AGREEMENT AND
PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION ("Agreement"), dated this
19th day of November, 1998 is being entered into by and between Oceanside Bank,
a state-chartered bank ("Bank"), Atlantic BancGroup, Inc., a Florida corporation
("Atlantic BancGroup") and Oceanside Interim Bank, an interim state-chartered
bank ("Interim").
The Board of Directors of the Bank have determined that it is in the
best interest of the Bank and its shareholders for the Bank to be reorganized
into a holding company form of ownership. The Bank has caused Atlantic BancGroup
to be organized under Florida law for the purpose of becoming the parent holding
company of the Bank. It is intended that the reorganization will be accomplished
by causing Atlantic BancGroup to become the sole shareholder of the newly-formed
Interim and then merging Interim into the Bank, so that as part of the merger,
all of the outstanding shares of Common Stock of the Bank, as well as all of the
outstanding Warrants of the Bank, will automatically be converted into and
become the shares of Common Stock of Atlantic BancGroup, which would then become
the sole shareholder of the Bank (the "Reorganization").
NOW, THEREFORE, the parties hereto, intending to be legally bound by
this Agreement, agree to effect the Reorganization of the Bank into the holding
company form of ownership in accordance with and subject to the terms and
conditions set forth below.
ARTICLE I
Merger of Oceanside Interim Bank into
Oceanside Bank and Related Matters
Section 1.1 On the Effective Date (as defined in Article V herein),
Interim will be merged with and into the Bank and the Bank shall then be the
"Resulting Bank" (the "Merger"), and the separate existence of Interim shall
cease. All assets and property (real, personal and mixed, tangible and
intangible, chooses in action, rights and credits) then owned by Interim, or
which would inure to it, shall immediately and automatically, by operation of
law and without any conveyance, transfer, or further action, become the property
of the Bank and shall be deemed to be a continuation of Interim. The Bank shall
succeed to the rights and obligations of Interim. The Bank shall operate under
its original Articles of Incorporation, a copy of which is attached hereto as
Exhibit A, under the name "Oceanside Bank".
Section 1.2 Following the Merger, the existence of the Bank which will
be the Resulting Bank, shall continue unaffected and unimpaired by the Merger,
with all rights, privileges, immunities and powers, and subject to all the
duties and liabilities, of a state chartered bank organized under Florida law,
and the Articles of Incorporation, a copy of which is attached hereto as Exhibit
A, and Bylaws of the Bank as in effect on the Effective Date, shall continue in
full force and effect.
Section 1.3 From and after the Effective Date, and subject to the
actions of the Board of Directors of the Bank the business presently conducted
by the Bank will continue to be conducted by it, as a wholly-owned subsidiary.
The then executive officers of the Bank will continue in the positions they
currently hold until such time as the Board of Directors of the Bank determines
otherwise.
The following is a list of the current Executive Officers:
Position with
Name Oceanside Bank
---- --------------
M. Xxxxxxx Xxxxxxxxxxx Chairman and
Chief Executive Officer
Xxxxx X. Xxxxxxxx President
Xxxxx X. Xxxxx Senior Vice President and
Chief Financial Officer
Section 1.4 On the Effective Date, the number of directors of the Bank
as stated in its Articles of Incorporation, shall be not less than five (5). The
directors set forth below shall serve as the interim directors of Atlantic
BancGroup until the first Annual Meeting of Shareholders. On the Effective Date,
the then Board of Directors of the Bank shall continue to serve as the Board of
Directors of the Bank until such time as their successors have been elected and
qualified. The names, resident addresses and terms of office of the directors of
the Bank on this date are as follows:
Name Address
---- -------
Xxxxx X. Xxxxxxx 00 Xxxx Xxxx
Xxxxx Xxxxx Xxxxx, XX 00000
Xxxxx X. Xxxxxxxx 0000 Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Xxxxx X. Xxxxxxxx 000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Xxxxxx X. Xxxxxxx, Xx. 0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Xxxxx Xxxxxxxxxxx 0000 Xxxxx Xxx Xxxxx
Xx. Xxxxxxxxx, Xxxxxxx 00000
Xxxxxx X. Xxxxxx 0000 Xxxx Xxxx Xxx
Xxxxx Xxxxx Xxxxx, XX 00000
Xxxxxx X. Xxxxxxxx 000 00xx Xxxxxx
Xxxxxxxx Xxxxx, XX 00000
M. Xxxxxxx Xxxxxxxxxxx 0000 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Xxxxxx X. Xxxxxxx 0000 Xxxxxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Section 1.5 The home office of Oceanside Bank is located at 0000 Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxxxx Xxxxx, Xxxxxxx 00000, and it shall continue to be the
home office of the Bank from and after the Effective Date. The Bank currently
operates and intends to continue to operate the following full-service branch
offices after the Reorganization:
North Beach Office
000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx, Xxxxxxx 00000
Section 1.6 The Bank currently does not have trust powers and does not
anticipate having trust powers at the Effective Date of the Reorganization.
