paid to
dissenting stockholders. Upon satisfaction of all claims of dissenting
stockholders, the remaining escrowed amount, reduced by payment of the fees and
expenses of the escrow agent, will be returned to FBI.
3.5 Fractional Shares. Notwithstanding any other provision of this
Agreement, each holder of shares of FBI Common Stock exchanged pursuant to the
Merger, or of options to purchase shares of FBI Common Stock, who would
otherwise have been entitled to receive a fraction of a share of Regions Common
Stock (after taking into account all certificates delivered by such holder)
shall receive, in lieu thereof, cash (without interest) in an amount equal to
such fractional part of a share of Regions Common Stock multiplied by the market
value of one share of Regions Common Stock at the Effective Time, in the case of
shares exchanged pursuant to the Merger, or the date of exercise, in the case of
options. The market value of one share of Regions Common Stock at the Effective
Time or the date of exercise, as the case may be, shall be the last sale price
of such common stock on the Nasdaq/NMS (as reported by The Wall Street Journal
or, if not reported thereby, any other authoritative source) on the last trading
day preceding the Effective Time, in the case of shares exchanged pursuant to
the Merger, and the date of exercise, in the case of options. No such holder
will be entitled to dividends, voting rights, or any other rights as a
stockholder in respect of any fractional shares.
3.6 Conversion of Stock Options; Restricted Stock. (a) At the Effective
Time, all rights with respect to FBI Common Stock pursuant to stock options or
stock appreciation rights ("FBI Options") granted by FBI under the FBI Stock
Plans, which are outstanding at the Effective Time, whether or not exercisable,
shall be converted into and become rights with respect to Regions Common Stock,
and Regions shall assume each FBI Option, in accordance with the terms of the
FBI Stock Plan and stock option agreement by which it is evidenced. From and
after the Effective Time, (i) each FBI Option assumed by Regions may be
exercised solely for shares of Regions Common Stock (or cash in the case of
stock appreciation rights), (ii) the number of shares of Regions Common Stock
subject to such FBI Option shall be equal to the number of shares of FBI Common
Stock subject to such FBI Option immediately prior to the Effective Time
multiplied by the Exchange Ratio, and (iii) the per share exercise price under
each such FBI Option shall be adjusted by dividing the per share exercise price
under each such FBI Option by the Exchange Ratio and rounding down to the
nearest cent. It is intended that the foregoing assumption shall be undertaken
in a manner that will not constitute a "modification" as defined in Section 424
of the Internal Revenue Code, as to any stock option which is an "incentive
stock option." FBI agrees to take all necessary steps to effectuate the
foregoing provisions of this Section 3.6.
(b) All restrictions or limitations on transfer with respect to FBI Common
Stock awarded under the FBI Stock Plans or any other plan, program, or
arrangement of any FBI Company, to the extent that such restrictions or
limitations shall not have already lapsed, and except as otherwise expressly
provided in such plan, program, or arrangement, shall remain in full force and
effect with respect to shares of Regions Common Stock into which such restricted
stock is converted pursuant to Section 3.1 of this Agreement.
ARTICLE FOUR
EXCHANGE OF SHARES
4.1 Exchange Procedures. Promptly after the Effective Time, Regions shall
cause the exchange agent selected by Regions (the "Exchange Agent") to mail to
the former stockholders of FBI appropriate transmittal materials (which shall
specify that delivery shall be effected, and risk of loss and title to the
certificates theretofore representing shares of FBI Common Stock shall pass,
only upon proper delivery of such
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certificates to the Exchange Agent). After the Effective Time, each holder of
shares of FBI 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 3.5 of this Agreement, each holder of shares of FBI
Common Stock issued and outstanding at the Effective Time also shall receive,
upon surrender of the certificate or certificates representing such shares, cash
in lieu of any fractional share of Regions Common Stock to which such holder may
be otherwise entitled (without interest). Regions shall not be obligated to
deliver the consideration to which any former holder of FBI Common Stock is
entitled as a result of the Merger until such holder surrenders such holder's
certificate or certificates representing the shares of FBI Common Stock for
exchange as provided in this Section 4.1. The certificate or certificates of FBI
Common Stock so surrendered shall be duly endorsed as the Exchange Agent may
require. Any other provision of this Agreement notwithstanding, neither Regions,
FBI, nor the Exchange Agent shall be liable to a holder of FBI 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 FBI Stockholders. At the Effective Time, the stock
transfer books of FBI shall be closed as to holders of FBI Common Stock
immediately prior to the Effective Time, and no transfer of FBI 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 FBI Common Stock (other than
shares to be canceled pursuant to Section 3.3 of this Agreement or as to which
the holder thereof has perfected dissenters' rights of appraisal as contemplated
by Section 3.4 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 3.5 of this Agreement in exchange therefor. To the extent
permitted by Law, former stockholders of record of FBI shall be entitled to vote
after the Effective Time at any meeting of Regions stockholders the number of
whole shares of Regions Common Stock into which their respective shares of FBI
Common Stock are converted, regardless of whether such holders have exchanged
their certificates representing FBI Common Stock for certificates representing
Regions Common Stock in accordance with the provisions of this Agreement.
Whenever a dividend or other distribution is declared by Regions on the Regions
Common Stock, the record date for which is at or after the Effective Time, the
declaration shall include dividends or other distributions on all shares of
Regions Common Stock issuable pursuant to this Agreement, but no dividend or
other distribution payable to the holders of record of Regions Common Stock as
of any time subsequent to the Effective Time shall be delivered to the holder of
any certificate representing shares of FBI 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
FBI Common Stock certificate, both the Regions Common Stock certificate
(together with all such undelivered dividends or other distributions without
interest) and any undelivered cash payments to be paid for fractional share
interests (without interest) shall be delivered and paid with respect to each
share represented by such certificate.
ARTICLE FIVE
REPRESENTATIONS AND WARRANTIES OF FBI
FBI hereby represents and warrants to Regions as follows:
5.1 Organization, Standing and Power. FBI is a corporation duly organized,
validly existing, and in good standing under the Laws of the State of Georgia,
and has the corporate power and authority to carry on its business as now
conducted and to own, lease, and operate its Assets. FBI 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 FBI.
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5.2 Authority; No Breach by Agreement. (a) FBI has the corporate power and
authority necessary to execute, deliver, and perform its obligations under this
Agreement and to consummate the transactions contemplated hereby, subject to the
approval of this Agreement by the holders of a majority of the outstanding
shares of FBI Common Stock. The execution, delivery, and performance of this
Agreement and the consummation of the transactions contemplated herein,
including the Merger, have been or will be duly and validly authorized by all
necessary corporate action in respect thereof on the part of FBI, subject to the
approval of this Agreement by the holders of a majority of the outstanding
shares of FBI Common Stock. Subject to such requisite approval, this Agreement
represents a legal, valid, and binding obligation of FBI, enforceable against
FBI in accordance with its terms (except in all cases as such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or
similar Laws affecting the enforcement of creditors' rights generally and except
that the availability of the equitable remedy of specific performance or
injunctive relief is subject to the discretion of the court before which any
proceeding may be brought).
(b) Neither the execution and delivery of this Agreement by FBI, nor the
consummation by FBI of the transactions contemplated hereby, nor compliance by
FBI with any of the provisions hereof, will (i) conflict with or result in a
breach of any provision of FBI's Articles of Incorporation or Bylaws, or (ii)
except as disclosed in Section 5.2(b) of the FBI Disclosure Memorandum,
constitute or result in a Default under, or require any Consent pursuant to, or
result in the creation of any Lien on any Asset of any FBI Company under, any
Contract or Permit of any FBI Company, or (iii) subject to receipt of the
requisite approvals referred to in Section 9.1(b) of this Agreement, violate any
Law or Order applicable to any FBI Company or any of their respective 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,
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 FBI, no notice to, filing with, or Consent of, any
public body or authority is necessary for the consummation by FBI of the Merger
and the other transactions contemplated in this Agreement.
5.3 Capital Stock. (a) The authorized capital stock of FBI consists of
10,000,000 shares of FBI Common Stock, of which 1,052,462 shares are issued and
outstanding as of the date of this Agreement and not more than 1,144,140 shares
will be issued and outstanding at the Effective Time. All of the issued and
outstanding shares of FBI Common Stock are duly and validly issued and
outstanding and are fully paid and nonassessable. None of the outstanding shares
of FBI Common Stock has been issued in violation of any preemptive rights of the
current or past stockholders of FBI. FBI has reserved 160,000 shares of FBI
Common Stock for issuance under the FBI Stock Plans, pursuant to which options
to purchase not more than 91,678 shares of FBI Common Stock are outstanding.
(b) Except as set forth in Section 5.3(a) of this Agreement, there are no
shares of capital stock or other equity securities of FBI outstanding and no
outstanding options, warrants, scrip, rights to subscribe to, calls, or
commitments of any character whatsoever relating to, or securities or rights
convertible into or exchangeable for, shares of the capital stock of FBI or
contracts, commitments, understandings, or arrangements by which FBI is or may
be bound to issue additional shares of FBI capital stock or options, warrants,
or rights to purchase or acquire any additional shares of its capital stock.
5.4 FBI Subsidiaries. FBI has disclosed in Section 5.4 of the FBI
Disclosure Memorandum all of the FBI Subsidiaries as of the date of this
Agreement. Except as disclosed, FBI or one of its Subsidiaries owns all of the
issued and outstanding shares of capital stock of each FBI Subsidiary. No equity
securities of any FBI Subsidiary are or may become required to be issued (other
than to a FBI Company) by reason of any options, warrants, scrip, rights to
subscribe to, calls, or commitments of any character whatsoever relating to, or
securities or rights convertible into or exchangeable for, shares of the capital
stock of any such Subsidiary, and there are no Contracts by which any FBI
Subsidiary is bound to issue (other than to a FBI Company) additional shares of
its capital stock or options, warrants, or rights to purchase or acquire any
additional shares
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of its capital stock or by which any FBI Company is or may be bound to transfer
any shares of the capital stock of any FBI Subsidiary (other than to a FBI
Company). There are no Contracts relating to the rights of any FBI Company to
vote or to dispose of any shares of the capital stock of any FBI Subsidiary. All
of the shares of capital stock of each FBI Subsidiary held by a FBI Company are
duly authorized, validly issued, and 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 Law of the jurisdiction in which such
Subsidiary is incorporated or organized and are owned by the FBI Company free
and clear of any Lien. Each FBI Subsidiary is a corporation, and is duly
organized, validly existing, and in good standing under the Laws of the
jurisdiction in which it is incorporated or organized, and 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 FBI 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 FBI. Each FBI Subsidiary that is a
depository institution is an "insured institution" as defined in the Federal
Deposit Insurance Act and applicable regulations thereunder, and the deposits in
which are insured by the Bank Insurance Fund or the Savings Association
Insurance Fund, as appropriate.
5.5 Financial Statements. FBI has disclosed in Section 5.5 of the FBI
Disclosure Memorandum, and has delivered to Regions copies of, all FBI Financial
Statements prepared for periods ended prior to the date hereof and will deliver
to Regions copies of all FBI Financial Statements prepared subsequent to the
date hereof. The FBI Financial Statements (as of the dates thereof and for the
periods covered thereby) (i) are or, if dated after the date of this Agreement,
will be in accordance with the books and records of the FBI Companies, which are
or will be, as the case may be, complete and correct and which have been or will
have been, as the case may be, maintained in accordance with good business
practices, and (ii) present or will present, as the case may be, fairly the
consolidated financial position of the FBI Companies as of the dates indicated
and the consolidated results of operations, changes in stockholders' equity, and
cash flows of the FBI Companies for the periods indicated, in accordance with
GAAP (subject to any exceptions as to consistency specified therein or as may be
indicated in the notes thereto or, in the case of interim financial statements,
to normal recurring year-end adjustments that are not material).
5.6 Absence of Undisclosed Liabilities. No FBI Company has any Liabilities
that are reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on FBI, except Liabilities which are accrued or reserved against
in the consolidated balance sheets of FBI as of September 30, 1996 included in
the FBI Financial Statements or reflected in the notes thereto. No FBI Company
has incurred or paid any Liability since September 30, 1996, except for such
Liabilities incurred or paid in the ordinary course of business consistent with
past business practice and which are not reasonably likely to have, individually
or in the aggregate, a Material Adverse Effect on FBI.
5.7 Absence of Certain Changes or Events. Since September 30, 1996, except
as disclosed in the FBI Financial Statements, (i) there have been no events,
changes, or occurrences which have had, or are reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on FBI, and (ii) the
FBI Companies have not taken any action, or failed to take any action, prior to
the date of this Agreement, which action or failure, if taken after the date of
this Agreement, would represent or result in a material breach or violation of
any of the covenants and agreements of FBI provided in Article Seven of this
Agreement.
5.8 Tax Matters. (a) All Tax returns required to be filed by or on behalf
of any of the FBI Companies have been timely filed, or requests for extensions
have been timely filed, granted, and have not expired for periods ended on or
before December 31, 1995 and on or before the date of the most recent fiscal
year end immediately preceding the Effective Time to the Knowledge of FBI, and
all returns filed are complete and accurate to the Knowledge of FBI. All Taxes
shown on filed returns have been paid. There is no audit examination,
deficiency, or refund Litigation with respect to any Taxes that is reasonably
likely to result in a determination that would have, individually or in the
aggregate, a Material Adverse Effect on FBI, except to the extent reserved
against in the FBI Financial Statements dated prior to the date of this
Agreement. All
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Taxes and other Liabilities due with respect to completed and settled
examinations or concluded Litigation have been paid.
(b) None of the FBI Companies has executed an extension or waiver of any
statute of limitations on the assessment or collection of any Tax due (excluding
such statutes that relate to years currently under examination by the Internal
Revenue Service or other applicable Taxing authorities) that is currently in
effect.
(c) Adequate provision for any Taxes due or to become due for any of the
FBI Companies for the period or periods through and including the date of the
respective FBI Financial Statements has been made and is reflected on such FBI
Financial Statements.
