Exhibit 2.1
AGREEMENT AND PLAN OF SHARE EXCHANGE
THIS AGREEMENT AND PLAN OF SHARE EXCHANGE, dated to be effective on
March 5, 2001, by and between Capital Bank & Trust Company, a Tennessee banking
corporation with principal offices located in Nashville, Tennessee ("Bank") and
Capital Bancorp, Inc., a Tennessee business corporation with principal offices
located in Nashville, Tennessee ("Holding Company").
PREMISES:
As inducements each to the other, each party represents and warrants to
the other that:
A. The Bank is a Tennessee banking corporation duly organized under
Section 45-2-201, et seq. of the Tennessee Code Annotated. The Bank has
its principal office and place of business in Nashville, Davidson
County, Tennessee. The Bank is a member of the Federal Deposit
Insurance Corporation. The Bank is not a member of the Federal Reserve
System.
B. At the date hereof, the Bank has 20,000,000 shares of its common voting
stock, par value $4.00, authorized, with 1,560,271 shares issued and
outstanding (the "Bank Stock"). The Bank has 20,000,000 shares of no
par preferred stock authorized, but no shares are issued or
outstanding. Presently, the Bank has granted 203,500 options under the
Capital Bank & Trust Company 1995 Stock Option Plan that remain
unexercised; and
C. The Holding Company is a business corporation duly organized under the
laws of the State of Tennessee, having its principal place of business
in Nashville, Davidson County, Tennessee. The Holding Company has
20,000,000 shares of common voting stock, par value $4.00, authorized,
with 250 shares outstanding. In addition, the Holding Company has
20,000,000 shares of no par preferred stock authorized, but no shares
are issued or outstanding; and
D. At the Effective Time herein defined, the majority of the entire Board
of Directors of the Bank and a majority of the entire Board of
Directors of the Holding Company, respectively, will have approved this
Agreement and Plan of Share Exchange and authorized its execution.
AGREEMENT:
In consideration of the foregoing premises, the Bank and the Holding Company
hereby enter into this Agreement and Plan of Share Exchange and prescribe the
terms and conditions of the exchange (the "Share Exchange") of all the issued
and outstanding shares of stock of the Bank for shares of stock of the Holding
Company to be issued, and the mode of carrying it into effect as follows:
ARTICLE 1
THE PURPOSE OF THE SHARE EXCHANGE
The purpose of the Share Exchange is to cause the Holding Company to
become the sole Shareholder of the Bank in accordance with the share exchange
provisions of the Tennessee Code Annotated ("T.C.A."), including those
provisions applicable to this transaction by virtue of the Tennessee Banking Act
and the Tennessee Business Corporation Act. At the time when the Share Exchange
shall become effective each one (1) issued and outstanding whole share of the
Bank Stock shall be exchanged for one (1) share of common voting stock of the
Holding Company (the "Holding Company Stock"), pursuant to the provisions of and
with the effect provided in Tennessee Code Annotated Sections 00-00-000 et seq.,
as amended. As a result of the Share Exchange, the Holding Company shall become
the sole shareholder of the Bank. No fractional shares of the Holding Company
Stock shall be issued. The Holding Company shall pay the percentage of fair
market value equal to any fraction for any such fractional share promptly upon
completion of the Share Exchange. Such fair market value shall be based on the
book value at the most recent month end prior to the Effective Date (except that
if the Effective Date occurs on a month end, then on that date).
ARTICLE 2
THE EFFECTS OF THE SHARE EXCHANGE
When the Share Exchange shall have been effected, the Bank and the
Holding Company shall remain separate and distinct entities. All of the
following shall occur:
Section 2.1. Bank Name, Etc. At the Effective Time, the name of the
Bank shall remain Capital Bank & Trust Company and the head office and any
established and authorized branches of the Bank shall remain as such is set
forth in Exhibit 2.1 attached hereto and incorporated herein by reference.
Section 2.2. Bank Board of Directors. At the Effective Time, all the
members of the Board of Directors of the Bank shall continue to be Directions of
the Bank as set forth in Exhibit 2.2 attached hereto and incorporated herein by
reference. Such directors shall serve until the next annual meeting of the
stockholders that votes on their respective Class (as specified in the Holding
Company's Charter).
