AGREEMENT AND PLAN OF REORGANIZATION
BY AND BETWEEN
PREMIER BANCSHARES, INC.
AND
XXXXXX XXXXXXXX FINANCIAL CORPORATION
Dated as of February 5, 1998
TABLE OF CONTENTS
Page
----
Preamble..................................................... 1
ARTICLE ITRANSACTIONS AND TERMS OF MERGER.................... 1
Merger.................................................. 1
Time and Place of Closing............................... 2
Effective Time.......................................... 2
ARTICLE IITERMS OF MERGER.................................... 2
Articles of Incorporation............................... 2
Bylaws.................................................. 2
Directors and Officers.................................. 2
ARTICLE IIIMANNER OF CONVERTING SHARES....................... 3
Conversion of Shares.................................... 3
Anti-Dilution Provisions................................ 6
Shares Held by Premier or Xxxxxx Xxxxxxxx............... 6
Conversion of Stock Options; Restricted Stock........... 6
Dissenting Shareholders................................. 7
Fractional Shares....................................... 7
ARTICLE IVEXCHANGE OF SHARES................................. 7
Exchange Procedures..................................... 7
Rights of Former Xxxxxx Xxxxxxxx Shareholders........... 8
ARTICLE VREPRESENTATIONS AND WARRANTIESOF XXXXXX XXXXXXXX.... 9
Organization, Standing, and Power....................... 9
Authority; No Breach By Agreement....................... 9
Common Stock............................................ 10
Xxxxxx Xxxxxxxx Subsidiaries............................ 10
Financial Statements.................................... 11
Absence of Undisclosed Liabilities...................... 11
Absence of Certain Changes or Events.................... 12
Tax Matters............................................. 12
Allowance for Possible Loan Losses...................... 13
Assets.................................................. 13
Environmental Matters................................... 14
Compliance with Laws.................................... 14
Labor Relations......................................... 15
Employee Benefit Plans.................................. 15
Material Contracts...................................... 17
Legal Proceedings....................................... 17
Reports................................................. 18
Statements True and Correct............................. 18
Accounting, Tax and Regulatory Matters.................. 19
Charter Provisions...................................... 19
ARTICLE VIREPRESENTATIONS AND WARRANTIES OF PREMIER.......... 19
Organization, Standing, and Power....................... 19
Authority; No Breach By Agreement....................... 19
Capital Stock........................................... 20
Premier Subsidiaries.................................... 21
Financial Statements.................................... 21
Absence of Undisclosed Liabilities...................... 22
Absence of Certain Changes or Events.................... 22
Tax Matters............................................. 22
Allowance for Possible Loan Losses...................... 23
Assets.................................................. 23
Environmental Matters................................... 24
Compliance with Laws.................................... 24
Labor Relations......................................... 25
Employee Benefit Plans.................................. 25
Material Contracts...................................... 27
Legal Proceedings....................................... 27
Reports................................................. 27
Statements True and Correct............................. 28
Accounting, Tax and Regulatory Matters.................. 28
Charter Provisions...................................... 29
ARTICLE VIICONDUCT OF BUSINESS PENDING CONSUMMATION.......... 29
Affirmative Covenants of Xxxxxx Xxxxxxxx................ 29
Negative Covenants of Xxxxxx Xxxxxxxx................... 29
Affirmative Covenants of Premier........................ 31
Negative Covenants of Premier........................... 32
Adverse Changes in Condition............................ 33
Reports................................................. 33
ARTICLE VIIIADDITIONAL AGREEMENTS............................ 33
Registration Statement; Proxy Statement; Shareholder
Approval........................................... 33
Exchange Listing........................................ 34
Applications............................................ 34
Filings with State Offices.............................. 34
Agreement as to Efforts to Consummate................... 34
Investigation and Confidentiality....................... 35
Press Releases.......................................... 35
Acquisition Proposals................................... 36
Accounting and Tax Treatment............................ 36
Agreement of Affiliates................................. 36
Employee Benefits and Contracts......................... 37
Merger of Gwinnett County Bank and Premier Bank......... 37
Indemnification......................................... 37
ARTICLE IXCONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE.. 38
Conditions to Obligations of Each Party................. 38
Conditions to Obligations of Premier.................... 40
Conditions to Obligations of Xxxxxx Xxxxxxxx............ 41
ARTICLE XTERMINATION......................................... 43
Termination............................................. 43
Effect of Termination................................... 44
Non-Survival of Representations and Covenants........... 44
ARTICLE XIMISCELLANEOUS...................................... 44
Definitions............................................. 44
Expenses................................................ 52
Brokers and Finders..................................... 52
Entire Agreement........................................ 53
Amendments.............................................. 53
Waivers................................................. 53
Assignment.............................................. 54
Notices................................................. 54
Governing Law........................................... 55
Counterparts............................................ 55
Captions................................................ 55
Enforcement of Agreement................................ 55
Severability............................................ 55
LIST OF EXHIBITS
----------------
Exhibit Number Description
-------------- -----------
1. Form of Agreement of Affiliates of Xxxxxx
Xxxxxxxx. (Section 8.10).
2. Matters as to which Counsel for Xxxxxx
Xxxxxxxx will opine. (Section 9.2(d)).
3. Form of Claims/Indemnification Letter
(Section 9.2(e)).
4. Matters as to which Counsel for Premier will
opine. (Section 9.3(d)).
5. Form of Employment Agreement between Premier,
Premier Bank and Xxxxx X. Xxxxx. (Section
8.11(b)).
6. Form of Employment Agreement between Premier,
Premier Bank and Xxxxxx X. Xxxxxxxxx. (Section
8.11(b)).
7. Form of Severance Pay Agreement, Premier Bank
and Xxxx X. Xxxxxxxxx. (Section 8.11(b)).
8. Form of Severance Pay Agreement between
Premier, Premier Bank and Xxxxx X. Xxxxxx.
(Section 8.11(b)).
9. Form of Severance Pay Agreement between
Premier, Premier Bank and Xxxxxxx X. Xxxxxx.
(Section 8.11(b)).
AGREEMENT AND PLAN OF REORGANIZATION
------------------------------------
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement")
is made and entered into as of February 5, 1998 by and between
PREMIER BANCSHARES, INC. ("Premier"), a corporation organized and
existing under the laws of the State of Georgia, with its
principal office located in Atlanta, Georgia, and XXXXXX XXXXXXXX
FINANCIAL CORPORATION ("Xxxxxx Xxxxxxxx"), a corporation
organized and existing under the laws of the State of Georgia,
with its principal office located in Snellville, Georgia.
Preamble
--------
The Boards of Directors of Premier and Xxxxxx Xxxxxxxx are
of the opinion that the transactions described herein are in the
best interests of the parties and their respective shareholders.
This Agreement provides for the merger of Xxxxxx Xxxxxxxx with
and into Premier, with Premier being the surviving corporation of
the merger. At the effective time of such merger, the
outstanding shares of capital stock of Xxxxxx Xxxxxxxx will be
converted into the right to receive shares of capital stock of
the surviving corporation. As a result, shareholders of Xxxxxx
Xxxxxxxx will become shareholders of the surviving corporation,
and the subsidiary of Xxxxxx Xxxxxxxx will continue to conduct
its business and operations as a wholly-owned subsidiary of the
surviving corporation. The transactions described in this
Agreement are subject to the approvals of the Boards of Directors
and the shareholders of both Xxxxxx Xxxxxxxx and Premier, the
Board of Governors of the Federal Reserve System, the Georgia
Department of Banking and Finance and the satisfaction of certain
other conditions described in this Agreement. It is the
intention of the parties to this Agreement that the merger (i)
for federal income tax purposes shall qualify as a
"reorganization" within the meaning of Section 368(a) of the
Internal Revenue Code and (ii) for accounting purposes shall be
accounted for as a "pooling of interests."
Certain terms used in this Agreement are defined in Section
11.1 of this Agreement.
NOW, THEREFORE, in consideration of the above and the mutual
warranties, representations, covenants and agreements set forth
herein, the receipt and legal sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
TRANSACTIONS AND TERMS OF MERGER
--------------------------------
I.1 Merger. Subject to the terms and conditions of this
Agreement, at the Effective Time, Xxxxxx Xxxxxxxx shall be
merged with and into Premier in accordance with the provisions of
Section 14-2-1101 of the GBCC and with the effect provided in
Section 14-2-1106 of the GBCC (the "Merger"). Premier shall be
the Surviving Corporation resulting from the Merger. The Merger
shall be consummated pursuant to the terms of this Agreement,
which has been approved and adopted by the respective Boards of
Directors of Premier and Xxxxxx Xxxxxxxx.
I.2 Time and Place of Closing. The Closing will take place
at 10:00 a.m. on the date that the Effective Time occurs (or the
immediately preceding day if the Effective Time is earlier than
10:00 a.m.), or at such other time as the Parties, acting through
their chief executive officers may mutually agree. The place of
Closing shall be at the offices of Xxxxxx Xxxxxxx Xxxxxxxxx &
Xxxx, PLLC, Atlanta, Georgia, or such other place as may be
mutually agreed upon by the Parties.
I.3 Effective Time. The Merger and the other transactions
contemplated by this Agreement shall become effective on the date
and at the time the Articles of Merger reflecting the Merger
shall become effective with the Secretary of State of the State
of Georgia (the "Effective Time"). Subject to the terms and
conditions hereof, unless otherwise mutually agreed upon in
writing by the chief executive officer of each Party, the Parties
shall use their reasonable efforts to cause the Effective Time to
occur on the last business day of the month in which occurs the
last to occur of (a) the effective date (including expiration of
any applicable waiting period) of the last required Consent of
any Regulatory Authority having authority over and approving or
exempting the Merger, (b) the date on which the shareholders of
Xxxxxx Xxxxxxxx approve this Agreement to the extent such
approval is required by applicable Law, and (c) the date on which
the shareholders of Premier approve this Agreement to the extent
such approval is required by applicable Law; or such later date
as may be mutually agreed upon in writing by the chief executive
officer of each Party.
ARTICLE II
TERMS OF MERGER
---------------
II.1 Articles of Incorporation. The Articles of
Incorporation of Premier in effect immediately prior to the
Effective Time shall be the Articles of Incorporation of the
Surviving Corporation from and after the Effective Time until
otherwise amended or repealed.
II.2 Bylaws. The Bylaws of Premier in effect immediately
prior to the Effective Time shall be the Bylaws of the Surviving
Corporation from and after the Effective Time until otherwise
amended or repealed.
II.3 Directors and Officers.
(a) The directors of the Surviving Corporation from
and after the Effective Time shall consist of the directors of
Premier immediately preceding the Effective Time, provided,
however, that Xxxxx X. Xxxxx and Xxxx X. Xxxxxxxx shall be
elected to serve on the Board of Directors of the Surviving
Corporation from and after the Effective Time. Such directors
shall serve as the directors of the Surviving Corporation in
accordance with the Articles of Incorporation and Bylaws of the
Surviving Corporation. Xxxx X. Xxxxxxxx shall also be appointed
to serve on the Executive Committee of the Board of Directors of
the Surviving Corporation from and after the Effective Time.
(b) The officers of the Surviving Corporation from and
after the Effective Time shall consist of the officers of Premier
immediately preceding the Effective Time, provided, however, that
Xxxxx X. Xxxxx shall be appointed to serve as Executive Vice
President of the Surviving Corporation from and after the
Effective Time.
(c) The directors of Premier Bank from and after the
Effective Time shall consist of the directors of Premier Bank
immediately preceding the Effective Time, provided, however, that
Xxxxx X. Xxxxx shall be elected to serve on the Board of
Directors of Premier Bank from and after the Effective Time, and
two (2) additional directors of Xxxxxx Xxxxxxxx immediately
preceding the Effective Time shall be selected by the Board of
Directors of Premier, in its sole discretion, to serve on the
Board of Directors of Premier Bank from and after the Effective
Time. Such directors shall serve in accordance with the Articles
of Incorporation and Bylaws of Premier Bank.
(d) The executive officers of Premier Bank from and
after the Effective Time shall consist of the executive officers
of Premier Bank immediately preceding the Effective Time,
provided, however, that (i) Xxxxx X. Xxxxx shall be appointed to
serve as President of Premier Bank from and after the Effective
Time; and (ii) Xxxxxx X. Xxxxxxxxx shall be appointed to serve as
an Executive Vice President of Premier Bank from and after the
Effective Time.
(e) The directors and officers of Gwinnett County Bank
from and after the Effective Time shall consist of the directors
and officers of The Bank of Gwinnett County immediately preceding
the Effective Time, provided, however, that Xxxxxxx X. Xxxxxxx
and Xxxxxx X. Xxxxxx shall be elected to serve on the Board of
Directors of The Bank of Gwinnett County from and after the
Effective Time.
(f) The directors and officers of Premier Lending from
and after the Effective Time shall consist of the directors and
officers of Premier Lending immediately preceding the Effective
Time, provided, however, that Xxxxxx X. Xxxxxxxxx shall be
elected to serve on the Board of Directors of Premier Lending
from and after the Effective Time.
ARTICLE III
MANNER OF CONVERTING SHARES
---------------------------
III.1 Conversion of Shares. Subject to the provisions
of this Article 3, at the Effective Time, by virtue of the Merger
and without any action on the part of the holders thereof, the
shares of the constituent corporations shall be converted as
follows:
(a) Each share of Premier Common Stock issued and
outstanding immediately prior to the Effective Time shall remain
issued and outstanding from and after the Effective Time.
(b) Each share of Xxxxxx Xxxxxxxx Common Stock
(excluding shares held by Premier or Xxxxxx Xxxxxxxx or any of
their respective Subsidiaries, in each case other than in a
fiduciary capacity or as a result of debts previously contracted)
issued and outstanding at the Effective Time shall cease to be
outstanding and shall be converted into and exchanged for the
right to receive 3.885 shares of Surviving Corporation Common
Stock, subject to possible adjustment as provided in Section
3.1(c) (the "Exchange Ratio"):
(c) The Exchange Ratio shall be adjusted in the event
both of the following conditions are satisfied:
(1) the Average Closing Price shall be less
than the product of (i) 0.90 and (ii)
the Starting Price; and
(2) (i) the quotient obtained by dividing
the Average Closing Price by the
Starting Price (such number being
referred to herein as the "Premier
Ratio") shall be less than (ii) the
quotient obtained by dividing the Index
Price on the Determination Date by the
Index Price on the Starting Date and
subtracting .05 from the quotient in
this clause 2(ii) (such number being
referred to herein as the "Index
Ratio").
In the event both of the above conditions are satisfied, the
Exchange Ratio shall be increased to equal the lesser of (i)
quotient obtained by dividing (1) the product of 0.90, the
Starting Price, and the Exchange Ratio by (2) the Average Closing
Price and (ii) the quotient obtained by dividing (1) the product
of the Index Ratio and the Exchange Ratio by (2) the Premier
Ratio. Following any such adjustment to the Exchange Ratio as
provided in this Section 3.1(c), any references in this Agreement
to the "Exchange Ratio" shall thereafter be deemed to refer to
the "Exchange Ratio" as so adjusted. The provisions of this
Section 3.1(c) are subject to the provisions of Section 10.1(g).
For purposes of this Section 3.1(c) and Section 10.1(g), the
following terms shall have the meanings indicated.
"Average Closing Price" shall mean the average of the
last sales prices of Premier Common Stock as reported on the
American Stock Exchange (as reported by The Wall Street
Journal or, if not reported thereby, any other authoritative
source) for the 10 consecutive full trading days in which
such shares are traded on the American Stock Exchange ending
at the close of trading on the Determination Date.
"Determination Date" shall mean the date on which the
Registration Statement is declared effective by the SEC.
"Index Group" shall mean the 17 bank holding companies
listed below, the common stocks of all of which shall be
publicly traded and as to which there shall not have been,
since the Starting Date and before the Determination Date,
any public announcement of a proposal for such to be
acquired or for such company to acquire another company or
companies in transactions with a value exceeding 25% of the
acquiror's market capitalization. In the event that any
such company or companies are removed from the Index Group,
the weights (which shall be determined based upon the number
of outstanding shares of common stock) shall be
redistributed proportionately for purposes of determining
the Index Price. The 17 bank holding companies and the
weights attributed to them are as follows:
Bank Holding Companies Weighting
---------------------- ---------
AmSouth Bancorporation 3.93%
BB&T Corporation 7.14%
Compass Bancshares, Inc. 2.58%
Fifth Third Bancorp 10.71%
First American Corporation 2.38%
First Security Corporation 3.66%
First Tennessee National Corporation 3.42%
First Xxxxxxxx Xxxxx, Inc. 2.16%
Hibernia Corporation 2.28%
Huntington Bancshares, Inc. 5.84%
Mercantile Bancorporation, Inc. 5.96%
SouthTrust Corporation 5.44%
Star Banc Corporation 4.26%
Summit Bancorp 7.95%
SunTrust Banks, Inc. 13.29%
Union Planters Corporation 4.61%
Wachovia Corporation 14.39%
------
Total 100.00%
-------
"Index Price" on a given date shall mean the weighted
average (weighted in accordance with the factors listed
above) of the last sale prices of the companies composing
the Index Group.
"Starting Date" with regard to the Index Price shall
mean the second full trading day after the announcement by
Premier in a press release of the Merger.
"Starting Price" shall mean $19.42, which reflects the
three-for-two stock split of the Premier Common Stock, the
record date of which was January 23, 1998.
If any company belonging to the Index Group declares or
effects a stock dividend, reclassification, recapitalization,
stock-split, combination, exchange of shares, or similar
transaction between the date of this Agreement and the
Determination Date, the prices for the common stock of such
company shall be appropriately adjusted for the purposes of
applying this Section 3.1(c).
III.2 Anti-Dilution Provisions. In the event Premier or
Xxxxxx Xxxxxxxx changes the number of shares of Premier Common
Stock or Xxxxxx Xxxxxxxx Common Stock, respectively, issued and
outstanding prior to the Effective Time as a result of a stock
split, stock dividend or similar recapitalization with respect to
such stock and the record date therefor (in the case of a stock
dividend) or the effective date therefor (in the case of a stock
split or similar recapitalization) shall be after the date hereof
and prior to the Effective Time, the Exchange Ratio shall be
proportionately adjusted.
III.3 Shares Held by Premier or Xxxxxx Xxxxxxxx. Each
of the shares of Xxxxxx Xxxxxxxx Common Stock held by any Premier
Company or by any Xxxxxx Xxxxxxxx Company, in each case other
than in a fiduciary capacity or as a result of debts previously
contracted, shall be canceled and retired at the Effective Time
and no consideration shall be issued in exchange therefor.
III.4 Conversion of Stock Options; Restricted Stock.
(a) At the Effective Time, all rights with respect to
Xxxxxx Xxxxxxxx Common Stock pursuant to stock options granted by
Xxxxxx Xxxxxxxx under the Xxxxxx Xxxxxxxx Stock Plans ("Xxxxxx
Xxxxxxxx Options"), which are outstanding at the Effective Time,
whether or not exercisable, shall be converted into and become
rights with respect to Surviving Corporation Common Stock, and
the Surviving Corporation shall assume each Xxxxxx Xxxxxxxx
Option, in accordance with the terms of the Xxxxxx Xxxxxxxx Stock
Plan and stock option agreement by which it is evidenced. From
and after the Effective Time, (i) each Xxxxxx Xxxxxxxx Option
assumed by the Surviving Corporation may be exercised solely for
shares of Surviving Corporation Common Stock, (ii) the number of
shares of Surviving Corporation Common Stock subject to such
Xxxxxx Xxxxxxxx Option shall be equal to the number of shares of
Xxxxxx Xxxxxxxx Common Stock subject to such Xxxxxx Xxxxxxxx
Option immediately prior to the Effective Time multiplied by the
Exchange Ratio, (iii) the per share exercise price under each
such Xxxxxx Xxxxxxxx Option shall be adjusted to reflect the
Exchange Ratio, and (iv) the shares of Surviving Corporation
Common Stock underlying each Xxxxxx Xxxxxxxx Option shall remain
registered under the Securities Act. It is intended that the
foregoing assumption shall be undertaken in a manner that will
not constitute a "modification" as defined in Section 424 of the
Internal Revenue Code, as to any stock option which is an
"incentive stock option." Xxxxxx Xxxxxxxx and Premier agree to
take all necessary steps to effect the provisions of this Section
3.4.
(b) Premier may, at its election, substitute, as of
the Effective Time, stock options under the Premier Bancshares,
Inc. 1997 Stock Option Plan (the "Premier Stock Option Plan") for
all or a part of the Xxxxxx Xxxxxxxx Options, subject to the
following conditions: (i) the requirements of Section 3.4(a)
shall be met; (ii) such substitution shall not constitute a
modification, extension or renewal of any of the Xxxxxx Xxxxxxxx
Options which are incentive stock options; (iii) the substituted
options shall continue in effect in all material respects on the
same terms and conditions as contained in the document granting
the Xxxxxx Xxxxxxxx Options; and (iv) each grant of a substitute
option to any individual who shall be deemed subject to Section
16 of the 1934 Act shall have been specifically approved in
advance by the full Board of Directors of Premier or by a
committee consisting solely of "non-employee" directors as
defined in Rule 16b-3. As soon as practicable following the
Effective Time, Premier shall deliver to the participants
receiving substitute options under the Premier Stock Option Plan
an appropriate notice setting forth such participant's rights
pursuant thereto. Premier has reserved under the Premier Stock
Option Plan adequate shares of Premier Common Stock for delivery
upon exercise of any such substituted options.
