AGREEMENT AND PLAN OF MERGER
Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of the 6th day of September, 2005 (the “Plan” or the
“Agreement”) by and between SYNOVUS FINANCIAL CORP. (“Synovus”) and RIVERSIDE BANCSHARES, INC.
(“Riverside”).
RECITALS:
A. Synovus. Synovus has been duly incorporated and is an existing corporation in good
standing under the laws of Georgia, with its principal executive offices located in Columbus,
Georgia. As of July 31, 2005, Synovus had 600,000,000 authorized shares of common stock, par value
$1.00 per share (“Synovus Common Stock”), of which 311,768,496 shares were outstanding on said
date. All of the issued and outstanding shares of Synovus Common Stock are duly and validly issued
and outstanding and are fully paid and nonassessable and not subject to any preemptive rights.
Synovus has 39 wholly-owned banking subsidiaries (as defined in Rule 1-02 of Regulation S-X
promulgated by the Securities and Exchange Commission, a “Subsidiary”) and other non-banking
Subsidiaries as of the date hereof. Each Subsidiary that is a depository institution is an “insured
institution” as defined in the Federal Deposit Insurance Act and the applicable regulations
thereunder, and the deposits in which are insured by the Federal Deposit Insurance Corporation.
B. Riverside. Riverside has been duly incorporated and is an existing corporation in good
standing under the laws of Georgia, with its principal executive offices located in Marietta,
Georgia. As of July 31, 2005, Riverside had authorized: (1) 8,000,000 shares of Class A common
stock, par value $1.00 per share (“Riverside Class A Common Stock”), of which 5,074,180 shares are
outstanding as of the date hereof; and (2) 2,000,000 shares of Class B common stock, par value
$1.00 per share (“Riverside Class B Common Stock”), of which 110,814 shares are outstanding as of
the date hereof. All of the issued and outstanding shares of Riverside Class A and Class B Common
Stock are duly and validly issued and outstanding and are fully paid and nonassessable and not
subject to any preemptive rights. Riverside has one wholly-owned banking Subsidiary, Riverside
Bank, which Subsidiary is an “insured institution” as defined in the Federal Deposit Insurance Act
and the applicable regulations thereunder, and the deposits in which are insured by the Federal
Deposit Insurance Corporation and other non-banking Subsidiaries.
C. Rights, Etc. Neither Synovus nor Riverside has any shares of its capital stock reserved
for issuance, any outstanding option, call or commitment relating to shares of its capital stock or
any outstanding securities, obligations or agreements convertible into or exchangeable for, or
giving any person any right (including, without limitation, preemptive rights) to subscribe for or
acquire from it, any shares of its capital stock except, in the case of Synovus, as described in
filings made with the Securities and Exchange Commission (“SEC”) and except, in the case of
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Riverside, as described in its audited financial statements for the year ended December 31,
2004 or in its unaudited financial statements for the period ended June 30, 2005 or except as
otherwise disclosed in the Disclosure Schedules referred to in Article III below.
D. Board Approvals. The respective Boards of Directors of Synovus and Riverside have
unanimously approved and adopted the Plan and have duly authorized its execution. In the case of
Riverside, the Board of Directors has unanimously voted to recommend to its shareholders that the
Plan be approved.
E. Materiality. Unless the context otherwise requires, any reference in this Agreement to
materiality with respect to any party shall be deemed to be with respect to such party and its
Subsidiaries taken as a whole.
F. Material Adverse Effect. For the purposes of this Plan, the capitalized term “Material
Adverse Effect” as used in relation to a person, means an adverse effect on the business, results
of operations or financial condition of that person or its Subsidiaries which is material to it and
its Subsidiaries, taken as a whole, provided that “Material Adverse Effect” shall not include or be
deemed to include: (1) the impact of changes which are made and become effective after the date of
this Plan in banking or similar laws of general applicability or interpretations thereof by courts
or governmental authorities; or (2) changes which are made and become effective after the date of
this Plan in generally accepted accounting principles applicable to banks and their holding
companies.
In consideration of their mutual promises and obligations hereunder, and intending to be
legally bound hereby, Synovus and Riverside adopt the Plan and prescribe the terms and conditions
hereof and the manner and basis of carrying it into effect, which shall be as follows:
I. THE MERGER
(A) Structure of the Merger. On the Effective Date (as defined in Article VII), Riverside
will merge (the “Merger”) with and into Synovus, with Synovus being the surviving corporation (the
“Surviving Corporation”) under the name Synovus Financial Corp. pursuant to the applicable
provisions of the Georgia Business Corporation Code (“Georgia Act”). On the Effective Date, the
articles of incorporation and bylaws of the Surviving Corporation shall be the articles of
incorporation and bylaws of Synovus in effect immediately prior to the Effective Date.
Also on the Effective Date, or as soon thereafter as is practicable, the parties shall cause
Riverside Bank, a wholly-owned subsidiary of Riverside, to be merged with and into Bank of North
Georgia, a wholly-owned subsidiary of Synovus, with Bank of North Georgia as the resulting bank of
the merger. After the merger the former offices of Riverside Bank will operate as branch offices
of Bank of North Georgia.
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(B) Effect on Outstanding Shares. Immediately prior to the Merger: (1) each outstanding share
of Riverside Class A Common Stock shall remain outstanding and unchanged; and (2) each outstanding
share of Riverside Class B Common Stock shall be converted on a one-for-one basis into a share of
Riverside Class A Common Stock. The shares of Riverside Class A Common Stock described in clause
(1) above and the shares of Riverside Class A Common Stock of Riverside to be issued pursuant to
clause (2) above are hereinafter collectively referred to as “Riverside Stock.”
By virtue of the Merger, automatically and without any action on the part of the holder
thereof, each share of Riverside Stock issued and outstanding on the Effective Date shall be
converted into and exchangeable for the right to receive 1.0312 shares of Synovus Common Stock
(“Per Share Exchange Ratio”).
As of the Effective Date, each share of Riverside Common Stock held as treasury stock of
Riverside shall be canceled, retired and cease to exist, and no payment shall be made in respect
thereof.
No fractional shares of Synovus Common Stock shall be issued in connection with the Merger.
Each holder of Riverside Stock who would otherwise have been entitled to receive a fraction of a
share of Synovus Common Stock shall receive, in lieu thereof, cash (without interest) in an amount
equal to such fractional part of a share of Synovus Common Stock multiplied by the closing price
per share of Synovus Common Stock on the New York Stock Exchange
(“NYSE”) on the last business day
immediately preceding the Effective Date.
Each holder of Riverside Stock will be entitled to ten (10) votes for each share of Synovus
Common Stock to be received by him/her on the Effective Date pursuant to a set of resolutions
adopted by the Board of Directors of Synovus on September 6, 2005, in accordance with and subject
to those certain Articles of Amendment to Synovus’ Articles of Incorporation, dated April 24, 1986.
Synovus shall provide Riverside with certified copies of such resolutions prior to the Effective
Date.
The shares of Synovus Common Stock issued and outstanding immediately prior to the Effective
Date shall remain outstanding and unchanged after the Merger.
If, between the date of this Agreement and the Effective Date, the outstanding shares of
Synovus Common Stock shall be increased, decreased, changed into or exchanged for a different
number or class of shares by reason of any reorganization, reclassification, recapitalization,
stock dividend, stock split, reverse stock split, or other like changes in Synovus’ capitalization,
then an appropriate and proportionate adjustment shall be made to the Per Share Exchange Ratio so
as to prevent the dilutive effect of such transaction on a percentage of ownership basis.
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(C) General Procedures. Certificates which represent shares of Riverside Stock that are
outstanding on the Effective Date (each, a “Certificate”) and are converted into shares of Synovus
Common Stock pursuant to the Plan shall, after the Effective Date, be deemed to represent shares of
the Synovus Common Stock into which such shares have become converted and shall be exchangeable by
the holders thereof in the manner provided in the transmittal materials described below for new
certificates representing the shares of Synovus Common Stock into which such shares have been
converted.