Section 2.3. Bank Officers. At the Effective Time, the Officers of the
Bank shall be all of those persons who are officers of the Bank as of the date
of execution of this Agreement and Plan of Share Exchange, including any changes
in officers immediately before the Share Exchange becomes effective as set forth
in Exhibit 2.3 attached hereto and incorporated herein by reference.
Section 2.4. Bank Charter and Bylaws. At the Effective Time, both the
Bank's Charter and its Bylaws (together with any and all amendments to the
Charter and/or the Bylaws), shall remain in full force and effect.
Section 2.5. Common Stock; Bank Equity Accounts. The amount and number
of shares of the authorized Bank Stock, and the par value thereof outstanding
immediately before the Effective Time, shall remain the same after the Effective
Time with the effect that the number of shares of the Bank Stock outstanding
upon completion of the Share Exchange shall be equal to the number of shares of
the Bank Stock outstanding immediately before the Effective Time. The Paid-In
Surplus Account (Surplus Account) and the Earned Surplus Account (Undivided
Profits Account) of the Bank as they exist immediately before the Effective Time
shall remain the same after the Effective Time and shall not be affected by the
Share Exchange.
Section 2.6. Preferred Stock. At the Effective Time, neither the Bank
nor the Holding Company shall have any preferred stock outstanding. No preferred
stock of either the Holding Company or the Bank is to be issued as part of this
Share Exchange.
Section 2.7. Rights to Dissent; Compliance with Law. Any holder of Bank
Stock ("Shareholder") who properly perfects such holders' right to dissent from
the Agreement and Plan of Share Exchange shall have the rights of a "dissenting
stockholder" as set forth in T.C.A. Section 45-2-1309, and in Chapter 23 of the
Tennessee Business Corporation Act (T.C.A. Sections 00-00-000, et seq.), as
amended. Any Shareholder desiring to dissent must do so strictly in accordance
with applicable law. The parties to this Agreement hereby agree that they will
not permit variations from the law's requirements, nor will they waive non-
compliance.
Section 2.8. Capital Bank Stock Options. Assuming that the Share
Exchange becomes effective, each option granted under the 1995 Capital Bank &
Trust Company Stock Option Plan, as amended, that is outstanding (the
"options"), whether or not exercisable, will either, at the election of the
holder of the option, (i) be canceled in exchange for a cash payment that is
equal to the book value of each share of Capital Bank Stock as calculated by the
bank as of the last business day of the calendar month next preceding the date
that the share exchange is completed in excess of the exercise price or (ii)
converted to a holding company stock option. (However, if the share exchange is
completed on the last business day of a month, then the book value will be
computed as of that date.)
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Any holder of options to purchase Bank Stock must make a written
election as to whether she or he intends to exchange such Bank option for a cash
payment or for options to purchase Holding Company Stock. Such written election
must be made no later than 5:00 p.m., Central Time, on the 5th day prior to the
day on which the scheduled Effective Time of the Share Exchange occurs. If the
Holding Company does not receive such written election, the Bank option holder
will receive a cash payment in exchange for her or his Bank options to purchase
Bank Stock (or no payment if there is no net value after subtracting the
exercise price from the book value at the appropriate time).
As to any elections made or accepted by the Holding Company, the
Holding Company will issue a stock option grant to the Bank option holder that
covers Holding Company Stock and cancels the Bank option. Thus the Holding
Company will assume each option owned and converted on terms not less favorable
to the option holder than the Bank's stock option plan. After the Share Exchange
becomes effective, (1) the Holding Company and its designated committee will be
substituted for the Bank and the committee of the Bank's board of directors
administering the Bank's stock option plan; (2) each option assumed by the
Holding Company may be exercised only for shares of the Holding Company Stock;
(3) the number of shares of Holding Company Stock subject to the option will be
equal to the number of shares of Bank Stock subject to the option immediately
before the Share Exchange becomes effective; and (4) the per share exercise
price under each option will be the same as the exercise price for Bank Stock.
Notwithstanding the foregoing, each Bank option which is converted into
a Holding Company stock option and is an "incentive stock option" shall be
adjusted as required by Section 424 of the Internal Revenue Code, and the
regulations promulgated thereunder, so as not to constitute a modification,
extension or renewal of the option, within the meaning of Section 424(h) of the
Internal Revenue Code.