III.5 Dissenting Shareholders.Any holder of shares of
Xxxxxx Xxxxxxxx Common Stock who perfects such holder's
dissenters' rights of appraisal in accordance with and as
contemplated by Section 14-2-1106 of the GBCC shall be entitled
to receive the value of such shares in cash as determined
pursuant to such provision of the GBCC; 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 GBCC and has surrendered to Xxxxxx
Xxxxxxxx the certificate or certificates representing shares for
which payment is being made. In the event that after the
Effective Time a dissenting shareholder of Xxxxxx Xxxxxxxx fails
to perfect, or effectively withdraws or loses, such holder's
right to appraisal and of payment for such holder's shares, the
Surviving Corporation shall issue and deliver the consideration
to which such holder of shares of Xxxxxx Xxxxxxxx Common Stock is
entitled under this Article III (without interest) upon surrender
by such holder of the certificate or certificates representing
shares of Xxxxxx Xxxxxxxx Common Stock held by such holder.
III.6 Fractional Shares.Notwithstanding any other provision
of this Agreement, each holder of shares of Xxxxxx Xxxxxxxx
Common Stock exchanged pursuant to the Merger, or of options to
purchase shares of Xxxxxx Xxxxxxxx Common Stock, who would
otherwise have been entitled to receive a fraction of a share of
Surviving Corporation Common Stock (after taking into account all
certificates delivered by such holder) shall receive, in lieu
thereof, cash (without interest) in an amount equal to such
fractional part of a share of Surviving Corporation Common Stock
multiplied by the market value of one share of Surviving
Corporation Common Stock at the Effective Time, in the case of
shares exchanged pursuant to the Merger, or the date of exercise,
in the case of options. The market value of one share of
Surviving Corporation Common Stock at the Effective Time or the
date of exercise, as the case may be, shall be the last sale
price of such common stock on the American Stock Exchange (as
reported by The Wall Street Journal or, if not reported thereby,
any other authoritative source) on the last trading day preceding
the Effective Time or the date of exercise, as the case may be.
No such holder will be entitled to dividends, voting rights, or
any other rights as a stockholder in respect of any fractional
shares.
ARTICLE IV
EXCHANGE OF SHARES
------------------
IV.1 Exchange Procedures. Unless the parties otherwise
agree, the Surviving Corporation shall use its best efforts to
mail to the former holders of Xxxxxx Xxxxxxxx Common Stock
appropriate transmittal materials within two (2) weeks after the
Effective Time which shall specify that delivery shall be
effected, and risk of loss and title to the certificates
theretofore representing shares of Xxxxxx Xxxxxxxx Common Stock
shall pass, only upon proper delivery of such certificates to the
Surviving Corporation. After the Effective Time, each holder of
shares of Xxxxxx Xxxxxxxx Common Stock (other than shares to be
canceled pursuant to Section 3.3 of this Agreement or shares as
to which dissenters' rights have been perfected as provided in
Section 3.5 of this Agreement) issued and outstanding at the
Effective Time shall surrender the certificate or certificates
representing such shares to the Surviving Corporation and shall
promptly upon surrender thereof receive in exchange therefor the
consideration provided in Section 3.1 and 3.6 of this Agreement,
together with all undelivered dividends or distributions in
respect of such shares (without interest thereon) pursuant to
Section 4.2 of this Agreement. The Surviving Corporation shall
not be obligated to deliver the consideration to which any former
holder of Xxxxxx Xxxxxxxx Common Stock is entitled as a result of
the Merger until such holder surrenders his or her certificate or
certificates representing the shares of Xxxxxx Xxxxxxxx Common
Stock for exchange as provided in this Section 4.1. The
certificate or certificates of Xxxxxx Xxxxxxxx Common Stock so
surrendered shall be duly endorsed as the Surviving Corporation
may require. Any other provision of this Agreement
notwithstanding, the Surviving Corporation shall not be liable to
a holder of Xxxxxx Xxxxxxxx Common Stock for any amounts paid or
property delivered in good faith to a public official pursuant to
any applicable abandoned property Law.
IV.2 Rights of Former Xxxxxx Xxxxxxxx Shareholders. The
stock transfer books of Xxxxxx Xxxxxxxx shall be closed as to
holders of Xxxxxx Xxxxxxxx Common Stock immediately prior to the
Effective Time and no transfer of Xxxxxx Xxxxxxxx Common Stock by
any such holder shall thereafter be made or recognized. Until
surrendered for exchange in accordance with the provisions of
Section 4.1 of this Agreement, each certificate theretofore
representing shares of Xxxxxx Xxxxxxxx Common Stock (other than
shares to be canceled pursuant to Section 3.3 or shares as to
which dissenters' rights have been perfected as provided in
Section 3.5 of this Agreement) shall from and after the Effective
Time represent for all purposes only the right to receive the
consideration provided in Section 3.1 and 3.6 of this Agreement
in exchange therefor. To the extent permitted by Law, former
holders of record of Xxxxxx Xxxxxxxx Common Stock shall be
entitled to vote after the Effective Time at any meeting of
Surviving Corporation shareholders the number of whole shares of
Surviving Corporation Common Stock into which their respective
shares of Xxxxxx Xxxxxxxx Common Stock are converted, regardless
of whether such holders have exchanged their certificates
representing Xxxxxx Xxxxxxxx Common Stock for certificates
representing Surviving Corporation Common Stock in accordance
with the provisions of this Agreement. Whenever a dividend or
other distribution is declared by the Surviving Corporation on
the Surviving Corporation Common Stock, the record date for which
is at or after the Effective Time, the declaration shall include
dividends or other distributions on all shares issuable pursuant
to this Agreement, but no dividend or other distribution payable
to the holders of record of Surviving Corporation Common Stock as
of any time subsequent to the Effective Time shall be delivered
to the holder of any certificate representing shares of Xxxxxx
Xxxxxxxx Common Stock issued and outstanding at the Effective
Time until such holder surrenders such certificate for exchange
as provided in Section 4.1 of this Agreement. However, upon
surrender of such Xxxxxx Xxxxxxxx Common Stock certificate, both
the Surviving Corporation Common Stock certificate (together with
all such undelivered dividends or other distributions without
interest) and any undelivered cash payments to be paid for
fractional share interests (without interest) shall be delivered
and paid with respect to each share represented by such
certificate.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
------------------------------
OF XXXXXX XXXXXXXX
------------------
Xxxxxx Xxxxxxxx hereby represents and warrants to Premier as
follows:
V.1 Organization, Standing, and Power. Xxxxxx Xxxxxxxx is
a corporation duly organized, validly existing, and in good
standing under the Laws of the State of Georgia and is duly
registered as a bank holding company under the BHC Act. Xxxxxx
Xxxxxxxx has the corporate power and authority to carry on its
business as now conducted and to own, lease and operate its
Assets. Xxxxxx Xxxxxxxx is duly qualified or licensed to
transact business as a foreign corporation in good standing in
the States of the United States and foreign jurisdictions where
the character of its Assets or the nature or conduct of its
business requires it to be so qualified or licensed, except for
such jurisdictions in which the failure to be so qualified or
licensed is not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Xxxxxx Xxxxxxxx.
V.2 Authority; No Breach By Agreement.
(a) Xxxxxx Xxxxxxxx has the corporate power and
authority necessary to execute, deliver and perform its
obligations under this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and
performance of this Agreement and the consummation of the
transactions contemplated herein, including the Merger, have been
duly and validly authorized by all necessary corporate action in
respect thereof on the part of Xxxxxx Xxxxxxxx, subject to the
approval of this Agreement by the holders of a majority of the
outstanding shares of Xxxxxx Xxxxxxxx Common Stock, which is the
only shareholder vote required for approval of this Agreement and
consummation of the Merger by Xxxxxx Xxxxxxxx. Subject to such
requisite shareholder approval, this Agreement represents a
legal, valid and binding obligation of Xxxxxx Xxxxxxxx,
enforceable against Xxxxxx Xxxxxxxx in accordance with its terms
(except in all cases as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or
similar Laws affecting the enforcement of creditors' rights
generally and except that the availability of the equitable
remedy of specific performance or injunctive relief is subject to
the discretion of the court before which any proceeding may be
brought).
(b) Neither the execution and delivery of this
Agreement by Xxxxxx Xxxxxxxx, nor the consummation by Xxxxxx
Xxxxxxxx of the transactions contemplated hereby, nor compliance
by Xxxxxx Xxxxxxxx with any of the provisions hereof will (i)
conflict with or result in a breach of any provision of Xxxxxx
Xxxxxxxx'x Articles of Incorporation or Bylaws, or (ii)
constitute or result in a Default under, or require any Consent
pursuant to, or result in the creation of any Lien on any Asset
of any Xxxxxx Xxxxxxxx Company under, any Contract or Permit of
any Xxxxxx Xxxxxxxx Company, where such Default or Lien, or any
failure to obtain such Consent, is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on
Xxxxxx Xxxxxxxx, or (iii) subject to receipt of the requisite
approvals referred to in Section 9.1 (b) of this Agreement,
violate any Law or Order applicable to any Xxxxxx Xxxxxxxx
Company or any of their respective Assets.
(c) Other than in connection or compliance with the
provisions of the Securities Laws, applicable state corporate and
securities Laws, and rules of the NASD, and other than Consents
required from Regulatory Authorities, and other than notices to
or filings with the Internal Revenue Service or the Pension
Benefit Guaranty Corporation with respect to any employee benefit
plans, and other than Consents, filings or notifications which,
if not obtained or made, are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on
Xxxxxx Xxxxxxxx, no notice to, filing with, or Consent of any
public body or authority is necessary for the consummation by
Xxxxxx Xxxxxxxx of the Merger and the other transactions
contemplated in this Agreement.
V.3 Common Stock.
(a) The authorized common stock of Xxxxxx Xxxxxxxx
consists of 5,000,000 shares of Xxxxxx Xxxxxxxx Common Stock, of
which 1,432,477 shares are issued and outstanding as of the date
of this Agreement and not more than 1,555,286 shares will be
issued and outstanding at the Effective Time (as a result of the
exercise of outstanding options). All of the issued and
outstanding shares of capital stock of Xxxxxx Xxxxxxxx are duly
and validly issued and outstanding and are fully paid and
nonassessable under the GBCC. None of the outstanding shares of
capital stock of Xxxxxx Xxxxxxxx has been issued in violation of
any preemptive rights of the current or past shareholders of
Xxxxxx Xxxxxxxx. Xxxxxx Xxxxxxxx has reserved ___________ shares
of Xxxxxx Xxxxxxxx Common Stock for issuance under the Xxxxxx
Xxxxxxxx Stock Plans, pursuant to which options to purchase not
more than 122,809 shares of Xxxxxx Xxxxxxxx Common Stock are
outstanding as of the date of this Agreement and not more than
122,809 will be outstanding at the Effective Time.
(b) The authorized preferred stock of Xxxxxx Xxxxxxxx
consists of 5,000,000 shares of Xxxxxx Xxxxxxxx $.01 par value
preferred stock none of which are issued and outstanding.
(c) Except as set forth in Section 5.3(a) of this
Agreement, or as disclosed in Section 5.3 of the Xxxxxx Xxxxxxxx
Disclosure Memorandum, there are no shares of capital stock or
other equity securities of Xxxxxx Xxxxxxxx outstanding and no
outstanding Rights relating to the capital stock of Xxxxxx
Xxxxxxxx.
V.4 Xxxxxx Xxxxxxxx Subsidiaries. Xxxxxx Xxxxxxxx has
disclosed in Section 5.4 of the Xxxxxx Xxxxxxxx Disclosure
Memorandum all of the Xxxxxx Xxxxxxxx Subsidiaries as of the date
of this Agreement. Except as disclosed in Section 5.4 of the
Xxxxxx Xxxxxxxx Disclosure Memorandum, Xxxxxx Xxxxxxxx or one of
its Subsidiaries owns all of the issued and outstanding shares of
capital stock of each Xxxxxx Xxxxxxxx Subsidiary. No equity
securities of any Xxxxxx Xxxxxxxx Subsidiary are or may become
required to be issued (other than to another Xxxxxx Xxxxxxxx
Company) by reason of any Rights, and there are no Contracts by
which any Xxxxxx Xxxxxxxx Subsidiary is bound to issue (other
than to another Xxxxxx Xxxxxxxx Company) additional shares of its
capital stock or Rights, or by which any Xxxxxx Xxxxxxxx Company
is or may be bound to transfer any shares of the capital stock of
any Xxxxxx Xxxxxxxx Subsidiary (other than to another Xxxxxx
Xxxxxxxx Company). There are no Contracts relating to the rights
of any Xxxxxx Xxxxxxxx Company to vote or to dispose of any
shares of the capital stock of any Xxxxxx Xxxxxxxx Subsidiary.
All of the shares of capital stock of each Xxxxxx Xxxxxxxx
Subsidiary held by a Xxxxxx Xxxxxxxx Company are fully paid and
nonassessable under the applicable Law of the jurisdiction in
which such Subsidiary is incorporated or organized and are owned
by a Xxxxxx Xxxxxxxx Company free and clear of any Lien. Each
Xxxxxx Xxxxxxxx Subsidiary is either a bank, a savings
association or a corporation and is duly organized, validly
existing, and (as to corporations) in good standing under the
Laws of the jurisdiction in which it is organized and has the
corporate power and authority necessary for it to own, lease and
operate its Assets and to carry on its business as now conducted.
Each Xxxxxx Xxxxxxxx Subsidiary is duly qualified or licensed to
transact business as a foreign corporation in good standing in
the States of the United States and foreign jurisdictions where
the character of its Assets or the nature or conduct of its
business requires it to be so qualified or licensed, except for
such jurisdictions in which the failure to be so qualified or
licensed is not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Xxxxxx Xxxxxxxx. Each
Xxxxxx Xxxxxxxx Subsidiary that is a depository institution is an
"insured institution" as defined in the Federal Deposit Insurance
Act and applicable regulations thereunder, and the deposits in
which are insured by the Bank Insurance Fund or the Savings
Association Insurance Fund, as appropriate.
V.5 Financial Statements. Xxxxxx Xxxxxxxx has included in
Section 5.5 of the Xxxxxx Xxxxxxxx Disclosure Memorandum copies
of all Xxxxxx Xxxxxxxx Financial Statements for periods ended
prior to the date hereof and will deliver to Premier copies of
all Xxxxxx Xxxxxxxx Financial Statements prepared subsequent to
the date hereof. The Xxxxxx Xxxxxxxx Financial Statements (as of
the dates thereof and for the periods covered thereby) (a) are,
or if dated after the date of this Agreement will be, in
accordance with the books and records of the Xxxxxx Xxxxxxxx
Companies, which are or will be, as the case may be, complete and
correct and which have been or will have been, as the case may
be, maintained in accordance with good business practices, and
(b) present or will present, as the case may be, fairly the
consolidated financial position of the Xxxxxx Xxxxxxxx Companies
as of the dates indicated and the consolidated results of
operations, changes in shareholders' equity, and cash flows of
Xxxxxx Xxxxxxxx Companies for the periods indicated, in
accordance with GAAP (subject to any exceptions as to consistency
specified therein or as may be indicated in the notes thereto or,
in the case of interim financial statements, to normal recurring
year-end adjustments that are not material in amount or effect).
V.6 Absence of Undisclosed Liabilities. No Xxxxxx Xxxxxxxx
Company has any Liabilities that are reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on
Xxxxxx Xxxxxxxx except Liabilities which are accrued or reserved
against in the consolidated balance sheets of Xxxxxx Xxxxxxxx as
of December 31, 1996 and December 31, 1997, included in Xxxxxx
Xxxxxxxx Financial Statements or reflected in the notes thereto.
No Xxxxxx Xxxxxxxx Company has incurred or paid any Liability
since December 31, 1997, except for such Liabilities incurred or
paid in the ordinary course of business consistent with past
business practice and which are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on
Xxxxxx Xxxxxxxx.
V.7 Absence of Certain Changes or Events. Since December
31, 1997, except as disclosed in Section 5.7 of the Xxxxxx
Xxxxxxxx Disclosure Memorandum, (a) there have been no events,
changes or occurrences which have had, or are reasonably likely
to have, individually or in the aggregate, a Material Adverse
Effect on Xxxxxx Xxxxxxxx, and (b) the Xxxxxx Xxxxxxxx Companies
have not taken any action, or failed to take any action, prior to
the date of this Agreement, which action or failure, if taken
after the date of this Agreement, would represent or result in a
material breach or violation of any of the covenants and
agreements of Xxxxxx Xxxxxxxx provided in Article VII of this
Agreement.
V.8 Tax Matters.
(a) All Tax returns required to be filed by or on
behalf of any of the Xxxxxx Xxxxxxxx Companies have been timely
filed or requests for extensions have been timely filed, granted,
and have not expired, except to the extent that all such failures
to file, taken together, are not reasonably likely to have a
Material Adverse Effect on Xxxxxx Xxxxxxxx and all returns filed
are complete and accurate to the Knowledge of Xxxxxx Xxxxxxxx.
All Taxes shown on filed returns have been paid. As of the date
of this Agreement, there is no audit examination, deficiency or
refund Litigation with respect to any Taxes that is reasonably
likely to result in a determination that would have,
individually or in the aggregate, a Material Adverse Effect on
Xxxxxx Xxxxxxxx, except as reserved against in the Xxxxxx
Xxxxxxxx Financial Statements delivered prior to the date of this
Agreement or as disclosed in Section 5.8(a) of the Xxxxxx
Xxxxxxxx Disclosure Memorandum. All Taxes and other Liabilities
due with respect to completed and settled examinations or
concluded Litigation have been paid.
(b) Except as disclosed in Section 5.8(b) of the
Xxxxxx Xxxxxxxx Disclosure Memorandum, none of the Xxxxxx
Xxxxxxxx Companies has executed an extension or waiver of any
statute of limitations on the assessment or collection of any Tax
due that is currently in effect, and no unpaid tax deficiency has
been asserted in writing against or with respect to any Xxxxxx
Xxxxxxxx Company, which deficiency is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on
Xxxxxx Xxxxxxxx.
(c) Adequate provision for any Taxes due or to become
due for any of the Xxxxxx Xxxxxxxx Companies for the period or
periods through and including the date of the respective Xxxxxx
Xxxxxxxx Financial Statements has been made and is reflected on
such Xxxxxx Xxxxxxxx Financial Statements.
(d) Deferred Taxes of the Xxxxxx Xxxxxxxx Companies
have been provided for in accordance with GAAP.
(e) Each of the Xxxxxx Xxxxxxxx Companies is in
compliance with, and its records contain all information and
documents (including, without limitation, properly completed IRS
Forms W-9) necessary to comply with, all applicable information
reporting and Tax withholding requirements under federal, state
and local Tax Laws, and such records identify with specificity
all accounts subject to backup withholding under Section 3406 of
the Internal Revenue Code, except for such instances of
noncompliance and such omissions as are not reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect
on Xxxxxx Xxxxxxxx.
V.9 Allowance for Possible Loan Losses. The allowance for
possible loan or credit losses (the "Allowance") shown on the
consolidated balance sheets of Xxxxxx Xxxxxxxx included in the
most recent Xxxxxx Xxxxxxxx Financial Statements dated prior to
the date of this Agreement was, and the Allowance shown on the
consolidated balance sheets of Xxxxxx Xxxxxxxx included in the
Xxxxxx Xxxxxxxx Financial Statements as of dates subsequent to
the execution of this Agreement will be, as of the dates thereof,
adequate (within the meaning of GAAP and applicable regulatory
requirements or guidelines) to provide for losses relating to or
inherent in the loan and lease portfolios (including accrued
interest receivables) of the Xxxxxx Xxxxxxxx Companies and other
extensions of credit (including letters of credit and commitments
to make loans or extend credit) by the Xxxxxx Xxxxxxxx Companies
as of the dates thereof except where the failure of such
Allowance to be so adequate is not reasonably likely to have a
Material Adverse Effect on Xxxxxx Xxxxxxxx.
V.10 Assets. Except as disclosed in Section 5.10 of the
Xxxxxx Xxxxxxxx Disclosure Memorandum or as disclosed or reserved
against in the Xxxxxx Xxxxxxxx Financial Statements, the Xxxxxx
Xxxxxxxx Companies have good and marketable title, free and clear
of all Liens, to all of their respective Assets. All material
tangible properties used in the businesses of the Xxxxxx Xxxxxxxx
Companies are in good condition, reasonable wear and tear
excepted, and are usable in the ordinary course of business
consistent with Xxxxxx Xxxxxxxx'x past practices. All Assets
which are material to the business of the Xxxxxx Xxxxxxxx
Companies and held under leases or subleases by any of the Xxxxxx
Xxxxxxxx Companies are held under valid Contracts enforceable in
accordance with their respective terms (except as enforceability
may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other Laws affecting the
enforcement of creditors' rights generally and except that the
availability of the equitable remedy of specific performance or
injunctive relief is subject to the discretion of the court
before which any proceedings may be brought), and each such
Contract is in full force and effect. The policies of fire,
theft, liability and other insurance maintained with respect to
the Assets or businesses of the Xxxxxx Xxxxxxxx Companies provide
adequate coverage under current industry practices against loss
or Liability, and the fidelity and blanket bonds in effect as to
which any of the Xxxxxx Xxxxxxxx Companies is a named insured are
reasonably sufficient. The Assets of the Xxxxxx Xxxxxxxx
Companies include all assets required to operate the business of
the Xxxxxx Xxxxxxxx Companies as presently conducted.