As promptly as practicable after the Effective Date, Synovus shall send to each holder of
record of shares of Riverside Stock outstanding on the Effective Date transmittal materials for use
in exchanging the Certificates for such shares for certificates for shares of the Synovus Common
Stock into which such shares of the Riverside Stock have been converted pursuant to the Plan. Upon
surrender of a Certificate, duly endorsed as Synovus may require, the holder of such Certificate
shall be entitled to receive in exchange therefor the consideration set forth in paragraph (B) of
Article I and such Certificate shall forthwith be canceled. No dividend or other distribution
payable after the Effective Date with respect to the Synovus Common Stock shall be paid to the
holder of any unsurrendered Certificate until the holder thereof surrenders such Certificate, at
which time such holder shall receive all dividends and distributions, without interest thereon,
previously withheld from such holder pursuant hereto. After the Effective Date, there shall be no
transfers on the stock transfer books of Riverside of shares of Riverside Stock which were issued
and outstanding on the Effective Date and converted pursuant to the provisions of the Plan. If
after the Effective Date, Certificates are presented for transfer to Riverside, they shall be
canceled and exchanged for the shares of Synovus Common Stock deliverable in respect thereof as
determined in accordance with the provisions of paragraph (B) of Article I and in accordance with
the procedures set forth in this paragraph. In the case of any lost, mislaid, stolen or destroyed
Certificate, the holder thereof may be required, as a condition precedent to the delivery to such
holder of the consideration described in paragraph (B) of Article I, to deliver to Synovus a bond
in such sum as Synovus may direct as indemnity against any claim that may be made against the
exchange agent, Synovus or Riverside with respect to the Certificate alleged to have been lost,
mislaid, stolen or destroyed.
After the Effective Date, holders of Riverside Stock shall cease to be, and shall have no
rights as, stockholders of Riverside, other than to receive shares of Synovus Common Stock into
which such shares have been converted, fractional share payments pursuant to the Plan and any
dividends or distributions with respect to such shares of Synovus Common Stock.
Notwithstanding the foregoing, neither Synovus nor Riverside nor any other person shall be
liable to any former holder of shares of Riverside Stock for any amounts paid or property delivered
in good faith to a public official pursuant to applicable abandoned property, escheat or similar
laws.
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(D) Options. On the Effective Date, each option granted by Riverside to purchase shares of
Riverside Stock (each a “Riverside Stock Option”), whether vested or unvested, which is outstanding
and unexercised immediately prior thereto, shall be assumed by Synovus and converted automatically
into an option to purchase shares of Synovus Common Stock (each a “Synovus Stock Option”) in an
amount and at an exercise price determined as provided below (and otherwise having the same
duration and other terms as the original option):
| (1) | The number of shares of Synovus Common Stock to be subject to the new option shall be equal to the product of the number of shares of Riverside Stock subject to the original option multiplied by the Per Share Exchange Ratio, provided that any fractional shares of Synovus Common Stock resulting from such multiplication shall be rounded down to the nearest whole share; and | ||
| (2) | The exercise price per share of Synovus Common Stock under the new option shall be equal to the exercise price per share of Riverside Stock under the original option divided by the Per Share Exchange Ratio, provided that such exercise price shall be rounded up to the nearest cent. |
The adjustment provided herein with respect to any options which are “incentive stock options”
(as defined in Section 422 of the Internal Revenue Code of 1986 (the “Code”)) shall be and is
intended to be effected in a manner which is consistent with Section 424(a) of the Code.
Within thirty (30) days after the Effective Date, Synovus shall notify each holder of an
option to purchase Riverside Stock of the assumption of such options by Synovus. Such notice will
effect the revisions to the options, which shall be effective as of the Effective Date. No payment
shall be made for fractional interests. From and after the date hereof, no additional options to
purchase Riverside Stock shall be granted. Synovus shall take all corporate action necessary to
reserve for issuance a sufficient number of shares of Synovus Common Stock for delivery upon
exercise of the Synovus Stock Options. As soon as practicable after the Effective Date, Synovus
shall file a registration statement on Form S-8 (or any successor or other appropriate forms) with
respect to the shares of Synovus Common Stock subject to any Synovus Stock Options held by persons
who are or were directors, officers or employees of Riverside.
(E) Dissenting Shareholders. Any holder of shares of Riverside Stock who perfects such
holder’s dissenters’ rights in accordance with the Georgia Act shall be entitled to receive from
the Surviving Corporation the value of such shares in cash as determined pursuant to such provision
of the Georgia Act; provided, that no such payment shall be made to any dissenting shareholder
unless and until such dissenting shareholder has complied with the applicable provisions of the
Goergia Act and surrendered to the Surviving Corporation the certificate or
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certificates representing the shares for which payment is being made. In the event that after the
Effective Date a dissenting shareholder of Riverside fails to perfect, or effectively withdraws or
loses, such holder’s right to appraisal of and payment for such holder’s shares, the Surviving
Corporation shall issue and deliver the consideration to which such holder of shares of Riverside
Stock is entitled under paragraph (B) of this Article I (without interest) upon surrender by such
holder of the certificate or certificates representing the shares of Riverside Stock held by such
holder.
II. ACTIONS PENDING MERGER
(A) Riverside covenants to Synovus that Riverside and its Subsidiaries shall conduct their
business only in the ordinary course and shall not, without the prior written consent of Synovus,
which consent will not be unreasonably withheld: (1) issue any options to purchase capital stock
or issue any shares of capital stock (including pursuant to the Riverside Employee Stock Purchase
Plan), other than shares of Riverside Stock issued in connection with the exercise of currently
outstanding options to purchase shares of Riverside Stock; (2) declare, set aside, or pay any
dividend or distribution with respect to the capital stock of Riverside other than normal and
customary quarterly cash dividends in accordance with past practices and the provisions of Section
III(Q) of this Agreement; (3) directly or indirectly redeem, purchase or otherwise acquire any
capital stock of Riverside or its Subsidiaries; (4) effect a split or reclassification of the
capital stock of Riverside or its Subsidiaries or a recapitalization of Riverside or its
Subsidiaries; (5) amend the articles of incorporation or bylaws of Riverside or its Subsidiaries;
(6) grant any increase in the salaries payable or to become payable by Riverside or its
Subsidiaries to any employee other than normal, annual salary increases to be made with regard to
the employees of Riverside or its Subsidiaries; (7) make any change in any bonus, group insurance,
pension, profit sharing, deferred compensation, or other benefit plan, payment or arrangement made
to, for or with respect to any employees or directors of Riverside or its Subsidiaries, except to
the extent such changes are required by applicable laws or regulations; (8) enter into, terminate,
modify or amend any contract, lease or other agreement with any officer or director of Riverside or
its Subsidiaries or any “associate” of any such officer or director, as such term is defined in
Regulation 14A under the Securities Exchange Act of 1934, as amended (“Exchange Act”), other than
in the ordinary course of their business; (9) incur or assume any liabilities, other than in the
ordinary course of their business; (10) dispose of any of their assets or properties, other than in
the ordinary course of their business; (11) solicit, encourage or authorize any individual,
corporation or other entity, including its directors, officers and other employees, to solicit from
any third party any inquiries or proposals relating to the disposition of all or substantially all
of its business or assets, or the acquisition of its voting securities, or the merger of it or its
Subsidiaries with any corporation or other entity other than as provided by this Agreement, or
subject to the fiduciary obligations of its Board of Directors, provide any individual, corporation
or other entity with information or assistance or negotiate with any individual, corporation or
other entity in furtherance of such inquiries or to obtain such a proposal (and Riverside shall
promptly notify Synovus of all of the relevant details relating to all inquiries and proposals
which
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it may receive relating to any of such matters); (12) take any other action or permit its
Subsidiaries to take any action not in the ordinary course of business of it and its Subsidiaries;
or (13) directly or indirectly agree to take any of the foregoing actions.