(d) Deferred Taxes of the FBI Companies have been adequately provided for
in the FBI Financial Statements.
(e) Each of the FBI Companies is in compliance with, and its records
contain all information and documents (including properly completed IRS Forms
W-9) necessary to comply with, all applicable information reporting and Tax
withholding requirements under federal, state, and local Tax Laws, and such
records identify with specificity all accounts subject to backup withholding
under Section 3406 of the Internal Revenue Code, except for such instances of
noncompliance and such omissions as are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on FBI.
(f) None of the FBI Companies has made any payments, is obligated to make
any payments, or is a party to any contract, agreement, or other arrangement
that could obligate it to make any payments that would be disallowed as a
deduction under Section 280G or 162(m) of the Internal Revenue Code.
(g) There are no Liens with respect to Taxes upon any of the assets of the
FBI Companies.
(h) There has not been an ownership change, as defined in Internal Revenue
Code Section 382(g), of the FBI Companies that occurred during or after any
Taxable Period in which the FBI Companies incurred a net operating loss that
carries over to any Taxable Period ending after December 31, 1994.
(i) No FBI Company has filed any consent under Section 341(f) of the
Internal Revenue Code concerning collapsible corporations.
(j) All material elections with respect to Taxes affecting the FBI
Companies as of the date of this Agreement have been or will be timely made as
set forth in Section 5.8 of the FBI Disclosure Memorandum. After the date
hereof, no election with respect to Taxes will be made without the prior written
consent of Regions, which consent will not be unreasonably withheld.
(k) No FBI Company has or has had a permanent establishment in any foreign
country, as defined in any applicable tax treaty or convention between the
United States and such foreign country.
5.9 Assets. Except as disclosed or reserved against in the FBI Financial
Statements, the FBI Companies have good and marketable title, free and clear of
all Liens, to all of their respective Assets that are material to the business
of the FBI Companies. All material tangible properties used in the businesses of
the FBI Companies are in good condition, reasonable wear and tear excepted, and
are usable in the ordinary course of business consistent with FBI's past
practices. All Assets which are material to the business of the FBI Companies,
which are held under leases or subleases by any of the FBI Companies, are held
under valid Contracts enforceable in accordance with their respective terms
(except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or other Laws affecting the enforcement of
creditors' rights generally and except that the availability of the equitable
remedy of specific performance or injunctive relief is subject to the discretion
of the court before which any proceedings may be brought), and each such
Contract is in full force and effect.
5.10 Environmental Matters. (a) To the Knowledge of FBI, each FBI Company,
its Participation Facilities, and its Loan Properties are, and have been, in
compliance with all Environmental Laws, except for violations which are not
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on FBI.
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(b) To the Knowledge of FBI, there is no Litigation pending or threatened
before any court, governmental agency, or authority, or other forum in which any
FBI Company or any of its Participation Facilities has been or, with respect to
threatened Litigation, may be named as a defendant (i) for alleged noncompliance
(including by any predecessor) with any Environmental Law or (ii) relating to
the release into the environment of any Hazardous Material (as defined below) or
oil, whether or not occurring at, on, under, or involving a site owned, leased,
or operated by any FBI Company or any of its Participation Facilities, except
for such Litigation pending or threatened that is not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on FBI.
(c) To the Knowledge of FBI, there is no Litigation pending or threatened
before any court, governmental agency, or board, or other forum in which any of
its Loan Properties (or FBI in respect of such Loan Property) has been or, with
respect to threatened Litigation, may be named as a defendant or potentially
responsible party (i) for alleged noncompliance (including by any predecessor)
with any Environmental Law or (ii) relating to the release into the environment
of any Hazardous Material or oil, whether or not occurring at, on, under, or
involving a Loan Property, except for such Litigation pending or threatened that
is not reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on FBI.
(d) To the Knowledge of FBI, there is no reasonable basis for any
Litigation of a type described in subsections (b) or (c), except such as is not
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on FBI.
(e) To the Knowledge of FBI, during the period of (i) any FBI Company's
ownership or operation of any of their respective current properties, (ii) any
FBI Company's participation in the management of any Participation Facility, or,
(iii) any FBI Company's holding of a security interest in a Loan Property, there
have been no releases of Hazardous Material or oil in, on, under, or affecting
such properties, except such as are not reasonably likely to have, individually
or in the aggregate, a Material Adverse Effect on FBI. Prior to the period of
(i) any FBI Company's ownership or operation of any of their respective current
properties, (ii) any FBI Company's participation in the management of any
Participation Facility, or (iii) any FBI Company's holding of a security
interest in a Loan Property, to the Knowledge of FBI, there were no releases of
Hazardous Material or oil in, on, under, or affecting any such property,
Participation Facility, or Loan Property, except such as are not reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
FBI.
5.11 Compliance With Laws. Each FBI Company has in effect all Permits
necessary for it to own, lease, or operate its Assets and to carry on its
business as now conducted, except for those Permits the absence of which are not
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on FBI, and there has occurred no Default under any such Permit, other
than Defaults which are not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on FBI. Except as disclosed in Section 5.11
of the FBI Disclosure Memorandum, none of the FBI Companies:
(a) Is in violation of any Laws, Orders, or Permits applicable to its
business or employees conducting its business, except for violations which
are not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on FBI; and
(b) Has received any notification or communication from any agency or
department of federal, state, or local government or any Regulatory
Authority or the staff thereof (i) asserting that any FBI Company is not in
compliance with any of the material Laws or material Orders which such
governmental authority or Regulatory Authority enforces, where such
noncompliance is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on FBI, (ii) threatening to revoke any
material Permits the revocation of which is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on FBI, or
(iii) requiring any FBI Company (x) to enter into or consent to the
issuance of a cease and desist order, formal agreement, directive,
commitment, or memorandum of understanding, or (y) 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
management, or the payment of dividends.
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5.12 Labor Relations. No FBI Company is the subject of any Litigation
asserting that it or any other FBI Company has committed an unfair labor
practice (within the meaning of the National Labor Relations Act or comparable
state law) or seeking to compel it or any other FBI Company to bargain with any
labor organization as to wages or conditions of employment, nor is any FBI
Company a party to or bound by any collective bargaining agreement, contract, or
other agreement or understanding with a labor union or labor organization, nor
is there any strike or other labor dispute involving any FBI Company, pending or
threatened, or to its Knowledge, is there any activity involving any FBI
Company's employees seeking to certify a collective bargaining unit or engaging
in any other organization activity.
5.13 Employee Benefit Plans. (a) FBI has disclosed in Section 5.13 of the
FBI Disclosure Memorandum, and has delivered or made available to Regions prior
to the execution of this Agreement correct and complete 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 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, without limitation, "employee
benefit plans" as that term is defined in Section 3(3) of ERISA maintained by,
sponsored in whole or in part by, or contributed to by any FBI Company for the
benefit of employees, retirees, dependents, spouses, directors, independent
contractors, or other beneficiaries and under which employees, retirees,
dependents, spouses, directors, independent contractors, or other beneficiaries
are eligible to participate (collectively, the "FBI Benefit Plans"). Any of the
FBI Benefit Plans which is an "employee welfare benefit plan," as that term is
defined in Section 3(1) of ERISA, or an "employee pension benefit plan," as that
term is defined in Section 3(2) of ERISA, is referred to herein as a "FBI ERISA
Plan." Any FBI ERISA Plan which is also a "defined benefit plan" (as defined in
Section 414(j) of the Internal Revenue Code or Section 3(35) of ERISA) is
referred to herein as a "FBI Pension Plan." On or after September 26, 1980,
neither FBI nor any FBI Company has had an "obligation to contribute" (as
defined in ERISA Section 4212) to a "multiemployer plan" (as defined in ERISA
Sections 4001(a)(3) and 3(37)(A)). The only "employee pension benefit plan," as
defined in Section 3(2) of ERISA, ever maintained by any FBI Company that was
intended to qualify under Section 401(a) of the Internal Revenue Code, is the
First Bank of Georgia Section 401(k) Profit Sharing Plan.
(b) FBI has delivered or made available to Regions prior to the execution
of this Agreement correct and complete copies of the following documents: (i)
all trust agreements or other funding arrangements for such FBI Benefit Plans
(including insurance contracts), and all amendments thereto, (ii)with respect to
any such FBI Benefit Plans or amendments, all determination letters, rulings,
opinion letters, information letters, or advisory opinions issued by the
Internal Revenue Service, the United States Department of Labor, or the Pension
Benefit Guaranty Corporation after December 31, 1974, (iii) annual reports or
returns, audited or unaudited financial statements, actuarial valuations and
reports, and summary annual reports prepared for any FBI Benefit Plan with
respect to the most recent three plan years, and (iv) the most recent summary
plan descriptions and any material modifications thereto.
(c) Except as set forth in Section 5.13(c) of the Disclosure Memorandum,
all FBI 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 FBI. Each FBI ERISA Plan which is intended to be
qualified under Section 401(a) of the Internal Revenue Code has received a
favorable determination letter from the Internal Revenue Service, and FBI is not
aware of any circumstances which will or could result in revocation of any such
favorable determination letter. Each trust created under any FBI ERISA Plan has
been determined to be exempt from Tax under Section 501(a) of the Internal
Revenue Code and FBI is not aware of any circumstance which will or could result
in revocation of such exemption. With respect to each FBI Benefit Plan, except
as disclosed in Section 5.13(c) of the FBI Disclosure Memorandum, to the
Knowledge of FBI, no event has occurred which will or could give rise to a loss
of any intended Tax consequences under the Internal Revenue Code or to any Tax
under Section 511 of the Internal Revenue Code. There is no material pending or
threatened Litigation relating to any FBI ERISA Plan. No FBI Company has engaged
in a transaction with respect to any FBI Benefit Plan that, assuming the taxable
period of such transaction expired as of the date hereof, would subject
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any FBI Company to a tax or penalty imposed by either Section 4975 of the
Internal Revenue Code or Section 502(i) of ERISA in amounts which are reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
FBI.
(d) No FBI Pension Plan has any "unfunded current liability," as that term
is defined in Section 302(d)(8)(A) of ERISA, and the fair market value of the
assets of any such plan exceeds the plan's "benefit liabilities," as that term
is defined in Section 4001(a)(16) of ERISA, when determined under actuarial
factors that would apply if the plan terminated in accordance with all
applicable legal requirements. Since the date of the most recent actuarial
valuation, there has been (i) no material change in the financial position of
any FBI Pension Plan, (ii) no change in the actuarial assumptions with respect
to any FBI Pension Plan, and (iii) no increase in benefits under any FBI 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 FBI or materially adversely affect the funding status of any such
plan. Neither any FBI Pension Plan nor any "single-employer plan," within the
meaning of Section 4001(a)(15) of ERISA, currently or formerly maintained by any
FBI Company, or the single-employer plan of any entity which is considered one
employer with FBI 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. No FBI Company
has provided, or is required to provide, security to a FBI Pension Plan or to
any single-employer plan of an ERISA Affiliate pursuant to Section 401(a)(29) of
the Code.
(e) No liability under Title IV of ERISA has been or is expected to be
incurred by any FBI Company with respect to any defined benefit plan currently
or formerly maintained by any of them or by any ERISA Affiliate).
(f) Except as set forth in Section 5.13(f) of the Disclosure Memorandum, no
FBI Company has any obligations for retiree health and retiree life benefits
under any of the FBI Benefit Plans.
(g) Except as set forth in Section 5.13(g) of the FBI 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, without limitation, severance, unemployment compensation,
golden parachute, or otherwise) becoming due to any director or any employee of
any FBI Company from any FBI Company under any FBI Benefit Plan or otherwise,
(ii) increase any benefits otherwise payable under any FBI Benefit Plan, or
(iii) result in any acceleration of the time of payment or vesting of any such
benefit.
(h) No oral or written representation or communication with respect to any
aspect of the FBI Benefit Plans has been made to employees of any of the FBI
Companies prior to the date hereof which is not in accordance with the written
or otherwise preexisting terms and provisions of such plans. All FBI Benefit
Plan documents and annual reports or returns, audited or unaudited financial
statements, actuarial valuations, summary annual reports, and summary plan
descriptions issued with respect to the FBI Benefit Plans are correct and
complete and there have been no changes in the information set forth therein.
5.14 Material Contracts. Except as disclosed in the Section 5.14 of the
FBI Disclosure Memorandum, none of the FBI Companies, nor any of their
respective Assets, businesses, or operations, is a party to, or is bound or
affected by, or receives benefits under (i) any employment, severance,
termination, consulting, or retirement Contract providing for aggregate payments
to any Person in any calendar year in excess of $50,000, (ii) any Contract
relating to the borrowing of money by any FBI Company or the guarantee by any
FBI Company of any such obligation (other than Contracts evidencing deposit
liabilities, purchases of federal funds, fully-secured repurchase agreements,
and Federal Home Loan Bank advances, trade payables, and Contracts relating to
borrowings or guarantees made in the ordinary course of business), (iii) any
Contracts between or among FBI Companies; and (iv) any other Contract or
amendment thereto that would be required to be filed as an exhibit to a Form
10-K filed by FBI with the Securities and Exchange Commission (the "SEC") as of
the date of this Agreement if FBI were required to file a Form 10-K with the SEC
(together with all Contracts referred to in Sections 5.9 and 5.13(a) of this
Agreement, the "FBI Contracts"). None of the FBI Companies is in Default under
any FBI Contract which, individually or in the aggregate, is reasonably likely
to have a Material Adverse Effect on FBI.
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5.15 Legal Proceedings. Except to the extent specifically reserved against
in the FBI Financial Statements dated prior to the date of this Agreement, there
is no Litigation instituted or pending, or, to the Knowledge of FBI, threatened
(or unasserted but considered probable of assertion and which if asserted would
have at least a reasonable probability of an unfavorable outcome) against any
FBI Company, or against any Asset, interest, or right of any of them, that is
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on FBI, nor are there any Orders of any Regulatory Authorities, other
governmental authorities, or arbitrators outstanding against any FBI Company,
that are reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on FBI.