V.11 Environmental Matters. Except as disclosed in Section
5.11 of the Xxxxxx Xxxxxxxx Disclosure Memorandum:
(a) To the Knowledge of Xxxxxx Xxxxxxxx, each Xxxxxx
Xxxxxxxx Company, its Participation Facilities and its Loan
Properties are, and have been, in compliance with all
Environmental Laws, except for noncompliance which is not
reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Xxxxxx Xxxxxxxx.
(b) There is no Litigation pending or to the Knowledge
of Xxxxxx Xxxxxxxx threatened before any court, governmental
agency or authority or other forum in which any Xxxxxx Xxxxxxxx
Company or any of its Loan Properties or Participation Facilities
has been or, with respect to threatened Litigation, may be named
as a defendant or potentially responsible party (i) for alleged
noncompliance with any Environmental Law or (ii) relating to the
Release into the Environment of any Hazardous Material (as
defined below), whether or not occurring at, on, under or
involving a site owned, leased or operated by any Xxxxxx Xxxxxxxx
Company or any of its Loan Properties or Participation
Facilities, except for such Litigation pending or threatened the
resolution of which is not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on
Xxxxxx Xxxxxxxx, and to the Knowledge of Xxxxxx Xxxxxxxx, there
is no reasonable basis for any such Litigation.
(c) To the Knowledge of Xxxxxx Xxxxxxxx, there have
been no releases of Hazardous Material in, on, under or affecting
any Participation Facility or Loan Property, except such as are
not reasonably likely to have, individually or in the aggregate,
a Material Adverse Effect on Xxxxxx Xxxxxxxx.
V.12 Compliance with Laws. Xxxxxx Xxxxxxxx is duly
registered as a bank holding company under the BHC Act. Each
Xxxxxx Xxxxxxxx Company has in effect all Permits necessary for
it to own, lease or operate its Assets and to carry on its
business as now conducted, except for those Permits the absence
of which are not reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on Xxxxxx Xxxxxxxx, and
there has occurred no Default under any such Permit, other than
Defaults which are not reasonably likely to have, individually or
in the aggregate, a Material Adverse Effect on Xxxxxx Xxxxxxxx.
Except as disclosed in Section 5.12 of the Xxxxxx Xxxxxxxx
Disclosure Memorandum, no Xxxxxx Xxxxxxxx Company:
(a) is in violation of any Laws, Orders or Permits
applicable to its business or employees conducting its business,
except for violations which are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on
Xxxxxx Xxxxxxxx; and
(b) has received any notification or communication
from any agency or department of federal, state, or local
government or any Regulatory Authority or the staff thereof (i)
asserting that any Xxxxxx Xxxxxxxx Company is not in compliance
with any of the Laws or Orders which such governmental authority
or Regulatory Authority enforces, where such noncompliance is
reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Xxxxxx Xxxxxxxx, (ii) threatening to
revoke any Permits, the revocation of which is reasonably likely
to have, individually or in the aggregate, a Material Adverse
Effect on Xxxxxx Xxxxxxxx, or (iii) requiring any Xxxxxx Xxxxxxxx
Company to enter into or consent to the issuance of a cease and
desist order, formal agreement, directive, commitment or
memorandum of understanding, or to adopt any Board resolution or
similar undertaking, which restricts materially the conduct of
its business, or in any manner relates to its capital adequacy,
its credit or reserve policies, its management, or the payment of
dividends.
V.13 Labor Relations. No Xxxxxx Xxxxxxxx Company is the
subject of any Litigation asserting that it or any other Xxxxxx
Xxxxxxxx Company has committed an unfair labor practice (within
the meaning of the National Labor Relations Act or comparable
state law) or seeking to compel it or any other Xxxxxx Xxxxxxxx
Company to bargain with any labor organization as to wages or
conditions of employment, nor is there any strike or other labor
dispute involving any Xxxxxx Xxxxxxxx Company, pending or, to its
Knowledge, threatened, nor, to its Knowledge, is there any
activity involving any Xxxxxx Xxxxxxxx Company's employees
seeking to certify a collective bargaining unit or engaging in
any other organization activity.
V.14 Employee Benefit Plans.
(a) Xxxxxx Xxxxxxxx has disclosed in Section 5.14 of
the Xxxxxx Xxxxxxxx Disclosure Memorandum and delivered or made
available to Premier prior to the execution of this Agreement
copies in each case of all pension, retirement, profit-sharing,
deferred compensation, stock option, employee stock ownership,
severance pay, vacation, bonus, or other incentive plans, all
other written employee programs, arrangements, or agreements, all
medical, vision, dental, or other health plans, all life
insurance plans, and all other employee benefit plans or fringe
benefit plans, including, without limitation, "employee benefit
plans" as that term is defined in Section 3(3) of ERISA,
currently adopted, maintained by, sponsored in whole or in part
by, or contributed to by any Xxxxxx Xxxxxxxx Company or Affiliate
thereof for the benefit of employees, retirees, dependents,
spouses, directors, independent contractors, or other
beneficiaries and under which employees, retirees, dependents,
spouses, directors, independent contractors, or other
beneficiaries are eligible to participate (collectively, the
"Xxxxxx Xxxxxxxx Benefit Plans"). Any of the Xxxxxx Xxxxxxxx
Benefit Plans which is an "employee pension benefit plan," as
that term is defined in Section 3(2) of ERISA, is referred to
herein as a "Xxxxxx Xxxxxxxx ERISA Plan." Each Xxxxxx Xxxxxxxx
ERISA Plan which is also a "defined benefit plan" (as defined in
Section 414(j) of the Internal Revenue Code) is referred to
herein as a "Xxxxxx Xxxxxxxx Pension Plan." No Xxxxxx Xxxxxxxx
Pension Plan is or has been a multi-employer plan within the
meaning of Section 3(37) of ERISA.
(b) All Xxxxxx Xxxxxxxx Benefit Plans are in
compliance with the applicable terms of ERISA, the Internal
Revenue Code, and any other applicable Laws the breach or
violation of which are reasonably likely to have, individually or
in the aggregate, a Material Adverse Effect on Xxxxxx Xxxxxxxx.
The only Xxxxxx Xxxxxxxx ERISA Plan which is intended to be
qualified under Section 401(a) of the Internal Revenue Code is a
master or prototype arrangement which is the subject of a
favorable determination letter from the Internal Revenue Service,
and Xxxxxx Xxxxxxxx is not aware of any circumstances likely to
result in revocation of any such favorable determination letter.
To the Knowledge of Xxxxxx Xxxxxxxx, no Xxxxxx Xxxxxxxx Company
nor any other party has engaged in a transaction with respect to
any Xxxxxx Xxxxxxxx Benefit Plan that, assuming the taxable
period of such transaction expired as of the date hereof, would
subject any Xxxxxx Xxxxxxxx Company to a tax or penalty imposed
by either Section 4975 of the Internal Revenue Code or Section
502(i) of ERISA in amounts which are reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on
Xxxxxx Xxxxxxxx.
(c) Neither Xxxxxx Xxxxxxxx nor any ERISA Affiliate of
Xxxxxx Xxxxxxxx maintains an "employee pension benefit plan,"
within the meaning of Section 3(2) of ERISA that is or was
subject to Title IV of ERISA.
(d) Neither Xxxxxx Xxxxxxxx nor any ERISA Affiliate of
Xxxxxx Xxxxxxxx has any past, present or future obligation or
liability to contribute to any multi-employer plan, as defined in
Section 3(37) of ERISA.
(e) Except as disclosed in Section 5.14(e) of the
Xxxxxx Xxxxxxxx Disclosure Memorandum, (i) no Xxxxxx Xxxxxxxx
Company has any obligations for retiree health and life benefits
under any of the Xxxxxx Xxxxxxxx Benefit Plans, except as
required by Section 601 of ERISA and Section 4980B of the Code;
(ii) there are no restrictions on the rights of any Xxxxxx
Xxxxxxxx Company to amend or terminate any such Plan; and (iii)
any amendment or termination of any such Plan will not cause any
Xxxxxx Xxxxxxxx Company to incur any Liability that is reasonably
likely to have a Material Adverse Effect on Xxxxxx Xxxxxxxx.
(f) Except as disclosed in Section 5.14(f) of the
Xxxxxx Xxxxxxxx Disclosure Memorandum, neither the execution and
delivery of this Agreement nor the consummation of the
transactions contemplated hereby will (i) result in any payment
(including, without limitation, severance, unemployment
compensation, golden parachute or otherwise) becoming due to any
director or any employee of any Xxxxxx Xxxxxxxx Company from any
Xxxxxx Xxxxxxxx Company under any Xxxxxx Xxxxxxxx Benefit Plan or
otherwise, (ii) increase any benefits otherwise payable under any
Xxxxxx Xxxxxxxx Benefit Plan, or (iii) result in any acceleration
of the time of payment or vesting of any such benefit.
(g) The actuarial present values of all accrued
deferred compensation entitlements (including, without
limitation, entitlements under any executive compensation,
supplemental retirement, or employment agreement) of employees
and former employees of any Xxxxxx Xxxxxxxx Company and their
respective beneficiaries have been fully reflected on the Xxxxxx
Xxxxxxxx Financial Statements to the extent required by and in
accordance with GAAP.
(h) Xxxxxx Xxxxxxxx and each ERISA Affiliate of Xxxxxx
Xxxxxxxx has complied with the continuation of coverage
requirements of Section 1001 of the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended, and ERISA Sections 601
through 608 in a manner that will not cause any Xxxxxx Xxxxxxxx
Company to incur any Liability that is reasonably likely to have
a Material Adverse Effect on Xxxxxx Xxxxxxxx.
(i) Except as disclosed in Section 5.14(i) of the
Xxxxxx Xxxxxxxx Disclosure Memorandum, neither Xxxxxx Xxxxxxxx
nor any ERISA Affiliate of Xxxxxx Xxxxxxxx is obligated,
contingently or otherwise, under any agreement to pay any amount
which would be treated as a "parachute payment," as defined in
Section 280G(b) of the Internal Revenue Code (determined without
regard to Section 280G(b)(2)(A)(ii) of the Internal Revenue
Code).
(j) Other than routine claims for benefits, to the
Knowledge of Xxxxxx Xxxxxxxx, there are no actions, audits,
investigations, suits or claims pending against any Xxxxxx
Xxxxxxxx Benefit Plan, any trust or other funding agency created
thereunder, or against any fiduciary of any Xxxxxx Xxxxxxxx
Benefit Plan or against the assets of any Xxxxxx Xxxxxxxx Benefit
Plan.
V.15 Material Contracts. Except as disclosed in Section
5.15 of the Xxxxxx Xxxxxxxx Disclosure Memorandum or otherwise
reflected in the Xxxxxx Xxxxxxxx Financial Statements, none of
the Xxxxxx Xxxxxxxx Companies, nor any of their respective
Assets, businesses or operations, is a party to, or is bound or
affected by, or receives benefits under, (a) any employment,
severance, termination, consulting or retirement Contract
providing for aggregate payments to any Person in any calendar
year in excess of $10,000, excluding "at will" employment
arrangements, (b) any Contract relating to the borrowing of money
by any Xxxxxx Xxxxxxxx Company or the guarantee by any Xxxxxx
Xxxxxxxx Company of any such obligation (other than Contracts
evidencing deposit liabilities, purchases of federal funds,
Federal Home Loan Bank advances, fully-secured repurchase
agreements, trade payables, and Contracts relating to borrowings
or guarantees made in the ordinary course of business), (c) any
Contracts between or among Xxxxxx Xxxxxxxx Companies, and (d) any
other Contract (excluding this Agreement) or amendment thereto
that is required to be filed as an exhibit to a Form 10-KSB or
Form 10-QSB filed by Xxxxxx Xxxxxxxx with the SEC as of the date
of this Agreement that has not been filed as an exhibit to any
Xxxxxx Xxxxxxxx Form 10-KSB or 10-QSB filed with the SEC
(together with all Contracts referred to in Sections 5.10 and
5.14(a) of this Agreement, the "Xxxxxx Xxxxxxxx Contracts").
None of the Xxxxxx Xxxxxxxx Companies is in Default under any
Xxxxxx Xxxxxxxx Contract, other than Defaults which are not
reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Xxxxxx Xxxxxxxx. All of the
indebtedness of any Xxxxxx Xxxxxxxx Company for money borrowed is
prepayable at any time by such Xxxxxx Xxxxxxxx Company without
penalty or premium.
V.16 Legal Proceedings. Except as disclosed in Section 5.16
of the Xxxxxx Xxxxxxxx Disclosure Memorandum, there is no
Litigation instituted or pending, or, to the Knowledge of Xxxxxx
Xxxxxxxx, threatened (or unasserted but considered probable of
assertion and which if asserted would have at least a reasonable
probability of an unfavorable outcome) against any Xxxxxx
Xxxxxxxx Company, or against any Asset, interest, or right of any
of them, that is reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on Xxxxxx Xxxxxxxx, nor
are there any Orders of any Regulatory Authorities, other
governmental authorities, or arbitrators outstanding against any
Xxxxxx Xxxxxxxx Company, that are reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on
Xxxxxx Xxxxxxxx.
V.17 Reports. Since January 1, 1996, each Xxxxxx Xxxxxxxx
Company has timely filed all reports and statements, together
with any amendments required to be made with respect thereto,
that it was required to file with (a) the SEC, including, but not
limited to, Forms 10-KSB, Forms 10-QSB, Forms 8-K, and Proxy
Statements, (b) other Regulatory Authorities, and (c) any
applicable state securities or banking authorities (except, in
the case of state securities authorities, failures to file which
are not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Xxxxxx Xxxxxxxx). As of
their respective dates, each of such reports and documents,
including the financial statements, exhibits, and schedules
thereto, complied in all material respects with all applicable
Laws. As of its respective date, each such report and document
to Xxxxxx Xxxxxxxx'x Knowledge did not, in any material respect,
contain any untrue statement of a material fact or omit 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.
V.18 Statements True and Correct. No statement,
certificate, instrument or other writing furnished or to be
furnished by any Xxxxxx Xxxxxxxx Company or any Affiliate thereof
to Premier pursuant to this Agreement or any other document,
agreement or instrument referred to herein contains or will
contain any untrue statement of material fact or will omit to
state a Material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading. None of the information supplied or to be supplied
by any Xxxxxx Xxxxxxxx Company or any Affiliate thereof for
inclusion in the Registration Statement to be filed by Premier
with the SEC will, when the Registration Statement becomes
effective, be false or misleading with respect to any Material
fact, or omit to state any Material fact necessary to make the
statements therein not misleading. None of the information
supplied or to be supplied by any Xxxxxx Xxxxxxxx Company or any
Affiliate thereof for inclusion in the Proxy Statement to be
mailed to Xxxxxx Xxxxxxxx'x shareholders in connection with the
Xxxxxx Xxxxxxxx Shareholders' Meeting, and any other documents to
be filed by a Xxxxxx Xxxxxxxx Company or any Affiliate thereof
with the SEC or any other Regulatory Authority in connection with
the transactions contemplated hereby, will, at the respective
time such documents are filed, and with respect to the Proxy
Statement, when first mailed to the shareholders of Xxxxxx
Xxxxxxxx, be false or misleading with respect to any Material
fact, or omit to state any Material fact necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading, or, in the case of the Proxy
Statement or any amendment thereof or supplement thereto, at the
time of the Xxxxxx Xxxxxxxx Shareholders' Meeting, be false or
misleading with respect to any Material fact, or omit to state
any material fact necessary to correct any statement in any
earlier communication with respect to the solicitation of any
proxy for the Xxxxxx Xxxxxxxx Shareholders' Meeting. All
documents that any Xxxxxx Xxxxxxxx Company or any Affiliate
thereof is responsible for filing with any Regulatory Authority
in connection with the transactions contemplated hereby will
comply as to form in all Material respects with the provisions of
applicable Law.
V.19 Accounting, Tax and Regulatory Matters. No Xxxxxx
Xxxxxxxx Company or any Affiliate thereof has taken any action,
or agreed to take any action, or has any Knowledge of any fact or
circumstance that is reasonably likely to (a) prevent the
transactions contemplated hereby, including the Merger, from
qualifying for pooling-of-interests accounting treatment or
treatment as a reorganization within the meaning of Section
368(a) of the Internal Revenue Code, or (b) materially impede or
delay receipt of any Consents of Regulatory Authorities referred
to in Section 9.1(b) of this Agreement or result in the
imposition of a condition or restriction of the type referred to
in the second sentence of such Section. To the Knowledge of
Xxxxxx Xxxxxxxx, there exists no fact, circumstance, or reason
why the requisite Consents referred to in Section 9.1(b) of this
Agreement cannot be received in a timely manner without the
imposition of any condition or restriction of the type described
in the second sentence of such Section 9.1(b).
V.20 Charter Provisions. Each Xxxxxx Xxxxxxxx Company has
taken all action so that the entering into of this Agreement and
the consummation of the Merger and the other transactions
contemplated by this Agreement do not and will not result in the
grant of any rights to any Person under the Articles of
Incorporation, Bylaws or other governing instruments of any
Xxxxxx Xxxxxxxx Company or restrict or impair the ability of the
Surviving Corporation to vote, or otherwise to exercise the
rights of a shareholder with respect to, shares of any Xxxxxx
Xxxxxxxx Company that may be acquired or controlled by it.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF PREMIER
-----------------------------------------
Premier hereby represents and warrants to Xxxxxx Xxxxxxxx as
follows:
VI.1 Organization, Standing, and Power. Premier is a
corporation duly organized, validly existing, and in good
standing under the Laws of the State of Georgia, and is duly
registered as a bank holding company under the BHC Act. Premier
has the corporate power and authority to carry on its business as
now conducted and to own, lease and operate its Assets. Premier
is duly qualified or licensed to transact business as a foreign
corporation in good standing in the States of the United States
and foreign jurisdictions where the character of its Assets or
the nature or conduct of its business requires it to be so
qualified or licensed, except for such jurisdictions in which the
failure to be so qualified or licensed is not reasonably likely
to have, individually or in the aggregate, a Material Adverse
Effect on Premier.
VI.2 Authority; No Breach By Agreement.
(a) Premier has the corporate power and authority
necessary to execute, deliver and perform its obligations under
this Agreement and to consummate the transactions contemplated
hereby. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated
herein, including the Merger, have been duly and validly
authorized by all necessary corporate action in respect thereof
on the part of Premier, subject to the approval of this Agreement
by the holders of a majority of the outstanding Premier Common
Stock, which is the only shareholder vote required for approval
of this Agreement and consummation of the Merger by Premier.
Subject to such requisite shareholder approval, this Agreement
represents a legal, valid and binding obligation of Premier,
enforceable against Premier in accordance with its terms (except
in all cases as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, or similar
Laws affecting the enforcement of creditors' rights generally and
except that the availability of the equitable remedy of specific
performance or injunctive relief is subject to the discretion of
the court before which any proceeding may be brought).
(b) Neither the execution and delivery of this
Agreement by Premier, nor the consummation by Premier of the
transactions contemplated hereby (assuming approval by the
shareholders of Premier of the required increase in the number of
authorized shares of Premier Common Stock in order to consummate
the Merger), nor compliance by Premier with any of the provisions
hereof will (i) conflict with or result in a breach of any
provision of Premier's Articles of Incorporation or Bylaws, or
(ii) constitute or result in a Default under, or require any
Consent pursuant to, or result in the creation of any Lien on any
Asset of any Premier Company under, any Contract or Permit of any
Premier Company, where such Default or Lien, or any failure to
obtain such Consent, is reasonably likely to have, individually
or in the aggregate, a Material Adverse Effect on Premier, or
(iii) subject to receipt of the requisite approvals referred to
in Section 9.1(b) of this Agreement, violate any Law or Order
applicable to any Premier Company or any of their respective
Assets.
(c) Other than in connection or compliance with the
provisions of the Securities Laws, applicable state corporate and
securities Laws, and rules of the NASD, and other than Consents
required from Regulatory Authorities, and other than notices to
or filings with the Internal Revenue Service or the Pension
Benefit Guaranty Corporation with respect to any employee benefit
plans, and other than Consents, filings or notifications which,
if not obtained or made, are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on
Premier, no notice to, filing with, or Consent of, any public
body or authority is necessary for the consummation by Premier of
the Merger and the other transactions contemplated in this
Agreement.
VI.3 Capital Stock.
(a) The authorized capital stock of Premier consists
of 20,000,000 shares of Premier Common Stock, of which 15,238,776
shares were issued and outstanding as of the date of this
Agreement. All of the issued and outstanding shares of Premier
Common Stock are, and all of the shares of Surviving Corporation
Common Stock to be issued in exchange for shares of Xxxxxx
Xxxxxxxx Common Stock upon consummation of the Merger, when
issued in accordance with the terms of this Agreement, will be,
duly and validly issued and outstanding and fully paid and
nonassessable under the GBCC. None of the outstanding shares of
Premier Common Stock has been, and none of the shares of
Surviving Corporation Common Stock to be issued in exchange for
shares of Xxxxxx Xxxxxxxx Common Stock upon consummation of the
Merger will be, issued in violation of any preemptive rights of
the current or past shareholders of Premier.
(b) Premier has issued $29,639,175 of 9.00%
Subordinated Debentures to Premier Capital Trust I, a statutory
business trust organized and existing under the laws of the State
of Delaware. The Subordinated Debentures will mature on December
31, 2027. The Subordinated Debentures were purchased by Premier
Capital Trust I with the proceeds of the public offering of
1,150,000 shares of 9.00% Cumulative Trust Preferred Securities
and sale of Common Securities to Premier. Premier owns all of
the Common Securities issued by Premier Capital Trust I. The
Common Securities and the Preferred Securities represent
undivided beneficial interests in the assets of Premier Capital
Trust I.