(B) Synovus covenants to Riverside that without the prior written consent of Riverside, which
consent will not be unreasonably withheld, Synovus will not take any action that would: (a) delay
or adversely affect the ability of Synovus to obtain any necessary approvals of regulatory
authorities required for the transactions contemplated hereby; or (b) adversely affect its ability
to perform its covenants and agreements on a timely basis under this Plan.
III. REPRESENTATIONS AND WARRANTIES
Synovus hereby represents and warrants to Riverside, and Riverside represents and warrants to
Synovus, that, except as previously disclosed in the Synovus and Riverside Disclosure Schedules of
even date herewith delivered to the other party:
(A) the representations set forth in Recitals A through D of the Plan with respect to it are
true and correct and constitute representations and warranties for the purpose of Article V
hereof;
(B) the outstanding shares of capital stock of it and its Subsidiaries are duly authorized,
validly issued and outstanding, fully paid and (subject to 12 X.X.X. §00 in the case of a national
bank subsidiary) non-assessable, and subject to no preemptive rights of current or past
shareholders;
(C) each of it and its Subsidiaries has the power and authority, and is duly qualified in all
jurisdictions (except for such qualifications the absence of which either individually or in the
aggregate, will not have a Material Adverse Effect) where such qualification is required to carry
on its business as it is now being conducted, to own all its material properties and assets, and
has all federal, state, local, and foreign governmental authorizations necessary for it to own or
lease its properties and assets and to carry on its business as it is now being conducted, except
for such authorizations the absence of which, either individually or in the aggregate, would not
have a Material Adverse Effect;
(D) the shares of capital stock of each of its Subsidiaries are owned by it (except for
director’s qualifying shares) free and clear of all liens, claims, encumbrances and restrictions on
transfer;
(E) subject, in the case of Riverside, to the receipt of any required shareholder approval of
this Plan, the Plan has been authorized by all necessary corporate action of it and, subject to
receipt of such approvals of shareholders, filing of all required governmental filings and notices,
receipt of all required regulatory approvals and compliance with all applicable
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securities and banking laws, is a legal, valid and binding agreement of it enforceable against
it in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability relating to or
affecting creditors’ rights and to general equity principles including the remedies of specific
performance or injunctive relief;
(F) subject to receipt of all required shareholder approvals, filing of all required
governmental filings and notice, receipt of all required regulatory approvals and compliance with
all applicable securities and banking laws, the execution, delivery and performance of the Plan by
it does not, and the consummation of the transactions contemplated hereby by it will not,
constitute: (1) a breach or violation of, or a default under, any law, rule or regulation or any
judgment, decree, order, governmental permit or license, or agreement, indenture or instrument of
it or its Subsidiaries or to which it or its Subsidiaries (or any of their respective properties)
is subject which breach, violation or default would have a Material Adverse Effect, or enable any
person to enjoin any of the transactions contemplated hereby; or (2) a breach or violation of, or a
default under, the certificate or articles of incorporation or bylaws of it or any of its
Subsidiaries; and the consummation of the transactions contemplated hereby will not require any
consent or approval under any such law, rule, regulation, judgment, decree, order, governmental
permit or license or the consent or approval of any other party to any such agreement, indenture or
instrument, other than the required approvals of applicable regulatory authorities and the approval
of the shareholders of Riverside, both of which are referred to in paragraph (A) of Article V and
any consents and approvals the absence of which will not have a Material Adverse Effect;
(G) in the case of Synovus, since December 31, 2003, it has filed all forms, reports and
documents with the SEC required to be filed by it pursuant to the federal securities laws and SEC
rules and regulations thereunder (the “SEC Reports”), each of which complied as to form, at the
time such form, report or document was filed, in all material respects with the applicable
requirements of the Securities Act of 1933, as amended (“Securities Act”), the Exchange Act and the
applicable rules and regulations thereunder. As of their respective dates, none of the SEC
Reports, contained any untrue statement of a material fact or omitted 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. Each of the balance sheets in or
incorporated by reference into the SEC Reports (including the related notes and schedules) fairly
presents the financial position of the entity or entities to which it relates as of its date and
each of the statements of operations and retained earnings and of cash flows and changes in
financial position or equivalent statements in or incorporated by reference into the SEC Reports
(including any related notes and schedules) fairly presents the results of operations, retained
earnings and cash flows and changes in financial position, as the case may be, of the entity or
entities to which it relates for the periods set forth therein (subject, in the case of unaudited
interim statements, to normal year-end audit adjustments that are not material in amount or
effect), in each case in accordance with generally accepted accounting principles applicable to
bank holding companies
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consistently applied during the periods involved, except as may be noted therein. It has no
material obligations or liabilities (contingent or otherwise) except as disclosed in the SEC
Reports. For purposes of this paragraph, material shall have the meaning as defined under the
Securities Act, the Exchange Act and the rules promulgated thereunder;
(H) in the case of Riverside: (1) it has previously delivered to Synovus copies of the
financial statements of Riverside, and of Riverside’s Subsidiaries, as of and for each of the years
ended December 31, 2004 and 2003, and for the periods ended March 31 and June 30, 2005, and
Riverside shall deliver to Synovus, as soon as practicable following the preparation of additional
financial statements for each subsequent calendar quarter of Riverside and Riverside’s
Subsidiaries, the additional financial statements of Riverside and Riverside’s Subsidiaries
(including, with respect to Riverside Bank, call reports of Riverside Bank) as of and for each
subsequent calendar quarter (such financial statements, unless otherwise indicated, being
hereinafter referred to collectively as the “Financial Statements of Riverside” and the “Financial
Statements of Riverside’s Subsidiaries,” respectively); and (2) each of the Financial Statements of
Riverside and each of the Financial Statements of Riverside’s Subsidiaries (including the related
notes), have been or will be prepared in all material respects in accordance with generally
accepted accounting principles, which principles have been and will be consistently applied during
the periods involved, except as otherwise noted therein, and all the books and records of Riverside
and Riverside’s Subsidiaries have been, are being, and will be maintained in all material respects
in accordance with applicable legal and accounting requirements and reflect only actual
transactions. Each of the Financial Statements of Riverside and each of the Financial Statements
of Riverside’s Subsidiaries (including the related notes) fairly present or will fairly present the
financial position of Riverside on a consolidated basis and the financial position of Riverside’s
Subsidiaries as of the respective dates thereof and fairly present or will fairly present the
results of operations of Riverside on a consolidated basis and the results of operations of
Riverside’s Subsidiaries for the respective periods therein set forth. Riverside and Riverside’s
Subsidiaries have no material obligations (contingent or otherwise) except as disclosed in the
Financial Statements of Riverside and the Financial Statements of Riverside’s Subsidiaries.
(I) it has no material liabilities and obligations secured or unsecured, whether accrued,
absolute, contingent or otherwise, known or unknown, due or to become due, including, but not
limited to tax liabilities, that should have been but are not reflected in or reserved against in
its audited financial statements as of December 31, 2004 or disclosed in the notes thereto and
since December 31, 2004 it and its Subsidiaries have not incurred any material liability other than
in the ordinary course of business consistent with past practice;
(J) there has not been the occurrence of one or more events, conditions, actions or statements
of fact which have had or are reasonably likely to have a Material Adverse Effect with respect to
it since December 31, 2004;
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(K) all material federal, state, local, and foreign tax returns required to be filed by or on
behalf of it or any of its Subsidiaries have been timely filed or requests for extensions have been
timely filed and any such extension shall have been granted and not have expired; and to the best
of its knowledge, all such returns filed are complete and accurate in all material respects. All
taxes shown on returns filed by it have been paid in full or adequate provision has been made for
any such taxes on its balance sheet (in accordance with generally accepted accounting principles).
