AGREEMENT AND PLAN OF MERGER
BY AND AMONG
Capital City Bank Group, Inc.,
Xxxxx Holding Company
AND
FIRST NATIONAL BANK OF XXXXX COUNTY
Dated as of February 11, 1999
TABLE OF CONTENTS Page
Parties 3
Preamble 3
ARTICLE 1 - TRANSACTIONS AND TERMS OF MERGER 4
1.1 Merger 4
1.2 Bank Merger 4
1.3 Time and Place of Closing 4
1.4 Effective Time 4
ARTICLE 2 - TERMS OF MERGER 4
2.1 Charter 4
2.2 Bylaws 4
2.3 Directors and Officers 4
ARTICLE 3 - MANNER OF CONVERTING SHARES 5
3.1 Conversion of Shares 5
3.2 Anti-Dilution Provisions 5
3.3 Shares Held by GHC or CCBG 5
3.4 Dissenting Stockholders 5
3.5 Fractional Shares 6
ARTICLE 4 - EXCHANGE OF SHARES 6
4.1 Exchange Procedures 6
4.2 Rights of Former GHC Stockholders 7
4.3 Rights of Former GHC Stockholders 7
ARTICLE 5 - REPRESENTATIONS AND WARRANTIES OF GHC 8
5.1 Organization, Standing, and Power 8
5.2 Authority of GHC; No Breach By Agreement 8
5.3 Capital Stock 9
5.4 GHC Subsidiaries 9
5.5 Financial Statements 10
5.6 Absence of Undisclosed Liabilities 10
5.7 Absence of Certain Changes or Events 10
5.8 Tax Matters 10
5.9 Allowance for Possible Loan Losses 11
5.10 Assets 12
5.11 Intellectual Property 12
5.12 Environmental Matters 12
5.13 Compliance with Laws 13
5.14 Labor Relations 13
5.15 Employee Benefit Plans 14
5.16 Material Contracts 15
5.17 Legal Proceedings 16
5.18 Reports 16
5.19 Statements True and Correct 16
5.20 Accounting, Tax and Regulatory Matters 17
5.21 State Takeover Laws 17
5.22 Charter Provisions 17
5.23 Opinion of Financial Advisor 17
5.24 Board Recommendation 17
5.25 Millennium Compliance 17
ARTICLE 6 - REPRESENTATIONS AND WARRANTIES OF CCBG 18
6.1 Organization, Standing, and Power 18
6.2 Authority; No Breach By Agreement 18
6.3 Capital Stock 19
6.4 CCBG Subsidiaries 19
6.5 SEC Filings; Financial Statements 19
6.6 Absence of Undisclosed Liabilities 19
6.7 Absence of Certain Changes or Events 20
6.8 Allowance for Possible Loan Losses 20
6.9 Intellectual Property 20
6.10 Environmental Matters 20
6.11 Compliance With Laws 20
6.12 Employee Benefit Plans 21
6.13 Legal Proceedings 22
6.14 Reports 22
6.15 Statements True and Correct 22
6.16 Accounting, Tax and Regulatory Matters 23
6.17 Taxes 23
ARTICLE 7 - CONDUCT OF BUSINESS PENDING CONSUMMATION 23
7.1 Affirmative Covenants of GHC 23
7.2 Negative Covenants of GHC 24
7.3 Covenants of CCBG 25
7.4 Adverse Changes in Condition 26
7.5 Reports 26
ARTICLE 8 - ADDITIONAL AGREEMENTS 26
8.1 Registration Statement; Proxy Statement; Stockholder Approval 26
8.2 Exchange Listing 27
8.3 Applications 28
8.4 Filings with State Offices 28
8.5 Agreement as to Efforts to Consummate 28
8.6 Investigation and Confidentiality 28
8.7 Press Releases 29
8.8 Certain Actions 29
8.9 Accounting and Tax Treatment 29
8.10 State Takeover Laws 30
8.11 Charter Provisions 30
8.12 Agreements of Affiliates 30
8.13 Employee Benefits and Contracts 30
8.14 Indemnification 31
8.15 Board Meetings 32
8.16 Accounting Policies 32
8.17 Formation of Interim National Bank Subsidiary 32
ARTICLE 9 - CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE 32
9.1 Conditions to Obligations of Each Party 32
9.2 Conditions to Obligations of CCBG 33
9.3 Conditions to Obligations of GHC and FNBGC 35
ARTICLE 10 - TERMINATION 35
10.1 Termination 35
10.2 Effect of Termination 37
10.3 Non-Survival of Representations and Covenants 38
ARTICLE 11 - MISCELLANEOUS 38
11.1 Definitions 38
11.2 Expenses 45
11.3 Brokers and Finders 46
11.4 Entire Agreement 46
11.5 Amendments 46
11.6 Waivers 46
11.7 Assignment 47
11.8 Notices 47
11.9 Governing Law 47
11.10 Counterparts 47
11.11 Captions; Articles and Sections 47
11.12 Interpretations 48
11.13 Enforcement of Agreement 48
11.14 Severability 48
Signatures 49
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is
made and entered into as of February 11, 1999, by and among
Capital City Bank Group, Inc. ("CCBG"), a Florida
corporation; Xxxxx Holding Company ("GHC"), a Georgia
corporation, and FIRST NATIONAL BANK OF XXXXX COUNTY, a
national banking association.
Preamble
The respective Boards of Directors of GHC, CCBG and FNBGC
are of the opinion that the transactions described herein
are in the best interests of the parties to this Agreement
and their respective stockholders. This Agreement provides
for the acquisition of GHC by CCBG pursuant to the merger
of (i) GHC with and into CCBG (the "Holding Company
Merger") and (ii) FNBGC with and into a national banking
subsidiary of CCBG ("Interim") (the "Bank Merger")
(collectively, the "Mergers"). At the effective time of
the Mergers, the outstanding shares of the capital stock of
GHC and FNBGC (excluding FNBGC capital stock held by GHC)
shall be converted into the right to receive shares of the
common stock of CCBG (except as provided herein). As a
result, (i) stockholders of GHC and FNBGC shall become
stockholders of CCBG, (ii) CCBG shall continue to conduct
the business and operations of GHC and (iii) Interim shall
continue to conduct the business operations of FNBGC. The
transactions described in this Agreement are subject to the
approvals of the stockholders of GHC, the Board of
Governors of the Federal Reserve System, the Office of the
Comptroller of the Currency, The Florida Department of
Banking and Finance and the satisfaction of certain other
conditions described in this Agreement. It is the
intention of the parties to this Agreement that each of the
Mergers for federal income tax purposes shall qualify as a
"reorganization" within the meaning of Section 368(a) of
the Internal Revenue Code, and for accounting purposes
shall qualify for treatment as a pooling of interests.
Certain terms used in this Agreement are defined in Section
11.1 of this Agreement.
NOW, THEREFORE, in consideration of the above and the
mutual warranties, representations, covenants, and
agreements set forth herein, the parties agree as follows:
ARTICLE 1
TRANSACTIONS AND TERMS OF MERGER
1.1 Holding Company Merger. Subject to the terms and
conditions of this Agreement, at the Effective Time, GHC
shall be merged with and into CCBG in accordance with the
provisions of Section 14-2-1106 of the GBCC and Section
607.1107 of the FBCA with the effect provided in Section
14-2-1107 of the GBCC and Section 607.1107 of the FBCA.
CCBG shall be the Surviving Corporation resulting from the
Holding Company Merger and shall continue to be governed by
the Laws of the State of Florida. The Holding Company
Merger shall be consummated pursuant to the terms of this
Agreement, which has been approved and adopted by the
respective Boards of Directors of GHC and CCBG.
1.2 Bank Merger. Simultaneously with the consummation of
the Holding Company Merger, FNBGC shall be merged with and
into Interim in accordance with the provisions of and with
the effect provided in Title 12 U.S. Code Section 215a on
terms and subject to the provisions of the Bank Plan of
Merger ("Bank Plan"), attached hereto as Exhibit 1. GHC
shall vote the shares of capital stock of FNBGC in favor of
the Bank Plan and the Bank Merger provided therein.
1.3 Time and Place of Closing. The closing of the
transactions contemplated hereby (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 authorized officers, may
mutually agree. The Closing shall be held at such location
as may be mutually agreed upon by the Parties.
1.4 Effective Time. The Mergers and other transactions
contemplated by this Agreement shall become effective on
the date and at the time the Articles of Merger reflecting
the Mergers shall become effective with the Secretary of
State of the State of Georgia or the Articles of Merger
reflecting the Mergers shall become effective with the
Secretary of State of the State of Florida or the time
specified in the Certificate of Merger issued by the OCC,
whichever is later (the "Effective Time"). Subject to the
terms and conditions hereof, unless otherwise mutually
agreed upon in writing by the authorized officers of each
Party, the Parties shall use their reasonable efforts to
cause the Effective Time to occur on the first business day
following the last to occur of (i) the effective date
(including expiration of any applicable waiting period) of
the last required Consent of any Regulatory Authority
having authority over and approving or exempting the
Merger, and (ii) the date on which the stockholders of GHC
and FNBGC approve this Agreement to the extent such
approval is required by applicable Law.
ARTICLE 2
TERMS OF MERGER
2.1 Charter. The Certificate of Incorporation of CCBG in
effect immediately prior to the Effective Time shall be the
Certificate of Incorporation of the Surviving Corporation
until duly amended or repealed.
2.2 Bylaws. The Bylaws of CCBG in effect immediately
prior to the Effective Time shall be the Bylaws of the
Surviving Corporation until duly amended or repealed.
2.3 Directors and Officers. The directors of CCBG 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; provided that Xxxx
Xxxxx, Jr. shall become a director of CCBG immediately
following the Effective Time. The officers of CCBG in
office immediately prior to the Effective Time, together
with such additional persons as may thereafter be elected,
shall serve as the officers of the Surviving Corporation
from and after the Effective Time in accordance with the
Bylaws of the Surviving Corporation.
ARTICLE 3
MANNER OF CONVERTING SHARES
3.1 Conversion of Shares. Subject to the provisions of
this Article 3, at the Effective Time, by virtue of the
Mergers and without any action on the part of CCBG, GHC,
FNBGC or Interim or the stockholders of the foregoing, the
shares of the constituent corporations shall be converted
as follows:
(a) Each share of capital stock of CCBG issued and
outstanding immediately prior to the Effective Time shall
remain issued and outstanding immediately after the
Effective Time.
(b) Each share of GHC Common Stock, but excluding shares
held by any GHC Entity or any CCBG Entity, in each case
other than in a fiduciary capacity or as a result of debts
previously contracted, and excluding shares held by
stockholders who perfect their statutory dissenters'
rights, if any, as provided in Section 3.4 issued and
outstanding immediately prior to the Effective Time shall
cease to be outstanding and shall be converted into and
exchanged for the right to receive 115.885 shares of CCBG
Common Stock (the "Holding Company Exchange Ratio").
(c) Each share of capital stock of Interim issued and
outstanding immediately prior to the Effective Time shall
remain issued and outstanding from and after the Effective
Time.
(d) Each share of FNBGC Common Stock, but excluding shares
held by any GHC Entity, any FNBGC Entity or any CCBG
Entity, in each case other than in a fiduciary capacity or
as a result of debts previously contracted, and excluding
shares held by stockholders who perfect their statutory
dissenters' rights, if any, as provided in Section 3.4
issued and outstanding immediately prior to the Effective
Time shall cease to be outstanding and shall be converted
into and exchanged for the right to receive 21.5 shares of
CCBG Common Stock (the "Bank Exchange Ratio" and together
with the Holding Company Exchange Ratio the "Exchange
Ratios").
3.2 Anti-Dilution Provisions. In the event CCBG changes
the number of shares of CCBG 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 Ratios shall be
proportionately adjusted.
3.3 Shares Held by GHC, FNBGC or CCBG. Each of the shares
of GHC Common Stock and FNBGC Common Stock held by any GHC
Entity, any FNBGC Entity or by any CCBG Entity, 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 GHC
Common Stock or FNBGC Common Stock who perfects his
dissenters' rights in accordance with and as contemplated
by Section 14-2-1302 of the GBCC or provisions of the Law
applicable to national banks shall be entitled to receive
the value of such shares in cash as determined pursuant to
such provision of Law; provided, 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 or other applicable Law and
surrendered to GHC or FNBGC, as applicable 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 GHC or FNBGC, as applicable,
fails to perfect, or effectively withdraws or loses, his
right to appraisal and of payment for his shares, CCBG
shall issue and deliver the consideration to which such
holder of shares of GHC Common Stock or FNBGC Common Stock
is entitled under this Article 3 (without interest) upon
surrender by such holder of the certificate or certificates
representing shares of GHC Common Stock or FNBGC Common
Stock held by him.
3.5 Fractional Shares. Notwithstanding any other
provision of this Agreement, each holder of shares of GHC
Common Stock or FNBGC Common Stock exchanged pursuant to
the Mergers who would otherwise have been entitled to
receive a fraction of a share of CCBG 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 CCBG Common Stock multiplied by the average market
value of one share of CCBG Common Stock at the Effective
Time (i.e., the average of the last sale price of CCBG
Common Stock on the NASDAQ National Market (as reported by
The Wall Street Journal or, if not reported thereby, any
other authoritative source selected by CCBG) during each of
the 10 trading days prior to the Effective Time). No such
holder will be entitled to dividends, voting rights, or any
other rights as a stockholder in respect of any fractional
shares.
ARTICLE 4
EXCHANGE OF SHARES
4.1 Exchange Procedures. Promptly after the Effective
Time, CCBG, GHC and FNBGC shall cause the exchange agent
selected by CCBG (the "Exchange Agent") to mail to each
holder of record of a certificate or certificates which
represented shares of GHC Common Stock or FNBGC Common
Stock immediately prior to the Effective Time (the
"Certificates") appropriate transmittal materials and
instructions (which shall specify that delivery shall be
effected, and risk of loss and title to such Certificates
shall pass, only upon proper delivery of such Certificates
to the Exchange Agent). The Certificate or Certificates of
GHC Common Stock or FNBGC Common Stock so delivered shall
be duly endorsed as the Exchange Agent may require. In the
event of a transfer of ownership of shares of GHC Common
Stock or FNBGC Common Stock represented by Certificates
that are not registered in the transfer records of GHC or
FNBGC, as applicable, the consideration provided in Section
3.1 may be issued to a transferee if the Certificates
representing such shares are delivered to the Exchange
Agent, accompanied by all documents required to evidence
such transfer and by evidence satisfactory to the Exchange
Agent that any applicable stock transfer taxes have been
paid. If any Certificate shall have been lost, stolen,
mislaid or destroyed, upon receipt of (i) an affidavit of
that fact from the holder claiming such Certificate to be
lost, mislaid, stolen or destroyed, (ii) such bond,
security or indemnity as CCBG and the Exchange Agent may
reasonably require and (iii) any other documents necessary
to evidence and effect the bona fide exchange thereof, the
Exchange Agent shall issue to such holder the consideration
into which the shares represented by such lost, stolen,
mislaid or destroyed Certificate shall have been converted.
The Exchange Agent may establish such other reasonable and
customary rules and procedures in connection with its
duties as it may deem appropriate. After the Effective
Time, each holder of shares of GHC Common Stock or FNBGC
Common Stock (other than shares to be canceled pursuant to
Section 3.3 or as to which statutory dissenters' rights
have been perfected as provided in Section 3.4) 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, together with all undelivered dividends or
distributions in respect of such shares (without interest
thereon) pursuant to Section 4.2. To the extent required
by Section 3.5, each holder of shares of GHC Common Stock
issued and outstanding at the Effective Time also shall
receive, upon surrender of the Certificate or Certificates,
cash in lieu of any fractional share of CCBG Common Stock
to which such holder may be otherwise entitled (without
interest). CCBG shall not be obligated to deliver the
consideration to which any former holder of GHC Common
Stock or FNBGC Common Stock is entitled as a result of the
Mergers until such holder surrenders such holder's
Certificate or Certificates for exchange as provided in
this Section 4.1. Any other provision of this Agreement
notwithstanding, neither CCBG nor the Exchange Agent shall
be liable to a holder of GHC Common Stock or FNBGC Common
Stock for any amounts paid or property delivered in good
faith to a public official pursuant to any applicable
abandoned property, escheat or similar Law. Adoption of
this Agreement by the stockholders of GHC shall constitute
ratification of the appointment of the Exchange Agent.
4.2 Rights of Former GHC Stockholders. At the Effective
Time, the stock transfer books of GHC shall be closed as to
holders of GHC Common Stock immediately prior to the
Effective Time and no transfer of GHC 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, each Certificate theretofore representing
shares of GHC Common Stock (other than shares to be
canceled pursuant to Sections 3.3 and 3.4) 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 in exchange therefor, subject, however, to the
Surviving Corporation's obligation to pay any dividends or
make any other distributions with a record date prior to
the Effective Time which have been declared or made by GHC
in respect of such shares of GHC Common Stock in accordance
with the terms of this Agreement and which remain unpaid at
the Effective Time. To the extent permitted by Law, former
stockholders of record of GHC shall be entitled to vote
after the Effective Time at any meeting of CCBG
stockholders the number of whole shares of CCBG Common
Stock into which their respective shares of GHC Common
Stock are converted, regardless of whether such holders
have exchanged their Certificates for certificates
representing CCBG Common Stock in accordance with the
provisions of this Agreement. Whenever a dividend or other
distribution is declared by CCBG on the CCBG 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 CCBG Common Stock issuable
pursuant to this Agreement, but beginning 60 days after the
Effective Time no dividend or other distribution payable to
the holders of record of CCBG Common Stock as of any time
subsequent to the Effective Time shall be delivered to the
holder of any Certificate until such holder surrenders such
Certificate for exchange as provided in Section 4.1.
However, upon surrender of such Certificate, both the CCBG
Common Stock certificate and any undelivered dividends and
cash payments payable hereunder (without interest) shall be
delivered and paid with respect to each share represented
by such Certificate.