(c) Except as set forth in Sections 6.3(a) and 6.3(b)
of this Agreement, or as disclosed in Section 6.3(c) of the
Premier Disclosure Memorandum, there are no shares of capital
stock or other equity securities of Premier outstanding and no
outstanding Rights relating to the capital stock of Premier.
VI.4 Premier Subsidiaries. Premier has disclosed in Section
6.4 of the Premier Disclosure Memorandum all of the Premier
Subsidiaries as of the date of this Agreement. Except as
disclosed in Section 6.4 of the Premier Disclosure Memorandum,
Premier or one of its Subsidiaries owns all of the issued and
outstanding shares of capital stock of each Premier Subsidiary.
No equity securities of any Premier Subsidiary are or may become
required to be issued (other than to another Premier Company) by
reason of any Rights, and there are no Contracts by which any
Premier Subsidiary is bound to issue (other than to another
Premier Company) additional shares of its capital stock or
Rights, or by which any Premier Company is or may be bound to
transfer any shares of the capital stock of any Premier
Subsidiary (other than to another Premier Company). There are no
Contracts relating to the rights of any Premier Company to vote
or to dispose of any shares of the capital stock of any Premier
Subsidiary. All of the shares of capital stock of each Premier
Subsidiary held by a Premier Company are fully paid and
nonassessable under the applicable Law of the jurisdiction in
which such Subsidiary is incorporated or organized. Each Premier
Subsidiary is either a bank, a savings association, a corporation
or a limited liability company and is duly organized, validly
existing, and (as to corporations) in good standing under the
Laws of the jurisdiction in which it is organized and has the
corporate power and authority necessary for it to own, lease and
operate its Assets and to carry on its business as now conducted.
Each Premier Subsidiary is duly qualified or licensed to transact
business as a foreign corporation in good standing in the States
of the United States and foreign jurisdictions where the
character of its Assets or the nature or conduct of its business
requires it to be so qualified or licensed, except for such
jurisdictions in which the failure to be so qualified or licensed
is not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Premier. Each Premier
Subsidiary that is a depository institution is an "insured
institution" as defined in the Federal Deposit Insurance Act and
applicable regulations thereunder, and the deposits in which are
insured by the Bank Insurance Fund or the Savings Association
Insurance Fund, as appropriate.
VI.5 Financial Statements. Premier has included in Section
6.5 of the Premier Disclosure Memorandum copies of all Premier
Financial Statements for periods ended prior to the date hereof
and will deliver to Xxxxxx Xxxxxxxx copies of all Premier
Financial Statements prepared subsequent to the date hereof. The
Premier Financial Statements (as of the dates thereof and for the
periods covered thereby) (a) are, or if dated after the date of
this Agreement will be, in accordance with the books and records
of the Premier Companies, which are or will be, as the case may
be, complete and correct and which have been or will have been,
as the case may be, maintained in accordance with good business
practices, and (b) present or will present, as the case may be,
fairly the consolidated financial position of the Premier
Companies as of the dates indicated and the consolidated results
of operations, changes in shareholders' equity, and cash flows of
the Premier Companies for the periods indicated, in accordance
with GAAP (subject to exceptions as to consistency specified
therein or as may be indicated in the notes thereto or, in the
case of interim financial statements, to normal recurring
year-end adjustments that are not material in amount or effect).
VI.6 Absence of Undisclosed Liabilities. No Premier
Company has any Liabilities that are reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on
Premier, except Liabilities which are accrued or reserved against
in the consolidated balance sheets of Premier as of December 31,
1996 and December 31, 1997, included in the Premier Financial
Statements or reflected in the notes thereto. No Premier Company
has incurred or paid any Liability since December 31, 1997,
except for such Liabilities incurred or paid in the ordinary
course of business consistent with past business practice and
which are not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Premier.
VI.7 Absence of Certain Changes or Events. Since December
31, 1997, except as disclosed in Section 6.7 of the Premier
Disclosure Memorandum, (a) there have been no events, changes or
occurrences which have had, or are reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on
Premier, and (b) the Premier Companies have not taken any action,
or failed to take any action, prior to the date of this
Agreement, which action or failure, if taken after the date of
this Agreement, would represent or result in a material breach or
violation of any of the covenants and agreements of Premier
provided in Article VII of this Agreement.
VI.8 Tax Matters.
(a) All Tax returns required to be filed by or on
behalf of any of the Premier Companies have been timely filed or
requests for extensions have been timely filed, granted, and have
not expired, except to the extent that all such failures to file,
taken together, are not reasonably likely to have a Material
Adverse Effect on Premier, and all returns filed are complete and
accurate to the Knowledge of Premier. All Taxes shown on filed
returns have been paid. As of the date of this Agreement, there
is no audit examination, deficiency or refund Litigation with
respect to any Taxes that is reasonably likely to result in a
determination that would have, individually or in the aggregate,
a Material Adverse Effect on Premier, except as reserved against
in the Premier Financial Statements delivered prior to the date
of this Agreement or as disclosed in Section 6.8(a) of the
Premier Disclosure Memorandum. All Taxes and other Liabilities
due with respect to completed and settled examinations or
concluded Litigation have been paid.
(b) Except as disclosed in Section 6.8(b) of the
Premier Disclosure Memorandum none of the Premier Companies has
executed an extension or waiver of any statute of limitations on
the assessment or collection of any Tax due that is currently in
effect, and no unpaid tax deficiency has been asserted in writing
against or with respect to any Premier Company, which deficiency
is reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Premier.
(c) Adequate provision for any Taxes due or to become
due for any of the Premier Companies for the period or periods
through and including the date of the respective Premier
Financial Statements has been made and is reflected on such
Premier Financial Statements.
(d) Deferred Taxes of the Premier Companies have been
provided for in accordance with GAAP.
(e) Each of the Premier Companies is in compliance
with, and its records contain all information and documents
(including, without limitation, properly completed IRS Forms W-9)
necessary to comply with, all applicable information reporting
and Tax withholding requirements under federal, state and local
Tax Laws, and such records identify with specificity all accounts
subject to backup withholding under Section 3406 of the Internal
Revenue Code, except for such instances of noncompliance and such
omissions as are not reasonably likely to have, individually or
in the aggregate, a Material Adverse Effect on Premier.
VI.9 Allowance for Possible Loan Losses. The Allowance
shown on the consolidated balance sheets of Premier included in
the most recent Premier Financial Statements dated prior to the
date of this Agreement was, and the Allowance shown on the
consolidated balance sheets of Premier included in the Premier
Financial Statements as of dates subsequent to the execution of
this Agreement will be, as of the dates thereof, adequate (within
the meaning of GAAP and applicable regulatory requirements or
guidelines) to provide for losses relating to or inherent in the
loan and lease portfolios (including accrued interest
receivables) of the Premier Companies and other extensions of
credit (including letters of credit and commitments to make loans
or extend credit) by the Premier Companies as of the dates
thereof except where the failure of such Allowance to be so
adequate is not reasonably likely to have a Material Adverse
Effect on Premier.
VI.10 Assets. Except as disclosed in Section 6.10 of
the Premier Disclosure Memorandum or as disclosed or reserved
against in the Premier Financial Statements, the Premier
Companies have good and marketable title, free and clear of all
Liens, to all of their respective Assets. All material tangible
properties used in the businesses of the Premier Companies are in
good condition, reasonable wear and tear excepted, and are usable
in the ordinary course of business consistent with Premier's past
practices. All Assets which are material to Premier's business on
a consolidated basis, which are held under leases or subleases by
any of the Premier Companies, are held under valid Contracts
enforceable in accordance with their respective terms (except as
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other Laws affecting
the enforcement of creditors' rights generally and except that
the availability of the equitable remedy of specific performance
or injunctive relief is subject to the discretion of the court
before which any proceedings may be brought), and each such
Contract is in full force and effect. The policies of fire,
theft, liability and other insurance maintained with respect to
the Assets or businesses of the Premier Companies provide
adequate coverage under current industry practices against loss
or Liability, and the fidelity and blanket bonds in effect as to
which any of the Premier Companies is a named insured are
reasonably sufficient.
VI.11 Environmental Matters. Except as disclosed in
Section 6.11 of the Premier Disclosure Memorandum:
(a) To the Knowledge of Premier, each Premier Company,
its Participation Facilities and its Loan Properties are, and
have been, in compliance with all Environmental Laws, except for
noncompliance which is not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on
Premier.
(b) There is no Litigation pending or to the Knowledge
of Premier threatened before any court, governmental agency or
authority or other forum in which any Premier Company or any of
its Loan Properties or Participation Facilities has been or, with
respect to threatened Litigation, may be named as a defendant or
potentially responsible party (i) for alleged noncompliance with
any Environmental Law or (ii) relating to the Release into the
Environment of any Hazardous Material (as defined below), whether
or not occurring at, on, under or involving a site owned, leased
or operated by any Premier Company or any of its Loan Properties
or Participation Facilities, except for such Litigation pending
or threatened the resolution of which is not reasonably likely
to have, individually or in the aggregate, a Material Adverse
Effect on Premier or to the Knowledge of Premier, there is no
reasonable basis for any such Litigation.
(c) To the Knowledge of Premier, there have been no
releases of Hazardous Material in, on, under or affecting any
Participation Facility or Loan Property, except such as are not
reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Premier.
VI.12 Compliance with Laws. Premier is duly registered
as a bank holding and thrift holding company under the BHC Act
and HOLA, respectively. Each Premier Company has in effect all
Permits necessary for it to own, lease or operate its Assets and
to carry on its business as now conducted, except for those
Permits the absence of which are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on
Premier, and there has occurred no Default under any such Permit,
other than Defaults which are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on
Premier. Except as disclosed in Section 6.12 of the Premier
Disclosure Memorandum, no Premier Company:
(a) is in violation of any Laws, Orders or Permits
applicable to its business or employees conducting its business,
except for violations which are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on
Premier; and
(b) has received any notification or communication
from any agency or department of federal, state, or local
government or any Regulatory Authority or the staff thereof (i)
asserting that any Premier Company is not in compliance with any
of the Laws or Orders which such governmental authority or
Regulatory Authority enforces, where such noncompliance is
reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Premier, (ii) threatening to revoke
any Permits, the revocation of which is reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect
on Premier, or (iii) requiring any Premier Company to enter into
or consent to the issuance of a cease and desist order, formal
agreement, directive, commitment or memorandum of understanding,
or to adopt any Board resolution or similar undertaking, which
restricts materially the conduct of its business, or in any
manner relates to its capital adequacy, its credit or reserve
policies, its management, or the payment of dividends.
VI.13 Labor Relations. No Premier Company is the
subject of any Litigation asserting that it or any other Premier
Company has committed an unfair labor practice (within the
meaning of the National Labor Relations Act or comparable state
law) or seeking to compel it or any other Premier Company to
bargain with any labor organization as to wages or conditions of
employment, nor is there any strike or other labor dispute
involving any Premier Company, pending or, to its Knowledge,
threatened, nor, to its Knowledge, is there any activity
involving any Premier Company's employees seeking to certify a
collective bargaining unit or engaging in any other organization
activity.
VI.14 Employee Benefit Plans.
(a) Premier has disclosed in Section 6.14 of the
Premier Disclosure Memorandum and delivered or made available to
Xxxxxx Xxxxxxxx prior to the execution of this Agreement copies
in each case of all pension, retirement, profit-sharing, deferred
compensation, stock option, employee stock ownership, severance
pay, vacation, bonus, or other incentive plans, all other written
employee programs, arrangements, or agreements, all medical,
vision, dental, or other health plans, all life insurance plans,
and all other employee benefit plans or fringe benefit plans,
including, without limitation, "employee benefit plans" as that
term is defined in Section 3(3) of ERISA, currently adopted,
maintained by, sponsored in whole or in part by, or contributed
to by any Premier Company or Affiliate thereof for the benefit of
employees, retirees, dependents, spouses, directors, independent
contractors, or other beneficiaries and under which employees,
retirees, dependents, spouses, directors, independent
contractors, or other beneficiaries are eligible to participate
(collectively, the "Premier Benefit Plans"). Any of the Premier
Benefit Plans which is an "employee pension benefit plan," as
that term is defined in Section 3(2) of ERISA, is referred to
herein as a "Premier ERISA Plan." Each Premier ERISA Plan which
is also a "defined benefit plan" (as defined in Section 414(j) of
the Internal Revenue Code) is referred to herein as a "Premier
Pension Plan." No Premier Pension Plan is or has been a multi-
employer plan within the meaning of Section 3(37) of ERISA.
(b) All Premier Benefit Plans are in compliance with
the applicable terms of ERISA, the Internal Revenue Code, and any
other applicable Laws the breach or violation of which are
reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Premier. Each Premier ERISA Plan which
is intended to be qualified under Section 401(a) of the Internal
Revenue Code is a master or prototype arrangement which is the
subject of a favorable determination letter from the Internal
Revenue Service, and Premier is not aware of any circumstances
likely to result in revocation of any such favorable
determination letter. To the Knowledge of Premier, no Premier
Company nor any other party has engaged in a transaction with
respect to any Premier Benefit Plan that, assuming the taxable
period of such transaction expired as of the date hereof, would
subject any Premier Company to a tax or penalty imposed by either
Section 4975 of the Internal Revenue Code or Section 502(i) of
ERISA in amounts which are reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on
Premier.
(c) Neither Premier nor any ERISA Affiliate of Premier
maintains or has maintained an "employee pension benefit plan,"
within the meaning of Section 3(2) of ERISA that is or was
subject to Title IV of ERISA.
(d) Neither Premier nor any ERISA Affiliate of Premier
has any past, present or future obligation or liability to
contribute to any multi-employer plan, as defined in Section
3(37) of ERISA.
(e) Except as disclosed in Section 6.14(e) of the
Premier Disclosure Memorandum, (i) no Premier Company has any
obligations for retiree health and life benefits under any of the
Premier Benefit Plans, except as required by Section 601 of ERISA
and Section 4980B of the Code; (ii) there are no restrictions on
the rights of any Premier Company to amend or terminate any such
Plan; and (iii) any amendment or termination of any such Plan
will not cause any Premier Company to incur any Liability that is
reasonably likely to have a Material Adverse Effect on Premier.
(f) Except as disclosed in Section 6.14(f) of the
Premier Disclosure Memorandum, neither the execution and delivery
of this Agreement nor the consummation of the transactions
contemplated hereby will (i) result in any payment (including,
without limitation, severance, unemployment compensation, golden
parachute or otherwise) becoming due to any director or any
employee of any Premier Company from any Premier Company under
any Premier Benefit Plan or otherwise, (ii) increase any benefits
otherwise payable under any Premier Benefit Plan, or (iii) result
in any acceleration of the time of payment or vesting of any such
benefit.
(g) The actuarial present values of all accrued
deferred compensation entitlements (including, without
limitation, entitlements under any executive compensation,
supplemental retirement, or employment agreement) of employees
and former employees of any Premier Company and their respective
beneficiaries have been fully reflected on the Premier Financial
Statements to the extent required by and in accordance with GAAP.
(h) Premier and each ERISA Affiliate of Premier has
complied with the continuation of coverage requirements of
Section 1001 of the Consolidated Omnibus Budget Reconciliation
Act of 1985, as amended, and ERISA Sections 601 through 608 in a
manner that will not cause any Premier Company to incur any
Liability that is reasonably likely to have a Material Adverse
Effect on Premier.
(i) Except as disclosed in Section 6.14(i) of the
Premier Disclosure Memorandum, neither Premier nor any ERISA
Affiliate of Premier is obligated, contingently or otherwise,
under any agreement to pay any amount which would be treated as a
"parachute payment," as defined in Section 280G(b) of the
Internal Revenue Code (determined without regard to Section
280G(b)(2)(A)(ii) of the Internal Revenue Code).
(j) Other than routine claims for benefits, to the
Knowledge of Premier there are no actions, audits,
investigations, suits or claims pending against any Premier
Benefit Plan, any trust or other funding agency created
thereunder, or against any fiduciary of any Premier Benefit Plan
or against the assets of any Premier Benefit Plan.
VI.15 Material Contracts. Except as disclosed in
Section 6.15 of the Premier Disclosure Memorandum or otherwise
reflected in the Premier Financial Statements, none of the
Premier Companies, nor any of their respective Assets, businesses
or operations, is a party to, or is bound or affected by, or
receives benefits under, (a) any Contract relating to the
borrowing of money by any Premier Company or the guarantee by any
Premier Company of any such obligation (other than Contracts
evidencing deposit liabilities, purchases of federal funds,
Federal Home Loan Bank advances, fully-secured repurchase
agreements, trade payables, and Contracts relating to borrowings
or guarantees made in the ordinary course of business), and (b)
any other Contract (excluding this Agreement) or amendment
thereto that is required to be filed as an exhibit to a Form 10-K
or Form 10-Q filed by Premier with the SEC as of the date of this
Agreement that has not been filed as an exhibit to any Premier
Form 10-K filed with the SEC (together with all Contracts
referred to in Sections 6.10 and 6.14(a) of this Agreement, the
"Premier Contracts"). None of the Premier Companies is in
Default under any Premier Contract, other than Defaults which are
not reasonably likely to have, individually or in the aggregate,
a Material Adverse Effect on Premier.
VI.16 Legal Proceedings. Except as disclosed in Section
6.16 of the Premier Disclosure Memorandum, there is no Litigation
instituted or pending, or, to the Knowledge of Premier,
threatened (or unasserted but considered probable of assertion
and which if asserted would have at least a reasonable
probability of an unfavorable outcome) against any Premier
Company, or against any Asset, interest, or right of any of them,
that is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Premier, nor are there
any Orders of any Regulatory Authorities, other governmental
authorities, or arbitrators outstanding against any Premier
Company, that are reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on Premier.
VI.17 Reports. Since January 1, 1997, each Premier
Company has timely filed all reports and statements, together
with any amendments required to be made with respect thereto,
that it was required to file with (a) the SEC, including, but not
limited to, Forms 10-K, Forms 10-Q, Forms 8-K, and Proxy
Statements, (b) other Regulatory Authorities, and (c) any
applicable state securities or banking authorities (except, in
the case of state securities authorities, failures to file which
are not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Premier). As of their
respective dates, each of such reports and documents, including
the financial statements, exhibits, and schedules thereto,
complied in all material respect with all applicable Laws. As of
its respective date, each such report and document to Premier's
Knowledge did not, in any material respects, contain any untrue
statement of a material fact or omit 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.
VI.18 Statements True and Correct. No statement,
certificate, instrument or other writing furnished or to be
furnished by any Premier Company or any Affiliate thereof to
Xxxxxx Xxxxxxxx pursuant to this Agreement or any other document,
agreement or instrument referred to herein contains or will
contain any untrue statement of Material fact or will omit to
state a Material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading. None of the information supplied or to be supplied
by any Premier Company or any Affiliate thereof for inclusion in
the Registration Statement to be filed by Premier with the SEC,
will, when the Registration Statement becomes effective, be false
or misleading with respect to any Material fact, or omit to state
any Material fact necessary to make the statements therein not
misleading. None of the information supplied or to be supplied
by any Premier Company or any Affiliate thereof for inclusion in
the Proxy Statement to be mailed to Premier's shareholders in
connection with the Premier Shareholders' Meeting, and any other
documents to be filed by any Premier Company or any Affiliate
thereof with the SEC or any other Regulatory Authority in
connection with the transactions contemplated hereby, will, at
the respective time such documents are filed, and with respect to
the Proxy Statement, when first mailed to the shareholders of
Premier, be false or misleading with respect to any Material
fact, or omit to state any Material fact necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading, or, in the case of the Proxy
Statement or any amendment thereof or supplement thereto, at the
time of the Premier Shareholders' Meeting, be false or misleading
with respect to any Material fact, or omit to state any Material
fact necessary to correct any statement in any earlier
communication with respect to the solicitation of any proxy for
the Premier Shareholders' Meeting. All documents that any
Premier Company or any Affiliate thereof is responsible for
filing with any Regulatory Authority in connection with the
transactions contemplated hereby will comply as to form in all
Material respects with the provisions of applicable Law.
VI.19 Accounting, Tax and Regulatory Matters. No
Premier Company or any Affiliate thereof has taken any action, or
agreed to take any action, or has any Knowledge of any fact or
circumstance that is reasonably likely to (a) prevent the
transactions contemplated hereby, including the Merger, from
qualifying for pooling-of-interests accounting treatment or
treatment as a reorganization within the meaning of Section
368(a) of the Internal Revenue Code, or (b) materially impede or
delay receipt of any Consents of Regulatory Authorities referred
to in Section 9.1(b) of this Agreement. To the Knowledge of
Premier, there exists no fact, circumstance, or reason why the
requisite Consents referred to in Section 9.1(b) of this
Agreement cannot be received in a timely manner without the
imposition of any condition or restriction of the type described
in the second sentence of such Section 9.1(b).
VI.20 Charter Provisions. Each Premier Company has
taken all action so that the entering into of this Agreement and
the consummation of the Merger and the other transactions
contemplated by this Agreement do not and will not result in the
grant of any rights to any Person under the Articles of
Incorporation, Bylaws or other governing instruments of any
Premier Company or restrict or impair the ability of the
Surviving Corporation to vote, or otherwise to exercise the
rights of a shareholder with respect to, shares of any Premier
Company that may be acquired or controlled by it.