As of the date of the Plan, there is no audit, examination, deficiency, or refund litigation with
respect to any taxes of it that would result in a determination that would have a Material Adverse
Effect. All taxes, interest, additions, and penalties due with respect to completed and settled
examinations or concluded litigation relating to it have been paid in full or adequate provision
has been made for any such taxes on its balance sheet (in accordance with generally accepted
accounting principles). It has not executed an extension or waiver of any statute of limitations on
the assessment or collection of any material tax due that is currently in effect. Deferred taxes
have been provided for in its financial statements in accordance with generally accepted accounting
principles applied on a consistent basis;
(L)(1) there is no suit, action, investigation or proceeding pending or, to its knowledge,
threatened against or affecting it or any of its Subsidiaries which is likely to have a Material
Adverse Effect (and it is not aware of any basis for any such suit, action or proceeding), nor is
there any judgment, decree, injunction, rule or order of any governmental or regulatory entity or
arbitrator outstanding against it or any of its Subsidiaries which could reasonably be expected to
have a Material Adverse Effect; and (2) neither it nor any of its Subsidiaries is subject to any
agreement, memorandum of understanding, commitment letter, board resolution or similar arrangement
with, or transmitted to, any regulatory authority materially restricting its operations as
conducted on the date hereof or requiring that certain actions be taken which could reasonably be
expected to have a Material Adverse Effect;
(M) neither it nor its Subsidiaries are in default in any material respect under any material
contract (as defined in Item 601(b)(10)(i) and (ii) of Regulation S-K) and there has not occurred
any event that with the lapse of time or the giving of notice or both would constitute such a
default;
(N) all “employee benefit plans,” as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974 (“ERISA”), that cover any of its or its Subsidiaries’ employees, comply in all
material respects with all applicable requirements of ERISA, the Code and other applicable laws;
neither it nor any of its Subsidiaries has engaged in a “prohibited transaction” (as defined in
Section 406 of ERISA or Section 4975 of the Code) with respect to any such plan which is likely to
result in any material penalties or taxes under Section 502(i) of ERISA or Section 4975 of the
Code; no material liability to the Pension Benefit Guaranty Corporation has been or is expected by
it or them to be incurred with respect to any such plan which is subject to Title IV of ERISA
(“Pension Plan”), or with respect to any “single-employer plan” (as defined in Section 4001(a)(15)
of ERISA) currently or formerly maintained by it, them
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or any entity which is considered one employer with it under Section 4001 of ERISA or Section
414 of the Code; no Pension Plan had an “accumulated funding deficiency” (as defined in Section 302
of ERISA (whether or not waived) as of the last day of the end of the most recent plan year ending
prior to the date hereof; the fair market value of the assets of each Pension Plan exceeds the
present value of the “benefit liabilities” (as defined in Section 4001(a)(16) of ERISA) under such
Pension Plan as of the end of the most recent plan year with respect to the respective Plan ending
prior to the date hereof, calculated on the basis of the actuarial assumptions used in the most
recent actuarial valuation for such Pension Plan as of the date hereof; to the actual knowledge of
its executive officers, there are no pending or anticipated material claims against or otherwise
involving any of its employee benefit plans and no suit, action or other litigation (excluding
claims for benefits incurred in the ordinary course of activities of such plans) has been brought
against or with respect to any such plan, except for any of the foregoing which would not have a
Material Adverse Effect; no notice of a “reportable event” (as defined in Section 4043 of ERISA)
for which the 30-day reporting requirement has not been waived has been required to be filed for
any Pension Plan within the 12-month period ending on the date hereof; it and its Subsidiaries have
not contributed to a “multi-employer plan”, as defined in Section 3(37) of ERISA; and it and its
Subsidiaries do not have any obligations for retiree health and life benefits under any benefit
plan, contract or arrangement, except as required by Section 4980B of the Code and Part 6 of
Subtitle B of Title I of ERISA;
(O) each of it and its Subsidiaries has good and marketable title to its respective properties
and assets, tangible or intangible (other than property as to which it is lessee), except for such
defects in title which would not, in the aggregate, have a Material Adverse Effect;
(P) it knows of no reason why the regulatory approvals referred to in paragraphs (A)(2) and
(A)(3) of Article V should not be obtained without the imposition of any condition of the type
referred to in the proviso following such paragraphs (A)(2) and (3) and it has taken no action or
agreed to take any action that is reasonably likely to prevent the Merger from qualifying for
treatment as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code for
federal income tax purposes;
(Q) in the case of Synovus, its reserve for possible loan and lease losses as shown in its
audited financial statements as of December 31, 2004 was, and its reserve for possible loan and
lease losses as shown in all Quarterly Reports on Form 10-Q subsequent to December 31, 2004 and
filed prior to the Effective Date will be, adequate in all material respects under generally
accepted accounting principles applicable to banks and bank holding companies, and in the case of
Riverside, its reserve for possible loan and lease losses as shown in its audited financial
statements as of December 31, 2004 was, and its reserve for possible loan and lease losses as shown
in its unaudited quarterly financial statements prepared for all quarters subsequent to December
31, 2004 ending prior to the Effective Date will be, adequate in all material respects under
generally accepted accounting principles applicable to banks and bank holding companies;
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(R) it and each of its Subsidiaries: (1) conducts its business in compliance in all material
respects with all applicable federal, state, local and foreign statutes, laws, regulations,
ordinances, rules, policies or guidelines applicable thereto; and (2) has all material permits,
licenses, certificates of authority, orders, and approvals of, and has made all filings,
applications, and registrations with, federal, state, local, and foreign governmental or regulatory
bodies that are required in order to permit it to carry on its business as it is presently
conducted and the absence of which would have a Material Adverse Effect; all such permits,
licenses, certificates of authority, orders, and approvals are in full force and effect, and to the
best knowledge of it no suspension or cancellation of any of them is threatened;
(S) in the case of Synovus, the shares of capital stock to be issued pursuant to the Plan,
when issued in accordance with the terms of the Plan, will be duly authorized, validly issued,
fully paid and nonassessable and subject to no preemptive rights of any current or past
shareholders;
(T) neither it nor any of its Subsidiaries is a party to, or is bound by, any collective
bargaining agreement, contract, or other agreement or understanding with a labor union or labor
organization, nor is it or any of its Subsidiaries the subject of a proceeding asserting that it or
any such Subsidiary has committed an unfair labor practice or seeking to compel it or such
Subsidiary to bargain with any labor organization as to wages and conditions of employment, nor is
there any strike or other labor dispute involving it or any of its Subsidiaries pending or
threatened;
(U) other than services provided by Xxxxx Capital Group, L.L.C., which has been retained by
Riverside and the arrangements with which, including fees, have been disclosed to Synovus prior to
the date hereof, neither it nor any of its Subsidiaries, nor any of their respective officers,
directors, or employees, has employed any broker or finder or incurred any liability for any
financial advisory fees, brokerage fees, commissions, or finder’s fees, and no broker or finder has
acted directly or indirectly for it or any of its Subsidiaries, in connection with the Plan or the
transactions contemplated hereby;
(V) the information to be supplied by it for inclusion in: (1) the Registration Statement on
Form S-4 and/or such other form(s) as may be appropriate to be filed under the Securities Act, with
the SEC by Synovus for the purpose of, among other things, registering the Synovus Common Stock to
be issued to the shareholders of Riverside in the Merger (the “Registration Statement”); or (2) the
proxy statement to be filed with the SEC under the Exchange Act and distributed in connection with
Riverside’s meeting of its shareholders to vote upon this Plan (as amended or supplemented from
time to time, the “Proxy Statement”, and together with the prospectus included in the Registration
Statement, as amended or supplemented from time to time, the “Proxy Statement/Prospectus”) will not
at the time such Registration Statement becomes effective, and in the case of the Proxy
Statement/Prospectus at the time it is mailed and
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at the time of the meeting of shareholders contemplated under this Plan, contain any untrue
statement of a material fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances under which they
are made, not misleading;
(W) for purposes of this section, the following terms shall have the indicated meaning:
“Environmental Law” means any federal, state or local law, statute, ordinance, rule,
regulation, code, license, permit, authorization, approval, consent, order, judgment, decree,
injunction or agreement with any governmental entity relating to: (1) the protection, preservation
or restoration of the environment (including, without limitation, air, water vapor, surface water,
groundwater, drinking water supply, surface soil, subsurface soil, plant and animal life or any
other natural resource); and/or (2) the use, storage, recycling, treatment, generation,
transportation, processing, handling, labeling, production, release or disposal of Hazardous
Substances. The term Environmental Law includes without limitation: (1) the Comprehensive
Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C. § 9601, et seq;
the Resource Conservation and Recovery Act, as amended, 42 U.S.C. § 6901, et seq; the Clean
Air Act, as amended, 42 U.S.C. § 7401, et seq; the Federal Water Pollution Control Act, as
amended, 33 U.S.C. § 1251, et seq; the Toxic Substances Control Act, as amended, 15 U.S.C.