5.16 Statements True and Correct. No statement, certificate, instrument,
or other writing furnished or to be furnished by any FBI Company or any
Affiliate thereof to Regions pursuant to this Agreement or any other document,
agreement, or instrument referred to herein contains or will contain any untrue
statement of material fact or will omit to state a material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading. None of the information supplied or to be supplied by any
FBI Company or any Affiliate thereof for inclusion in the Registration Statement
to be filed by Regions with the SEC will, when the Registration Statement
becomes effective, be false or misleading with respect to any material fact, or
contain any untrue statement of a material fact, or omit to state any material
fact required to be stated thereunder or necessary to make the statements
therein not misleading. None of the information supplied or to be supplied by
any FBI Company or any Affiliate thereof for inclusion in the Proxy Statement to
be mailed to FBI's stockholders in connection with the Stockholders' Meeting,
and any other documents to be filed by a FBI Company or any Affiliate thereof
with the SEC or any other Regulatory Authority in connection with the
transactions contemplated hereby, will, at the respective time such documents
are filed, and with respect to the Proxy Statement, when first mailed to the
stockholders of FBI, be false or misleading with respect to any material fact,
or contain any misstatement of material fact, or omit to state any material fact
required to be stated thereunder or 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 Stockholders' Meeting, be false or misleading with respect to
any material fact, or omit to state any material fact required to be stated
thereunder or necessary to correct any material statement in any earlier
communication with respect to the solicitation of any proxy for the
Stockholders' Meeting. All documents that any FBI Company or any Affiliate
thereof is responsible for filing with any Regulatory Authority in connection
with the transactions contemplated hereby will comply as to form in all material
respects with the provisions of applicable Law.
5.17 Accounting, Tax and Regulatory Matters. No FBI Company or any
Affiliate thereof has taken any action, or agreed to take any action, or has any
Knowledge of any fact or circumstance that is reasonably likely to (i) prevent
the transactions contemplated hereby, including the Merger, from qualifying for
pooling-of-interests accounting treatment or treatment 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. To the Knowledge of FBI, there
exists no fact, circumstance, or reason why the requisite Consents referred to
in Section 9.1(b) of this Agreement cannot be received in a timely manner
without imposition of any condition of the type described in the second sentence
of such Section 9.1(b).
5.18 State Takeover Laws. Each FBI Company has taken all necessary action
to exempt the transactions contemplated by this Agreement from any applicable
"moratorium," "control share," "fair price," "business combination," or other
anti-takeover laws and regulations of the State of Georgia (collectively,
"Takeover Laws"), including Sections 14-2-1111 and 14-2-1132 of the GBCC.
5.19 Articles of Incorporation Provisions. Each FBI 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 (other than a Regions
Company) under the Articles of Incorporation, Bylaws, or other governing
instruments of any FBI Company or restrict or impair the ability of Regions to
vote, or otherwise to exercise the rights of a stockholder with respect to,
shares of any FBI Company that may be acquired or controlled by it.
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5.20 Support Agreements. Each of the directors of FBI has executed and
delivered to Regions an agreement in substantially the form of Exhibit 1 to this
Agreement.
5.21 Derivatives Contracts. Neither FBI nor any of its Subsidiaries is a
party to or has agreed to enter into an exchange-traded or over-the-counter
swap, forward, future, option, cap, floor or collar financial contract, or any
other interest rate or foreign currency protection contract not included on its
balance sheet which is a financial derivative contract (including various
combinations thereof).
ARTICLE SIX
REPRESENTATIONS AND WARRANTIES OF REGIONS
Regions hereby represents and warrants to FBI as follows:
6.1 Organization Standing and Power. Regions is a corporation duly
organized, validly existing, and in good standing under the Laws of the State of
Delaware, and has the corporate power and authority to carry on its business as
now conducted and to own, lease, and operate its Assets. Regions is duly
qualified or licensed to transact business as a foreign corporation in good
standing in the States of the United States and foreign jurisdictions where the
character of its Assets or the nature or conduct of its business requires it to
be so qualified or licensed, except for such jurisdictions in which the failure
to be so qualified or licensed is not reasonably likely to have, individually or
in the aggregate, a Material Adverse Effect on Regions.
6.2 Authority; No Breach by Agreement. (a) Regions has the corporate power
and authority necessary to execute, deliver, and perform its obligations under
this Agreement and to consummate the transactions contemplated hereby. The
execution, delivery, and performance of this Agreement and the consummation of
the transactions contemplated herein, including the Merger, have been duly and
validly authorized by all necessary corporate action in respect thereof on the
part of Regions. This Agreement represents a legal, valid, and binding
obligation of Regions, enforceable against Regions in accordance with its terms
(except in all cases as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, or similar Laws affecting
the enforcement of creditors' rights generally and except that the availability
of the equitable remedy of specific performance or injunctive relief is subject
to the discretion of the court before which any proceeding may be brought).
(b) Neither the execution and delivery of this Agreement by Regions, nor
the consummation by Regions of the transactions contemplated hereby, nor
compliance by Regions with any of the provisions hereof, will (i) conflict with
or result in a breach of any provision of Regions' Certificate of Incorporation
or Bylaws, or (ii) constitute or result in a Default under, or require any
Consent pursuant to, or result in the creation of any Lien on any Asset of any
Regions Company under, any Contract or Permit of any Regions Company, or (iii)
subject to receipt of the requisite approvals referred to in Section 9.1(b) of
this Agreement, violate any Law or Order applicable to any Regions Company or
any of their respective 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
and other than Consents, filings, or notifications which, if not obtained or
made, is not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Regions, no notice to, filing with, or Consent of,
any public body or authority is necessary for the consummation by Regions of the
Merger and the other transactions contemplated in this Agreement.
6.3 Capital Stock. The authorized capital stock of Regions consists of
120,000,000 shares of Regions Common Stock, of which 62,810,998 shares were
issued and outstanding and 260,000 shares were held as treasury shares as of
September 30, 1996. All of the issued and outstanding shares of Regions Common
Stock are, and all of the shares of Regions Common Stock to be issued in
exchange for shares of FBI Common Stock upon consummation of the Merger, when
issued in accordance with the terms of this Agreement, will be, duly and validly
issued and outstanding and fully paid and nonassessable under the DGCL. None of
the
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outstanding shares of Regions Common Stock has been, and none of the shares of
Regions Common Stock to be issued in exchange for shares of FBI Common Stock
upon consummation of the Merger will be, issued in violation of any preemptive
rights of the current or past stockholders of Regions.
6.4 SEC Filings; Financial Statements. (a) Regions has filed all forms,
reports, and documents required to be filed by Regions with the SEC since
December 31, 1992, other than registration statements on Forms S-4 and S-8
(collectively, the "Regions SEC Reports"). The Regions SEC Reports (i) at the
time filed, complied in all material respects with the applicable requirements
of the Securities Act and the Exchange Act, as the case may be, and (ii) did not
at the time they were filed (or if amended or superseded by a filing prior to
the date of this Agreement, then on the date of such filing) contain any untrue
statement of a material fact or omit to state a material fact required to be
stated in such Regions SEC Reports or necessary in order to make the statements
in such Regions SEC Reports, in light of the circumstances under which they were
made, not misleading.
(b) Each of the Regions Financial Statements (including, in each case, any
related notes) contained in the Regions SEC Reports, including any Regions SEC
Reports filed after the date of this Agreement until the Effective Time,
complied or will comply as to form in all material respects with the applicable
published rules and regulations of the SEC with respect thereto, was 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 statements, as permitted by Form 10-Q of
the SEC), and fairly presented or will fairly present the consolidated financial
position of Regions and its Subsidiaries as at the respective dates and the
consolidated results of its operations and cash flows for the periods indicated,
except that the unaudited interim financial statements were or are subject to
normal and recurring year-end adjustments which were not or are not expected to
be material in amount.
6.5 Absence of Undisclosed Liabilities. No Regions Company has any
Liabilities that are reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Regions, except Liabilities which are
accrued or reserved against in the consolidated balance sheets of Regions as of
September 30, 1996 included in the Regions Financial Statements or reflected in
the notes thereto. No Regions Company has incurred or paid any Liability since
September 30, 1996, except for such Liabilities incurred or paid in the ordinary
course of business consistent with past business practice and which are not
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on Regions.
6.6 Absence of Certain Changes or Events. Since September 30, 1996, except
as disclosed in the Regions Financial Statements filed with the SEC after such
date and prior to the date of this Agreement, there have been no events,
changes, or occurrences which have had, or are reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Regions.
6.7 Compliance With Laws. Regions is duly registered as a bank holding
company under the BHC Act. Each Regions Company has in effect all Permits
necessary for it to own, lease, or operate its Assets and to carry on its
business as now conducted, except for those Permits the absence of which are not
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on Regions, and there has occurred no Default under any such Permit,
other than Defaults which are not reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on Regions. None of the Regions
Companies:
(a) Is in violation of any Laws, Orders, or Permits applicable to its
business or employees conducting its business, except for violations which
are not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Regions; and
(b) Has received any notification or communication from any agency or
department of federal, state, or local government or any Regulatory
Authority or the staff thereof (i) asserting that any Regions Company is
not in compliance with any of the material Laws or material Orders which
such governmental authority or Regulatory Authority enforces, where such
noncompliance is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Regions, (ii) threatening to revoke
any Permits, the revocation of which are reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Regions, or
(iii) requiring any Regions Company (x) to enter into or consent
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to the issuance of a cease and desist order, formal agreement, directive,
commitment, or memorandum of understanding, or (y) 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
management, or the payment of dividends.
6.8 Legal Proceedings. Except to the extent specifically reserved against
in the Regions Financial Statements dated prior to the date of this Agreement,
there is no Litigation instituted or pending, or, to the Knowledge of Regions,
threatened (or unasserted but considered probable of assertion and which if
asserted would have at least a reasonable probability of an unfavorable outcome)
against any Regions Company, or against any Asset, interest, or right of any of
them, that is reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Regions, nor are there any Orders of any Regulatory
Authorities, other governmental authorities, or arbitrators outstanding against
any Regions Company, that are reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Regions.
6.9 Statements True and Correct. No statement, certificate, instrument, or
other writing furnished or to be furnished by any Regions Company or any
Affiliate thereof to FBI pursuant to this Agreement or any other document,
agreement, or instrument referred to herein contains or will contain any untrue
statement of material fact or will omit to state a material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading. None of the information supplied or to be supplied by any
Regions Company or any Affiliate thereof for inclusion in the Registration
Statement to be filed by Regions with the SEC, will, when the Registration
Statement becomes effective, be false or misleading with respect to any material
fact, or contain any untrue statement of a material fact, or omit to state any
material fact required to be stated thereunder or necessary to make the
statements therein not misleading. None of the information supplied or to be
supplied by any Regions Company or any Affiliate thereof for inclusion in the
Proxy Statement to be mailed to FBI's stockholders in connection with the
Stockholders' Meeting, and any other documents to be filed by any Regions
Company or any Affiliate thereof with the SEC or any other Regulatory Authority
in connection with the transactions contemplated hereby, will, at the respective
time such documents are filed, and with respect to the Proxy Statement, when
first mailed to the stockholders of FBI, be false or misleading with respect to
any material fact, or contain any misstatement of material fact, or omit to
state any material fact required to be stated thereunder or 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 Stockholders' Meeting, be
false or misleading with respect to any material fact, or omit to state any
material fact required to be stated thereunder or necessary to correct any
statement in any earlier communication with respect to the solicitation of any
proxy for the Stockholders' Meeting. All documents that any Regions Company or
any Affiliate thereof is responsible for filing with any Regulatory Authority in
connection with the transactions contemplated hereby will comply as to form in
all material respects with the provisions of applicable Law.
6.10 Accounting, Tax and Regulatory Matters. No Regions Company or any
Affiliate thereof has taken any action, or agreed to take any action, or has any
Knowledge of any fact or circumstance that is reasonably likely to (i) prevent
the transactions contemplated hereby, including the Merger, from qualifying for
pooling-of-interests accounting or treatment 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. To the Knowledge of Regions, there exists no
fact, circumstance, or reason why the requisite Consents referred to in Section
9.1(b) of this Agreement cannot be received in a timely manner without
imposition of any condition of the type described in the second sentence of such
Section 9.1(b).
ARTICLE SEVEN
CONDUCT OF BUSINESS PENDING CONSUMMATION
7.1 Covenants of Both Parties. Unless the prior written consent of the
other Party shall have been obtained, and except as otherwise expressly
contemplated herein, each Party shall and shall cause each of its
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Subsidiaries to (i) operate its business only in the usual, regular, and
ordinary course, (ii) preserve intact its business organizations and Assets and
maintain its rights and franchises, and (iii) take no action which would
materially adversely affect the ability of any Party to (a) obtain any Consents
required for the transactions contemplated hereby, or (b) perform its covenants
and agreements under this Agreement in all material respects and to consummate
the Merger; provided, that the foregoing shall not prevent any Regions Company
from discontinuing or disposing of any of its Assets or business, or from
acquiring or agreeing to acquire any other Person or any Assets thereof, if such
action is, in the judgment of Regions, desirable in the conduct of the business
of Regions and its Subsidiaries.