ARTICLE VII
CONDUCT OF BUSINESS PENDING CONSUMMATION
----------------------------------------
VII.1 Affirmative Covenants of Xxxxxx Xxxxxxxx. Unless
the prior written consent of Premier shall have been obtained,
and except as otherwise contemplated herein or disclosed in the
Xxxxxx Xxxxxxxx Disclosure Memorandum, Xxxxxx Xxxxxxxx shall, and
shall cause each of its Subsidiaries, from the date of this
Agreement until the Effective Time or termination of this
Agreement: (a) to operate its business in the usual, regular and
ordinary course; (b) to preserve intact its business organization
and Assets and maintain its rights and franchises; (c) to use its
reasonable efforts to cause its representations and warranties to
be correct at all times; and (d) to take no action which would
(i) adversely affect the ability of any Party to obtain any
Consents required for the transactions contemplated hereby
without imposition of a condition or restriction of the type
referred to in the last sentence of Section 9.1(b) or 9.1(c) of
this Agreement or (ii) adversely affect in any material respect
the ability of either Party to perform its covenants and
agreements under this Agreement.
VII.2 Negative Covenants of Xxxxxx Xxxxxxxx. Except as
disclosed in the Xxxxxx Xxxxxxxx Disclosure Memorandum, from the
date of this Agreement until the earlier of the Effective Time or
the termination of this Agreement, Xxxxxx Xxxxxxxx covenants and
agrees that it will not do or agree or commit to do, or permit
any of its Subsidiaries to do or agree or commit to do, any of
the following without the prior written consent of the chief
executive officer of Premier, which consent shall not be
unreasonably withheld:
(a) amend the Articles of Incorporation, Bylaws or
other governing instruments of any Xxxxxx Xxxxxxxx Company, or
(b) incur any additional debt obligation or other
obligation for borrowed money (other than indebtedness of a
Xxxxxx Xxxxxxxx Company to another Xxxxxx Xxxxxxxx Company) in
excess of an aggregate of $100,000 (for the Xxxxxx Xxxxxxxx
Companies on a consolidated basis) except in the ordinary course
of the business of the Xxxxxx Xxxxxxxx Companies consistent with
past practices (which shall include, for any of its Subsidiaries,
creation of deposit liabilities, purchases of federal funds,
advances from the Federal Reserve Bank or Federal Home Loan Bank,
and entry into repurchase agreements fully secured by U.S.
government or agency securities), or impose, or suffer the
imposition, on any Asset of any Xxxxxx Xxxxxxxx Company of any
Lien or permit any such Lien to exist (other than in connection
with deposits, repurchase agreements, bankers acceptances,
Federal Home Loan Bank advances, "treasury tax and loan" accounts
established in the ordinary course of business, the satisfaction
of legal requirements in the exercise of trust powers, and Liens
in effect as of the date hereof that are disclosed in the Xxxxxx
Xxxxxxxx Disclosure Memorandum); or
(c) repurchase, redeem, or otherwise acquire or
exchange (other than exchanges in the ordinary course under
employee benefit plans), directly or indirectly, any shares, or
any securities convertible into any shares, of the capital stock
of any Xxxxxx Xxxxxxxx Company, or declare or pay any dividend or
make any other distribution in respect of Xxxxxx Xxxxxxxx'x
capital stock; provided, however, that Xxxxxx Xxxxxxxx may (to
the extent legally and contractually permitted to do so) pay an
annual cash dividend of up to $1.00 per share in the first
quarter of 1998 for fiscal year 1997 and pay a quarterly dividend
of up to $0.25 per share for each quarter of fiscal year 1998
(except for any quarter during which the Effective Time occurs
provided that the Xxxxxx Xxxxxxxx shareholders will receive the
Premier dividend for such quarter) on the shares of Xxxxxx
Xxxxxxxx Common Stock; or
(d) except for this Agreement, or pursuant to the
exercise of stock options outstanding as of the date hereof and
pursuant to the terms thereof in existence on the date hereof, or
as disclosed in Section 7.2(d) of the Xxxxxx Xxxxxxxx Disclosure
Memorandum, issue, sell, pledge, encumber, authorize the issuance
of or enter into any Contract to issue, sell, pledge, encumber,
or authorize the issuance of or otherwise permit to become
outstanding, any additional shares of Xxxxxx Xxxxxxxx Common
Stock or any other capital stock of any Xxxxxx Xxxxxxxx Company,
or any stock appreciation rights, or any option, warrant,
conversion, or other right to acquire any such stock, or any
security convertible into any such stock; or
(e) except as disclosed in Section 7.2(e) of the
Xxxxxx Xxxxxxxx Disclosure Memorandum, adjust, split, combine or
reclassify any capital stock of any Xxxxxx Xxxxxxxx Company or
issue or authorize the issuance of any other securities in
respect of or in substitution for shares of Xxxxxx Xxxxxxxx
Common Stock or sell, lease, mortgage or otherwise dispose of or
otherwise encumber (i) any shares of capital stock of any Xxxxxx
Xxxxxxxx Subsidiary (unless any such shares of stock are sold or
otherwise transferred to another Xxxxxx Xxxxxxxx Company) or (ii)
any Asset having a book value in excess of $50,000 other than in
the ordinary course of business for reasonable and adequate
consideration; or
(f) except for purchases of U.S. Treasury securities
or U.S. Government agency securities or securities of like
maturity or grade or general obligations of states and
municipalities, purchase any securities or make any material
investment, either by purchase of stock or securities,
contributions to capital, Asset transfers, or purchase of any
Assets, in any Person other than a wholly-owned Xxxxxx Xxxxxxxx
Subsidiary; or otherwise acquire direct or indirect control over
any Person, other than in connection with (i) foreclosures in the
ordinary course of business, or (ii) acquisitions of control by
The Bank of Gwinnett County in its fiduciary capacity; or
(g) grant any increase in compensation or benefits to
any employees whose annual salary exceeds $35,000 of any Xxxxxx
Xxxxxxxx Company (including such discretionary increases as may
be contemplated by existing employment agreements), except in
accordance with past practice or previously approved by the Board
of Directors of Xxxxxx Xxxxxxxx, in each case as disclosed in
Section 7.2(g) of the Xxxxxx Xxxxxxxx Disclosure Memorandum or as
required by Law; pay any severance or termination pay or any
bonus other than pursuant to written policies or written
Contracts in effect on the date of this Agreement and disclosed
in Section 7.2(g) of the Xxxxxx Xxxxxxxx Disclosure Memorandum;
enter into or amend any severance agreements with officers of any
Xxxxxx Xxxxxxxx Company; grant any general increase in
compensation to all employees; grant any increase in fees or
other increases in compensation or other benefits to directors of
any Xxxxxx Xxxxxxxx Company; or voluntarily accelerate the
vesting of any stock options or other stock-based compensation or
employee benefits; or
(h) enter into or amend any employment Contract
between any Xxxxxx Xxxxxxxx Company and any Person (unless such
amendment is required by Law) that the Xxxxxx Xxxxxxxx Company
does not have the unconditional right to terminate without
Liability (other than Liability for services already rendered),
at any time on or after the Effective Time; or
(i) adopt any new employee benefit plan of any Xxxxxx
Xxxxxxxx Company or make any material change in or to any
existing employee benefit plans of any Xxxxxx Xxxxxxxx Company
other than any such change that is required by Law or that, in
the opinion of counsel, is necessary or advisable to maintain the
tax qualified status of any such plan; or
(j) make any significant change in any Tax or
accounting methods or systems of internal accounting controls,
except as may be appropriate to conform to changes in Tax Laws or
regulatory accounting requirements or GAAP; or
(k) commence any Litigation other than in accordance
with past practice, settle any Litigation involving any Liability
of any Xxxxxx Xxxxxxxx Company for money damages in excess of
$50,000 or which imposes material restrictions upon the
operations of any Xxxxxx Xxxxxxxx Company; or
(l) except in the ordinary course of business, modify,
amend or terminate any material Contract or waive, release,
compromise or assign any material rights or claims.
VII.3 Affirmative Covenants of Premier. Unless the prior
written consent of Xxxxxx Xxxxxxxx shall have been obtained, and
except as otherwise contemplated herein or as disclosed in the
Premier Disclosure Memorandum, Premier shall, and shall cause
each of its Subsidiaries, from the date of this Agreement until
the Effective Time or termination of this Agreement: (a) to
operate its business in the usual, regular and ordinary course;
(b) to preserve intact its business organization and Assets and
maintain its rights and franchises; (c) to use its reasonable
efforts to cause its representations and warranties to be correct
at all times; and (d) to take no action which would (i) adversely
affect the ability of any Party to obtain any Consents required
for the transactions contemplated hereby without imposition of a
condition or restriction of the type referred to in the last
sentence of Section 9.1(b) or 9.1(c) of this Agreement or (ii)
adversely affect in any Material respect the ability of either
Party to perform its covenants and agreements under this
Agreement.
VII.4 Negative Covenants of Premier. Except as
disclosed in the Premier Disclosure Memorandum, from the date of
this Agreement until the earlier of the Effective Time or the
termination of this Agreement, Premier covenants and agrees that
it will not do or agree or commit to do, or permit any of its
Subsidiaries to do or agree or commit to do, any of the following
without the prior written consent of the chief executive officer
of Xxxxxx Xxxxxxxx, which consent shall not be unreasonably
withheld:
(a) amend the Articles of Incorporation (other than to
increase the number of authorized shares of Premier Common
Stock), Bylaws or other governing instruments of any Premier
Company, or
(b) incur any additional debt obligation or other
obligation for borrowed money (other than indebtedness of a
Premier Company to another Premier Company) in excess of an
aggregate of $100,000 (for the Premier Companies on a
consolidated basis) except in the ordinary course of the business
of Premier Companies consistent with past practices (which shall
include, for Premier Bank, creation of deposit liabilities,
purchases of federal funds, advances from the Federal Reserve
Bank or Federal Home Loan Bank, and entry into repurchase
agreements fully secured by U.S. government or agency
securities), or impose, or suffer the imposition, on any Asset of
any Premier Company of any Lien or permit any such Lien to exist
(other than in connection with deposits, repurchase agreements,
bankers acceptances, Federal Home Loan Bank advances, "treasury
tax and loan" accounts established in the ordinary course of
business, the satisfaction of legal requirements in the exercise
of trust powers, and Liens in effect as of the date hereof that
are disclosed in the Premier Disclosure Memorandum); or
(c) adjust, split, combine or reclassify any capital
stock of any Premier Company or issue or authorize the issuance
of any other securities in respect of or in substitution for
shares of Premier Common Stock or sell, lease, mortgage or
otherwise dispose of or otherwise encumber (i) any shares of
capital stock of any Premier Subsidiary (unless any such shares
of stock are sold or otherwise transferred to another Premier
Company) or (ii) any Asset having a book value in excess of
$50,000 other than in the ordinary course of business for
reasonable and adequate consideration; or
(d) except for purchases of U.S. Treasury securities
or U.S. Government agency securities or securities of like
maturity or grade or general obligations of states and
municipalities, purchase any securities or make any material
investment, either by purchase of stock or securities,
contributions to capital, Asset transfers, or purchase of any
Assets, in any Person other than a wholly-owned Premier
Subsidiary; or otherwise acquire direct or indirect control over
any Person, other than in connection with (i) foreclosures in the
ordinary course of business, or (ii) acquisitions of control by
Premier Bank in its fiduciary capacity; or
(e) grant any increase in compensation or benefits to
any employees whose annual salary exceeds $35,000 of any Premier
Company (including such discretionary increases as may be
contemplated by existing employment agreements), except in
accordance with past practice or previously approved by the Board
of Directors of Premier, in each case as disclosed in Section
7.4(e) of the Premier Disclosure Memorandum or as required by
Law; pay any severance or termination pay or any bonus other than
pursuant to written policies or written Contracts in effect on
the date of this Agreement and disclosed in Section 7.4(e) of the
Premier Disclosure Memorandum; enter into or amend any severance
agreements with officers of any Premier Company; grant any
general increase in compensation to all employees (except in
accordance with past practice); grant any increase in fees or
other increases in compensation or other benefits to directors
of any Premier Company; or voluntarily accelerate the vesting of
any stock options or other stock-based compensation or employee
benefits; or
(f) make any significant change in any Tax or
accounting methods or systems of internal accounting controls,
except as may be appropriate to conform to changes in Tax Laws or
regulatory accounting requirements or GAAP; or
(g) except in the ordinary course of business, modify,
amend or terminate any material Contract or waive, release,
compromise or assign any material rights or claims.
VII.5 Adverse Changes in Condition. Each Party agrees to
give written notice promptly to the other Party upon becoming
aware of the occurrence or impending occurrence of any event or
circumstance relating to it or any of its Subsidiaries which (a)
is reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on it or (b) is reasonably likely to
cause or constitute a material breach of any of its
representations, warranties, or covenants contained herein, and
to use its reasonable efforts to prevent or promptly to remedy
the same.
VII.6 Reports. Each Party and its Subsidiaries shall
file all reports required to be filed by it with Regulatory
Authorities between the date of this Agreement and the Effective
Time and shall deliver to the other Party copies of all such
reports promptly after the same are filed.
ARTICLE VIII
ADDITIONAL AGREEMENTS
---------------------
VIII.1 Registration Statement; Proxy Statement;
Shareholder Approval.
(a) As soon as reasonably practicable after execution
of this Agreement, Premier shall file the Registration Statement
with the SEC, and shall use its reasonable efforts to cause the
Registration Statement to become effective under the 1933 Act and
take any action required to be taken under the applicable state
Blue Sky or securities Laws in connection with the issuance of
the shares of Surviving Corporation Common Stock upon
consummation of the Merger. Xxxxxx Xxxxxxxx shall furnish all
information concerning it and the holders of its capital stock as
Premier may reasonably request in connection with such action.
(b) Xxxxxx Xxxxxxxx shall call a shareholders'
meeting, to be held as soon as reasonably practicable after the
Registration Statement is declared effective by the SEC, for the
purpose of voting upon approval of this Agreement and such other
related matters as Xxxxxx Xxxxxxxx deems appropriate.
(c) Premier shall call its annual shareholders
meeting, to be held on May 16, 1998, one purpose of which will be
to vote upon approval of this Agreement and to increase the
number of authorized shares of Premier Common Stock in order to
consummate the Merger.
(d) In connection with the Xxxxxx Xxxxxxxx
Shareholders' Meeting, (i) Premier shall prepare and file with
the SEC on Xxxxxx Xxxxxxxx'x behalf a Proxy Statement (which
shall be included in the Registration Statement) and mail it to
Xxxxxx Xxxxxxxx'x shareholders, (ii) the Parties shall furnish to
each other all information concerning them that they may
reasonably request in connection with such Proxy Statement, (iii)
the Board of Directors of Xxxxxx Xxxxxxxx shall recommend
(subject to compliance with the fiduciary duties of the members
of the Board of Directors as advised by counsel) to its
shareholders the approval of this Agreement and (iv) the Board of
Directors and officers of Xxxxxx Xxxxxxxx shall use their
reasonable efforts to obtain such shareholders' approval (subject
to compliance with their fiduciary duties as advised by counsel).
VIII.2 Exchange Listing. Premier shall use its reasonable
efforts to list, prior to the Effective Time, on the American
Stock Exchange the shares of Surviving Corporation Common Stock
to be issued to the holders of Xxxxxx Xxxxxxxx Common Stock
pursuant to the Merger.
VIII.3 Applications. Premier shall promptly prepare and
file, and Xxxxxx Xxxxxxxx shall cooperate in the preparation and,
where appropriate, filing of, applications with the Board of
Governors of the Federal Reserve System and the Georgia
Department of Banking and Finance seeking the requisite Consents
necessary to consummate the transactions contemplated by this
Agreement.
VIII.4 Filings with State Offices. Upon the terms and
subject to the conditions of this Agreement, Premier shall
execute and file the Certificate of Merger with the Secretary of
State of the State of Georgia in connection with the Closing.
VIII.5 Agreement as to Efforts to Consummate. Subject to
the terms and conditions of this Agreement, each Party agrees to
use, and to cause its Subsidiaries to use, its reasonable efforts
to take, or cause to be taken, all actions, and to do, or cause
to be done, all things necessary, proper or advisable under
applicable Laws, as promptly as practicable so as to permit
consummation of the Merger at the earliest possible date and to
otherwise enable consummation of the transactions contemplated
hereby and shall cooperate fully with the other Party hereto to
that end (it being understood that any amendments to the
Registration Statement filed by Premier in connection with the
Surviving Corporation Common Stock to be issued in the Merger
shall not violate this covenant), including, without limitation,
using its reasonable efforts to lift or rescind any Order
adversely affecting its ability to consummate the transactions
contemplated herein and to cause to be satisfied the conditions
referred to in Article 9 of this Agreement. Each Party shall
use, and shall cause each of its Subsidiaries to use, its
reasonable efforts to obtain all Consents necessary or desirable
for the consummation of the transactions contemplated by this
Agreement.
VIII.6 Investigation and Confidentiality.
(a) Prior to the Effective Time, each Party will keep
the other Party advised of all material developments relevant to
its business and to consummation of the Merger and shall permit
the other Party to make or cause to be made such investigation of
the business and properties of it and its Subsidiaries and of
their respective financial and legal conditions as the other
Party reasonably requests, provided that such investigation shall
be reasonably related to the transactions contemplated hereby and
shall not interfere unnecessarily with normal operations. No
investigation by a Party shall affect the representations and
warranties of the other Party.
(b) Each Party shall, and shall cause its advisers and
agents to, maintain the confidentiality of all confidential
information furnished to it by the other Party concerning its and
its Subsidiaries' businesses, operations, and financial positions
and shall not use such information for any purpose except in
furtherance of the transactions contemplated by this Agreement.
If this Agreement is terminated prior to the Effective Time, each
Party shall promptly return all documents and copies thereof and
all work papers containing confidential information received from
the other Party, except for one copy of any materials prepared by
that Party or any attorney for or other representative of that
Party based upon such confidential information.
(c) Each Party agrees to give the other Party notice
as soon as practicable after any determination by it of any fact
or occurrence relating to the other Party which it has discovered
through the course of its investigation and which represents, or
is reasonably likely to represent, either a material breach of
any representation, warranty, covenant or agreement of the other
Party or which has had or is reasonably likely to have a Material
Adverse Effect on the other Party.
VIII.7 Press Releases. Prior to the Effective Time,
Premier and Xxxxxx Xxxxxxxx shall agree with each other as to the
form and substance of any press release or other public
disclosure materially related to this Agreement or any other
transaction contemplated hereby; provided, however, that nothing
in this Section 8.7 shall be deemed to prohibit any Party from
making any disclosure which its counsel deems necessary or
advisable in order to satisfy such Party's disclosure obligations
imposed by Law.
VIII.8 Acquisition Proposals. Except with respect to
this Agreement and the transactions contemplated hereby, neither
Xxxxxx Xxxxxxxx nor any Affiliate thereof nor any investment
banker, attorney, accountant or other representative
(collectively, "Representatives") retained by Xxxxxx Xxxxxxxx
shall directly or indirectly solicit any Acquisition Proposal by
any Person. Except to the extent necessary to comply with the
fiduciary duties of a Xxxxxx Xxxxxxxx'x Board of Directors as
advised by counsel, neither Xxxxxx Xxxxxxxx nor any Affiliate or
Representative thereof shall furnish any non-public information
that it is not legally obligated to furnish, negotiate with
respect to, or enter into any Contract with respect to, any
Acquisition Proposal, but Xxxxxx Xxxxxxxx may communicate
information about such an Acquisition Proposal to its
shareholders if and to the extent that it is required to do so in
order to comply with its legal obligations as advised by counsel.
Xxxxxx Xxxxxxxx shall promptly notify Premier orally and in
writing in the event that it receives any inquiry or proposal
relating to any such transaction. Unless the prior written
consent of Premier is obtained, Xxxxxx Xxxxxxxx shall (a)
immediately cease and cause to be terminated any existing
activities, discussions or negotiations with any Persons
conducted heretofore with respect to any of the foregoing, and
(b) direct and use its reasonable efforts to cause all of its
Representatives not to engage in any of the foregoing.
VIII.9 Accounting and Tax Treatment. Each of the Parties
undertakes and agrees to use its reasonable efforts to cause the
Merger to qualify, and to take no action which would cause the
Merger not to qualify, for treatment as a "reorganization" within
the meaning of Section 368(a) of the Internal Revenue Code for
federal income tax purposes. Each of the Parties further
undertakes and agrees to use its reasonable best efforts to cause
the Merger to be eligible, and to take no action which would
cause the Merger not to be accounted for as a "pooling of
interests."
VIII.10 Agreement of Affiliates. Xxxxxx Xxxxxxxx has
disclosed in Section 8.10 of the Xxxxxx Xxxxxxxx Disclosure
Memorandum all Persons whom it reasonably believes is an
"affiliate" of Xxxxxx Xxxxxxxx for purposes of Rule 145 under the
1933 Act. Xxxxxx Xxxxxxxx shall use its reasonable efforts to
cause each such Person to deliver to Premier and Xxxxxx Xxxxxxxx,
not later than thirty (30) days after the date of this Agreement,
a written agreement, substantially in the form of Exhibit 1,
providing that such Person will not sell, pledge, transfer or
otherwise dispose of the shares of Xxxxxx Xxxxxxxx Common Stock
held by such Person except as contemplated by such agreement or
by this Agreement and will not sell, pledge, transfer or
otherwise dispose of the shares of Surviving Corporation Common
Stock to be received by such Person upon consummation of the
Merger except in compliance with applicable provisions of the
1933 Act and the rules and regulations thereunder. The Surviving
Corporation shall be entitled to place restrictive legends upon
certificates for shares of Surviving Corporation Common Stock
issued to Affiliates of Xxxxxx Xxxxxxxx pursuant to this
Agreement to enforce the provisions of this Section 8.10. The
Surviving Corporation shall not be required to maintain the
effectiveness of the Registration Statement under the 1933 Act
for the purposes of resale of Surviving Corporation Common Stock
by such Affiliates.