§ 9601, et seq; the Emergency Planning and Community Right to Xxxx Xxx, 00 X.X.X. §
00000, et seq; the Safe Drinking Water Act, 42 U.S.C. § 300f, et seq; all accompanying
federal regulations and all comparable state and local laws; and (2) any common law (including
without limitation common law that may impose strict liability) that may impose liability or
obligations for injuries or damages due to, or threatened as a result of, the presence of or
exposure to any Hazardous Substance.
“Hazardous Substance” means any substance or waste presently listed, defined, designated or
classified as hazardous, toxic, radioactive or dangerous, or otherwise regulated, under any
Environmental Law, whether by type or by quantity, including any material containing any such
substance as a component. Hazardous Substances include without limitation petroleum or any
derivative or by-product thereof, friable asbestos, radioactive material, and polychlorinated
biphenyls.
“Loan Portfolio Properties and Other Properties Owned” means those properties owned or
operated by Synovus or Riverside as applicable, or any of their respective Subsidiaries.
(1) there are no actions, suits, demands, notices, claims, investigations or proceedings
pending or, to the actual knowledge of its executive officers, threatened against it and its
Subsidiaries relating to the Loan Portfolio Properties and Other Properties Owned by it or its
Subsidiaries under any Environmental Law, including without limitation any notices, demand letters
or requests for information from any federal or state environmental agency relating to any such
liabilities under or violations of Environmental Law, nor, in the actual knowledge of its executive
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officers and the executive officers of its Subsidiaries, are there any circumstances which
could lead to such actions, suits, demands, notices, claims, investigations or proceedings, except
such which will not have, or result in, a Material Adverse Effect; and
(X) in the case of Riverside, all securities issued by it (or any other person), convertible
into Riverside Class A Common Stock shall, as a result and upon consummation of the Merger be
convertible only into Synovus Common Stock.
IV. COVENANTS
Synovus hereby covenants to Riverside, and Riverside hereby covenants to Synovus, that:
(A) it shall take or cause to be taken all action necessary or desirable under the Plan on its
part as promptly as practicable, including the filing of all necessary applications and the
Registration Statement, so as to permit the consummation of the transactions contemplated by the
Plan at the earliest possible date and cooperate fully with the other party hereto to that end;
(B) in
the case of Riverside, it shall: (1) take all steps necessary to duly call, give notice of, convene and hold a meeting of
its shareholders for the purpose of approving the Plan as soon as is reasonably practicable; (2) distribute to its shareholders the
Proxy Statement/Prospectus in accordance with applicable federal and state law and with its
articles of incorporation and bylaws; (3) recommend to its shareholders that they approve the Plan
(unless it has been advised in writing that to do so would constitute a breach of fiduciary or
legal duties of its Board of Directors); and (4) cooperate and consult with Synovus with respect to
each of the foregoing matters;
(C) it will cooperate in the preparation and filing of the Proxy Statement/Prospectus and
Registration Statement in order to consummate the transactions contemplated by the Plan as soon as
is reasonably practicable;
(D) Synovus will advise Riverside, promptly after Synovus receives notice thereof, of the time
when the Registration Statement has become effective or any supplement or amendment has been filed,
of the issuance of any stop order or the suspension of the qualification of the shares of Synovus
Common Stock issuable pursuant to the Plan for offering or sale in any jurisdiction, of the
initiation or threat of any proceeding for any such purpose or of any request by the SEC for the
amendment or supplement of the Registration Statement or for additional information;
(E) in the case of Synovus, it shall take all actions to obtain, prior to the effective date
of the Registration Statement, all applicable state securities law or “Blue Sky” permits,
approvals, qualifications or exemptions for the Synovus shares to be issued pursuant to this Plan;
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(F) subject to its disclosure obligations imposed by law or regulatory authority, unless
reviewed and agreed to by the other party hereto in advance, it will not issue any press release or
written statement for general circulation relating to the transactions contemplated hereby;
provided however, that nothing in this paragraph (F) shall be deemed to prohibit either party from
making any disclosure which its counsel deems necessary or advisable in order to satisfy such
party’s disclosure obligations imposed by law;
(G) from and subsequent to the date hereof, it will: (1) give to the other party hereto and
its respective counsel and accountants reasonable access to its premises and books and records
during normal business hours for any reasonable purpose related to the transactions contemplated
hereby; and (2) cooperate and instruct its respective counsel and accountants to cooperate with the
other party hereto and with its respective counsel and accountants with regard to the formulation
and production of all necessary information, disclosures, financial statements, registration
statements and regulatory filings with respect to the transactions encompassed by the Plan;
(H) it shall notify the other party hereto as promptly as practicable of: (1) any breach of
any of its representations, warranties or agreements contained herein; (2) any occurrence, or
impending occurrence, of any event or circumstance which would cause or constitute a material
breach of any of the representations, warranties or agreements of it contained herein; and (3) any
material adverse change in its financial condition, results of operations or business; and (4) it
shall use its best efforts to prevent or remedy the same;
(I) it shall cooperate and use its best efforts to promptly prepare and file all necessary
documentation, to effect all necessary applications, notices, petitions, filings and other
documents, and to obtain all necessary permits, consents, approvals and authorizations of all third
parties and governmental bodies or agencies, including, in the case of Synovus, submission of
applications for approval of the Plan and the transactions contemplated hereby to the Board of
Governors of the Federal Reserve System (the “Board of Governors”) in accordance with the
provisions of the Bank Holding Company Act of 1956, as amended (the “BHC Act”) and the Georgia
Department of Banking and Finance (“Georgia Department”), and to such other regulatory agencies as
required by law;
(J) it will use its best efforts to cause the Merger to qualify as a reorganization within the
meaning of Section 368(a) of the Code for federal income tax purposes;
(K) Synovus shall use its best efforts to cause the shares of Synovus Common Stock to be
issued pursuant to the terms of this Plan to be approved for listing on the NYSE, and shall cause
each such share to be entitled to ten (10) votes per share in accordance with and subject to those
certain Articles of Amendment to Synovus’ Articles of Incorporation dated April 24, 1986;
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(L) following the Effective Date, Synovus shall provide generally to officers and employees of
Riverside and its Subsidiaries as of the Effective Date employee benefits, including without
limitation pension benefits, health and welfare benefits, life insurance and vacation and severance
arrangements (collectively, “Employee Benefits”), that are substantially similar, in the aggregate,
to the Employee Benefits provided by Riverside and its Subsidiaries. As soon as administratively
practicable following the Effective Date, Synovus shall provide generally to officers and employees
of Riverside and its Subsidiaries Employee Benefits that are substantially similar, in the
aggregate, to those provided by Synovus and its Subsidiaries to similarly situated employees. With
respect to Employee Benefits maintained by Synovus and its Subsidiaries in which employees
participate after the Effective Date, Synovus agrees: (1) to treat service by Riverside employees
prior to the Effective Date as service with Synovus for eligibility, vesting and benefit accrual
purposes; provided, however, that service crediting prior to the Effective Date will not be granted
