AGREEMENT AND PLAN OF MERGER
By and Between
BANK CORPORATION OF GEORGIA
And
AMERICORP, INC.
THIS AGREEMENT AND PLAN OF MERGER (the "Merger
Agreement"), is made and entered into this 15th day of November,
1995, by and between BANK CORPORATION OF GEORGIA, a Georgia
corporation ("BCG"), and AMERICORP, INC., a Georgia corporation
("Americorp") (BCG and Americorp are sometimes hereinafter
referred to collectively as the "Constituent Corporations");
W I T N E S S E T H:
WHEREAS, the authorized capital stock of BCG consists
of 3,000,000 shares of Common Stock, par value $1.00 per share
("BCG Stock"), of which 1,878,079 shares are issued and
outstanding as of the date hereof; and
WHEREAS, the authorized capital stock of Americorp
consists of 10,000,000 shares of Common Stock, par value $.01 per
share ("Americorp Common Stock"), of which 5,473,889 shares are
issued and outstanding as of the date hereof and 40,000 shares of
Preferred Stock, $100 par value per share ("Americorp Preferred
Stock"), of which 37,875 shares are issued and outstanding as of
the date hereof; and
WHEREAS, the Constituent Corporations are both
corporations duly organized and validly existing under the laws
of the State of Georgia; and
WHEREAS, the Board of Directors of each of the
Constituent Corporations deems it advisable and for the benefit
of each of said Constituent Corporations and their respective
shareholders that Americorp merge with and into BCG, with BCG
being the surviving corporation (the "Merger"); and
WHEREAS, the Board of Directors of each of the
Constituent Corporations has, by resolutions duly adopted,
approved and adopted this Merger Agreement and directed that it
be submitted to the shareholders of Americorp for their approval;
and
WHEREAS, BCG has agreed to issue shares of BCG Stock,
according to the terms and conditions contained herein, on or
after the Effective Date (as hereinafter defined) of the Merger;
NOW, THEREFORE, for and in consideration of the
premises and the mutual agreements hereinafter contained, and for
the purpose of stating the method, terms and conditions of the
Merger, the mode of carrying the same into effect and the manner
and basis of converting and exchanging all shares of Americorp
Common Stock outstanding at the Effective Date into and for
shares of BCG Stock, it is hereby agreed by and between the
parties hereto that:
1. MERGER.
Pursuant to and with the effects provided in the applicable
provisions of the Georgia Business Corporation Code, as amended,
Americorp shall be merged with and into BCG, the corporate
existence of which shall continue under the name of Bank
Corporation of Georgia (hereinafter referred to as the "Surviving
Corporation"), and thereafter the individual existence of
Americorp shall cease.
2. ACTIONS TO BE TAKEN.
The acts required to be done by the Georgia Business
Corporation Code, as amended, in order to make this Merger
Agreement effective, including, but not by way of limitation, the
submission of this Merger Agreement to the shareholders of
Americorp and the filing of Articles of Merger or a Certificate
of Merger to the extent required by and in the manner provided in
Sections 14-2-1103, 14-2-1105 and 14-2-1105.1 of the Georgia
Business Corporation Code, shall be attended to and done by the
proper officers of the Constituent Corporations as soon as
practicable after the Effective Date.
3. EFFECTIVE DATE.
The transactions contemplated herein shall be consummated
(the "Closing") at the offices of Xxxxxxxxxx & Xxxx, Atlanta,
Georgia on the first business day after the receipt of all
necessary approvals of the transactions contemplated by this
Agreement, or at such other place and on such other date as the
parties hereto may mutually agree (such date being the "Effective
Date").
4. ARTICLES OF INCORPORATION AND BYLAWS OF THE SURVIVING
CORPORATION.
The Articles of Incorporation of BCG shall be, on the
Effective Date, the Articles of Incorporation of the Surviving
Corporation. Until altered, amended or repealed as therein
provided, the Bylaws of BCG, as in effect on the Effective Date,
shall be the Bylaws of the Surviving Corporation.
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5. MANNER AND BASIS OF CONVERTING SHARES OF CAPITAL STOCK;
CAPITAL STRUCTURE OF THE SURVIVING CORPORATION.
The manner and basis of converting and exchanging the shares
of capital stock of Americorp shall be as follows:
(a) Conversion of Shares of Americorp Common Stock.
Upon the Effective Date, each of the outstanding shares
of Americorp Common Stock, other than those shares of
Americorp Common Stock held by BCG, which shall be
canceled, shall, by virtue of the Merger and without
any further action on the part of the holder thereof,
be converted into fully-paid and non-assessable shares
of BCG Stock at the rate of .084615 shares of BCG Stock
for each share of Americorp Common Stock, subject to
any adjustments occurring after the date hereof as
contemplated by Article 5(c) below (the "Conversion
Rate").