4.3 Rights of Former FNBGC Stockholders. At the Effective
Time, the stock transfer books of FNBGC shall be closed as
to holders of FNBGC Common Stock immediately prior to the
Effective Time and no transfer of FNBGC 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, each Certificate theretofore representing
shares of FNBGC Common Stock (other than shares to be
canceled pursuant to Sections 3.3 and 3.4) 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 in exchange therefor, subject, however, to the
Surviving Corporation's obligation to pay any dividends or
make any other distributions with a record date prior to
the Effective Time which have been declared or made by
FNBGC in respect of such shares of FNBGC Common Stock in
accordance with the terms of this Agreement and which
remain unpaid at the Effective Time. To the extent
permitted by Law, former stockholders of record of FNBGC
shall be entitled to vote after the Effective Time at any
meeting of CCBG stockholders the number of whole shares of
CCBG Common Stock into which their respective shares of
FNBGC Common Stock are converted, regardless of whether
such holders have exchanged their Certificates for
certificates representing CCBG Common Stock in accordance
with the provisions of this Agreement. Whenever a dividend
or other distribution is declared by CCBG on the CCBG
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 CCBG Common Stock
issuable pursuant to this Agreement, but beginning 60 days
after the Effective Time no dividend or other distribution
payable to the holders of record of CCBG Common Stock as of
any time subsequent to the Effective Time shall be
delivered to the holder of any Certificate until such
holder surrenders such Certificate for exchange as provided
in Section 4.1. However, upon surrender of such
Certificate, both the CCBG Common Stock certificate and any
undelivered dividends and cash payments payable hereunder
(without interest) shall be delivered and paid with respect
to each share represented by such Certificate.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF GHC and fnbgc
GHC and FNBGC hereby jointly and severally represent and
warrant to CCBG as follows:
5.1 Organization, Standing, and Power. GHC is a
corporation duly organized, validly existing, and in good
standing under the Laws of the State of Georgia, and has
the corporate power and authority to carry on its business
as now conducted and to own, lease and operate its material
Assets. GHC 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 GHC Material Adverse
Effect. The minute book and other organizational documents
for GHC have been made available to CCBG for its review
and, except as disclosed in Section 5.1 of the FNBGC
Disclosure Memorandum, are true and complete in all
material respects as in effect as of the date of this
Agreement and accurately reflect in all material respects
all amendments thereto and all proceedings of the Board of
Directors and stockholders thereof.
5.2 Authority of GHC and FNBGC; No Breach By Agreement.
(a) Each of GHC and FNBGC has the corporate power and
authority necessary to execute, deliver, and perform their
respective 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 Mergers, have been duly and validly
authorized by all necessary corporate action in respect
thereof on the part of GHC and FNBGC, subject to the
approval of this Agreement by the holders of a majority of
the outstanding shares of GHC Common Stock and a majority
of the holders of the outstanding shares of FNBGC Common
Stock, which are the only stockholder votes required for
approval of this Agreement and consummation of the Mergers
by GHC and FNBGC, respectively, and subject to receipt of
the requisite consents referenced to in Section 9.1(b).
Subject to such requisite stockholder approval, this
Agreement represents a legal, valid, and binding obligation
of GHC, enforceable against GHC in accordance with its
terms (except in all cases as such enforceability may be
limited by applicable bankruptcy, insolvency,
reorganization, receivership, conservatorship, moratorium,
or similar Laws affecting the enforcement of creditors'
rights generally and except that the availability of the
equitable remedy of specific performance or injunctive
relief is subject to the discretion of the court before
which any proceeding may be brought).
(b) Neither the execution and delivery of this Agreement
by GHC and FNBGC, nor the consummation by GHC and FNBGC of
the transactions contemplated hereby, nor compliance by GHC
with any of the provisions hereof, will (i) conflict with
or result in a breach of any provision of GHC's Articles of
Incorporation or Bylaws or the certificate or articles of
incorporation or bylaws of any GHC Subsidiary or any
resolution adopted by the board of directors or the
stockholders of any GHC Entity, or (ii) subject to receipt
of the requisite consents referred to in Section 9.1(b) and
except as disclosed in Section 5.2 of the FNBGC 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 GHC Entity under, any
Contract or Permit of any GHC Entity, where such Default or
Lien, or any failure to obtain such Consent, is reasonably
likely to have, individually or in the aggregate, a GHC
Material Adverse Effect, or, (iii) subject to receipt of
the requisite Consents referred to in Section 9.1(b),
constitute or result in a Default under, or require any
Consent pursuant to, any Law or Order applicable to any GHC
Entity or any of their respective material Assets
(including any CCBG Entity or any GHC Entity becoming
subject to or liable for the payment of any Tax on any of
the Assets owned by any CCBG Entity or any GHC Entity being
reassessed or revalued by any Taxing authority).
(c) Other than in connection or compliance with the
provisions of the Securities Laws, applicable state
corporate and securities Laws, and rules of the NASD, and
other than Consents required from Regulatory Authorities,
and other than notices to or filings with the Internal
Revenue Service or the Pension Benefit Guaranty Corporation
with respect to any employee benefit plans, or under the
HSR Act, and other than Consents, filings, or notifications
which, if not obtained or made, are not reasonably likely
to have, individually or in the aggregate, a GHC Material
Adverse Effect, no notice to, filing with, or Consent of,
any public body or authority is necessary for the
consummation by GHC and FNBGC of the Mergers and the other
transactions contemplated in this Agreement.
5.3 Capital Stock.
(a) The authorized capital stock of GHC consists of (i)
100,000 shares of GHC Common Stock, of which 10,000 shares
are issued and outstanding as of the date of this Agreement
and not more than 10,000 shares will be issued and
outstanding at the Effective Time. All of the issued and
outstanding shares of capital stock of GHC are duly and
validly issued and outstanding and are fully paid and
nonassessable under the GBCC. None of the outstanding
shares of capital stock of GHC has been issued in violation
of any preemptive rights of the current or past
stockholders of GHC.
(b) The authorized capital stock of FNBGC consists of (i)
70,000 shares of FNBGC Common Stock, of which 60,910 shares
are issued and outstanding as of the date of this Agreement
and not more than 60,910 shares will be issued and
outstanding at the Effective Time. All of the issued and
outstanding shares of capital stock of FNBGC are duly and
validly issued and outstanding and are fully paid and
nonassessable under the GBCC. None of the outstanding
shares of capital stock of FNBGC has been issued in
violation of any preemptive rights of the current or past
stockholders of FNBGC.
(c) Except as set forth in Sections 5.3(a) and (b), or as
disclosed in Section 5.3(c) of the FNBGC Disclosure
Memorandum, there are no shares of capital stock or other
equity securities of GHC or FNBGC outstanding and no
outstanding Equity Rights relating to the capital stock of
GHC or FNBGC.
5.4 GHC Subsidiaries. FNBGC is the only Subsidiary of
GHC. Section 5.4 of the FNBGC Disclosure Memorandum, sets
forth the record holders of all the issued and outstanding
shares of capital stock (or other equity interests) of
FNBGC and of GHC. No capital stock (or other equity
interest) of FNBGC or GHC is or may become required to be
issued (other than to another GHC Entity) by reason of any
Equity Rights, and there are no Contracts by which FNBGC is
bound to issue (other than to another GHC Entity)
additional shares of its capital stock (or other equity
interests) or Equity Rights or by which FNBGC or GHC is or
may be bound to transfer any shares of the capital stock
(or other equity interests) of FNBGC (other than to another
GHC Entity). There are no Contracts relating to the rights
of FNBGC to vote or to dispose of any shares of the
capital stock (or other equity interests) of FNBGC. All of
the shares of capital stock (or other equity interests) of
FNBGC held by a GHC Entity are fully paid and (except
pursuant to 12 USC Section 55 in the case of national banks
and comparable, applicable state Law, if any, in the case
of state depository institutions) nonassessable and are
owned by the GHC Entity free and clear of any Lien. Except
as disclosed in Section 5.4 of the FNBGC Disclosure
Memorandum, FNBGC is a bank 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. FNBGC 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 GHC Material Adverse Effect. FNBGC is an
"insured institution" as defined in the Federal Deposit
Insurance Act and applicable regulations thereunder, and
the deposits in which are insured by the Bank Insurance
Fund. The minute book and other organizational documents
for FNBGC have been made available to CCBG for its review,
and, except as disclosed in Section 5.4 of the FNBGC
Disclosure Memorandum, are true and complete in all
material respects as in effect as of the date of this
Agreement and accurately reflect in all material respects
all amendments thereto and all proceedings of the Board of
Directors and stockholders thereof.
5.5 Financial Statements. Each of the GHC Financial
Statements was prepared in accordance with GAAP applied on
a consistent basis throughout the periods involved (except
as may be indicated in the notes to such financial
statements) and fairly presents in all material respects
the consolidated financial position of GHC and its
Subsidiaries as at the respective dates and the
consolidated results of operations and cash flows for the
periods indicated, except that the unaudited interim
financial statements were or are subject to normal and
recurring year-end adjustments which were not or are not
expected to be material in amount or effect.
5.6 Absence of Undisclosed Liabilities. No GHC Entity has
any Liabilities that are reasonably likely to have,
individually or in the aggregate, a GHC Material Adverse
Effect, except Liabilities which are accrued or reserved
against in the consolidated balance sheets of GHC as of
June 30, 1998 and December 31, 1997, included in the GHC
Financial Statements delivered prior to the date of this
Agreement or reflected in the notes thereto. No GHC Entity
has incurred or paid any Liability since December 31, 1997,
except for such Liabilities incurred or paid (i) 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 GHC Material Adverse
Effect or (ii) in connection with the transactions
contemplated by this Agreement.
5.7 Absence of Certain Changes or Events. Since December
31, 1997, except as disclosed in the GHC Financial
Statements delivered prior to the date of this Agreement or
as disclosed in Section 5.7 of the FNBGC Disclosure
Memorandum, (i) there have been no events, changes, or
occurrences which have had, or are reasonably likely to
have, individually or in the aggregate, a GHC Material
Adverse Effect, and (ii) the GHC Entities 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 GHC provided in Article 7.
5.8 Tax Matters.
(a) All Tax Returns required to be filed by or on behalf
of any of the GHC Entities have been timely filed or
requests for extensions have been timely filed, granted,
and have not expired for periods ended on or before the
date of the most recent fiscal year end immediately
preceding the Effective Time, except to the extent that all
such failures to file, taken together, are not reasonably
likely to have a GHC Material Adverse Effect, and all Tax
Returns filed are complete and accurate in all material
respects. All Taxes shown on filed Tax Returns have been
paid. As of the date of this Agreement, there is no audit
examination, deficiency, or refund Litigation with respect
to any Taxes, except as reserved against in the GHC
Financial Statements delivered prior to the date of this
Agreement or as disclosed in Section 5.8 of the FNBGC
Disclosure Memorandum. All Taxes and other Liabilities due
with respect to completed and settled examinations or
concluded Litigation have been paid. There are no Liens
with respect to Taxes upon any of the Assets of the GHC
Entities, except for any such Liens which are not
reasonably likely to have a GHC Material Adverse Effect.
(b) None of the GHC Entities 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) The provision for any Taxes due or to become due for
any of the GHC Entities for the period or periods through
and including the date of the respective GHC Financial
Statements that has been made and is reflected on such GHC
Financial Statements is sufficient to cover all such Taxes
in accordance with GAAP.
(d) Deferred Taxes of the GHC Entities have been provided
for in accordance with GAAP.
(e) None of the GHC Entities is a party to any Tax
allocation or sharing agreement and none of the GHC
Entities has been a member of an affiliated group filing a
consolidated federal income Tax Return (other than a group
the common parent of which was GHC) or has any Liability
for Taxes of any Person (other than GHC and its
Subsidiaries) under Treasury Regulation Section 1.1502-6
(or any similar provision of state, local or foreign Law)
as a transferee or successor or by Contract or otherwise.
(f) Each of the GHC Entities 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 GHC
Material Adverse Effect.
(g) Except as disclosed in Section 5.8 of the FNBGC
Disclosure Memorandum, none of the GHC Entities has made
any payments, is obligated to make any payments, or is
party to any Contract that could obligate it to make any
payments that would be disallowed as a deduction under
Section 280G or 162(m) of the Internal Revenue Code.
(h) There has not been an ownership change, as defined in
Internal Revenue Code Section 382(g), of the GHC Entities
that occurred during or after any taxable period in which
the GHC Entities incurred a net operating loss that carries
over to any Taxable Period ending after December 31, 1998.
(i) No GHC Entity has or has had in any foreign country a
permanent establishment, as defined in any applicable tax
treaty or convention between the United States and such
foreign country.
5.9 Allowance for Possible Loan Losses. In the opinion of
management of GHC and FNBGC, the allowance for possible
loan, credit or security losses (the "Allowance") shown on
the consolidated balance sheets of GHC included in the most
recent GHC Financial Statements dated prior to the date of
this Agreement was, and the Allowance shown on the
consolidated balance sheets of GHC included in the GHC
Financial Statements as of dates subsequent to the
execution of this Agreement will be, as of the dates
thereof, adequate (within the meaning of GAAP and
applicable regulatory requirements or guidelines) to
provide for all known or reasonably anticipated losses
relating to or inherent in the loan and lease portfolios
(including accrued interest receivables) of the GHC
Entities and other extensions of credit (including letters
of credit and commitments to make loans or extend credit)
by the GHC Entities as of the dates thereof.
5.10 Assets.
(a) Except as disclosed in Section 5.10 of the FNBGC
Disclosure Memorandum or as disclosed or reserved against
in the GHC Financial Statements delivered prior to the date
of this Agreement, the GHC Entities have good and
marketable title, free and clear of all Liens, to all of
their respective Assets, except for any such Liens or other
defects of title which are not reasonably likely to have a
GHC Material Adverse Effect. All tangible properties used
in the businesses of the GHC Entities are in good
condition, reasonable wear and tear excepted, and are
usable in the ordinary course of business consistent with
GHC's past practices.
(b) All Assets which are material to GHC's business on a
consolidated basis, held under leases or subleases by any
of the GHC Entities, are held under valid Contracts
enforceable against the GHC Entity, and to the Knowledge of
GHC enforceable against its counterparty, 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.
(c) To the knowledge of GHC, the GHC Entities currently
maintain insurance similar in amounts, scope, and coverage
to that maintained by other peer banking organizations.
None of the GHC Entities has received notice from any
insurance carrier that (i) any policy of insurance will be
canceled or that coverage thereunder will be reduced or
eliminated, or (ii) premium costs with respect to such
policies of insurance will be substantially increased.
Except as disclosed in Section 5.10(e), there are presently
no claims for amounts exceeding in any individual case
$10,000 pending under such policies of insurance and no
notices of claims in excess of such amounts have been given
by any GHC Entity under such policies.
(d) The Assets of the GHC Entities include all Assets
required to operate the business of the GHC Entities as
presently conducted.
5.11 Intellectual Property. Each GHC Entity owns or has a
license to use all of the Intellectual Property used by
such GHC Entity in the course of its business. Each GHC
Entity is the owner of or has a license to any Intellectual
Property sold or licensed to a third party by such GHC
Entity in connection with such GHC Entity's business
operations, and such GHC Entity has the right to convey by
sale or license any Intellectual Property so conveyed. No
GHC Entity is in Default under any of its material
Intellectual Property licenses. No proceedings have been
instituted, or are pending or to the Knowledge of GHC
threatened, which challenge the rights of any GHC Entity
with respect to Intellectual Property used, sold or
licensed by such GHC Entity in the course of its business,
nor has any person claimed or alleged any rights to such
Intellectual Property. To the knowledge of GHC, the
conduct of the business of the GHC Entities does not
infringe any Intellectual Property of any other person.
Except as disclosed in Section 5.11 of the FNBGC Disclosure
Memorandum, no officer, director or employee of any GHC
Entity is party to any Contract which restricts or
prohibits such officer, director or employee from engaging
in activities competitive with any Person, including any
GHC Entity.
5.12 Environmental Matters.
(a) To the Knowledge of GHC, each GHC Entity, its
Participation Facilities, and its Operating Properties are,
and have been, in compliance with all Environmental Laws,
except for violations which are not reasonably likely to
have, individually or in the aggregate, a GHC Material
Adverse Effect.
(b) There is no Litigation pending or, to the Knowledge of
GHC, threatened before any court, governmental agency, or
authority or other forum in which any GHC Entity or any of
its Operating Properties or Participation Facilities (or
GHC in respect of such Operating Property or Participation
Facility) has been or, with respect to threatened
Litigation, may be named as a defendant (i) for alleged
noncompliance (including by any predecessor) with any
Environmental Law or (ii) relating to the release,
discharge, spillage, or disposal into the environment of
any Hazardous Material, whether or not occurring at, on,
under, adjacent to, or affecting (or potentially affecting)
a site owned, leased, or operated by any GHC Entity or any
of its Operating Properties or Participation Facilities,
except for such Litigation pending or threatened that is
not reasonably likely to have, individually or in the
aggregate, a GHC Material Adverse Effect, nor is there any
reasonable basis for any Litigation of a type described in
this sentence, except such as is not reasonably likely to
have, individually or in the aggregate, a GHC Material
Adverse Effect.
5.13 Compliance with Laws. GHC is duly registered as a
bank holding company under the BHC Act. Each GHC Entity
has in effect all Permits necessary for it to own, lease,
or operate its material Assets and to carry on its business
as now conducted, except for those Permits the absence of
which are not reasonably likely to have, individually or in
the aggregate, a GHC Material Adverse Effect, 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 GHC Material Adverse
Effect. Except as disclosed in Section 5.13 of the FNBGC
Disclosure Memorandum, none of the GHC Entities:
(a) is in Default under any of the provisions of its
Articles of Incorporation or Bylaws (or other governing
instruments);
(b) is in Default under any Laws, Orders, or Permits
applicable to its business or employees conducting its
business, except for Defaults which are not reasonably
likely to have, individually or in the aggregate, a GHC
Material Adverse Effect; or
(c) since January 1, 1996, 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 GHC Entity is not
in compliance with any of the Laws or Orders which such
governmental authority or Regulatory Authority enforces,
where such noncompliance is reasonably likely to have,
individually or in the aggregate, a GHC Material Adverse
Effect, (ii) threatening to revoke any Permits, or (iii)
requiring any GHC Entity to enter into or consent to the
issuance of a cease and desist order, formal agreement,
directive, commitment, or memorandum of understanding, or
to adopt any Board resolution or similar undertaking, which
restricts materially the conduct of its business or in any
manner relates to its capital adequacy, its credit or
reserve policies, its management, or the payment of
dividends.
Copies of all material reports, correspondence, notices and
other documents relating to any inspection, audit,
monitoring or other form of review or enforcement action by
a Regulatory Authority have been made available to CCBG.
5.14 Labor Relations. No GHC Entity is the subject of any
Litigation asserting that it or any other GHC Entity 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 GHC Entity to bargain
with any labor organization as to wages or conditions of
employment, nor is any GHC Entity party to any collective
bargaining agreement, nor is there any strike or other
labor dispute involving any GHC Entity, pending or
threatened, or to the Knowledge of GHC, is there any
activity involving any GHC Entity's employees seeking to
certify a collective bargaining unit or engaging in any
other organization activity.