for benefit accrual purposes under any “previous plan,” within the meaning of Section 3(2) of
ERISA, maintained by Synovus and its Subsidiaries; (2) to waive waiting periods and pre-existing
condition limitations, if any, as would otherwise be applied to participating employees of
Riverside upon the implementation of such Employee Benefits constituting “group health plans”
within the meaning of Section 5000(b)(i) of the Code; and (3) to provide Riverside employees with
credit toward deductible and out-of-pocket limitations under such group health plan(s) for health
expenses incurred by them for the entire portion of the first plan year of their entry into such
group health plan(s) even if their entry was not on the first day of the plan year;
(M) in the case of Synovus, it shall promptly furnish Riverside with copies of all documents
filed prior to the Effective Date with the SEC and all documents filed with other governmental or
regulatory agencies or bodies in connection with the Merger and, in the case of Riverside, it will
furnish to Synovus, promptly after the preparation and/or receipt by Riverside thereof, copies of
its unaudited monthly financial statements and shall furnish to Synovus, promptly after the
preparation and/or receipt by Riverside or its Subsidiaries copies of all monthly financial
statements of its Subsidiaries, and all call reports of Riverside Bank for the applicable periods
then ended, and such financial statements and call reports shall, upon delivery to Synovus, be
treated for purposes of paragraph (H) of Article III hereof, as among the Financial Statements of
Riverside and Financial Statements of Riverside’s Subsidiaries;
(N) Riverside shall use its best efforts to cause each director, executive officer and other
person who is an “affiliate” (for purposes of Rule 145 under the Securities Act) to deliver to
Synovus as soon as practicable after the date hereof, but in no event after the date of the
Riverside shareholders’ meeting called to approve the Merger, a written agreement providing that
such person will not sell, pledge, transfer or otherwise dispose of any shares of Riverside Stock
held by such “affiliate” except as contemplated by this Agreement and will not sell, pledge,
transfer or otherwise dispose of the shares of Synovus Common Stock to be received by such
“affiliate” in the Merger, except in compliance with the applicable provisions of the Securities
Act and the rules and regulations thereunder. The certificates of Synovus Common Stock issued to
affiliates of Riverside will bear an appropriate legend reflecting the foregoing;
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(O) it will not directly or indirectly take any action or omit to take any action to cause any
of its representations and warranties made in this Plan to become untrue;
(P) in the case of Synovus, it shall take no action which would cause the shareholders of
Riverside to recognize gain or loss as a result of the Merger to the extent such shareholders would
not otherwise recognize gain or loss as described in paragraph (A)(8) of Article V;
(Q) Riverside shall coordinate with Synovus the declaration of any dividends in respect of
Riverside Stock and the record dates and payment dates relating thereto, it being the intention of
the parties hereto that holders of Riverside Stock shall not receive two dividends, or fail to
receive one dividend, for any single calendar quarter with respect to their shares of Riverside
Stock and any shares of Synovus Common Stock any such holder receives in exchange therefor in the
Merger.
(R) Riverside will, within thirty (30) days after the date hereof, engage a firm satisfactory
to Synovus to conduct: (a) a Phase I environmental site assessment of the banking facilities
currently owned by Riverside upon which Riverside is conducting a banking business, which
assessment shall meet the standards of ASTM E1527-00 and shall include at a minimum a site history,
on-site inspection, asbestos sampling of presumed asbestos containing material, evaluation of
surrounding properties and soil tests if the results of the Phase I indicate a need therefor; and
(b) a transaction screen that meets the standards of ASTM E 1528 for the property that Riverside
leases, and in addition, Riverside agrees to conduct a Phase I assessment of the leased property
if, in Synovus’ reasonable judgment, the transaction screen indicates potential environmental
liabilities associated with the leased properties accruing to Riverside or Riverside’s successor.
Synovus has requested such inspection and testing in an effort to reasonably determine whether
potential liabilities exist relating to Environmental Law. Delivery of the Phase I assessments and
transaction screen satisfactory to Synovus is an express condition precedent to the consummation of
the Merger. Within fifteen (15) days after receipt of these reports, Synovus shall notify Riverside
in writing whether or not, in the reasonable judgment of Synovus, any potential liabilities
identified in such reports could reasonably be expected to have or result in a Material Adverse
Effect on Riverside. In the event that Synovus determines, in its reasonable judgment, any
potential liabilities identified in such reports could reasonably be expected to have or result in
a Material Adverse Effect on Riverside, such written notification shall include a statement by
Synovus regarding whether or not it intends to terminate this Agreement based upon the results of
such reports. The Parties agree that Synovus has given Riverside good and valuable consideration
for its agreement to obtain and pay the cost of such inspection and testing, and Synovus shall be
entitled to rely on same;
(S) prior to the Effective Date, Riverside shall purchase for, and on behalf of, its current
and former officers and directors, extended coverage under the current directors’ and officers’
liability insurance policy maintained by Riverside to provide for continued coverage of
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such insurance for a period of four years following the Effective Date with respect to matters
occurring prior to the Effective Date;
(T) (1) In the case of Synovus, subject to the conditions set forth in paragraph (T)(2)
below, for a period of four (4) years after the Effective Date, Synovus shall indemnify, defend and
hold harmless each person entitled to indemnification from Riverside and its Subsidiaries (each, an
“Indemnified Party”) against all liabilities arising out of actions or omissions occurring at or
prior to the Effective Date (including the transactions contemplated by this Agreement) to the
fullest extent permitted under Georgia law and by Riverside’s and its Subsidiaries’ 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. Without limiting the foregoing, in any case
in which approval by Synovus is required to effectuate any indemnification, Synovus 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 Synovus and the Indemnified Party;
(2) Any Indemnified Party wishing to claim indemnification under paragraph (T)(1) above upon
learning of any such liability or litigation, shall promptly notify Synovus thereof. In the event
of any such litigation (whether arising before or after the Effective Date), (a) Synovus shall have
the right to assume the defense thereof, and Synovus 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 Synovus elects not to
assume such defense or counsel for the Indemnified Parties advises that there are substantive
issues which raise conflicts of interest between Synovus and the Indemnified Parties, the
Indemnified Parties may retain counsel satisfactory to them, and Synovus shall pay all reasonable
fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are
received; provided, that Synovus shall be obligated pursuant to this paragraph (T)(2) to pay for
only one firm of counsel for all Indemnified Parties in any jurisdiction, (b) the Indemnified
Parties will cooperate in the defense of any such litigation, and (c) Synovus shall not be liable
for any settlement effected without its prior written consent, which will not unreasonably be
withheld; and provided further, that Synovus 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;
(U) in the case of Synovus, it will make available to Riverside 25,000 shares of Synovus
Common Stock to be distributed on the Effective Date in the discretion of Riverside’s executive
management to key employees of Riverside in the form of restricted stock awards; and
(V) prior to the Effective Date, Riverside will use its best efforts to take all steps
required to exempt the transactions contemplated by this Agreement from any applicable state
anti-takeover law.