7.2 Covenants of FBI. Except as specifically contemplated or permitted by
this Agreement, from the date of this Agreement until the earlier of the
Effective Time or the termination of this Agreement, FBI covenants and agrees
that it will not do or agree or commit to do, or permit any of its Subsidiaries
to do or agree or commit to do, any of the following without the prior written
consent of a duly authorized officer of Regions:
(a) amend the Articles of Incorporation, Bylaws, or other governing
instruments of any FBI Company; or
(b) incur, guarantee, or otherwise become responsible for, any
additional debt obligation or other obligation for borrowed money (other
than indebtedness of a FBI Company to another FBI Company) in excess of an
aggregate of $100,000 (for the FBI Companies on a consolidated basis)
except in the ordinary course of the business of FBI Companies consistent
with past practices (which shall include, for FBI, creation of deposit
liabilities, purchases of federal funds, advances from the Federal Home
Loan Bank or the Federal Reserve Bank, and entry into repurchase agreements
fully secured by U.S. government or agency securities), or, except as
disclosed in Section 7 2(b) of the FBI Disclosure Memorandum, forgive any
such indebtedness of any Person to any FBI Company (in excess of an
aggregate of $25,000), or impose, or suffer the imposition, on any share of
stock held by any FBI Company of any Lien or permit any such Lien to exist;
or
(c) repurchase, redeem, or otherwise acquire or exchange (other than
exchanges in the ordinary course under employee benefit plans), directly or
indirectly, any shares, or any securities convertible into any shares, of
the capital stock of any FBI Company, or declare or pay any dividend or
make any other distribution in respect of any FBI Common Stock; provided
that FBI may (to the extent legally able to do so), but shall not be
obligated to, declare and pay regular annual cash dividends on the FBI
Common Stock in the amounts and with the usual and regular record and
payment dates in accordance with past practice as disclosed in Section 7
2(c) of the FBI Disclosure Memorandum; or
(d) except pursuant to the exercise of stock options outstanding as of
the date hereof and pursuant to the terms thereof in existence on the date
hereof, issue, sell, pledge, encumber, authorize the issuance of, enter
into any Contract to issue, sell, pledge, encumber, or authorize the
issuance of, or otherwise permit to become outstanding, any additional
shares of FBI Common Stock or any other capital stock of any FBI Company,
or any stock appreciation rights, or any option, warrant, conversion, or
other right to acquire any such stock, or any security convertible into any
such stock; or
(e) adjust, split, combine, or reclassify any capital stock of any FBI
Company or issue or authorize the issuance of any other securities in
respect of or in substitution for shares of FBI Common Stock or sell,
lease, mortgage, or otherwise dispose of or otherwise encumber any shares
of capital stock of any FBI Subsidiary (unless any such shares of stock are
sold or otherwise transferred to another FBI Company) or any Assets having
in the aggregate a book value in excess of $100,000 other than in the
ordinary course of business for reasonable and adequate consideration; or
(f) acquire direct or indirect control over, or invest in equity
securities of, any Person, other than in connection with (i) foreclosures
in the ordinary course of business, or (ii) acquisitions of control by FBI
in its fiduciary capacity; or
(g) grant any increase in compensation or benefits to the employees or
officers of any FBI Company except as disclosed in Section 7.2(g) of the
FBI Disclosure Memorandum or as required by Law; pay any
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bonus except pursuant to the provisions of any applicable program or plan
adopted by its Board of Directors prior to the date of this Agreement and
disclosed in Section 7.2(g) of the FBI Disclosure Memorandum; enter into or
amend any severance agreements with officers of any FBI Company except as
disclosed in Section 7.2(g) of the FBI Disclosure Memorandum, grant any
increase in fees or other increases in compensation or other benefits to
directors of any FBI Company; or
(h) except as disclosed in Section 7.2(h) of the FBI Disclosure
Memorandum, enter into or amend any employment Contract between any FBI
Company and any Person (unless such amendment is required by Law) that the
FBI 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) except as disclosed in Section 7.2(i) of the FBI Disclosure
Memorandum, adopt any new employee benefit plan or program of any FBI
Company or make any material change in or to any existing employee benefit
plans or programs of any FBI Company other than any such change that is
required by Law or that, in the opinion of counsel, is necessary or
advisable to maintain the tax qualified status of any such plan; or
(j) make any significant change in any accounting methods, principles,
or practices or systems of internal accounting controls, except as may be
necessary to conform to changes in regulatory accounting requirements or
GAAP; or
(k) commence or settle any Litigation other than in accordance with
past practice; provided that, except to the extent specifically reserved
against in the FBI Financial Statements dated prior to the date of this
Agreement, no FBI Company shall settle any Litigation involving any
Liability of any FBI Company for money damages in excess of $25,000 or
restrictions upon the operations of any FBI Company; or
(l) except in the ordinary course of business, enter into or terminate
any material Contract or make any change in any material lease or Contract,
other than renewals of leases and Contracts without material adverse
changes of terms or as disclosed pursuant to Sections 7.2(g), (h), or (i)
of the FBI Disclosure Memorandum.
7.3 Covenants of Regions. From the date of this Agreement until the
earlier of the Effective Time or the termination of this Agreement, Regions
covenants and agrees that it will not, without the prior written consent of a
duly authorized officer of FBI amend the Certificate of Incorporation or Bylaws
of Regions, in each case, in any manner which is adverse to, and discriminates
against, the holders of FBI Common Stock.
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) is reasonably likely to 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 FBI shall deliver to Regions copies of all
such reports filed by FBI promptly after the same are filed. If financial
statements are contained in any such reports filed with appropriate Regulatory
Authorities, such financial statements will fairly present the consolidated
financial position of the entity filing such statements as of the dates
indicated and the consolidated results of operations, changes in stockholders'
equity, and cash flows for the periods then ended in accordance with GAAP
(subject in the case of interim financial statements to normal recurring year-
end adjustments that are not material). As of their respective dates, such
reports filed with the SEC, will comply in all material respects with the
Securities Laws and will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. Any financial
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statements contained in any other reports to a Regulatory Authority shall be
prepared in accordance with Laws applicable to such reports.
ARTICLE EIGHT
ADDITIONAL AGREEMENTS
8.1 Registration Statement: Proxy Statement; Stockholder Approval. As soon
as reasonably practicable after the execution of this Agreement, Regions shall
file the Registration Statement with the SEC, provided FBI has provided, on a
reasonably timely basis, all information concerning FBI necessary for inclusion
in the Registration Statement, and shall use its reasonable efforts to cause the
Registration Statement to become effective under the 1933 Act as soon as
reasonably practicable after the filing thereof and take any action required to
be taken under the applicable state Blue Sky or securities Laws in connection
with the issuance of the shares of Regions Common Stock upon consummation of the
Merger. FBI shall promptly furnish all information concerning it and the holders
of its capital stock as Regions may reasonably request in connection with such
action. FBI shall call a Stockholders' Meeting, to be held within forty-five
(45) days after the Registration Statement is declared effective by the SEC, for
the purpose of voting upon approval of (i) this Agreement and (ii) such other
related matters as it deems appropriate. In connection with the Stockholders'
Meeting, (i) FBI shall mail the Proxy Statement to all of its stockholders, (ii)
the Parties shall furnish to each other all information concerning them that
they may reasonably request in connection with such Proxy Statement, (iii) the
Board of Directors of FBI shall recommend (subject to compliance with their
fiduciary duties as advised in writing by counsel to such Board) to its
stockholders the approval of this Agreement, and (iv) the Board of Directors and
officers of FBI shall use their reasonable efforts to obtain such stockholders'
approval (subject to compliance with their fiduciary duties as advised in
writing by counsel to such Board).
8.2 Nasdaq/NMS Listing. Regions shall file with the NASD a notification
for the listing on the Nasdaq/NMS relating to the proposed issuance of the
shares of Regions Common Stock to be issued to the holders of FBI Common Stock
pursuant to the Merger.
8.3 Applications. As soon as reasonably practicable after execution of
this Agreement, Regions shall prepare and file, and FBI 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. Regions shall use all reasonable
efforts to obtain the requisite Consents of all Regulatory Authorities as soon
as reasonably practicable after the filing of the appropriate applications.
8.4 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, without limitation, 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
applicable to such Party referred to in Article Nine of this Agreement. Each
Party shall use, and shall cause each of its Subsidiaries to use, its reasonable
efforts to obtain all Consents necessary or desirable for the consummation of
the transactions contemplated by this Agreement.
8.5 Investigation and Confidentiality. (a) Prior to the Effective Time,
each Party will keep the other Party advised of all material developments
relevant to its business and to consummation of the Merger and shall permit the
other Party to make or cause to be made such investigation of the business and
properties of it and its Subsidiaries and of their respective financial and
legal conditions as the other Party reasonably requests, provided that such
investigation shall be reasonably related to the transactions contemplated
hereby and, after the 30th day after execution of this Agreement, shall not
interfere unreasonably with normal operations. No investigation by a Party shall
affect the representations and warranties of the other Party.
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(b) Each Party shall, and shall cause its advisers and agents to, maintain
the confidentiality of all confidential information furnished to it by the other
Party concerning its and its Subsidiaries' businesses, operations, and financial
positions and shall not use such information for any purpose except in
furtherance of the transactions contemplated by this Agreement. If this
Agreement is terminated prior to the Effective Time, each Party shall promptly
return all documents and copies thereof, and all work papers containing
confidential information received from the other Party.
(c) FBI shall use its reasonable efforts to exercise its rights under
confidentiality agreements entered into with Persons which were considering an
acquisition transaction with FBI to preserve the confidentiality of the
information relating to FBI provided to such parties.
8.6 Press Releases. Prior to the Effective Time, FBI and Regions 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, however, that nothing in this Section
8.6 shall be deemed to prohibit any Party from making any disclosure which its
counsel advises as necessary or advisable in order to satisfy such Party's
disclosure obligations imposed by Law.
8.7 Certain Actions. Except with respect to this Agreement and the
transactions contemplated hereby, no FBI Company nor any Affiliate thereof nor
any investment banker, attorney, accountant, or other representative
(collectively, "Representatives") retained by any FBI Company shall directly or
indirectly solicit any Acquisition Proposal by any Person. Except to the extent
necessary to comply with the fiduciary duties of FBI's Board of Directors as
advised in writing by counsel to such Board of Directors, no FBI Company or any
Affiliate or Representative thereof shall furnish any non-public information
that it is not legally obligated to furnish, negotiate with respect to, or enter
into any Contract with respect to, any Acquisition Proposal, and shall direct
and use its reasonable efforts to cause all of its Representatives not to engage
in any of the foregoing, but FBI may communicate information about such an
Acquisition Proposal to its stockholders if and to the extent that it is
required to do so in order to comply with its legal obligations. FBI shall
promptly notify Regions orally and in writing in the event that it receives any
inquiry or proposal relating to any such transaction. FBI shall immediately
cease and cause to be terminated as of the date of this Agreement any existing
activities, discussions, or negotiations with any Persons conducted heretofore
with respect to any of the foregoing.
8.8 Tax Matters. The Parties agree to use their reasonable efforts to
obtain written opinions of Xxxxxx & Bird to the effect that (i) the Merger will
constitute a reorganization within the meaning of Section 368(a) of the Internal
Revenue Code, (ii) the exchange in the Merger of FBI Common Stock for Regions
Common Stock will not give rise to gain or loss to the stockholders of FBI with
respect to such exchange (except to the extent of any cash received), and (iii)
each of FBI and Regions will be a party to that reorganization within the
meaning of Section 368(b) of the Internal Revenue Code ("Tax Opinions"). In
rendering such Tax Opinions, counsel shall be entitled to rely upon
representations of officers of FBI and Regions reasonably satisfactory in form
and substance to such counsel. Each of the Parties undertakes and agrees to use
its reasonable efforts to cause the Merger, and to take no action which would
cause the Merger not, to qualify for treatment as a "reorganization" within the
meaning of Section 368(a) of the Internal Revenue Code for Federal income tax
purposes.
8.9 Agreement of Affiliates. FBI has disclosed in Section 8.9 of the FBI
Disclosure Memorandum each Person whom it reasonably believes is an "affiliate"
of FBI for purposes of Rule 145 under the 1933 Act. FBI shall use its reasonable
efforts to cause each such Person to deliver to Regions not later than 30 days
prior to the Effective Time a written agreement, substantially in the form of
Exhibit 2, providing that such Person will not sell, pledge, transfer, or
otherwise dispose of the shares of FBI Common Stock held by such Person except
as contemplated by such agreement or by this Agreement and will not sell,
pledge, transfer, or otherwise dispose of the shares of Regions Common Stock to
be received by such Person upon consummation of the Merger except in compliance
with applicable provisions of the 1933 Act and the rules and regulations
thereunder and until such time as financial results covering at least 30 days of
combined operations of Regions and FBI have been published within the meaning of
Section 201.01 of the SEC's Codification of Financial Reporting Policies. Shares
of Regions Common Stock issued to such affiliates of FBI in exchange for shares
of
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FBI Common Stock shall not be transferable until such time as financial results
covering at least 30 days of combined operations of Regions and FBI 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 8.9 (and Regions
shall be entitled to place restrictive legends upon certificates for shares of
Regions Common Stock issued to affiliates of FBI pursuant to this Agreement to
enforce the provisions of this Section 8.9). Regions shall not be required to
maintain the effectiveness of the Registration Statement under the 1933 Act for
the purposes of resale of Regions Common Stock by such affiliates.
8.10 Employee Benefits and Contracts. Following the Effective Time,
Regions shall provide generally to officers and employees of the FBI Companies,
who at or after the Effective Time become employees of a Regions Company,
employee benefits under employee benefit plans (other than stock option or other
plans involving the potential issuance of Regions Common Stock except as set
forth in this Section 8.10), on terms and conditions which when taken as a whole
are substantially similar to those currently provided by the Regions Companies
to their similarly situated officers and employees. For purposes of
participation and vesting (but not accrual of benefits) under such employee
benefit plans, (i) service under any qualified defined benefit plans of FBI
should be treated as service under Regions' qualified defined benefit plans,
(ii) service under any qualified defined contribution plans of FBI shall be
treated as service under Regions' qualified defined contribution plans, and
(iii) service under any other employee benefit plans of FBI shall be treated as
service under any similar employee benefit plans maintained by Regions. Regions
also shall cause FBI and its Subsidiaries to honor all employment, severance,
consulting, and other compensation Contracts disclosed in Section 8.10 of the
FBI Disclosure Memorandum to Regions between any FBI Company and any current or
former director, officer, or employee thereof, and all provisions for vested
benefits or other vested amounts earned or accrued through the Effective Time
under the FBI Benefit Plans.
