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EXHIBIT 2(B)
AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
This Amendment No.1 (the "Amendment No. 1") is made this ______ day of
August, 1998, by and among SecurityBank Texas, a Texas banking corporation (the
"Bank"), SouthTrust Bank of Texas, a Texas banking corporation ("ST-Bank
Texas"), SouthTrust of Alabama, Inc., an Alabama corporation and a wholly-owned
subsidiary of SouthTrust (as defined herein)("ST-Sub"), SouthTrust Corporation,
a Delaware corporation ("SouthTrust"), and SouthTrust Bank, National
Association, a national banking association ("ST-Bank").
WHEREAS, effective July 14, 1998, the Bank, ST-Bank Texas, ST-Sub and
SouthTrust executed an Agreement and Plan of Merger (the "Merger Agreement"),
pursuant to which ST-Sub will acquire the assets and business of the Bank in
exchange for shares of common stock of SouthTrust, in a transaction that
qualifies as a reorganization pursuant to Section 368(a)(1)(C) of the Internal
Revenue Code of 1986 (the "Code");
WHEREAS, ST-Sub desired to effect the acquisition through its
wholly-owned subsidiary, ST-Bank Texas, by causing the Bank to be merged with
and into ST-Bank Texas;
WHEREAS, now ST-Sub wishes to effect the acquisition through its
wholly-owned subsidiary, ST-Bank; and
WHEREAS, the Bank, ST-Bank Texas, ST-Sub and SouthTrust wish to amend
the Merger Agreement, as set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual covenants,
representations, warranties and agreements contained herein, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Amendment to Defined Term "ST-Bank". The Merger Agreement
is hereby amended by deleting "SouthTrust Bank of Texas, a Texas banking
corporation" from the first sentence of page 1 of the Merger Agreement and
inserting in its place and stead "SouthTrust Bank, National Association, a
national banking association".
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2. Amendment to Section 1.1. The Merger Agreement is hereby
amended by deleting the first and second sentences of Section 1.1 therein and
inserting in their place and stead the following:
"Subject to the provisions hereof, the Bank shall be merged
with and into ST-Bank (which has heretofore and shall
hereinafter be referred to as the "Merger") pursuant to 12
U.S.C.A. ss. ss. 215a-1 and 1831u and ST-Bank shall be the
surviving corporation (sometimes hereinafter referred to as
"Surviving Corporation" when reference is made to it after the
Effective Time of the Merger (as defined below)). The Merger
shall become effective on the date and at the time on which
the Merger is deemed effective by the Office of the
Comptroller of the Currency (the "OCC") (such time is
hereinafter referred to as the "Effective Time of the
Merger")."
3. Amendment to Section 1.1. The Merger Agreement is hereby amended by
inserting the following at the end of Section 1.1:
"(b) The main office of the Bank is located at 0000 Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxx. The main office of ST-Bank
is located at Birmingham, Alabama.
(c) The proposed main office of the Surviving Corporation
shall be located at Birmingham, Alabama. The branch
offices of the Surviving Corporation shall be the
existing branch offices of ST-Bank and the existing
main and branch offices of the Bank.
(d) As of March 31, 1998, ST-Bank had total capital stock
of $9,006,600 divided into 1,020,000 shares of Common
Stock, par value $8.83 per share ("ST-Bank Shares").
As of March 31, 1998, the Bank had total capital
stock of $1,220,000 divided into 330,000 shares of
authorized Common Stock, par value $4.00, of which
305,000 are issued and outstanding and of which none
are held as treasury stock.
(e) After the Effective Time of the Merger, the Surviving
Corporation shall have total capital stock of
$9,006,600 divided into 1,020,000 shares of ST-Bank
Shares, authorized, 1,020,000 shares of which shall
be issued and outstanding and no shares of which
shall be held as treasury stock.
(f) The Surviving Corporation shall have trust powers."
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4. Amendment to Section 1.2. The Merger Agreement is hereby amended by
deleting the second and third sentences of Section 1.2 therein and inserting in
their place and stead the following:
"The Articles of Association and the Bylaws of ST-Bank, as in
effect on the date hereof and as otherwise amended prior to
the Effective Time of the Merger, shall be the Articles of
Association and the Bylaws of the Surviving Corporation until
further amended as provided therein and in accordance with
applicable law. The Surviving Corporation shall have all the
rights, privileges, immunities and powers and shall be subject
to all the duties and liabilities of a corporation organized
under the laws of the United States of America and shall
thereupon and thereafter possess all other privileges,
immunities and franchises of a private, as well as of a public
nature, of each of the constituent corporations."
5. Amendment to Section 1.4. The Merger Agreement is hereby amended by
deleting Section 1.4 therein in its entirety and inserting in its place and
stead the following:
"From and after the Effective Time of the Merger, until
replaced pursuant to applicable laws and under the provisions
of the Articles of Association and Bylaws of the Surviving
Corporation, the persons who shall serve as directors and
executive officers, as the case may be, of the Surviving
Corporation shall be those persons who are serving in such
capacity in ST-Bank immediately prior to the Effective Time of
the Merger, and such additional persons as SouthTrust, ST-Sub
or ST-Bank may, at or prior to the Effective Time of the
Merger, designate in writing."