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V. CONDITIONS TO CONSUMMATION
(A) The respective obligations of Synovus and of Riverside to effect the Merger shall be
subject to the satisfaction prior to the Effective Date of the following conditions:
(1) the Plan and the transactions contemplated hereby shall have been approved by the
requisite vote of the shareholders of Riverside in accordance with applicable law and Riverside
shall have furnished to Synovus certified copies of resolutions duly adopted by Riverside’s
shareholders evidencing the same;
(2) the procurement by Synovus and Riverside of approval of the Plan and the transactions
contemplated hereby by the Board of Governors and the Georgia Department;
(3) procurement of all other regulatory consents and approvals which are necessary to the
consummation of the transactions contemplated by the Plan; provided, however, that no approval or
consent in paragraphs (A)(2) and (A)(3) of this Article V shall be deemed to have been received if
it shall include any conditions or requirements (other than conditions or requirements which are
customarily included in such an approval or consent which do not have a Material Adverse Effect)
which would have such a Material Adverse Effect on the economic or business benefits of the
transactions contemplated hereby as to render inadvisable the consummation of the Merger in the
reasonable opinion of the Board of Directors of Synovus or Riverside;
(4) the satisfaction of all other statutory or regulatory requirements, including the
requirements of NYSE or other self regulating organizations, which are necessary to the
consummation of the transactions contemplated by the Plan;
(5) no party hereto shall be subject to any order, decree or injunction or any other action of
a United States federal or state court of competent jurisdiction permanently restraining, enjoining
or otherwise prohibiting the transactions contemplated by this Agreement;
(6) no party hereto shall be subject to any order, decree or injunction or any other action of
a United States federal or state governmental, regulatory or administrative agency or commission
permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this
Agreement;
(7) the Registration Statement shall have become effective under the Securities Act and no
stop order suspending the effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been initiated or threatened by the SEC, and Synovus shall
have received all state securities law and “Blue Sky” permits,
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approvals, qualifications or exemptions necessary to consummate the transactions contemplated
hereby;
(8) each party shall have received an opinion (“Tax Opinion”) from Xxxxxx Xxxxxxxxx LLP, on or
before the Effective Date, to the effect that for federal income tax purposes (a) the Merger will
be treated as a reorganization within the meaning of Section 368(a) of the Code, (b) the exchange
in the Merger of Riverside Stock for Synovus Common Stock will not give rise to gain or loss to the
shareholders of Riverside with respect to such exchange (except to the extent of cash received in
lieu of fractional shares), and (c) neither Riverside nor Synovus will recognize gain or loss as a
consequence of the Merger; and
(9) each party shall have delivered to the other party a certificate, dated as of the
Effective Date, signed by its Chief Executive Officer and its Chief Financial Officer, to the
effect that, to the best knowledge and belief of such officers, the statement of facts and
representations made on behalf of the management of such party, presented to Xxxxxx Xxxxxxxxx LLP
in delivering the Tax Opinion, were at the date of such presentation true, correct and complete.
Each party shall have received a copy of the Tax Opinion referred to in paragraph (A)(8) of this
Article V.
(B) The obligation of Synovus to effect the Merger shall be subject to the satisfaction prior
to the Effective Date of the following additional conditions:
(1) the representations and warranties of Riverside contained in this Agreement shall be true
and correct in all material respects, in each case on the date hereof and on the Effective Date
(unless the representations and warranties address matters as of a particular date, in which case
they shall remain true and correct in all material respects as of such date) and the covenants
contained herein shall be complied with by the Effective Date; provided, however, if any such
representation or warranty shall be subject to a qualification as to materiality, such qualified
representation and warranty shall be true and correct in all respects, in each case on the date
hereof and on the Effective Date (unless the representations and warranties address matters as of a
particular date, in which case they shall remain true and correct in all respects as of such date);
(2) there shall be no discovery of facts, or actual or threatened causes of action,
investigations or proceedings by or before any court or other governmental body that relates to or
involves either Riverside or its Subsidiaries: (a) which, in the reasonable judgment of Synovus,
would have a Material Adverse Effect, or which may be foreseen to have a Material Adverse Effect
on, either Riverside or the consummation of the transactions contemplated by this Agreement; (b)
that challenges the validity or legality of this Agreement or the consummation of the transactions
contemplated by this Agreement; or (c) that seeks to restrain or invalidate the consummation of the
transactions contemplated by this Agreement or seeks damages in connection therewith;
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(3) Synovus shall not have learned of any fact or condition with respect to the business,
properties, assets, liabilities, deposit relationships or earnings of Riverside which, in the
reasonable judgment of Synovus, is materially at variance with one or more of the warranties or
representations set forth in this Agreement and which, in the reasonable judgment of Synovus, has
or will have a Material Adverse Effect on Riverside;
(4) Xxxxxx X. Xxxxxxxx, Xx. shall have entered into an employment agreement with Synovus as
proposed by Synovus and approved by Xx. Xxxxxxxx which will become effective as of the Effective
Date;
(5) on the Effective Date, Riverside Bank will have a CAMELS rating of at least 2 and a
Compliance Rating and Community Reinvestment Act Rating of at least Satisfactory;
(6) on the Effective Date, Riverside will have a non-performing assets ratio (with such ratio
to be determined as follows: nonaccrual and restructured loans plus other real estate divided by
total loans net of unearned income plus other real estate) of not more than .30%, an annualized
charge off ratio (based on the six month period ending on the Effective Date) of not more than .10%
and an allowance for loan losses which will be adequate in all material respects under generally
accepted accounting principles applicable to banks;
(7) Riverside shall have delivered to Synovus the environmental reports referenced in Article
IV(R);
(8) the results of any regulatory exam of Riverside and its Subsidiaries occurring between the
date hereof and the Effective Date shall be reasonably satisfactory to Synovus; and
(9) each of the officers and directors of Riverside shall have delivered a letter to Synovus
to the effect that such person is not aware of any claims he might have against Riverside other
than routine compensation, benefits and the like as an employee, or ordinary rights as a customer.
(C) The obligation of Riverside to effect the Merger shall be subject to the satisfaction
prior to the Effective Date of the following additional conditions:
(1) the representations and warranties of Synovus contained in this Agreement shall be true
and correct in all material respects, in each case on the date hereof and on the Effective Date
(unless the representations and warranties address matters as of a particular date, in which case
they shall remain true and correct in all material respects as of such date) and the covenants
contained herein shall be complied with by the Effective Date; provided, however, if
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any such representation or warranty shall be subject to a qualification as to materiality,
such qualified representation and warranty shall be true and correct in all respects, in each case
on the date hereof and on the Effective Date (unless the representations and warranties address
matters as of a particular date, in which case they shall remain true and correct in all respects
as of such date);
(2) the listing for trading of the shares of Synovus Common Stock which shall be issued
pursuant to the terms of this Plan on the NYSE, shall have been approved by the NYSE subject to
official notice of issuance and the Board of Directors of Synovus shall have adopted a resolution
granting 10 votes per share with respect to the shares of Synovus Common Stock to be issued under
this Agreement;
(3) there shall be no discovery of facts, or actual or threatened causes of action,
investigations or proceedings by or before any court or other governmental body that relates to or
involves either Synovus or its Subsidiaries: (a) which, in the reasonable judgment of Riverside,
would have a Material Adverse Effect on, or which may be foreseen to have a material Adverse Effect
on, either Synovus or the consummation of the transactions contemplated by this Agreement; (b) that
challenges the validity or legality of this Agreement or the consummation of the transactions
contemplated by the Agreement; or (c) that seeks to restrain or invalidate the consummation of the
transactions contemplated by this Agreement or seeks damages in connection therewith;
(4) Riverside shall not have learned of any fact or condition with respect to the business,
properties, assets, liabilities, deposit relationships or earnings of Synovus which, in the
reasonable judgment of Riverside, is materially at variance with one or more of the warranties or
representations set forth in this Agreement and which, in the reasonable judgment of Riverside, has
or will have a Material Adverse Effect on Synovus;
(5) Riverside shall have received from the Senior Deputy General Counsel of Synovus an opinion
to the effect that Synovus is duly organized, validly existing and in good standing, the Plan has
been duly and validly authorized by all necessary corporate action on the part of Synovus, has been
duly and validly executed and delivered by Synovus, is the valid and binding obligation of Synovus,
enforceable in accordance with its terms except as such may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’
rights generally and that the shares of Synovus Common Stock to be issued in the Merger are duly
authorized, validly issued, fully paid, nonassessable, and not subject to any preemptive rights of
any current or past shareholders;
(6) Riverside shall have received from Xxxxx Capital Group, L.L.C. a letter to the effect
that, in the opinion of such firm, the Per Share Exchange Ratio is fair, from a financial point of
view, to the holders of Riverside Stock; and
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(7) Synovus shall not have issued any shares of stock with preferences superior to those of
the Synovus Common Stock to be issued to the shareholders of Riverside in connection with the
Merger.