(b) Cancellation of Shares of Americorp Preferred
Stock. Upon the Effective Date, each share of
Americorp Preferred Stock outstanding immediately prior
to the Effective Date shall, by virtue of the Merger
and without any further action on the part of the
holder thereof, be canceled.
(c) Proportionate Adjustments to the Conversion Rate.
If, prior to the Effective Date, the outstanding shares
of BCG Stock or Americorp Common Stock shall be
increased by any stock dividend, stock split,
subdivision, recapitalization or reclassification of
shares or shall be combined into a lesser number of
shares by reclassification, recapitalization, or
reduction of capital, the number of shares of BCG Stock
that may be delivered hereunder for each share of
Americorp Common Stock shall be proportionately
adjusted.
(d) Fractional Shares. No scrip or fractional share
certificates of BCG Stock shall be issued in connection
with the Merger, and any outstanding fractional share
interest will not entitle the owner thereof to vote, to
receive dividends or to any rights of a shareholder
with respect to such fractional interest. In lieu of
any fractional interest, there shall be paid in cash an
amount (computed to the nearest cent) equal to such
fraction multiplied by $13.00 per share of BCG Stock.
(f) Stock Certificates. As soon as practicable after
the Effective Date, each holder of any of the shares of
Americorp Common Stock to be converted shall be
entitled, upon presentation and surrender of the
certificate or certificates representing such shares
(or, in the case of certificates claimed by the holder
thereof to have been lost, stolen or destroyed, an
affidavit or affirmation of this claim in such a manner
as BCG may reasonably require and, if BCG reasonably
requires, a bond of indemnity in form and amount and
with one or more sureties reasonably satisfactory to
BCG) to the transfer agent or agents designated by BCG,
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to receive in exchange therefor a certificate or
certificates representing the number of whole shares of
BCG Stock to which such holder shall be entitled under
the Conversion Rate, including any cash payable in lieu
of a fractional interest. Upon the surrender of the
certificate or certificates which prior to the Merger
represented shares of Americorp Common Stock, the
holder thereof shall be entitled to receive any
dividends or other distributions (without interest)
made after the Effective Date which shall not have been
paid with respect to the number of shares of BCG Stock
represented by the certificate or certificates issued
upon surrender.
(g) BCG Stock. On the Effective Date, each share of
BCG Stock issued and outstanding immediately prior to
the Effective Date shall continue to evidence a share
of Common Stock of the Surviving Corporation.
6. TERMINATION OF SEPARATE EXISTENCE.
Upon the Effective Date, the separate existence of Americorp
shall cease, and the Surviving Corporation shall thereupon and
thereafter possess all the rights, privileges, immunities and
franchises, of a public as well as of a private nature, of each
of the Constituent Corporations; and all property, real, personal
and mixed, and all debts due on whatever account, and each and
every other interest of or belonging to or due to each of the
Constituent Corporations shall be taken and deemed to be
transferred to and invested in the Surviving Corporation without
further act or deed; and the title to any real estate, or any
interest therein, vested in either of the Constituent
Corporations shall not revert or be in any way impaired by reason
of the Merger. The Surviving Corporation shall thenceforth be
responsible and liable for all the liabilities and obligations of
each of the Constituent Corporations; and any claims existing or
action or proceeding pending by or against either of the
Constituent Corporations may be prosecuted as if such Merger had
not taken place, or the Surviving Corporation may be substituted
in its place. Neither the rights of creditors nor any liens upon
the property of either of the Constituent Corporations shall be
impaired by the Merger.
7. FURTHER ASSIGNMENTS.
If at any time the Surviving Corporation shall consider or
be advised that any further assignments or assurances in law or
any other actions necessary or desirable to vest in said
Surviving Corporation, according to the terms thereof, the title
to any property or rights of Americorp, the proper officers and
directors of Americorp shall execute and make all such proper
assignments and assurances and do all things necessary and proper
to vest title in such property or rights in the Surviving
Corporation, and otherwise to carry out the purposes of this
Merger Agreement.
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8. CONDITIONS PRECEDENT TO CONSUMMATION OF THE MERGER.
This Agreement is subject to, and consummation of the Merger
is conditioned upon, the fulfillment as of the Effective Date of
each of the following conditions:
(a) Approval of this Agreement by the affirmative vote
of the holders of a majority of the outstanding voting
shares of Americorp.
(b) Receipt of such consents, authorizations and
approvals from any and all governmental authorities,
bodies or agencies having jurisdiction over the
transactions contemplated by this Agreement, including,
but not limited to the Department of Banking and
Finance of the State of Georgia, and the expiration of
all applicable waiting or similar periods required by
law.
