EXHIBIT 2.2
AGREEMENT AND PLAN OF MERGER
(Merger Agreement)
THIS AGREEMENT AND PLAN OF MERGER (the "AGREEMENT") is made and entered
into as of this 24th day of August, 2004, by and between UNITED COMMUNITY BANKS,
INC., a Georgia corporation ("UNITED") and LIBERTY NATIONAL BANCSHARES, INC., a
Georgia corporation ("LIBERTY", and together with United, the "CONSTITUENT
CORPORATIONS").
WHEREAS, the authorized capital stock of United consists of 100,000,000
shares of Common Stock, $1.00 par value per share (the "UNITED STOCK"), of which
36,246,392 shares are issued and outstanding and 10,000,000 shares of Preferred
Stock, $1.00 par value per share, of which 48,300 shares are issued and
outstanding; and
WHEREAS, the authorized capital stock of Liberty consists of 10,000,000
shares of Common Stock, $0.50 par value per share, of which 1,598,399 shares are
issued and outstanding and 97,534 shares are subject to currently outstanding
options (the "LIBERTY STOCK"); and
WHEREAS, the respective Boards of Directors of the Constituent
Corporations deem it advisable and in the best interests of each such
corporation and its shareholders that Liberty merge with and into United, with
United being the surviving corporation; and
WHEREAS, the respective Boards of Directors of the Constituent
Corporations, by resolutions duly adopted, have unanimously approved and adopted
this Agreement, and the Board of Directors of Liberty, by resolution duly
adopted, has directed that this Agreement be submitted to the shareholders of
Liberty for their approval; and
WHEREAS, United has agreed to issue shares of United Stock which
shareholders of Liberty will be entitled to receive, according to the terms and
conditions contained herein, on or after the Effective Date (as defined herein)
of the merger provided for herein.
NOW, THEREFORE, for and in consideration of the premises and the mutual
agreements herein contained, and other good and valuable consideration, the
receipt and adequacy of which as legally sufficient consideration are hereby
acknowledged, the parties hereto have agreed and do hereby agree, as follows:
1. MERGER.
Pursuant to and with the effects provided in the applicable provisions of
Article 11 of the Georgia Business Corporation Code, as amended (Chapter 2 of
Title 14 of the Official Code of Georgia), Liberty (hereinafter sometimes
referred to as the "MERGED CORPORATION") shall be merged with and into United
(the "MERGER"). United shall be the surviving corporation (the "SURVIVING
CORPORATION") and shall continue under the name "United Community Banks, Inc."
On the Effective Date (as defined herein) of the Merger, the individual
existence of the Merged Corporation shall cease and terminate.
2. ACTIONS TO BE TAKEN.
The acts and things required to be done by the Georgia Business
Corporation Code in order to make this Agreement effective, including the
submission of this Agreement to the shareholders of the Merged Corporation and
the filing of the certificate of merger in Georgia, relating hereto in the
manner provided in said laws, shall be attended to and done by the proper
officers of the Constituent Corporations with the assistance of counsel as soon
as practicable.
3. EFFECTIVE DATE.
The Merger shall be effective upon the approval of this Agreement by the
shareholders of the Merged Corporation and the filing of the certificate of
merger in Georgia, relating hereto in the manner provided in the Georgia
Business Corporation Code (the "EFFECTIVE Date").
4. ARTICLES OF INCORPORATION AND BYLAWS OF THE SURVIVING CORPORATION.
(a) The Amended and Restated Articles of Incorporation of United, as
heretofore amended, shall on the Effective Date be the Articles of Incorporation
of the Surviving Corporation.
(b) Until altered, amended or repealed, as therein provided, the Amended
and Restated Bylaws of United as in effect on the Effective Date shall be the
Bylaws of the Surviving Corporation.
5. MANNER AND BASIS OF CONVERTING SHARES OF CAPITAL STOCK; CAPITAL STRUCTURE
OF THE SURVIVING CORPORATION.