VI. TERMINATION
A. The Plan may be terminated prior to the Effective Date, either before or after its approval
by the stockholders of Riverside:
(1) by the mutual consent of Synovus and Riverside, if the Board of Directors of each so
determines by vote of a majority of the members of its entire Board;
(2) by Synovus or Riverside if consummation of the Merger does not occur by reason of the
failure of any of the conditions precedent set forth in Article V hereof unless the failure to meet
such condition precedent is due to a breach of the Plan by the party seeking to terminate;
(3) by Synovus or Riverside if its Board of Directors so determines by vote of a majority of
the members of its entire Board in the event that the Merger is not consummated by December 31,
2005 unless the failure to so consummate by such time is due to the breach of the Plan by the party
seeking to terminate;
(4) by Riverside if the closing price of Synovus Common Stock on the NYSE on any day after the
date of this Agreement is less than $27.00. Riverside shall thereafter have ten business days in
which to make a determination to terminate this Agreement and shall notify Synovus of such
determination prior to the expiration of the business day following such determination; and
(5) by Synovus, if the closing price of Synovus Common Stock on the NYSE on any day after the
date of this Agreement is greater than $35.00. Synovus shall thereafter have ten business days in
which to make a determination to terminate this Agreement and shall notify Riverside of such
determination prior to the expiration of the business day following such determination.
B. In the event of the termination and abandonment of this Agreement pursuant to paragraph (A)
of Article VI of this Agreement, this Agreement shall become void and have no effect, except as set
forth in paragraph (A) of Article VIII, and there shall be no liability on the part of any party
hereto or their respective officers or directors; provided, however, that: (1) Riverside shall be
entitled to a cash payment from Synovus for Riverside’s reasonable out-of-pocket expenses relating
to the Merger in an amount not to exceed $150,000, which amount shall not be deemed an exclusive
remedy or liquidated damages, in the event of the termination of this
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Agreement due to the failure by Synovus to satisfy any of its representations, warranties or
covenants set forth herein; and (2) Synovus shall be entitled to a cash payment from Riverside for
Synovus’ reasonable out-of-pocket expenses relating to the Merger and for reimbursement of the fair
market value of services provided by internal counsel and due diligence team members in connection
with the Merger in an amount not to exceed $150,000, which amount shall not be deemed an exclusive
remedy or liquidated damages, in the event of the termination of this Agreement due to the failure
by Riverside to satisfy any of its representations, warranties or covenants set forth herein.
VII. EFFECTIVE DATE
The “Effective Date” shall be the date on which the Merger becomes effective as specified in
the Certificate of Merger to be filed with the Secretary of State of Georgia.
VIII. OTHER MATTERS
(A) The agreements and covenants of the parties which by their terms apply in whole or in part
after the Effective Date shall survive the Effective Date. Except for paragraph (S) of Article III,
and paragraph (N) of Article IV which shall survive the Effective Date, no other representations,
warranties, agreements and covenants shall survive the Effective Date. If the Plan shall be
terminated, the agreements of the parties in paragraph (F) of Article IV, paragraph (B) of Article
VI and paragraphs (E) and (F) of this Article shall survive such termination.
(B) Prior to the Effective Date, any provision of the Plan may be: (1) waived by the party
benefited by the provision or by both parties; or (2) amended or modified at any time (including
the structure of the transaction) by an agreement in writing between the parties hereto approved by
their respective Boards of Directors (to the extent allowed by law) or by their respective Boards
of Directors.
(C) This Plan may be executed in multiple and/or facsimile originals, and each copy of the
Plan bearing the manually executed, facsimile transmitted or photocopied signature of each of the
parties hereto shall be deemed to be an original.
(D) The Plan shall be governed by, and interpreted in accordance with, the laws of the State
of Georgia.
(E) Each party hereto will bear all expenses incurred by it in connection with the Plan and
the transactions contemplated hereby, including, but not limited to, the fees and expenses of its
respective counsel and accountants.
(F) Each of the parties and its respective agents, attorneys and accountants will maintain the
confidentiality of all information provided in connection herewith which has not
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been publicly disclosed unless it is advised by counsel that any such information is required
by law to be disclosed.
(G) All notices, requests, acknowledgments and other communications hereunder to a party shall
be in writing and shall be deemed to have been duly given when delivered by hand, telecopy,
telegram or telex (confirmed in writing), by overnight courier or sent by registered or certified
mail, postage paid, to such party at its address set forth below or such other address as such
party may specify by notice to the other party hereto.
| If to Synovus: | ||||
| Xx. Xxxxxx X. Xxxxxxxx | ||||
| Chief Financial Officer | ||||
| Synovus Financial Corp. | ||||
| 0000 Xxx Xxxxxx, Xxxxx 000 | ||||
| Xxxxxxxx, Xxxxxxx 00000 | ||||
| Fax (000) 000-0000 | ||||
| With a copy to: | ||||
| Xx. Xxxxxxxx Xxxxxx | ||||
| Senior Deputy General Counsel | ||||
| Synovus Financial Corp. | ||||
| 0000 Xxx Xxxxxx, Xxxxx 000 | ||||
| Xxxxxxxx, Xxxxxxx 00000 | ||||
| Fax (000) 000-0000 | ||||
| If to Riverside: | ||||
| Xx. Xxxxxx X. Xxxxxxxx, Xx. | ||||
| Chairman & CEO | ||||
| Riverside Bancshares, Inc. | ||||
| 0000 Xxxxxxx Xxxxx Xxxx | ||||
| Xxxxxxxx, Xxxxxxx 00000 | ||||
| Fax (000) 000-0000 | ||||
| With a copy to: | ||||
| Xx. Xxxxxx X. Xxxxxxx, XX | ||||
| Xxxxxx Xxxxxxxxx LLP | ||||
| 0000 Xxxx Xxxxxxxxx Xxxxxx, XX | ||||
| Xxxxxxx, Xxxxxxx 00000-0000 | ||||
| Fax (000) 000-0000 |
(H) All terms and provisions of the Plan shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and assigns. Except as expressly
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provided for herein, nothing in this Plan is intended to confer upon any other person any
rights or remedies of any nature whatsoever under or by reason of this Plan.
(I) The Plan represents the entire understanding of the parties hereto with reference to the
transactions contemplated hereby and supersedes any and all other oral or written agreements
heretofore made.
(J) This Plan may not be assigned by either party hereto without the written consent of the
other party.
In Witness Whereof, the parties hereto have caused this instrument to be executed in
counterparts by their duly authorized officers as of the day and year first above written.
| SYNOVUS FINANCIAL CORP. | ||||
| By: | /s/ Xxxxxxxxx X. Xxxxx, III | |||
| Title: Vice Chairman | ||||
| RIVERSIDE BANCSHARES, INC. | ||||
| By: | /s/ Xxxxxx X. Xxxxxxxx, Xx. | |||
| Title: Chairman & Chief Executive Officer | ||||
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