8.11 Indemnification. (a) Subject to the conditions set forth in paragraph
(b) below, for a period of six (6) years after the Effective Time, Regions
shall, and shall cause FBI to, indemnify, defend, and hold harmless each person
entitled to indemnification from a FBI Company (each, an "Indemnified Party")
against all Liabilities arising out of actions or omissions occurring at or
prior to the Effective Time (including, without limitation, the transactions
contemplated by this Agreement) to the full extent permitted by Georgia Law and
FBI's Articles of Incorporation and Bylaws, in each case as in effect on the
date hereof, including provisions relating to advances of expenses incurred in
the defense of any Litigation. Without limiting the foregoing, in any case in
which approval by the FBI is required to effectuate any indemnification, Regions
shall cause the FBI to direct, at the election of the Indemnified Party, that
the determination of any such approval shall be made by independent counsel
mutually agreed upon between Regions and the Indemnified Party.
(b) Any Indemnified Party wishing to claim indemnification under paragraph
(a), upon learning of any such Liability or Litigation, shall promptly notify
Regions thereof. In the event of any such Litigation (whether arising before or
after the Effective Time), (i) Regions or FBI shall have the right to assume the
defense thereof and Regions 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 Regions or FBI elects not to assume such defense or counsel for the
Indemnified Parties advises that there are substantive issues which raise
conflicts of interest between Regions or FBI and the Indemnified Parties, the
Indemnified Parties may retain counsel satisfactory to them, and Regions or FBI
shall pay all reasonable fees and expenses of such counsel for the Indemnified
Parties promptly as statements therefor are received, provided, however, that
Regions shall be obligated pursuant to this paragraph (b) to pay for only one
firm of counsel for all Indemnified Parties in any jurisdiction, (ii) the
Indemnified Parties will cooperate in the defense of any such Litigation, and
(iii) Regions shall not be liable for any settlement effected without its prior
written consent; and provided further that FBI shall not have any obligation
hereunder to any Indemnified Party when and if a court of competent jurisdiction
shall determine, and such determination shall have become final, that the
indemnification of such Indemnified Party in the manner contemplated hereby is
prohibited by applicable Law.
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8.12 State Takeover Laws. Each FBI Company shall take all necessary steps
to exempt the transactions contemplated by this Agreement from, or if necessary
challenge the validity or applicability of, any applicable Takeover Laws,
including Sections 14-2-1111 and 14-2-1132 of the GBCC.
8.13 Articles of Incorporation Provisions. Each FBI Company shall take all
necessary action to ensure that the entering into of this Agreement and the
consummation of the Merger and the other transactions contemplated hereby do not
and will not result in the grant of any rights to any Person under the Articles
of Incorporation, Bylaws, or other governing instruments of any FBI Company or
restrict or impair the ability of Regions or any of its Subsidiaries to vote, or
otherwise to exercise the rights of a stockholder with respect to, shares of any
FBI Company that may be directly or indirectly acquired or controlled by it.
ARTICLE NINE
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) Stockholder Approval. The stockholders of FBI shall have approved
this Agreement and the consummation of the transactions contemplated
hereby, including the Merger, as and to the extent required by Law or by
the provisions of any governing instruments.
(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 so obtained which is necessary to consummate the
transactions as contemplated hereby shall be conditioned or restricted in a
manner which in the reasonable good faith judgment of the Board of
Directors of Regions would so materially adversely impact the economic
benefits of the transaction as contemplated by this Agreement so as to
render inadvisable the consummation of the Merger.
(c) Consents and Approvals. Each Party shall have obtained any and
all other 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. No Consent obtained
which is necessary to consummate the transactions contemplated hereby shall
be conditioned or restricted in a manner which in the reasonable judgment
of the Board of Directors of Regions would so materially adversely impact
the economic or business benefits of the transactions contemplated by this
Agreement so as to render inadvisable the consummation of the Merger.
(d) Legal Proceedings. No court or governmental or regulatory
authority of competent jurisdiction shall have enacted, issued,
promulgated, enforced, or entered any Law or Order (whether temporary,
preliminary, or permanent) or taken any other action which prohibits,
restricts, or makes illegal consummation of the transactions contemplated
by this Agreement.
(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 Regions Common Stock issuable
pursuant to the Merger shall have been received.
(f) Nasdaq/NMS Listing. The shares of Regions Common Stock issuable
pursuant to the Merger shall have been approved for listing on the
Nasdaq/NMS.
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(g) Tax Matters. Each Party shall have received a copy of the Tax
Opinions referred to in Section 8.8 of this Agreement. Each Party shall
have delivered to the other a Certificate, dated as of the date of the Tax
Opinion, signed by its duly authorized officers, to the effect that, to the
best knowledge and belief of such officers, the statement of facts and
representations made on behalf of the management of such Party, presented
to the legal counsel delivering the Tax Opinions were at the date of such
presentation, true, correct, and complete, and are on the date of such
Certificate, to the extent contemplated by the presentation, true, correct,
and complete, as though such presentation had been made on the date of such
Certificate.
9.2 Conditions to Obligations of Regions. The obligations of Regions to
perform this Agreement and consummate the Merger and the other transactions
contemplated hereby are subject to the satisfaction of the following conditions,
unless waived by Regions pursuant to Section 11 .6(a) of this Agreement:
(a) Representations and Warranties. For purposes of this Section
9.2(a), the accuracy of the representations and warranties of FBI 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 FBI set forth in Section 5.3 of this Agreement shall be true
and correct (except for inaccuracies which are de minimus in amount). The
representations and warranties of FBI set forth in Sections 5.17, 5.18, and
5.19 of this Agreement shall be true and correct in all material respects.
There shall not exist inaccuracies in the representations and warranties of
FBI set forth in this Agreement (including the representations and
warranties set forth in Sections 5.3, 5.17, 5.18, and 5.19) such that the
aggregate effect of such inaccuracies has, or is reasonably likely to have,
a Material Adverse Effect on FBI; provided that, for purposes of this
sentence only, those representations and warranties which are qualified by
references to "material" or "Material Adverse Effect" shall be deemed not
to include such qualifications.
(b) Performance of Agreements and Covenants. Each and all of the
agreements and covenants of FBI 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. FBI shall have delivered to Regions (i) a
certificate, dated as of the Effective Time and signed on its behalf by its
duly authorized officers, 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
FBI's Board of Directors and stockholders evidencing the taking of all
corporate action necessary to authorize the execution, delivery, and
performance of this Agreement, and the consummation of the transactions
contemplated hereby, all in such reasonable detail as Regions and its
counsel shall request.
(d) Claims Letters. Each of the directors and officers of FBI shall
have executed and delivered to Regions letters in substantially the form of
Exhibit 3 to this Agreement.
(e) Legal Opinion. Regions shall have received a written opinion,
dated as of the Effective Time, of counsel to FBI, in substantially the
form of Exhibit 4 to this Agreement.
(f) Affiliate Agreements. Regions shall have received from each
affiliate of FBI the affiliates agreement referred to in Section 8.9 of
this Agreement.
(g) Pooling Letter. Regions shall have received a letter from Ernst &
Young, LLP, dated as of the Effective Time, to the effect that the Merger
will qualify for pooling of interests accounting treatment under Accounting
Principles Board Opinion No. 16 if closed and consummated in accordance
with this Agreement.
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9.3 Conditions to Obligations of FBI. The obligations of FBI 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 FBI pursuant to Section 11.6(b) of this Agreement:
(a) Representations and Warranties. For purposes of this Section
9.3(a), the accuracy of the representations and warranties of Regions set
forth in this Agreement shall be assessed as of the date of this Agreement
and as of the Effective Time with the same effect as though all such
representations and warranties had been made on and as of the Effective
Time (provided that representations and warranties which are confined to a
specified date shall speak only as of such date). The representations and
warranties of Regions set forth in Section 6.3 of this Agreement shall be
true and correct (except for inaccuracies which are de minimus in amount).
The representations and warranties of Regions set forth in Section 6.10 of
this Agreement shall be true and correct in all material respects. There
shall not exist inaccuracies in the representations and warranties of
Regions set forth in this Agreement (including the representations and
warranties set forth in Sections 6.3 and 6.10) such that the aggregate
effect of such inaccuracies has, or is reasonably likely to have, a
Material Adverse Effect on Regions; provided that, for purposes of this
sentence only, those representations and warranties which are qualified by
references to "material" or "Material Adverse Effect" shall be deemed not
to include such qualifications.
(b) Performance of Agreements and Covenants. Each and all of the
agreements and covenants of Regions to be performed and complied with
pursuant to this Agreement and the other agreements contemplated hereby
prior to the Effective Time shall have been duly performed and complied
with in all material respects.
(c) Certificates. Regions shall have delivered to FBI (i) a
certificate, dated as of the Effective Time and signed on its behalf by its
duly authorized officers, to the effect that, to the best knowledge of such
officers, after due inquiry, 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 Regions' Board of Directors
and stockholders evidencing the taking of all corporate action necessary to
authorize the execution, delivery, and performance of this Agreement, as
appropriate, and the consummation of the transactions contemplated hereby,
all in such reasonable detail as FBI and its counsel shall request.
(d) Legal Opinion. FBI shall have received a written opinion, dated
as of the Effective Time, of counsel to Regions, in substantially the form
of Exhibit 5 to this Agreement.
ARTICLE TEN
TERMINATION
10.1 Termination. Notwithstanding any other provision of this Agreement,
and notwithstanding the approval of this Agreement by the stockholders of FBI,
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 Regions and the
Board of Directors of FBI, 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 FBI and Section 9.3(a) in
the case of Regions or in material breach of any covenant or other
agreement contained in this Agreement) in the event of an inaccuracy of any
representation or warranty of the other Party contained in this Agreement
which cannot be or has not been cured within thirty (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 FBI and Section 9.3(a) of this
Agreement in the case of Regions; 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 FBI and Section 9.3(a) in
the case of Regions or
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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 thirty (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
stockholders of FBI fail to vote their approval of this Agreement and the
transactions contemplated hereby as required by the Laws of the State of
Georgia at the FBI Stockholders' Meeting where the transactions were
presented to such stockholders for approval and voted upon; or
(e) By the Board of Directors of FBI or by the Board of Directors of
Regions in the event that the Merger shall not have been consummated by
September 30, 1997, in each case only if the failure to consummate the
transactions contemplated hereby on or before such date is not caused by
any breach of this Agreement by the Party electing to terminate pursuant to
this Section 10.1(e); or
(f) By the Board of Directors of either Party (provided that the
terminating Party is not then in breach of any representation or warranty
contained in this Agreement under the applicable standard set forth in
Section 9.2(a) of this Agreement in the case of FBI and Section 9.3(a) in
the case of Regions or in material breach of any covenant or other
agreement contained in this Agreement) in the event that any of the
conditions precedent to the obligations of such Party to consummate the
Merger (other than as contemplated by Section 10.1(d) of this Agreement)
cannot be satisfied or fulfilled by the date specified in Section 10.1(e)
of this Agreement as the date after which such Party may terminate this
Agreement; or
(g) By the Board of Directors of Regions, at any time prior to the
30th day after execution of this Agreement without any Liability in the
event that the review of the Assets, business, financial condition, results
of operations, and prospects of FBI undertaken by Regions during such time
period or any of the disclosures contained in the FBI Disclosure Memorandum
causes the Board of Directors of Regions to determine, in its reasonable
good faith judgment, that a fact or circumstance exists or is likely to
exist or result which materially and adversely impacts one or more of the
economic benefits to Regions of the transactions contemplated by this
Agreement so as to render inadvisable the consummation of the Merger; or
(h) By the Board of Directors of FBI, if it determines by a vote of a
majority of the members of its entire Board, at any time during the ten-day
period commencing two days after the Determination Date, if both of the
following conditions are satisfied:
(1) the Average Closing Price of shares of Regions Common Stock
shall be less than $45.685; and
(2) (i) the quotient obtained by dividing the Average Closing Price
by $53.747 (such number being referred to herein as the "Regions Ratio")
shall be less than (ii) the quotient obtained by dividing the Index
Price on the Determination Date by the Index Price on the Starting Date
and subtracting 0.20 from the quotient in this clause (2)(ii) (such
number being referred to herein as the "Index Ratio");
subject, however, to the following three sentences. If FBI refuses to
consummate the Merger pursuant to this Section 10.1(h), it shall give
prompt written notice thereof to Regions; provided, that such notice of
election to terminate may be withdrawn at any time within the
aforementioned ten-day period. During the five-day period commencing with
its receipt of such notice, Regions shall have the option to elect to
increase the Exchange Ratio to equal the lesser of (i) the quotient
obtained by dividing (1) the product of $45.685 and the Exchange Ratio (as
then in effect) by (2) the Average Closing Price, and (ii) the quotient
obtained by dividing (1) the product of the Index Ratio and the Exchange
Ratio (as then in effect) by (2) the Regions Ratio. If Regions makes an
election contemplated by the preceding sentence,
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within such five-day period, it shall give prompt written notice to FBI of
such election and the revised Exchange Ratio, whereupon no termination
shall have occurred pursuant to this Section 10.1(h) and this Agreement
shall remain in effect in accordance with its terms (except as the Exchange
Ratio shall have been so modified), and any references in this Agreement to
"Exchange Ratio" shall thereafter be deemed to refer to the Exchange Ratio
as adjusted pursuant to this Section 10.1(h).
For purposes of this Section 10.1(h), the following terms shall have the
meanings indicated:
"Average Closing Price" shall mean the average of the daily last sales
prices of Regions Common Stock as reported on the Nasdaq NMS (as reported
by The Wall Street Journal or, if not reported thereby, another
authoritative source as chosen by Regions) for the ten consecutive full
trading days in which such shares are traded on the Nasdaq NMS ending at
the close of trading on the Determination Date.
"Determination Date" shall mean the date of the FBI Stockholders'
Meeting.