ARTICLE 3
THE PLAN OF SHARE EXCHANGE
Upon and by reason of the Share Exchange becoming effective, at the
Effective Time:
3.1 Each share of capital stock of the Bank shall, ipso facto and
without any action on the part of the holder thereof, be
converted into the right to receive one (1) share of capital
stock of the Holding Company pursuant to the terms of this
Agreement;
3.2 Each Bank Shareholder shall cease to be a Shareholder of the
Bank and the ownership of all of the issued and outstanding
Shares of the Bank Stock shall thereupon vest in the Holding
Company as the acquiring person automatically;
3.3 The Holding Company shall issue one (1) share of Holding
Company Stock for each one (1) whole share of Bank Stock;
3.4 The Holding Company shall pay cash for fractional shares as
provided in this Agreement and for dissenting shares are set
forth in Chapter 23 of the Tennessee Business Corporation Act;
and
3.5 The parties shall cooperate fully in effecting the Share
Exchange and in taking such other steps as shall be necessary,
appropriate or convenient in consummating the Share Exchange
in accordance with the terms and spirit of this Agreement.
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ARTICLE 4
SHAREHOLDER APPROVALS
This Agreement and Plan of Share Exchange shall be submitted to the
Shareholders of the Bank and the Holding Company for approval at a meeting to be
called and held in accordance with the applicable provisions of law and the
Charter and Bylaws of the Bank and the Holding Company, respectively. In its
discretion, the Holding Company may elect to permit its shareholders to act upon
written consent without a meeting. The Bank and the Holding Company shall
proceed expeditiously and cooperate fully in the procurement of any other
consents and approvals and the taking of any other action, and the satisfaction
of all other requirements prescribed by law or otherwise, necessary for
consummation of the Share Exchange at the times provided herein.
ARTICLE 5
CONDITIONS TO THE SHARE EXCHANGE
The consummation and effectuation of the Share Exchange are conditioned
upon:
5.1 Approval of this Agreement and Plan of Share Exchange by the
vote of a majority of all outstanding shares of Bank Stock or
such greater vote as may be required by law;
5.2 Procurement of all other consents and approvals, and
satisfaction of all other requirements prescribed by law which
are necessary for consummation of the Share Exchange,
specifically the approval of the Tennessee Department of
Financial Institutions and any necessary approval of the
Federal Reserve Board; and
5.3 The absence of any unwaived Default hereunder; provided, that
consummation of the Share Exchange shall be deemed a waiver of
any known Defaults hereunder.
ARTICLE 6
AGREEMENTS AND UNDERTAKINGS
Section 6.1. Holding Company Agreements. The Holding Company agrees to
use its reasonable best efforts to:
6.1.1 Obtain all necessary shareholder and regulatory approvals;
6.1.2 Permit the conversion of any Bank stock options to become
options for a like number of shares of Holding Company stock;
6.1.3 Obtain appropriate affiliate agreements as may be deemed
proper pursuant to the Securities Act of 1933, as amended
("Securities Act");
6.1.4 Obtain a federal tax opinion in form and substance
satisfactory to the Bank's Board of Directors; and
6.1.5 Take such other actions as may be proper to effectuate the
transactions set forth in this Agreement on or before June 30,
2001.
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Section 6.2 Bank Agreements. The Bank agrees to use its reasonable best
efforts to:
6.2.1 Obtain all necessary Shareholder and regulatory approvals;
6.2.2 Facilitate the conversion of any Bank stock options to become
options for a like number of shares of Holding Company Stock;
6.2.3 Assist the Holding Company in obtaining appropriate affiliate
agreements as may be deemed proper pursuant to the Securities
Act;
6.2.4 Obtain a federal tax opinion in form and substance
satisfactory to the Holding Company's Board of Directors;
6.2.5 Pay the expenses related to the transactions contemplated
herein; and
6.2.6 Take such other actions as may be proper to effectuate the
transactions set forth in this Agreement on or before June 30,
2001.
ARTICLE 7
EVENTS OF DEFAULT
Section 7.1 Events of Default. Any of the following events shall be
considered an Event of Default as that term is used herein:
7.1.1 Principal and Interest Payments. Any party fails for any
reason to make payment within five (5) Business Days of the due date of
any installment (or xxxx for any installment) of principal or interest
on any material obligation for borrowed money.