5.15 Employee Benefit Plans.
(a) GHC has disclosed in Section 5.15 of the FNBGC
Disclosure Memorandum, and has delivered or made available
to CCBG prior to the execution of this Agreement copies in
each case of, all pension, retirement, profit-sharing,
deferred compensation, stock option, employee stock
ownership, severance pay, vacation, bonus, or other
incentive plan, all other written employee programs,
arrangements, or agreements, all medical, vision, dental,
or other health plans, all life insurance plans, and all
other employee benefit plans or fringe benefit plans,
including "employee benefit plans" as that term is defined
in Section 3(3) of ERISA, currently adopted, maintained by,
sponsored in whole or in part by, or contributed to by any
GHC Entity or ERISA Affiliate thereof for the benefit of
employees, retirees, dependents, spouses, directors,
independent contractors, or other beneficiaries and under
which employees, retirees, dependents, spouses, directors,
independent contractors, or other beneficiaries are
eligible to participate (collectively, the "GHC Benefit
Plans"). Any of the GHC Benefit Plans which is an
"employee pension benefit plan," as that term is defined in
Section 3(2) of ERISA, is referred to herein as a "GHC
ERISA Plan." Each GHC ERISA Plan which is also a "defined
benefit plan" (as defined in Section 414(j) of the Internal
Revenue Code) is referred to herein as a "GHC Pension
Plan." No GHC Pension Plan is or has been a multiemployer
plan within the meaning of Section 3(37) of ERISA.
(b) All GHC 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 GHC Material Adverse Effect. Except as
disclosed in Section 5.15 of the FNBGC Disclosure
Memorandum, each GHC 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 GHC is not aware of any
circumstances likely to result in revocation of any such
favorable determination letter. No GHC Entity has engaged
in a transaction with respect to any GHC Benefit Plan that,
assuming the taxable period of such transaction expired as
of the date hereof, would subject any GHC Entity to a Tax
imposed by either Section 4975 of the Internal Revenue Code
or Section 502(i) of ERISA in amounts which are reasonably
likely to have, individually or in the aggregate, a GHC
Material Adverse Effect.
(c) To the Knowledge of GHC, no GHC 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 GHC Pension Plan, (ii) no change in the actuarial
assumptions with respect to any GHC Pension Plan, and (iii)
no increase in benefits under any GHC 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 GHC Material Adverse Effect or materially
adversely affect the funding status of any such plan.
Neither any GHC Pension Plan nor any "single-employer
plan," within the meaning of Section 4001(a)(15) of ERISA,
currently or formerly maintained by any GHC Entity, or the
single-employer plan of any entity which is considered one
employer with GHC under Section 4001 of ERISA or Section
414 of the Internal Revenue Code or Section 302 of ERISA
(whether or not waived) (an "ERISA Affiliate") has an
"accumulated funding deficiency" within the meaning of
Section 412 of the Internal Revenue Code or Section 302 of
ERISA, which is reasonably likely to have a GHC Material
Adverse Effect. No GHC Entity has provided, or is required
to provide, security to a GHC Pension Plan or to any
single-employer plan of an ERISA Affiliate pursuant to
Section 401(a)(29) of the Internal Revenue Code.
(d) Within the six-year period preceding the Effective
Time, no Liability under Subtitle C or D of Title IV of
ERISA has been or is expected to be incurred by any GHC
Entity with respect to any ongoing, frozen, or terminated
single-employer plan or the single-employer plan of any
ERISA Affiliate, which Liability is reasonably likely to
have a GHC Material Adverse Effect. No GHC Entity has
incurred any withdrawal Liability with respect to a
multiemployer plan under Subtitle B of Title IV of ERISA
(regardless of whether based on contributions of an ERISA
Affiliate), which Liability is reasonably likely to have a
GHC Material Adverse Effect. No notice of a "reportable
event," within the meaning of Section 4043 of ERISA for
which the 30-day reporting requirement has not been waived,
has been required to be filed for any GHC Pension Plan or
by any ERISA Affiliate within the 12-month period ending on
the date hereof.
(e) Except as disclosed in Section 5.15 of the FNBGC
Disclosure Memorandum, no GHC Entity has any Liability for
retiree health and life benefits under any of the GHC
Benefit Plans and there are no restrictions on the rights
of such GHC Entity to amend or terminate any such retiree
health or benefit Plan without incurring any Liability
thereunder, which Liability is reasonably likely to have a
GHC Material Adverse Effect.
(f) Except as disclosed in Section 5.15 of the FNBGC
Disclosure Memorandum, neither the execution and delivery
of this Agreement nor the consummation of the transactions
contemplated hereby will (i) result in any payment
(including severance, unemployment compensation, golden
parachute, or otherwise) becoming due to any director or
any employee of any GHC Entity from any GHC Entity under
any GHC Benefit Plan or otherwise, (ii) increase any
benefits otherwise payable under any GHC Benefit Plan, or
(iii) result in any acceleration of the time of payment or
vesting of any such benefit, where such payment, increase,
or acceleration is reasonably likely to have, individually
or in the aggregate, a GHC Material Adverse Effect.
(g) The actuarial present values of all accrued deferred
compensation entitlements (including entitlements under any
executive compensation, supplemental retirement, or
employment agreement) of employees and former employees of
any GHC Entity and their respective beneficiaries, other
than entitlements accrued pursuant to funded retirement
plans subject to the provisions of Section 412 of the
Internal Revenue Code or Section 302 of ERISA, have to the
knowledge of GHC been fully reflected on the GHC Financial
Statements to the extent required by and in accordance with
GAAP.
5.16 Material Contracts. Except as disclosed in Section
5.16 of the FNBGC Disclosure Memorandum or otherwise
reflected in the GHC Financial Statements, none of the GHC
Entities, 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 $25,000, (ii) any Contract relating to the
borrowing of money by any GHC Entity or the guarantee by
any GHC Entity of any such obligation (other than Contracts
evidencing deposit liabilities, purchases of federal funds,
fully-secured repurchase agreements, and Federal Home Loan
Bank advances of depository institution Subsidiaries, trade
payables and Contracts relating to borrowings or guarantees
made in the ordinary course of business), (iii) any
Contract which prohibits or restricts any GHC Entity from
engaging in any business activities in any geographic area,
line of business or otherwise in competition with any other
Person, (iv) any Contract between or among GHC Entities,
(v) any Contract involving Intellectual Property (other
than Contracts entered into in the ordinary course with
customers and "shrink-wrap" software licenses), (vi) any
Contract relating to the provision of data processing,
network communication, or other technical services to or by
any GHC Entity, (vii) any Contract relating to the purchase
or sale of any goods or services (other than Contracts
entered into in the ordinary course of business and
involving payments under any individual Contract not in
excess of $50,000), (viii) any exchange-traded or over-the-
counter swap, forward, future, option, cap, floor, or
collar financial Contract, or any other interest rate or
foreign currency protection Contract not included on its
balance sheet which is a financial derivative Contract, and
(ix) any other Contract or amendment thereto that would be
required to be filed with any relevant Regulatory Authority
as of the date of this Agreement (together with all
Contracts referred to in Sections 5.10 and 5.15(a), the
"GHC Contracts"). With respect to each GHC Contract and
except as disclosed in Section 5.16 of the FNBGC Disclosure
Memorandum: (i) the Contract is in full force and effect;
(ii) no GHC Entity is in Default thereunder, other than
Defaults which are not reasonably likely to have,
individually or in the aggregate, a GHC Material Adverse
Effect; (iii) no GHC Entity has repudiated or waived any
material provision of any such Contract; and (iv) no other
party to any such Contract is, to the Knowledge of GHC, in
Default in any respect, other than Defaults which are not
reasonably likely to have, individually or in the
aggregate, a GHC Material Adverse Effect, or has repudiated
or waived any material provision thereunder. Except as
disclosed in Section 5.16 to the FNBGC Disclosure
Memorandum, all of the indebtedness of any GHC Entity for
money borrowed is prepayable at any time by such GHC Entity
without penalty or premium.
5.17 Legal Proceedings. Except as disclosed in Section
5.17 of the FNBGC Disclosure Memorandum, there is no
Litigation instituted or pending, or, to the Knowledge of
GHC, 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 GHC Entity, or against any director, employee or
employee benefit plan of any GHC Entity, or against any
Asset, interest, or right of any of them, that is
reasonably likely to have, individually or in the
aggregate, a GHC Material Adverse Effect, nor are there any
Orders of any Regulatory Authorities, other governmental
authorities, or arbitrators outstanding against any GHC
Entity, that are reasonably likely to have, individually or
in the aggregate, a GHC Material Adverse Effect. Section
5.17 of the FNBGC Disclosure Memorandum contains a list of
all Litigation as of the date of this Agreement to which
any GHC Entity is named as a defendant or cross-defendant
or for which any GHC Entity has any potential Liability.
5.18 Reports. Since January 1, 1996, or the date of
organization if later, each GHC Entity has timely filed all
reports and statements, together with any amendments
required to be made with respect thereto, that it was
required to file with Regulatory Authorities, except where
the failure to file is not reasonably likely to have,
individually or in the aggregate, a GHC Material Adverse
Effect. As of their respective dates, each of such reports
and documents, including the financial statements,
exhibits, and schedules thereto, complied in all material
respects with all applicable Laws. As of its respective
date, each such report and document did not contain any
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements made therein, in light of the
circumstances under which they were made, not misleading.
5.19 Statements True and Correct. No statement,
certificate, instrument, or other writing furnished or to
be furnished by any GHC Entity or any Affiliate thereof to
CCBG 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 GHC Entity or
any Affiliate thereof for inclusion in the Proxy Statement
to be mailed to GHC's and FNBGC's stockholders in
connection with the Stockholders' Meeting, and any other
documents to be filed by a GHC Entity 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 GHC, be false or misleading with respect to
any material fact, or omit to state any material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading,
or, in the case of the Proxy Statement or any amendment
thereof or supplement thereto, at the time of the
Stockholders' Meeting, be false or misleading with respect
to any material fact, or omit to state any material fact
necessary to correct any statement in any earlier
communication with respect to the solicitation of any proxy
for the Stockholders' Meeting. All documents that any GHC
Entity 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.
5.20 Accounting, Tax and Regulatory Matters. No GHC
Entity or any Affiliate thereof has taken or agreed to take
any action or has any Knowledge of any fact or circumstance
that is reasonably likely to (i) prevent the Merger from
qualifying for pooling-of-interests accounting treatment or
as a reorganization within the meaning of Section 368(a) of
the Internal Revenue Code, or (ii) materially impede or
delay receipt of any Consents of Regulatory Authorities
referred to in Section 9.1(b) or result in the imposition
of a condition or restriction of the type referred to in
the last sentence of such Section.
5.21 State Takeover Laws. Each GHC Entity has taken all
necessary action to exempt the transactions contemplated by
this Agreement from, or if necessary to challenge the
validity or applicability of, any applicable "moratorium,"
"fair price," "business combination," "control share," or
other anti-takeover Laws (collectively, "Takeover Laws"),
including Sections 14-2-1111 and 14-2-1131 of the GBCC.
5.22 Charter Provisions. Each GHC Entity has taken all
action so that the entering into of this Agreement and the
consummation of the Merger and the other transactions
contemplated by this Agreement do not and will not result
in the grant of any rights to any Person under the Articles
of Incorporation, Bylaws or other governing instruments of
any GHC Entity or restrict or impair the ability of CCBG or
any of its Subsidiaries to vote, or otherwise to exercise
the rights of a stockholder with respect to, shares of any
GHC Entity that may be directly or indirectly acquired or
controlled by them.
5.23 Opinion of Financial Advisor. GHC has received the
opinion of The Xxxxxx Xxxxxx Company, dated the date of
this Agreement, to the effect that the Exchange Ratios are
fair, from a financial point of view, to such holders, a
signed copy of which has been delivered to CCBG.
5.24 Board Recommendation. The Board of Directors of GHC
and FNBGC, at a meeting duly called and held, has by
unanimous vote of the directors present (i) determined that
this Agreement and the transactions contemplated hereby,
including the Mergers, taken together, are fair to and in
the best interests of their respective stockholders and
(ii) resolved to recommend that the holders of the shares
of GHC Common Stock and FNBGC Common Stock, respectively,
approve this Agreement.
5.27 Millennium Compliance. FNBGC has made and is making
inquiries of its software and data processing providers
with respect to Year 2000 problem compliance, and is in
compliance in all material respects with the FFIEC
Interagency Statement, "Guidance Concerning Institution Due
Diligence in Connection with Service Provider and Software
Vendor Year 2000 Readiness" (March 17, 1998) (the
"Interagency Statement") and the "Interagency Guidelines
Establishing Year 2000 Standards for Safety and Soundness"
(September 29, 1998) (the "Interagency Guidelines").
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF CCBG
CCBG hereby represents and warrants to GHC and FNBGC as
follows:
6.1 Organization, Standing, and Power. CCBG is a
corporation duly organized, validly existing, and in good
standing under the Laws of the State of Florida, and has
the corporate power and authority to carry on its business
as now conducted and to own, lease and operate its material
Assets. CCBG 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 CCBG Material Adverse
Effect.
6.2 Authority; No Breach By Agreement.
(a) CCBG 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 CCBG, subject to receipt of
the requisite Consents referred to in Section 9.1(b). This
Agreement represents a legal, valid, and binding obligation
of CCBG, enforceable against CCBG in accordance with its
terms (except in all cases as such enforceability may be
limited by applicable bankruptcy, insolvency,
reorganization, receivership, conservatorship, moratorium,
or similar Laws affecting the enforcement of creditors'
rights generally and except that the availability of the
equitable remedy of specific performance or injunctive
relief is subject to the discretion of the court before
which any proceeding may be brought).
(b) Neither the execution and delivery of this Agreement
by CCBG, nor the consummation by CCBG of the transactions
contemplated hereby, nor compliance by CCBG with any of the
provisions hereof, will (i) conflict with or result in a
breach of any provision of CCBG's Articles of Incorporation
or Bylaws, or (ii) subject to receipt of the requisite
Consents referred to in Section 9.1(b), 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 CCBG Entity under, any Contract or Permit of any CCBG
Entity, where such Default or Lien, or any failure to
obtain such Consent, is reasonably likely to have,
individually or in the aggregate, a CCBG Material Adverse
Effect, or, (iii) subject to receipt of the requisite
Consents referred to in Section 9.1(b), constitute or
result in a Default under, or require any Consent pursuant
to, any Law or Order applicable to any CCBG Entity or any
of their respective material Assets (including any CCBG
Entity or any GHC Entity becoming subject to or liable for
the payment of any Tax or any of the Assets owned by any
CCBG Entity or any GHC Entity being reassessed or revalued
by any Taxing authority).
(c) Other than in connection or compliance with the
provisions of the Securities Laws, applicable state
corporate and securities Laws, and rules of the NASD, and
other than Consents required from Regulatory Authorities,
and other than notices to or filings with the Internal
Revenue Service or the Pension Benefit Guaranty Corporation
with respect to any employee benefit plans, or under the
HSR Act, and other than Consents, filings, or notifications
which, if not obtained or made, are not reasonably likely
to have, individually or in the aggregate, a CCBG Material
Adverse Effect, no notice to, filing with, or Consent of,
any public body or authority is necessary for the
consummation by CCBG of the Merger and the other
transactions contemplated in this Agreement.
6.3 Capital Stock.
(a) The authorized capital stock of CCBG consists of (i)
90,000,000 shares of CCBG Common Stock, of which 8,860,073
shares are issued and outstanding as of the date of this
Agreement, and (ii) 3,000,000 shares of CCBG Preferred
Stock, of which no shares are issued and outstanding. All
of the issued and outstanding shares of CCBG Capital Stock
are, and all of the shares of CCBG Common Stock to be
issued in exchange for shares of GHC Common Stock and FNBGC
Common Stock upon consummation of the Mergers, 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 FBCA. None of the outstanding
shares of CCBG Capital Stock has been, and none of the
shares of CCBG Common Stock to be issued in exchange for
shares of GHC Common Stock and FNBGC Common Stock upon
consummation of the Mergers will be, issued in violation of
any preemptive rights of the current or past stockholders
of CCBG.
(b) Except as set forth in Section 6.3(a), or as provided
pursuant to the CCBG Dividend Reinvestment and Stock
Purchase Plan or the CCBG Stock Plans, or as disclosed in
Section 6.3 of the CCBG Disclosure Memorandum, there are no
shares of capital stock or other equity securities of CCBG
outstanding and no outstanding Equity Rights relating to
the capital stock of CCBG.
6.4 CCBG Subsidiaries CCBG has disclosed in Section 6.4
of the CCBG Disclosure Memorandum all of the Significant
CCBG Subsidiaries as of the date of this Agreement that are
corporations and all of the CCBG Subsidiaries that are
general or limited partnerships or other non-corporate
entities. Each CCBG Subsidiary that is a depository
institution is an "insured institution" as defined in the
Federal Deposit Insurance Act and applicable regulations
thereunder.
6.5 SEC Filings; Financial Statements.
(a) CCBG has timely filed and made available to GHC all
SEC Documents required to be filed by CCBG since December
31, 1995 (the "CCBG SEC Reports"). The CCBG SEC Reports
(i) at the time filed, complied in all material respects
with the applicable requirements of the Securities Laws and
other applicable Laws 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
CCBG SEC Reports or necessary in order to make the
statements in such CCBG SEC Reports, in light of the
circumstances under which they were made, not misleading.
(b) Each of the CCBG Financial Statements (including, in
each case, any related notes) contained in the CCBG SEC
Reports, including any CCBG SEC Reports filed after the
date of this Agreement until the Effective Time, complied
as to form in all material respects with the applicable
published rules and regulations of the SEC with respect
thereto, was prepared in accordance with GAAP applied on a
consistent basis throughout the periods involved (except as
may be indicated in the notes to such financial statements
or, in the case of unaudited interim statements, as
permitted by Form 10-Q of the SEC), and fairly presented in
all material respects the consolidated financial position
of CCBG and its Subsidiaries as at the respective dates and
the consolidated results of operations and cash flows for
the periods indicated, except that the unaudited interim
financial statements were or are subject to normal and
recurring year-end adjustments which were not or are not
expected to be material in amount or effect.
6.6 Absence of Undisclosed Liabilities. Except as
disclosed in the CCBG Disclosure Memorandum, no CCBG Entity
has any Liabilities that are reasonably likely to have,
individually or in the aggregate, a CCBG Material Adverse
Effect, except Liabilities which are accrued or reserved
against in the consolidated balance sheets of CCBG as of
June 30, 1998 and December 31, 1997, included in the CCBG
Financial Statements delivered prior to the date of this
Agreement or reflected in the notes thereto. No CCBG
Entity has incurred or paid any Liability since December
31, 1998, except for such Liabilities incurred or paid (i)
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 CCBG Material
Adverse Effect or (ii) in connection with the transactions
contemplated by this Agreement.