(c) Americorp shall have received from Xxxxxxxxxx &
Cody their opinion, in form and substance reasonably
satisfactory to Americorp, to the effect that:
(i) The merger of Americorp with and into BCG and
the issuance of shares of BCG Stock in connection
therewith, as described herein, will constitute a
tax-free reorganization under Section 368(a)(1)(A)
of the Internal Revenue Code of 1986, as amended.
(ii) No gain or loss will be recognized by holders
of Americorp Common Stock upon the exchange of
such stock for BCG Stock as a result of the
Merger.
(iii) The tax basis of the BCG Stock received
by shareholders of Americorp pursuant to the
Merger will be the same as the tax basis of the
shares of Americorp Common Stock exchanged
therefor.
(iv) The holding period of the shares of BCG Stock
received by the Americorp shareholders will
include the holding period of the shares of
Americorp Common Stock exchanged therefor,
provided that such Americorp Common Stock is held
as a capital asset on the date of consummation of
the Merger.
(d) The Secretary of State of Georgia shall have
issued a Certificate of Merger with respect to the
Merger.
(e) BCG shall have filed with the Securities and
Exchange Commission a registration statement (the BCG
Registration Statement ) under the Securities Act of
1933, as amended, on Form S-4 or some other appropriate
form covering the issuance of shares of BCG Stock to
the shareholders of Americorp pursuant to this
Agreement, and the BCG Registration Statement shall
have been declared effective, and all applicable
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waiting or similar periods required by law shall have
expired.
(f) All consents to the Merger that are required to be
secured from any party pursuant to any agreement with
BCG, Americorp or any of their respective subsidiaries
shall have been received.
9. TERMINATION.
This Merger Agreement may be terminated and the Merger
abandoned at any time before or after adoption of this Merger
Agreement by the Board of Directors of BCG or Americorp,
notwithstanding favorable action on the Merger by the
shareholders of Americorp, but not later than the Effective Date.
Notwithstanding anything to the contrary herein, BCG may
terminate this Agreement if greater than five percent of the
holders of Americorp Common Stock dissent from the Merger
provided for herein.
10. EXPENSES.
All of the expenses incurred by BCG in connection with the
authorization, preparation, execution and performance of this
Agreement, including, without limitation, all fees and expenses
of its agents, representatives, counsel and accountants and the
fees and expenses related to filing regulatory applications and
registration statements with state and federal authorities in
connection with the transactions contemplated hereby, shall be
paid by BCG. All expenses incurred by Americorp in connection
with the authorization, preparation, execution and performance of
this Agreement, including, without limitation, all fees and
expenses of agents, representatives, counsel and accountants for
Americorp, and the cost of reproducing and mailing the Notice of
Special Meeting, Proxy Statement and Proxy in connection with a
special meeting of the Americorp shareholders called for purposes
of submitting this Agreement for the approval of Americorp
shareholders, shall be paid by Americorp.
11. COUNTERPARTS; TITLE; HEADINGS.
This Merger Agreement may be executed in counterparts, each
of which when so executed shall be deemed to be an original, and
such counterparts shall together constitute one and the same
instrument. The title of this Merger Agreement and the headings
herein set out are for the convenience of reference only and
shall not be deemed a part hereof.
12. AMENDMENTS; ADDITIONAL AGREEMENTS.
At any time before or after approval and adoption by the
shareholders of Americorp, this Merger Agreement may be modified,
amended or supplemented by additional agreements, articles or
certificates as may be determined in the judgment of the
respective Boards of Directors of the Constituent Corporations to
be necessary, desirable or expedient to further the purposes of
this Merger Agreement, to clarify the intentions of the parties,
to add to or modify the covenants, terms or conditions contained
herein or to effectuate or facilitate any governmental approvals
of the Merger or this Merger Agreement, or otherwise to
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effectuate or facilitate the transactions contemplated thereby;
provided, however, that the Conversion Rate shall not be amended
following approval of this Merger Agreement by the Boards of
Directors of the Constituent Corporations and the shareholders of
Americorp unless such amendment shall be adopted and approved by
such Boards and such shareholders.
IN WITNESS WHEREOF, the Constituent Corporations have caused
this Agreement and Plan of Merger to be executed on their
respective behalves and their respective corporate seals affixed
hereto on the day and year above written.
(CORPORATE SEAL) BANK CORPORATION OF GEORGIA
Attest: /s/ Xxxxx X. XxXxxxxx, Xx. By: /s/ Xxxxxx X. Xxxxx
Xxxxx X. XxXxxxxx, Xx. Xxxxxx X. Xxxxx
Secretary President and CEO
(CORPORATE SEAL) AMERICORP, INC.
Attest: /s/ Xxxxx X. XxXxxxxx, Xx. By: /s/ Xxxxxx X. Xxxxx
Xxxxx X. XxXxxxxx, Xx. Xxxxxx X. Xxxxx
Secretary President and CEO
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