7.1.2 Representations and Warranties. Any representation or
warranty made by any party in any Share Exchange Document, including
this Agreement, proves to have been incorrect in any material respect
as of the date thereof; or any representation, statement (including
financial statements), certificate or data furnished or made by any
party (or any agent, representative, accountant, or attorney thereof)
in any Share Exchange Document, including this Agreement, proves to
have been untrue in any material respect, as of the date as of which
the facts therein set forth were stated or certified; or
7.1.3 Covenants. Any party fails to comply with any of the
covenants or agreements contained in this Agreement and such default
continues unremedied or is not waived for a period of thirty (30) days
after the earlier of (i) notice thereof has been given by the other
party to such party, or (ii) such default otherwise has become known to
the defaulting party; or
7.1.4 Involuntary Bankruptcy or Receivership Proceedings. A
receiver, custodian, liquidator or trustee of any party or of any
Property of any party is appointed by the order or decree of any court,
agency or supervisory authority having jurisdiction, and such decree or
order remains in effect for more than sixty (60) days; or any party is
adjudicated bankrupt or insolvent; or any of the Property of any party
is sequestered by court order and such order remains in effect for more
than sixty (60) days; or a petition is filed against any party under
any state or federal (or other applicable) bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution, liquidation
or receivership law of any jurisdiction, whether now or hereafter in
effect, and is not dismissed within sixty (60) days after such filing;
or
7.1.5 Voluntary Petitions. Any party takes affirmative steps
to prepare to file a petition in voluntary bankruptcy or seeking relief
under any provision of any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution or liquidation law of any
jurisdiction,
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whether now or hereafter in effect, or consents to the filing of any
petition against any party under any such law; or
7.1.6 Assignments for Benefit of Creditors, Etc. Any party
makes an assignment for the benefit of such party's creditors, or
admits in writing any party's inability to pay such party's debts
generally as they become due, or consents to the appointment of a
receiver, trustee, or liquidator for such party or for all or any part
of such party's Property; or
7.1.7 Regulatory Problems, Etc. Any party encounters or
suffers materially adverse regulatory problems, including any fines,
civil money penalties, or one or more cease and desist orders; or
7.1.8 Discontinuance of Business, Etc. Any party discontinues
such party's usual business; or
7.1.9 Default on Other Debt or Security. Subject to any
applicable grace period, any party fails to make any payment due on any
indebtedness or security (as "security" is defined for purposes of
federal securities laws, as amended) or any event shall occur or any
condition shall exist in respect of any indebtedness or security of any
party or under any agreement securing or relating to such indebtedness
or security, the effect of which is (i) to cause or to permit any
holder of such indebtedness or other security or a trustee to cause
(whether or not such holder or trustee elects to cause) such
indebtedness or security, or a portion thereof, to become due prior to
its stated maturity or prior to its regularly scheduled dates of
payment, or (ii) to permit a trustee or the holder of any security
(other than common stock of any party) to elect (whether or not such
holder or trustee does elect) a majority of the directors on the board
of directors of any party, and the default described in (i) and/or (ii)
above exceeds, when aggregated with all other such defaults, Five
Hundred Thousand Dollars ($500,000.00); or
7.1.10 Undischarged Judgments. If any one or more judgments
(in the aggregate at any one time outstanding) for the payment of money
in excess of Fifty Thousand Dollars ($50,000.00) in the aggregate are
rendered by any court or other governmental body against any party
which is not fully covered by valid collectible insurance and such
party does not discharge the same or provide for its discharge in
accordance with its terms, or procure a stay of execution thereof
within the applicable appeal period and within said appeal period
following the date of entry thereof or such longer period during which
execution of such judgment shall have been stayed, appeal therefrom and
cause the execution thereof to be stayed during such appeal while
providing such reserves therefor as may be required under generally
accepted accounting principles; or
7.1.11 Material Decline in Net Worth or Material Damage to
Property, Etc. Any material decline in any party's net worth or any
material damage to or loss (or decline in value) of any of any party's
Properties; or
7.1.12 Challenge, Etc. Any of the Share Exchange Documents is
challenged or impaired in any respect in a court of competent
jurisdiction.