"Index Group" shall mean the 20 bank holding companies listed below,
the common stocks of all of which shall be publicly traded and as to which
there shall not have been, since the Starting Date and before the
Determination Date, any public announcement of a proposal for such company
to be acquired or for such company to acquire another company or companies
in transactions with a value exceeding 25% of the acquiror's market
capitalization. In the event that any such company or companies are removed
from the Index Group, the weights (which shall be determined based upon the
number of outstanding shares of common stock) shall be redistributed
proportionately for purposes of determining the Index Price. The 20 bank
holding companies and the weights attributed to them are as follows:
BANK HOLDING COMPANIES WEIGHTING
---------------------- ---------
AmSouth Bancorporation...................................... 4.73%
Xxxxxxx Xxxxx, Inc.......................................... 7.80
Central Fidelity Banks, Inc................................. 3.23
Compass Bancshares, Inc..................................... 3.09
Crestar Financial Corporation............................... 3.05
Deposit Guaranty Corporation................................ 1.52
First American Corporation.................................. 2.06
First Commerce Corporation.................................. 2.35
First Maryland Bancorp...................................... 1.37
First Tennessee National Corporation........................ 2.72
First Union Corporation..................................... 13.91
First Xxxxxxxx Xxxxx, Inc................................... 2.75
Hibernia Corporation........................................ 9.65
Mercantile Bankshares Corporation........................... 3.84
National Commerce Bancorporation............................ 2.00
SouthTrust Corporation...................................... 6.75
SunTrust Banks, Inc......................................... 9.24
Trustmark Corporation....................................... 2.83
Union Planters Corporation.................................. 3.31
Wachovia Corporation........................................ 13.80
------
TOTAL....................................................... 100.00%
"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 December 13, 1996.
If any company belonging to the Index Group or Regions declares or
effects a stock dividend, reclassification, recapitalization, split-up,
combination, exchange of shares, or similar transaction between
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the Starting Date and the Determination Date, the prices for the common
stock of such company or Regions shall be appropriately adjusted for the
purposes of applying this Section 10.1(h).
10.2 Effect of Termination. In the event of the termination of this
Agreement pursuant to Section 10.1 of this Agreement, this Agreement shall
become void and have no effect, except that (i) the provisions of this Section
10.2 and Article Eleven and Section 8.5(b) of this Agreement shall survive any
such termination, and (ii) a termination pursuant to Sections 10.1(b), 10.1(c),
or 10.1(f) of this Agreement shall not relieve the breaching Party from
Liability for an uncured willful breach of a representation, warranty, covenant,
or agreement giving rise to such termination. Each of the Support Agreements
shall be governed by its own 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 this Section 10.3 and
Articles Two, Three, Four, and Eleven and Sections 8.9, and 8.11 of this
Agreement.
ARTICLE ELEVEN
MISCELLANEOUS
11.1 Definitions. Except as otherwise provided herein, the capitalized
terms set forth below (in their singular and plural forms as applicable) shall
have the following meanings:
"Acquisition Proposal" with respect to a Party shall mean any tender
offer or exchange offer or any proposal for a merger, acquisition of all of
the stock or assets of, or other business combination involving such Party
or any of its Subsidiaries or the acquisition of a substantial equity
interest in, or a substantial portion of the assets of, such Party or any
of its Subsidiaries.
"Affiliate" of a Person shall mean (i) any other Person directly, or
indirectly through one or more intermediaries, controlling, controlled by,
or under common control with such Person, (ii) any officer, director,
partner, employer, or direct or indirect beneficial owner of any ten
percent (10%) or greater equity or voting interest of such Person, or (iii)
any other Person for which a Person described in clause (ii) acts in any
such capacity.
"Agreement" shall mean this Agreement and Plan of Merger, including
each of the Support Agreements and the other Exhibits delivered pursuant
hereto and incorporated herein by reference.
"Assets" of a Person shall mean all of the assets, properties,
businesses, and rights of such Person of every kind, nature, character, and
description, whether real, personal, or mixed, tangible or intangible,
accrued or contingent, or otherwise relating to or utilized in such
Person's business, directly or indirectly, in whole or in part, whether or
not carried on the books and records of such Person, and whether or not
owned in the name of such Person or any Affiliate of such Person and
wherever located.
"BHC Act" shall mean the federal Bank Holding Company Act of 1956, as
amended.
"Business Combination" shall mean an acquisition of, merger or
combination with, share exchange involving any class of voting stock of,
sale of more than fifty percent (50%) of the consolidated assets by, or
other business combination involving, or tender offer for or sale or
issuance of any equity securities involving an acquisition by a third-party
of more than fifty percent (50%) of the voting stock of, FBI, other than
the formation of a newly organized holding company for FBI in which the
shares of FBI Common Stock are exchanged for shares of the holding company
on a basis that does not cause the respective beneficial interests of each
stockholder to change or transactions with a Regions Company.
"Closing" shall mean the closing of the transactions contemplated
hereby, as described in Section 1.2 of this Agreement.
"Consent" shall mean any consent, approval, authorization, clearance,
exemption, waiver, or similar affirmation by any Person pursuant to any
Contract, Law, Order, or Permit.
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"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.
"DGCL" shall mean the Delaware General Corporation Law.
"Effective Time" shall mean the date and time at which the Merger
becomes effective as defined in Section 1.3 of this Agreement.
"Environmental Laws" shall mean all Laws which are administered,
interpreted, or enforced by the United States Environmental Protection
Agency and state and local agencies with jurisdiction over pollution or
protection of the environment.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"ERISA Plan" shall have the meaning provided in Section 5.13 of this
Agreement.
"Exchange Agent" shall have the meaning provided in Section 4.1 of
this Agreement.
"Exchange Ratio" shall have the meaning provided in Section 3.1(c) of
this Agreement.
"Exhibits" 1 through 5, inclusive, shall mean the Exhibits so marked,
copies of which are attached to this Agreement. Such Exhibits are hereby
incorporated by reference herein and made a part hereof, and may be
referred to in this Agreement and any other related instrument or document
without being attached hereto.
"FBI Benefit Plans" shall have the meaning set forth in Section 5.13
of this Agreement.
"FBI Common Stock" shall mean the $1.00 par value common stock of FBI.
"FBI Companies" shall mean, collectively, FBI and all FBI
Subsidiaries.
"FBI Disclosure Memorandum" shall mean the written information
entitled "FBI Disclosure Memorandum" delivered by the 14th day following
execution of this Agreement to Regions 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.
"FBI Financial Statements" shall mean (i)the consolidated balance
sheets (including related notes and schedules, if any) of FBI as of
September 30, 1996, and as of December 31, 1995 and 1994, and the related
statements of income, changes in stockholders' equity, and cash flows
(including related notes and schedules, if any) for the nine months ended
September 30, 1996, and for each of the three fiscal years ended December
31, 1995, 1994, and 1993, included in the FBI Disclosure Memorandum, and
(ii) the consolidated balance sheets of FBI (including related notes and
schedules, if any) and related statements of income, changes in
stockholders' equity, and cash flows (including related notes and
schedules, if any) with respect to periods ended subsequent to September
30, 1996.
"FBI Subsidiaries" shall mean the Subsidiaries of FBI, which shall
include the FBI Subsidiaries described in Section 5.4 of this Agreement and
any corporation, bank, savings association, or other organization acquired
as a Subsidiary of FBI in the future and owned by FBI at the Effective
Time.
"FDIC" shall mean the Federal Deposit Insurance Corporation.
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"GAAP" shall mean generally accepted accounting principles,
consistently applied during the periods involved.
"GBCC" shall mean the Georgia Business Corporation Code.
"Hazardous Material" shall mean any pollutant, contaminant, or
hazardous substance within the meaning of the Comprehensive Environmental
Response, Compensation, and Liability Act, 42 U.S.C. sec. 9601 et seq., or
any similar federal, state, or local Law.
"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 shall mean the knowledge
after due inquiry of the chairman, president, chief financial officer,
chief accounting officer, chief credit officer, general counsel, any
assistant or deputy general counsel, or any senior or executive vice
president of such Person.
"Law" shall mean any code, law, ordinance, regulation, reporting, or
licensing requirement, rule, or statute applicable to a Person or its
Assets, Liabilities, or business, including, without limitation, those
promulgated, interpreted, or enforced by any of the Regulatory Authorities.
"Liability" shall mean any direct or indirect, primary or secondary,
liability, indebtedness, obligation, penalty, cost, or expense (including,
without limitation, costs of investigation, collection, and defense),
claim, deficiency, guaranty, or endorsement of or by any Person (other than
endorsements of notes, bills, checks, and drafts presented for collection
or deposit in the ordinary course of business) of any type, whether
accrued, absolute, or contingent, liquidated or unliquidated, matured or
unmatured, or otherwise.
"Lien" shall mean any conditional sale agreement, default of title,
easement, encroachment, encumbrance, hypothecation, infringement, lien,
mortgage, pledge, reservation, restriction, security interest, title
retention, or other security arrangement, or any adverse right or interest,
charge, or claim of any nature whatsoever of, on, or with respect to any
property or property interest, other than (i) Liens for current property
Taxes not yet due and payable, (ii) for depository institutions, pledges to
secure deposits and other Liens incurred in the ordinary course of the
banking business, and (iii) Liens which are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on a Party.
"Litigation" shall mean any action, arbitration, cause of action,
claim, complaint, criminal prosecution, demand letter, governmental or
other examination or investigation, hearing, inquiry, administrative or
other proceeding, or notice (written or oral) by any Person alleging
potential Liability, but shall not include regular, periodic examinations
of depository institutions and their Affiliates by Regulatory Authorities.
"Loan 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.
"Material" for purposes of this Agreement shall be determined in light
of the facts and circumstances of the matter in question; provided that any
specific monetary amount stated in this Agreement shall determine
materiality in that instance.
"Material Adverse Effect" on a Party shall mean an event, change, or
occurrence which, individually or together with any other event, change, or
occurrence, has a material adverse impact on (i) the financial position,
business, or results of operations of such Party and its Subsidiaries,
taken as a whole, or (ii) the ability of such Party to perform its
obligations under this Agreement or to consummate the Merger or the other
transactions contemplated by this Agreement, provided that "material
adverse effect" shall not be deemed to include the impact of (a) changes in
banking and similar Laws of general applicability or interpretations
thereof by courts or governmental authorities, (b) changes in GAAP or
regulatory accounting principles generally applicable to banks and their
holding companies, (c) actions and omissions of a Party (or any of its
Subsidiaries) taken with the prior informed consent of the other Party
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in contemplation of the transactions contemplated hereby, or (d) the Merger
and compliance with the provisions of this Agreement on the operating
performance of the Parties.
"MERGER" shall mean the merger of FBI with and into Regions referred
to in Section 1.1 of this Agreement.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"NASDAQ/NMS" shall mean the National Market System of the National
Association of Securities Dealers, Inc. Automated Quotations System.
"1933 ACT" shall mean the Securities Act of 1933, as amended.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as amended.
"ORDER" shall mean any administrative decision or award, decree,
injunction, judgment, order, quasijudicial decision or award, ruling, or
writ of any federal, state, local, or foreign or other court, arbitrator,
mediator, tribunal, administrative agency, or Regulatory Authority.
"PARTICIPATION FACILITY" shall mean any facility in which the Party in
question or any of its Subsidiaries participates in the management and,
where required by the context, includes the owner or operator or such
property, but only with respect to such property.
"PARTY" shall mean either FBI or Regions and "Parties" shall mean both
FBI and Regions.
"PERMIT" shall mean any federal, state, local, and foreign
governmental approval, authorization, certificate, easement, filing,
franchise, license, notice, permit, or right to which any Person is a party
or that is or may be binding upon or inure to the benefit of any Person or
its securities, Assets, or business.
"PERSON" shall mean a natural person or any legal, commercial, or
governmental entity, such as, but not limited to, a corporation, general
partnership, joint venture, limited partnership, limited liability company,
trust, business association, group acting in concert, or any person acting
in a representative capacity.
"PROXY STATEMENT" shall mean the proxy statement used by FBI to
solicit the approval of its stockholders of the transactions contemplated
by this Agreement and shall include the prospectus of Regions relating to
the shares of Regions Common Stock to be issued to the stockholders of FBI.
"REGIONS COMMON STOCK" shall mean the $.625 par value common stock of
Regions.
"REGIONS COMPANIES" shall mean, collectively, Regions and all Regions
Subsidiaries.
"REGIONS DISCLOSURE MEMORANDUM" shall mean the written information
entitled "Regions Financial Corporation Disclosure Memorandum" delivered
prior to the date of this Agreement to FBI describing in reasonable detail
the matters contained therein and, with respect to each disclosure made
therein, specifically referencing each Section of this Agreement under
which such disclosure is being made. Information disclosed with respect to
one Section shall not be deemed to be disclosed for purposes of any other
Section not specifically referenced with respect thereto.
"REGIONS FINANCIAL STATEMENTS" shall mean (i) the consolidated
statements of condition (including related notes and schedules, if any) of
Regions as of September 30, 1996, and the restated consolidated statements
of condition (including related notes and schedules, if any) of Regions as
of December 31, 1995 and 1994, the related statements of income, changes in
stockholders' equity, and cash flows (including related notes and
schedules, if any) for the nine months ended September 30, 1996 and the
related restated statements of income, changes in stockholders' equity, and
cash flows (including related notes and schedules, if any) for each of the
three years ended December 31, 1995, 1994, and 1993, as filed by Regions in
SEC Documents and reflecting the acquisition of First National Bancorp
accounted for as a pooling of interests and (ii) the consolidated
statements of condition of Regions (including related notes and schedules,
if any) and related statements of income, changes in stockholders' equity,
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and cash flows (including related notes and schedules, if any) included in
SEC Documents filed with respect to periods ended subsequent to September
30, 1996.
"Regions Subsidiaries" shall mean the Subsidiaries of Regions.
"Registration Statement" shall mean the Registration Statement on Form
S-4, or other appropriate form, filed with the SEC by Regions under the
1933 Act in connection with the transactions contemplated by this
Agreement.