The manner and basis of converting the shares of capital stock of each of
the Constituent Corporations into shares of the Surviving Corporation shall be
as follows:
(a) In the Merger, the holders of Liberty Stock shall be entitled to elect
to receive, in exchange for their shares of Liberty Stock, shares of United
Stock, cash or a combination thereof, in the amounts specified by such holders
in accordance with the provisions of Section 5(b) below, and each share of
Liberty Stock outstanding immediately prior to the Effective Date shall, by
virtue of the Merger, be converted on the Effective Date into fully paid and
nonassessable shares of United Stock and/or cash as follows, subject to any
adjustments occurring after the date hereof as contemplated by Section 5(d)
below:
(1) 0.9415 shares of United Stock for each outstanding share of
Liberty Stock;
(2) $21.6538 in cash, without interest, per share of Liberty Stock;
or
(3) any combination of Section 5(a)(1) and 5(a)(2) above;
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provided, however, that no more than 15% of the issued and outstanding shares of
Liberty Stock may be exchanged for cash (the "MAXIMUM CASH ELECTION") and any
shares of Liberty Stock elected to be exchanged for cash above the Maximum Cash
Election shall be subject to proration as provided in Section 5(b) below.
(b) At the same time that the notice of special meeting of Liberty
shareholders (the "SPECIAL MEETING") is first mailed to Liberty shareholders, a
form of election shall also be mailed to each Liberty shareholder (the date of
such form of election being referred to herein as the "MAILING DATE"). Each
Liberty shareholder shall indicate thereon his, her or its preference as to the
proportion of United Stock and/or cash which he, she or it desires to receive in
exchange for his, her or its Liberty Stock, and shall return the form to the
Secretary of Liberty prior to the date of the Special Meeting. If holders of
Liberty Stock elect to receive cash for a number of shares of Liberty Stock in
excess of the Maximum Cash Election, then the number of shares exchanged for
cash by each shareholder so electing will be reduced such that the amount of
shares exchanged for cash equals the Maximum Cash Election based on the ratio
that the number of shares elected to be exchanged by such shareholder bears to
the total number of shares elected to be exchanged for cash by all Liberty
shareholders. To the extent a Liberty shareholder does not receive $21.6538 in
cash for each share of Liberty Stock such shareholder elected to be exchanged
for cash due to the proration provided in this Section 5(b), such shareholder
shall be entitled to receive 0.9415 shares of United Stock for each remaining
share of Liberty Stock not exchanged for cash.
(c) Upon the Effective Date, all rights with respect to Liberty Stock
pursuant to stock options (the "LIBERTY STOCK OPTIONS") granted by Liberty which
are outstanding at the Effective Date, whether or not exercisable, shall be
converted into and become rights with respect to United Stock, and United shall
assume each Liberty Stock Option in accordance with the terms of the stock
option plan and the stock option agreement by which it is evidenced. From and
after the Effective Date, (i) each Liberty Stock Option assumed by United may be
exercised solely for shares of United Stock, (ii) the number of shares of United
Stock subject to such Liberty Stock Option shall be equal to the product of the
number of shares of Liberty Stock subject to such Liberty Stock Option
immediately prior to the Effective Date multiplied by 0.9415, and (iii) the per
share exercise price under each such Liberty Stock Option shall be adjusted by
dividing the per share exercise price by 0.9415 and rounding down to the nearest
cent, subject to any adjustments occurring after the date hereof as contemplated
by Section 5(d) and (e) below.
(d) If either party should change the number of its outstanding shares as
a result of a stock split, stock dividend, or similar recapitalization with
respect to such shares prior to the Effective Date then the shares to be issued
hereunder to holders of Liberty Stock shall be proportionately adjusted.
(e) No scrip or fractional share certificates of United Stock shall be
issued in connection with the Merger and an outstanding fractional share
interest will not entitle the owner thereof to vote, to receive dividends or to
have any of the rights of a shareholder with respect to such fractional
interest. In lieu of any fractional interest, there shall be paid in cash,
without interest, an amount (computed to the nearest cent) equal to such
fraction multiplied by $23.00.
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(f) As soon as practicable after the Effective Date, each holder as of the
Effective Date of any of the shares of Liberty Stock to be converted as elected
by such holder as above provided, upon presentation and surrender of the
certificates representing such shares to United, shall be entitled to receive in
exchange therefor a certificate representing the number of shares of United
Stock, and cash, to which such shareholder shall be entitled according to the
terms of this Agreement. Until such surrender, each such outstanding certificate
which prior to the Effective Date represented Liberty Stock shall be deemed for
all corporate purposes to evidence ownership of the number of shares of United
Stock into which the same shall have been converted as elected by such holder as
above provided, the right to receive cash by such holder as above provided, and
the right to receive payment for fractional shares.
(g) Upon the Effective Date, each share of United Stock issued and
outstanding immediately prior to the Effective Date shall continue unchanged and
shall continue to evidence a share of common stock of the Surviving Corporation.