Section 7.2 Remedies. Upon the happening of any Default specified in
Section 7.1, the other party may declare this Agreement to be null and void and
collect from the defaulting party its expenses incurred in connection with this
proposed Share Exchange.
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ARTICLE 8
TERMINATION OF THE SHARE EXCHANGE
Section 8.1 Termination, Etc. This Agreement and Plan of Share Exchange
may be terminated at any time before the Share Exchange becomes effective upon
the occurrence of any of the following:
8.1.1 The number of shares of capital stock of the Bank voted
against or dissenting from the Share Exchange shall make
consummation of the Share Exchange contrary to the best
interest of the Bank or its Shareholders in the sole
discretion of its Board of Directors; or
8.1.2 Any action, suit, proceeding or claim has been instituted,
made, pursued, or threatened relating to the proposed Share
Exchange which shall make consummation of the Share Exchange
inadvisable or impracticable in the sole discretion of the
Board of Directors of the Bank;
8.1.3 Any action, consent or approval, governmental or otherwise,
which in the opinion of counsel for the Bank is or may be
necessary to consummate the Share Exchange, shall not have
been obtained by December 31, 2002; or any action, consent or
approval proves unreasonably costly to obtain or the
conditions therefor are unacceptable as determined by the
Bank's Board of Directors in its sole discretion;
8.1.4 The mutual agreement of the Holding Company and the Bank;
8.1.5 The transaction contemplated by this Agreement shall not have
been consummated by December 31, 2002; or
8.1.6 For any other reason consummation of the Share Exchange is
deemed inadvisable in the opinion of a majority of a quorum
the Bank's Board of Directors, or otherwise in the sole and
absolute discretion of a majority of a quorum of the Bank's
Board of Directors.
Section 8.2 Notice of Termination. Upon the occurrence of any events
set forth in Section 8.1, this Agreement and Plan of Share Exchange may be
terminated by the unilateral action of the Board of Directors of the either the
Bank or the Holding Company prior to the Effective Time, by giving written
notice of the basis of termination to the Holding Company or Bank. Such
termination shall be effective upon receipt.
Section 8.3. Effect of Proper Termination. Upon proper termination by
appropriate written notice as provided in this Article 8, this Agreement and
Plan of Share Exchange shall be void and of no further effect, and there shall
be no liability by reason of this Agreement and Plan of Share Exchange or the
termination thereof on the part of either the Bank, the Holding Company or the
directors, officers, employees, agents or shareholders of either of them.
ARTICLE 9
NOTICES AND COMMUNICATIONS
Section 9.1 Notices. All notices and/or any other communications under
or in connection with this Agreement shall be in writing and shall be mailed by
first class mail, postage prepaid, or otherwise sent by telex, telegram,
telecopy or other similar form of rapid transmission confirmed by mailing (in
the manner stated above) written confirmation at substantially the same time as
such rapid transmission, or personally delivered to any executive officer of the
other party. All such communications shall be mailed, sent or delivered,
9.1.1 if to the Bank, to the address set forth on the
signature page hereof, to the attention of R. Xxxx Xxxx, Chairman; and
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9.1.2 if to the Holding Company, to the address set forth on
the signature page hereof, to the attention of Xxxx X. Xxxxxxx, Xx.,
Executive Vice President.
Section 9.2 Effective Date of Notices. Any communication so addressed
and mailed by registered or certified mail shall be deemed to be given three (3)
Business Days after being so mailed. Either party may change its address by
written notice to the other party in accordance with the terms hereof.
ARTICLE 10
MISCELLANEOUS PROVISIONS
Section 10.1 Affiliate Agreements. Any affiliate of the Bank or the
Holding Company shall comply with any affiliate agreement executed in connection
with the Share Exchange and shall comply with the requirements of the Securities
Act and the rules and regulations thereunder (including Rules 144 and 145 to the
extent applicable to them or to any transaction).