6.7 Absence of Certain Changes or Events. Since June 30,
1998, except as disclosed in the CCBG Financial Statements
delivered prior to the date of this Agreement or as
disclosed in Section 6.7 of the CCBG Disclosure Memorandum,
(i) there have been no events, changes or occurrences which
have had, or are reasonably likely to have, individually or
in the aggregate, a CCBG Material Adverse Effect, and (ii)
the CCBG Entities 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 CCBG
provided in Article 7.
6.8 Allowance for Possible Loan Losses. In the opinion of
management of CCBG, the Allowance shown on the consolidated
balance sheets of CCBG included in the most recent CCBG
Financial Statements dated prior to the date of this
Agreement was, and the Allowance shown on the consolidated
balance sheets of CCBG included in the CCBG Financial
Statements as of dates subsequent to the execution of this
Agreement will be, as of the dates thereof, adequate
(within the meaning of GAAP and applicable regulatory
requirements or guidelines) to provide for all known or
reasonably anticipated losses relating to or inherent in
the loan and lease portfolios (including accrued interest
receivables) of the CCBG Entities and other extensions of
credit (including letters of credit and commitments to make
loans or extend credit) by the CCBG Entities as of the
dates thereof.
6.9 Intellectual Property. Each CCBG Entity owns or has a
license to use all of the Intellectual Property used by
such CCBG Entity in the course of its business. Each CCBG
Entity is the owner of or has a license to any Intellectual
Property sold or licensed to a third party by such CCBG
Entity in connection with such CCBG Entity's business
operations, and such CCBG Entity has the right to convey by
sale or license any Intellectual Property so conveyed. No
CCBG Entity is in Default under any of its material
Intellectual Property licenses. No proceedings have been
instituted, or are pending or to the Knowledge of CCBG
threatened, which challenge the rights of any CCBG Entity
with respect to Intellectual Property used, sold or
licensed by such CCBG Entity in the course of its business,
nor has any person claimed or alleged any rights to such
Intellectual Property. To the Knowledge of CCBG, the
conduct of the business of the CCBG Entities does not
infringe any Intellectual Property of any other person. No
officer, director or employee of any CCBG Entity is party
to any Contract which restricts or prohibits such officer,
director or employee from engaging in activities
competitive with any Person, including any CCBG Entity.
6.10 Environmental Matters. To the Knowledge of CCBG,
each CCBG Entity, its Participation Facilities, and its
Operating Properties are, and have been, in compliance with
all Environmental Laws, except for violations which are not
reasonably likely to have, individually or in the
aggregate, a CCBG Material Adverse Effect.
6.11 Compliance with Laws. CCBG is duly registered as a
bank holding company under the BHC Act. Each CCBG Entity
has in effect all Permits necessary for it to own, lease or
operate its material Assets and to carry on its business as
now conducted, except for those Permits the absence of
which are not reasonably likely to have, individually or in
the aggregate, a CCBG Material Adverse Effect, 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 CCBG Material Adverse
Effect. Except as disclosed in Section 6.11 of the CCBG
Disclosure Memorandum, none of the CCBG Entities:
(a) is in Default under its Articles of Incorporation or
Bylaws (or other governing instruments); or
(b) is in Default under any Laws, Orders or Permits
applicable to its business or employees conducting its
business, except for Defaults which are not reasonably
likely to have, individually or in the aggregate, a CCBG
Material Adverse Effect; or
(c) since January 1, 1996, 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 CCBG Entity is not
in compliance with any of the Laws or Orders which such
governmental authority or Regulatory Authority enforces,
where such noncompliance is reasonably likely to have,
individually or in the aggregate, a CCBG Material Adverse
Effect, (ii) threatening to revoke any Permits, the
revocation of which is reasonably likely to have,
individually or in the aggregate, a CCBG Material Adverse
Effect, or (iii) requiring any CCBG Entity to enter into or
consent to the issuance of a cease and desist order, formal
agreement, directive, commitment or memorandum of
understanding, or to adopt any Board resolution or similar
undertaking, which restricts materially the conduct of its
business, or in any manner relates to its capital adequacy,
its credit or reserve policies, its management, or the
payment of dividends.
6.12 Employee Benefit Plans.
(a) CCBG's pension, retirement, profit-sharing, deferred
compensation, stock option, employee stock ownership,
severance pay, vacation, bonus, or other incentive plan,
all other written employee programs, arrangements, or
agreements, all medical, vision, dental, or other health
plans, all life insurance plans, and all other employee
benefit plans or fringe benefit plans, including "employee
benefit plans" as that term is defined in Section 3(3) of
ERISA, currently adopted, maintained by, sponsored in whole
or in part by, or contributed to by any CCBG Entity or
ERISA Affiliate thereof for the benefit of employees,
retirees, dependents, spouses, directors, independent
contractors, or other beneficiaries and under which
employees, retirees, dependents, spouses, directors,
independent contractors, or other beneficiaries are
eligible to participate are referred to herein as the "CCBG
Benefit Plans". Any of the CCBG Benefit Plans which is an
"employee pension benefit plan," as that term is defined in
Section 3(2) of ERISA, is referred to herein as a "CCBG
ERISA Plan." Each CCBG ERISA Plan which is also a "defined
benefit plan" (as defined in Section 414(j) of the Internal
Revenue Code) is referred to herein as a "CCBG Pension
Plan." No CCBG Pension Plan is or has been a multiemployer
plan within the meaning of Section 3(37) of ERISA.
(b) All CCBG 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 CCBG Material Adverse Effect. Each CCBG 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
CCBG is not aware of any circumstances likely to result in
revocation of any such favorable determination letter which
failure to obtain would have a CCBG Material Adverse
Effect. No CCBG Entity has engaged in a transaction with
respect to any CCBG Benefit Plan that, assuming the taxable
period of such transaction expired as of the date hereof,
would subject any CCBG Entity to a Tax imposed by either
Section 4975 of the Internal Revenue Code or Section 502(i)
of ERISA in amounts which are reasonably likely to have,
individually or in the aggregate, a CCBG Material Adverse
Effect.
(c) To the Knowledge of CCBG, no CCBG Pension Plan has any
"unfunded current liability," as that term is defined in
Section 302(d)(8)(A) of ERISA, based on actuarial
assumptions set forth for such plan's most recent actuarial
valuation. Since the date of the most recent actuarial
valuation, there has been (i) no material change in the
financial position of a CCBG Pension Plan, (ii) no change
in the actuarial assumptions with respect to any CCBG
Pension Plan, and (iii) no increase in benefits under any
CCBG 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 CCBG Material Adverse
Effect or materially adversely affect the funding status of
any such plan. Neither any CCBG Pension Plan nor any
"single-employer plan," within the meaning of Section
4001(a)(15) of ERISA, currently or formerly maintained by
any CCBG Entity, or the single-employer plan of any ERISA
Affiliate has an "accumulated funding deficiency" within
the meaning of Section 412 of the Internal Revenue Code or
Section 302 of ERISA, which is reasonably likely to have a
CCBG Material Adverse Effect. No CCBG Entity has provided,
or is required to provide, security to a CCBG Pension Plan
or to any single-employer plan of an ERISA Affiliate
pursuant to Section 401(a)(29) of the Internal Revenue
Code.
(d) Within the six-year period preceding the Effective
Time, no Liability under Subtitle C or D of Title IV of
ERISA has been or is expected to be incurred by any CCBG
Entity with respect to any ongoing, frozen or terminated
single-employer plan or the single-employer plan of any
ERISA Affiliate, which Liability is reasonably likely to
have a CCBG Material Adverse Effect. No CCBG Entity has
incurred any withdrawal Liability with respect to a
multiemployer plan under Subtitle B of Title IV of ERISA
(regardless of whether based on contributions of an ERISA
Affiliate), which Liability is reasonably likely to have a
CCBG Material Adverse Effect. No notice of a "reportable
event," within the meaning of Section 4043 of ERISA for
which the 30-day reporting requirement has not been waived,
has been required to be filed for any CCBG Pension Plan or
by any ERISA Affiliate within the 12-month period ending on
the date hereof.
6.13 Legal Proceedings. There is no Litigation instituted
or pending, or, to the Knowledge of CCBG, 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 CCBG Entity, or against
any director, employee or employee benefit plan of any CCBG
Entity, or against any Asset, interest, or right of any of
them, that is reasonably likely to have, individually or in
the aggregate, a CCBG Material Adverse Effect, nor are
there any Orders of any Regulatory Authorities, other
governmental authorities, or arbitrators outstanding
against any CCBG Entity, that are reasonably likely to
have, individually or in the aggregate, a CCBG Material
Adverse Effect.
6.14 Reports. Since January 1, 1996, or the date of
organization if later, each CCBG Entity has filed all
reports and statements, together with any amendments
required to be made with respect thereto, that it was
required to file with Regulatory Authorities, except where
the failure to file is not reasonably likely to have,
individually or in the aggregate, a CCBG Material Adverse
Effect. As of their respective dates, each of such reports
and documents, including the financial statements,
exhibits, and schedules thereto, complied in all material
respects with all applicable Laws. As of its respective
date, each such report and document did not, in all
material respects, contain any untrue statement of a
material fact or omit to state a material fact required to
be stated therein or necessary to make the statements made
therein, in light of the circumstances under which they
were made, not misleading.
6.15 Statements True and Correct. No statement,
certificate, instrument or other writing furnished or to be
furnished by any CCBG Entity or any Affiliate thereof to
GHC 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 CCBG Entity or any
Affiliate thereof for inclusion in the Registration
Statement to be filed by CCBG with the SEC, will, when the
Registration Statement becomes effective, be false or
misleading with respect to any material fact, or omit to
state any material fact necessary to make the statements
therein not misleading. None of the information supplied
or to be supplied by any CCBG Entity or any Affiliate
thereof for inclusion in the Proxy Statement to be mailed
to GHC's and FNBGC's stockholders in connection with the
Stockholders' Meeting, and any other documents to be filed
by any CCBG Entity 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
GHC and FNBGC, be false or misleading with respect to any
material fact, or omit to state any material fact necessary
to make the statements therein, in light of the
circumstances under which they were made, not misleading,
or, in the case of the Proxy Statement or any amendment
thereof or supplement thereto, at the time of the
Stockholders' Meeting, be false or misleading with respect
to any material fact, or omit to state any material fact
necessary to correct any statement in any earlier
communication with respect to the solicitation of any proxy
for the Stockholders' Meeting. All documents that any CCBG
Entity 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.
6.16 Accounting, Tax and Regulatory Matters. No CCBG
Entity or any Affiliate thereof has taken or agreed to take
any action or has any Knowledge of any fact or circumstance
that is reasonably likely to (i) prevent the Merger from
qualifying for pooling-of-interests accounting treatment or
as a reorganization within the meaning of Section 368(a) of
the Internal Revenue Code, or (ii) materially impede or
delay receipt of any Consents of Regulatory Authorities
referred to in Section 9.1(b) or result in the imposition
of a condition or restriction of the type referred to in
the last sentence of such Section.
6.17 Taxes. All Tax Returns required to be filed by or on
behalf of any of the CCBG Entities 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, 1997 and on or before the day of the most
recent fiscal year end immediately preceding the Effective
Time, except to the extent that all such failures to file,
taken together, are not reasonably likely to have a CCBG
Material Adverse Effect and all such Tax Returns filed are
complete and accurate in all material respects. All Taxes
shown on Tax Returns have been paid. As of the date of
this Agreement, there is no audit examination, deficiency,
or refund Litigation with respect to any Taxes, except as
reserved against any CCBG Financial Statements delivered
prior to the date of this Agreement or as disclosed in
Section 6.17 of the CCBG Disclosure Memorandum. The
provision for Taxes due or to become due for any of the
CCBG Entities for the period or periods through and
including the day of the respective CCBG Financial
Statements has been made and is reflected on such CCBG
Financial Statements is to the Knowledge of CCBG,
sufficient to cover all such Taxes.
ARTICLE 7
CONDUCT OF BUSINESS PENDING CONSUMMATION
7.1 Affirmative Covenants of GHC and FNBGC. From the date
of this Agreement until the earlier of the Effective Time
or the termination of this Agreement, unless the prior
written consent of CCBG shall have been obtained, and
except as otherwise expressly contemplated herein, each of
GHC and FNBGC shall and shall cause each of its
Subsidiaries to (a) operate its business only in the usual,
regular, and ordinary course, (b) preserve intact its
business organization and Assets and maintain its rights
and franchises, and (c) take no action which would (i)
materially adversely affect the ability of any Party to
obtain any Consents required for the transactions
contemplated hereby without imposition of a condition or
restriction of the type referred to in the last sentences
of Section 9.1(b) or 9.1(c), or (ii) materially adversely
affect the ability of any Party to perform its covenants
and agreements under this Agreement.
7.2 Negative Covenants of GHC and FNBGC. From the date of
this Agreement until the earlier of the Effective Time or
the termination of this Agreement, unless the prior written
consent of CCBG shall have been obtained, and except as
otherwise expressly contemplated herein, each of GHC and
FNBGC 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:
(a) amend the Articles of Incorporation, Bylaws or other
governing instruments of any GHC Entity, or
(b) incur any additional debt obligation or other
obligation for borrowed money (other than indebtedness of a
GHC Entity to another GHC Entity) except in the ordinary
course of the business of GHC Subsidiaries consistent with
past practices (which shall include, for GHC Subsidiaries
that are depository institutions, creation of deposit
liabilities, purchases of federal funds, advances from the
Federal Reserve Bank or Federal Home Loan Bank, and entry
into repurchase agreements fully secured by U.S. government
or agency securities), or impose, or suffer the imposition,
on any Asset of any GHC Entity of any Lien or permit any
such Lien to exist (other than in connection with deposits,
repurchase agreements, bankers acceptances, "treasury tax
and loan" accounts established in the ordinary course of
business, the satisfaction of legal requirements in the
exercise of trust powers, and Liens in effect as of the
date hereof that are disclosed in the FNBGC Disclosure
Memorandum); or
(c) repurchase, redeem, or otherwise acquire or exchange
(other than exchanges in the ordinary course under employee
benefit plans), directly or indirectly, any shares, or any
securities convertible into any shares, of the capital
stock of any GHC Entity, or declare or pay any dividend or
make any other distribution in respect of GHC's or FNBGC's
capital stock, provided that GHC and FNBGC shall (to the
extent legally and contractually permitted to do so)
declare and pay (i) a cash dividend on the shares of GHC
Common Stock to the extent of all GHC's Assets consisting
of cash and cash equivalents and (ii) an annual cash
dividend on the shares of FNBGC Common Stock at a rate of
not in excess of $6.00 per share, on or before the Closing
Date; or
(d) except for this Agreement or as disclosed in Section
7.2(d) of the FNBGC Disclosure Memorandum, 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 GHC Common Stock or any other capital
stock of any GHC Entity, or any stock appreciation rights,
or any option, warrant, or other Equity Right; or
(e) adjust, split, combine or reclassify any capital stock
of any GHC Entity or issue or authorize the issuance of any
other securities in respect of or in substitution for
shares of GHC Common Stock, or sell, lease, mortgage or
otherwise dispose of or otherwise encumber (x) any shares
of capital stock of any GHC Subsidiary (unless any such
shares of stock are sold or otherwise transferred to
another GHC Entity) or (y) any Asset having a book value in
excess of $50,000 other than in the ordinary course of
business (including without limitations fixed-rate
mortgages) for reasonable and adequate consideration; or
(f) except for purchases of U.S. Treasury securities or
U.S. Government agency securities, which in either case
have maturities of one year or less, purchase any
securities or make any material investment, either by
purchase of stock or securities, contributions to capital,
Asset transfers, or purchase of any Assets (other than
loans up to a principal amount of $500,000), in any Person
other than a wholly owned GHC Subsidiary, or otherwise
acquire direct or indirect control over any Person, other
than in connection with (i) foreclosures in the ordinary
course of business, (ii) acquisitions of control by a
depository institution Subsidiary in its fiduciary
capacity, or (iii) the creation of new wholly owned
Subsidiaries organized to conduct or continue activities
otherwise permitted by this Agreement; or
(g) grant any increase in compensation or benefits to the
employees or officers of any GHC Entity, except in
accordance with past practice as disclosed in Section 7.2
of the FNBGC Disclosure Memorandum or as required by Law;
pay any severance or termination pay or any bonus other
than pursuant to written policies or written Contracts in
effect on the date of this Agreement as disclosed in
Section 7.2 of the FNBGC Disclosure Memorandum; and enter
into or amend any severance agreements with officers of any
GHC Entity; grant any increase in fees or other increases
in compensation or other benefits to directors of any GHC
Entity except in accordance with past practice as disclosed
in Section 7.2 of the FNBGC Disclosure Memorandum; or
voluntarily accelerate the vesting of any stock options or
other stock-based compensation or employee benefits or
other Equity Rights; or
(h) enter into or amend any employment Contract between any
GHC Entity and any Person (unless such amendment is
required by Law) that the GHC Entity does not have the
unconditional right to terminate without Liability (other
than Liability for services already rendered), at any time
on or after the Effective Time; or
(i) adopt any new employee benefit plan of any GHC Entity
or terminate or withdraw from, or make any material change
in or to, any existing employee benefit plans of any GHC
Entity other than any such change that is required by Law
or that, in the opinion of counsel, is necessary or
advisable to maintain the tax qualified status of any such
plan, or make any distributions from such employee benefit
plans, except as required by Law, the terms of such plans
or consistent with past practice; or
(j) make any significant change in any Tax or accounting
methods or systems of internal accounting controls, except
as may be appropriate to conform to changes in Tax Laws or
regulatory accounting requirements or GAAP; or
(k) commence any Litigation other than in accordance with
past practice, settle any Litigation involving any
Liability of any GHC Entity for material money damages or
restrictions upon the operations of any GHC Entity; or
(l) except in the ordinary course of business, enter into,
modify, amend or terminate any material Contract (including
any loan Contract with an unpaid balance exceeding
$500,000) or waive, release, compromise or assign any
material rights or claims.