6. TERMINATION OF SEPARATE EXISTENCE.
Upon the Effective Date, the separate existence of the Merged Corporation
shall cease and the Surviving Corporation shall possess all of the rights,
privileges, immunities, powers and franchises, as well of a public nature as of
a private nature, of each of the Constituent Corporations; and all property,
real, personal and mixed, and all debts due on whatever account, and all other
choses in action, and all and every other interest of or belonging to or due to
each of the Constituent Corporations shall be taken and deemed to be transferred
to and vested in the Surviving Corporation without further act or deed, and the
title to any real estate or any interest therein, vested in either of the
Constituent Corporations shall not revert or be in any way impaired by reason of
the Merger. The Surviving Corporation shall thenceforth be responsible and
liable for all the liabilities, obligations and penalties of each of the
Constituent Corporations; and any claim existing or action or proceeding, civil
or criminal, pending by or against either of said Constituent Corporations may
be prosecuted as if the Merger had not taken place, or the Surviving Corporation
may be substituted in its place, and any judgment rendered against either of the
Constituent Corporations may thenceforth be enforced against the Surviving
Corporation; and neither the rights of creditors nor any liens upon the property
of either of the Constituent Corporations shall be impaired by the Merger.
7. FURTHER ASSIGNMENTS.
If at any time the Surviving Corporation shall consider or be advised that
any further assignments or assurances in law or any other things are necessary
or desirable to vest in said corporation, according to the terms hereof, the
title to any property or rights of the Merged Corporation, the proper officers
and directors of the Merged Corporation shall and will execute and make all such
proper assignments and assurances and do all things necessary and proper to vest
title in such property or rights in the Surviving Corporation, and otherwise to
carry out the purposes of this Agreement.
8. CONDITIONS PRECEDENT TO CONSUMMATION OF THE MERGER.
This Agreement is subject to, and consummation of the Merger is
conditioned upon, the fulfillment as of the Effective Date of each of the
following conditions:
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(a) Approval of this Agreement by the affirmative vote of the holders of a
majority of the outstanding voting shares of Liberty Stock; and
(b) All the terms, covenants, agreements, obligations and conditions of
the Agreement and Plan of Reorganization (the "ACQUISITION AGREEMENT") of even
date herewith by and between Liberty and United to be complied with, satisfied
and performed on or prior to the Closing Date (as defined therein), shall have
been complied with, satisfied and performed in all material respects unless
accomplishment of such covenants, agreements, obligations and conditions has
been waived by the party benefited thereby.
9. TERMINATION.
This Agreement may be terminated and the Merger abandoned in accordance
with the terms of the Acquisition Agreement, at any time before or after
adoption of this Agreement by the directors of either of the Constituent
Corporations, notwithstanding favorable action on the Merger by the shareholders
of the Merged Corporation, but not later than the issuance of the certificate of
merger by the Secretary of State of the State of Georgia with respect to the
Merger in accordance with the provisions of the Georgia Business Corporation
Code.
10. COUNTERPARTS; TITLE; HEADINGS.
This Agreement may be executed simultaneously in any number of
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument. The title of this Agreement and the
headings herein set out are for the convenience of reference only and shall not
be deemed a part of this Agreement.
11. AMENDMENTS; ADDITIONAL AGREEMENTS.
At any time before or after approval and adoption by the shareholders of
Liberty, this Agreement may be modified, amended or supplemented by additional
agreements, articles or certificates as may be determined in the judgment of the
respective Boards of Directors of the Constituent Corporations to be necessary,
desirable or expedient to further the purposes of this Agreement, to clarify the
intention of the parties, to add to or modify the covenants, terms or conditions
contained herein or to effectuate or facilitate any governmental approval of the
Merger or this Agreement, or otherwise to effectuate or facilitate the
consummation of the transactions contemplated hereby; provided, however, that no
such modification, amendment or supplement shall reduce to any extent the
consideration into which shares of Liberty Stock shall be converted in the
Merger pursuant to Section 5 hereof.
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IN WITNESS WHEREOF, the Constituent Corporations have each caused this
Agreement to be executed on their respective behalfs and their respective
corporate seals to be affixed hereto as of the day and year first above written.
LIBERTY NATIONAL BANCSHARES, INC.
(CORPORATE SEAL)
ATTEST: By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
/s/ C. Xxxx Xxxxxx Xxxxxxx X. Xxxxxx
------------------------------- President and Chief Executive Officer
Secretary
UNITED COMMUNITY BANKS, INC.
(CORPORATE SEAL)
ATTEST: By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
/s/ Xxxx XxXxx Xxxxxx X. Xxxxxxxxx
------------------------------- Executive Vice President
Assistant Secretary
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