Section 10.2 Deviation from Covenants. The procedure to be followed by
the either party to obtain the consent of the other to any deviation from the
agreements and/or covenants contained in this Agreement or any other Share
Exchange Document shall be as follows:
10.2.1 The requesting party shall send a written notice to the
other party setting forth (i) the agreement(s) and/or covenant(s)
relevant to the matter, (ii) the requested deviation from the
covenant(s) involved, and (iii) the reason for the requested deviation
from the same; and
10.2.2 The requested party shall within a reasonable time send
a written notice to the other party, signed by an authorized executive
officer of such party, permitting or refusing the request; provided,
however, that each party agrees to use its best efforts to reply in
writing in each case within ten (10) Business Days, but in no event
will any deviation from the covenants of this Agreement or any other
Share Exchange Document be effective without the written consent of the
requested party.
Section 10.3 Invalidity. In the event that any one or more of the
provisions contained in this Agreement or in any other Share Exchange Document
shall, for any reason, be held invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement or any other Share Exchange Document.
Section 10.4 Survival of Agreements. All representations and warranties
of the parties herein, and all covenants and agreements herein not fully
performed before the Effective Time, shall survive such Effective Time.
Section 10.5 Successors and Assigns. All covenants and agreements
contained by or on behalf of a party in this Agreement and/or in any other Share
Exchange Document shall bind such party's successors and assigns and shall inure
to the benefit of the other party and its successors and assigns.
Section 10.6 Waivers. No action or course of dealing on the part of any
party, its officers, employees, consultants or agents, nor any failure or delay
by any party with respect to exercising any right, power or privilege of such
party under any Share Exchange Document(s), including this Agreement, shall
operate as a waiver thereof.
Section 10.7 Cumulative Rights. Rights and remedies of any party under
this Agreement and each other Share Exchange Document shall be cumulative, and
the exercise or partial exercise of any such right or remedy shall not preclude
the exercise of any other right or remedy.
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Section 10.8 Singular and Plural. Words used herein in the singular,
where the context so permits, shall be deemed to include the plural and vice
versa. The definitions of words in the singular herein shall apply to such words
when used in the plural where the context so permits and vice versa.
Section 10.9 Construction. This Agreement and the other Share Exchange
Documents constitute a contract made under and shall be construed in accordance
with and governed by the laws of the State of Tennessee.
Section 10.10 Disclosures. Every reference in this Agreement to
disclosures by any party to any other party in writing, to the extent that such
references refer or are intended to refer to disclosures at or prior to the
execution of this Agreement, shall be deemed strictly to refer only to written
disclosures delivered to such party concurrently with the execution hereof. It
is the intention of the parties that such disclosures are to be limited to those
presented in an orderly manner at the time of entering into this Agreement and
are not to be deemed to include expressly or impliedly any disclosures which may
previously have been delivered from time to time to the receiving party, except
to the extent that such previous disclosures are again presented to the
receiving party in writing concurrently with the execution hereof.
Section 10.11 Titles of Articles, Sections and Subsections. All titles
or headings to articles, sections, subsections or other divisions of this
Agreement or the exhibits hereto are only for the convenience of the parties and
shall not be construed to have any effect or meaning with respect to the other
content of such articles, sections, subsections or other divisions, such other
content being controlling as to the agreement between the parties hereto.
Section 10.12 Time of Essence. Time is of the essence with regard to
each and every provision of this Agreement.
Section 10.13 Counterparts. This Agreement may be executed in two or
more counterparts, and it shall not be necessary that the signatures of all
parties hereto be contained on any one counterpart hereof; each counterpart
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
Section 10.14 Remedies. All remedies provided for in this Agreement and
all other Share Exchange Documents for the parties shall be in addition to all
other remedies available to the parties under the principles of law and equity,
and pursuant to any other body of law, statutory or otherwise.
Section 10.15 Amendment(s). No amendment(s), modification(s), or
waiver(s) of any provision of this Agreement, or of any of the other Share
Exchange Documents, shall in any event be effective unless the same shall be in
writing and signed by appropriate executive officers of the respective parties.
Section 10.16 Exhibits. All Exhibits referred to in the Share Exchange
Documents, including those referred to in Article 2 hereof, shall be timely,
accurately, and completely furnished to the other party as provided in the
appropriate Section or, if not so provided, within ten (10) calendar days of its
creation, filing, or dissemination. The exhibits attached to this Agreement are
incorporated herein and shall be considered a part of this Agreement for the
purposes stated herein, except that in the event of any conflict between any of
the provisions of such exhibits and the provisions of this Agreement or any
other Share Exchange Document, the provisions of this Agreement or such other
Share Exchange Document, as the case may be, shall prevail.