VIII.11 Employee Benefits and Contracts.
(a) Following the Effective Time, the Surviving
Corporation shall provide generally to officers and employees of
the Xxxxxx Xxxxxxxx Companies who continue employment with the
Surviving Corporation or its Subsidiaries following the Effective
Time employee benefits under employee benefit plans, on terms and
conditions which when taken as a whole are substantially similar
to those currently provided by the Premier Companies to their
similarly situated officers and employees. For purposes of
participation under such employee benefit plans, the service of
the employees of the Xxxxxx Xxxxxxxx Companies prior to the
Effective Time shall be treated as service with a Premier Company
participating in such employee benefit plans, provided that, with
respect to any employee benefit plan where the benefits are
funded through insurance, the granting of such service shall be
subject to the consent of the appropriate insurer and may be
conditioned upon an employee's participation in a Xxxxxx Xxxxxxxx
Benefit Plan of the same type immediately prior to the Effective
Time.
(b) The Surviving Corporation and its Subsidiaries
also shall honor in accordance with their terms all employment,
severance, consulting and other compensation Contracts disclosed
in Section 8.11 of the Xxxxxx Xxxxxxxx Disclosure Memorandum to
Premier between any Xxxxxx Xxxxxxxx Company and any current or
former director, officer, or employee thereof and all provisions
for vested benefits accrued through the Effective Time under the
Xxxxxx Xxxxxxxx Benefit Plans. Premier and Premier Bank as
appropriate shall enter into a three year employment agreement
with Xxxxx X. Xxxxx, a two year employment agreement with Xxxxxx
X. Xxxxxxxxx and contracts with Xxxxx X. Xxxxxx, Xxxxxxx X.
Xxxxxx and Xxxx X. Xxxxxxxxx in substantially the forms attached
hereto as Exhibits 5-9.
VIII.12 Merger of Gwinnett County Bank and Premier Bank.
Contemporaneously with the Closing or as soon as practicable
thereafter, Gwinnett County Bank shall be merged with and into
Premier Bank.
VIII.13 Indemnification.
(a) Subject to the conditions set forth in paragraph
(b) below, for a period of four and one-half (4 1/2) years after
the Effective Time, the Surviving Corporation shall indemnify,
defend, and hold harmless the present and former directors,
officers, employees, and agents of the Xxxxxx Xxxxxxxx Companies
(each, an "Indemnified Party") against all Liabilities arising
out of actions or omissions occurring at or prior to the
Effective Time (including the transactions contemplated by this
Agreement) to the full extent permitted under Georgia Law and by
Xxxxxx Xxxxxxxx'x 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
Premier is required to effect any indemnification, the Surviving
Corporation 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 Premier and
the Indemnified Party.
(b) Any Indemnified Party wishing to claim
indemnification under paragraph (a) above, upon learning of any
such Liability or Litigation within the four and one-half (4 1/2)
year period after the Effective Time, shall promptly notify
Premier within ten (10) days thereof. In the event of any such
Litigation (whether arising before or after the Effective Time),
(i) Premier shall have the right to assume the defense thereof
and Premier 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 Premier elects not to
assume such defense or counsel for the Indemnified Parties and
advises that there are substantive issues which raise conflicts
of interest between Premier and the Indemnified Parties, the
Indemnified Parties may retain counsel satisfactory to them, and
Premier shall pay all reasonable fees and expenses of such
counsel for the Indemnified Parties promptly as statements
therefor are received; provided, however, that Premier shall be
obligated pursuant to this paragraph (b) to pay for only one firm
of counsel for all Indemnified Parties in any jurisdiction, (ii)
the Indemnified Parties will cooperate in the defense of any such
Litigation; and (iii) Premier shall not be liable for any
settlement effected without its prior written consent; and
provided further that Premier 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.
(c) If the Surviving Corporation or any of its
successors or assigns shall consolidate with or merge into any
other Person and shall not be the continuing or surviving Person
of such consolidation or merger or shall transfer all or
substantially all of its assets to any Person, then and in each
case, proper provision shall be made so that the successors and
assigns of Premier shall assume the obligations set forth in this
Section 8.13.
(d) The provisions of this Section 8.13 are intended
to be for the benefit of and shall be enforceable by, each
Indemnified Party, his or her heirs and representatives.
ARTICLE IX
CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE
-------------------------------------------------
IX.1 Conditions to Obligations of Each Party. The
respective obligations of each Party to perform this Agreement
and consummate the Merger and the other transactions contemplated
hereby are subject to the satisfaction of the following
conditions, unless waived by both Parties pursuant to Section
11.6 of this Agreement:
(a) Shareholder Approval. The shareholders of Premier
and Xxxxxx Xxxxxxxx shall have approved this Agreement, and the
consummation of the transactions contemplated hereby, including
the Merger and with respect to Premier, an increase in the number
of authorized shares of Premier Common Stock, as and to the
extent required by Law, the American Stock Exchange or by the
provisions of any governing instruments.
(b) Regulatory Approvals. All Consents of, filings
and registrations with, and notifications to all Regulatory
Authorities required for consummation of the Merger shall have
been obtained or made and shall be in full force and effect and
all waiting periods required by Law shall have expired. No
Consent obtained from any Regulatory Authority which is necessary
to consummate the transactions contemplated hereby shall be
conditioned or restricted in a manner (including, without
limitation, requirements relating to the raising of additional
capital or the disposition of Assets) which in the reasonable
judgment of the Board of Directors of either Party would so
materially adversely impact the economic or business benefits of
the transactions contemplated by this Agreement as to render
inadvisable the consummation of the Merger.
(c) Consents and Approvals. Each Party shall have
obtained any and all Consents required for consummation of the
Merger (other than those referred to in Section 9.1(b) of this
Agreement) or for the preventing of any Default under any
Contract or Permit of such Party which, if not obtained or made,
is reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on such Party. No Consent so obtained
which is necessary to consummate the transactions contemplated
hereby shall be conditioned or restricted in a manner which in
the reasonable judgment of the Board of Directors of either Party
would so materially adversely impact the economic or business
benefits of the transactions contemplated by this Agreement as to
render inadvisable the consummation of the Merger.
(d) Registration Statement. The Registration
Statement shall be effective under the 1933 Act, no stop orders
suspending the effectiveness of the Registration Statement shall
have been issued, no action, suit, proceeding or investigation by
the SEC to suspend the effectiveness thereof shall have been
initiated and be continuing, and all necessary approvals under
state securities Laws or the 1933 Act or 1934 Act relating to the
issuance or trading of the shares of the Surviving Corporation
Common Stock issuable pursuant to the Merger shall have been
received.
(e) Exchange Listing. The shares of Surviving
Corporation Common Stock issuable pursuant to the Merger shall
have been approved for listing on the American Stock Exchange.
(f) Tax Matters. Premier and Xxxxxx Xxxxxxxx shall
have received a written opinion of counsel from Xxxxxx Xxxxxxx
Xxxxxxxxx & Xxxx, PLLC, in form reasonably satisfactory to them
(the "Tax Opinion"), to the effect that for federal income tax
purposes (i) the Merger will constitute a reorganization within
the meaning of Section 368(a) of the Internal Revenue Code, (ii)
the exchange in the Merger of Xxxxxx Xxxxxxxx Common Stock for
Surviving Corporation Common Stock will not give rise to gain or
loss to the shareholders of Xxxxxx Xxxxxxxx with respect to such
exchange (except to the extent of any cash received), and (iii)
neither Premier nor Xxxxxx Xxxxxxxx will recognize gain or loss
as a consequence of the Merger (except for income and deferred
gain recognized pursuant to Treasury regulations issued under
Section 1502 of the Internal Revenue Code). In rendering such
Tax Opinion, counsel shall be entitled to rely upon
representations of officers of Premier and Xxxxxx Xxxxxxxx
reasonably satisfactory in form and substance to such counsel.
(g) Affiliate Agreements. The Parties shall have
received from each affiliate of Xxxxxx Xxxxxxxx the affiliates
letter referred to in Section 8.10 hereof.
(h) Pooling Letter. The Parties shall have received a
letter from Xxxxxxx & Xxxxxxx, LLC, and from Ernst & Young L.L.P.
dated as of the Effective Time, to the effect that the Merger
will qualify for pooling-of-interests accounting treatment under
Accounting Principles Board Opinion No. 16 if closed and
consummated in accordance with this Agreement.
IX.2 Conditions to Obligations of Premier. The obligations
of Premier to perform this Agreement and consummate the Merger
and the other transactions contemplated hereby are subject to the
satisfaction of the following conditions, unless waived by
Premier pursuant to Section 11.6(a) of this Agreement:
(a) Representations and Warranties. For purposes of
this Section 9.2(a), the accuracy of the representations and
warranties of Xxxxxx Xxxxxxxx set forth or referred to in this
Agreement shall be assessed as of the date of this Agreement and
as of the Effective Time with the same effect as though all such
representations and warranties had been made on and as of the
Effective Time (provided that representations and warranties
which are confined to a specified date shall speak only as of
such date). The representations and warranties of Xxxxxx
Xxxxxxxx set forth in Section 5.3 of this Agreement shall be true
and correct (except for inaccuracies which are de minimis in
amount). The representations and warranties of Xxxxxx Xxxxxxxx
set forth in Section 5.19 of this Agreement shall be true and
correct in all Material respects. There shall not exist
inaccuracies in the representations and warranties of Xxxxxx
Xxxxxxxx set forth in this Agreement (excluding the
representations and warranties set forth in Sections 5.3 and
5.19) such that the aggregate effect of such inaccuracies would
have, or is reasonably likely to have, a Material Adverse Effect
on Xxxxxx Xxxxxxxx; provided that, for purposes of this sentence
only, those representations and warranties which are qualified by
references to "Material" or "Material Adverse Effect" shall be
deemed not to include such qualifications.
(b) Performance of Agreements and Covenants. Each and
all of the agreements and covenants of Xxxxxx Xxxxxxxx to be
performed and complied with pursuant to this Agreement and the
other agreements contemplated hereby prior to the Effective Time
shall have been duly performed and complied with in all material
respects.
(c) Certificates. Xxxxxx Xxxxxxxx shall have
delivered to Premier (i) a certificate, dated as of the Effective
Time and signed on its behalf by its chief executive officer and
its chief financial officer, to the effect that the conditions of
its obligations set forth in Sections 9.2(a) and 9.2(b) of this
Agreement have been satisfied, and (ii) certified copies of
resolutions duly adopted by Xxxxxx Xxxxxxxx'x Board of Directors
and shareholders evidencing the taking of all corporate action
necessary to authorize the execution, delivery and performance of
this Agreement, and the consummation of the transactions
contemplated hereby, all in such reasonable detail as Premier and
its counsel shall request.
(d) Opinion of Counsel. Xxxxxx Xxxxxxxx shall have
delivered to Premier an opinion of Xxxxxx Xxxxxxxxx Xxxxxx &
Xxxxxx LLP, counsel to Xxxxxx Xxxxxxxx, dated as of the Effective
Time, in form reasonably satisfactory to Premier, as to the
matters set forth in Exhibit 2 hereto.
(e) Claims/Indemnification Letters. Each of the
directors and officers of Xxxxxx Xxxxxxxx shall have executed and
delivered to Premier letters in substantially the form of Exhibit
3 hereto.
(f) Premier Fairness Opinion. Premier shall have
received from Xxxxx, Xxxxx Capital Partners, Inc. a letter, dated
not more than five (5) business days prior to the date of the
Proxy Statement, to the effect that, in the opinion of such firm,
the consideration to be paid to Xxxxxx Xxxxxxxx shareholders in
connection with the Merger is fair, from a financial point of
view, to the shareholders of Premier.
(g) Litigation. No preliminary or permanent
injunction or other order by any federal or state court which
prevents the consummation of the Merger shall have been issued
and shall remain in effect, nor any action therefor initiated
which, in the good faith judgment of the Board of Directors of
Premier, it is not in the best interests of the shareholders of
Premier to contest; and there shall not have been instituted or
be pending any action or proceeding by any United States federal
or state government or governmental agency or instrumentality (i)
challenging or seeking to restrain or prohibit the consummation
of the Merger or seeking material damages in connection with the
Merger; or (ii) seeking to prohibit Premier's or the Surviving
Corporation's ownership or operation of all or a material portion
of Premier's or Xxxxxx Xxxxxxxx'x business or assets, or compel
Premier or the Surviving Corporation to dispose of or hold
separate all or a material portion of Premier's or Xxxxxx
Xxxxxxxx'x business or assets as a result of the Merger, which,
in any case, in the reasonable judgment of Premier based upon a
legal opinion from legal counsel, could result in the relief
sought being obtained.
IX.3 Conditions to Obligations of Xxxxxx Xxxxxxxx. The
obligations of Xxxxxx Xxxxxxxx to perform this Agreement and
consummate the Merger and the other transactions contemplated
hereby are subject to the satisfaction of the following
conditions, unless waived by Xxxxxx Xxxxxxxx pursuant to Section
11.6(b) of this Agreement:
(a) Representations and Warranties. For purposes of
this Section 9.3(a), the accuracy of the representations and
warranties of Premier set forth or referred to in this Agreement
shall be assessed as of the date of this Agreement and as of the
Effective Time with the same effect as though all such
representations and warranties had been made on and as of the
Effective Time (provided that representations and warranties
which are confined to a specified date shall speak only as of
such date). The representations and warranties of Premier set
forth in Section 6.3 of this Agreement shall be true and correct
(except for inaccuracies which are de minimis in amount). The
representations and warranties of Premier set forth in Section
6.19 of this Agreement shall be true and correct in all material
respects. There shall not exist inaccuracies in the
representations and warranties set forth in this Agreement
(excluding the representations and warranties set forth in
Sections 6.3 and 6.19) such that the aggregate effect of such
inaccuracies would have, or is reasonably likely to have a
Material Adverse Effect on Premier; provided that, for purposes
of this sentence only, those representations and warranties which
are qualified by reference to "material" or "Material Adverse
Effect" shall be deemed not to include such qualifications.
(b) Performance of Agreements and Covenants. Each and
all of the agreements and covenants of Premier to be performed
and complied with pursuant to this Agreement and the other
agreements contemplated hereby prior to the Effective Time shall
have been duly performed and complied with in all material
respects.
(c) Certificates. Premier shall have delivered to
Xxxxxx Xxxxxxxx (i) a certificate, dated as of the Effective Time
and signed on its behalf by its chief executive officer and its
chief financial officer, to the effect that the conditions of its
obligations set forth in Section 9.3(a) and 9.3(b) of this
Agreement have been satisfied, and (ii) certified copies of
resolutions duly adopted by Premier's Board of Directors
evidencing the taking of all corporate action necessary to
authorize the execution, delivery and performance of this
Agreement, and the consummation of the transactions contemplated
hereby, all in such reasonable detail as Xxxxxx Xxxxxxxx and its
counsel shall request.
(d) Opinion of Counsel. Premier shall have delivered
to Xxxxxx Xxxxxxxx an opinion of Xxxxxx Xxxxxxx Xxxxxxxxx & Xxxx,
PLLC, counsel to Premier, dated as of the Effective Time, in Form
reasonably acceptable to Xxxxxx Xxxxxxxx, as to matters set forth
in Exhibit 4 hereto.
(e) Xxxxxx Xxxxxxxx Fairness Opinion. Xxxxxx Xxxxxxxx
shall have received from The Xxxxxx Xxxxxx Company a letter,
dated not more than five (5) business days prior to the date of
the Proxy Statement, to the effect that, in the opinion of such
firm, the consideration to be paid to Xxxxxx Xxxxxxxx
shareholders in connection with the Merger is fair, from a
financial point of view, to the shareholders of Xxxxxx Xxxxxxxx.
(f) Litigation. No preliminary or permanent
injunction or other order by any federal or state court which
prevents the consummation of the Merger shall have been issued
and shall remain in effect, nor any action therefor initiated
which, in the good faith judgment of the Board of Directors of
Xxxxxx Xxxxxxxx, it is not in the best interests of the
shareholders of Xxxxxx Xxxxxxxx to contest; and there shall not
have been instituted or be pending any action or proceeding by
any United States federal or state government or governmental
agency or instrumentality (i) challenging or seeking to restrain
or prohibit the consummation of the Merger or seeking material
damages in connection with the Merger; or (ii) seeking to
prohibit Premier's or the Surviving Corporation's ownership or
operation of all or a material portion of Premier's or Xxxxxx
Xxxxxxxx'x business or assets, or compel Premier or the Surviving
Corporation to dispose of or hold separate all or a material
portion of Premier's or Xxxxxx Xxxxxxxx'x business or assets as a
result of the Merger, which, in any case, in the reasonable
judgment of Xxxxxx Xxxxxxxx based upon a legal opinion from legal
counsel, could result in the relief sought being obtained.
ARTICLE X
TERMINATION
-----------
X.1 Termination. Notwithstanding any other provision of
this Agreement, and notwithstanding the approval of this
Agreement by the shareholders of Premier and Xxxxxx Xxxxxxxx,
this Agreement may be terminated and the Merger abandoned at any
time prior to the Effective Time:
(a) By mutual consent of the Board of Directors of
Xxxxxx Xxxxxxxx and the Board of Directors of Premier; or
(b) By the Board of Directors of either Party
(provided that the terminating Party is not then in breach of any
representation or warranty contained in this Agreement under the
applicable standard set forth in Section 9.2(a) of this Agreement
in the case of Xxxxxx Xxxxxxxx and Section 9.3(a) in the case of
Premier or in Material breach of any covenant or agreement
contained in this Agreement) in the event of a material breach by
the other Party of any representation or warranty contained in
this Agreement which cannot be or has not been cured within
thirty (30) days after the giving of written notice to the
breaching Party of such breach and which breach would provide the
non-breaching Party the ability to refuse to consummate the
Merger under the standard set forth in Section 9.2(a) of this
Agreement in the case of Premier and Section 9.3(a) of this
Agreement in the case of Xxxxxx Xxxxxxxx; or
(c) By the Board of Directors of either Party
(provided that the terminating Party is not then in breach of any
representation or warranty contained in this Agreement under the
applicable standard set forth in Section 9.2(a) of this Agreement
in the case of Xxxxxx Xxxxxxxx and Section 9.3(a) in the case of
Premier or in the Material breach of any covenant or other
agreement contained in this Agreement) in the event of a Material
breach by the other Party of any covenant or agreement contained
in this Agreement which cannot be or has not been cured within
thirty (30) days after the giving of written notice to the
breaching Party of such breach; or
(d) By the Board of Directors of either Party in the
event (provided that the terminating Party is not then in breach
of any representation or warranty contained in this Agreement
under the applicable standard set forth in Section 9.2(a) of this
Agreement in the case of Xxxxxx Xxxxxxxx and Section 9.3(a) in
the case of Premier or in the material breach of any covenant or
agreement contained in this Agreement) (i) any Consent of any
Regulatory Authority required for consummation of the Merger and
the other transactions contemplated hereby shall have been denied
by final nonappealable action of such authority or if any action
taken by such authority is not appealed within the time limit for
appeal, or (ii) if the shareholders of Xxxxxx Xxxxxxxx fail to
vote their approval of this Agreement and the transactions
contemplated hereby as required by the GBCC at the Shareholders'
Meeting where the transactions were presented to such
shareholders for approval and voted upon; or (iii) if the
shareholders of Premier fail to vote their approval of this
Agreement and the transactions contemplated hereby as required by
the GBCC at the Shareholders' Meeting where the transactions were
presented to such shareholders for approval and voted upon; or
(e) By the Board of Directors of either Party in the
event that the Merger shall not have been consummated on or
before September 30, 1998, but only if the failure to consummate
the transactions contemplated hereby on or before such date is
not caused by any breach of this Agreement by the Party electing
to terminate pursuant to this Section 10.1(e); or
(f) By the Board of Directors of either Party
(provided that the terminating Party is not then in breach of any
representation or warranty contained in this Agreement under the
applicable standard set forth in Section 9.2(a) of this Agreement
in the case of Xxxxxx Xxxxxxxx and Section 9.3(a) in the case of
Premier or in the material breach of any covenant or other
agreement contained in this Agreement) in the event that any of
the conditions precedent to the obligations of such Party to
consummate the Merger (other than as contemplated by Section
10.1(d) of this Agreement) cannot be satisfied or fulfilled by
the date specified in Section 10.1(e) of this Agreement; or
(g) By the Board of Directors of either Party in the
event that the Premier Ratio (as defined in Section 3.1(c)) is
either less than 0.70 or greater than 1.30.
(h) By the Board of Directors of either Party on or
before two (2) business days following the business day of
receipt of the Disclosure Memorandum of the other Party (which
receipt shall not be later than February 13, 1998), in the event
that such Party, after a review of the Disclosure Memorandum
provided by the other Party, determines not to proceed with the
Merger.
X.2 Effect of Termination. In the event of the termination
and abandonment of this Agreement pursuant to Section 10.1 of
this Agreement, this Agreement shall become void and have no
effect, except that the provisions of this Section 10.2 and
Article 11 and Section 8.6(b) of this Agreement shall survive any
such termination and abandonment.
X.3 Non-Survival of Representations and Covenants. The
respective representations, warranties, obligations, covenants,
and agreements of the Parties shall not survive the Effective
Time except for this Section 10.3 and Articles 2, 3, 4 and 11 and
Sections 8.10, 8.11 and 8.13 of this Agreement.