7.3 Covenants of CCBG. From the date of this Agreement
until the earlier of the Effective Time or the termination
of this Agreement, unless the prior written consent of GHC
shall have been obtained, and except as otherwise expressly
contemplated herein, CCBG covenants and agrees that it
shall and shall cause each of its Subsidiaries to (x)
operate its business only with the intent of increasing
CCBG's long-term shareholder value, (y) preserve intact its
material business organization and Assets and maintain its
material rights and franchises, and (z) take no action
which would (i) materially adversely affect the ability of
any Party to obtain any Consents required for the
transactions contemplated hereby without imposition of a
condition or restriction of the type referred to in the
last sentences of Section 9.1(b) or 9.1(c), or (ii)
materially adversely affect the ability of any Party to
perform its covenants and agreements under this Agreement;
provided, that the foregoing shall not prevent any CCBG
Entity from discontinuing or disposing of any of its Assets
or business if such action is, in the judgment of CCBG,
desirable in the conduct of the business of CCBG and its
Subsidiaries. CCBG further 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 GHC, which
consent shall not be unreasonably withheld:
(a) amend the Articles of Incorporation or Bylaws of CCBG,
in each case, in any manner adverse to the holders of GHC
Common Stock as compared to the rights of holders of CCBG
Common Stock generally.
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 GHC Material Adverse
Effect or a CCBG Material Adverse Effect, as applicable, or
(ii) would cause or constitute a material breach of any of
its representations, warranties, or covenants contained
herein, and to use its reasonable efforts to prevent or
promptly to remedy the same.
7.5 Reports. Each Party and its Subsidiaries shall file
all reports required to be filed by it with Regulatory
Authorities between the date of this Agreement and the
Effective Time and shall deliver to the other Party copies
of all such reports promptly after the same are filed. If
financial statements are contained in any such reports
filed with the SEC, such financial statements will fairly
present in all material respects 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 statements
contained in any other reports to another Regulatory
Authority shall be prepared in accordance with Laws
applicable to such reports.
ARTICLE 8
ADDITIONAL AGREEMENTS
8.1 Registration Statement; Proxy Statement; Stockholder
Approval.
(a) As soon as reasonably practicable after execution of
this Agreement, CCBG shall prepare a private placement
memorandum/proxy statement (the "Placement Memorandum") in
compliance with SEC Regulation D and Rule 506 thereunder
and take any action required to be taken under the
applicable state Blue Sky or securities Laws, to offer and
issue the shares of CCBG Common Stock issuable upon
consummation of the Mergers.
(b) GHC and FNBGC shall cooperate in the preparation of
the Placement Memorandum and shall furnish all information
concerning GHC and FNBGC and the holders of their capital
stock as CCBG may reasonably request in connection with
such action. GHC and FNBGC shall each call a Stockholders'
Meeting, to be held as soon as reasonably practicable after
the Placement Memorandum is available for the purpose of
voting upon approval of this Agreement and such other
related matters as each of them deems appropriate. In
connection with the Stockholders' Meeting; (i) the Parties
shall furnish to each other all information concerning them
that they may reasonably request in connection with such
Placement Memorandum; (ii) the Board of Directors of GHC
and FNBGC shall recommend to their respective stockholders
the approval of the matters submitted for approval (except
to the extent legally required for the discharge by the
Board of Directors of FNBGC of its fiduciary duties, as
determined by a majority of the entire Board, based on the
written opinion of outside counsel under applicable law);
and (iii) the Board of Directors and officers of GHC and
FNBGC shall use their reasonable efforts to obtain such
stockholders' approval (except to the extent legally
required for the discharge by the Board of Directors of
FNBGC of its fiduciary duties, as determined by a majority
of the entire Board, based on the written opinion of
outside counsel under applicable law). CCBG and GHC shall
make all necessary filings with respect to the Mergers
under the Securities Laws and all state securities and blue
sky laws.
(c) No later than 30 days after the publication of 30 days
of combined results of operations following the Mergers,
CCBG shall prepare and file with the SEC a Registration
Statement on Form S-3 or other available form with respect
to the shares of CCBG Common Stock issued pursuant to this
Agreement. CCBG shall maintain the Registration Statement
effective until the first anniversary of the Effective Time
of the Mergers.
(d) CCBG shall pay all expenses incurred by CCBG in
complying with this Section 8.1(c), including without
limitation registration fees, exchange or Nasdaq listing
fees, printing expenses, fees and disbursements of counsel
for CCBG (in connection with the resale registration
statement), state Blue Sky fees and expenses, and the
expense of any special audits incident to or required by
any such registration, but excluding underwriting discounts
and selling commissions, if any.
(e) Upon the registration of shares of the CCBG Common
Stock pursuant to this Agreement, CCBG shall indemnify and
hold harmless the former GHC stockholders selling such
shares (the "Selling Stockholders"), any underwriter of
such shares and each other person, if any, who controls
such GHC stockholder or underwriter within the meaning of
the 1933 Act or the 1934 Act, against any losses, claims,
damages or liabilities, joint or several, to which such
seller, underwriter or controlling person may become
subject under the Securities Laws, state securities laws or
otherwise, insofar as such losses, claims, damages or
liabilities (or actions with respect thereto) arise out of
or are based upon any untrue statement of any material fact
contained in the Registration Statement, any prospectus
contained in the Registration Statement, or any amendment
or supplement to such Registration Statement, or arise out
of or are based upon the omission or alleged omission to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
and CCBG will reimburse such GHC stockholder, underwriter
and each such controlling person for any legal or any other
expenses reasonably incurred by such GHC stockholder,
underwriter or controlling person in connection with
investigating or defending any such loss, claim, damage or
action; provided, however; that CCBG will not be liable in
any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any
untrue statement or omission made in such Registration
Statement, preliminary prospectus or prospectus, or any
such amendment or supplement, in reliance upon and in
conformity with information furnished to CCBG, in writing,
by or on behalf of such GHC or FNBGC stockholder,
underwriter or controlling person specifically for use in
the preparation thereof.
(f) The GHC and FNBGC stockholders, severally and not
jointly, shall indemnify and hold harmless CCBG against any
losses, claims, damages or liabilities, joint or several,
to which CCBG may become subject under the Securities Laws,
state securities laws or otherwise, insofar as such losses,
claims, damages or liabilities (or actions with respect
thereto) arise out of or are based upon any untrue
statement of any material fact contained in the
Registration Statement, any prospectus contained in the
Registration Statement, or any amendment or supplement to
such Registration Statement, or arise out of or are based
upon the omission or alleged omission to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, if such untrue statement
or omission was made in reliance upon and in conformity
with written information furnished by such GHC or FNBGC
stockholder which specifically relates to such GHC or FNBGC
stockholder and is specifically for use in the preparation
of the Registration Statement;
8.2 NASDAQ Listing. CCBG shall use all reasonable efforts
to list, prior to the Effective Time, on the NASDAQ
National Market the shares of CCBG Common Stock to be
issued to the holders of GHC Common Stock and FNBGC Common
Stock pursuant to the Mergers, and CCBG shall give all
notices and make all filings with the NASD required in
connection with the transactions contemplated herein.
8.3 Applications. CCBG shall promptly prepare and file,
and GHC and FNBGC 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. The Parties shall deliver
to each other copies of all filings, correspondence and
orders to and from all Regulatory Authorities in connection
with the transactions contemplated hereby.
8.4 Filings with State Offices. Upon the terms and
subject to the conditions of this Agreement, CCBG shall
execute and file the Articles of Merger with the Secretary
of State of the States of Florida and Georgia in connection
with the Closing.
8.5 Agreement as to Efforts to Consummate. Subject to the
terms and conditions of this Agreement, each Party agrees
to use, and to cause its Subsidiaries to use, its
reasonable efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, all things
necessary, proper, or advisable under applicable Laws to
consummate and make effective, as soon as reasonably
practicable after the date of this Agreement, the
transactions contemplated by this Agreement, including
using its reasonable efforts to lift or rescind any Order
adversely affecting its ability to consummate the
transactions contemplated herein and to cause to be
satisfied the conditions referred to in Article 9;
provided, that nothing herein shall preclude either Party
from exercising its rights under this Agreement. Each
Party shall use, and shall cause each of its Subsidiaries
to use, its reasonable efforts to obtain all Consents
necessary or desirable for the consummation of the
transactions contemplated by this Agreement.
8.6 Investigation and Confidentiality.
(a) Prior to the Effective Time, each Party shall keep the
other Party advised of all material developments relevant
to its business and to consummation of the Merger and shall
permit the other Party to make or cause to be made such
investigation of the business and properties of it and its
Subsidiaries and of their respective financial and legal
conditions as the other Party reasonably requests, provided
that such investigation shall be reasonably related to the
transactions contemplated hereby and shall not interfere
unnecessarily with normal operations. No investigation by
a Party shall affect the representations and warranties of
the other Party.
(b) In addition to the Parties' respective obligations
under the Confidentiality Agreement, which is hereby
reaffirmed and adopted, and incorporated by reference
herein 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. In the event that a Party
is required by applicable law or valid court process to
disclose any such confidential information then such Party
shall provide the other Party with prompt written notice of
any such requirement so that the other Party may seek a
protective order or other appropriate remedy and/or waive
compliance with this Section 8.6. If in the absence of a
protective order or other remedy or the receipt of a waiver
by the other Party, a Party is nonetheless, in the written
opinion of counsel, legally compelled to disclose any such
confidential information to any tribunal or else stand
liable for contempt or suffer other censure or penalty, a
Party may, without liability hereunder, disclose to such
tribunal only that portion of the confidential information
which such counsel advises such Party is legally required
to be disclosed, provided that such disclosing Party use
its best efforts to preserve the confidentiality of such
confidential information, including without limitation, by
cooperating with the other Party to obtain an appropriate
protective order or other reliable assurance that
confidential treatment will be accorded such confidential
information by such tribunal. If this Agreement is
terminated prior to the Effective Time, upon request of the
other Party, each Party shall promptly return or certify
the destruction of all documents and copies thereof, and
all work papers containing confidential information
received from the other Party.
(c) GHC shall use its reasonable efforts to exercise its
rights under confidentiality agreements entered into with
Persons which were considering an Acquisition Proposal with
respect to GHC to preserve the confidentiality of the
information relating to the GHC Entities provided to such
Persons and their Affiliates and Representatives.
(d) Each Party agrees to give the other Party notice as
soon as practicable after any determination by it of any
fact or occurrence relating to the other Party which it has
discovered through the course of its investigation and
which represents, or is reasonably likely to represent,
either a material breach of any representation, warranty,
covenant or agreement of the other Party or which has had
or is reasonably likely to have a GHC Material Adverse
Effect or a CCBG Material Adverse Effect, as applicable.
(e) Upon request of the other Party, GHC shall request
within 10 days of the date hereof, that all third parties
that received confidential information regarding GHC or
FNBGC within the last 12 months in connection with a
possible sale transaction involving GHC or FNBGC promptly
return such confidential information to GHC or FNBGC.
8.7 Press Releases. Prior to the Effective Time, GHC and
CCBG shall consult with each other as to the form and
substance of any press release or other public disclosure
materially related to this Agreement or any other
transaction contemplated hereby; provided, that nothing in
this Section 8.7 shall be deemed to prohibit any Party from
making any disclosure which its counsel deems necessary or
advisable in order to satisfy such Party's disclosure
obligations imposed by Law.
8.8 Certain Actions. Except with respect to this
Agreement and the transactions contemplated hereby, no GHC
Entity nor any Affiliate thereof nor any Representatives
thereof retained by any GHC Entity shall directly or
indirectly solicit or encourage any Acquisition Proposal by
any Person. Except to the extent legally required for the
discharge by the Boards of Directors of GHC and FNBGC of
their fiduciary duties, as determined by a majority of
their respective entire board of directors based on the
written opinion of outside counsel, under applicable law,
no GHC Entity or any Affiliate or Representative thereof
shall furnish any non-public information that it is not
legally obligated to furnish, participate in any
discussions or negotiations with respect to, or enter into
any Contract with respect to, any Acquisition Proposal, or
recommend or endorse any Acquisition Proposal, but GHC and
FNBGC 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 as advised by outside counsel pursuant to a
written opinion. GHC shall promptly (within 24 hours)
advise CCBG following the receipt of any such inquiries or
any Acquisition Proposal and the details thereof, and
advise CCBG of any developments with respect to such
Acquisition Proposal promptly upon the occurrence thereof.
GHC shall (i) immediately cease and cause to be terminated
any existing activities, discussions or negotiations with
any Persons conducted heretofore with respect to any of the
foregoing, (ii) direct and use its reasonable best efforts
to cause all of its Affiliates and Representatives not to
engage in any of the foregoing, and (iii) use its
reasonable best efforts to enforce any confidentiality or
similar agreement relating to any such activities,
discussions, negotiations or Acquisition Proposal. GHC
will take all actions necessary or advisable to inform the
appropriate individuals or entities referred to in the
first sentence of this Section 8.8 of the obligations
undertaken in this Section 8.8.
8.9 Accounting and Tax Treatment. Each of the Parties
undertakes and agrees to use its reasonable efforts to
cause the Merger, and to take no action which would cause
the Merger not, to qualify for treatment as a pooling of
interests for accounting purposes or as a "reorganization"
within the meaning of Section 368(a) of the Internal
Revenue Code for federal income tax purposes.
8.10 State Takeover Laws. Each GHC Entity shall take all
necessary steps to exempt the transactions contemplated by
this Agreement from, or if necessary to challenge the
validity or applicability of, any applicable Takeover Law,
including Sections 14-2-1111 and 14-2-1132 of the GBCC.
8.11 Charter Provisions. Each GHC Entity 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 GHC Entity or restrict or impair the ability of CCBG or
any of its Subsidiaries to vote, or otherwise to exercise
the rights of a stockholder with respect to, shares of any
GHC Entity that may be directly or indirectly acquired or
controlled by them.
8.12 Agreement of Affiliates. GHC has disclosed in
Section 8.12 of the FNBGC Disclosure Memorandum all Persons
whom it reasonably believes is an "affiliate" of GHC and
FNBGC for purposes of Rule 145 under the 1933 Act. GHC
shall cause each such Person to deliver to CCBG on the date
hereof, 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 GHC
Common Stock or FNBGC 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 CCBG Common Stock to be received
by such Person upon consummation of the Mergers except in
compliance with applicable provisions of the 1933 Act and
the rules and regulations thereunder and, if the Mergers
are accounted for by the pooling-of-interests method of
accounting, until such time as financial results covering
at least 30 days of combined operations of CCBG and GHC
have been published within the meaning of Section 201.01 of
the SEC's Codification of Financial Reporting Policies (and
CCBG shall be entitled to place restrictive legends upon
certificates for shares of CCBG Common Stock issued to
affiliates of GHC and FNBGC pursuant to this Agreement to
enforce the provisions of this Section 8.12).
8.13 Employee Benefits and Contracts. Following the
Effective Time, CCBG shall provide generally to officers
and employees of the GHC Entities while employed by a CCBG
Entity, employee benefits under employee benefit and
welfare plans on terms and conditions which when taken as
a whole are substantially similar to those currently
provided by the CCBG Entities to their similarly situated
officers and employees, and no GHC Entity employees should
be denied coverage under any benefit plan due to a pre-
existing condition provided the conditions of this section
are met; provided, that, for a period of 12 months after
the Effective Time, CCBG shall provide generally to
officers and employees of GHC Entities severance benefits
in accordance with the policies of either (i) GHC or FNBGC,
as applicable, as disclosed in Section 8.13 of the FNBGC
Disclosure Memorandum, or (ii) CCBG, whichever of (i) or
(ii) will provide the greater benefit to the officer or
employee. CCBG shall waive any pre-existing condition
exclusion under any employee health plan for which any
employees and/or officers and dependents covered by FNBGC
plans as of Closing shall become eligible by virtue of the
preceding sentence, to the extent (x) such pre-existing
condition was covered under the corresponding plan
maintained by the GHC Entity and (y) the individual
affected by the pre-existing condition was covered by GHC's
Entity's corresponding plan on the date which immediately
precedes the Effective Time, provided that GHC has
disclosed in Section 8.13 of the FNBGC Disclosure
Memorandum all of its employees, officers or other
participants or their respective dependents, that to the
best of GHC and FNBGC's Knowledge and belief, have any
long-term disabilities or conditions, which in the
reasonable judgment of CCBG would materially adversely
affect the claims experience and/or costs of any employee
benefit plan or insurance maintained by or through any CCBG
Entity. For purposes of participation, vesting and (except
in the case of CCBG retirement plans) benefit accrual under
CCBG's employee benefit plans, the service of the employees
of the GHC Entities prior to the Effective Time shall be
treated as service with a CCBG Entity participating in such
employee benefit plans. CCBG also shall cause the
Surviving Corporation and its Subsidiaries to honor in
accordance with their terms all employment, severance,
consulting and other compensation Contracts disclosed in
Section 8.13 of the FNBGC Disclosure Memorandum to CCBG
between any GHC Entity 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 GHC Benefit Plans.
Notwithstanding any term to the contrary herein, GHC and
FNBGC shall be entitled to pay on or prior to the Closing
Date the amounts accrued as of the Closing Date in the
Profit Sharing Plan and the Employee Bonus Plan, to persons
entitled thereto under such plans.
8.14 Indemnification.
(a) For a period of five years after the Effective Time,
CCBG shall indemnify, defend and hold harmless the present
and former directors, officers, employees and agents of the
GHC Entities (each, an "Indemnified Party") against all
Liabilities arising out of actions or omissions arising out
of the Indemnified Party's service or services as
directors, officers, employees or agents of GHC or, at
GHC's request, of another corporation, partnership, joint
venture, trust or other enterprise occurring at or prior to
the Effective Time (including the transactions contemplated
by this Agreement) to the fullest extent permitted under
Florida Law and by GHC's Articles of Incorporation and
Bylaws as in effect on the date hereof, including
provisions relating to advances of expenses incurred in the
defense of any Litigation and whether or not any CCBG
Entity is insured against any such matter. Without limiting
the foregoing, in any case in which approval by the
Surviving Corporation is required to effectuate any
indemnification, the Surviving Corporation shall direct, at
the election of the Indemnified Party, that the
determination of any such approval shall be made by
independent counsel mutually agreed upon between CCBG and
the Indemnified Party.
(b) CCBG shall use its reasonable efforts (and GHC shall
cooperate prior to the Effective Time in these efforts) to
maintain in effect for a period of two years after the
Effective Time GHC's existing directors' and officers'
liability insurance policy (provided that CCBG may
substitute therefor (i) policies of at least the same
coverage and amounts containing terms and conditions which
are substantially no less advantageous or (ii) with the
consent of GHC given prior to the Effective Time, any other
policy) with respect to claims arising from facts or events
which occurred prior to the Effective Time and covering
persons who are currently covered by such insurance;
provided, that the Surviving Corporation shall not be
obligated to make aggregate premium payments for such two-
year period in respect of such policy (or coverage
replacing such policy) which exceed, for the portion
related to GHC's directors and officers, 150% of the annual
premium payments on GHC's current policy in effect as of
the date of this Agreement (the "Maximum Amount"). If the
amount of the premiums necessary to maintain or procure
such insurance coverage exceeds the Maximum Amount, CCBG
shall use its reasonable efforts to maintain the most
advantageous policies of directors' and officers' liability
insurance obtainable for a premium equal to the Maximum
Amount.