Section 10.17 Computations. Where the character or amount of any asset
or liability or item of income or expense is required to be determined, or any
consolidation or other accounting computation is required to be made, for the
purpose of this Agreement, such determination or calculation shall, to the
extent applicable and except as otherwise specified in this Agreement, be made
in accordance with generally accepted accounting principles applied on a
consolidated basis consistent with those at the time in effect as at the date of
this Agreement.
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Section 10.18 Jurisdiction and Venue. Any dispute arising hereunder
shall be litigated in a forum located in Nashville, Davidson County, Tennessee.
Section 10.19 Indemnification. In consideration of the execution and
delivery of this Agreement by the parties, each of the parties agrees hereby to
indemnify, exonerate and hold harmless the other party for such party's
misconduct, negligence, acts, or omissions. The indemnified party includes such
party's respective officers, directors, employees, and agents (collectively the
"Indemnified Parties"). The Indemnified Parties shall be held free and harmless
from and against any and all actions, causes of action, suits, losses, costs,
liabilities, judgments, settlements, damages, and expenses actually incurred in
connection therewith (irrespective of whether such Indemnified Party is a party
to the action for which indemnification hereunder is sought), including
reasonable attorneys' fees and disbursements (the "Indemnified Liabilities"),
incurred by the Indemnified Parties or any of them as a result of, or arising
out of, or relating to, or as a direct or indirect result of the transactions
contemplated by the Share Exchange Documents, except for any such Indemnified
Liabilities arising for the account of a particular Indemnified Party solely by
reason of such Indemnified Party's gross negligence or willful misconduct or
breach by such Indemnified Party of its express obligations under any Share
Exchange Document, and if and to the extent that the foregoing undertaking may
be unenforceable for any reason, each party hereby agrees to make the maximum
contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law.
ARTICLE 11
THE EFFECTIVE TIME
Subject to the terms and upon satisfaction of all the requirements of
law and the conditions specified in this Agreement and Plan of Share Exchange,
including among other conditions, the affirmative approval by the holders of a
least a majority of the outstanding shares of the Bank Stock and the Holding
Company Stock, the receipt of the necessary approvals of the Tennessee
Department of Financial Institutions and the Board of Governors of the Federal
Reserve System (and/or any other appropriate regulatory body or agency), the
Share Exchange shall become effective upon the filing of Articles of Share
Exchange with the Tennessee Secretary of State (the "Effective Time"), or as
otherwise permitted, in accordance with law.
ARTICLE 12
GENERAL TERMS AND DEFINITIONS
Section 12.1 Certain Terms and Definitions. The following additional
provisions apply to this Agreement. In addition, as used in this Agreement, the
following terms shall have the following meanings, unless the context otherwise
requires:
"Agreement" means this Plan and Agreement of Share Exchange, including
all exhibits hereto, as the same may from time to time be modified, amended,
extended or supplemented.
"Business Day" means any day on which the Bank is officially open for
business.
"Closing" means the time of the execution of the documents and
instruments, including Articles of Share Exchange, intended to complete and
consummate the transaction (each of which shall be a Share Exchange Document).
"Closing Date" means the date on which the Effective Time occurs or as
soon thereafter as practicable for the parties to execute any closing documents
that they deem necessary, appropriate, or convenient in consummating the Share
Exchange.
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"Condition(s) Precedent" means those matters that must be completed in
order for the either party to be obligated to consummate the Share Exchange,
including without limitation those matters described in Article 5 of this
Agreement.
"Debt" and/or "Indebtedness" means indebtedness of any kind that would
be classified as debt on the balance sheet of a party.
"Default" means the occurrence of any of the events specified in
Article 7 hereof after any requirement for notice or lapse of time or other
condition precedent has been satisfied.
"Financial Statements" means the financial statement or statements of a
party hereto.
"Fiscal Year" shall mean each twelve-month period beginning January 1
and ending December 31, which period is the fiscal year of the Bank.
"Initial Conditions" means those conditions precedent set forth in
Article 5 hereof.