6. Amendment to Section 2.1(c). The Merger Agreement is hereby amended
by deleting Section 2.1(c) therein in its entirety and inserting in its place
and stead the following:
"Subject to the terms and upon the conditions of this
Agreement, including, without limitation, Section 2.2 of this
Agreement and the ST-Bank Shares excluded in (a) above, each
ST-Bank Share issued and outstanding immediately prior to the
Effective Time of Merger shall remain outstanding and
unchanged after the Merger and shall thereafter constitute all
of the issued and outstanding shares of capital stock of the
Surviving Corporation."
7. Amendment to Section 3.7. The Merger Agreement is hereby amended by
deleting Section 3.7 therein in its entirety and inserting in its place and
stead the following:
"Except for (i) the approval of this Agreement and the
transactions
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contemplated hereby by the shareholders of the Bank; (ii) the
Consents of the Regulatory Authorities; (iii) the approval of
this Agreement by sole shareholder of ST-Bank; and (iv) as set
forth in DISCLOSURE SCHEDULE 3.7, no Consents of any person
are necessary in connection with the execution and delivery by
the Bank of this Agreement and the consummation by the Bank of
the Merger and the other transactions contemplated hereby."
8. Amendment to Section 4.9. The Merger Agreement is hereby amended by
deleting Section 4.9 therein in its entirety and inserting in its place and
stead the following:
"Except for (i) the Consents of the Regulatory Authorities;
(ii) the approval of this Agreement by the respective
shareholders of ST- Bank and the Bank; and (iii) as set forth
on DISCLOSURE SCHEDULE 4.9, no Consents of any person are
necessary in connection with the execution and delivery by
SouthTrust and ST-Bank and the consummation of the Merger and
the other transactions contemplated hereby."
9. Amendment to Section 4.2. The Merger Agreement is hereby amended by
deleting Section 4.2 therein in its entirety and inserting in its place and
stead the following:
"(a) ST-Bank is a corporation duly organized, validly existing
and in good standing under the laws of the United States of
America. ST- Bank has the corporate power and authority to own
or lease all of its properties and assets and to carry on its
business as now conducted, or as proposed to be conducted
pursuant to this Agreement, and ST- Bank is, or as of the
Effective Time of the Merger will be, licensed or qualified to
do business in each jurisdiction in which the nature of the
business now conducted, or as proposed to be conducted
pursuant to this Agreement, by ST-Bank, or the character or
location of the properties and assets now owned or leased, or
as proposed to be owned or leased pursuant to this Agreement,
by ST-Bank makes such licensing or qualification necessary,
except where the failure to be so licensed or qualified (or
steps necessary to cure such failure) would not have a
Material Adverse Effect on ST-Bank. True and correct copies of
the Articles of Association and the Bylaws of ST-Bank, each as
amended as of the date hereof, have been delivered to the
Bank.
(b) ST-Bank has, or as of the Effective Time of the Merger
will have, in effect all federal, state, local and foreign
governmental, regulatory and other authorizations, permits and
licences necessary for it to own or lease its properties and
assets now owned or leased or to be owned or leased pursuant
to this Agreement and to carry out its business as now
conducted, or as proposed to be conducted pursuant to this
Agreement, the absence of which, either individually or in the
aggregate, would have a Material Adverse Effect on ST-Bank."
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10. Amendment to Section 4.4. The Merger Agreement shall be amended by
deleting clause (i) of Section 4.4 therein in its entirety and inserting in its
place and stead the following:
"violate any provision of the Restated Certificate of
Incorporation or Bylaws of SouthTrust, the Certificate of
Incorporation or Bylaws of ST-Sub or the Articles of
Association or Bylaws of ST-Bank or,".
11. Capitalized terms not defined herein shall have the meanings
assigned to them in the Merger Agreement.
12. Except as expressly amended herein, all other terms and conditions
of the Merger Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereby have caused this
Amendment No. 1 to be executed and delivered, and their respective seals
hereunto affixed, by their officers thereunto duly authorized, and have caused
this Amendment No. 1 to be dated as of the day and year first above written.
[CORPORATE SEAL] SECURITYBANK TEXAS
By:
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Name: Xxxxxx X. Xxxxxxx
Its: Chairman
ATTEST:
By:
----------------------------
Name:
--------------------------
Its
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[CORPORATE SEAL]
SOUTHTRUST BANK OF TEXAS
By:
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Name: Xxxx X. Xxxxxxxx
Its: Vice President
ATTEST:
By:
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Name: Xxxxxxx X. Xxxxxx
Its: Assistant Secretary
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[CORPORATE SEAL]
SOUTHTRUST CORPORATION
By:
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Name: Xxxx X. Xxxxxxxx
Its: Senior Vice President
ATTEST:
By:
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Name: Xxxxxxx X. Xxxxxx
Its: Assistant Secretary
[CORPORATE SEAL]
SOUTHTRUST OF ALABAMA, INC.
By:
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Name: Xxxx X. Xxxxxxxx
Its: Vice President
ATTEST:
By:
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Name: Xxxxxxx X. Xxxxxx
Its: Assistant Secretary
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[CORPORATE SEAL]
SOUTHTRUST BANK, NATIONAL ASSOCIATION
By:
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Name: Xxxx X. Xxxxxxxx
Its: Senior Vice President
ATTEST:
By:
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Name: Xxxxxxx X. Xxxxxx
Its: Assistant Secretary
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