ARTICLE XI
MISCELLANEOUS
-------------
XI.1 Definitions. Except as otherwise provided herein, the
capitalized terms set forth below (in their singular and plural
forms as applicable) shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as
amended.
"1934 Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Acquisition Proposal" shall mean any tender offer or
exchange offer or any proposal for a merger (other than the
Merger), acquisition of all of the stock or Assets of, or other
business combination involving Xxxxxx Xxxxxxxx or any of its
Subsidiaries or the acquisition of a substantial equity interest
in, or a substantial portion of the Assets of Xxxxxx Xxxxxxxx or
any of its Subsidiaries.
"Affiliate" of a Person shall mean: (i) any other Person
directly, or indirectly through one or more intermediaries,
controlling, controlled by or under common control with such
Person; (ii) any officer, director, partner, employer, or direct
or indirect beneficial owner of any 10% or greater equity or
voting interest of such Person; or (iii) any other Person for
which a Person described in clause (ii) acts in such capacity.
"Agreement" shall mean this Agreement and Plan of
Reorganization, including the Exhibits delivered pursuant hereto
and incorporated herein by reference.
"Allowance" shall have the meaning provided in Section 5.9
of this Agreement.
"Assets" of a Person shall mean all of the assets,
properties, businesses and rights of such Person of every kind,
nature, character and description, whether real, personal or
mixed, tangible or intangible, accrued or contingent, or
otherwise relating to or utilized in such Person's business,
directly or indirectly, in whole or in part, whether or not
carried on the books and records of such Person, and whether or
not owned in the name of such Person or any Affiliate of such
Person and wherever located.
"BHC Act" shall mean the federal Bank Holding Company Act of
1956, as amended.
"Xxxxxx Xxxxxxxx Benefit Plans" shall have the meaning set
forth in Section 5.14 of this Agreement.
"Xxxxxx Xxxxxxxx Common Stock" shall mean the $.01 par value
common stock of Xxxxxx Xxxxxxxx.
"Xxxxxx Xxxxxxxx Companies" shall mean, collectively, Xxxxxx
Xxxxxxxx and all Xxxxxx Xxxxxxxx Subsidiaries.
"Xxxxxx Xxxxxxxx Disclosure Memorandum" shall mean the
written information entitled "Xxxxxx Xxxxxxxx Disclosure
Memorandum" delivered on or prior to February 13, 1998 to Premier
describing in reasonable detail the matters contained therein,
specifically referencing each Section of this Agreement under
which such disclosure is being made.
"Xxxxxx Xxxxxxxx Financial Statements" shall mean (a) the
consolidated balance sheets (including related notes and
schedules, if any) of Xxxxxx Xxxxxxxx as of December 31, 1997,
and December 31, 1996 and 1995, and the related statements of
income, changes in shareholders' equity, and cash flows
(including related notes and schedules, if any) for each of the
three fiscal years ended December 31, 1997, 1996 and 1995,
included in the Xxxxxx Xxxxxxxx Disclosure Memorandum, and (b)
the consolidated balance sheets (including related notes and
schedules, if any) of Xxxxxx Xxxxxxxx and related statements of
income, changes in shareholders' equity, and cash flows
(including related notes and schedules, if any) included in any
SEC Documents filed with respect to periods ended subsequent to
December 31, 1997.
"Xxxxxx Xxxxxxxx Options" shall have the meaning set forth
in Section 3.4 of this Agreement.
"Xxxxxx Xxxxxxxx Stock Plans" shall mean the existing stock
option and other stock-based compensation plans of Xxxxxx
Xxxxxxxx disclosed in Section 5.14 of the Xxxxxx Xxxxxxxx
Disclosure Memorandum.
"Xxxxxx Xxxxxxxx Subsidiaries" shall mean the subsidiaries
of Xxxxxx Xxxxxxxx.
"Closing" shall mean the closing of the transactions
contemplated hereby, as described in Section 1.2 of this
Agreement.
"Closing Date" shall mean the date on which the Closing
occurs.
"Consent" shall mean any consent, approval, authorization,
clearance, exemption, waiver, or similar affirmation by any
Person pursuant to any Contract, Law, Order, or Permit.
"Contract" shall mean any written or oral agreement,
arrangement, authorization, commitment, contract, indenture,
instrument, lease, obligation, plan, practice, restriction,
understanding or undertaking of any kind or character, or other
document to which any Person is a party or that is binding on any
Person or its capital stock, Assets or business.
"Default" shall mean (a) any breach or violation of or
default under any Contract, Order or Permit, (b) any occurrence
of any event that with the passage of time or the giving of
notice or both would constitute a breach or violation of or
default under any Contract, Order or Permit, or (c) any
occurrence of any event that with or without the passage of time
or the giving of notice would give rise to a right to terminate
or revoke, change the current terms of, or renegotiate, or to
accelerate, increase, or impose any Liability under, any
Contract, Order or Permit.
"Effective Time" shall mean the date and time at which the
Merger becomes effective as defined in Section 1.3 of this
Agreement.
"Environment" shall have the meaning specified in the
Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. 9601(8).
"Environmental Laws" shall mean all Laws pertaining to
pollution or protection of the environment and which are
administered, interpreted or enforced by the United States
Environmental Protection Agency and state and local agencies with
primary jurisdiction over pollution or protection of the
environment, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C.
9601 et. seq., the Resource, Conservation and Recovery Act, 42
U.S.C. 6901 et. seq., the Toxic Substance Control Act, 15
U.S.C. 2601, et. seq., and all implementing regulations and
state counterparts of such acts.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended.
"ERISA Affiliate" shall refer to a relationship between
entities such that the entities would, now or at any time in the
past, constitute a "single employer" within the meaning of
Section 414 of the Internal Revenue Code.
"ERISA Plan" shall have the meaning provided in Section 5.14
of this Agreement.
"Exchange Ratio" shall have the meaning provided in Section
3.1 of this Agreement.
"Exhibits" 1 through 9, inclusive, shall mean the Exhibits
so marked, copies of which are attached to this Agreement. Such
Exhibits are hereby incorporated by reference herein and made a
part hereof and may be referred to in this Agreement and any
other related instrument or document without being attached
hereto.
"GAAP" shall mean generally accepted accounting principles,
consistently applied during the periods involved.
"GBCC" shall mean the Georgia Business Corporation Code.
"Georgia Certificate of Merger" shall mean the Certificate
of Merger to be executed by the Surviving Corporation and filed
with the Secretary of State of the State of Georgia relating to
the Merger as contemplated by Section 1.1 of this Agreement.
"Hazardous Material" shall mean any substance which is a
"hazardous substance"or "toxic substance" as defined in the
Comprehensive Environment Response, Compensation, and Liability
Act, 42 U.S.C. 9601 et seq., or any other substance or material
defined, designated, classified or regulated as hazardous or
toxic under any Environmental Law, specifically including
asbestos requiring abatement, removal or encapsulation pursuant
to the requirements of Environmental Laws of polychlorinated
biphenyls, and petroleum and petroleum products).
"HOLA" shall mean the Home Owners Loan Act of 1933, as
amended.
"Internal Revenue Code" shall mean the Internal Revenue Code
of 1986, as amended, and the rules and regulations promulgated
thereunder.
"Knowledge" as used with respect to a Person shall mean the
knowledge after due inquiry of the Chairman, President, Chief
Financial Officer, Chief Accounting Officer, Chief Credit
Officer, or any Senior or Executive Vice President of such
Person.
"Law" shall mean any code, law, ordinance, regulation,
reporting or licensing requirement, rule, or statute applicable
to a Person or its Assets, Liabilities or business, including,
without limitation, those promulgated, interpreted or enforced by
any of the Regulatory Authorities.
"Liability" shall mean any direct or indirect, primary or
secondary, liability, indebtedness, obligation, penalty, cost or
expense (including, without limitation, costs of investigation,
collection and defense), claim, deficiency, guaranty or
endorsement of or by any Person (other than endorsements of
notes, bills, checks, and drafts presented for collection or
deposit in the ordinary course of business) of any type, whether
accrued, absolute or contingent, liquidated or unliquidated,
matured or unmatured, or otherwise.
"Lien" shall mean any conditional sale agreement, easement,
encroachment, encumbrance, hypothecation, infringement, lien,
mortgage, pledge, reservation, restriction, security interest,
title retention or other security arrangement, or any adverse
right or interest, charge, or claim of any nature whatsoever on,
or with respect to, any property or property interest, other than
(i) Liens for current property Taxes not yet due and payable;
(ii) for depository institution Subsidiaries of a Party, pledges
to secure deposits and (iii) other Liens incurred in the ordinary
course of the banking business.
"Litigation" shall mean any action, arbitration, cause of
action, claim, complaint, criminal prosecution, demand letter,
governmental or other examination or investigation, hearing,
inquiry, administrative or other proceeding, or notice (written
or oral) by any Person alleging potential Liability or requesting
information relating to or affecting a Party, its business, its
Assets (including, without limitation, Contracts related to it),
or the transactions contemplated by this Agreement, but shall not
include regular, periodic examinations of depository institutions
and their Affiliates by Regulatory Authorities other than the
violations of law section from such reports.
"Loan Property" shall mean any property owned by the Party
in question or by any of its Subsidiaries or in which such Party
or Subsidiary holds a security interest, and, where required by
the context, includes the owner or operator of such property, but
only with respect to such property.
"Material" for purposes of this Agreement shall be
determined in light of the facts and circumstances of the matter
in question; provided that any specific monetary amount stated in
this Agreement shall determine materiality in that instance.
"Material Adverse Effect" on a Party shall mean an event,
change or occurrence which has a material adverse impact on (a)
the financial position, business, or results of operations of
such Party and its Subsidiaries, taken as a whole, or (b) the
ability of such Party to perform its obligations under this
Agreement or to consummate the Merger or the other transactions
contemplated by this Agreement, provided that "material adverse
impact" shall not be deemed to include the impact of (w) changes
in banking and similar Laws of general applicability or
interpretations thereof by courts or governmental authorities,
(x) changes in GAAP or regulatory accounting principles generally
applicable to banks and their holding companies, (y) actions and
omissions of a Party (or any of its Subsidiaries) taken with the
prior informed consent of the other Party in contemplation of the
transactions contemplated hereby, or (z) the Merger and
compliance with the provisions of this Agreement on the operating
performance of the Parties.
"Merger" shall mean the merger of Xxxxxx Xxxxxxxx with and
into Premier referred to in Section 1.1 of this Agreement.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"Order" shall mean any administrative decision or award,
decree, injunction, judgment, order, quasi-judicial decision or
award, ruling, or writ of any federal, state, local or foreign or
other court, arbitrator, mediator, tribunal, administrative
agency or Regulatory Authority.
"Participation Facility" shall mean any facility or property
in which the Party in question or any of its Subsidiaries
participates in the management (including any property or
facility held in a joint venture) and, where required by the
context, said term means the owner or operator of such facility
or property, but only with respect to such facility or property.
"Party" shall mean either Premier or Xxxxxx Xxxxxxxx, and
"Parties" shall mean both Premier and Xxxxxx Xxxxxxxx.
"Permit" shall mean any federal, state, local, and foreign
governmental approval, authorization, certificate, easement,
filing, franchise, license, notice, permit, or right to which any
Person is a party or that is or may be binding upon or inure to
the benefit of any Person or its securities, Assets, Liabilities,
or business.
"Person" shall mean a natural person or any legal,
commercial or governmental entity, such as, but not limited to, a
corporation, general partnership, joint venture, limited
partnership, limited liability company, trust, business
association, group acting in concert, or any person acting in a
representative capacity.
"Premier Bank" shall mean Premier Bank, a Georgia
state-chartered bank and a Premier Subsidiary.
"Premier Benefit Plans" shall have the meaning set forth in
Section 6.14 of this Agreement.
"Premier Common Stock" shall mean the $1.00 par value common
stock of Premier.
"Premier Companies" shall mean, collectively, Premier and
all Premier Subsidiaries.
"Premier Disclosure Memorandum" shall mean the written
information entitled "Premier Disclosure Memorandum" delivered on
or prior to February 13, 1998 to Xxxxxx Xxxxxxxx describing in
reasonable detail the matters contained therein and, with respect
to each disclosure made therein, specifically referencing each
Section of this Agreement under which such disclosure is being
made.
"Premier Financial Statements" shall mean (a) the
consolidated balance sheets (including related notes and
schedules, if any) of Premier as of December 31, 1997 and 1996,
and the related statements of income, changes in shareholders'
equity, and cash flows (including related notes and schedules, if
any) for each of the three years ended December 31, 1997, 1996
and 1995, and (b) the consolidated balance sheets (including
related notes and schedules, if any) of Premier and related
statements of income, changes in shareholders' equity, and cash
flows (including related notes and schedules, if any) included in
SEC Documents filed with respect to periods ended subsequent to
December 31, 1997.
"Premier Lending" shall mean Premier Lending Corporation, a
Georgia corporation and a Premier Subsidiary.
"Premier Stock Plans" shall mean the existing stock option
and other stock-based compensation plans of Premier.
"Premier Subsidiaries" shall mean the Subsidiaries of
Premier at the Effective Time.
"Proxy Statement" shall mean (a) the proxy statement used by
Xxxxxx Xxxxxxxx to solicit the approval of its shareholders of
the transactions contemplated by this Agreement and (b) the proxy
statement used by Premier to solicit the approval of its
shareholders of the transactions contemplated by this Agreement,
both of which shall be included in the prospectus of the
Surviving Corporation relating to shares of Surviving Corporation
Common Stock to be issued to the shareholders of Xxxxxx Xxxxxxxx.
"Registration Statement" shall mean the Registration
Statement on Form S-4, or other appropriate form, filed with the
SEC by Premier under the 1933 Act with respect to the shares of
Surviving Corporation Common Stock to be issued to the
shareholders of Xxxxxx Xxxxxxxx in connection with the
transactions contemplated by this Agreement and which shall
include the Proxy Statements.
"Regulatory Authorities" shall mean, collectively, the
Federal Trade Commission, the United States Department of
Justice, the Board of the Governors of the Federal Reserve
System, the Office of Thrift Supervision (including its
predecessor, the Federal Home Loan Bank Board), the Office of the
Comptroller of the Currency, the Federal Deposit Insurance
Corporation, all state regulatory agencies having jurisdiction
over the Parties and their respective Subsidiaries, the NASD and
the SEC.
"Rights" shall mean all arrangements, calls, commitments,
Contracts, options, rights to subscribe to, scrip,
understandings, warrants or other binding obligations of any
character whatsoever relating to, or securities or rights
convertible into or exchangeable for, shares of the capital stock
of a Person or by which a Person is or may be bound to issue
additional shares of its capital stock or other Rights.
"SEC" shall mean the United States Securities and Exchange
Commission.
"SEC Documents" shall mean all forms, proxy statements,
registration statements, reports, schedules and other documents
filed, or required to be filed, by a Party or any of its
Subsidiaries with any Regulatory Authority pursuant to the
Securities Laws.
"Securities Laws" shall mean the 1933 Act, the 1934 Act, the
Investment Company Act of 1940, as amended, the Investment
Advisors Act of 1940, as amended, the Trust Indenture Act of
1939, as amended, and the rules and regulations of any Regulatory
Authority promulgated thereunder.
"Shareholders' Meeting" shall mean the meeting of the
shareholders of Xxxxxx Xxxxxxxx or the meeting of the
shareholders of Premier to be held pursuant to Section 8.1 of
this Agreement, including any adjournment or adjournments
thereof.
"Subsidiaries" shall mean all those corporations, banks,
associations or other entities of which the entity in question
owns or controls 50% or more of the outstanding equity securities
either directly or through an unbroken chain of entities as to
each of which 50% or more of the outstanding equity securities
is owned directly or indirectly by its parent; provided, however,
there shall not be included any such entity acquired through
foreclosure or any such entity the equity securities of which are
owned or controlled in a fiduciary capacity.
"Surviving Corporation" shall mean Premier as the surviving
corporation resulting from the Merger,
"Surviving Corporation Common Stock" shall mean the $1.00
par value common stock of the Surviving Corporation.
"Tax" or "Taxes" shall mean any federal, state, county,
local or foreign income, profits, franchise, gross receipts,
payroll, sales, employment, use, property, withholding, excise,
occupancy and other taxes, assessments, charges, fares or
impositions, including interest, penalties and additions imposed
thereon or with respect thereto.
"The Bank of Gwinnett County" shall mean The Bank of
Gwinnett County, a Georgia chartered commercial bank and a Xxxxxx
Xxxxxxxx Subsidiary.
"Year 2000 Problem" shall mean any problem affecting the
ability of any Xxxxxx Xxxxxxxx Company to continue operation as
an ongoing business or to provide the usual and customary
services of any Button Company, relating to the failure of
software, hardware or other computer equipment to: (a) store all
date-related information and process all data interfaces
involving dates in a manner that unambiguously identifies the
century, for all date values before, during or after the Year
2000; (b) calculate, sort, report and otherwise operate correctly
and in a consistent manner for all date information processed by
any software, hardware or other computer equipment, whether
before, during or after the Year 2000; (c) calculate, sort,
report and otherwise operate correctly, in a consistent manner
and without interruption regardless whether the date on which the
software, hardware or other computer equipment is operated or
executed is before, during or after the Year 2000; (d) report and
display all dates with a four-digit date so that the century is
unambiguously identified; and (e) handle all leap years,
including but not limited to the Year 2000 leap year, correctly.
Any singular term in this Agreement shall be deemed to include
the plural, and any plural term the singular. Whenever the words
"include," "includes," or "including" are used in this Agreement,
they shall be deemed followed by the words "without limitation."
XI.2 Expenses.
(a) Except as otherwise provided in this Section 11.2,
each of the Parties shall bear and pay all direct costs and
expenses incurred by it or on its behalf in connection with the
transactions contemplated hereunder, including filing,
registration and application fees, printing fees, and fees and
expenses of its own financial or other consultants, investment
bankers, accountants and counsel, except that each of the Parties
shall bear and pay (i) one-half of the filing fees payable in
connection with the Registration Statement and the applications
filed with other Regulatory Authorities, and (ii) one-half of the
costs incurred in connection with the printing or copying of the
Proxy Statements.
(b) Notwithstanding the provisions of Section 11.2(a)
of this Agreement, if for any reason this Agreement is terminated
pursuant to Sections 10.1(b) or 10.1(c) of this Agreement, the
breaching Party agrees to pay the non-breaching Party (i) an
amount equal to the reasonable and documented fees and expenses
incurred by such non-breaching Party in connection with the
examination and investigation of the breaching Party, the
preparation and negotiation of this Agreement and related
agreements, regulatory filings and other documents related to the
transactions contemplated hereunder, including, without
limitation, fees and expenses of investment banking consultants,
accountants, attorneys and other agents and (ii) (x) $150,000 if
the breach is not willful or (y) $1,000,000 if the breach is
willful or this Agreement is terminated in contemplation of an
Acquisition Proposal, which sums represent compensation for the
non-breaching Party's loss as a result of the transactions
contemplated by this Agreement not being consummated. Final
settlement with respect to payment of such fees and expenses
shall be made within thirty (30) days after the termination of
this Agreement. This Section 11.2(b) shall be the non-breaching
Party's sole and exclusive remedy for actionable breach by the
breaching Party under this Agreement.
XI.3 Brokers and Finders. Each of the Parties represents
and warrants that neither it nor any of its officers, directors,
employees or Affiliates has employed any broker or finder or
incurred any Liability for any financial advisory fees,
investment bankers' fees, brokerage fees, commissions, or
finders' fees in connection with this Agreement or the
transactions contemplated hereby, other than Xxxxx, Xxxxx Capital
Partners, Inc. employed by Premier and The Xxxxxx Xxxxxx Company
employed by Xxxxxx Xxxxxxxx. In the event of a claim by any
broker or finder based upon his or its representing or being
retained by or allegedly representing or being retained by
Premier or Xxxxxx Xxxxxxxx, each of Premier and Xxxxxx Xxxxxxxx,
as the case may be, agrees to indemnify and hold the other Party
harmless of and from any Liability in respect of any such claim.
XI.4 Entire Agreement. Except as otherwise expressly
provided herein, this Agreement (including the documents and
instruments referred to herein) constitutes the entire agreement
between the Parties with respect to the transactions contemplated
hereunder and supersedes all prior arrangements or understandings
with respect thereto, written or oral. Nothing in this Agreement
expressed or implied, is intended to confer upon any Person,
other than the Parties or their respective successors, any
rights, remedies, obligations, or liabilities under or by reason
of this Agreement, other than as provided in Section 8.10 and
Section 8.13 of this Agreement.
XI.5 Amendments. To the extent permitted by Law, this
Agreement may be amended by a subsequent writing signed by each
of the Parties upon the approval of the Boards of Directors of
each of the Parties; provided, however, that after any such
approval by the holders of Premier Common Stock or Xxxxxx
Xxxxxxxx Common Stock, there shall be made no amendment that
pursuant to the GBCC requires further approval by such
shareholders without the further approval of such shareholders.
XI.6 Waivers.
(a) Prior to or at the Effective Time, Premier, acting
through its Board of Directors, chief executive officer or other
authorized officer, shall have the right to waive any Default in
the performance of any term of this Agreement by Xxxxxx Xxxxxxxx,
to waive or extend the time for the compliance or fulfillment by
Xxxxxx Xxxxxxxx of any and all of its obligations under this
Agreement, and to waive any or all of the conditions precedent to
the obligations of Premier under this Agreement, except any
condition which, if not satisfied, would result in the violation
of any Law. No such waiver shall be effective unless in writing
and signed by a duly authorized officer of Premier.