ARTICLE II
Conversion of Stock
Section 2.1 The manner and basis of converting the Common Stock of the
parties to this Agreement shall be as follows:
A. On the Effective Date, all shares of Common Stock of
Atlantic BancGroup held by the Bank shall be canceled and shall no
longer be deemed to be issued or outstanding for any purpose.
B. On the Effective Date, except for those shares for which
"dissenters' rights" are exercised, for each share of Common Stock,
$5.00 par value, of the Bank ("Bank Common Stock") issued and
outstanding immediately prior to the Effective Date shall, by virtue of
the Merger and without any action on the part of the holder thereof, be
converted into and become one (1) share of fully paid and
non-assessable Common Stock, par value $.01 per share, of Atlantic
BancGroup ("Atlantic BancGroup Common Stock"). From and after the
Effective Date, each certificate which, prior to the Effective Date,
represented shares of the Bank shall evidence ownership of Atlantic
BancGroup on the basis set forth herein.
C. All of the outstanding Warrants of Oceanside Bank
(entitling the holder thereof to purchase one share of Common Stock at
$10.00 per share) will be converted into and exchanged for, on a
one-for-one basis, Warrants for Atlantic BancGroup (entitling the
holder thereof to acquire one share of Atlantic BancGroup Common Stock,
$.01 per share par value, at $10.00 per share). From and after the
Effective Date, each warrant which, prior to the Effective Date,
represented rights to purchase shares in the Bank shall provide the
holder thereof the same rights to purchase shares in Atlantic
BancGroup.
D. Each share of Common Stock of Interim issued and
outstanding immediately prior to the Effective Date shall, on the
Effective Date, by virtue of the Merger and without any action on the
part of the holder thereof, be converted into and become one share of
fully paid and non-assessable Common Stock, $5.00 par value, of the
Bank and shall not be further converted into shares of Atlantic
BancGroup so that from and after the Effective Date, all of the issued
and outstanding shares of Bank Common Stock shall be held by Atlantic
BancGroup. From and after the Effective Date, each certificate, if any,
which, prior to the Effective Date, represented shares of Interim,
shall evidence ownership of the Bank on the basis hereinabove set
forth.
E. At or prior to the Effective Date, the Bank shall
designate an exchange agent to receive from the holders of the Bank
stock certificates which immediately prior to the Effective Date
represented Bank Common Stock and to exchange such certificates for
certificates of Atlantic BancGroup Common Stock as heretofore provided.
Promptly after the Effective Date, the exchange agent shall mail to
each record holder, as of the Effective Date, any outstanding
certificate or certificates, which prior to the Effective Date
represented shares of Bank Common Stock, a letter of transmittal (which
shall specify how delivery shall be effected, and that risk of loss and
title to such certificate or certificates shall pass only upon proper
delivery of such certificate or certificates, together with a properly
executed letter of transmittal, to the exchange agent at its address
stated therein) and instructions for use in effecting the surrender of
such certificate or certificates for exchange therefore. Upon surrender
to the exchange agent for such certificate or certificates, together
with such properly executed letter of transmittal, the exchange agent
shall exchange such certificate or certificates for stock certificates
of Atlantic BancGroup Common Stock as provided herein. Until so
surrendered, each such outstanding certificate which, prior to the
Effective Date, represented shares of Bank Common Stock shall be deemed
for all corporate purposes to evidence the ownership of the number of
whole shares of Atlantic BancGroup Common Stock into which such shares
of Bank Common Stock shall have been converted.
F. The conversion and exchange of shares of Bank Common
Stock and Warrants into shares of Atlantic BancGroup Common Stock and
Warrants, pursuant to this Article II, shall be in full satisfaction of
all rights pertaining to the converted shares and Warrants.
G. On the Effective Date, the holders of certificates
formerly representing Bank Common Stock outstanding on the Effective
Date shall cease to have any rights with respect to Bank Common Stock,
and their sole rights shall be with respect to Atlantic BancGroup
Common Stock into which their shares of Bank Common Stock shall have
been converted as a result of the Merger. On the Effective Date, the
holders of Warrants outstanding on the Effective Date shall cease to
have any rights with respect to Bank Common Stock , and their sole
rights shall be with respect to Atlantic BancGroup Common Stock into
which their shares of Bank Common Stock shall have been converted as a
result of the Merger.