"Materially Adverse Effect" means, relative to any occurrence of
whatever nature (including, without limitation, any adverse determination in any
litigation, arbitration, or governmental investigation or proceeding), a
materially adverse effect on:
(a) the consolidated business, assets, revenues, financial
condition, operations, or prospects of a party; or
(b) the ability of a party to perform any of their payment or
other material obligations under this Agreement and/or any other Share
Exchange Documents.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof, or any other form of entity.
"Plan" means any plan subject to Title IV of ERISA and maintained by
either party, or any such plan to which any party is required to contribute on
behalf of such party's employees.
"Plan of Share Exchange" means the Plan of Share Exchange described in
this Agreement.
"Property" or "Properties" means any interest in any kind of property
or asset, whether real, personal or mixed, or tangible or intangible.
"Share Exchange Document" means any document or instrument evidencing
the agreement of the parties to engage in a share exchange under Tennessee law.
Section 12.2 Accounting Principles. Where the character or amount of
any asset or liability or item of income or expense is required to be determined
or other accounting computation is required to be made for the purposes of this
Agreement, this shall be done in accordance with generally accepted accounting
principles applied on a basis consistent with those reflected by the Financial
Statements, except where such principles are inconsistent with the requirements
of this Agreement.
Section 12.3 Miscellaneous Definitions.
(a) The words "hereof", "herein", "hereunder", and words of
similar import shall, when used in this Agreement, refer to this
Agreement as a whole and not to any particular provision of this
Agreement.
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(b) Words importing a particular gender mean and include every
other gender, and words importing the singular number mean and include
the plural number, and vice versa, as the context shall require.
(c) All terms defined in this Agreement shall, unless the
context otherwise requires, have the same meanings when used in the
other Share Exchange Document(s) or any certificate, report, or other
document made or delivered pursuant to this Agreement.
ARTICLE 13
PAYMENT OF EXPENSES
At the Effective Time, the Bank shall pay the expenses, if any,
incurred in the proposed transaction. If the Share Exchange does not become
effective, the Bank shall pay all reasonable and necessary expenses associated
with the transaction proposed herein.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed as of the date first above written.
HOLDING COMPANY: BANK:
Capital Bancorp, Inc. CAPITAL BANK & TRUST COMPANY
0000 Xxxx Xxx Xxxxxx 0000 Xxxx Xxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000 Xxxxxxxxx, Xxxxxxxxx 00000
By: /s/ R. Xxxx Xxxx By: /s/ Xxxx X. Xxxxxxx, Xx.
----------------------------------- -----------------------------------
R. Xxxx Xxxx, Chairman Xxxx X. Xxxxxxx, Xx.,
Executive Vice President
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EXHIBIT 2.1
OFFICES OF THE BANK
Main Office of the Bank 0000 Xxxx Xxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Branch: Downtown Branch
000 0xx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Branch: Green Hills Branch
0000 Xxxxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Branch: Goodlettsville Branch
000 Xxxx Xxxxxx Xxxx
Xxxxxxxxxxxxxx, Xxxxxxxxx 00000
Branch: Hendersonville Branch
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxxxxxxx, Xxxxxxxxx 00000
Branch: Hermitage Branch
(Under construction) 0000 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Operations Center: 0000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
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EXHIBIT 2.2
DIRECTORS OF THE BANK
Xxxxxx X. Xxxxxxxxx, Xx.
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxx, III
Xxxxxx X. Xxxxx
Xxxx X. Xxxxxxx, Xx.
R. Xxxx Xxxx
Xxxxxxx Xxxxxxxx Xxxxxxx
H. Xxxxxx Xxxxxxx, III
H. Xxxxxx Xxxxxxx, Xx. M.D.
Xxxxxxx Xxxxxxxxx
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EXHIBIT 2.3
OFFICERS OF THE BANK
R. Xxxx Xxxx, Chairman, President and Chief Executive Officer
H. Xxxxxx Xxxxxxx, III, Executive Vice President and Secretary
Xxxx X. Xxxxxxx, Xx., Executive Vice President
Xxxxx X. Xxxxxx, Senior Vice President, Cashier, Chief Financial & Accounting
Officer
Xxxxxxx Xxxxxxx, Senior Vice President
Xxxxxxx X. Xxxxx, Senior Vice President
Xxxxx X. Xxxxx, Senior Vice President
Xxxxx X. Xxxxxx, Vice President, Cashier and Controller
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