"Regulatory Authorities" shall mean, collectively, the Federal Trade
Commission, the United States Department of Justice, the Board of the
Governors of the Federal Reserve System, the Office of Thrift Supervision,
the Office of the Comptroller of the Currency, the FDIC, all state
regulatory agencies having jurisdiction over the Parties and their
respective Subsidiaries, the NASD, and the SEC.
"SEC" shall mean the United States Securities and Exchange Commission.
"SEC Documents" shall mean all reports and registration statements
filed, or required to be filed, by a Party or any of its Subsidiaries with
any Regulatory Authority pursuant to the Securities Laws.
"Securities Laws" shall mean the 1933 Act, the 1934 Act, the
Investment Company Act of 1940, as amended, the Investment Advisors Act of
1940, as amended, the Trust Indenture Act of 1939, as amended, and the
rules and regulations of any Regulatory Authority promulgated thereunder.
"Stockholders' Meeting" shall mean the meeting of the stockholders of
FBI to be held pursuant to Section 8.1 of this Agreement, including any
adjournment or adjournments thereof.
"Subsidiary" or collectively "Subsidiaries" shall mean all those
corporations, banks, associations, or other entities of which the entity in
question owns or controls fifty percent (50%) or more of the outstanding
equity securities either directly or through an unbroken chain of entities
as to each of which fifty percent (50%) or more of the outstanding equity
securities is owned directly or indirectly by its parent; provided,
however, there shall not be included any such entity acquired through
foreclosure or any such entity the equity securities of which are owned or
controlled in a fiduciary capacity.
"Support Agreements" shall mean the various Support Agreements, each
in substantially the form of Exhibit 1 to this Agreement.
"Surviving Corporation" shall mean Regions as the surviving
corporation resulting from the Merger.
"Tax" or "Taxes" shall mean any federal, state, county, local or
foreign income, profits, franchise, gross receipts, payroll, sales,
employment, use, property, withholding, excise, occupancy, and other taxes,
assessments, charges, fares, or impositions, of any nature whatsoever,
including interest, penalties, and additions imposed thereon or with
respect thereto.
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 Regions 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.
(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. 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 except for the fees payable by FBI to Xxxxxxx & Co. and Xxxxx, Xxxxx
Capital Partners, Inc. In the event of a claim by any other broker or finder
based upon
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his or its representing or being retained by or allegedly representing or being
retained by FBI or Regions, each of FBI and Regions, as the case may be, agrees
to indemnify and hold the other Party harmless of and from any Liability in
respect of any such claim.
11.4 Entire Agreement. Except as otherwise expressly provided herein, this
Agreement (including the documents and instruments referred to herein)
constitutes the entire agreement between the Parties with respect to the
transactions contemplated hereunder and supersedes all prior arrangements or
understandings with respect thereto, written or oral. Nothing in this Agreement,
expressed or implied, is intended to, or shall, confer upon any Person, other
than the Parties or their respective successors, any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, other than as
provided in Sections 8.9 and 8.11 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; provided, however, that after
any such approval by the holders of FBI Common Stock, there shall be made no
amendment decreasing the consideration to be received by FBI stockholders
without the further approval of such stockholders.
11.6 Waivers. (a) Prior to or at the Effective Time, Regions, acting
through its Board of Directors, chief executive officer, vice chairman, or other
authorized officer, shall have the right to waive any Default in the performance
of any term of this Agreement by FBI, to waive or extend the time for the
compliance or fulfillment by FBI of any and all of its obligations under this
Agreement, and to waive any or all of the conditions precedent to the
obligations of Regions under this Agreement, except any condition which, if not
satisfied, would result in the violation of any Law. No such waiver shall be
effective unless in writing signed by a duly authorized officer of Regions.
(b) Prior to or at the Effective Time, FBI, 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
Regions, to waive or extend the time for the compliance or fulfillment by
Regions of any and all of their obligations under this Agreement, and to waive
any or all of the conditions precedent to the obligations of FBI 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 FBI.
11.7 Assignment. Except as expressly contemplated hereby, neither this
Agreement nor any of the rights, interests, or obligations hereunder shall be
assigned by any Party hereto (whether by operation of Law or otherwise) without
the prior written consent of the other Party. Subject to the preceding sentence,
this Agreement will be binding upon, inure to the benefit of, and be enforceable
by, the Parties and their respective successors and assigns.
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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 prepaid, or by
courier or overnight carrier, to the persons at the addresses set forth below
(or at such other address as may be provided hereunder), and shall be deemed to
have been delivered as of the date so received:
FBI: First Bankshares, Inc.
0000 Xxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Telecopy Number: (000) 000-0000
Attention: R. Xxxxxxx Xxxxxx
President and Chief Executive Officer
Copy to Counsel: Powell, Goldstein, Xxxxxx & Xxxxxx
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Telecopy Number: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx XX
Regions: Regions Financial Corporation
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Telecopy Number: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
Vice Chairman and Executive
Financial Officer
Copy to Counsel: Regions Financial Corporation
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Telecopy Number: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Xx.
General Counsel and Corporate Secretary
11.9 Governing Law. Except to the extent the laws of the State of Georgia
apply to the Merger, this Agreement shall be governed by and construed in
accordance with the Laws of the State of Delaware, without regard to any
applicable conflicts of Laws.
11.10 Counterparts. This Agreement may be executed in one 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 Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
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IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be
executed on its behalf and its corporate seal to be hereunto affixed and
attested by officers thereunto as of the day and year first above written.
ATTEST: FIRST BANKSHARES, INC.
By: /s/ Xxxxx Xxxxxx By: /s/ R. Xxxxxxx Xxxxxx
----------------------------------------------------- -----------------------------------------------------
Xxxxx Xxxxxx R. Xxxxxxx Xxxxxx
Corporate Secretary President and Chief Executive Officer
[CORPORATE SEAL]
ATTEST: REGIONS FINANCIAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx Xx. By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------------- -----------------------------------------------------
Xxxxxx X. Xxxxxxxx, Xx. Xxxxxxx X. Xxxxxx
Corporate Secretary Regional President
[CORPORATE SEAL]
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EXHIBIT 1
SUPPORT AGREEMENT
THIS SUPPORT AGREEMENT ("Agreement") is made and entered into as of the
day of , 1996, by and between the undersigned, ,
a resident of , Georgia, and Regions Financial Corporation, a
corporation organized and existing under the laws of the State of Delaware
("Regions").
Regions and First Bankshares, Inc., a corporation organized and existing
under the laws of the State of Georgia ("FBI"), have entered into an Agreement
and Plan of Merger, dated as of December , 1996 (the "Merger Agreement"). The
Merger Agreement generally provides for the merger of FBI into Regions (the
"Merger") and the conversion of the issued and outstanding shares of the
$ par value common stock of FBI ("FBI Common Stock") into shares of the
$.625 par value common stock of Regions. The Merger Agreement is subject to the
affirmative vote of the stockholders of FBI, the receipt of certain regulatory
approvals, and the satisfaction of other conditions.
The undersigned is a member of the Board of Directors of FBI and is the
owner of shares of FBI common stock and has rights by option or
otherwise to acquire additional shares of FBI Common Stock
(collectively, the "Shares"). In order to induce Regions to enter into the
Merger Agreement, the undersigned is entering into this Agreement with Regions
to set forth certain terms and conditions governing the actions to be taken by
the undersigned solely in his capacity as a stockholder of FBI with respect to
the Shares until consummation of the Merger.
NOW, THEREFORE, in consideration of the transactions contemplated by the
Merger Agreement and the mutual promises and covenants contained herein, the
parties agree as follows:
1. Without the prior written consent of Regions, which consent shall not be
unreasonably withheld, the undersigned shall not transfer, sell, assign, convey,
or encumber any of the Shares during the term of this Agreement except for
transfers (i) by operation of law, by will, or pursuant to the laws of descent
and distribution, (ii) in which the transferee shall agree in writing to be
bound by the provisions of paragraphs 1, 2, and 3 of this Agreement as fully as
the undersigned, or (iii) to Regions pursuant to the terms of the Merger
Agreement. Without limiting the generality of the foregoing, the undersigned
shall not grant to any party any option or right to purchase the Shares or any
interest therein. Further, except with respect to the Merger, the undersigned
shall not during the term of this Agreement approve or ratify any agreement or
contract pursuant to which the Shares would be transferred to any other party as
a result of a consolidation, merger, share exchange, or acquisition.
2. The undersigned intends to, and will, vote (or cause to be voted) all of
the Shares over which the undersigned has voting authority (other than in a
fiduciary capacity) in favor of the Merger Agreement and the Merger at any
meeting of stockholders of FBI called to vote on the Merger Agreement or the
Merger or the adjournment thereof or in any other circumstance upon which a
vote, consent, or other approval with respect to the Merger Agreement or the
Merger is sought. Further, the undersigned intends to, and will, surrender the
certificate or certificates representing the Shares over which the undersigned
has dispositive authority to Regions upon consummation of the Merger as
described in the Merger Agreement and hereby waives any rights of appraisal, or
rights to dissent from the Merger, that the undersigned may have.
3. Except as otherwise provided in this Agreement, at any meeting of
stockholders of FBI or at any adjournment thereof or any other circumstances
upon which their vote, consent, or other approval is sought, the undersigned
will vote (or cause to be voted) all of the Shares over which the undersigned
has voting authority (other than in a fiduciary capacity) against (i) any merger
agreement, share exchange, or merger (other than the Merger Agreement and the
Merger), consolidation, combination, sale of substantial assets, merger,
recapitalization, dissolution, liquidation, or winding-up of or by FBI or (ii)
any amendment of FBI's Articles of Incorporation or Bylaws or other proposal or
transaction involving FBI or any of its subsidiaries, which amendment or other
proposal or transaction would in any manner impede, frustrate, prevent, or
nullify the Merger, the Merger Agreement, or any of the other transactions
contemplated thereby.
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4. The undersigned covenants and agrees with Regions that for a period of
two years after the effective time of the Merger, the undersigned shall not,
without the prior written consent of Regions, directly or indirectly serve as a
consultant to, serve as a management official of, or be or become a major
stockholder of any financial institution having an office in any county in which
FBI maintains an office as of the date of this Agreement. It is expressly
understood that the covenants contained in this paragraph 4 do not apply to (i)
"management official" positions which the undersigned holds with financial
institutions other than FBI as of the date of this Agreement, (ii) securities
holdings which cause the undersigned to be deemed a major stockholder of a
financial institution other than FBI as of the date of this Agreement, or (iii)
advisory relationships with a financial institution which the undersigned has as
of the date of this Agreement or may have after the date hereof solely in the
capacity as legal counsel, accountants or investment advisor. For the purposes
of the covenants contained in this paragraph 4, the following terms shall have
the following respective meanings:
(a) The term "management official" shall refer to service of any type
which gives the undersigned the authority to participate, directly or
indirectly, in policy-making functions of the financial institution. This
includes, but is not limited to, service as an organizer, officer,
director, or advisory director of the financial institution. It is
expressly understood that the undersigned may be deemed a management
official of the financial institution whether or not the undersigned holds
any official, elected, or appointed position with such financial
institution.
(b) The term "financial institution" shall refer to any bank, bank
holding company, savings and loan association, savings and loan holding
company, banking-related company, or any other similar financial
institution which engages in the business of accepting deposits or making
loans or which owns or controls a company which engages in the business of
accepting deposits or making loans. It is expressly understood that the
term financial institution shall include any financial institution as
defined herein that after the date of this Agreement makes application to
an appropriate federal or state regulatory authority for approval to
organize.
(c) The term "major stockholder" shall refer to the beneficial
ownership of 5% or more of any class of voting securities of such company
or the ownership of 5% or more of the total equity interest in such
company, however denominated.
The provisions of this paragraph 4 shall be of no further force and effect
if the undersigned is not offered employment as a director or advisory or
honorary director of Regions or any of its subsidiaries at the effective time of
the Merger or, if the undersigned is so employed, the undersigned's employment
is terminated by Regions after the effective time of the Merger.
5. The undersigned acknowledges and agrees that Regions could not be made
whole by monetary damages in the event of any default by the undersigned of the
terms and conditions set forth in this Agreement. It is accordingly agreed and
understood that Regions, in addition to any other remedy which it may have at
law or in equity, shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and specifically to enforce the terms and provisions
hereof in any action instituted in any court of the United States or in any
state having appropriate jurisdiction.
6. Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction. If any provision of this Agreement is
so broad as to be unenforceable, the provision shall be interpreted to be only
so broad as is enforceable.
7. Except with respect to the covenants contained in paragraph 4 of this
Agreement, which shall be governed by the terms set forth therein and shall be
effective only upon consummation of the Merger, the covenants and obligations
set forth in this Agreement shall expire and be of no further force and effect
on the earlier of: (i) September 30, 1997 or such date to which the Merger
Agreement is extended; or (ii) the date on which the Merger Agreement is
terminated under Section 10.1 thereof.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the undersigned as of the day and year first above written.
As to the undersigned,
signed in the presence of:
---------------------------------------------
--------------------------------------
Name:
--------------------------------------
(Please print or type)
REGIONS FINANCIAL CORPORATION
By:
--------------------------------------
Xxxxxx X. Xxxxxxxx, Xx.
General Counsel and Corporate
Secretary
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EXHIBIT 2
AFFILIATE AGREEMENT
Regions Financial Corporation
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Xx.
General Counsel and Corporate Secretary
Ladies and Gentlemen:
The undersigned is a stockholder of First Bankshares, Inc. ("FBI"), a
corporation organized and existing under the laws of the State of Georgia and
located in East Point, Georgia, and will become a stockholder of Regions
Financial Corporation ("Regions") pursuant to the transactions described in the
Agreement and Plan of Merger, dated as of December 13, 1996, by and between
Regions and FBI (the "Agreement"). Under the terms of the Agreement, FBI will
merge with and into Regions (the "Merger"), and the shares of the $1.00 par
value common stock of FBI ("FBI Common Stock") will be converted into shares of
the $.625 par value common stock of Regions ("Regions Common Stock"). This
Affiliate Agreement represents an agreement between the undersigned and Regions
regarding certain rights and obligations of the undersigned in connection with
the shares of Regions Common Stock to be received by the undersigned as a result
of the Merger.