H. No share of Bank Common Stock as to which dissenters'
appraisal rights have been validly exercised and perfected and for
which cash is payable pursuant to law (Dissenting Shares) shall be
converted into the right to receive Atlantic BancGroup, Inc. Common
Stock. In lieu thereof, the holder of Dissenting Shares shall be
entitled to payment in accordance with the applicable provisions of
Section 658.44, Florida Statutes, (the Dissenter/Appraisal Statute)
applicable to state-chartered banks. If any holder of Dissenting Shares
shall effectively withdraw or lose his dissenter rights under the
Dissenter/Appraisal Statute, such Dissenting Shares shall be converted
into Atlantic BancGroup Common Stock in accordance with the provisions
hereof. Dissenting Shares acquired by the Bank pursuant to payment
shall be held by the Bank as authorized but unissued shares. This
Agreement is subject to the condition that properly exercised dissenter
shares shall not exceed more than
10% of the total number of shares outstanding or approximately 59,475
shares in order for this to be a tax free reorganization. Under the
terms of this Plan, management may chose to honor up to 10% in
dissenter shares in order to consummate the transaction. In order to
remain a "well capitalized bank" under the FDIC rules, the Bank intends
to do a private placement offering to provide sufficient capital to the
Bank to pay for dissenter shares that are tendered.
ARTICLE III
Conditions
Section 3.1 The obligations of the Bank, Atlantic BancGroup and Interim
to effect the Merger and otherwise consummate the Reorganization, which are the
subject matter hereof, shall be subject to satisfaction of the following
conditions:
A. The approval of this Agreement by a majority of the
outstanding shares of Bank Common Stock at a meeting of the
shareholders of the Bank duly called at which a quorum is present.
B. Receipt of any and all approvals from The Florida
Department of Banking and Finance ("Florida Department"), the Federal
Reserve Board ("FRB"), and the Federal Deposit Insurance Corporation
("FDIC") and any other governmental agency having jurisdiction
necessary for the lawful consummation of the Merger, and the issuance
and delivery of Atlantic BancGroup Common Stock as contemplated by this
Agreement.
C. Receipt of a ruling from the Internal Revenue Service or
an opinion from its legal counsel that the Merger will be treated as a
non-taxable transaction under Section 351 or other applicable
provisions of the Internal Revenue Code of 1986, as amended, and that
no gain or loss will be recognized by the Bank's shareholders upon the
exchange of Bank Common Stock held by them solely for Atlantic
BancGroup Common Stock.
D. Not more than 10% of the outstanding shares shall have
exercised dissenter's rights as provided for in Section 2.1(H) herein.
ARTICLE IV
Termination
Section 4.1 This Agreement may be terminated and the Merger need not be
consummated at the election of any of the parties hereto at any time before the
Effective Date, in the event that, for any reason, consummation of the holding
company formation contemplated by this Agreement is inadvisable in the opinion
of the Bank, Atlantic BancGroup, or Interim. Termination of this Agreement shall
be effected by written notice by the terminating party to the other parties.
Upon giving of such notice, this Agreement shall be terminated and there shall
be no liability hereunder or on account of such termination on the part of the
Bank, Atlantic BancGroup and/or Interim, or the directors, officers, employees,
or agents of any of them.
Section 4.2 In the event of termination of this Agreement, the Bank
shall pay the fees and expenses incurred in connection with this Agreement and
the proposed formation of a holding company.
ARTICLE V
Effective Date of Merger
Section 5.1 Upon satisfaction or waiver (in accordance with the
provisions of this Agreement) of each of the conditions set forth in Article
III, the parties hereto shall execute and cause to be filed such certificates or
further documents as are required under applicable law, rule or regulation with
the Florida Department, the FRB and/or the FDIC and with such other federal and
state regulatory agencies as may be required in order to effect the Merger
provided for herein.
Section 5.2 The date and time by which all of such filings are
completed and accepted by the applicable agencies is referred to in this
Agreement as the "Effective Date".
ARTICLE VI
Miscellaneous
Section 6.1 Any of the terms or conditions of this Agreement, which may
legally be waived, may be waived at any time by any party hereto which is
entitled to the benefit thereof, or any of such terms or conditions may be
amended or modified in whole or in part at any time, to the extent authorized by
applicable law, by an agreement in writing, executed in the same manner as this
Agreement.
Section 6.2 This Agreement shall be governed by and construed under
Florida law, and where applicable, federal law.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement and Plan of Reorganization as of the date first above written.
OCEANSIDE BANK
Attest: By:
---------------
Xxxxx X. Xxxxx M. Xxxxxxx Xxxxxxxxxxx
Chairman of the Board and
Chief Executive Officer
ATLANTIC BANCGROUP, INC.
Attest: By:
---------------
Xxxxx X. Xxxxx M. Xxxxxxx Xxxxxxxxxxx
Chairman of the Board and
Chief Executive Officer
OCEANSIDE INTERIM BANK
(In Organization)
Attest: By:
---------------
Xxxxx X. Xxxxx Xxxxx X. Xxxxxxxx
President