(b) Prior to or at the Effective Time, Xxxxxx
Xxxxxxxx, acting through its Board of Directors, chief executive
officer or other authorized officer, shall have the right to
waive any Default in the performance of any term of this
Agreement by Premier, to waive or extend the time for the
compliance or fulfillment by Premier of any and all of its
obligations under this Agreement, and to waive any or all of the
conditions precedent to the obligations of Xxxxxx Xxxxxxxx under
this Agreement, except any condition which, if not satisfied,
would result in the violation of any Law. No such waiver shall
be effective unless in writing and signed by a duly authorized
officer of Xxxxxx Xxxxxxxx.
(c) The failure of any Party at any time or times to
require performance of any provision hereof shall in no manner
affect the right of such Party at a later time to enforce the
same or any other provision of this Agreement. No waiver of any
condition or of the breach of any term contained in this
Agreement in one or more instances shall be deemed to be or
construed as a further or continuing waiver of such condition or
breach or a waiver of any other condition or of the breach of any
other term of this Agreement.
XI.7 Assignment. Except as expressly contemplated hereby,
neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any Party hereto
(whether by operation of Law or otherwise) without the prior
written consent of the other Party. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the
benefit of and be enforceable by the Parties and their respective
successors and assigns.
XI.8 Notices. All notices or other communications which are
required or permitted hereunder shall be in writing and
sufficient if delivered by hand, by facsimile transmission, or by
courier or overnight carrier, to the persons at the addresses set
forth below (or at such other address as may be provided
hereunder), and shall be deemed to have been delivered as of the
date so delivered:
Premier: Premier Bancshares, Inc.
0000 Xxxxxxx Xxxxx
000 Xxxx Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Telecopy Number: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
Chairman and CEO
Copy to Counsel: Xxxxxx Xxxxxxx Xxxxxxxxx & Xxxx, PLLC
Suite 700
1275 Peachtree Street, N.E.
Xxxxxxx, Xxxxxxx 00000
Telecopy Number: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxx Xxxxxxxx: Xxxxxx Xxxxxxxx Financial Corporation
000 Xxxxx Xxxxx Xxxxxx, X.X.
Xxxxxxxxxxxxx, Xxxxxxx 00000
Telecopy Number: (000) 000-0000
Attention: Xxxxx X. Xxxxx
President
Copy to Counsel: Powell, Goldstein, Xxxxxx & Xxxxxx, LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Telecopy Number: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
XI.9 Governing Law. This Agreement shall be governed by and
construed in accordance with the Laws of the State of Georgia,
without regard to any applicable conflicts of Laws, except to the
extent that the federal laws of the United States may apply to
the Merger.
XI.10 Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute one and the
same instrument.
XI.11 Captions. The captions contained in this
Agreement are for reference purposes only and are not part of
this Agreement.
XI.12 Enforcement of Agreement. The Parties hereto
agree that irreparable damage would occur in the event that any
of the provisions of this Agreement was not performed in
accordance with its specific terms or was otherwise breached. It
is accordingly agreed that the Parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions hereof in
any court of the United States or any state having jurisdiction,
this being in addition to any other remedy to which they are
entitled at law or in equity.
XI.13 Severability. Any term or provision of this
Agreement which is invalid or unenforceable in any jurisdiction
shall, as to that jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of
the terms or provisions of this Agreement in any other
jurisdiction. If any provision of this Agreement is so broad as
to be unenforceable, the provision shall be interpreted to be
only so broad as is enforceable.
[SIGNATURES ON NEXT PAGE]
IN WITNESS WHEREOF, each of the Parties has caused this
Agreement to be executed on its behalf and its corporate seal to
be hereunto affixed and attested by officers thereunto as of the
day and year first above written.
ATTEST: PREMIER BANCSHARES, INC.
--------------- By:
Secretary Xxxxxxx X. Xxxxxxx
Chairman and Chief Executive Officer
[CORPORATE SEAL]
ATTEST: XXXXXX XXXXXXXX FINANCIAL
CORPORATION
--------------- By:
Secretary Xxxxx X. Xxxxx
President
[CORPORATE SEAL]
EXHIBIT 1
---------
AFFILIATE AGREEMENT
Premier Bancshares, Inc.
0000 Xxxxxxx Xxxxx
000 Xxxx Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Xxxxxx Xxxxxxxx Financial Corporation
000 Xxxxx Xxxxx Xxxxxx, X.X.
Xxxxxxxxxxxxx, Xxxxxxx 00000
Gentlemen:
The undersigned is a shareholder of Xxxxxx Xxxxxxxx
Financial Corporation ("Xxxxxx Xxxxxxxx"), a corporation
organized and existing under the laws of the State of Georgia,
and will become a shareholder of Premier Bancshares, Inc.
("Premier" or the "Surviving Corporation") pursuant to the
transactions described in the Agreement and Plan of
Reorganization, dated as of February 5, 1998 (the "Agreement"),
by and between Xxxxxx Xxxxxxxx and Premier. Under the terms of
the Agreement, Premier and Xxxxxx Xxxxxxxx will be merged (the
"Merger") and the shares of common stock of Xxxxxx Xxxxxxxx
("Xxxxxx Xxxxxxxx Common Stock") will be converted into shares of
common stock of the Surviving Corporation ("Surviving Corporation
Common Stock"). This Affiliate Agreement represents an agreement
between the undersigned and the Surviving Corporation regarding
certain rights and obligations of the undersigned in connection
with the shares of the Surviving Corporation to be received by
the undersigned as a result of the Merger.
In consideration of the Merger and the mutual covenants
contained herein, the undersigned and the Surviving Corporation
hereby agree as follows:
Affiliate Status. The undersigned understands and
agrees that as to Xxxxxx Xxxxxxxx the undersigned is an
"affiliate" under Rule 145(c) as defined in Rule 405 of the Rules
and Regulations of the Securities and Exchange Commission ("SEC")
under the Securities Act of 1933, as amended ("1933 Act"), and
the undersigned anticipates that the undersigned will be such an
"affiliate" at the time of the Merger.
Initial Restriction on Disposition. The undersigned
agrees that the undersigned will not, except by operation of law,
by will or under the laws of descent and distribution, sell,
transfer, or otherwise dispose of the undersigned's interests in,
or reduce the undersigned's risk relative to, any of the shares
of the Surviving Corporation Common Stock into which the
undersigned's shares of Xxxxxx Xxxxxxxx Common Stock are
converted upon consummation of the Merger until such time as the
Surviving Corporation notifies the undersigned that the
requirements of SEC Accounting Series Release Nos. 130 and 135
("ASR 130 and 135") have been met. The undersigned understands
that ASR 130 and 135 relate to publication of financial results
of post-Merger combined operations of the Surviving Corporation
and Xxxxxx Xxxxxxxx. The Surviving Corporation agrees that it
will publish such results within 45 days after the end of the
first fiscal quarter of the Surviving Corporation containing the
required period of post-Merger combined operations and that it
will notify the undersigned promptly following such publication.
Covenants and Warranties of Undersigned. The
undersigned represents, warrants and agrees that:
(a) During the 30 days immediately preceding the
effective time of the Merger, the undersigned will not,
except by operation of law, by will, or under the laws of
descent and distribution, sell, transfer, or otherwise
dispose of the undersigned's interests in, or reduce the
undersigned's risk relative to, any of the shares of Xxxxxx
Xxxxxxxx Common Stock beneficially owned by the undersigned
as of the date of the shareholders' meeting of Xxxxxx
Xxxxxxxx held to approve the merger.
(b) The Surviving Corporation Common Stock received by
the undersigned as a result of the Merger will be taken for
the undersigned's own account and not for others, directly
or indirectly, in whole or in part.
(c) The undersigned understands that any distribution
by the undersigned of the Surviving Corporation Common Stock
has not been registered under the 1933 Act and that shares
of the Surviving Corporation Common Stock received pursuant
to the Merger can only be sold by the undersigned (1)
following registration under the 1933 Act, or (2) in
conformity with the volume and other requirements of Rule
145(d) promulgated by the SEC as the same now exist or may
hereafter be amended, or (3) to the extent some other
exemption from registration under the 1933 Act might be
available. The undersigned understands that the Surviving
Corporation is under no obligation to file a registration
statement with the SEC covering the disposition of the
undersigned's shares of the Surviving Corporation Common
Stock.
(d) The undersigned is aware that the Merger is to be
treated as a tax-free reorganization under Section 368 of
the Internal Revenue Code ("Code") for federal income tax
purposes. The undersigned agrees to treat the transaction
in the same manner for federal income tax purposes. The
undersigned acknowledges that Section 1.368-1(b) of the
Income Tax Regulations requires "continuity of interest" in
order for the Merger to be treated as tax-free under Section
368 of the Code. This requirement is satisfied if, taking
into account those who dissent from the Merger, there is no
plan or intention on the part of the Xxxxxx Xxxxxxxx
shareholders to sell or otherwise dispose of the Surviving
Corporation Common Stock to be received in the Merger that
will reduce such shareholders' ownership to a number of
shares having, in the aggregate, a value at the time of the
Merger of less than 50% of the total fair market value of
the Xxxxxx Xxxxxxxx Common Stock outstanding immediately
prior to the Merger. The undersigned has no prearrangement,
plan or intention to sell or otherwise dispose of an amount
of the undersigned's Surviving Corporation Common Stock to
be received in the Merger which would cause the foregoing
requirement not to be satisfied.
4. Restrictions on Transfer. The undersigned understands
and agrees that stop transfer instructions with respect to the
shares of the Surviving Corporation Common Stock received by the
undersigned pursuant to the Merger will be given to the Surviving
Corporation's transfer agent and that there will be placed on the
certificates for such shares, or shares issued in substitution
thereof, a legend stating in substance:
"The shares represented by this certificate were
issued pursuant to a business combination which
is accounted for as a "pooling of interests" and
may not be sold, nor may the owner thereof reduce
his risks relative thereto in any way, until such
time as the Surviving Corporation has published
the financial results covering at least 30 days of
combined operations after the effective date of
the merger through which the business combination
was effected. In addition, the shares represented
by this certificate may not be sold, transferred
or otherwise disposed of except or unless (a)
covered by an effective registration statement
under the Securities Act of 1933, as amended, (b)
in accordance with (i) Rule 145(d) (in the case of
shares issued to an individual who is not an
affiliate of the Surviving Corporation) or (ii)
Rule 144 (in the case of shares issued to an
individual who is an affiliate of the Surviving
Corporation) of the Rules and Regulations of such
Act, or (c) in accordance with a legal opinion
satisfactory to counsel for the Surviving
Corporation that such sale or transfer is
otherwise exempt from the registration
requirements of such Act."
Such legend will also be placed on any certificate representing
the Surviving Corporation securities issued subsequent to the
original issuance of the Surviving Corporation Common Stock
pursuant to the Merger as a result of any stock dividend, stock
split or other recapitalization as long as the Surviving
Corporation Common Stock issued to the undersigned pursuant to
the Merger has not been transferred in such manner to justify the
removal of the legend therefrom. If the provisions of Rules 144
and 145 are amended to eliminate restrictions applicable to the
Surviving Corporation Common Stock received by the undersigned
pursuant to the Merger, or at the expiration of the restrictive
period set forth in Rule 145(d), the Surviving Corporation, upon
the request of the undersigned, will cause the certificates
representing the shares of the Surviving Corporation Common Stock
issued to the undersigned in connection with the Merger to be
reissued free of any legend relating to the restrictions set
forth in Rules 144 and 145(d) upon receipt by the Surviving
Corporation of an opinion of its counsel to the effect that such
legend may be removed.
5. Understanding of Restrictions on Dispositions. The
undersigned has carefully read the Agreement and this Affiliate
Agreement and discussed their requirements and impact upon his or
her ability to sell, transfer or otherwise dispose of the shares
of the Surviving Corporation Common Stock received by the
undersigned, to the extent the undersigned believes necessary,
with the undersigned's counsel or counsel for Xxxxxx Xxxxxxxx.
6. Filing of Reports by the Surviving Corporation. The
Surviving Corporation agrees, for a period of three years after
the effective date of the Merger, to file on a timely basis all
reports required to be filed by it pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended, so that the public
information provisions of Rule 145(d) promulgated by the SEC as
the same are presently in effect will be available to the
undersigned in the event the undersigned desires to transfer any
shares of the Surviving Corporation Common Stock issued to the
undersigned pursuant to the Merger.
7. Transfer Under Rule 145(d). If the undersigned desires
to sell or otherwise transfer the shares of the Surviving
Corporation Common Stock received by the undersigned in
connection with the Merger at any time during the restrictive
period set forth in Rule 145(d), the undersigned will provide the
necessary representation letter to the transfer agent for the
Surviving Corporation Common Stock together with such additional
information as the transfer agent may reasonably request. If the
Surviving Corporation's counsel concludes that such proposed sale
or transfer complies with the requirements of Rule 145(d), the
Surviving Corporation shall cause such counsel to provide such
opinions as may be necessary to the Surviving Corporation's
transfer agent so that the undersigned may complete the proposed
sale or transfer.
8. Acknowledgments. The undersigned recognizes and agrees
that the foregoing provisions also apply to (a) the undersigned's
spouse, (b) any relative of the undersigned or of the
undersigned's spouse who has the same home as the undersigned,
(c) any trust or estate in which the undersigned, the
undersigned's spouse, and any such relative collectively own at
least a 10% beneficial interest or of which any of the foregoing
serves as trustee, executor or in any similar capacity and (d)
any corporation or other organization in which the undersigned,
the undersigned's spouse and any such relative collectively own
at least 10% of any class of equity securities or of the equity
interest. The undersigned further recognizes that, in the event
that the undersigned is a director or officer of the Surviving
Corporation or becomes a director or officer of the Surviving
Corporation upon consummation of the Merger, among other things,
any sale of the Surviving Corporation Common Stock by the
undersigned within a period of less than six months following the
effective time of the Merger may subject the undersigned to
liability pursuant to Section 16(b) of the Securities Exchange
Act of 1934, as amended.
9. Miscellaneous. This Affiliate Agreement is the
complete agreement between the Surviving Corporation and the
undersigned concerning the subject matter hereof. Any notice
required to be sent to any party hereunder shall be sent by
registered or certified mail, return receipt requested, using the
addresses set forth herein or such other address as shall be
furnished in writing by the parties. This Affiliate Agreement
shall be governed by the laws of the State of Georgia.
This Affiliate Agreement is executed as of the_____ day of
_______________, 1998.
Very truly yours,
___________________________________
Signature
___________________________________
Print Name
AGREED TO AND ACCEPTED as of
______________________, 1998
PREMIER BANCSHARES, INC.
By:_____________________________
AGREED TO AND ACCEPTED as of
______________________, 0000
XXXXXX XXXXXXXX FINANCIAL CORPORATION
By:_____________________________
EXHIBIT 2
---------
MATTERS AS TO WHICH
COUNSEL TO XXXXXX XXXXXXXX WILL OPINE*
1. Xxxxxx Xxxxxxxx is a corporation duly organized,
existing and in good standing under the laws of the State of
Georgia with corporate power and authority to conduct its
business as now conducted and to own and use its Assets.
2. Xxxxxx Xxxxxxxx'x authorized capital stock consists of
____________ shares of Xxxxxx Xxxxxxxx Common Stock, of which
____________ shares were outstanding as of the date hereof and
5,000,000 shares of $.01 par value preferred stock, of which no
shares were outstanding as of the date hereof. The outstanding
shares of Xxxxxx Xxxxxxxx Common Stock are duly authorized,
validly issued, fully paid and nonassessable. None of the
outstanding shares of Xxxxxx Xxxxxxxx Common Stock has been
issued in violation of any statutory preemptive rights. Except
as disclosed in Xxxxxx Xxxxxxxx'x Disclosure Memorandum dated
____________________, 1998, to our knowledge, there are no
options, subscriptions, warrants, calls, rights or commitments
obligating Xxxxxx Xxxxxxxx to issue equity securities or acquire
its equity securities.
3. The execution and delivery by Xxxxxx Xxxxxxxx of the
Agreement do not, and if Xxxxxx Xxxxxxxx were now to perform its
obligations under the Agreement such performance would not,
result in any violation of the Articles of Incorporation or
Bylaws of any Xxxxxx Xxxxxxxx Company, or, to our knowledge,
result in any breach of, or default or acceleration under, any
material Contract or Order to which a Xxxxxx Xxxxxxxx Company is
a party or by which a Xxxxxx Xxxxxxxx Company is bound.
4. Xxxxxx Xxxxxxxx has duly authorized the execution and
delivery of the Agreement and all performance by Xxxxxx Xxxxxxxx
thereunder and has duly executed and delivered the Agreement.
5. The Agreement is enforceable against Xxxxxx Xxxxxxxx.
______________________________
*Pursuant to the January 1, 1992 edition of the Interpretive
Standards Applicable to Legal Opinions to Third Parties in
Corporate Transactions adopted by the Legal Opinion Committee of
the Corporate and Banking Law Section of the State Bar of
Georgia.
EXHIBIT 3
---------
CLAIMS/INDEMNIFICATION LETTER
_______________________, 1998
Premier Bancshares, Inc.
0000 Xxxxxxx Xxxxx
000 Xxxx Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
This letter is delivered pursuant to Section 9.2(e) of the
Agreement and Plan of Reorganization (the "Agreement"), dated as
of February 5, 1998, by and between Xxxxxx Xxxxxxxx Financial
Corporation ("Xxxxxx Xxxxxxxx ") and Premier Bancshares, Inc.
("Premier") which provides for the merger (the "Merger") of
Xxxxxx Xxxxxxxx and Premier.
Concerning claims which I may have against Xxxxxx Xxxxxxxx
or its wholly-owned subsidiary, The Bank of Gwinnett County, in
my capacity as an officer or director:
(a) Premier shall assume all liability (to the extent
Xxxxxx Xxxxxxxx was so liable) for claims for
indemnification arising under Xxxxxx Xxxxxxxx'x Articles of
Incorporation or Bylaws or under any indemnification
contract disclosed to Premier, as existing on February 5,
1998, and for claims for salaries, wages or other
compensation, employee benefits, reimbursement of expenses,
or worker's compensation arising out of employment through
the effective time of the Merger;
(b) The Bank of Gwinnett County shall retain all
liability (to the extent it was so liable) for claims for
indemnification arising under its Articles of Incorporation
or Bylaws as existing on February 5, 1998, and for claims
for salaries, wages, or other compensation, employee
benefits, reimbursement of expenses, or worker's
compensation arising out of employment through the effective
time of the Merger;
(c) In my capacity as an officer or a director, I am
not aware that I have any claims (other than those referred
to in paragraphs (a) or (b) above) against Xxxxxx Xxxxxxxx
or The Bank of Gwinnett County (other than routine deposit,
loan and other banking services conducted in the ordinary
course of business with Xxxxxx Xxxxxxxx or The Bank of
Gwinnett County;
(d) I hereby release Xxxxxx Xxxxxxxx and The Bank of
Gwinnett County from any and all claims which I am aware
that I have against any of them in my capacity as an officer
or a director, other than those referred to in paragraphs
(a) or (b) above.
By executing this letter on behalf of Premier, you shall
acknowledge the assumption by Premier of the liabilities
described in paragraphs (a) and (b) above.
Sincerely,
__________________________________
Signature of Officer or Director
__________________________________
Printed Name of Officer or Director
On behalf of Premier, I hereby acknowledge receipt of this
letter and affirm the assumption by Premier of the liabilities
described in paragraph (a) and (b) above, as of this _____ day of
_______________, 1998.
PREMIER BANCSHARES, INC.
By:________________________________________________
Xxxxxxx X. Xxxxxxx, Chairman and Chief Executive
Officer
EXHIBIT 4
---------
MATTERS AS TO WHICH
COUNSEL TO PREMIER WILL OPINE*
1. Premier is a corporation duly organized, existing and
in good standing under the laws of the State of Georgia with
corporate power and authority to conduct its business as now
conducted and to own and use its Assets.
2. Premier's authorized capital stock consists of
20,000,000 shares of Premier Common Stock, of which ______ shares
were outstanding as of the date hereof. The outstanding shares
of Premier Common Stock are, and all of the shares of Surviving
Corporation Common Stock to be issued in exchange for Xxxxxx
Xxxxxxxx Common Stock upon consummation of the Merger, when
issued in accordance with the terms of the Agreement, will be,
duly authorized, validly issued, fully paid and nonassessable.
None of the outstanding shares of Premier Common Stock has been,
and none of the shares of Surviving Corporation Common Stock to
be issued in exchange for shares of Xxxxxx Xxxxxxxx Common Stock
upon consummation of the Merger will be, issued in violation of
any statutory preemptive rights. Except as disclosed in
Premier's Disclosure Memorandum dated _______________, 1998, to
our knowledge, there are no options, subscriptions, warrants,
calls, rights or commitments obligating Premier to issue equity
securities or acquire its equity securities.
3. The execution and delivery by Premier of the Agreement
do not, and if Premier were now to perform its obligations under
the Agreement such performance would not, result in any violation
of the Articles of Incorporation or Bylaws of any Premier
Company, or, to our knowledge, result in any breach of, or
default or acceleration under, any material Contract or Order to
which a Premier Company is a party or by which a Premier Company
is bound.
4. Premier has duly authorized the execution and delivery
of the Agreement and all performance by Premier thereunder and
has duly executed and delivered the Agreement.
5. The Agreement is enforceable against Premier.
______________________________
*Pursuant to the January 1, 1992 edition of the Interpretive
Standards Applicable to Legal Opinions to Third Parties in
Corporate Transactions adopted by the Legal Opinion Committee of
the Corporate and Banking Law Section of the State Bar of
Georgia.