(c) Any Indemnified Party wishing to claim indemnification
under paragraph (a) of this Section 8.14, upon learning of
any such Liability or Litigation, shall promptly notify
CCBG thereof. In the event of any such Litigation (whether
arising before or after the Effective Time), (i) the
Surviving Corporation shall have the right to assume the
defense thereof and the Surviving Corporation 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 the Surviving Corporation
elects not to assume such defense or counsel for the
Indemnified Parties advises that there are substantive
issues which raise conflicts of interest between the
Surviving Corporation and the Indemnified Parties, the
Indemnified Parties may retain counsel satisfactory to
them, and the Surviving Corporation shall pay all
reasonable fees and expenses of such counsel for the
Indemnified Parties promptly as statements therefor are
received; provided, that the Surviving Corporation shall be
obligated pursuant to this paragraph (c) 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) the
Surviving Corporation shall not be liable for any
settlement effected without its prior written consent; and
provided further that the Surviving Corporation shall not
have any obligation hereunder to any Indemnified Party when
and if a court of competent jurisdiction shall determine,
and such determination shall have become final, that the
indemnification of such Indemnified Party in the manner
contemplated hereby is prohibited by applicable Law.
(d) If the Surviving Corporation or any successors or
assigns shall consolidate with or merge into any other
Person and shall not be the continuing or surviving Person
of such consolidation or merger or shall transfer all or
substantially all of its assets to any Person, then and in
each case, proper provision shall be made so that the
successors and assigns of the Surviving Corporation shall
assume the obligations set forth in this Section 8.14.
(e) The provisions of this Section 8.14 are intended to be
for the benefit of and shall be enforceable by, each
Indemnified Party and their respective heirs and
representatives.
8.15 Board Meetings. GHC and FNBGC agree to give not less
than two days' prior notice of all meetings of the GHC and
FNBGC Board of Directors and their committees and GHC and
FNBGC agree that CCGB shall be entitled to have two
representatives attend all such Board meetings; provided
that GHC and FNBGC shall have the right to exclude either
or both of such representatives during discussions relating
to a confidential matter, the Mergers or which would result
in a conflict of interest for the Board of CCBG and GHC or
FNBGC.
8.16 Accounting Policies. FNBGC, GHC and CCBG shall
consult with respect to the character, amount and timing of
restructuring and merger-related expense charges to be
taken by FNBGC or GHC in connection with the transactions
contemplated by this Agreement and shall take such charges
in accordance with GAAP, prior to the Effective Time, as
may be mutually agreed upon by the Parties.
8.17 Formation of Interim National Bank Subsidiary. Prior
to the Effective Time and as soon as practicable, CCBG
shall organize and establish under the laws of the United
States of America, a national banking subsidiary, wholly-
owned by CCBG for the purpose of merging with FNBGC.
ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE
9.1 Conditions to Obligations of Each Party. The
respective obligations of each Party to perform this
Agreement and consummate the Merger and the other
transactions contemplated hereby are subject to the
satisfaction of the following conditions, unless waived by
both Parties pursuant to Section 11.6:
(a) Stockholder Approval. The stockholders of GHC and
FNBGC shall have approved this Agreement, and the
consummation of the transactions contemplated hereby,
including the Mergers, as and to the extent required by
Law, by the provisions of any governing instruments, or by
the rules of the NASD.
(b) Regulatory Approvals. All Consents of, filings and
registrations with, and notifications to, all Regulatory
Authorities required for consummation of the Mergers shall
have been obtained or made and shall be in full force and
effect and all waiting periods required by Law shall have
expired. No Consent obtained from any Regulatory Authority
which is necessary to consummate the transactions
contemplated hereby shall be conditioned or restricted in a
manner (including requirements relating to the raising of
additional capital or the disposition of Assets) which in
the reasonable judgment of the Board of Directors of either
Party would so materially adversely affect the economic or
business benefits of the transactions contemplated by this
Agreement that, had such condition or requirement been
known, such Party would not, in its reasonable judgment,
have entered into this Agreement.
(c) Consents and Approvals. Each Party shall have
obtained any and all Consents required for consummation of
the Mergers (other than those referred to in Section
9.1(b)) 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 GHC Material Adverse Effect or a CCBG Material
Adverse Effect, as applicable. No Consent so 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 either Party would so materially adversely
affect the economic or business benefits of the
transactions contemplated by this Agreement that, had such
condition or requirement been known, such Party would not,
in its reasonable judgment, have entered into this
Agreement.
(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) Placement Memorandum. The Placement Memorandum shall
have been delivered to the FNBGC and GHC shareholders, 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 CCBG Common Stock issuable pursuant to the
Mergers shall have been received.
(f) Share Listing. The shares of CCBG Common Stock
issuable pursuant to the Mergers shall have been approved
for listing on the NASDAQ National Market.
(g) [Reserved]
(h) Tax Matters. Each Party shall have received a written
opinion of counsel from Gunster, Yoakley, Xxxxxx-Xxxxx &
Xxxxxxx, P.A., upon which the shareholders of GHC and FNBGC
may rely in form reasonably satisfactory to such Parties
(the "Tax Opinion"), to the effect that (i) each of the
Mergers will constitute a reorganization within the meaning
of Section 368(a) of the Internal Revenue Code, (ii) the
exchange in the Mergers of GHC Common Stock and FNBGC
Common Stock for CCBG Common Stock will not give rise to
gain or loss to the stockholders of GHC or FNBGC with
respect to such exchange (except to the extent of any cash
received), and (iii) none of GHC, FNBGC or CCBG will
recognize gain or loss as a consequence of the Merger
(except for amounts resulting from any required change in
accounting methods and any income and deferred gain
recognized pursuant to Treasury regulations issued under
Section 1502 of the Internal Revenue Code). In rendering
such Tax Opinion, such counsel shall be entitled to rely
upon representations of officers of GHC and CCBG reasonably
satisfactory in form and substance to such counsel.
9.2 Conditions to Obligations of CCBG. The obligations of
CCBG to perform this Agreement and consummate the Mergers
and the other transactions contemplated hereby are subject
to the satisfaction of the following conditions, unless
waived by CCBG pursuant to Section 11.6(a):
(a) Representations and Warranties. For purposes of this
Section 9.2(a), the accuracy of the representations and
warranties of GHC and FNBGC 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 set forth in Section 5.3, 5.20, 5.21, and 5.22
shall be true and correct (except for inaccuracies which
are de minimus in amount). There shall not exist
inaccuracies in the representations and warranties of GHC
and FNBGC set forth in this Agreement (including the
representations and warranties set forth in Sections 5.3,
5.20, 5.21, and 5.22) such that the aggregate effect of
such inaccuracies has, or is reasonably likely to have, a
GHC Material Adverse Effect; provided that, for purposes of
this sentence only, those representations and warranties
which are qualified by references to "material" or
"Material Adverse Effect" or to the "Knowledge" or "to the
opinion" of any Person shall be deemed not to include such
qualifications.
(b) Performance of Agreements and Covenants. Each and all
of the agreements and covenants of GHC 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. Each of GHC and FNBGC shall have
delivered to CCBG (i) a certificate, dated as of the
Effective Time and signed on their behalf by their
respective chief executive officer and its chief financial
officer, to the effect that the conditions set forth in
Section 9.1 as relates to GHC and in Section 9.2(a) and
9.2(b) have been satisfied, and (ii) certified copies of
resolutions duly adopted by each of GHC's and FNBGC'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 CCBG and its counsel shall
request.
(d) Opinion of Counsel. CCBG shall have received an
opinion of Xxxxxx & Bird LLP, counsel to GHC, dated as of
the Closing, in form reasonably satisfactory to CCBG, as to
the matters set forth in Exhibit 3.
(e) [RESERVED].
(f) Affiliates Agreements. CCBG shall have received from
each affiliate of GHC and FNBGC the affiliates letter
referred to in Section 8.12, to the extent necessary to
assure in the reasonable judgment of CCBG that the
transactions contemplated hereby will qualify for pooling-
of-interests accounting treatment.
(g) Claims Letters. Each of the directors and executive
officers and shareholders of GHC, and all directors and
executive officers of FNBGC shall have delivered a Claims
Letter in the form attached hereto as Exhibit 4 to CCBG.
(h) Net Worth and Capital Requirements. Immediately prior
to the Effective Time, GHC and FNBGC shall have a
consolidated minimum net worth of at least $15,700,000;
provided that, "net worth" shall be deemed to not be
reduced by fees, costs and expenses incurred or paid at the
request of CCBG. For purposes of this Section 9.2(h), "net
worth" shall mean the sum of the amounts set forth on the
balance sheet as stockholders' equity (including the par or
stated value of all outstanding capital stock, retained
earnings, additional paid-in capital, capital surplus and
earned surplus), determined in accordance with GAAP.
(i) Directors' Agreement. Each shareholder and each of
the directors of GHC shall have delivered a Directors
Agreement in the form attached hereto as Exhibit 5 relating
to no sales of GHC Common Stock or FNBGC Common Stock prior
to Closing, voting in favor of the Mergers, and non-
competition. Xxxxxxx X. Xxxxxxxx shall have delivered a
non-competition agreement in the form attached as Exhibit
7.
(j) Pooling Letters. CCBG shall have received letters,
dated as of the date of mailing of the Placement Memorandum
and as of the Effective Time, addressed to CCBG, in form
and substance reasonably acceptable to CCBG, from Xxxxxx
Xxxxxxxx, LLP to the effect that the Mergers will qualify
for pooling-of-interests accounting treatment.
9.3 Conditions to Obligations of GHC and FNBGC. The
obligations of GHC and FNBGC to perform this Agreement and
consummate the Mergers and the other transactions
contemplated hereby are subject to the satisfaction of the
following conditions, unless waived by GHC and FNBGC
pursuant to Section 11.6(b):
(a) Representations and Warranties. For purposes of this
Section 9.3(a), the accuracy of the representations and
warranties of CCBG 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 CCBG set forth in Sections 6.3 and 6.16 shall
be true and correct (except for inaccuracies which are de
minimus in amount). There shall not exist inaccuracies in
the representations and warranties of CCBG set forth in
this Agreement (including the representations and
warranties set forth in Sections 6.3 and 6.16) such that
the aggregate effect of such inaccuracies has, or is
reasonably likely to have, a CCBG Material Adverse Effect;
provided that, for purposes of this sentence only, those
representations and warranties which are qualified by
references to "material" or "Material Adverse Effect" or to
the "Knowledge" or "to the opinion" of any Person shall be
deemed not to include such qualifications.
(b) Performance of Agreements and Covenants. Each and all
of the agreements and covenants of CCBG 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. CCBG shall have delivered to FNBGC (i)
a certificate, dated as of the Effective Time and signed on
its behalf by its chief executive officer and its chief
financial officer, to the effect that the conditions set
forth in Section 9.1 as relates to CCBG and in Section
9.3(a) and 9.3(b) have been satisfied, and (ii) certified
copies of resolutions duly adopted by CCBG's Board of
Directors evidencing the taking of all corporate action
necessary to authorize the execution, delivery and
performance of this Agreement, and the consummation of the
transactions contemplated hereby, all in such reasonable
detail as FNBGC and its counsel shall request.
(d) Opinion of Counsel. GHC and FNBGC shall have received
an opinion of Gunster, Yoakley, Xxxxxx-Xxxxx & Xxxxxxx,
P.A., counsel to CCBG, dated as of the Effective Time, in
form reasonably acceptable to GHC and FNBGC, as to the
matters set forth in Exhibit 6.
ARTICLE 10
TERMINATION
10.1 Termination. Notwithstanding any other provision of
this Agreement, and notwithstanding the approval of this
Agreement by the stockholders of GHC, this Agreement may be
terminated and the Merger abandoned at any time prior to
the Effective Time:
(a) By mutual consent of CCBG, GHC and FNBGC; or
(b) By either Party (provided that the terminating Party
is not then in material breach of any representation,
warranty, covenant, or other agreement contained in this
Agreement) in the event of a breach by the other Party of
any representation or warranty contained in this Agreement
which cannot be or has not been cured within 30 days after
the giving of written notice to the breaching Party of such
breach and which breach is reasonably likely, in the
opinion of the non-breaching Party, to have, individually
or in the aggregate, a GHC Material Adverse Effect or a
CCBG Material Adverse Effect, as applicable, on the
breaching Party; or
(c) By either Party (provided that the terminating Party
is not then in material breach of any representation,
warranty, covenant, or other agreement contained in this
Agreement) in the event of a material breach by the other
Party of any covenant or agreement contained in this
Agreement which cannot be or has not been cured within 30
days after the giving of written notice to the breaching
Party of such breach; or
(d) By either Party (provided that the terminating Party
is not then in material breach of any representation,
warranty, covenant, or other agreement contained in this
Agreement) in the event 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
(e) By either Party in the event that the Merger shall not
have been consummated by June 30, 1999 unless the failure
to consummate is caused by the Party electing to terminate
the Agreement pursuant to the Section 10.1(e); or
(f) By either Party (provided that the terminating Party
is not then in material breach of any representation,
warranty, covenant, or other agreement contained in this
Agreement) in the event that any of the conditions
precedent to the obligations of such Party to consummate
the Merger cannot be satisfied or fulfilled by the date
specified in Section 10.1(e); or
(g) By GHC and FNBGC if both of the following conditions
are satisfied:
(1) the Average Closing Price (as defined below) shall be
less than the product of 0.88 and the Starting Price; and
(2)(i) the number obtained by dividing the Average Closing
Price by the Starting Price (such number being referred to
herein as the "CCBG Ratio") shall be less than (ii) the
number obtained by dividing the average Index Price during
the 20 trading days immediately preceding the Determination
Date by the average Index Price during the 20 trading days
immediately preceding the Starting Date and subtracting
0.12 from such quotient (such number being referred to
herein as the "Index Ratio").
If GHC and FNBGC elect to exercise its termination right
pursuant to the immediately preceding sentence, it shall
give to CCBG written notice on or before the second trading
day after the Determination Date. During the five-day
period commencing on the date of such notice, CCBG shall
have the option of adjusting the Exchange Ratio to equal
the lesser of (i) a number equal to a quotient (rounded to
the nearest one-ten thousandth), the numerator of which is
the product of 0.88, the Starting Price and the Exchange
Ratio (as then in effect) and the denominator of which is
the Average Closing Price, or (ii) a number equal to a
quotient (rounded to the nearest one-ten thousandth), the
numerator of which is the Index Ratio multiplied by the
Exchange Ratio (as then in effect) and the denominator of
which is the CCBG Ratio. If CCBG makes an election
contemplated by the preceding sentence, within such five-
day period, it shall give prompt written notice to GHC and
FNBGC of such election and the revised Exchange Ratio,
whereupon no termination shall have occurred pursuant to
this Section, 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.
For purposes of this Section only, the following terms
shall have the meanings indicated:
"Average Closing Price" means the average of the last
reported sale prices per share of CCBG Common Stock as
reported on The NASDAQ Stock Market or such successor
exchange on which CCBG Common Stock may then be traded (as
reported in The Wall Street Journal or, if not reported
therein, in another mutually agreed upon authoritative
source) for the 20 consecutive trading days on The NASDAQ
Stock Market or such successor exchange on which CCBG
Common Stock may then be traded ending at the close of
trading on the Determination Date.
"Determination Date" means the date on which the last
approval from the regulatory authorities required for
consummation of the Merger shall be received by CCBG,
without regard to any requisite waiting periods in respect
thereof.
"Index Group" means NASDAQ Bank Stock Index.
"Index Price" on a given date means the weighted average
(weighted in accordance with the factors listed above) of
the closing prices of the companies comprising the Index
Group.
"Starting Date" means the date of this Agreement.
"Starting Price" shall mean the average of the last
reported sale price per share of CCBG Common Stock during
the 20 trading days immediately preceding the Starting
Date, as reported by The NASDAQ Stock Market or such
successor exchange on which CCBG Common Stock may then be
traded (as reported in The Wall Street Journal or, if not
reported therein, in another mutually agreed upon
authoritative source).
If any company belonging to the Index Group or CCBG
declares or effects a stock dividend, reclassification,
recapitalization, split-up, combination, exchange of shares
or similar transaction between the Starting Date and the
Determination Date, the prices for the common stock of such
company or CCBG shall be appropriately adjusted for the
purposes of applying this Section.
(h) By the Board of Directors of CCBG in the event that
holders of in excess of 10% of the outstanding shares of
GHC Common Stock or FNBGC Common Stock properly assert
their dissenters' rights of appraisal.
10.2 Effect of Termination. In the event of the
termination and abandonment of this Agreement pursuant to
Section 10.1, this Agreement shall become void and have no
effect, except that (i) the provisions of this Section 10.2
and Article 11 and Section 8.6(b) shall survive any such
termination and abandonment, and (ii) a termination
pursuant to Sections 10.1(b), 10.1(c) or 10.1(f) 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.
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 1,
2, 3, 4 and 11 and Sections 8.6, 8.12, 8.13, and 8.14.
ARTICLE 11
MISCELLANEOUS
11.1 Definitions.
(a) Except as otherwise provided herein, the capitalized
terms set forth below shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as
amended.
"1934 Act" shall mean the Securities Exchange Act of 1934,
as amended.
"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 the acquisition of
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 10% or
greater equity or voting interest of such Person; or (iii)
any other Person for which a Person described in clause
(ii) acts in any such capacity.
"Agreement" shall mean this Agreement and Plan of Merger,
including the Exhibits delivered pursuant hereto and
incorporated herein by reference.
"Articles of Merger" shall mean the Articles of Merger to
be executed by CCBG and filed with the Secretary of State
of the States of Florida and Georgia, as applicable,
relating to the Merger as contemplated by Section 1.1.
"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.
"CCBG Capital Stock" shall mean, collectively, the CCBG
Common Stock, the CCBG Preferred Stock and any other class
or series of capital stock of CCBG.
"CCBG Common Stock" shall mean the $.01 par value common
stock of CCBG.
"CCBG Disclosure Memorandum" shall mean the written
information entitled "Capital City Bank Group, Inc.
Disclosure Memorandum" delivered prior to the date of this
Agreement to FNBGC 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.
"CCBG Entities" shall mean, collectively, CCBG and all CCBG
Subsidiaries.