In consideration of the Merger and the mutual covenants contained herein,
the undersigned and Regions hereby agree as follows:
1. Affiliate Status. The undersigned understands and agrees that as to FBI
the undersigned may be deemed to be an "affiliate" under Rule 145(c), as defined
in Rule 405, of the Rules and Regulations of the Securities and Exchange
Commission ("SEC") under the Securities Act of 1933, as amended ("1933 Act"),
and the undersigned understands that the undersigned may be deemed to be an
"affiliate" at the time of the Merger.
2. Initial Restriction on Disposition. The undersigned agrees that the
undersigned will not, except by operation of law, by will or under the laws of
descent and distribution, sell, transfer, or otherwise dispose of the
undersigned's interests in, or reduce the undersigned's risk relative to, any of
the shares of Regions Common Stock into which the undersigned's shares of FBI
Common Stock are converted upon consummation of the Merger until such time as
Regions notifies the undersigned that the requirements of SEC Accounting Series
Release Nos. 130 and 135 ("ASR 130 and 135") have been met. The undersigned
understands that ASR 130 and 135 relate to publication of financial results of
post-Merger combined operations of Regions and FBI. Regions agrees that it will
publish such results within 45 days after the end of the first fiscal quarter of
Regions containing the required period of post-Merger combined operations and
that it will notify the undersigned promptly following such publication.
3. Covenants and Warranties of Undersigned. The undersigned represents,
warrants, and agrees that:
(a) During the 30 days immediately preceding the effective time of the
Merger, the undersigned will not, except by operation of law, by will, or
under the laws of descent and distribution, sell, transfer, or otherwise
dispose of the undersigned's interests in, or reduce the undersigned's risk
relative to, any of the shares of FBI Common Stock beneficially owned by
the undersigned as of the date of the stockholders' meeting of FBI held to
approve the Merger.
(b) The Regions Common Stock received by the undersigned as a result
of the Merger will be taken for the undersigned's own account and not for
others, directly or indirectly, in whole or in part.
(c) Regions has informed the undersigned that any distribution by the
undersigned of Regions Common Stock has not been registered under the 1933
Act and that shares of Regions Common Stock
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received pursuant to the Merger can only be sold by the undersigned (1)
following registration under the 1933 Act, or (2) in conformity with the
volume and other requirements of Rule 145(d) promulgated by the SEC as the
same now exists or may hereafter be amended, or (3) to the some extent some
other exemption from registration under the 1933 Act might be available.
The undersigned understands that Regions is under no obligation to file a
registration statement with the SEC covering the disposition of the
undersigned's shares of Regions Common Stock or to take any other action
necessary to make compliance with an exemption from such registration
available.
(d) The undersigned is aware that Regions intends to treat the Merger
as a tax-free reorganization under Section 368 of the Internal Revenue Code
of 1986, as amended (the "Code"), for federal income tax purposes. The
undersigned agrees to treat the transaction in the same manner as Regions
for federal income tax purposes. The undersigned acknowledges that Section
1.368-1(b) of the Income Tax Regulations requires "continuity of interest"
in order for the Merger to be treated as tax-free under Section 368 of the
Code. This requirement is satisfied if, taking into account those FBI
stockholders who receive cash in exchange for their stock, who receive cash
in lieu of fractional shares, or who dissent from the Merger, there is no
plan or intention on the part of the FBI stockholders to sell or otherwise
dispose of the Regions Common Stock to be received in the Merger that will
reduce such stockholders' ownership to a number of shares having, in the
aggregate, a value at the time of the Merger of less than 50% of the total
fair market value of the FBI Common Stock outstanding immediately prior to
the Merger. The undersigned has no prearrangement, plan, or intention,
either alone or with other stockholders of FBI, to sell or otherwise
dispose of an amount of Regions Common Stock to be received in the Merger
which would, without taking into account any other shares of Regions Common
Stock disposed of by former stockholders of FBI (other than those
stockholders with whom the undersigned has a prearrangement, plan, or
intention to dispose of Regions Common Stock), cause the foregoing
requirement not to be satisfied.
4. Restrictions on Transfer. The undersigned understands and agrees that
stop transfer instructions with respect to the shares of Regions Common Stock
received by the undersigned pursuant to the Merger will be given to Regions'
Transfer Agent and that there will be placed on the certificates for such
shares, or shares issued in substitution thereof, a legend stating in substance:
"The shares represented by this certificate were issued pursuant to a
business combination which is accounted for as a "pooling of interests" and
may not be sold, nor may the owner thereof reduce his risks relative
thereto in any way, until such time as Regions Financial Corporation
("Regions") has published the financial results covering at least 30 days
of combined operations after the effective date of the merger through which
the business combination was effected. In addition, the shares represented
by this certificate may not be sold, transferred, or otherwise disposed of
except or unless (1) covered by an effective registration statement under
the Securities Act of 1933, as amended, (2) in accordance with (i) Rule
145(d) (in the case of shares issued to an individual who is not an
affiliate of Regions) or (ii) Rule 144 (in the case of shares issued to an
individual who is an affiliate of Regions) of the Rules and Regulations of
such Act, or (3) in accordance with a legal opinion satisfactory to counsel
for Regions that such sale or transfer is otherwise exempt from the
registration requirements of such Act."
Such legend will also be placed on any certificate representing Regions
securities issued subsequent to the original issuance of the Regions Common
Stock pursuant to the Merger as a result of any transfer of such shares or any
stock dividend, stock split, or other recapitalization as long as the Regions
Common Stock issued to the undersigned pursuant to the Merger has not been
transferred in such a manner as to justify the removal of the legend therefrom.
If the provisions of Rules 144 and 145 are amended to eliminate restrictions
applicable to the Regions Common Stock received by the undersigned pursuant to
the Merger, or at the expiration of the restrictive period set forth in Rule
145(d), Regions, upon the request of the undersigned, will cause the
certificates representing the shares of Regions Common Stock issued to the
undersigned in connection with the Merger to be reissued free of any legend
relating to the restrictions set forth in Rules 144 and 145(d) upon receipt by
Regions of an opinion of its counsel to the effect that such legend may be
removed.
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5. Understanding of Restrictions on Dispositions. The undersigned has
carefully read the Agreement and this Affiliate Agreement and discussed their
requirements and impact upon the undersigned's ability to sell, transfer, or
otherwise dispose of the shares of Regions Common Stock received by the
undersigned, to the extent the undersigned believes necessary, with the
undersigned's counsel or counsel for FBI.
6. Filing of Reports by Regions. Regions agrees, for a period of three
years after the effective date of the Merger, to file on a timely basis all
reports required to be filed by it pursuant to Section 13 of the Securities
Exchange Act of 1934, as amended, so that the public information provisions of
Rule 145(d) promulgated by the SEC as the same are presently in effect will be
available to the undersigned in the event the undersigned desires to transfer
any shares of Regions Common Stock issued to the undersigned pursuant to the
Merger.
7. Transfer Under Rule 145(d). If the undersigned desires to sell or
otherwise transfer the shares of Regions Common Stock received by the
undersigned in connection with the Merger at any time during the restrictive
period set forth in Rule 145(d), the undersigned will provide the necessary
representation letter to the transfer agent for Regions Common Stock together
with such additional information as the transfer agent may reasonably request
with a copy to Regions' General Counsel at the address specified in Section 11.8
of the Agreement. Regions' General Counsel will review such information within
24 hours after receipt and no later than 24 hours after such review, if Regions'
General Counsel concludes that such proposed sale or transfer complies with the
requirements of Rule 145(d), Regions shall cause such General Counsel to provide
such opinions as may be necessary to Regions' Transfer Agent so that the
undersigned may complete the proposed sale or transfer. If Regions' General
Counsel is unable to so conclude, he will immediately notify the undersigned of
his reasons and of any action that would enable such General Counsel to conclude
that such proposed sale or transfer complies with the requirements of Rule
145(d).
8. Acknowledgments. The undersigned recognizes and agrees that the
foregoing provisions also apply to all shares of the capital stock of FBI and
Regions that are deemed to be beneficially owned by the undersigned pursuant to
applicable federal securities laws, which the undersigned agrees may include,
without limitation, shares owned or held in the name of (i) the undersigned's
spouse, (ii) any relative of the undersigned or of the undersigned's spouse who
has the same home as the undersigned, (iii) any trust or estate in which the
undersigned, the undersigned's spouse, and any such relative collectively own at
least a 10% beneficial interest or of which any of the foregoing serves as
trustee, executor, or in any similar capacity, and (iv) any corporation or other
organization in which the undersigned, the undersigned's spouse, and any such
relative collectively own at least 10% of any class of equity securities or of
the equity interest. The undersigned further recognizes that, in the event that
the undersigned is a director or officer of Regions or becomes a director or
officer of Regions upon consummation of the Merger, among other things, any sale
of Regions Common Stock by the undersigned within a period of less than six
months following the effective time of the Merger may subject the undersigned to
liability pursuant to Section 16(b) of the Securities Exchange Act of 1934, as
amended.
9. Miscellaneous. This Affiliate Agreement is the complete agreement
between Regions and the undersigned concerning the subject matter hereof. Any
notice required to be sent to any party hereunder shall be sent by registered or
certified mail, return receipt requested, using the addresses set forth herein
or such other address as shall be furnished in writing by the parties This
Affiliate Agreement shall be governed by the laws of the State of Delaware.
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This Affiliate Agreement is executed as of the ____ day of _____________, 1996.
Very truly yours,
--------------------------------------
Signature
--------------------------------------
Print Name
--------------------------------------
--------------------------------------
--------------------------------------
Address
AGREED TO AND ACCEPTED as of
_______________, 1996
REGIONS FINANCIAL CORPORATION
By:
-------------------------------------------------
Xxxxxx X. Xxxxxxxx, Xx.
General Counsel and Corporate Secretary
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EXHIBIT 3
December 13, 1996
Regions Financial Corporation
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Re: First Bankshares, Inc.
Ladies and Gentlemen:
This letter is delivered pursuant to Section 9.2(d) of the Agreement and
Plan of Merger, dated as of December 13, 1996, by and between Regions Financial
Corporation ("Regions") and First Bankshares, Inc. ("FBI").
In my capacity as an officer or a director, as of the date of this letter,
I do not, to the best of my knowledge, have any claims, and I am not aware of
any facts or circumstances that I believe are likely to give rise to any claim,
for indemnification under FBI's Articles of Incorporation or Bylaws as existing
on ____________, 1996 or as may be afforded by the laws of Georgia.
Sincerely,
--------------------------------------
Signature of Officer or Director
--------------------------------------
Name of Officer or Director
45
EXHIBIT 4
OPINION OF FBI COUNSEL
This opinion is delivered pursuant to Section 9.2(e) of the Agreement.
Capitalized terms used in this opinion shall have the meaning set forth in the
Agreement.
1. FBI is a corporation validly existing under the Laws of the State of
Georgia with full corporate power and authority to carry on the business in
which it is engaged as described as being carried on by it in the proxy
statement used to solicit the approval by the stockholders of FBI of the
transactions contemplated by the Agreement ("Proxy Statement").
2. The authorized capital stock of FBI consists of shares of
FBI Common Stock, of which shares were issued and outstanding as of
1996.
3. The execution and delivery of the Agreement and compliance with their
its terms, and consummation of the transactions completed thereby, do not and
will not violate or contravene any provision of the Articles of Incorporation or
Bylaws of FBI.
4. In accordance with the Laws of the State of Georgia, the Articles of
Incorporation of FBI, and the Bylaws of FBI and pursuant to resolutions duly
adopted by its Board of Directors and stockholders, the Agreement has been duly
adopted and approved by the Board of Directors of FBI and by the stockholders of
FBI at the Stockholders' Meeting.
5. The Agreement has been duly and validly executed and delivered by FBI
and, assuming valid authorization, execution, and delivery by Regions,
constitutes a valid and binding agreement of FBI enforceable in accordance with
its terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, or similar laws affecting creditors' rights generally, provided,
however, that we express no opinion as to the availability of the equitable
remedy of specific performance.
46
EXHIBIT 5
OPINION OF REGIONS COUNSEL
This opinion is delivered pursuant to Section 9.3(e) of the Agreement.
Capitalized terms used in this opinion shall have the meaning set forth in the
Agreement.
1. Regions is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Delaware with full corporate power and
authority to carry on the business in which it is engaged as described as being
carried on by it in the proxy statement used to solicit the approval by the
stockholders of FBI of the transactions contemplated by the Agreement ("Proxy
Statement").
2. The execution and delivery of the Agreement and compliance with its
terms, and consummation of the transactions contemplated thereby, do not and
will not violate or contravene any provision of the Certificate of Incorporation
or Bylaws of Regions.
3. In accordance with the laws of Delaware, the Certificate of
Incorporation of Regions and the Bylaws of Regions, and pursuant to resolutions
duly adopted by its Boards of Directors, the Agreement has been duly adopted and
approved by the Boards of Director of Regions.
4. All proceedings required by law or by provisions of the Agreement to be
taken by Regions in connection with the due consummation of the transactions
contemplated by the Agreement have been duly and validly taken.
5. The Agreement has been duly and validly executed and delivered by
Regions, and assuming valid authorization, execution, and delivery by FBI,
constitutes a valid and binding agreement of Regions enforceable in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, or similar laws affecting creditors' rights
generally, provided, however, that we express no opinion as to the availability
of the equitable remedy of specific performance.
6. The shares of the $.625 par value common stock of Regions to be issued
to the stockholders of FBI as contemplated by the Agreement have been duly and
validly authorized for issuance, have been duly and validly registered under the
Securities Act of 1933, as amended, and when the certificates therefor are duly
countersigned by Regions (or Regions' Transfer Agent) and delivered to the
stockholders of FBI pursuant to the Agreement following consummation of the
Merger will be duly and validly issued, fully paid and non-assessable, free of
any preemptive or other similar rights.