"CCBG Financial Statements" shall mean (i) the consolidated
statements of condition (including related notes and
schedules, if any) of CCBG as of June 30, 1998, and as of
December 31, 1997 and 1996, and the related statements of
income, changes in stockholders' equity, and cash flows
(including related notes and schedules, if any) for the six
months ended June 30, 1998, and for each of the three
fiscal years ended December 31, 1997, 1996 and 1995, as
filed by CCBG in SEC Documents, and (ii) the consolidated
statements of condition of CCBG (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) included in SEC
Documents filed with respect to periods ended subsequent to
December 31, 1997.
"CCBG Material Adverse Effect" 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 CCBG and its Subsidiaries, taken as a
whole, or (ii) the ability of CCBG to perform its
obligations under this Agreement or to consummate the
Merger or the other transactions contemplated by this
Agreement, including without limitation the tax-free
reorganization status of the Mergers, 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 generally
accepted accounting principles or regulatory accounting
principles generally applicable to banks and their holding
companies, (c) actions and omissions of CCBG (or any of its
Subsidiaries) taken with the prior informed written Consent
of FNBGC in contemplation of the transactions contemplated
hereby, and (d) the direct effects of compliance with this
Agreement on the operating performance of CCBG, including
expenses incurred by CCBG in consummating the transactions
contemplated by this Agreement.
"CCBG Preferred Stock" shall mean the $.01 par value
preferred stock of CCBG.
"CCBG Stock Plans" shall mean the existing stock option and
other stock-based compensation plans of CCBG designated as
follows: 1996 Associate Incentive Plan, Associate Stock
Purchase Plan, and Director Stock Purchase Plan.
"Interim" shall mean a national banking association which
is a wholly-owned Subsidiary of CCBG.
"CCBG Subsidiaries" shall mean the Subsidiaries of CCBG,
which shall include the CCBG Subsidiaries described in
Section 6.4 and any corporation, bank, savings association,
or other organization acquired as a Subsidiary of CCBG in
the future and held as a Subsidiary by CCBG at the
Effective Time.
"Closing Date" shall mean the date on which the Closing
occurs.
"Confidentiality Agreement" shall mean certain
Confidentiality Agreement, dated June 5, 1998, between
Xxxxxx Xxxxxx Company and CCBG.
"Consent" shall mean any consent, approval, authorization,
clearance, exemption, waiver, or similar affirmation by any
Person pursuant to any Contract, Law, Order, or Permit.
"Contract" shall mean any written or oral agreement,
arrangement, authorization, commitment, contract,
indenture, instrument, lease, obligation, plan, practice,
restriction, understanding, or undertaking of any kind or
character, or other document to which any Person is a party
or that is binding on any Person or its capital stock,
Assets or business.
"Default" shall mean (i) any breach or violation of,
default under, contravention of, or conflict with, any
Contract, Law, 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, default
under, contravention of, or conflict with, any Contract,
Law, 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 of any Person to exercise
any remedy or obtain any relief under, terminate or revoke,
suspend, cancel, or modify or change the current terms of,
or renegotiate, or to accelerate the maturity or
performance of, or to increase or impose any Liability
under, any Contract, Law, Order, or Permit, where, in any
such event, such Default is reasonably likely to have,
individually or in the aggregate, a GHC Material Adverse
Effect or a CCBG Material Adverse Effect, as applicable.
"Environmental Laws" shall mean all Laws relating to
pollution or protection of human health or the environment
(including ambient air, surface water, ground water, land
surface, or subsurface strata) and which are administered,
interpreted, or enforced by the United States Environmental
Protection Agency and state and local agencies with
jurisdiction over, and including common law in respect of,
pollution or protection of the environment, including the
Comprehensive Environmental Response Compensation and
Liability Act, as amended, 42 U.S.C. 9601 et seq.
("CERCLA"), the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. 6901 et seq. ("RCRA"), and other Laws
relating to emissions, discharges, releases, or threatened
releases of any Hazardous Material, or otherwise relating
to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling of any
Hazardous Material.
"Equity Rights" shall mean all arrangements, calls,
commitments, Contracts, options, rights to subscribe to,
scrip, understandings, warrants, or other binding
obligations of any character whatsoever relating to, or
securities or rights convertible into or exchangeable for,
shares of the capital stock of a Person or by which a
Person is or may be bound to issue additional shares of its
capital stock or other Equity Rights.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended.
"Exhibits" 1 through 7, 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.
"FBCA" shall mean the Florida Business Corporation Act.
"FNBGC" shall mean First National Bank of Xxxxx County, a
national banking association and a GHC Subsidiary.
"FNBGC Common Stock" shall mean the $5.00 par value common
stock of FNBGC.
"FNBGC Disclosure Memorandum" shall mean the written
information entitled "First National Bank of Xxxxx County
Disclosure Memorandum" delivered prior to the date of this
Agreement to CCBG 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.
"FNBGC Entities" shall mean, collectively, FNBGC and all
FNBGC Subsidiaries.
"GAAP" shall mean generally accepted accounting principles,
consistently applied during the periods involved.
"GBCC" shall mean the Georgia Business Corporation Code.
"GHC Common Stock" shall mean the no par value common stock
of GHC.
"GHC Entities" shall mean, collectively, GHC and all GHC
Subsidiaries.
"GHC Financial Statements" shall mean (i) the consolidated
statements of condition (including related notes and
schedules, if any) of GHC as of December 31, 1997, and as
of December 31, 1996 and 1995, and the related statements
of income, changes in stockholders' equity, and cash flows
(including related notes and schedules, if any) for the six
months ended June 30, 1998, and for each of the three
fiscal years ended December 31, 1997, 1996 and 1995, and
(ii) the consolidated statements of condition of GHC
(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)
that are delivered to CCBG with respect to periods ended
subsequent to December 31, 1997.
"GHC Material Adverse Effect" 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 GHC and its Subsidiaries, taken as a
whole, or (ii) the ability of GHC or the FNBGC to perform
its obligations under this Agreement or to consummate the
Merger or the other transactions contemplated by this
Agreement, including without limitation the tax-free
reorganization status of the Mergers, 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 generally
accepted accounting principles or regulatory accounting
principles generally applicable to banks and their holding
companies, (c) actions and omissions of GHC (or any of its
Subsidiaries) taken with the prior informed written Consent
of CCBG in contemplation of the transactions contemplated
hereby, and (d) the direct effects of compliance with this
Agreement on the operating performance of GHC or the FNBGC,
including expenses incurred by GHC or the FNBGC in
consummating the transactions contemplated by this
Agreement.
"GHC Rights" shall mean the preferred stock purchase rights
issued pursuant to the GHC Rights Agreement.
"GHC Subsidiaries" shall mean the Subsidiaries of GHC,
which shall include the GHC Subsidiaries described in
Section 5.4 and any corporation, bank, savings association,
or other organization acquired as a Subsidiary of GHC in
the future and held as a Subsidiary by GHC at the Effective
Time.
"Hazardous Material" shall mean (i) any hazardous
substance, hazardous material, hazardous waste, regulated
substance, or toxic substance (as those terms are defined
by any applicable Environmental Laws) and (ii) any
chemicals, pollutants, contaminants, petroleum, petroleum
products, or oil (and specifically shall include asbestos
requiring abatement, removal, or encapsulation pursuant to
the requirements of governmental authorities and any
polychlorinated biphenyls).
"HSR Act" shall mean Section 7A of the Xxxxxxx Act, as
added by Title II of the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended, and the rules and
regulations promulgated thereunder.
"Intellectual Property" shall mean copyrights, patents,
trademarks, service marks, service names, trade names,
applications therefor, technology rights and licenses,
computer software (including any source or object codes
therefor or documentation relating thereto), trade secrets,
franchises, know-how, inventions, and other intellectual
property rights.
"Internal Revenue Code" shall mean the Internal Revenue
Code of 1986, as amended, and the rules and regulations
promulgated thereunder.
"Knowledge" as used with respect to a Person (including
references to such Person being aware of a particular
matter) shall mean those facts that are known by any of
Xxxx Xxxxx, Xxxxxxx X. Xxxxxxxx, Xxxxxx X. Dollar, Xxxxx X.
Xxxxxxx, Xxxxx X. XxXxx, Xxxx X. Xxxxxxx, or Xxxxxxx X.
Xxxxxxxx.
"Law" shall mean any code, law (including common law),
ordinance, regulation, reporting or licensing requirement,
rule, or statute applicable to a Person or its Assets,
Liabilities, or business, including those promulgated,
interpreted or enforced by any Regulatory Authority.
"Liability" shall mean any direct or indirect, primary or
secondary, liability, indebtedness, obligation, penalty,
cost or expense (including costs of investigation,
collection and defense), claim, deficiency, guaranty or
endorsement of or by any Person (other than endorsements of
notes, bills, checks, and drafts presented for collection
or deposit in the ordinary course of business) of any type,
whether accrued, absolute or contingent, liquidated or
unliquidated, matured or unmatured, or otherwise.
"Lien" shall mean any conditional sale agreement, default
of title, easement, encroachment, encumbrance,
hypothecation, infringement, lien, mortgage, pledge,
reservation, restriction, security interest, title
retention or other security arrangement, or any adverse
right or interest, charge, or claim of any nature
whatsoever of, on, or with respect to any property or
property interest, other than (i) Liens for current
property Taxes not yet due and payable, (ii) for depository
institution Subsidiaries of a Party, pledges to secure
deposits and other Liens incurred in the ordinary course of
the banking business, and (iii) Liens which do not
materially impair the use of or title to the Assets subject
to such Lien, and which are disclosed in Section 11.1 of
the FNBGC Disclosure Memorandum or the CCBG Disclosure
Memorandum as applicable.
"Litigation" shall mean any action, arbitration, cause of
action, claim, complaint, criminal prosecution,
governmental or other examination or investigation,
hearing, administrative or other proceeding relating to or
affecting a Party, its business, its Assets (including
Contracts related to it), or the transactions contemplated
by this Agreement, but shall not include regular, periodic
examinations of depository institutions and their
Affiliates by Regulatory Authorities.
"Material" 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.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"NASDAQ National Market" shall mean the National Market
System of the National Association of Securities Dealers
Automated Quotations System.
"OCC" shall mean the Office of the Comptroller of the
Currency.
"Operating Property" shall mean any property owned, leased,
or operated by the Party in question or by any of its
Subsidiaries or in which such Party or Subsidiary holds a
security interest or other interest (including an interest
in a fiduciary capacity), and, where required by the
context, includes the owner or operator of such property,
but only with respect to such property.
"Order" shall mean any administrative decision or award,
decree, injunction, judgment, order, quasi-judicial
decision or award, ruling, or writ of any federal, state,
local or foreign or other court, arbitrator, mediator,
tribunal, administrative agency, or Regulatory Authority.
"Participation Facility" shall mean any facility or
property in which the Party in question or any of its
Subsidiaries participates in the management and, where
required by the context, said term means the owner or
operator of such facility or property, but only with
respect to such facility or property.
"Party" shall mean any of GHC, FNBGC or CCBG, and "Parties"
shall mean all of GHC, FNBGC and CCBG.
"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
GHC and FNBGC to solicit the approval of their respective
stockholders of the transactions contemplated by this
Agreement, which shall include the Placement Memorandum of
CCBG relating to the issuance of the CCBG Common Stock to
holders of GHC Common Stock and FNBGC Common Stock.
"Registration Statement" shall mean the Registration
Statement on Form S-3, or other appropriate form, including
any pre-effective or post-effective amendments or
supplements thereto, filed with the SEC by CCBG under the
1933 Act with respect to the shares of CCBG Common Stock to
be issued to the stockholders of GHC and FNBGC in
connection with the transactions contemplated by this
Agreement.
"Regulatory Authorities" shall mean, collectively, the SEC,
the NASD, the Federal Trade Commission, the United States
Department of Justice, the Board of the Governors of the
Federal Reserve System, the Office of the Comptroller of
the Currency, the Federal Deposit Insurance Corporation,
Florida Department of Banking and Finance and all other
federal, state, county, local or other governmental or
regulatory agencies, authorities (including self-regulatory
authorities), instrumentalities, commissions, boards or
bodies having jurisdiction over the Parties and their
respective Subsidiaries.
"Representative" shall mean any investment banker,
financial advisor, attorney, accountant, consultant, or
other representative engaged by a Person.
"SEC Documents" shall mean all forms, proxy statements,
registration statements, reports, schedules, and other
documents filed, or required to be filed, by a Party or any
of its Subsidiaries with any Regulatory Authority pursuant
to the Securities 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.
"Significant Subsidiary" shall mean any present or future
consolidated Subsidiary of the Party in question, the
assets of which constitute ten percent (10%) or more of the
consolidated assets of such Party as reflected on such
Party's consolidated statement of condition prepared in
accordance with GAAP.
"Stockholders' Meeting" shall mean the meeting of the
stockholders of GHC and FNBGC to be held pursuant to
Section 8.1, including any adjournment or adjournments
thereof.
"Subsidiaries" shall mean all those corporations,
associations, or other business entities of which the
entity in question either (i) owns or controls 50% or more
of the outstanding equity securities either directly or
through an unbroken chain of entities as to each of which
50% or more of the outstanding equity securities is owned
directly or indirectly by its parent (provided, there shall
not be included any such entity the equity securities of
which are owned or controlled in a fiduciary capacity),
(ii) in the case of partnerships, serves as a general
partner, (iii) in the case of a limited liability company,
serves as a managing member, or (iv) otherwise has the
ability to elect a majority of the directors, trustees or
managing members thereof.
"Surviving Corporation" shall mean CCBG as the surviving
corporation resulting from the Merger.
"Tax Return" shall mean any report, return, information
return, or other information required to be supplied to a
taxing authority in connection with Taxes, including any
return of an affiliated or combined or unitary group that
includes a Party or its Subsidiaries.
"Tax" or "Taxes" shall mean any federal, state, county,
local, or foreign taxes, charges, fees, levies, imposts,
duties, or other assessments, including income, gross
receipts, excise, employment, sales, use, transfer,
license, payroll, franchise, severance, stamp, occupation,
windfall profits, environmental, federal highway use,
commercial rent, customs duties, capital stock, paid-up
capital, profits, withholding, Social Security, single
business and unemployment, disability, real property,
personal property, registration, ad valorem, value added,
alternative or add-on minimum, estimated, or other tax or
governmental fee of any kind whatsoever, imposed or
required to be withheld by the United States or any state,
county, local or foreign government or subdivision or
agency thereof, including any interest, penalties, and
additions imposed thereon or with respect thereto.
(b) The terms set forth below shall have the meanings
ascribed thereto in the referenced sections:
Allowance Section 5.9
Bank Exchange Ratio Section 3.1(d)
Bank Merger Preamble
Bank Plan Section 1.2
CCBG Benefit Plans Section 6.12
CCBG SEC Reports Section 6.5(a)
Closing Section 1.3
Effective Time Section 1.4
ERISA Affiliate Section 5.15(c)
Exchange Agent Section 4.1
GHC Benefit Plans Section 5.15(a)
GHC Contracts Section 5.16
Holding Company Exchange Ratio Section 3.1(b)
Holding Company Merger Preamble
Interagency Guidelines Section 5.25
Interagency Statement Section 5.25
Mergers Preamble
Takeover Laws Section 5.21
Tax Opinion Section 9.1(h)
(c) Any singular term in this Agreement shall be deemed to
include the plural, and any plural term the singular.
Whenever the words "include," "includes" or "including" are
used in this Agreement, they shall be deemed followed by
the words "without limitation."
11.2 Expenses.
(a) Except as otherwise provided in this Section 11.2,
each of the Parties shall bear and pay all direct costs and
expenses incurred by it or on its behalf in connection with
the transactions contemplated hereunder, including filing,
registration and application fees, printing fees, and fees
and expenses of its own financial or other consultants,
investment bankers, accountants, and counsel; provided that
FNBGC shall be responsible for one-half of the printing and
mailing costs and filing fees of 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. Except for The Xxxxxx Xxxxxx
Company as to GHC and FNBGC and except for XxXxxxxxx, Xxxx
& Xxxxxx, Inc. as to CCBG, each of the Parties represents
and warrants that neither it nor any of its officers,
directors, employees, or Affiliates has employed any broker
or finder or incurred any Liability for any financial
advisory fees, investment bankers' fees, brokerage fees,
commissions, or finders' fees in connection with this
Agreement or the transactions contemplated hereby. In the
event of a claim by any broker or finder based upon his or
its representing or being retained by or allegedly
representing or being retained by GHC and FNBGC or by CCBG,
each of GHC and FNBGC and CCBG, as the case may be, agrees
to indemnify and hold the other Party harmless of and from
any Liability in respect of any such claim.
11.4 Entire Agreement. Except as otherwise expressly
provided herein, this Agreement (including the documents
and instruments referred to herein) constitutes the entire
agreement between the Parties with respect to the
transactions contemplated hereunder and supersedes all
prior arrangements or understandings with respect thereto,
written or oral (except, as to Section 8.6(b), for the
Confidentiality Agreement). Nothing in this Agreement
expressed or implied, is intended to confer upon any
Person, other than the Parties or their respective
successors, any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, other
than as provided in Sections 8.13 and 8.14.
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 each of the
Parties, whether before or after stockholder approval of
this Agreement has been obtained; provided, that after any
such approval by the holders of GHC Common Stock and FNBGC
Common Stock, there shall be made no amendment that reduces
or modified in any material respect the consideration to be
received by holders of GHC Common Stock or FNBGC Common
Stock which requires further approval by such
stockholders, without the further approval of such
stockholders.
11.6 Waivers.
(a) Prior to or at the Effective Time, CCBG, 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
GHC and FNBGC, to waive or extend the time for the
compliance or fulfillment by GHC and FNBGC of any and all
of its obligations under this Agreement, and to waive any
or all of the conditions precedent to the obligations of
CCBG 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 CCBG.
(b) Prior to or at the Effective Time, GHC and FNBGC,
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 CCBG, to waive or extend the time for the
compliance or fulfillment by CCBG of any and all of its
obligations under this Agreement, and to waive any or all
of the conditions precedent to the obligations of GHC and
FNBGC 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 GHC and FNBGC.
(c) The failure of any Party at any time or times to
require performance of any provision hereof shall in no
manner affect the right of such Party at a later time to
enforce the same or any other provision of this Agreement.
No waiver of any condition or of the breach of any term
contained in this Agreement in one or more instances shall
be deemed to be or construed as a further or continuing
waiver of such condition or breach or a waiver of any other
condition or of the breach of any other term of this
Agreement.
11.7 Assignment. Except as expressly contemplated hereby,
neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any Party hereto
(whether by operation of Law or otherwise) without the
prior written consent of the other Party. Subject to the
preceding sentence, this Agreement will be binding upon,
inure to the benefit of and be enforceable by the Parties
and their respective successors and assigns.
11.8 Notices. All notices or other communications which
are required or permitted hereunder shall be in writing and
sufficient if delivered by hand, by facsimile transmission,
by registered or certified mail, postage pre-paid, or by
courier or overnight carrier, to the persons at the
addresses set forth below (or at such other address as may
be provided hereunder), and shall be deemed to have been
delivered as of the date so delivered:
GHC: Xxxxx Holding Company
X.X. Xxx 00
Xxxxx, Xxxxxxx 00000
Telecopy Number: (000) 000-0000
Attention: Xxxx X. Xxxxx, Xx.
Copy to Counsel: Xxxxxx & Bird LLP
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Telecopy Number: (000) 000-0000
Attention: W. Xxxxxx Xxxxxx III
CCBG: Capital City Bank Group, Inc.
000 X. Xxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxx 00000
Telecopy Number: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Xx.
X. Xxxxxxxxx Xxxxx
Copy to Counsel: Gunster, Yoakley, Xxxxxx-Xxxxx & Xxxxxxx, P.A.
000 Xxxxx Xxxxxxx Xxxxx
Xxxxx 000 Xxxx
Xxxx Xxxx Xxxxx, XX 00000-0000
Telecopy Number: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx
11.9 Governing Law. This Agreement shall be governed by
and construed in accordance with the Laws of the State of
Georgia, without regard to any applicable conflicts of
Laws.
11.10 Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed to be
an original, but all of which together shall constitute one
and the same instrument.
11.11 Captions; Articles and Sections. The captions
contained in this Agreement are for reference purposes only
and are not part of this Agreement. Unless otherwise
indicated, all references to particular Articles or
Sections shall mean and refer to the referenced Articles
and Sections of this Agreement.
11.12 Interpretations. Neither this Agreement nor any
uncertainty or ambiguity herein shall be construed or
resolved against any party, whether under any rule of
construction or otherwise. No party to this Agreement
shall be considered the draftsman. The parties acknowledge
and agree that this Agreement has been reviewed,
negotiated, and accepted by all parties and their attorneys
and shall be construed and interpreted according to the
ordinary meaning of the words used so as fairly to
accomplish the purposes and intentions of all parties
hereto.
11.13 Enforcement of Agreement. The Parties hereto agree
that irreparable damage would occur in the event that any
of the provisions of this Agreement was not performed in
accordance with its specific terms or was otherwise
breached. It is accordingly agreed that the Parties shall
be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the
terms and provisions hereof in any court of the United
States or any state having jurisdiction, this being in
addition to any other remedy to which they are entitled at
law or in equity.
11.14 Severability. Any term or provision of this
Agreement which is invalid or unenforceable in any
jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of such invalidity or unenforceability
without rendering invalid or unenforceable the remaining
terms and provisions of this Agreement or affecting the
validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be
unenforceable, the provision shall be interpreted to be
only so broad as is enforceable.
IN WITNESS WHEREOF, each of the Parties has caused this
Agreement to be executed on its behalf by its duly
authorized officers as of the day and year first above
written.
Capital City Bank Group, Inc.
By: /s/ Xxxxxxx X. Xxxxx, Xx.
Name: Xxxxxxx X. Xxxxx, Xx.
Title: President and Chief Executive Officer
Xxxxx Holding Company
By: /s/ Xxxx X. Xxxxx, Xx.
Name: Xxxx X. Xxxxx, Xx.
Title: Chairman and President
FIRST NATIONAL BANK OF XXXXX COUNTY
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: President and Vice-Chairman
LIST OF EXHIBITS
Exhibit Number Description
1. Bank Plan of Merger. (1.2).
2. Form of agreement of affiliates of GHC. ( 8.12, 9.2(g)).
3. Matters as to which Xxxxxx & Bird LLP will opine. (9.2(d)).
4. Form of Claims Release (9.2(g))
5. Form of Directors Agreement (9.2(i))
6. Matters as to which Gunster, Yoakley, Xxxxxx-Xxxxx &
Xxxxxxx, P.A. will opine. (9.3(d)).
7. Form of Non-Competition Agreement. (9.2(i))
EXHIBIT 1
PLAN OF MERGER
OF
FIRST NATIONAL BANK OF XXXXX COUNTY
WITH AND INTO
CCBG INTERIM NATIONAL BANK
This Plan of Merger ("Plan of Merger") is made and entered into
as of February 11, 1999, by and between CCBG Interim National Bank, a
national banking association organized and existing under the
laws of the United States with its main office located in
Tallahassee, Florida ("Interim Bank"), and FIRST NATIONAL BANK OF
XXXXX COUNTY, a national banking association organized and
existing under the laws of the United States with its main office
located in Cairo, Georgia ("FNBGC").
FNBGC is a subsidiary of Xxxxx Holding Company, a corporation
organized and existing under the laws of the State of Georgia,
with its principal office located in Cairo, Georgia ("GHC").
Interim Bank is a wholly-owned subsidiary of Capital City Bank
Group, Inc., a corporation organized and existing under the laws
of the State of Florida, with its principal office in Cairo,
Georgia ("CCBG"). Prior to the execution and delivery of this
Plan of Merger, GHC, FNBGC and CCBG have entered into a Agreement
and Plan of Merger (the "Parent Agreement") pursuant to which GHC
would merge with and into CCBG and pursuant to which CCBG agrees
to issue CCBG Common Stock in connection with the Merger of FNBGC
with and into Interim Bank ("Bank Merger"). The Parent Agreement
also contemplates that FNBGC will be merged with and into Interim
Bank. The Boards of Directors of Interim Bank and FNBGC are of
the opinion that the best interests of their respective banks
would be served if FNBGC is merged with and into Interim Bank on
the terms and conditions provided in this Plan of Merger.
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein, Interim Bank and FNBGC hereby make, adopt and
approve this Plan of Merger in order to set forth the terms and
conditions for the merger of FNBGC into Interim Bank.
ARTICLE I
DEFINITIONS
Capitalized terms used and not otherwise defined herein shall
have the meanings ascribed to them in the Parent Agreement.
Except as otherwise provided herein, the capitalized terms set
forth below shall have the following meanings:
1.1 "CCBG Common Stock" shall mean the $ .01 par value common
stock of CCBG.
1.2 "Bank Merger" shall refer to the merger of FNBGC with and
into Interim Bank as provided in Section 2.1 of this Plan of
Merger.
1.3 "FNBGC Common Stock" shall mean the $5.00 par value common
stock of FNBGC.
1.4 "Certificate of Merger" shall mean the Certificate of Merger
to be issued by the Office of the Comptroller of the Currency of
the United States approving the Bank Merger.
1.5 "Effective Time" shall mean the date and time on which the
Bank Merger becomes effective as specified in the Certificate of
Merger.
ARTICLE II
TERMS OF BANK MERGER
2.1 Merger. Subject to the terms and conditions set forth in
this Plan of Merger, at the Effective Time, FNBGC shall be merged
with and into Interim Bank under the Charter and Articles of
Association of Interim Bank pursuant to the provisions of and
with the effect provided in Xxxxx 00, Xxxxxx Xxxxxx Code, Section
215a. Interim Bank shall be the surviving bank and the receiving
association resulting from the Bank Merger and shall continue to
conduct its business under the name "FIRST NATIONAL BANK OF XXXXX
COUNTY." The Bank Merger shall be consummated pursuant to the
terms of this Plan of Merger, which has been approved and adopted
by the respective Boards of Directors and shareholders of Interim
Bank and FNBGC.
2.2 Method of Converting Shares.
(a) Each share of capital stock of Interim Bank issued and
outstanding immediately prior to the Effective Time shall remain
issued and outstanding from and after the Effective Time.
(b) Each share of FNBGC Common Stock, but excluding shares held
by GHC, FNBGC or any CCBG Entity, in each case other than in a
fiduciary capacity or as a result of debts previously contracted,
and excluding shares held by stockholders who perfect their
statutory dissenters' rights, issued and outstanding immediately
prior to the Effective Time shall cease to be outstanding and
shall be converted into and exchanged for the right to receive
21.5 shares of CCBG Common Stock.
(c) Each share of FNBGC Common Stock held by GHC, FNBGC or any
CCBG Entity, in each case other than in a fiduciary capacity or
as a respect of debts previously contracted, shall be cancelled.
ARTICLE III
EFFECT OF BANK MERGER
3.1 Business of FNBGC. The business of FNBGC from and after the
Effective Time shall continue to be that of a national banking
association. The business shall be conducted from its main
office located in Cairo, Georgia and at its legally established
branches, which shall also include the main office and all
branches, whether in operation or approved but unopened, of FNBGC
at the Effective Time.
3.2 Assumption of Rights. At the Effective Time, the separate
existence and corporate organization of FNBGC shall be merged
into and continued in Interim Bank, as the surviving bank and
receiving association of the Bank Merger. All rights, franchises
and interests of FNBGC in and to every type of property (real,
personal and mixed), and all choses in action of FNBGC shall be
transferred to and vested in Interim Bank as the surviving bank
and receiving association by virtue of the Bank Merger without
any deed or other transfer. Interim Bank, upon consummation of
the Bank Merger and without any order or other action on the part
of any court or otherwise, shall hold and enjoy all rights of
property, franchises and interests, including appointments,
designations and nominations, and all other rights and interests
as trustee, executor, administrator, registrar of stocks and
bonds, guardian of estates, assignee, receiver and committee of
estates of lunatics, and in every other fiduciary capacity, in
the same manner and to the same extent as such rights,
franchises, and interests were held or enjoyed by either of FNBGC
or by Interim Bank at the Effective Time, subject to the
conditions imposed by Xxxxx 00, Xxxxxx Xxxxxx Code, Section 215a.
3.3 Assumption of Liabilities. All liabilities and obligations
of FNBGC of every kind and description shall be assumed by
Interim Bank as the surviving bank and receiving association by
virtue of the Bank Merger, and Interim Bank shall be bound
thereby in the same manner and to the same extent that either of
FNBGC or Interim Bank was so bound at the Effective Time.
3.4 Articles of Association; Bylaws. At the Effective Time,
following consummation of the Bank Merger, the Articles of
Association and Bylaws of Interim Bank shall continue to be
those of Interim Bank as in effect immediately prior to the
Effective Time.
3.5 Officers, Employees and Directors. The officers and
employees of Interim Bank immediately following the Effective
Time shall include, among others, the officers and employees of
FNBGC immediately prior to the Effective Time. The Board of
Directors of Interim Bank immediately following the Effective
Time shall consist of the persons named in Annex A to this Plan
of Merger, including Messrs. Xxxx Xxxxx and Xxxxxxx Xxxxxxxx from
FNBGC's Board of Directors, each of whom shall serve until his
respective successor is elected and qualified or until a new
Board of Directors is elected as provided in the Articles of
Association or Bylaws of Interim Bank or as provided by law. All
directors of FNBGC as of the Closing who do not continue as
directors of Interim Bank shall serve as members of Interim
Bank's Advisory Board, and shall have such rights and powers as
are set out in Interim Bank's Bylaws, as amended from time to
time, and shall receive fees for their service on such advisory
board consistent with the fees paid by Interim Bank to members of
its other advisory boards.
3.6 Capital Stock of Interim Bank Post-Merger. The capital
stock of Interim Bank upon completion of the Bank Merger shall be
approximately $25,000, consisting of 5,000 issued
and outstanding shares of common stock of a par value of $5.00
per share. In addition, Interim Bank shall have a surplus of
approximately $75,000 and undivided profits, including
capital reserves, of approximately $100,000 adjusted,
however, for earnings and expenses between December 31, 1998 and
the Effective Time.
ARTICLE IV
EFFECTIVENESS
4.1 Conditions Precedent. Consummation of the Bank Merger is
conditioned upon (i) the Closing of the transactions contemplated
by the Parent Agreement and (ii) receipt of all approvals,
consents, waivers, and other clearances of all federal and state
regulatory authorities having jurisdiction over the transactions
contemplated by this Plan of Merger.
4.2 Termination. This Plan of Merger may be terminated at any
time prior to the Effective Time by the parties hereto after
termination of the Parent Agreement in accordance with the
provisions of Section 10.1 thereof.
4.3 Effectiveness. Subject to the satisfaction of all
requirements of applicable laws and regulations and the terms and
conditions set forth herein, the Bank Merger contemplated by this
Plan of Merger shall be and become effective at the time and on
the date specified in the Certificate of Merger.
ARTICLE V
REPRESENTATIONS OF FNBGC
5.1 Organization, Standing, and Power. FNBGC is a bank duly organized and
validly existing under the Laws of the United States of America,
and has the power and authority to carry on its business as now
conducted and to own, lease and operate its Assets.
5.2 Authority; No Breach by Agreement.
(a) FNBGC has the corporate power and authority necessary to
execute, deliver, and perform its obligations under this Plan of
Merger and to consummate the transactions contemplated hereby.
The execution, delivery, and performance of this Plan of Merger
and the consummation of the transactions contemplated herein have
been duly and validly authorized by all necessary corporate
action in respect thereof on the part of FNBGC, except for
shareholder approval. Subject to such requisite shareholder
approval, this Agreement represents a legal, valid, and binding
obligation of FNBGC, enforceable against FNBGC in accordance with
its terms (except in all cases as such enforceability may be
limited by applicable, 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 Plan of Merger by
FNBGC, nor the consummation by FNBGC of the transactions
contemplated hereby, nor compliance by FNBGC with any of the
provisions hereof, will except as specifically disclosed in the
FNBGC Disclosure Memorandum delivered pursuant to the Parent
Agreement (i) conflict with or result in a breach of any
provision of FNBGC's Articles of Incorporation or Bylaws, (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 GHC Entity under, any Contract or Permit of any GHC
Entity, or (iii) subject to receipt of the requisite approvals
referred to in Section 4.1 of this Plan of Merger, violate any
Law or Order applicable to any GHC Entity or any of their
respective material Assets.
(c) Other than in connection or compliance with the provisions
of the Securities Laws, applicable state corporate and securities
Laws, and other than Consents required from Regulatory
Authorities, and other than notices to or filings with the
Internal Revenue Service or the Pension Benefit Guaranty
Corporation with respect to any employee benefit plans, or under,
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 FNBGC, no
notice to, filing with, or Consent of, any public body or
authority is necessary for the consummation by FNBGC of the Bank
Merger and the other transactions contemplated in this Plan of
Merger.
5.3 Capital Stock.
(a) The authorized capital stock of FNBGC consists of 70,000
shares of FNBGC Common Stock, of which 60,910 shares are issued
and outstanding as of the date of this Bank Plan of Merger and
not more than 60,910 shares will be issued and outstanding at the
Effective Time. All of the issued and outstanding shares of
capital stock of FNBGC are duly and validly issued and
outstanding and are fully paid and nonassessable. None of the
outstanding shares of capital stock of FNBGC has been issued in
violation of any preemptive rights of the current or past
shareholders of FNBGC.
(b) Except as set forth in Section 5.3(a) hereof, there are no
shares of capital stock or other equity securities of FNBGC
outstanding and no outstanding Rights relating to the capital
stock of FNBGC.
ARTICLE VI
REPRESENTATIONS OF INTERIM BANK
6.1 Organization, Standing, and Power. Interim Bank is a bank duly organized
and validly existing under the Laws of the United States of
America, and has the power and authority to carry on its business
as now conducted and to own, lease and operate its Assets.
6.2 Authority; No Breach By Agreement.
(a) Interim Bank has the corporate power and authority necessary
to execute, deliver, and perform its obligations under this Plan
of Merger and to consummate the transactions contemplated hereby.
The execution, delivery, and performance of this Plan of Merger
and the consummation of the transactions contemplated herein have
been duly and validly authorized by all necessary corporate
action in respect thereof on the part of Interim Bank, except for
shareholder approval. Subject to such requisite shareholder
approval, this Agreement represents a legal, valid, and binding
obligation of Interim Bank, enforceable against Interim Bank in
accordance with its terms (except in all cases as such
enforceability may be limited by applicable, 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 Plan of Merger by
Interim Bank, nor the consummation by Interim Bank of the
transactions contemplated hereby, nor compliance by Interim Bank
with any of the provisions hereof, will (i) conflict with or
result in a breach of any provision of Interim Bank's Articles of
Incorporation or Bylaws, (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 CCBGC Entity under, any
Contract or Permit of any CCBCG Entity, or (iii) subject to
receipt of the requisite approvals referred to in Section 4.1 of
this Plan of Merger, violate any Law or Order applicable to any
CCBCG Entity or any of their respective material Assets.
(c) Other than in connection or compliance with the provisions
of the Securities Laws, applicable state corporate and securities
Laws, and other than Consents required from Regulatory
Authorities, and other than notices to or filings with the
Internal Revenue Service or the Pension Benefit Guaranty
Corporation with respect to any employee benefit plans, or under,
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 Interim Bank,
no notice to, filing with, or Consent of, any public body or
authority is necessary for the consummation by Interim Bank of
the Bank Merger and the other transactions contemplated in this
Plan of Merger.
ARTICLE VII
MISCELLANEOUS
7.1 Amendment. To the extent permitted by law, this Plan of
Merger may be amended by a subsequent written instrument upon the
approval of the Boards of Directors of each of the parties hereto
and upon execution of such instrument by the duly authorized
officers of each and by a majority of the Boards of Directors of
Interim Bank and FNBGC; provided that no amendment to this Plan
of Merger shall modify the requirements of regulatory approval as
set forth in Section 4.1 hereof.
7.2 Governing Law. This Plan of Merger shall be governed by and
construed in accordance with the laws of the State of Georgia,
except to the extent that the federal laws of the United States
of America apply to consummation of the Bank Merger.
7.3 Headings. The headings in this Plan of Merger are for
convenience only and shall not affect the construction or
interpretation of this Plan of Merger.
7.4 Counterparts. This Plan of Merger may be executed in two or
more counterparts, each of which shall be deemed an original
instrument, but all of which together shall constitute one and
the same instrument.
[signatures on following page]
IN WITNESS WHEREOF, each of Interim Bank and FNBGC has caused
this Plan of Merger to be executed on its own behalf and by its
officers thereunto duly authorized by a majority of its Board of
Directors, all as of the day and year first above written.
CCBG INTERIM NATIONAL BANK
ATTEST:
By:
Title:
By: /s/ Xxxxxxx X. Xxxxx, Xx.
Organizer and Designated President
[BANK SEAL]
FIRST NATIONAL BANK OF XXXXX COUNTY
ATTEST:
By:
Title:
By: /s/ Xxxxxxx X. Xxxxxxxx
Title: President and Vice Chairman
[BANK SEAL]
